Director of Public Prosecutions v Nguyen
[2018] VCC 1741
•7 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00491
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HA NGUYEN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2018 | |
DATE OF SENTENCE: | 7 November 2018 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1741 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – handle stolen goods and negligently deal with proceeds of crime – Community Correction Order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N Burnett | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms H Bate (Plea) Ms M Walker (Sentence) | Melinda Walker & Associates |
HER HONOUR:
1 Ha Nguyen, you have pleaded guilty to one charge of handling stolen goods and one charge of negligently deal with proceeds of crime.
2 Your offending is serious and that is reflected in the maximum penalties set down by Parliament, and they are 15 years’ imprisonment for handling stolen goods, and 5 years’ imprisonment for negligently deal with proceeds of crime.
3 I will now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing. No issue was taken with that opening by your counsel.
4 Police executed a search warrant at your home in Richmond on 30 November 2017 at approximately 9.30 am. During the search they located a large amount of various health and beauty products in boxes and bags in the lounge room, hallway, under the bed of the master bedroom and in the wardrobe of one of the children’s rooms. Police ascertained the total value of the seized property exceeded $90,000. (Charge 1 – handling stolen goods)
5 You were arrested and police saw that you were attempting to use a mobile phone. That was then seized. On the phone they located an image of a large amount of cash. That photo appeared to have been taken at your address. Text messages were also located between you and an unknown person who was arranging to collect the cash. You then pointed out to police a bag in the master bedroom at the bottom of the wardrobe. That bag contained $410,930 in cash. (Charge 2 – negligently deal with proceeds of crime)
6 You were interviewed by police with the assistance of a Vietnamese interpreter. During the interview you made admissions about all the goods that were in your possession. You also told police that people would bring money to you, either the person would come and take the money or you would be given an address to deliver the money.
7 You were aware of the precise amount of money that was in your possession when arrested.
8 You told police that you received instructions from a female whom you describe as being an accountant in Vietnam. That person told you if somebody brought the money to you, you must keep it and then she would tell you how or who it would be delivered to, and you would get paid a percentage of the money.
9 You told the police that insofar as the products were concerned that you would buy them from somebody in Sunshine and Braybrook, and would then send the products to Vietnam and Sydney.
10 The two charges on the indictment each relate to one day only, being the date of your arrest. You are to be sentenced on that basis only.
11 Ms Nguyen, the offending is serious. It is apparent that you were a trusted recipient of the money and an important cog in both the money laundering operation and also the distribution of goods operation, the provenance of which goods is unknown. It is not suggested that you were the principal or mastermind behind these operations. The nature of your offending is such that there are unknown others necessarily involved in the planning and delivery of both the goods and moneys for on-selling or distribution.
12 This type of offending affects the community in a variety of ways. It encourages others to steal and subsequently, the legitimate businesses from whom goods are stolen, they suffer loss associated with the theft of their goods. The laundering of money is often associated with other serious criminal activity, although on this occasion the prosecution have not identified the source of the funds in your possession.
13 Both crimes are of some prevalence, so that there is a need for the court to emphasise general deterrence; that is, the sentence you receive is partly designed to deter others who may also be tempted to engage in such conduct from not doing so in the future and also to specifically deter you. It is necessary for the Court to send a clear message that such behaviour is not tolerated.
14 On behalf of the community I must condemn your behaviour.
15 I must impose just punishment.
16 I turn now to your personal history and circumstances.
17 You are aged forty-two. You come from Vietnam. You spent your childhood and early adulthood growing up in Vietnam. After leaving school you worked in a shoe factory. In 2007 you met and married Manh Hoang, who is aged 63 and is an Australian citizen. You married in Vietnam. You continued to live in Vietnam. After your marriage you became pregnant with your first child but tragically that child was stillborn at term.
18 In 2011 your husband was successful in sponsoring you to come to live in Australia. Following your arrival in Australia you have had two other children, both daughters. They are aged six and four years respectively.
19 You live a modest lifestyle with your husband and two young children. You are unemployed and receive Centrelink benefits. Your husband is on a disability support pension due to a number of chronic health issues. He has a known cardiac condition, ischemic heart disease, for which he is prescribed medication; high blood pressure; high cholesterol and diabetes. Both of your daughters have an eye condition called strabismus that requires ongoing assessment and treatment at the Royal Children’s Hospital.
20 In your family you are the eldest child and there are three children. Your family remain in Vietnam. You have a close relationship with your family. In the past your parents worked as street food vendors, and that meant they worked long hours and you were essentially left to be responsible for running the household and looking after your younger siblings.
21 Following your move to Australia you had no family or supports and found being in Australia very isolating and difficult. You missed your family and experienced problems understanding the culture, and had real difficulties because of your lack of understanding of the English language. Language was and continues to be a significant issue for you. Your spoken English is poor.
22 You continue to remain relatively isolated and there is no family support. Your husband’s family also predominantly live in Vietnam.
23 As the eldest child, you felt it your responsibility to provide financially for both your parents and younger siblings. It was their expectation that you would do so, their perception being that Australia is an affluent and opportunity-rich country. Therefore it was expected that you would send them back money to financially support them in Vietnam.
24 You are the primary carer for your two daughters and your husband, because of his chronic medical conditions, is limited in what he can do and is also unable to work. You have struggled financially in Australia. You found it difficult to obtain any paid employment. You have completed a nail technician course as well as a basic level hairdressing course, but still you could not secure any work.
25 You made some connections through the Bridge Church, Richmond, and I have read two references from Vinh Le and Yen Le, both of whom are involved with the church and they both provide some support to you.
26 They are both aware of your offending. In their letters they note you are greatly distressed because of your situation and the possibility of punishment. You are fearful for the future of your young children.
27 Yen Le states, since June of 2016, following the introduction of the Vietnamese interpreter at the church, you have been regularly attending Sunday services with your family. You are described as being a great mother who provides well for the family. Vinh Le states that you are remorseful for your offending.
28 Other references were provided that also confirm you are a hard-working and caring mother. It is not apparent whether those referees knew about these charges, so therefore less weight can be placed upon their references.
29 Nonetheless, I accept that absent these offences, you are person who is otherwise of good character. There is no prior criminal history, nor are there any outstanding matters.
30 A report was provided from Ms Carla Ferrari, consultant psychologist. In her report of 27 July 2018 she concludes that you show evidence of acute mood disturbance, some symptoms of severe depression, anxiety and stress due to your inability to adjust to the various stresses that you were faced with at the time of the offending. She does not consider that you are currently suffering any psychiatric illness.
31 She noted the adjustment difficulties that you have experienced integrating following your move to Australia and also in part, the difficulties you are having dealing with these matters hanging over your head.
32 Ms Ferrari recommends psychological counselling to deal with your adjustment issues and to enable you to develop skills to manage anxiety and stress in the future, as well as to assist you in resolving your depressive symptoms.
33 On your behalf Ms Bate did not seek to place any reliance on what are known as the Verdins principles, but nonetheless I have had regard to the contents of Ms Ferrari’s report in a general sense.
34 I am satisfied, given your elevated levels of stress and anxiety and your particular family circumstances, that imprisonment would be a great burden for you, and this is particularly so, in the context of being the primary carer of your two young daughters, given that there are no other family supports in their lives and your husband’s serious health issues means that he is limited. Imprisonment would cause further anxiety and therefore would be very burdensome for you.
35 I have regard to all the other matters put in mitigation, which I accept. A plea of guilty was entered at the earliest possible opportunity, at committal mention. The plea is of real utility and is an acknowledgment on your part that what you did was wrong. Through your plea you have spared the State the cost and inconvenience of a trial. You have therefore facilitated justice and your sentence is discounted accordingly.
36 Of note, when you were interviewed by police at your home at the time of your arrest whilst at home, you were open with them and fully cooperative. You further gave frank answers at the formal record of interview. I am satisfied given your conduct and your expressed admissions that you are very remorseful for your offending.
37 I do not consider that you would pose a risk of further offending in the future. I am satisfied that it has been a salutary experience for you having regard to your post-offence conduct.
38 I consider your rehabilitation prospects are excellent.
39 I am satisfied that the context to the offending was that you had been experiencing very real difficulties negotiating life here in Australia with your cultural differences and linguistic disadvantages and the many financial pressures that you laboured under. Whilst that provides an explanation for you offending, it in no way excuses your offending.
40 Ms Bate accepted that the offending was objectively very serious, but submitted having regard to all the facts and circumstances that a Community Correction Order could cater for all the sentencing requirements.
41 Ms Burnett, on behalf of the Crown, acknowledge that it was serious offending and that general deterrence was a primary sentencing purpose as well as just punishment, denunciation and protection of the community. She highlighted the prevalence of the offence. She emphasised the high amount of cash that was recovered and submitted that an immediate custodial sentence which could include a combined sentence with a Community Correction Order to follow would be an appropriate punishment.
42 You have now been assessed and found suitable for a Community Correction Order. Notwithstanding the objectively serious criminal conduct involved in your offending, I have come to the conclusion that all of the purposes of sentencing can be sufficiently achieved by such an order of some duration with conditions tailored to your circumstances and directed to your ultimate rehabilitation in the community.
43 The Court of Appeal in this State in the guideline judgement of Boulton v R[1] made it clear in an appropriate case such an order can provide a sentencing option that is flexible, that enables both the punitive and rehabilitative purposes to be served simultaneously. A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, aimed at minimising the risk of re-offending by promoting the offender’s rehabilitation.[2]
[1][2014] VSCA 342.
[2]Boulton, 311 [2].
44 In that judgment the Court also acknowledged that a CCO may remain open, even in cases of very serious offending[3] where a term of imprisonment is otherwise warranted.
[3]Ibid, 338 [131].
45 I have had explained to you through your lawyer Ms Walker, with the aid of an interpreter, the nature of the order that is to be imposed and you have indicated through her that you understand the core conditions and consequences of non-compliance.
46 Contravention of any condition attached to such an order is itself an offence punishable by up to 3 months’ imprisonment. Contravention also carries with it the prospect that you will be resentenced on the original offending. Furthermore, if you do commit further offending, such breaching offence will be also dealt with and subject to other penalties itself.
47 You have indicated your willingness and consent to such an order being made.
48 I consider there are a number of protective factors at play in your case. Your commitment to caring for both your daughters and your husband, the support of the members of your church, and your insight into your offending are such that you are likely to comply with the terms of the order.
49 I will now make the formal orders.
50 In relation to charge 1 - handle stolen goods and charge 2 - negligently deal with proceeds of crime, you are convicted and you will be placed on a 3 year Community Correction Order with special conditions of 300 hours of unpaid community work to be performed over 2 years, and you are required to undertake treatment and rehabilitation for mental health as directed, and you will be subject to supervision.
51 I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
52 Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have sentenced you to a term of imprisonment of 3 years, to serve 18 months.
53 I make the order for forfeiture relating to the cash.
54 I make the order pursuant to s464ZF of the Crimes Act 1958 (Vic) for the taking of a forensic sample.
55 Madam Interpreter, if you could please explain to Ms Nguyen that that last order means that she has to go to a police station and there is a procedure that will be undertaken which will require taking a scraping from her mouth using a cotton bud, and that she must do that within four weeks of today's date. That order is made on the basis that the seriousness of the circumstances justify the order, the order is by consent and the granting of the order is in the public interest.
56 Madam Interpreter, can you just tell Ms Nguyen if she does not consent to the taking of the mouth scraping under supervision by a member of the police force who is authorised then the sample can be taken by way of a blood sample and reasonable force can be used to enable that forensic procedure to be undertaken.
57 I have signed the orders. I will just ask Ms Walker if you could get your client to sign that and a copy will be made and also you will be provided with a copy of the s464ZF order.
58 MS WALKER: Yes, Your Honour.
59 HER HONOUR: I think that covers all the ancillary orders.
60 MS BURNETT: Yes, thank you, Your Honour.
61 HER HONOUR: And I understand the Community Correctional services responsible is Carlton.
62 MS WALKER: Carlton, that's right.
63 HER HONOUR: Yes. If you can just confirm that your client will have to attend there on or before 9 November.
64 MS WALKER: Yes, I've explained that to her, yes.
65 HER HONOUR: Good, thank you. Thank you for your assistance. I'll stand down and if you could make available the orders and then let me know when Mr Lopez is here.
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