Director of Public Prosecutions v Nguyen
[2018] VCC 2320
•19 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-17-02279
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHUOC NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 October 2018 |
| DATE OF SENTENCE: | 19 October 2018 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 2320 |
REASONS FOR SENTENCE
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Subject: Negligently deal with proceeds of crime – trafficking in a drug of dependence – possession of a drug of dependence
Catchwords: Plea of guilty – relevant criminal history – positive response to 533 days in remand custody – no Pre-Sentence Detention declaration
Legislation Cited: Confiscation Act 1997; Sentencing Act 1990; Firearms Act 1996.
Cases Cited:
Sentence: Imprisonment for 8 months and 28 days combined with Community Corrections Order of 18 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Batten | Office of Public Prosecutions |
| For the Accused | Mr R. van de Weil QC (Plea) |
HIS HONOUR:
1Phuoc Thanh Nguyen, you have pleaded guilty to one charge of trafficking in a drug of dependence, methylamphetamine, one charge of negligently dealing with proceeds of crime and one charge of possession of a drug of dependence, methylamphetamine.
Facts and Personal Circumstances
2You have also admitted a prior criminal history.
3The circumstances of your offending are set out in two prosecution plea summaries which were tendered as Exhibits A and B.
4In November 2015, you were living with your girlfriend at Mount Waverley.
5On 3 November 2015, police spoke to you in a car outside your home.
6You had six ecstasy tablets in your pocket. You pleaded guilty to possession of those drugs in the Melbourne Magistrates' Court on 7 April 2017.
7Police found cash, including $23,950 in a bag, in the car. They arrested you.
8In the house, they found $18,870 in a bedroom drawer. In respect of the cash found in the bedroom drawer you pleaded guilty to a charge of negligently dealing with proceeds of crime on 7 April 2017.
9There was drug paraphernalia on a coffee table in the living room, including an ice pipes, gas lighters, digital scales and empty snap-lock bags.
10Police also found inside the house a bag containing shards of methamphetamine (45.6 grams) and another bag containing 12 MDMA, or ecstasy, tablets. You pleaded guilty to a charge of trafficking these drugs on 7 April 2017.
11Police also found a bag containing 0.5 grams of Alprazolam (Xanax), and you pleaded guilty to a charge of possession of this drug on 7 April 2017.
12Police also found in the lounge, a bag containing 89 grams of methamphetamine, of 86% purity. Your possession of this drug for sale is the basis of the charge of trafficking in a drug of dependence before me. A trafficable quantity of the drug is 3 grams. At the relevant time a commercial quantity of the drug was 250 grams.
13On 7 April 2017, a Magistrate imposed a community correction order, in addition to a 44 days' imprisonment in relation to the drug and money offences to which you had pleaded guilty, arising out of your arrest on 3 November 2015.
14In May 2017, you were living in Doncaster.
15On 5 May 2017, police arrested you, again, at the home. They had search warrants for drugs and firearms. You were living there with a woman.
16Inside the house, they found bags of white powder, drug paraphernalia, including an ice pipe, cash, ammunition, weapons and mobile phones.
17You had $5,510 in cash on you. Inside the house, police found four bundles of cash totalling $253,145. Police seized $258,665 in all.
18The finding of the cash on your person and in your home, and your handling of it (supported by DNA evidence), is the basis of the charge of negligently dealing with proceeds of crime.
19There were two bags which contained methamphetamine in the house. One contained 13.2 grams of mixture of approximate purity 72%, and the other contained 12.1 grams of mixture of approximate 89% purity.
20Your possession of the two bags of methamphetamine is the basis of the charge of possess a drug of dependence.
21Although Mr van de Weil placed material before the Court of your history of drug use and addiction, he did not attempt to persuade me you possessed those drugs for personal use.
22I am not satisfied your possession was for any purpose other than trafficking.
23At the house, you had in your possession cartridge ammunition, knuckle dusters and two knives. In respect of those items you have pleaded guilty to summary charges of possessing cartridge ammunition and possessing a prohibited weapon.
24I turn to your personal circumstances, which are set out in the reports of Jeffrey Cummins and Ian Mackinnon, which were both tendered on the plea hearing.
25You were born in November 1986 in Australia and are now age 31 years. You have an older sister.
26You had an unstable childhood marked by your parents quarrelling and your mother’s mental health problems (which were detailed in the report of Geoffrey Hogan dated 9 May 2011). Your parents separated when you were 10 years’ old and your sister and you then lived with your mother.
27You attended local schools until year 12, which you did not complete.
28You obtained work at a retail outlet and then worked at a biofuel company from 2004 until 2009. Your last work was between 2014 and 2015 labouring at a garage.
29You told Mr MacKinnon when you were a teenager your sister’s boyfriend introduced you to heroin. You said you have also used ecstasy and crystal methamphetamine regularly, and you have trafficked drugs to make money and to get drugs for yourself.
30Your criminal record, which includes convictions for drug trafficking, possession and use, is consistent with the history you gave Mr MacKinnon.
31Mr MacKinnon’s opinion is you possess "a good level of functional intelligence and (have) not come anywhere near realising (your) intellectual/academic potential".
32He said you expressed appropriate remorse for your offending and, having turned 30, you realise you need to stop using and selling drugs, to change for the better.
33Mr MacKinnon also offered the opinion that at the time of your offending you were "probably suffering from symptoms that met the clinical criteria for… substance abuse disorder and post-traumatic stress disorder".
34Your substance use disorder is plain. Mr MacKinnon suggests your PTSD is a consequence of a dysfunctional childhood and adolescence.
35While I accept these factors contributed to your offending, on the evidence before me, I am not persuaded to accept MacKinnon’s opinion those factors "significantly (impaired your) ability to reason and make sound judgement".
Defence Submissions
36On your behalf, Mr Van de Weil made the following submissions in mitigation of penalty.
37He submitted your plea of guilty should be viewed as an early plea given the tortured legal process from the time of charges being laid against you to the plea hearing. Those processes are set out in detail in Mr Van de Weil’s written submissions. I will not repeat them. Suffice it to say,
· after being charged with 12 offences on 3 November 2015; and
· being discharged in relation to 8 of those charges, on 7 April 2017, and pleading guilty to the remaining 4 which I have referred to (including charges of possession and trafficking MDMA) for which you were sentenced to 44 days imprisonment with a 12-month community correction order;
· you were directly presented on 1 May 2017 on the 8 charges in respect of which you had been discharged; and
· you were then arrested and charged again on 5 May 2017 in relation to the charges of negligently dealing proceeds of crime and possess a drug of dependence.
38You offered to plead guilty, on 11 July 2018, to the charges for which you now fall to be sentenced.
39While it is hard to accept the description “early plea” I accept your guilty plea has not only utilitarian value but shows some acceptance of responsibility for your offending and, in combination with your expressions of contrition, some limited evidence of remorse.
40I also accept the principle of totality requires me to moderate the sentence, I would otherwise impose on the trafficking charge (2015).
41Mr Van de Weil submitted your offending must be viewed in the context of your own drug use which stems from your unstable upbringing, limited education and introduction to drugs by an older person whom you saw as a role model.
42As I have said, I accept your sentence should be moderated slightly for those circumstances.
43You have been in custody since your arrest on 5 May 2017, that is, 533 days.
44Mr Van de Weil submitted, in jail, you have taken steps towards your rehabilitation. Prison certificates and drug screens produced to the court show that you have obtained work, undertaken the educational and vocational courses offered to you and have been drug abstinent.
45I accept you have responded positively to your time in custody and I take that into account in considering the sentence which will best advance your rehabilitation, while taking into account all other relevant sentencing factors.
Criminal History
46Mr Van de Weil addressed your criminal history.
47You have prior convictions for drug trafficking and drug use in the Magistrates' Court in 2008 and 2009.
48In 2014, you were sentenced to 3 months' imprisonment with a 12 month community correction order for dealing with proceeds of crime and drug possession.
49On 24 October 2018, you are to appear at Melbourne Magistrates' Court to answer a charge of contravention of your 2017 community correction order which you breached when you offended in May 2017.
50Your relevant criminal history indicates specific deterrence has some significance in your case.
51Ultimately, Mr Van de Weil submitted your rehabilitation and the community interest would be best served by a combined sentence of a term of imprisonment and community correction order rather than imprisonment with a non-parole period fixed.
Prosecution Submissions
52Mr Batten, for the prosecution, submitted your prospects of rehabilitation are, at best, guarded.
53At your plea hearing on 7 April 2017 a drug counsellor, Ms Aberdee, told the court you had effectively detoxified during your 44 days in remand custody, had insight into your offending and were remorseful.
54Less than one month after your release at that time, you reoffended in substantially the same way.
55On a bail application, in the Supreme Court, on 16 October 2017, another drug counsellor, Ms Brown, gave evidence you had told her you were introduced methamphetamine at age 18 and, contrary to the history you gave Ms Aberdee, you had continued to use drugs most days until your arrest on 5 May 2017.
56Mr Batten submitted I should be cautious to accept your reports about your own drug use. He also submitted whether your drug activities were motivated by addiction, and not profit, is a moot point. I accept you were motivated by both.
57He submitted, given you had disputed the evidence of your 2015 drug trafficking at the committal hearing, and sought a discharge on that charge, your subsequent plea of guilty in this court is limited evidence of remorse. As I have said, I accept that submission.
58In relation to the gravity of your offending he pointed to:
· the significant quantity of methamphetamine (89 grams) of high purity (86%) in your possession for sale in November 2015; and
· the very substantial amount of cash and the methamphetamine (28 grams) and weapons in your possession in May 2017.
59He submitted they are indicia of drug activities inconsistent with only personal use.
60He acknowledged your dealing with the cash was negligent, rather than knowing or reckless, the latter carrying substantially higher penalties.
61I accept the force of Mr Batten's submissions.
62He submitted I should impose a term of imprisonment and fix a non-parole release period.
63To enable me to consider all sentencing options, I have had you assessed for your suitability for a community correction order.
64Between 2005 and 2017, you have been subject to five community-based dispositions. You have successfully completed two orders, including one imposed in 2014, and two have been cancelled. You are facing contravention proceedings in relation to the community correction order imposed in April 2017.
65You told the assessing officer you are willing and able to comply with a further order. Her view is, with “an extra level of motivation and accountability” by way of judicial monitoring, you would be suitable for a further order.
66I have decided I will impose a combination sentence of imprisonment and community correction order to provide for your supervised release from custody in a way I hope will reduce the risk of your re-offending.
67I have adjusted the terms of imprisonment I will impose, particularly in relation to the proceeds of crime charge, to take into account the time you have spent in custody since your arrest on 5 May 2017.
68By the sentence I impose I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must also look to the protection of the community and your rehabilitation.
69Taking into account the circumstances of your offending and its effects, your personal circumstances, antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a matter appropriate to you, I sentence you as follows:
(a) On the charge of negligently dealing with proceeds of crime you are sentenced to a term of 6 months' imprisonment.
(b) On the charge of possession of a drug of dependence you are sentenced to 3 months' imprisonment, one month of which is to be served cumulatively on the sentence imposed on the first charge.
(c) On the charge of trafficking in a drug of dependence you are sentenced to 3 months' imprisonment, one month of which is to be served cumulatively on the sentences imposed on the first and second charges.
(d) On the charge of possessing a prohibited weapon, namely knuckle dusters, you are sentenced to one month's imprisonment, 14 days of which is to be served cumulatively with the sentences imposed on all other charges.
(e) On the charge of possessing controlled weapons, namely two knives, you are sentenced to one month's imprisonment, 14 days of which is to be served cumulatively with the other sentences imposed.
(f) On the charge of possessing cartridge ammunition you are fined $500.
70Your total effective sentence is 8 months’ and 28 days’ and I order upon your release from prison, which will be in 8 months’ and 28 days' time, that you commence a community correction order.
71Accordingly, the community correction order will commence on 16 July 2019.
72The duration of the order is 18 months’ and I impose the following special conditions:
· Treatment and rehabilitation for drug use;
· Programs which address factors relating to your offending behaviour;
· Supervision;
· Judicial monitoring, which will require you to return to court to appear before me, on 4 February 2020, after your release from prison, to review your progress on the community correction order; and
· You must attend at the Ringwood community correctional services office at to Bond Street Ringwood within two clear working days after the commencement of the order.
73The mandatory terms that apply to all community corrections orders are:
· You must not commit another offence for which you could be imprisoned, during the time that the order is in force;
· You must comply with any obligation or requirement, prescribed by regulation 17 of the sentencing regulations;
· You must report to and receive visits from the secretary of the office of corrections or his delegate;
· You must let a community corrections officer know within 2 clear working days of you changing your address or job;
· You must not leave Victoria without first getting permission to do so from the secretary or delegate;
· You must obey all lawful instructions from, and directions of, the secretary or delegate;
74Pursuant to section 78 (1) of the Confiscation Act 1997, I make a disposal order for the items listed in the schedule to the order.
75Pursuant to section 151 of the Firearms Act 1996, I order forfeiture of the two handguns and ammunition listed in the schedule to that order.
76Pursuant to section 34 (1) of the Confiscation Act 1997, I order forfeiture of the cash items listed in the schedule to that order.
77In order to impose a sentence appropriate to you and particularly given the seriousness of your offending, I have exercised my discretion to make no declaration of presentence detention under section 18 (4) of the Sentencing Act 1990.
78So, the effect of the order I propose to make, Mr Nguyen, is that you will serve a further 8 months’ and 28 days' imprisonment and then be released on a community correction order for 18 months.
79Pursuant to section 6AAA of the Sentencing Act, I indicate that but for your plea of guilty you would have been sentenced to a total effective term of 3 years, 9 months' imprisonment with a non-parole period of 2 years and 6 months.
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