Director of Public Prosecutions v Nguyen

[2018] VCC 1880

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18‑01622

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN NGUYEN

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JUDGE:	HER HONOUR JUDGE FOX
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2018
DATE OF SENTENCE:	12 November 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1880

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Clancy	Ms J. Hotchkin
For the Accused	Ms S. Seoud	Mr T. Magazis

1Mr Nguyen, you may remain seated until I ask you to stand.  Kevin Nguyen,  you have pleaded guilty to four counts of trafficking in a drug of dependence, one count of possess a drug of dependence, one count of negligently dealing with proceeds of crime, and one uplifted summary offence of possess a Schedule 4 poison. You have also admitted your criminal history.

2The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment.  The maximum penalty for possess a drug of dependence is one year imprisonment where the Court is satisfied the offence was not committed for purposes related to trafficking, or in any other case, five years imprisonment.  The maximum penalty for negligently deal with proceeds of crime is five years imprisonment and the maximum penalty for possess a Schedule 4 poison is 10 penalty units. 

3A summary of prosecution opening was tendered on the plea and marked Exhibit A.  I will confine my remarks here to a brief summary.

4At the time of the offending you were 26 years old and on parole.  You were residing with your parents and other family members, and had your own bedroom with a lock on the door.  You had been released on parole on 29 August 2017.

5On 2 May 2018, police executed a search warrant on your home address.  You were at home at the time and directed police to your bedroom.  A search of your bedroom located various drugs, drug paraphernalia and money believed to be the proceeds of crime.

6Relevantly, the search located the following items:

·           a zip lock bag containing 197.3 g of white crystal methylamphetamine;

·           a plastic bag containing 105.3 g of heroin;

·           3.4 g of crystal methylamphetamine in a plastic container;

·           744.4 g of 1,4-Butanediol in a plastic bottle on a shelf;

·           10 pink ecstasy tablets;

·           digital scales;

·           various amounts of cash totalling $40,700; and,

·           three blue Viagra tablets which contain sildenafil.

7You cooperated with the police, including directing them to your bedroom and telling them that there was ice and heroin in there.  You also provided the PIN codes for your mobile telephones so they could be examined.

8You were arrested and made a no comment record of interview.  You were remanded into custody on 2 May 2018 and have remained in custody ever since.  Your parole was revoked on 18 May 2018 and you have been serving the remainder of an earlier sentence since this date.  I am told the expiration date of that sentence is 3 February 2020.

9You pleaded guilty to these offences following negotiations with the prosecution.  Your pleas of guilty were entered prior to committal mention, and I am satisfied that you have pleaded guilty at the earliest reasonable opportunity.

10The prosecution submitted the gravity of the offending is serious, particularly given the quantities of ice and heroin.  Your Counsel conceded that this is a serious example of trafficking simpliciter, although it lacked aggravating features such as violence, intimidation or possession of weapons, which often accompany drug trafficking.

11I turn now to your personal circumstances.

12You were born on 20 January 1992 in Springvale and are now 26 years old. You were 26 at the time of the offending.  Your father was born in Vietnam and your mother was born in Cambodia.  You have one older brother.  Your father, cousin, girlfriend and two friends were present at the plea to support you.

13You attended primary school in Keysborough and completed year 11 high school.  Nevertheless, your English literacy skills are estimated to be around the year 6 or 7 level.  You were subject to constant bullying in your first three years of high school, however the ringleader of the bullies was eventually expelled, you grew taller and the bullying ended.  This was your chance to stand up for yourself, and you acted violently at times throughout the next few years.

14Since leaving school you have a very limited employment history, in that you did some casual factory work in early 2018.  You really have no meaningful employment history at all.  Other than when you have been imprisoned you have lived with your parents.

15You injured your back in a car accident, aged 17, and continue to suffer sciatica pain as a result.  You have a history of substance abuse dating back to when you were 16 years old.  You began using cannabis and then moved on to using ecstasy, cocaine, heroin and ice.  You have been addicted to ice since around the age of 18.

16You have a short but serious criminal history, although no prior convictions involving drugs.  In May 2014 you were sentenced by the Melbourne Supreme Court to a period of five years imprisonment with a non-parole period of two years and six months.  You were further sentenced in October 2015 at the Melbourne Magistrates' Court on a charge of intentionally cause injury for which you received an aggregate of six months imprisonment with three months concurrent.  This charge concerned a fight in the Melbourne Custody Centre in 2012, when you were in custody for the first time. 

17You found it very hard when you were released from gaol in 2017.  You had been incarcerated from age 22 to 25, and found upon release that most of your friends had moved forward with their lives.  You had the support of your family but you found reintegration difficult.  You returned to using drugs, and began dealing drugs at least in part to fund your own habit.

18A psychological report of Ian McKinnon dated 27 October 2018 was filed on your behalf.  In Mr McKinnon's opinion, you suffer from substance abuse disorder and depressed mood disorder.  In his opinion, both these disorders made a significant contribution to your offending by significantly degrading your ability to reason and make sound judgement, increasing your impulsivity, diminishing your consequential thinking, and fuelling an irresponsible and self-absorbed perspective.  Your counsel did not rely on Verdins but rather relied on this opinion as providing some explanation and context for your offending behaviour.

19I turn now to other matters.

20Your cooperation with the police and your early pleas of guilty are both evidence of remorse.  You also expressed remorse to Mr McKinnon, including an awareness of how drug use causes destruction in the community.  You wrote a letter to this Court, in which you take responsibility for your offending and apologise for your crimes.  I am satisfied that you are genuinely remorseful for your offending.

21You are still a relatively young man and have no prior convictions for drug offending.  Your counsel submitted your prospects of rehabilitation are reasonable.  I accept you are remorseful, you have some insight into your offending, you have no prior convictions for drug trafficking, and you are young enough to make something of your life.  You are well supported by your family, you have been doing well in custody, and you have the capacity to lead a productive life if you choose to when you are finally released.  However, you did commit these offences whilst on parole, which means some caution must be exercised when assessing your prospects of rehabilitation.  I agree with the opinion of Mr McKinnon that if you are to succeed when released, you need to sever ties with past criminal associates and establish a realistic vocational or employment pathway. 

22These offences are serious examples of drug trafficking.  The quantities and purity are significant, particularly the ice and the heroin, and you had a wide variety of drugs.  You were also in possession of just over $40,000 cash.  I am mindful that the charge is confined to a single day.  You in fact had a commercial quantity of methylamphetamine, based on the 85 per cent purity of the drug. However the Crown accept that you were unaware of the purity, and did not have the necessary intention to traffic in a commercial quantity.

23These offences were committed on parole, and absent a finding of "exceptional circumstances" any sentence I impose on you will be served cumulatively on the current sentence you are undergoing.  Your Counsel sensibly did not submit that a finding of "exceptional circumstances" was open here.

24The fact you committed these offences whilst on parole is an aggravating feature, and the purpose of s.16(3B) of the Sentencing Act is to deter parole violations.  However, the principle of totality is still a relevant sentencing consideration in your case.  I must, and have, examined the criminality involved in your prior offending, the period of custody you have already served in respect of it, and the period of custody still to be served before any sentence I impose will commence.

25To this end, I have read the earlier sentencing remarks of Justice Croucher, who sentenced you to five years imprisonment with a non-parole period of two and a half years for the offence of intentionally cause serious injury.  He described it as a "terrifying and serious" example of the offence, although you were only aged 20 at the time of the offending, and had only a "modest" criminal history.

26I must be mindful that any sentence I impose upon you is not crushing, and that it is just and appropriate as a whole.  As I have said, you are 26 years old, which is still relatively young.  In my view, some moderation of the sentences I impose, including the non-parole period, is necessary here to ensure a just outcome.

27Both general and specific deterrence are relevant sentencing factors here.  Despite experiencing custody, and despite being released on parole, you continued to offend in a serious way.  Specific deterrence is relevant in your case, although I accept the submission of your Counsel that you do not have an inherently anti-social character. 

28General deterrence is a very relevant sentencing consideration, as is denunciation of your conduct.  The message must be sent to people that if they engage in drug trafficking, they should expect lengthy periods of imprisonment.  Here, you had a total of four different drugs of dependence, all of which you were trafficking.  As I said, the trafficking charge is confined to a single day, although it is clear on the material that your trafficking extended from approximately December 2017 up to the date of your arrest.  The prosecution relied on this to demonstrate context, in the sense that the offending did not occur in isolation.  You are not to be sentenced for anything other than the charged conduct.

29Charge 5 concerned a small quantity of a steroid of unknown purity.  It was not submitted that you were using steroids or that this was for personal use.  In the circumstances, I am not satisfied on the balance of probabilities that the offence was not committed for the purposes relating to trafficking.  However, I take into account the very small quantity in your possession. 

30Mr Nguyen, would you stand up, please.

31In all the circumstances of the court, you are convicted and sentenced as follows:

·Charge 1 – you are convicted and sentenced to 2 years imprisonment.   This is the base sentence.

·Charge 2 – you are convicted and sentenced to 18 months imprisonment;

·Charge 3 – you are convicted and sentenced to 12 months imprisonment;

·Charge 4 – you are convicted and sentenced to 9 months imprisonment;

·Charge 5 – you are convicted and sentenced to 4 months imprisonment; and,

·Charge 6 – you are convicted and sentenced to 12 months imprisonment.

·On the summary offence, of possessing the Schedule 4 poison – that offence is proven and you are discharged.

32I order that 6 months of the sentence on Charge 2, 4 months of the sentence on charge 3, 3 months of the sentence on Charge 4, and 4 months of the sentence on Charge 6 be served cumulatively upon the sentence on Charge 1 and upon each other.  The sentence on Charge 5 is wholly concurrent. 

33This makes a total effective sentence of 3 years and 5 months imprisonment and I direct that the minimum term you must serve before being eligible for parole is 22 months imprisonment. 

34Can I just check the PSD was 16 days?

35MS SEOUD:  Yes, Your Honour, that's right.

36HER HONOUR:  In relation to this sentence, you have served 16 days by way of presentence detention and I direct that this period be reckoned as time already served under this sentence.

37I have made the forfeiture and disposal orders sought by the prosecution.  And I will hand those down to my Associate.

38And finally, pursuant to s 6AAA, but for your pleas of guilty, the sentence I would have imposed is four years, six months imprisonment with a non-parole period of two years, and eight months. 

39Is there anything else?

40MS SEOUD:  No, Your Honour.

41MS CLANCY:  No, Your Honour.

42HER HONOUR:  Thank you.  You can remove Mr Nguyen, please.

43OFFENDER:  Thanks, Your Honour.

44HER HONOUR:  Thank you both. 

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