Director of Public Prosecutions v Cong Ho Hai Nguyen
[2013] VCC 2111
•15 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00643
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONG HO HAI NGUYEN |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2013 | |
DATE OF SENTENCE: | 15 November 2013 | |
CASE MAY BE CITED AS: | DPP v. Cong Ho Hai Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2111 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Breckweg | |
| For the Accused | Ms A Kapitaniak |
HIS HONOUR:
1 Cong Ho Hai Nguyen, on the 8 November 2013, a plea hearing was conducted. You had previously been arraigned and pleaded guilty to the following charges on the 8 April 2013.
2 Charge 1, between the 4 May 2011 and the 12 June 2011, import a substance intending to use or believe that another person intended to use any of the substance to manufacture a controlled drug, namely a commercial quantity of the border-controlled precursor ephedrine, contrary to sub-s.307.11(1) of the Criminal Code, Commonwealth.
3 Charge 2, between the 9 May 2011 and the 19 August 2011 pre-trafficked in a substance, namely a commercial quantity of the controlled precursor, ephedrine, contrary to sub-s.306.2(1) of the Criminal Code, Commonwealth.
4 Charge 3, between the 18 August 2011 and the 19 August 2011 you pre-trafficked in a substance, namely a commercial quantity of the controlled precursor ephedrine, contrary to sub-s.306.2(1) of the Criminal Code, Commonwealth.
5 The maximum applicable penalty for each of the three charges on the indictment is 25 years' imprisonment and/or 5,000 penalty units. These offences are clearly serious matters.
6 I will turn first of all to the circumstances of your offending. The facts of your offending are well summarised in the plea summary which was Exhibit 1 on the plea. I do not propose to repeat the whole of the plea summary in these reasons. I will attach a copy of Exhibit 1 as annexure "A" to these reasons for sentence.
7 I will summarise the facts that constitute your offending.
8 Charge 1, you have imported into Australia five consignments of towels which were impregnated with the border-controlled pre-cursor ephedrine. Each of these consignments came from India in the period of the 4 May 2011 and the 12 June 2011. The five consignments comprised 13 boxes of the towels. The boxes were delivered to 412 Edgars Road, Lalor, which was your residential address. You signed for the delivery of each of the consignments.
9 Of the 13 boxes you intended to use five of those boxes for the manufacture of a controlled drug. The remaining eight boxes you were to deliver to other persons who intended to manufacture a controlled drug.
10 You were not authorised to import ephedrine into Australia. Presumptions pursuant to s.307.14(1) and (3) of the Criminal Code, Commonwealth, proves your intention and you have not over-turned that presumption.
11 On the 19 August, 2011, the police executed a search warrant at 412 Edgars Road, Lalor. The police located the following:
§ $40,000 Australian in cash,
§ a number of mobile phones and SIM cards, including the following mobile telecommunication service subscribed to in false names –
o 0435854031 - subscribed in the name of Wendy Chui.
o And the second one was 0422672365 subscribed in the name of Cheiu Hoi –
o and the third service is in the number of 0401095044, subscribed in the name of Hue Ngoc.
12 Also found were two valid passports, one Australian and one French, in the name of Cong Ho Hai Nguyen and other various forms of identification, including your change of name certificate. There were five boxes of white cotton towels containing the ephedrine. There was 150 kilogram bag of caustic soda pearls. There was four litres of the enamel thinner, 16 litres of toluene, five litres of hydrochloric acid, approximately three litres of hypophosphorous, a book titled "Total Synthesis 2" (it is a guide to manufacturing methylamphetamine), digital scales, small clip seal deal bags and storage equipment used in the distribution of drugs and two yellow tablets and a small amount of white crystalline matter.
13 In regard to the imported towels, a forensic analysis found the total amount of 19.728 kilograms of pure ephedrine was present. The ephedrine is a pre-cursor chemical used in the production of methylamphetamine, in this case estimated to be the same amount 19.728 kilogram and can produce between 12.428 kilograms and 15.53 methylamphetamine hydrochloride.
14 The commercial quantity of ephedrine is 1.2 kilograms. Your importation is 16 times the commercial quantity.
15 In the course of the plea a statement of Keith Randall, Federal Agent, of the AFP, dated the 18 July 2013, was tendered. It became Exhibit 2 on the plea. Federal Agent Randall estimated the potential wholesale value of the ephedrine at approximately $1.7 million.
16 Agent Randall estimated that importation of ephedrine, once manufactured into crystal methamphetamine, had a potential value of $4.3 million to $5.1 million.
17 Clearly, your importation of ephedrine is a significant commercial undertaking when considering its wholesale value is $1.7 million or its quantity is 16 times the commercial quantity set out in the legislation. However, quantity alone is not the only factor to take into account when considering your sentence.
18 Charge 2, the offending by you in Charge 2 has two aspects to it. I am quoting from the summary. Between the 9 May 2011, and the 19 August 2011, you pre-trafficked a commercial quantity of the controlled pre-cursor ephedrine by -
(1) possessing five boxes of the imported ephedrine with the intention of using it to manufacture a controlled drug and with the intention of selling any of the drug you so manufactured; and
(2) selling six boxes of the imported ephedrine believing that a person to whom it was sold or another person intended to use any of the substance to manufacture a controlled drug.
19 The police and Customs had intercepted telephone conversations and email correspondence between you and [email protected]. The full text of the intercepted calls and emails are set out in Annexure "A".
20 Suffice it to say you have sourced and obtained a number of constituent elements for the production and manufacture of methylamphetamine which is referred to as "Beef Noodle Soup". You have been observed obtaining some of the chemicals. I have previously outlined what was found at your premises when the police executed the search warrant on the 19 August 2011.
21 It is alleged by the prosecution and you accept that the five boxes in the possession of the offender seized during a search of the premises, in particular, the unlawfully imported ephedrine, toluene, caustic soda, acid, hydrophosphorous and the planned purchase of iodine was evidence of your intention to manufacture amphetamine. I accept that is the case.
22 You did not have authorisation to possess the ephedrine, pursuant to sub-s.308.2(3) of the Criminal Code. A person is presumed to have possessed the substance with the intention of using some or all of it to manufacture a controlled drug if the substance required permission to possess and you were not so authorised. I accept that you were going to manufacture a controlled drug and I accept that beyond reasonable doubt.
23 The second part of your offending, in Charge 2, is that you had sold six boxes of the impregnated towels with ephedrine to other persons believing that those persons intended to use the imported ephedrine in the manufacture of a controlled drug. In your record of interview with the police on the 19 August 2011 you admitted that you had received 13 boxes containing bath towels which you suspected of containing some form of chemical. You admitted five of the boxes were still located at your house at 412 Edgars Road, in Lalor, Victoria.
24 Of the remaining boxes you said that you had delivered three of the imported boxes to an unknown address in Mill Park, one box was given to an unknown person by your ex-wife Dang, and you took two boxes to Sydney, in the company of Dang on the 9 August 2011. That is the basis of your offending for the pre-trafficking in a commercial quantity of the controlled pre-cursor, ephedrine.
25 Charge 3. This charge relates to the remaining two boxes of towels imported by you which contained ephedrine. You admitted to police that you organised Viet Thuy Truong to convey two boxes of the towels to Sydney on the 18 August 2011. The transporter of the boxes was to be paid $5,000. Truong was meant to receive $55,000 from "John" in Sydney. He, in fact, received $40,000 from John. New South Wales police had monitored the delivery and found the $40,000 in Truong's car.
26 The phone calls from you to John were a part of the telephone intercepts. The boxes from your house were located at 17 Knight Street, Lonsvale, in New South Wales.
27 The delivery of the two boxes to Sydney by you, through your agent Truong, is the basis of the pre-trafficking offending in Charge 3. You were arrested on the 19 August 2011 and interviewed by police. In the record of interview you admitted the following matters -
(1) Receiving one consignment containing one box, and another consignment of 12 boxes containing bath towels which you suspected of containing some form of chemical;
(2) You had previously delivered three boxes to an unknown address in Mill Park and one box was handed over to an unknown person by your ex-wife, Dang.
(3) You admitted to taking two of the boxes to Sydney in the company of Dang, on the 9 August 2011.
(4) That you organised Viet Thuy Truong to convey two of the boxes to Sydney on the 18 August 2011.
(5) The remaining five boxes were located in your garage at 412 Edgars Road, in Lalor.
(6) You were sourcing various chemicals, including caustic soda, hydrochloric acid on behalf of a male person only identified as Huong, who lives in Vietnam.
(7) You purchased the chemical toluene in order to clean your car with it.
(8) You did these actions for financial gain and whatever Hung was to do with the chemicals was Hung's problem.
(9) The $40,000 located at your residence was moneys loaned to you by associates for the establishment of a business.
(10) The $40,000 in the possession of Viet Thuy Truong was probably from Hung's associates to be forwarded on to other unknown people.
28 I now turn to the conduct of this prosecution. You have been in custody since your arrest. Up to today that is a total of 820 days' pre-sentence detention. You pleaded guilty to charges 2 and 3 on the indictment, the pre-trafficking charges, at the contested committal on the 24 April 2012.
29 You finally pleaded guilty to all three charges on this indictment on the 8 April 2013. That was to be the first day of the trial.
30 I now turn to the gravity of the offences. It was put on your behalf that you are not a principal offender. The drug operation was said to involve people from Canada, Vietnam and India. In your interview you say Huong is the main person.
31 It is clear from the evidence in this case that you are the principal for the Australian end of the drug operation. You are the person who takes delivery of the imported towels. You are the person who ultimately arranges the delivery of eight of the 13 boxes of towels to other people here in Melbourne and in Sydney. You retained possession of five of the boxes.
32 You also obtained and sourced the other chemicals found at your residence in Lalor. You had the "how to make" - that is the way I describe - the "how to make methylamphetamine" book, "Total Synthesis 2", digital scales and clip seal bags and other paraphernalia. I find beyond reasonable doubt that you were the main player in this operation in Australia.
33 I have previously noted the amount of ephedrine was 16 times the commercial quantity under the legislation. Whilst quantity alone, as I have said, is not the sole determinate of the seriousness of your offending it is an indicator of the size of the drug importing operation. There is a sophistication in the method of disguising the drug in the towels. The clandestine transportation and/or delivery of the boxes also requires criminal sophistication.
34 The impact of amphetamine use or crystal methylamphetamine by people in our community is as corrosive to the social fabric in Australia as the toluene in your possession is to the house paint. The totality of your offending is serious.
35 I now turn to your personal circumstances. You are now 38 years old. At the time of your offending you were 35. You have no prior convictions. You were born in Vietnam in 1975. You have a younger sister who lives with your mother in Canada. Your father lives in France and has remarried and has other children. Your father conducts a small locksmith business in France. You have had no contact with your father since you were remanded in custody on these charges. Your father left for France when you were six years old.
36 Your mother brought you and your sister up initially in Vietnam. She worked in Saigon. Your maternal grandparents were involved in your upbringing as well. At age 10 you were sent to boarding school for two years. You remained at school until you were aged 16. You hoped to join your father in France.
37 In 1990, your mother, sister and yourself escaped from Vietnam by boat and ended up in Indonesia via Malaysia. Your mother took your sister to Canada. That left you for five months on your own in Indonesia. No doubt that was a hard time for you. You were sponsored to France and lived there for five years. In that time you did one year's national service in the French Army. You became a French citizen. You describe your time in the French Army as your best time.
38 In 1998, you travelled to Vietnam and met Dang, your now ex-wife and mother of your 12 year old son. You came to Australia with the original plan to move to Canada. You married Dang in 1999.
39 In 2001, your son Andy was born. In 2005 you became an Australian citizen and in 2006 you divorced your wife Dang. The reason given for your divorce is that your relationship broke down over gambling issues which afflicted both of you.
40 It was put on your behalf that the reason you became involved in this offending was because you were in a desperate situation owing some $50,000 to loan sharks. It was submitted the only money you received from these offences ended up in the hands of loan sharks.
41 It was not submitted that your gambling addiction was at a level to have any impact on your moral culpability for these offences. A report of David Ball, forensic psychologist, dated the 12 July 2013 was tendered as Exhibit "A" on the plea. Mr Ball was unable to diagnose any frank mental illness. He says you are well clear of any symptoms of pathological gambling. This factor is a good sign for rehabilitation upon your release from prison.
42 Mr Ball says that you have an anxiety and sadness that your current situation and the impact your incarceration will have on your son growing up in the community without you around to guide him. He does not diagnose any adjustment disorder.
43 I note your letter to the court expressing your sorrow and regret for these offences. You state you have learned an important lesson from this mistake. You express your concern for your son and you not being able to fulfil your duty as a father in bringing up your son.
44 I also note the plea for leniency expressed by your son, Andy, in his letter dated the 7 June 2013. Those letters are part of Exhibit "B" on the plea. You have also undertaken courses in prison and work, as I understood it, in the metal work area. In short, you were described as a model prisoner.
45 The bundle of medical reports and other notes relating to your mother's poor health were tendered. They were part of Exhibit "C". She lives in Toronto in Canada and is cared for by your sister who works as a hairdresser.
46 In relation to the impact of your incarceration on your own son and the inability of you to visit your sick mother, they are properly described as "hardships" on your family. However, it is often the case that hardship is visited upon family members as a result of incarcerating offenders such as yourself.
47 I also accept the fact that your inability to speak English as your first language is a matter that would make your time in custody more difficult. The worst part of this factor is probably behind you. You have been able to undertake courses in prison successfully. Your English is improving and this factor, as a hardship in prison is diminishing.
48 You were able to compose your letter, as I say, which was Exhibit "B" with assistance from others whilst in prison. You have learned to cope with this difficulty.
49 Your plea of guilty. You have pleaded guilty and this is an important matter to be taken into account in your favour. A guilty plea, no matter when it is entered always attracts a sentencing discount. In assessing the weight to be given to your guilty plea I take into account -
(1) you indicated the guilty plea to Charges 2 and 3 at an early stage;
(2) your plea in respect of all charges has avoided the cost of a trial;
(3) there is social utility in your plea of guilty;
(4) your plea is consistent with your cooperation with police. You have accepted your responsibility for your offending;
(5) your plea finalises this matter;
(6) your plea indicates and reflects your remorse for your offending;
(7) you are entitled to a statutory discount because of your plea.
50 In sentencing you, I am required to take into account a number of sentencing factors, including:
(1) principles of general deterrence;
(2) the nature and circumstances of the offence including your moral culpability for it;
(3) the maximum applicable penalties;
(4) In this case the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar nature and I have to take into account that course of conduct;
(5) the fact that you have pleaded guilty to the charges;
(6) the degree to which you have cooperated with law enforcement agencies in the investigation of these offences;
(7) the deterrent effect that any sentence or order I make may have on you personally;
(8) the need to ensure that you are adequately punished for the offences;
(9) your character, antecedents, age, means and physical and mental condition now - basically, your personal circumstances;
(10) the probable effect any sentence would have on any of your members and dependants
(11) the prospects of your rehabilitation; and
(12) prison is a sentence of last resort.
51 I have taken into account the current sentencing practises and the authorities referred to me during the plea.[1]
[1] R v. Aldrich, R v W, R v Carey, R v Afendi, and Nguyen v. R
52 The prosecution submitted an appropriate range of imprisonment was a total effective sentence of 12 to 14 years and a non-parole period of nine to 11 years.
53 I accept that in all the circumstances of this case there is no option but to impose a lengthy term of imprisonment upon you, however, in view of the extraordinarily long time spent in pre-sentence detention with the exhibited signs of rehabilitation it is appropriate to fix a lower than normal non-parole period.
54 Cumulation is required in respect of the three counts, in part to reflect the seriousness and the discrete nature of each of those counts.
55 Would you stand please?
56 On Charge 1, you are convicted and sentenced to seven years' imprisonment, such sentence to commence today.
57 On Charge 2, you are convicted and sentenced to four years' imprisonment, such sentence to commence 12 months before the expiration of the sentence in Charge 1.
58 On Charge 3, you are convicted and sentenced to three years' imprisonment, such sentence to commence 12 months before the expiration of the sentence in Charge 2.
59 That is a total effective sentence of 12 years' imprisonment. I direct that you are to serve a minimum non-parole period of eight years. I declare that you have served a total of 820 days presentence detention to be deducted administratively from your sentence commencing this day. I declare under s.6AAA of the Victorian Sentencing Act, but for your plea of guilty, I would have sentenced you to a total of 15 years' total effective sentence with a non-parole period of 12 years.
60 Is there anything further?
61 MS KAPITANIAK: No, Your Honour.
62 MS BRECKWEG: No, Your Honour. I am just doing the calculations. I am sure it is right.
63 HIS HONOUR: Always in Commonwealth matters.
64 MS BRECKWEG: Yes, Your Honour. Yes, that is correct, Your Honour.
65 HIS HONOUR: And the total effective sentence is 12?
66 MS BRECKWEG: That is right, Your Honour. Yes.
67 HIS HONOUR: Yes. I will return these folders or what is left of them.
68 MS BRECKWEG: Yes, thank you, Your Honour.
69 HIS HONOUR: I have taken things from them.
70 MS BRECKWEG: Yes. Thank you.
71 HIS HONOUR: Yes. Thank you. You can remove the prisoner. Good luck when you get out Mr Nguyen. Thank you both for your assistance. It is obviously a very big case and it is well managed by everybody at the Bar table and I thank you very much for your assistance in resolving this matter. Thank you.
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