Director of Public Prosecutions v Nguyen

[2018] VCC 1255

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00703

DIRECTOR OF PUBLIC PROSECUTIONS

v

VU NGUYEN

---

JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 August 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 1255

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Accused	Mr D. Grace QC

HIS HONOUR: 

1Vu Hai Nguyen, you are to be sentenced for one charge of trafficking in the drug of dependence, methylamphetamine, in a commercial quantity and one charge of possession of the drug of dependence, cocaine.  Relevant maximum sentences are 25 years and 12 months' imprisonment. 

2You pleaded guilty before me on 2 August 2018. When arrested and interviewed by police on 20 July 2017, you exercised your right to silence. You were also charged with dealing with proceeds of crime under s.194 of the Crimes Act.  This related to cash moneys found and seized during the police raid of the same day.    On 5 April 2018 there was a contested committal on that charge.  You were discharged. You entered pleas of guilty to these two charges before me. 
You had indicated an intention to do so on 2 February when the committal hearing was adjourned. A less serious form of the charge dealing with proceeds of crime, under s.195 of the Crimes Act, has been remitted to the Magistrates' Court for a contested summary hearing. 

3You receive the benefit for your early plea of guilty and the level of cooperation that short history of the proceeding shows.  You have facilitated the interests of justice.  I accept that you are remorseful. 

4At your plea hearing, which ran on 2 August, Mr Pickering for the Crown tendered a written Crown opening and a series of photographs depicting the drugs found in the 20 July 2017 police raid.  Mr Grace QC for you tendered certificates related to educational and rehabilitative programs you have undertaken in remand custody;  the letter or reports of drug counsellors Paul Watkin of Arrow Health, dated
10 October 2017, and Amanda Brown of Lamberti and Associates, dated
23 October 2017; a copy of the community corrections order to which you were sentenced in September 2015 with also a summary of the offending relevant to that; and two letters of character reference by your former partner, Sandy Tran, and friend, Lin Du Vu Duong.  Ms Tran and your sister attended court in support of you. 

5Mr Grace provided the Sentencing Advisory Council sentencing snapshot for trafficking in a commercial quantity of drugs related to the years 2010 to 2015.

6The circumstances of your offending are comprehensively stated in the tendered Crown opening which is Exhibit A.  My own summary may be short.

7On 20 July 2017, police raided a premises in Maribyrnong.  You were in an upstairs rooms in possession of a package of methylamphetamine.  There was also an ice pipe.  I accept that at this time you were a daily user of the drug and had just before done so.  This is supported by the depositional material and not challenged.

8A search of the house revealed other packages of methylamphetamine and a small quantity of cocaine.  The total quantities of drug were 335.5 grams of methylamphetamine at 78 to 82 percent purity (accordingly, 273 grams of the pure drug) and 0.9 grams of cocaine.  The legislative threshold for a commercial quantity of methylamphetamine is 100 grams.  The threshold for a large commercial quantity is 750 grams.

9I find that your possession of cocaine was not for purposes related to trafficking.  You are sentenced on that basis.

10Police also found in the house large quantities of cash.  As I have said, these are the subject of a contested hearing at the Magistrates' Court.  They are not relevant to this sentence nor, it is conceded, are mobile phones found at the premises. 

11Charge 1 on this indictment, the trafficking charge, alleges the single date of
20 July 2017.  You are to be sentenced on the basis that on that date, the date of the raid, you were in possession of methylamphetamine in the stated quantity for the purpose of sale; that is, its movement on in the commercial chain

12You are aged 30 years and await this sentence in remand custody. 
Your parents are Vietnamese and came here as refugees in the early 1980s.  You have two sisters, aged 23 and 33 years.  No other members of your family have been in trouble with the criminal law. 

13You present as an intelligent and capable man, one who has benefitted from a supportive early family life and show promise of much better than what has become for you.  You completed Year 12 at a Catholic College in the north-west of Melbourne; although you were bullied at school because of your race.  You were employed at Telstra and the Commonwealth Bank.   You then worked in the finance and mortgage broking industry, obtaining qualifications in that. 

14Your life and prospects and rehabilitation have been damaged by drug use.  It is a common story.    You began using cannabis in your early teenage years. After that there was ecstasy and, in your 20s, you began using methylamphetamine consistently.  You became a daily user and despite attempts at rehabilitation, periods of remission and what appears the trenchant support of your ex-partner and family, you present now as a man whose drug dependence threatens to ruin his life.  At the time of the offending, you were using very heavily and expressed to police relief at your arrest. 

15Your criminal record, to some extent reflects that personal history.  There is one prior court appearance in September 2015.  You were sentenced to a community corrections order for offences including cultivation of cannabis. 
The order contained typical conditions related to drug rehabilitation. 

16The tendered summary of that offending and Mr Grace's submissions on your behalf include that the cannabis crop was grown at premises owned by you.  You stated to police that you were renting it to another.  You had been able to purchase the property in your early 20s.  You lost your employment as a mortgage and finance broker and have not been employed since.  You have also lost your relationship with Ms Tran.  However, she and your family remain strongly supportive of you. 

17Because of your failure to reform from drug use, you did not comply with the community corrections order.  This offending was committed during the period of it.  You will face a breach proceedings and likely re-sentence on the 2015 matters.  It is ironic that, in the month prior to the offending before me, you were attending a private drug counsellor.  Your family was also prepared to support you in private drug rehabilitation services after your arrest.  You were not granted bail to attend that. 

18In remand custody, you have engaged in rehabilitation and educational programs.  I accept that you have been drug free.  Mr Grace stated that you mentor other younger prisoners who have drug dependence.

19Self-evidently, drug trafficking is a serious offence.  To do so in a commercial quantity attracts a high maximum sentence of 25 years' imprisonment. 
Mr Grace described your offence as mid-level.  Drug trade causes great damage to our community.  Although it explains your offending, that you were also damaged by addiction offers little or no mitigation of its criminality.   You have a relevant prior conviction and committed this offence whilst on a community corrections order for that prior offending.  Such circumstances make relevant the sentencing considerations and purposes of deterrence, both general and specific, your moral culpability, the need to condemn the offending and proportionately punish it.  General deterrence is a particularly important sentencing purpose.  There must be imprisonment of some significant period. 

20There are moderating factors which should also affect the length of that. 
They include the following.

21(1)  Your plea of guilty.  I accept that you feel remorse and, particularly, regret and shame in respect of your family and ex-partner.

22(2)   Your personal background and circumstances.  As I have said, your drug addiction does not mitigate the offending.  However, your early use of drugs and development into addiction is a relevant part of the personal explanation and context for it.

23(3)    You are capable of rehabilitation.  Prospects for that must realistically be guarded.  However, I do not discount them.  You are a person of ability.  You have good family and other support.  The character evidence, especially that of Ms Tran highlights good qualities.   As presently viewed, you will leave prison drug free.  Your capacity to remain so, bearing in mind your past failures despite assistance, will be critical. 
At 30, you are still relatively young.  A failure at parole on this sentence will,
I suspect, leave you very vulnerable to a ruined life. 

24These moderating factors apply to both your head sentence and perhaps, particularly, your minimum term.  My sentence will give you the opportunity of a comparatively long parole.  Of course, that in itself has dangers if you fail to desist from drugs.  In my view, your propensity to drug dependence will make re-entry into the community an important challenge.

25I have been referred to sentencing statistics and also appellate court authority dealing with the relevance of current sentencing practices,  including the adequacy of those in respect of this category of offending.  The cases were, in the Victorian Court of Appeal, Gregory v R and Fernando v R.  There was also reference to the High Court judgment of Dalgliesh.

26I seek to sentence you, taking into account the sentencing practices or statistics to which I was directed.  Mr Grace conceded the disadvantage of their age. 
I also bear in mind the need to sentence individual to your case and all of the matters and considerations relevant to it. 

27Stand up please, Mr Nguyen.  I sentence you as follows. 

28On one charge of trafficking in a drug of dependence in a commercial quantity, you are sentenced to five years' imprisonment. 

29For one charge of possession of a drug of dependence, you are sentenced to three months' imprisonment.  That is a total effective sentence of five years. 
I set a minimum term before eligibility for parole of two years and eight months.

30I declare under s.18 pre-sentence detention.  Did you say 382 days?

31MR PICKERING:  Eighty seven, Your Honour.

32HIS HONOUR:  Three hundred and eighty seven days, which will be in essence deducted from your minimum term.  All right.  Now I noted in my notes an inaccuracy between what I intended and perhaps to what I said.  Did I quote correctly?  Five years on Charge 1?

33MR PICKERING:  Yes.

34HIS HONOUR:  Three months on Charge 2.

35MR PICKERING:  Yes.

36HIS HONOUR:  Total effective sentence of five years, minimum term of two years and eight months.

37MR PICKERING:  Yes, that is right.

38HIS HONOUR:  Is that what I said?

39MR PICKERING:  So I am taking the three months, Your Honour, is concurrent with the five?

40HIS HONOUR:  Well, that is still the case.  I have said nothing so ‑ ‑ ‑

41MR PICKERING:  Yes, Your Honour.

42HIS HONOUR:  That is right, yes.  What else is there that I need to do?

43MR PICKERING:  I was going to say, Your Honour, there is a disposal order which has been filed.  My learned friend has raised an issue about one item which is a computer which is ‑ ‑ ‑

44MR GRACE:  I think there is two.  Two computers?

45MR PICKERING:  Two computers, which he understood were not going to be included in the disposal order.  I do not have an instructor here today, Your Honour.  Would it be convenient if I clarify that and then that can be forwarded to your associate?

46HIS HONOUR:  I find it hard to see how a computer would be relevant to this sort of charge.

47MR PICKERING:  I thought the same thing, Your Honour, but I should check given the absence of my instructor but she can contact your associate.

48HIS HONOUR:  Yes, I am presuming it is deletion.  It is sent to me, I will sign it.

49MR PICKERING:  Yes, Your Honour.

50HIS HONOUR:  That is all right with you?

51MR GRACE:  Yes, that is right.

52HIS HONOUR:  Yes, all right.  Nothing else to say or do?

53MR PICKERING:  No, Your Honour. 

54HIS HONOUR:  All right.  Two people have come to support you.  They may briefly speak to you before you are taken into custody.  Mr Grace, I think when this happens, the protocol is that I remain.  I would be obliged if you could, in some way supervise it.  It will have to be short.

55MR GRACE:  Yes, thank you, Your Honour.  Thank you.

56HIS HONOUR:  Mr Nguyen will have to be taken into custody now?  Thank you.  You are excused if you have another matter.  I was just going to ask - are you members of the media?

57VOICE (from the body of the court):  Ah, no, Your Honour, the (indistinct) ‑ ‑ ‑

58HIS HONOUR:  No, I am sorry, yes.  I just become troubled as to this media portal business.  Is it supposed to be for every case or is it - does it?  Only when they request it?  Sometimes it gets requested at 12 o'clock which is a bit later.  Yes, I have got appeals at 10 o'clock, I think, have I not?  But if they are ready earlier, I will hear them

‑ ‑ ‑