Director of Public Prosecutions v Nguyen
[2017] VCC 1856
•12 November 2018
| lN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No CR-17-02448
Indictment No H11510245.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICKEY TRAN NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 October 2018 |
| DATE OF SENTENCE: | 12 November 2018 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1856 |
REASONS FOR SENTENCE
---Catchwords: Trafficking in Commercial Quantity Drug of Dependence x 2 : (Heroin & Methylamphetamine). Trafficking cocaine and MDA (rolled up non-commercial quantity). Single date. No prior criminal history, 40 years of age now
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Stougiannos | Office of Public Prosecutions |
| For the Accused | Ms C Randazzo SC | Defteros Lawyers |
HIS HONOUR:
1 Mickey Tran Nguyen, in August of this year you pleaded guilty to three charges that were laid on the indictment which had been filed in this court. The arraignment process was completed on 23 October and the plea in mitigation was conducted by your counsel, Ms Randazzo, on that date. I remanded you to today’s date for sentence.
2 The charges on the indictment were two separate charges of trafficking in a commercial quantity of a drug of dependence (that is heroin and methamphetamine), and one charge of trafficking in a non-commercial quantity of cocaine and MDA. The cocaine and MDA were rolled up into that third charge. You have no criminal history. I put aside altogether what your counsel told me of an old Children’s Court appearance. That appearance is not allegeable and is totally irrelevant to my task. I am sure Ms Randazzo only told me of it owing to the natural desire to provide a complete account and not to in any way mislead the Court, which perhaps she felt may have been the position had she said, or left the court with the impression, that you had actually never been in any trouble at all.
3 You were born on 22 June 1978. You are now 40 years of age.
4 The maximum penalties are correctly set out in the prosecution summary.
Facts
5 The prosecutor, Mr Stougiannos, opened this matter to me in accordance with an agreed written prosecution opening that was dated 22 October 2018, and that was marked as Exhibit A. I say it was an agreed summary as your counsel, Ms Randazzo, told me as much. I do not see any need at all then to now describe the full factual setting here. I will not stray beyond the agreed facts set out in that document. I still should say something briefly about the facts of the offending.
6 In the early hours of 30 May 2017 you attracted the attention of the police, owing to an unwise driving manoeuvre when you crossed some tram tracks. It was that simple. It was that mistake that brought you undone. The black Mercedes that you were driving was intercepted in Flemington. Police then became suspicious, correctly so as it transpired, and they asked to search the car. They searched it and you, and found the drugs referred to in the summary. Also $2600 cash. You were arrested. A warrant was later that day executed on an apartment that you had rented in Southbank earlier in that year. Much larger quantities of drugs and some drug paraphernalia were found. See paragraph 11. The weights of all the drugs in the car, on your person and in the apartment are set out in paragraphs 15 to 17. The total weights, both pure and mixed, and relevant commercial quantity thresholds, are set out in paragraphs 18 to 22.
7 Now, whilst it is true that the quantity of the drug of dependence is only one of a large range of factors to be taken into account in assessing the seriousness of an offence of trafficking or trafficking in a commercial quantity, it is undoubtedly a pretty important consideration. You had very decent quantities of heroin and methylamphetamine. You had not just tipped over the commercial quantity threshold by some small margin. You had more than twice the commercial quantity, by pure measure, for the heroin, and more than three times the commercial quantity, by pure measure, for the ice. In fact the heroin was pushing up in the direction of what was then the large commercial quantity threshold, which was 750 grams pure at that time. You had approximately 636 grams of pure heroin. The MDA and the cocaine I will say very little about it in the balance of these reasons, for it was at a very low quantity indeed. I am confident that the trafficking charge, Charge 3, is up in this court purely as a result of your being brought up here on the commercial quantity charges.
8 You were interviewed by the police on 30 May of last year and made a mainly no comment interview. In that interview you challenged that you had consented to the search of the car, and the issue of the search was pursued at a very brief contested committal in December of last year. Your practitioner then also explored issues in relation to the DNA evidence relied upon in the case against you. A handful of witnesses were called at that committal. You were committed to this court and a trial date was fixed for 17 September of this year. At an early mention the Court was told that there would be a preliminary issue before a jury was empanelled, dealing with the legality of the search, with a number of witnesses required to be called on that application to exclude all of that evidence. That all came to nought as ultimately the matter resolved. It was plainly the position that there were serious settlement discussions afoot from about June of this year. It formally resolved in July 2018. However, I cannot lose sight of the fact that there had been more serious charges lurking in the background, both at the committal and up in this Court, and no doubt the existence of those matters, that is trafficking in a large commercial quantity, may have impeded the resolution in this matter. Ultimately, of course, those more serious charges have not proceeded.
9 So much then for my summary of the summary, and that is all it is. The full summary will remain available on the court file. This was very serious offending, as was conceded to be the position by Ms Randazzo.
Mitigation
10 Ms Randazzo raised a number of matters in mitigation in a realistic plea conducted on your behalf. There was an excellent detailed written outline of plea submissions. It was marked as Exhibit 1. She relied primarily upon:
· your guilty plea and the reasonably early stage of that plea;
· the presence of remorse;
· some increase in your custodial burden owing to your concern as to the predicament of your family;
· she relied also upon a large amount of written material, including two reports from Ms Crole, and a number of personal references;
· she relied upon a number of courses and programs that you have completed in custody, as well as a number of clean drug screens that were provided. Some of those courses and programs were covered by certificates but you had done others. See exhibits 5 and 6;
· she relied upon your written apology, that is Exhibit 3, and also took me to some material from Corrections spelling out your impressive efforts in custody. That was Exhibit 7;
· she took me to your background in some detail;
· she argued that you had excellent prospects of rehabilitation;
· she made some brief submissions as to the nature and gravity of the offending and the sentencing purposes at play here. She conceded the inevitability of a significant term of imprisonment, and one that would require the fixing of a non-parole period.
Prosecution
11 The prosecutor, Mr Stougiannos, made a number of very brief submissions as to the seriousness of the offence. They were hardly necessary given the sensible concessions that had been made by your own counsel.
Background
12 I have no reason not to accept the family background that has been placed before me in the plea conducted by your counsel, so I will turn to it only briefly at this point. It was referred to in the first report of Ms Crole in great detail, as well as in the oral and written submissions of Ms Randazzo. You are now 40 years of age, born on 22 June 1978. You were born in Vietnam, an only child, but you did not know your father well at all. He was mostly absent from home in Vietnam so there was no great connection between you and he at that point. He escaped to Australia when you were six and you and your mother joined him six years later when you were 12. So still at that stage there was very little by way of connection. That changed over the years and jumping ahead I am told, and I accept, that you were deeply affected when he died in 2009.
13 The move to Australia and settling in here was not easy for you. You had little English and you found schooling difficult. That is hardly surprising. You were adjusting to living here in what was a foreign country and to life with your father who you were at that stage just getting to know. These were big adjustments in your life and as I say, it was not easy.
14 You completed Year 11. You commenced a TAFE course but did not finish that and I was told that you have worked in a variety of jobs since, including running your own business for some years. I was told by your counsel that you went into debt heavily, it was a $50,000 loan, and that the beauty product business that you were conducting, folded in around 2010. You are a married man. You have three young children (13, 11 and 10). I am told that upon starting to use drugs you kept that from your wife. Your counsel suggested in her submissions to me that there was a build-up of stressors in your life in the period of 2008 to 2010. Namely, financial pressure, the loss of your father, drug use, marital stress, collapse of the business and also gambling. Now, no material has been placed before me in any way supporting the existence of the loan spoken of but that is not critical to my task. In any event, these were matters of deterioration in your life circumstances, commencing in 2008 to 2010. I am dealing with you for trafficking in 2017, and at a very decent level, as is plain from the agreed summary. You had a purpose rented apartment with a 12 month lease. Ms Randazzo told the Court that the lease was entered into so that you could have premises from which to organise the trafficking and sequester that off from other parts of your life. That is referred to in your counsel’s written submissions at paragraph 18, and in the report of Ms Crole at paragraph 31. You were paying rent at over $2500 per calendar month on that flat by direct debit, as well as the need for the initial security bond of over $3500.
15 The suggestion made by your counsel of the trafficking occurring to support your drug habit is not one that I can or do accept on the balance of probabilities. The suggestion was made on the plea that the offending was necessitated by need. Again, I cannot and do not accept that to the required standard. That was referred to at paragraph 11 of the written outline. I am just not satisfied of that on the balance of probabilities.
16 It was suggested that there was also the gambling problem. Maybe there was but again, this trafficking was at a level not suggestive to me of that explaining your involvement. I do though, accept that there are no signs of enrichment in this case. You owned a house In Richmond at the time of the offending, albeit one with a mortgage. There was $2600 in your possession upon arrest. However, I must say that financial need does not leap out at me at all, given the objective factors in this case, including, but not limited to, the actual rental of the apartment.
17 Moving back then to your personal background if I may. You have been in custody since arrest on 30 May 2017. It is plain from the material placed before me that you have done really excellently in prison. You have done a number of courses and programs and not just those referred to in Exhibit 6. Further, I have the views expressed by Ms Crole as to improvements in the period between the two occasions where she consulted with you, and her opinion as to the reduction of risk and increase in your insight in the interim. I also have the many character references in Exhibit 4, and the detailed notes made by Corrections staff in Exhibit 7, some of which I was taken to. I have now had the chance to read all of those notes referred to in Exhibit 7. You are working in custody and you are making an excellent fist of it. It seems to me that if every prisoner was like you, the prisons would be far easier to run and many more of those actually exiting prison at the end of a sentence would stand a far better chance of actually being rehabilitated. You are a model prisoner and one who recognises the inevitability of a decent stretch in prison ahead and the need to do what you can in that sizeable period to improve yourself. That is to maximise your chances upon release. You want to do some form of course either in connection to the building trade or horticulture, and that is a very good idea. Continue to use your time wisely, as you have up to this point. You are concerned as to the predicament of your wife, who is left with the three children, though there are no particular issues identified to make her lot harder, other than the simple enough proposition that it is easier for two adults to look after three children than one. There are also financial issues in your absence. She has to grapple with all of this and speaks of that struggle in her letter, which is part of Exhibit 4 on the plea.
18 As I have said, you have no prior history before the courts and I entirely ignore the Children’s Court matter that your counsel informed me of, which is mentioned in Exhibit 8.
19 There is little use my trying to summarise all of the written references and letters placed before me and marked as Exhibit 4. I have read that bundle of written references and I do take them into account. Amongst other things, they show that you are seen by those who know you, as a kindly family man, friendly, reliable and one who has been engaged in a level of voluntary work in the past. The references speak of the shock of others learning of the existence of these charges. Plainly, you are far more than just the man who has committed these serious crimes. There is a back story, as there always is, and one that in your case portrays this criminal conduct as being entirely out of character.
Guilty Plea
20 I turn then to consider some of the submissions made on your behalf by
Ms Randazzo.
21 Firstly, I turn to your guilty plea. You have pleaded guilty and you have done that at a reasonably early stage. Your counsel was not suggesting that it was at the earliest stage and it was not. It was your right to run the committal. It was a brief enough committal. There was also, as I have said, the large commercial quantity charge, both in the lower Court and up in this Court, and that may well have put some brake on settlement discussions. Once committed to this Court the matter resolved pretty quickly with moves afoot from June and final resolution in July, as against that trial date scheduled in September. So I will treat it, as your counsel suggested I should in her oral submissions to me, as a reasonably early guilty plea. You have taken that early responsibility for your offending, and there is a strong utilitarian value which must be recognised in the sentence which is passed by the court. The community has been saved the time, the expense and the effort associated with the conduct of a full-blown committal hearing in the Magistrates' Court and/or a trial up in this court. Witnesses have, with the exception of the very small number called in the lower court, been spared the experience of giving evidence altogether. You have facilitated the course of justice and I must reward you for your decision to plead guilty, and at the early stage which you did.
22 I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury after conducting a trial.
Remorse
23 I turn to the issue of remorse. There may be some who might think it an unusual notion to even entertain that a person who was prepared to traffick in drugs at this level can then turn around after the event and be judged to be remorseful for that sort of conduct. Well, that mindset simply does not recognise the ability of people to reflect upon their past conduct and actually alter their views and change for the better. You have pleaded guilty at a reasonably early stage and a guilty plea is usually evidence of at least some remorse. There are also opinions expressed by others as to the existence of remorse, including Ms Crole, and some of those who have written references. In addition, I have your very detailed written apology backed up very amply by your excellent efforts in custody over a significant period of time. Your insight has obviously increased. You know that you have brought shame to your mother and to your family and ultimately, I am prepared to find the presence of remorse in this case, and I take that into account in mitigation as well.
Prospects
24 What then does the future hold for you? I am turning now then to your prospects of rehabilitation. It is notoriously difficult for a court to make an assessment as to the future prospects of a person sitting in the dock. It would be hard enough for you to know what lies ahead in the years to come. All I can do is my best and base that very much on what is presented before me on the plea. That, and the significant period you have lived before committing these offences. This was undoubtedly serious offending but committed by a man with no prior criminal history. Of course, you were no teenager when you committed these crimes. You were a mature adult. That, I suppose, cuts in both directions. On the one hand, no prior history prior to that point in time. As against that, choosing to commit serious crimes as a mature adult. These were not spontaneous crimes. They were not minor or transitory errors of judgement. I know very little of the finer detail. Your counsel has not placed any material or submissions before me explaining the finer details as to how it is that you came to be trafficking in this volume and the connections that may have generated or facilitated that conduct. I was, for instance, told nothing as to the sourcing of the drugs. Even in general terms, without naming names, who you got them from and how. What was your relationship to those people? How was it that you knew them, and for how long? The extent to which you had to account for any sales. The extent of any reward or financial gain contemplated. Where you were positioned in any chain or network or hierarchy. I am not suggesting it was incumbent for your counsel to place any of this detail before me or, for that matter, to be provide details as to names or the like, but virtually nothing was said.
25 It was all left very vague but the facts before me are not vague at all. This was your apartment. You rented it earlier in the year in February with entry into a 12 month lease. We have the sizeable quantities of drugs, possessed for sale by you in your car and your apartment, and there was no mention made, or no suggestion in submissions as to your being involved in any sort of low level position in any hierarchy at all.
26 You have committed extremely serious crimes. Why? Well, of course, monetary reward, financial gain, call it what you will, is virtually always the answer in this area as it was in this case. Was it need or greed? Sometimes that can be a pretty fine line. As I have announced earlier in my reasons, I just do not believe, indeed I am not satisfied on the balance of probabilities, that your conduct was driven by financial need or to support your own addiction.
27 I would have preferred to have had a clearer sense of how you, the person spoken of in those references, that is a man of 38 years of age with no prior history, came to offend in the way that you did. That material was not placed before me other than in the vaguest of fashions, and that was a deliberate choice. I do not hold that against you or your counsel, but it does make it a bit difficult for me to truly understand your descent into this serious crime.
28 Whilst not accepting your account as to financial need driving the crime, I am, though, prepared to accept the claim of there being a downturn in your life in the years before this offending. That is the death of your father, a failing business, some financial pressures, then collapse of the business, marital strain and gambling and drug use, but I am not satisfied on the balance of probabilities, that the trafficking was a needs driven offence at all given the quantity of drug or drugs, the lease of the apartment and the need to make that lease payment, which, on any view, was a very decent financial overhead for one in financial need.
29 You have admitted your guilt and you have done so at an early stage. You are remorseful and you are not blaming anyone else for the offending. You have written the lengthy apology I have referred to. You are accepting of the need for punishment. I have a large number of useful character references. I have the complete absence of criminal history and I have your excellent efforts as a model prisoner over a significant period of time. I have the two reports from Ms Crole speaking of sizeable gains made along the way. You have held down jobs in the past and you hopefully will in the future. I have the support which exists for you, as evidenced by the references from many, including your wife and one of your own children. Your mother and your wife and a friend attended Court on the day of the plea and your mother and wife are back here today. You have been visited very regularly and you enjoy and appreciate those visits from your family and it is plain from the materials that you deeply regret the position that you have placed your family in.
30 The process of your being arrested back in May of last year, 2017, charged, then held in custody on remand for such a period and brought before the courts and dealt with by this court, will all have a sizeable impact in deterring you from committing crimes such as these into the future.
31 I believe that you have changed to some extent already. There must be the benefit to you flowing from your efforts since arrest. You have greater insight, as Ms Crole attests. You are doing whatever you can to rehabilitate yourself whilst I prison. Now, there may be some who may sneer at that or question your motivation. I do not. It is not to be sneered at. Even if it was purely motivated to improve your court outcome, it would still be of value. However, I do not believe that it is window-dressing for the purposes of plea. It has spanned such a sizeable period of time. I must have regard to your excellent conduct. It is highly relevant to my assessment of your future prospects and It augurs well for the future.
So I assess your prospects of rehabilitation very favourably. I would actually be surprised if you offended in this way ever again so I am prepared to treat that risk as low. I am prepared to find that your prospects into the future are very good indeed, subject, of course, to your continued abstinence from drugs into the future. Continue in the way you are and your prospects will rise to excellent. I am impressed by your efforts in custody over a lengthy period of time and I must recognise them adequately.
Ms Crole
32 I have mentioned the reports of Ms Crole on a number of occasions in these reasons. I have already mentioned a number of matters that I take from those reports in a mitigatory sense. I do not intend descending into the finer detail of those reports in my reasons or restating the conclusions that I have already pronounced upon. These reasons will be quite lengthy enough already. I have read both reports since the plea. I do take into account the reports in the ways I have been asked to by your counsel, Ms Randazzo. They are, by the way, as she made plain, not relied upon in any way as attracting any of the principles from the case of Verdins v The Queen that you have heard discussed.
33 You certainly have had some issues in your life. Going back to your early childhood, it was not easy at all. Nor your transition into this Country. I spoke of those matters earlier in my reasons when dealing with your background and I do take those matters into account in your favour as far as I am able to. You did experience grief when you father died in 2009 and I am prepared to accept that your business failed and there was at least at that point some financial stress. Maybe, as the report suggests, you did bottle up your stress. Maybe you did gamble and start to use drugs. I am prepared to accept that you did.
34 But this was clearly not spontaneous offending, even though the trafficking is on a single day. I am prepared to act on Ms Crole’s assessment of your risk of re-offence but as I have said already, I would have reached that conclusion myself from all the materials placed before me. You will need some treatment into the future as recommended by Ms Crole. As I say, I take into account her reports.
Increased Custodial Burden
35 Your time in custody will have you worrying about the predicament of your wife and children. That is surely pretty common for anyone in custody who has a family. You will not be on hand to help physically or financially and that evidently is playing on your mind. You deeply regret the position you have placed your family in. Again, it is surely a very common thing. Your children have no special needs or particular difficulties as sometimes exist which might significantly increase the burden on the person remaining at liberty. In this case your wife. Your wife speaks of the strains in her letter filed on the plea. It is your first time in custody and there is reference to your concerns about your family in some of the Corrections materials in Exhibit 7. So I take into account this material as adding to your custodial burden, as your counsel suggests I should. It is not a large matter by any stretch of the imagination but it is something and something I can take into account. It is not suggested for one moment that I can take into account any sort of third party hardship here. There is no evidence of that and Ms Randazzo conceded explicitly that there were no exceptional circumstances pointed to.
The Offences
36 As to the offences themselves, Ms Randazzo conceded that this was very serious offending, and clearly that concession was correct. I have said, and I repeat, this was not spontaneous offending. As I mentioned earlier, the quantity of drugs is always a matter of some real importance and you did not just tip fractionally over the threshold into a commercial quantity. You had a variety of drugs, two in a commercial quantity and the much smaller quantities of the other two drugs in a non-commercial quantity, the subject of Charge 3. Leaving aside the fact of a commercial quantity, in relation to the methylamphetamine and the heroin, this was plainly a commercial setting. The nature of the drugs, the scale, the paraphernalia, the lease, the outlay, the need to recoup the lease cost before you were even ahead financially.
Purposes
37 I have to consider a number of purposes of sentencing and they are not limited only to your prospects of rehabilitation. Having said that, though, I cannot ignore your prospects and I think they are very good indeed.
38 There are other sentencing purposes. I am required to punish you and you know that and, indeed, you expect that. It is a very significant sentencing purpose in this sort of case. I must also denounce your conduct, and I do. Again, that is a very important purpose. This was very serious criminal conduct.
39 There are other purposes of sentencing. For instance, the need for this court to seek to deter you from offending into the future. That, and the need to protect the community from you. I cannot just ignore those purposes but by the same token, given the very favourable view I have reached as to your future prospects, it stands to reason that I can reduce the weight to be given to those two purposes of sentencing. To do otherwise would make no sense at all. I still give them some limited weight, just not the weight they may otherwise receive in a different case. For instance, the case of a person with less pleasing future prospects or a person who has fallen foul of the law for similar matters in the past. That is not the setting here at all. You call in aid your past good behaviour over the course of your life. I have your efforts over the last 18 months. I believe that I can legitimately significantly moderate the weight to be given to specific deterrence and community protection in this case.
40 General deterrence, though, is a different proposition. It must be given real weight here. Your counsel submitted that it was the dominant purpose of sentencing. It is plainly a very important purpose of sentencing in this sort of case. This court must send a clear message to other individuals in the community who might be minded to commit these sorts of serious drug offences.
41 People who traffick drugs at any level are almost always taking a calculated risk, as you obviously were. It is almost always done for financial reward. Offenders weigh up the risks and the benefits. They hope that the potential financial benefits will outweigh the risks.
42 The courts have a vital role to play. We, as judges, must spell out the gravity of the risk. We must convey the clear message through the sentences imposed that the risk is simply not worth taking on, that though the financial benefits may appear to be attractive, on the other side of the coin, there is the risk, that is of detection, arrest and successful prosecution with the likelihood then of very significant terms of imprisonment being imposed. Life altering sentences for offences which, after all, carry very high maximum penalties set out in the relevant legislation. It should not be forgotten that Charges 1 and 2 have a 25 year maximum penalty here. I must have regard to that maximum penalty. The Courts must, by the sentences imposed, seek to deter future
like-minded offenders from committing these serious crimes, and that is very important. Those who are prepared to traffick in drugs should expect little by way of leniency when brought before the courts.
43 I do pay regard to current sentencing practices. It is not a single controlling factor. I have looked at the relevant table of cases in the Judicial College of Victoria site for commercial and non-commercial trafficking. I have taken care not to draw on any of the large commercial quantity cases mixed up in those materials. That crime has a higher maximum penalty which does not apply to you. I have looked at the two relevant Sentencing Advisory Council Snapshots, and I will say a little bit more about some of that data in one moment. See Snapshots No.219 for commercial quantity; and 218 for non-commercial quantity.
44 I raised with counsel on the plea of the case of Gregory, a decision of the Court of Appeal. [2017] VSCA 151. The possible ramifications of that case of Gregory were given some attention in a later case of Fernando [2017] VSCA 208.
45 Gregory has a quite useful survey of a number of other sentences passed for commercial quantity trafficking. It considers a good deal of the sentencing data which existed in the lead-in to that case. Gregory was argued in November 2016 and judgment was delivered in June 2017.
46 Sentencing Advisory Council Snapshot 219 (of August 2018) deals with the commercial quantity offence and discloses that the most common prison sentence in the period covered by the data (that is from 2012-13 to 2016-17) was between four to less than five years. Much of that data, if not all of it, predates the Court of Appeal decision in Gregory.
47 I am exercising a sentencing discretion as a judge. It is not arithmetical. I do not base my sentence on statistical material or statistical measures which exist in the data such as “average” or “most common” or “median” sentences. A median sentence is not a measure of offence seriousness (see the case of Tiong [2016] VSCA 257).
48 What I must do is sentence you for your crimes. They are very serious, as is correctly conceded by your counsel, and in saying that I am focussing, of course, on the commercial quantity trafficking charges. Charge 3 is obviously far less serious and but for charges 1 and 2, would almost certainly have been dealt with in the Magistrates’ Court I expect.
49 In the case of Gregory, to which I have referred, the Court of Appeal concluded that the current sentencing practices for serious examples of commercial quantity trafficking had been unduly compressed, were inadequate, and did not reflect the inherent seriousness of the offence, the impact upon the community, or the fact that the maximum penalty was, after all, 25 years.
50 The Court in that case looked at a number of the past sentences, and analysed the statistical data then available to them. The Court of Appeal identified features which they said would lead, in the future, to the expectation of sentences well into double figures for this crime. See paragraph 98. One factor was if the quantity was close to the large commercial quantity. I have already said that you are not that far removed from large commercial quantity in relation to the heroin charge when considering the pure amount and the pure amount threshold. Other factors mentioned by the Court of Appeal included a person having a senior role, or role in charge, or lengthy duration of offending, or relevant prior convictions, or running a trial and being found guilty. Your role was plainly not a minor one.
51 There were a number of factors which the Court in that other case said would lead to far greater sentences being imposed in the future in serious examples of the crime, that is, in instances falling into the upper category. The eight-and-a-half-year term imposed upon Gregory was not disturbed, but the Court of Appeal went on to say that had they not been constrained (as they then incorrectly thought they were) by current sentencing practice, a sentence of 13 to 15 years would have been within the range on a guilty plea in that case. They are large numbers indeed and it is a bit hard to know what to make of them. They represent pretty massive changes to sentencing.
52 I believe that your offending, whilst undoubtedly very serious, falls below that of Gregory for a number of reasons, including the lesser duration in your case and the evidence in Gregory available to the Court as to the organisational structure, networks and interstate movement.
53 The case of Fernando, decided shortly after Gregory, suggests, on one view, that the decision in Gregory requires that the sentencing in the upper category and upper range of mid-category should be decompressed, with a knock-on effect of uplift across the whole range of offence seriousness, that is to maintain relativity, with the most modest uplift reserved in the lowest categories of offence seriousness. See Redlich JA paras.61 and 62. Another judge though, in that same case, (Ashley JA) had doubts as to that proposition and the third, Tate JA, was seemingly silent as to it. It is hard to know what to make of any of that.
54 However, it seems to me that Redlich JA’s reasoning has much to commend it with the notion of the need to decompress sentences and having a spread of sentences across the statistical range. The Court of Appeal in the joint judgment of Gregory had spoken of the need to maintain relativities by, for instance, substantially increasing the penalties for large commercial quantities to take into account the substantial increases in some instances of commercial quantity trafficking.
55 Since those decisions there have been a number of other cases dealing with the flawed concept of uplift and the clear problems with that concept. There is the need to punish appropriately and in accordance with the law as it exists, not provide some period of amnesty leading into appropriate punishments as might be promoted by the process of gradual uplift. The appropriate punishment must be imposed by the Court at the time of sentence.
56 Quite aside from any sentence increases arising from the decisions of Gregory and Fernando, the Court of Appeal in the case of Haddara had already provided for what they describe as a modest "adjustment upwards" for trafficking in "ice", an increase more concerned with the prevalence of trafficking in ice, and the need to increase sentences to reflect that prevalence and give greater emphasis to general deterrence and denunciation.
57 I do not pretend that any of these matters are straightforward. Not even for a judge. They must be almost indecipherable to you and I am sorry to have spent such time dealing with these legal matters and other decisions of other courts but you, your legal team, the prosecution, the community and others, need to know why I am doing what I am doing. I am bound to say that this would all be a good deal easier if the Court of Appeal spoke in a unified fashion. Decisions such as Fernando with two, if not three judges, striking out heading in differing directions are highly problematic for judges of this Court, to say the least.
58 Coming back then to my task. As I have said, sentencing is not a mathematical or fixed exercise. The appropriate sentence is not arrived at by imposing upon you the sentence imposed in another case on another offender for another crime.
59 It is not arrived at by applying a label to describe the ‘category’ of your offending and then applying some ‘standard’ period of imprisonment for such a label or category. We are, by the way heading in that direction in this State, but we are not there yet and certainly not in this sentencing exercise, given the commission date and the crimes that I am dealing with. I note that in terms of drugs at this stage the standard sentencing provisions will only apply to acts of large commercial quantity trafficking committed after the 1 February of this year.
60 There has been a fair bit of criticism from those above me in the heirarchy of the efforts of judges to attach labels to describe offence seriousness. The selection of a particular category or label cannot be the critical task, and often it is not easy even reaching a view as to a particular category of offence seriousness, especially when there is talk of the distinction between the upper mid-category as opposed to the mid-category or low mid-category. Where does one stop and where does the other start? They are pretty meaningless terms. It is far better to focus on actually what was done. Still, one tries to assess where an offence falls on the spectrum of offence seriousness. It is only natural as we must, as judges, assess the gravity of the offence and that I fear will be maintained in the standard sentencing scheme. I await with interest the utterances of the Court of Appeal as to how that scheme is to be given effect without a judge endeavouring to categorise offending into a band of seriousness. That is, though, irrelevant to my task.
61 Where then do you fall on the spectrum of offence seriousness? Regrettably, a fair way up the scale. The weight of the drug is a fixed matter here. We do not need to guess. It does not require speculation or guesswork. It is a given. We know what it is, and it is clearly not in the lowest margins of commercial quantity. Nowhere near it. Duration is what it is, possession for sale on the single day, though your counsel did not suggest that there had not been the earlier conduct she spoke of. However, you only fall to be sentenced by me for this possession for sale of these drugs on the date noted in the charge to which you have pleaded guilty.
62 What is your role? Well, it is a pretty senior one, of that I am satisfied beyond reasonable doubt on the material before me. I can detect no structure above you at all. Nor was I told of one. Maybe there were some above you. Who knows? The fact is whatever the structure in existence (if any), you controlled and possessed these very sizeable quantities of drugs, in an apartment rented at significant cost for these purposes by you earlier in the year. There was the cash on your person and there was the paraphernalia, including two sets of scales, a vacuum bag sealer and the way in which the drugs were held and their purity levels. See paragraphs 7 and 11. There was the variety of drugs, not just the commercial quantity of heroin and methylamphetamine. All of this material speaks of the commerciality of the exercise and of your level of autonomy and seniority. I do not accept that it was to support your drug use or was done out of financial need. That is simply not the character of this trafficking. I do accept that there had been some unhappy events in the years leading into this time, when your father died and your business had gone belly up, with some level of marital stress and some financial stress. That you moved into a very different phase of your life then and started to use drugs and had some financial issues. But that is as far as I can take it. This is trafficking at a relatively high level at least in relation to the ice and heroin. Well over the commercial quantity, more than twice the amount for the heroin and more than three times the amount for the ice by the pure weight measure. As I have said, not that far shy of the threshold of large commercial quantity for the heroin on the pure drug threshold.
63 You have no prior matters, you have pleaded guilty at an early opportunity that I have spoken of, you are remorseful, you are ashamed and you have done truly excellently in custody, and you have what I judge to be very favourable prospects into the future.
64 Having mentioned then the disapproval voiced by courts above me of the ongoing use of labels, let me then employ some in this case as I feel I have to. I do not conclude that you are at the very highest level of offence seriousness, you are not, but you certainly are a very decent margin above the lowest level and sit comfortably above the mid-level for each of the commercial quantity offences. Of that I have no doubt.
Totality
65 I have taken into account the principle of totality of sentence.
66 I must consider whether the effect of the sentences is just and appropriate, and commensurate with your overall criminality. I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you. As to charges 1 and 2, these were each serious crimes, relating as they do to trafficking in different drugs, each at a level above the commercial quantity. Charge 3 related to the far smaller quantities of other drugs at a non-commercial level. That charge is the least of your worries and, as I have said, it has been dragged into this jurisdiction purely by the other two matters. There cannot be total concurrency between charges 1 and 2. There is no reason to approach my task in that way and nor, for that matter, does counsel suggest that I could or should. They are both serious charges. There is obviously the strong temporal connection between the charges. That is to say they are occurring on the same day and that and the need to pay adequate weight to totality commends at least a measure of concurrency here. Still, the two most serious charges, charges 1 and 2, are broken down by the identity of the drug and for that reason they demand a reasonable level of cumulation. They are each separately, a serious criminal offence. You have a commercial quantity of two drugs. In neither case have you just scraped past the commercial quantity threshold.
67 I proceed on the footing, as I must, that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the possibility of release on parole, even though, of course, I am required, as a matter of law, to fix a non-parole period in your case. The Adult Parole Board has the absolute power in relation to that issue. They have the power as to your release at the expiry of the non-parole period or at some later point, and I must not consider or speculate about what they may or may not do. It is none of my business. They will receive these remarks and make of them what they will. They will assess your behaviour in custody, which to this point at least has been, in my judgment, excellent.
68 Your counsel was arguing for, “a longer than normal parole period”. That is the way she put it. See paragraph 51 of the written submissions. There is no such thing as a "usual" or "normal" non-parole period or parole period for that matter. I will fix a non-parole period which will recognise the very favourable prospects which I have commented on in my reasons to date. So too will my individual sentences recognise those matters. As to the non-parole period, I will provide a large gap between your head or total effective sentence and the period at which you may first be considered for release on parole by the Adult Parole Board.
69 I am going to pass sentences in your case which might appear to be a very long way removed from the sorts of numbers mentioned in that case of Gregory, to which I referred. I am not ignoring that decision, far from it. I have dealt with it in some detail. For the reasons that I have announced, I do not regard your offending as being quite at the same level of seriousness as the offending in that case. Having said that, in a post Gregory world, I sense that there will be nothing unusual in your style of offending being rewarded with double figure sentences even on a plea. That will not happen in this case, owing to the many mitigatory features that I have referred to in detail.
Forfeiture and Disposal Orders.
70 Let me just deal with the ancillary orders. Orders are sought for forfeiture of the cash and also for disposal of the drugs. The orders are consented to and I will make those orders. I have signed them and now pronounce them. In terms of the forfeiture order, pursuant to the provisions of the Confiscation Act, s.33, the property referred to in that order is forfeited to the State. So that is the $2600 in cash. I have signed that order.
71 The disposal order relates to the disposal of the various items that were seized in the course of the warrants being executed and the searches conducted, and again there is no issue taken. They are consented to. I make the relevant order under the provisions of the Confiscation Act. On this occasion, s.78. I am satisfied it is appropriate to make the order, that the pre-conditions to the making of the order are made out. I direct that the property referred to in the schedule be dealt with in the manner contemplated by the signed order.
Sentence
72 Reasonable minds then may differ as to which of charges 1 and 2 is the most serious offence. Each are commercial quantity trafficking offences, each are punishable by the same 25 year maximum term. Charge 1, relating to heroin, is more than two times the commercial quantity pure threshold, and in pure terms is only about 125 grams off the large commercial quantity threshold of 750 grams pure, as then existed. The gross weight of 725.6 grams, as against a large commercial quantity mixed weight threshold of 1 kg.
73 The methylamphetamine obviously has the lower gross weight of 424.6 grams, that is the mixed weight, but the commercial quantity threshold for methylamphetamine was set at a much lower level, that is 100 grams pure as opposed to 250 grams pure for the drug, heroin. It follows that though the gross or mixed weight for the methylamphetamine was lower than the heroin, the methylamphetamine possessed for sale was more than three times the commercial quantity by pure weight. I have decided that Charge 2 is the most serious charge.
74 Mr Nguyen, I am sorry to have taken such a long time getting to this end point. Can I ask you then to stand up if you would, please? Thank you:
· on Charge 1 on the indictment, that is the charge of trafficking in a commercial quantity of heroin, I convict and sentence you to five years and nine months' imprisonment;
· on Charge 2, trafficking in a commercial quantity of methylamphetamine, I convict and sentence you to six and a half years’ imprisonment. That will be the base sentence;
· on the third charge, that is a charge of trafficking, well, that it is, as I have said, offending at an altogether different and much lower level, and it is only up in this Court because of the other offences. On that charge, Charge 3, I convict and sentence you to three months' imprisonment.
Cumulation
75 The base sentence then is the longest of the sentences, so that is the six and a half years imposed on Charge 2. I am going to direct that 18 months of the sentence imposed on Charge 1 is to be served cumulatively, that is on top of the base sentence imposed on Charge 2. The sentence on Charge 3 will be served wholly concurrently with all other sentences.
Total Effective Sentence
76 What this results in then is a total effective sentence of eight years' imprisonment.
Non-Parole Period
77 I am going to fix a period of four and a half years during which you will not be eligible for release on parole.
Section 18
78 You have already spent 531 days in custody by way of pre-sentence detention, and that period is declared as having already been served under this sentence pursuant to s.18 of the Sentencing Act 1991.
6AAA
79 I told you that I have rewarded you for your guilty plea and the relatively early stage that it was entered. Had you been found guilty of these offences following a jury trial I would have sent you to prison for 12 years. I would have fixed a non-parole period of nine years in that setting, and that is also to be noted in the records of the court.
80 Just have a seat there, please. Any other matters that I need to deal with?
81 COUNSEL: No, Your Honour.
82 HIS HONOUR: All right, thanks very much. You will go and have a chat to your client downstairs, Mr Cunningham?
83 MR CUNNINGHAM: Yes, I will, Your Honour.
84 HIS HONOUR: Yes, all right. Look, I might sign this order upstairs. Look, Mr Nguyen, Mr Cunningham will come down and see you downstairs and have a talk to you, all right. So he will see you shortly. If Mr Nguyen can be removed. Thank you.
85 MR CUNNINGHAM: If Your Honour pleases.
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