Director of Public Prosecutions v Ngoc Nguyen

[2023] VCC 688

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00650

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGOC THI BICH NGUYEN

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2022
DATE OF SENTENCE:	27 April 2023
CASE MAY BE CITED AS:	DPP v Ngoc Nguyen
MEDIUM NEUTRAL CITATION:	[2023] VCC 688

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - SENTENCING

Catchwords:  Trafficking in a drug of dependence commercial quantity – Trafficking in a drug of dependence simpliciter – Early plea of guilty – Covid-19 pandemic – Worboyes – Very good prospects of rehabilitation - Parity.

Legislation Cited: ss 5, 5(2H), 6AAA, 18 Sentencing Act 1991 (Vic).

Cases Cited:Gregory (a pseudonym) v The Queen [2021] VSCA 211; Vincent v The Queen [2021] VSCA 99; Worboyes v The Queen [2021] VSCA 169.

Sentence:Sentenced to two years and one month imprisonment with a non-parole period of 14 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D. Hannan	The Office of Public Prosecutions
For the Accused	A. Hancock	Giorgianni & Liang Lawyers

HER HONOUR:

1Ngoc Thi Bic Nguyen, you have pleaded guilty to one charge of trafficking in a drug of dependence commercial quantity and trafficking in a drug of dependence simpliciter.  You have agreed to this Court hearing and have pleaded guilty to one summary charge of dealing with property suspected of being the proceeds of crime.

Outline of offending

2The summary of your offending is set out in the prosecution opening, marked as Exhibit A on the plea and I sentence you on that basis.

3In brief, Operation DTF-ACHILLES, was an investigation undertaken by the Victorian Police Drug Task Force, that focused on the drug trafficking activities of So Ro Vo, then a 53-year-old Vietnamese man.  Police utilised physical surveillance as well as telecommunication warrants intercepting a large amount of phone calls and stored communications. 

4Mr Vo trafficked substantial amounts of methylamphetamine and heroin with the assistance of you, Ngoc Bich Thi Pham, and Diep Hoang. The investigation revealed he was able to source large amounts of methylamphetamine and heroin at very short notice and he trafficked to a well-established network of users and other drug traffickers.

5Mr Vo utilised three residential addresses to prepare, store and distribute methamphetamine and heroin; addresses in Abbotsford, Delahay and St Albans.

6Together with Mr Hoang and yourself, Mr Vo primarily used the Goldsmith address to purify methylamphetamine by the use of acetone as well as to store and distribute it. 

7You were one of Mr Vo's intimate partners, Ms Pham was another.

8You were born in June 1987 and at least from October and November 2020, you lived at the Goldsmith address.  The text messages captured by police revealed you to be subservient to Mr Vo, often purchasing groceries for him, arranging payment of his fines, keeping track of his email and social media passwords, and trafficking methylamphetamines and heroin on his behalf. 
At times you were instrumental in negotiating prices and deals with
non-Vietnamese speaking customers.

Charge 1 – Trafficking in a drug of dependence, commercial quantity

9Charge 1, trafficking in a commercial quantity of methylamphetamine on the indictment, concerns you trafficking a total of 927.2g of methylamphetamine to various customers between 3 April 2021 and the day of your arrest at the Goldsmith property on 28 May 2021.  The total amount of methylamphetamine includes: the 318.5g located at the Goldsmith address upon arrest; the 139g that you sold to undercover operatives on 22 April 2021; and approximately nine individual transactions as captured by the TI warrants in conjunction with CCTV surveillance. 

10The TI transactions are outlined in the prosecution opening in paragraphs [10] to [18] and demonstrate you engaged in transactions in various amounts of methamphetamine, including 56g, 28g, 125g, 84g, 29.7g and 7g.

11In respect of the sale to the undercover operative on 22 April 2021, you were telephoned by Mr Vo who instructed you to get a bag of ice and drive it to “46”, and ultimately wait the arrival of someone who would pay $19,500.

12On 28 May 2021, drug task force investigators executed simultaneous search warrants at the three relevant addresses.  At the Shamrock address police located 2.7kg of heroin in various stages of preparation and purities. 
At the Disraeli address police located approximately 210g of methylamphetamine in various stages of preparation in the bedroom occupied by Mr Vo. At the Goldsmith address police located you and Mr Vo. Police located equipment and substances consistent with the processing and refining of methylamphetamine as outlined in the prosecution opening at paragraph 23.

Charge 2 – Trafficking in a drug of dependence, simpliciter

13In respect of Charge 2, after midnight on 3 April 2021, Mr Vo received a call from an unknown customer asking if he could see him.  Mr Vo said ‘she’ is home now.  Mr Vo then sent a text message to you telling you to sell 1.7g
for $1,000 to David and you replied, ‘ok’.

14On 19 May 2021, Mr Vo called you and tasked you to deliver 1.7g of ‘hot’, in other words heroin, to the unit at Disraeli Street.  You agreed, telling Mr Vo that you would attend after you had weighed it up and your arrival at the address was captured on CCTV footage. 

15At the execution of the search warrant at the Goldsmith address on 28 May 2021, police located 7.3g of heroin in various small zip lock bags throughout the residence.  This heroin, possessed for sale, along with the two sales of 1.7g, totals 10.7g.

Summary Charge 6 – Dealing with property suspected of being the proceeds of crime

16At the execution of the warrant on 28 May 2021, police seized the black 2020 Toyota Yaris Sedan registered to you.  Police had surveyed Mr Vo driving this car on a number of occasions during his drug trafficking transactions.  Methylamphetamine was located secreted within a compartment within the car and seized.  It is suspected of being the proceeds of crime.

17When interviewed on 28 May 2021 at the Melbourne West Police Station, you mostly exercised your right to say, 'no comment', but you did make some admissions.  You stated that Mr Vo was your partner and that you had
been living at the Goldsmith address since October or November of 2020, that you were a regular user of methylamphetamine and that you sold methylamphetamine to friends but in small amounts.

Gravity of the offending

18The seriousness of your offending Ms Nguyen on both counts is reflected in the maximum sentences set by Parliament for the trafficking charges.

19Charge 1, carries a maximum sentence of 25 years' imprisonment. Also, on this charge, a mandatory sentencing regime under s5(2H) of the Sentencing Act 1991 (Vic) applies, that requires a term of imprisonment be imposed, not being part of a combination sentence, unless the offender falls within certain exceptions. No submission was made on your behalf that any exceptions apply.

20Between the period that is stipulated in the indictment, you trafficked in a quantity of not less than the commercial quantity of methylamphetamine.  Based on the prosecution opening, you conducted numerous transactions on behalf of Mr Vo including preparing and delivering drugs and collecting money.  You were also at times instrumental in negotiating prices and deals with
non-Vietnamese speaking customers. The total amount of methylamphetamine trafficked as I have already noted was 927.2g over this approximate two-month period.  The commercial quantity of methylamphetamine mixed substances is 250g, the total you trafficked therefore represents 3.7 times the commercial quantity.

21In relation to the second charge, which carries a maximum of 15 years' imprisonment, it is comprised of the two sales and the heroin located at the home at the time of your arrest.  The traffickable quantity of heroin is 3g, the amount the subject of the charge totals 10.7g which is 2.4 times the traffickable quantity in heroin.

22The sentencing regime for trafficking offences is quantity based.  That is, the legislature has fixed the maximum penalties by reference to specified quantitative thresholds.[1]  It follows therefore that quantity is a highly relevant consideration in sentencing for trafficking offences.  It is not the only or determinative factor; it is one of the many factors that must be taken into account and synthesised for the purpose of arriving at an appropriate sentence in an individual case.[2]

[1]Gregory (a pseudonym) v The Queen [2021] VSCA 211.

[2]Vincent v The Queen [2021] VSCA 99, [45].

23There are also other important indicators of offence seriousness, including your role in the trafficking, the duration of the offending and the motivation of your involvement. 

24As the Court of Appeal stated in Gregory (a pseudonym) v The Queen[3],

…as with any category of offending there is a wide variation in the seriousness of commercial quantity of trafficking offences and in the culpability of the traffickers.  Likewise, there is a great variation in the role played by the offender ranging from a controlling role to the role of courier or driver.  And of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range.

[3] [2017] VSCA 151, [97].

25In assessing the gravity of your offending and your moral culpability, I take into account that you were in a relationship with and subservient to Mr Vo.  I accept that you were involved in the offending at the direction of, and on behalf of, your partner.  You were not a principal of the enterprise and did not issue instructions or directions.  While you discussed prices and sold drugs, this was at the direction of Mr Vo.  You, yourself did not make decisions as to prices or direct others in that regard.  Nor were you the proprietary owner of the drugs trafficked.  Also, aside from the provision of a home in which to live with your partner, there is little to support a finding of any financial enrichment in your case.  I accept that your intimate relationship with Mr Vo, who was much older than you, and with whom you appear to have been assigned a traditional subservient role, provides the relevant context to your offending and motivations.  Also, at the time of your offending, your methylamphetamine use, I was told, had escalated and you were using on a daily basis.

26The vehicle the subject of the summary offence was registered in your name and was in your possession at the relevant time.  In all the circumstances I accept that this was done at the suggestion of Mr Vo and that it was otherwise considered to be his vehicle.  On your behalf it was submitted by Ms Hancock that this was consistent with the surveillance evidence which demonstrates
Mr Vo was the user of the car.

Personal circumstances

27You are currently 35 years of age, born in June 1987.  You are of Vietnamese background and an Australian citizen. 

28Shortly before your birth, your parents fled Vietnam by boat with the intention of migrating to Australia.  They landed in Thailand and were held in a detention centre for about two years before being accepted into Australia, moving here when you were around two years of age.

29You were raised by both your parents up until the age of 18 when they separated.  Your father is now retired and your mother cares for your older sister who suffers from Lupus and other related illnesses including significant
kidney issues.  You also assist your sister with attending medical appointments while your mother cares for her young grandchildren.  You have two brothers and are particularly close with the younger one.

30You completed Year 12 and entered the workforce to assist your family.  Your parents separated when you were in Year 12 and your father moved back to Vietnam leaving your mother to care for you and your siblings.  Your father remains in Vietnam but occasionally visits mainly to see your unwell sister.

31While studying business administration at Victoria University you were employed on a casual basis as a front-end coordinator at Officeworks
from 2006 to 2011.  You were responsible for opening and closing the store and handling cash registers.  From 2009, while working casually for Officeworks, you were also employed full-time at Mental Illness Fellowship Victoria where you worked until 2014.  You were a receptionist there for the first six months, before moving into a payroll officer position and human resources. You have not worked since leaving the Fellowship in 2014, the work I was told became increasingly demanding and stressful.  You took a break with the intention of returning, but ultimately never did.

32In more recent times you completed six months of an online Certificate IV
in Bakery in support of your sister who was enrolled in the same course. 
In 2020, you commenced a Diploma in Building and Construction at
Victoria University and you recently completed a Certificate III in
Civil Construction Plan Operations and further related units.

33You were introduced to drugs in around 2014 or 2015 through friends.  You commenced experimenting with cannabis, cocaine, methylamphetamine and ecstasy on weekends in social settings.  In 2018, you began regularly using methylamphetamine.  You were using about 0.5g daily at the time of your arrest.

34As for relationships, you were in a relationship with a man named Chris
between 2014 to late 2019.  He was a gambler and lost both his money and yours.  The relationship was tumultuous and there were many tensions and arguments. 

35Within a few months of this relationship coming to an end you met Mr Vo and soon after formed a relationship with him in early to mid-2020.As already noted, he was significantly older than you.  Apparently you still regard yourself as being in a relationship with Mr Vo, though I was told this is a matter that you are reflecting on, particularly given the situation that you both now find yourself in.

Factors in mitigation

Plea of guilty

36Ms Nguyen your plea of guilty was entered at an early opportunity and at a time when two of your co-accused including Mr Vo, are contesting their charges.  Your early plea of guilty entitles you to a substantial discount in sentence. 

37Your plea of guilty demonstrates a willingness to assist in the course of justice, take responsibility for your offending and it saves significant Court time and witnesses from giving evidence. The utilitarian value of your plea is also heightened in accordance with Worboyes[4] considerations. I accept your Counsel's submission that your plea of guilty is also indicative of remorse.

[4]Worboyes v The Queen [2021] VSCA 169.

Remand period

38You were remanded in custody on 28 May 2021, the date of your arrest and you were granted bail on 7 December 2021 and have 194 days in pre-sentence detention, that is over six months. I accept your Counsel, Ms Hancock's submission that your custodial conditions were more onerous because of the impact then of the Covid-19 pandemic.  You suffered a range of additional restrictions and deprivations, including a two-week quarantine period and the inability to receive visits from family and friends or to engage in any programs.  Notwithstanding these challenges, you kept yourself engaged by working seven days a week in the kitchen for this period.

Prospects of rehabilitation

39In all the circumstances I consider that you present with very good prospects of rehabilitation. 

40You are in your mid 30s and you have no prior convictions or subsequent matters.  You have no mental health or any significant psychiatric or behavioural issues.  In his assessment of you, Mr Simmons opines that you are, 'an articulate woman who did not appear to have any intellectual difficulties'.  Nor did you present with any, 'evidence of disorders of thought or perception'.  While expressing some tearfulness at the present time and uncertainty about your future your mental state was otherwise ‘unremarkable’.  He did not assess you as suffering from any psychiatric disturbance or to have any anti-social personality traits.

41I received testimonials from your close friends who describe you as a generous person, hardworking and trustworthy.  Peter La, refers to the invaluable support you provided him after a family member passed away.  Trang Thi Nguyen refers to you as, 'always going the extra mile for everyone'.  Cuong Huy Pham, describes you as selfless and as always putting your friends and family first.  Collectively, they also speak of your remorse for your offending.

42Since your release on bail on 7 December 2021 you have remained abstinent from drugs and you have demonstrated your willingness and ability to remain drug free and offence free.  You have done so even with this matter and the likely prospect of returning to custody hanging over your head.  As your close friend Thomas Chan states in his reference, you have resolutely tried to move past your mistakes in a constructive manner.  Ms Pham with whom you currently live, describes your motivation to make changes. 

She wakes up early each morning to help out with walking my dog, making breakfast and prepares for her studies.  After coming back from school she spends her time with her family by helping her mum look after her sick sister.

43In assessing your prospects, I also take into account that you have a positive work history and since being on bail, you have successfully re-engaged in studies.  Clearly you also have positive support in the community and are well connected to your family.

44Your Counsel accepted that your relationship with Mr Vo remained and was a relevant risk factor, and that you would likely benefit from a period of counselling to help educate you and assist you with ongoing insight in this respect.

Parity

45As submitted by both Counsel, Ms Nguyen, parity is a relevant sentencing consideration in your case.  The sentencing principle of parity is an aspect of equal justice.  It requires that like should be treated alike, but that due allowance must be made for relevant differences between co-offenders.

46On your behalf it was submitted that your role is comparable to that of your
co-accused, Van Diep Hoang who was sentenced on 15 July 2022 by this Court, to a total effective sentence of 410 days imprisonment wholly declared as pre-sentence detention. 

47In broad terms I accept that your role in conduct is comparable to Mr Hoang, in that you were selling on behalf of Mr Vo, subservient to him, and acting on his direction.  Mr Hoang regularly conducted drug transactions on behalf of Mr Vo, including delivering drugs and collecting money from him.  Mr Hoang was paid in the form of accommodation and drugs to use. 

48Of course, there are important differences in your case. Mr Hoang pleaded guilty to two charges of trafficking simpliciter and one charge of possessing a drug of dependence. He admitted to trafficking heroin between
5 December 2020 and 25 May 2021 at the direction of Mr Vo.  He also admitted to trafficking a substantial amount of methylamphetamine confined to one day, which related to the possession of methamphetamine for sale, located at the time of the execution of the police warrants.

49While I accept that quantum or weight is not the sole or determinative factor and that sentences are not to be increased on an arithmetic basis, it is an important one.  You have pleaded guilty to trafficking in a commercial quantity of methylamphetamine, necessarily with the relevant knowledge or intent on your part.  The purity of the drug when known was also relatively high at
over 80 per cent.  Your offending also involved a variety of criminal conduct, as outlined in the opening. In respect of Charge 2, I also note that your conduct comprised of two separate transactions in addition to drugs in your possession for sale.

50As for personal circumstances Mr Hoang was able to rely on a range of mitigating factors, including the more onerous nature of his remand in light of Covid-19 restrictions, his concern for the welfare of his wife and child and the risk of deportation, given his status as an unlawful non-citizen.  Overall, he was assessed as having reasonable prospects of rehabilitation. Relevantly,
Mr Hoang did have one prior conviction for the cultivation of cannabis, commercial quantity for which he received a term of immediate imprisonment.

51Your personal circumstances are obviously different to Mr Hoang.  You have no prior criminal convictions and your remand on this matter represents your first experience in custody.  Also, in your case there's clearer evidence of your prospects of your rehabilitation. You have been able to demonstrate your commitment and efforts towards rehabilitation on bail in the community over a substantial period of time.

52To conclude Ms Nguyen, I consider parity to be an important consideration in your case, though I also consider that there is a basis to differentiate sentences.  Your role in this enterprise was broadly similar, however in your case on
Charge 1 in particular, I consider that the objective gravity of your offending is greater and relevantly it attracts a significantly higher maximum penalty.  That said, the differences in your prior histories, motivations for the offending, circumstances and my assessment of the prospects of your rehabilitation will also need to be balanced and appropriately reflected. 

53I also take into account other relevant factors in your case including the delay in the finalisation of your matter.  Within this time, I also note that you have attended medical appointments and engaged and responded well to treatment in respect of your wrist, the details of which were further outlined today by your Counsel, Ms Hancock.

Sentencing principles

54The basic purpose for sentencing and punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. 
I accept the prosecution's submission that sentencing for drug offences must reflect the serious harm they cause within the community.  There is a need in this case to deter others who might be minded to engage in such activities and to clearly denounce this conduct.  In your case I accept that less weight can be given to community protection and specific deterrence, although they remain relevant. The sentence I impose needs also to foster and promote your rehabilitation.  The Court also acknowledges and takes into account the difficulties and challenges of returning to custody after a substantial and successful period in the community.

55I take into account the sentencing guidelines referred to in s5 of the
Sentencing Act 1991 (Vic) as they apply in your case. I have also had regard to the current sentencing practices for trafficking in drugs, in particular for trafficking in commercial quantities of methylamphetamine. Also, I have had regard to the principles of parsimony, totality and proportionality in your case and, as already canvassed in some detail, the principal of parity.

56There was no dispute between the parties that a term of imprisonment is warranted for your offending and one that attracts a non-parole period.  In light of the nature and gravity of your offending, I agree that the only just and appropriate sentence in your case is a term of immediate imprisonment.  On your behalf it was submitted that given your personal circumstances, prospects of rehabilitation, plea of guilty, lack of criminal history and moral culpability a longer parole period than might otherwise be imposed is appropriate.

Sentencing

57So, Ms Nguyen if I could ask you to now stand?

58Synthesising all relevant matters as best I can, I impose the following sentences with conviction.

59On Charge 1, you are sentenced to 23 months' imprisonment, that is
one year and 11 months.

60On Charge 2, you are sentenced to eight months' imprisonment.

61On Summary Charge 6, of possess proceeds, you are sentenced to
two months' imprisonment.

62Charge 1, is the base sentence and taking into account in particular the totality of your offending, on Charge 2 I order that two months of the sentence be served cumulatively on Charge 1.  Otherwise, sentences are to be served concurrently.

63The total effective sentence therefore is two years and one month imprisonment.  I set a non-parole period of 14 months having regard to the various matters in particular in mitigation advanced on your behalf.

64Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare that you have served 194 days as pre-sentence detention.

65Pursuant to s6AAA, but for your plea of guilty I would have sentenced you to around a period of three years and 11 months' imprisonment with a non-parole period of two years and six months’ imprisonment.

66The forfeiture order and disposal order, my memory if it serves me correctly Ms Hancock is that they were not opposed?

67MS HANCOCK:  That's correct, Your Honour.  Sorry, excuse me Your Honour.  From the draft orders 21 and 25 were to be removed.

68HER HONOUR:  All right, just one moment.

69MS HANCOCK:  And as long as that's happened then there's no opposition Your Honour.

70HER HONOUR:  Is that right Mr Hannan?

71MR HANNON:  Yes.

72HER HONOUR:  Twenty-one and twenty - - -

73MS HANCOCK:  So there's reference to a laptop, I could find the - - -

74HER HONOUR:  Look, it can't be 21 sorry, I think I might have that.

75MR HANNON:  There's two orders there Your Honour.

76HER HONOUR:  I see, I'm on the wrong order, just one moment.

77MR HANNON:  It's on the forfeiture order.  So, it is 21.

78HER HONOUR:  I see.  Thank you, it is 21, 21 and is it the assorted documents?

79MS HANCOCK:  Yes, Your Honour, so the red Apple laptop and there was a plastic folder containing a cylinder.

80HER HONOUR:  All right.  So, that's by agreement then, I will put a pen
through 21 on the forfeiture order and 25.

81MS HANCOCK:  Thank you, Your Honour.

82HER HONOUR:  So they will be removed, otherwise I'll make the disposal order and forfeiture order in the terms sought, which I note is unopposed.  Is there anything further?

83COUNSEL:  No, Your Honour.

84HER HONOUR:  All right.  Is it possible for Ms Nguyen to remain in Court so that her Counsel, Ms Hancock can perhaps speak to her for a moment before she's taken downstairs?

85SECURITY OFFICER:  Yes, Your Honour.

86HER HONOUR:  All right, Ms Hancock are there any custody management issues or anything that I should have noted?

87MS HANCOCK:  No, Your Honour.

88HER HONOUR:  No, all right.  All right Counsel, thank you very much for your assistance we will adjourn.

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