Director of Public Prosecutions v Nguyen

[2018] VCC 1384

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00901

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHI LUONG NGUYEN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2018, 3 September 2018
DATE OF SENTENCE:	3 September 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1384

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J D Singh	Office of Public Prosecutions
For the Accused	Mr C Pearson	C. Marshall and Associates

HIS HONOUR:

1Phi Luong Nguyen, on 11 August 2016, the police raided your apartment in the Docklands.  You were home, smoking heroin.  You were using your laptop, surrounded by drug paraphernalia.  A subsequent search found 1196.9 grams of methamphetamines and 260.5 grams of heroin in the apartment.  The drugs were secreted in various parts of that apartment.  Testing revealed various levels of purity, mostly at the low to very low end of the scale.  The analysis of your computer revealed your business-like involvement in trafficking in drugs.

2You have pleaded guilty to a charge of trafficking in a drug of dependence, being methylamphetamines, in not less than a commercial quantity, and trafficking in heroin.  The trafficking is based on your possession for sale of the drugs found at the apartment on 11 August 2016.  The proof of that trafficking does include your previous drug conduct, as revealed by your computer entries.

3On any view, your offending is serious.  The quantities are significant.  These drugs wreak havoc in our community.  Your own unhappy circumstances reveal how destructive addiction can be.  Those who traffic in drugs must be made aware that ordinarily, stern punishment will be imposed.

4Your personal circumstances do reveal matters in mitigation.  You are now 41 years old.  You were raised in poverty-stricken circumstances in Vietnam.  Your parents were so poor that you were sent to your grandparents in Saigon at a young age.  After primary school in Vietnam, you escaped on an overcrowded boat to the Philippines with your father and three cousins.  You struggled to survive in the refugee camps in the Philippines for four years before being accepted as a refugee by Australia.

5At 16, you arrived in Australia with little English.  You ultimately went to school, progressing on to Year 12 at Footscray High School.  Others in your family arrived from Vietnam during this period.  You moved from school to university, ultimately finishing a degree in banking, finance and international trade.  This effort to improve your circumstances with education is to your credit, and it reveals you are intelligent and have good potential.  However, your downfall was falling into using and becoming heavily addicted to heroin.

6This offending, committed at the age of 39, was during and due to your resumption of heroin use after a sold period of abstinence in the years before.  It seems you are prone to fall back into drug use and also into heavy gambling when personal relationships falter.  At the time of your offending, you were in a relationship with a Mary de Guzman.  She was living in the apartment; indeed, came home during the police raid.  She was a heavy user of methamphetamines.

7As the High Court made clear in Bugmy, difficult, impoverished upbringing is always relevant to sentencing.  In this case, you had moved on with better opportunities because of your tertiary education.  But with your emotionally impoverished childhood circumstances, you were not able to deal with the significant difficulty of maintaining relationships or coping when it broke down.  Your consequent resort to drugs, even as a mature man, led your to your trafficking so as, in part, to fund your own use and that of your partner, Ms de Guzman.

8This scenario has occurred before in 2014.  You were dealt with by the Magistrates' Court for trafficking methylamphetamines and possession of heroin, cash and a taser.  You were placed on a 12-month community correction order, with many hours of unpaid work and drug treatment.

9You successfully completed that community correction order.  You were subject to drug screens, so I was told, and you were clean through this period; that is, you abstained and were doing a lot better in staying away from drugs during this time.  Despite this solid and reasonably long period of reform, you relapsed, taking up heroin again, which led to this offending.

10Since your arrest in remand, 102 days, you have made very significant progress.  You were first bailed on a Court Integrated Services Program.  You met all the requirements and remained drug free and compliant with those onerous bail conditions.  Once bailed to this court after committal, you have continued to show rehabilitative progress.

11You have secured labouring work for three days a week and have dedication to remaining in work, away from drugs, and away from drug users and gambling.  Your partner, likewise, has abstained from ice use and you remain solidly together.  You have accepted responsibility for your wrongdoing.  You face more serious charges, once the indictment was settled, for trafficking in a commercial quantity and trafficking simplicter.  You indicated a plea of guilty.  I was this morning taken through the ups and downs of those negotiations.

12I take into account your approach to your circumstances subsequent to your arrest and release on bail as indicative of remorse and a willingness now to do the right thing.  Your prospects now that you have work and are drug-free, and drug-free for a significant period.  Those prospects, in my view, are as good as they have been.

13It is often said, perhaps more so with younger offenders, that sometimes in sentencing it is necessary to seize the moment and endeavour to facilitate rehabilitation by establishing conditions that make the most of the strong position an accused is in at that time.  This is one of those cases.

14While it is plain the offending is serious and the recent prior conviction is a matter of concern.  But, as the Court of Appeal set out in the guideline judgement of Boulton & Ors v The Queen, even very serious criminality can be punished by a penalty that is both punitive and rehabilitative at the same time.  That form of punishment is a community corrections order that I can as well combine with a term of imprisonment.

15In Boulton, the Court of Appeal make clear that the new sentencing regime allowing for lengthy community corrections orders and the possibility of a combination with significant gaol terms, had changed the sentencing landscape.  In more recent times, a number of years after Boulton - that is, in R v Williams, a judgment delivered by the Court of Appeal on 11 July this year, what was said by Justice Priest was:

" As was made clear in Boulton, in an appropriate case a community corrections order provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously. A community corrections order can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.  And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a community corrections order may remain open, even in cases of very serious offending."

16The effect of the changes in the sentencing landscape, as it is described, was to in effect have sentencing judges consider whether all sentencing purposes could be satisfied by punishment other than immediate incarceration.

17The key sentencing purposes in your case are denunciation of your serious drug trafficking.  This means I must condemn your conduct and ensure just punishment for what you did.  Also very important is deterrence to others and to you as well; that is, to deter you from this serious offending of drug trafficking.  I must also do what I can, as I have said, to facilitate your rehabilitation.  And that is as much for the community, or in the community's interest, as it is in your interest.  The community is much the better off if you are no longer engaged in drug trafficking.

18Your counsel urged that I impose a combined community corrections order and a gaol sentence, but limit the gaol component to the 102 days you have served thus far.  I had you assessed, and you were found suitable for a community corrections order with a recommendation that you do unpaid work and drug treatment as well as being under supervision for the duration of the order.

19I have given this matter anxious consideration.  There are significant matters in mitigation, and your plea of guilty is of real value.  It must be acknowledged - that is, your plea of guilty - by a lesser sentence and one that, in my view, allows for a different type of penalty than would have been the case had you pleaded not guilty and been found guilty of these offences after a trial.

20As mentioned, you are at a point where your reform can be consolidated such that you are likely to move away from drugs, drug use, and offending permanently.  Of course, if you relapse and offend, you will leave the courts with no option but lengthy gaol terms.  But there are, in my view, still some options to promote your rehabilitation, and I am persuaded to take that option by imposing an onerous community corrections order together with a gaol term limited to the time that you have already served.

21Mr Nguyen, I intend to impose an aggregate sentence for the two offences.

22For trafficking in a drug of dependence, namely amphetamines, not less than the commercial quantity, and for trafficking in the drug of dependence, heroin, you are sentenced to be imprisoned for 102 days.  That sentence is to be combined with a three-year community corrections order.

23What you must do as program conditions for that community corrections order are 300 hours of unpaid community work, and you must undergo assessment and treatment for drug use.  All the hours that you do in drug treatment and the like can be counted, pursuant to the provisions of s.48, for your unpaid work.  You must also be under the supervision of a community corrections officer throughout the whole time of the community corrections order. 

24You have already served 102 days on remand in prison.  That figure of 102 days having been reckoned, I declare that you have already served 102 days of the sentence that I have just imposed.  I will ensure that that declaration is entered into the records of the court so that the prison authorities are left in no doubt you have served the entirety of your prison sentence that I have imposed today.

25Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years and six months with a minimum term of two years.

26There are other orders, are there, Mr ‑ ‑ ‑

27MR SINGH:  There should be a disposal order.

28HIS HONOUR:  Yes.  There is a disposal order here, Mr Nguyen.  It sets out a whole schedule of a whole range of drug paraphernalia.  I intend to sign the order so that drug paraphernalia can be disposed of.

29COUNSEL:  As Your Honour pleases.

30HIS HONOUR:  Is there anything else required?

31COUNSEL:  No, Your Honour. 

32HIS HONOUR:  Thank you.  Mr Nguyen, there will be a document produced shortly.  You will be required to consider that, and if you consent, sign to it.  It will be the terms and conditions of the community corrections order.  Take a seat.  In fact, leave the dock and come and sit behind Mr Pearson you can sign it up there.

33So the conditions here, Mr Nguyen, are - what I will commence with are the conditions that apply to everyone who is on a community corrections order.  They should be reasonably familiar to you.  You must not commit another offence for which you could be imprisoned during the time this order is in force.

34Now, that needs to be emphasised - any offence that is punishable by imprisonment, which would include drug possession, then you would breach this order and come back to me and I would have no other option.  Now, that is during the whole time that this order is in force.  That is, from today, 3 September 2018, till 2 September 2021.  It is a lengthy order.

35You must comply with any obligations or requirements under the regulations that attach to the Sentencing Act.  They will need photographs and other identification of you.  Just cooperate with that.

36You need to report to and receive visits from the Office of Corrections.  You must report to the community corrections centre - that is the one in Werribee - within two clear working days of this order starting.  So get there today or tomorrow.

37You must let the community corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria without getting permission to do so, and you must obey all lawful instructions and directions from the Office of Corrections.

38So the last of those are all about just cooperating with the Office of Corrections and informing them of any changes or the like within your life.  Do you understand?

39OFFENDER:  Yes, Your Honour. 

40HIS HONOUR:  Thank you.  The conditions that apply to you, specifically, are these:  you must perform 300 hours of unpaid community work over the three-years.  That is onerous, but it is not optional.  It is not voluntary.  If you do not do each and every hour, then you will come back before me and a different penalty will be imposed.

41OFFENDER:  Yes, Your Honour. 

42HIS HONOUR:  You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager, and you must be under the supervision of a community corrections order for three years.

43All hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of unpaid community work conditions.  So you have been given a benefit that when you go to do your drug treatment, that they will take - deduct from the hours.  That is because I want you to do it, and again, not voluntary.  It is a matter that you - if you are required to go to an appointment or go for ongoing counselling, you must.

44Heroin addiction is not easy.  I might say something slightly different to those addicted through methamphetamines, not because I am an expert in pharmacology or medicine or the like, but just my own experience is over the years that it takes a lot to put heroin addiction behind you.

45And you must do it.  Otherwise, you will be back before me.  You will to gaol.  You will do lots of gaol time before, ultimately, you die too early because of the effects of the drugs.  It is as simple as that.  You seem to have a bit to offer, so make sure you take this opportunity.  Sign that.

46MR PEARSON:  Thank you, Your Honour. 

(At this stage the court proceeded with another matter.)

47HIS HONOUR:  There is that document, signed by me.  If there is nothing further, I thank counsel for their considerable assistance in this matter.

48COUNSEL:  Thank you, Your Honour. 

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