Director of Public Prosecutions v Nguy
[2021] VCC 1455
•30 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02414
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK VAN NGUY |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 September 2021 | |
DATE OF SENTENCE: | 30 September 2021 | |
CASE MAY BE CITED AS: | DPP v Nguy | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1455 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Trafficking 1,4-Butanediol – Relatively serious example of trafficking simpliciter – Insight and genuine remorse – Relevant prior criminal history – Prospects of rehabilitation assessed very positively – COVID-19 pandemic.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 s 71AC(1); Sentencing Act 1991 ss 6AAA, 18, 44.
Cases Cited:DPP (Cth) v Maxwell [2013] VSCA 50; Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 145 days together with a Community Correction Order for a period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Boult | Office of Public Prosecutions |
| For the Accused | Ms M Casey | Michael J Gleeson & Associates |
HIS HONOUR:
Introduction
1Patrick Van Nguy, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely 1,4-Butanediol (‘1,4-BD’) contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment (Charge 1).
2You have also admitted your Criminal Record.
Circumstances of the offending
3At the time of the offending you were 48 years of age and resided at a unit on Sandown Road, Ascot Vale.
4On 8 July 2019 Constable Craig Johnson was performing divisional van patrol duties in the Melbourne Central Business District together with Constable Dylan Reece.
5At about 4.50 pm Constable Johnson and Constable Reece were requested to attend the National Australia Bank (‘NAB’) on the corner of Collins and Elizabeth Streets in Melbourne. They arrived at the NAB at about 5.10 pm and spoke with you. After a brief conversation, you were placed under arrest. At the time of your arrest you had a black satchel bag.
6You were transported to Melbourne West Police Station where Police Custody Officer Benjamin McClure performed a pat down search on you. Constable Reece then conducted a search of your bag and found, amongst other things, a total of five vials containing liquid which was later confirmed to be 1,4-BD. Four of the vials contained orange coloured lids. One vial contained a silver coloured lid with a syringe. Photographs were taken of the 1,4-BD and the items were seized by police.
7Police executed a search warrant at your address at approximately 12.37 am on 9 July 2019.
8You were present during the search and police were directed to your bedroom.
9During the search of your bedroom police found a number of vials of 1,4-BD. The items were seized and photographed as follows:
· one Ray Ban sunglasses box containing 20 x 5 ml vials later confirmed to be 1,4-BD;
· two green coloured bottles located in a bar fridge later confirmed to contain 1,4-BD;
· three bottles located in a backpack later confirmed to contain 1,4-BD; and
· 10 bottles located in a brown paper bag near the bed later confirmed to contain 1,4-BD.
10At about 2.15 am, police transported you back to Melbourne West Police Station. You were interviewed by police at 4.04 am on 9 July 2019. You provided ‘no comment’ answers to questions specifically in relation to Charge 1. You were remanded in custody and subsequently granted bail on 29 November 2019.
11Scientist Kathleen Poel provided a certificate of analysis which found the liquid contained within the vials and bottles seized by police were 1,4-BD with a combined weight of 2.8 kilograms.
Nature and gravity of the offending
12The trafficking charge to which you have pleaded guilty is put on the basis of possession for the purposes of sale. Further, while the total amount of 1,4-BD that was seized exceeds the commercial quantity, the matter was settled on the basis that you had an intention to traffick in a drug of dependence but not in a commercial quantity. I also note that at the time of your arrest you were a user of 1,4-BD and other drugs including methamphetamine.
13Trafficking in 1,4-BD is able to be distinguished from other drugs of dependence as the profits are generally considered to be less by comparison and as such, sentences involving the trafficking of 1,4-BD have reflected that principle. As has been recognised in cases such as DPP(Cth) v Maxwell,[1] the greater the anticipated reward, the more powerful the general deterrent message must be.
[1] [2013] VSCA 50 at [34]-[35].
14Nonetheless trafficking in a drug of dependence is a serious offence carrying a 15 year maximum sentence and, given the amount of 1,4-BD in your possession for sale, this is a relatively serious example of trafficking simpliciter. Further, your offending is aggravated by the fact that you were on bail at the time.
Personal circumstances
15You are now 50 years of age. You were born in Vietnam. In 1978, when you were eight years of age you and your family travelled from Vietnam to Indonesia as refugees. It took three attempts for you to successfully arrive in Indonesia due to extreme weather and a collision with another ship. These journeys were turbulent, dangerous and traumatic.
16You lived in a refugee camp in Indonesia before later travelling to Australia where your family settled. Your father was a dentist and your mother was a dental nurse. They are now both retired. Your father has struggled with gambling at times. You have an older sister and brother and a younger brother who all now work in professional jobs. You had to learn English and commenced primary education in Australia at Grade 4 at Debney Primary School. You completed secondary school at Debney Park High School and were a good student. You were subjected to racism and bullying during your school years.
17You have been consistently employed from when you were at school. You completed a Bachelor of Applied Science at Victoria University and initially worked as a computer officer. You then worked as an assistant manager at a Japanese restaurant in Melbourne for over two years.
18You undertook further tertiary study, completing a Bachelor of Business at Victoria University focusing on Catering and Hotel Management and have since worked in the hospitality industry. You completed a work placement at The Hotel Como and ultimately secured full time employment there. After 15 months you were promoted to supervisor roles.
19You then worked at Epicure Spotless for a number of years where you became a Venue Manager and later a Function Operations Manager.
20During your time working in hospitality you were exposed to illicit substances which were commonly used by workers in the industry to cope with long work hours. It was in this context that you developed a drug addiction, particularly to methamphetamines, GHB and ecstasy. You have a number of prior convictions for drug possession from around 2014 onwards.
21In August 2018 you were involved in a car accident and suffered a fractured collarbone. You already had a pre-existing disc prolapse and lower cervical spondylosis and this incident left you with chronic pain, numbness and related symptoms. You ultimately ceased employment with Spotless in early 2019. It appears that this incident and the shame of being unemployed led to an escalation in your drug use and a decline in your mental health.
22Leading up to the offending you were using substances daily and your main focus was to obtain money to fund your habit. You were associating with other drug users and your relationships with your family and friends had frayed. You were experiencing anxiety and depression.
23Your time on remand was your first time in custody and you found this experience particularly challenging. You suffered anxiety and sleep disturbance. You managed to connect with other Asian prisoners and completed a number of programs including some drug counselling. You also worked whilst in prison, including in the kitchen.
24You were released from custody in November 2019 on the condition that you participate in the Court Integrated Services Program (CISP). Since leaving custody you have continued to proactively engage in supports. CISP provided case management and referred you to a number of services including the Australian Community Support Organisation (ACSO). You completed a three hour methamphetamine program and a certificate of completion was tendered on the plea. You completed a drink and drug driver behaviour change program and have since regained your licence. You ultimately completed the CISP program.
25You have had regular consultations with General Practitioner, Dr Michael Kozminsky, who has monitored your progress since your release from custody. Dr Kozminsky prepared a letter providing an update in relation to your physical wellbeing, lifestyle and mental health.
26A report was prepared by Michael Crewdson, clinical and forensic psychologist and tendered on the plea. Mr Crewdson had six consultations with you and also conducted psychometric tests. Mr Crewdson concluded that you were suffering Substances Dependence, Dysthymic Disorder and post-traumatic stress disorder. Mr Crewdson also concluded that your major strength supporting positive rehabilitation is your acceptance of responsibility for your conduct. He notes your intelligence and your demonstrated commitment to sobriety.
27You have sought support for your drug use and engaged with drug and alcohol counsellor Denise Abadee. Two reports were prepared by Ms Abadee, outlining your history with substance use, rehabilitation strategies and treatment processes. A number of urine screens were tendered on the plea confirming that you have been drug free since your release from custody.
28Since November last year you have been on a 12 month community correction order in relation to other drug related offending. You have also been satisfactorily engaging in the supervision and treatment conditions of this order. You have currently completed five of the 15 modules from the Caraniche Kickstart Program which focuses on assisting people overcoming problems with substance abuse.
29
You have also sought to make meaningful contributions to the community through volunteering which has given your life purpose. You have volunteered and worked as a barista at the Maccabi Soccer Club café. The chef at this café, Jodi Rosenberg, prepared a letter confirming your involvement with the café.
Ms Rosenberg speaks highly of your work in this role and states that you are an important part of the team. Since March 2020 you have been volunteering delivering food to disadvantaged people in the community with the Feeding the Needy and Homeless Project.
30You remain close with your family and have lived with them for most of your adult life. Towards the end of last year you moved out of the family home into a private rental apartment. You are working casually assisting a friend with their restaurant and you are also in receipt of the Jobseeker benefit. One day you hope to open your own hospitality business.
31You provide care to your father who has chronic health issues. Your younger brother Tai Nguy prepared a letter which was tendered on the plea. He describes you as devoted to your family and expresses his pride in relation to your rehabilitative and volunteering efforts.
32While the pandemic has made it difficult, you have rebuilt relationships with your pro social friends. A letter from your long term friend Adrian Tan was tendered on the plea. Mr Tan writes of your sense of responsibility to your family and work. He also notes the progress you have made since the offending and offers you ongoing support in the future.
Sentencing Considerations
33
Ms Casey who appeared on your behalf at the plea outlined a number of factors in mitigation. First and foremost is your plea of guilty. You made an offer to plead guilty to the charge on the indictment before the committal mention on
1 October 2019. The matter proceeded to this court by way of straight hand up brief without a contested committal taking place and was initially listed for trial on 15 March 2021. This date was vacated as a result of the pandemic. A case conference was heard before me on 23 March 2021 and the court was advised that the matter had resolved on 28 May 2021.
34Your plea of guilty carries utilitarian value, as it has spared the time and expense of a jury trial and witnesses from having to give evidence. I therefore take your willingness to facilitate the course of justice into account in your favour. Your plea carries additional weight which must be reflected in an additional amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[2]
[2]Worboyes v The Queen [2021] VSCA 169 at [39].
35It was also submitted that you have expressed genuine remorse over and above your plea of guilty. You have been actively involved in the CISP program and you have demonstrated your commitment to understanding the reasons why you became dependent on drugs. You instruct that you are ashamed of yourself and now have an appreciation of the effect of drugs not only on you and your family, but on the wider community. In an assessment report prepared for the purposes of a community correction order, the writer noted that you ‘displayed considerable insight and remorse for your behaviour, articulating the negative impact that trafficking illicit substances may have on himself and the wider community’. In the circumstance I accept that you have gained insight and have expressed genuine remorse.
36Without repeating the details of the steps you have taken towards rehabilitation, it is clear that while you have some distance to go, you have demonstrated that you are committed to remaining drug free and to continuing with the services and supports you have engaged. As such in my view your prospects of rehabilitation can be assessed very positively.
37General deterrence remains an important sentencing consideration. While your motivation to traffick was driven by your own drug addiction, others must be deterred from trafficking, regardless of the reasons. As to specific deterrence while you have relevant prior criminal history, I am satisfied that you have made a genuine change over a sustained period and as such less weight can be attributed to specific deterrence in this instance.
38Ms Casey submitted that that in all the circumstances, a community correction order is a disposition that would meet the relevant sentencing considerations in this case, either alone or in combination with the time you have already served. Ms Casey further submitted that a correction order alone may give you more opportunity as you would not have the stigma of a prison term recorded in your prior criminal history.
39Ms Boult who appeared on behalf of the Director of Public Prosecutions, submitted that while a combination sentence is in range, a community correction order alone, is not. That said, Ms Boult did not submit that you should be required to serve a further period of imprisonment as part of a combination order than that which you have already served.
40I had you assessed for a community correction order and you have been found suitable. Given the seriousness of the offending and taking into account your relevant prior criminal history, in my view a combination sentence is the most appropriate disposition as opposed to a correction order alone.
Sentence
41Mr Nguy, would you please stand.
42Patrick Van Nguy, on Charge 1 trafficking in a drug of dependence, you are convicted and sentenced to 145 days imprisonment which will form the prison component of an order pursuant to s 44 of the Sentencing Act 1991.
43In addition to the prison component of the sentence, you will be placed on a community correction order, with conviction, for a period of 12 months. While all community correction orders are punitive, the focus of the order will be therapeutic. You will be required to complete treatment programs to further address your drug use.
44Pursuant to s 18 of the Sentencing Act1991, I declare that 145 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
45Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 12 months imprisonment together with a community correction order.
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