Director of Public Prosecutions v Nguyen

[2018] VCC 665

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01495

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIET ANH NGUYEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	2 May 2018
DATE OF SENTENCE:	10 May 2018
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2018] VCC 665

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Pleas of guilty -  Prohibited person possess firearm – Prohibited person possess silencer – Possess equipment to manufacture drug of dependence – Traffick heroin – Possess drug of dependence – Possess ammunition without exemption/approval – Offending on one day

Sentence:Convicted and sentenced to Total Effective Sentence 3 years and 6 months’ imprisonment with non-parole period of 26 months’ imprisonment – Pre-sentence detention of 250 days declared – s.6AAA Sentencing Act 1991 declaration – Ancillary order Disposal order

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms T. Saville	Solicitor for Public Prosecutions
For the Accused	Ms P. Smith (Plea) Mr M. Green (Sentence)	Emma Turnbull Lawyers

HER HONOUR:

1Viet Anh Nguyen, you have pleaded guilty to the following offences, which have the following maximum terms of imprisonment:

a.  Prohibited person possessing a firearm, which has a maximum      penalty of ten years; 

b.  Prohibited person possessing a silencer, which has a maximum    penalty of eight years;

c.  Possessing equipment to manufacture a drug of dependence,       which has a maximum penalty of ten years; 

d.  Trafficking heroin, which has a maximum penalty of fifteen years;   

e.  Two charges of possession of a drug of dependence.  Each charge has    a maximum penalty of five years; and

f.   You have pleaded guilty to the summary offence of possessing      ammunition without an exemption or approval, which has a maximum        penalty of 40 penalty units. 

2The maximum penalties reflect the seriousness with which Parliament regards these offences, and in sentencing you, I must take the relevant maximum penalties into account.

3Your offending was opened by the Prosecution as follows:

4On 8 September 2015, a storage unit was rented by you at Kennards Storage in Abbotsford under the name of Nam Nguyen, with a particular address in Batehaven, New South Wales.  A New South Wales driver’s licence in the name of Viet Nam Nguyen, was provided to rent the unit.  These details actually belonged to your brother.

5You enquired about renting a larger unit and on 8 February 2016, a new agreement was signed for a different storage unit at Kennards Storage.  Again, this agreement was entered using your brother’s details.  An alternate address in Fitzroy was also provided and an email address namely, [email protected] was also provided.  Two false alternative contacts were provided as well. 

6In December 2016, the storage unit was over-locked with a Kennards' lock due to payments not being received.  On 13 January 2017, a Notice of Disposal letter was sent to the address provided by you. 

7On 9 March 2017, Kennards cut the lock off and opened the storage unit for the purposes of determining if any of the contents could be sold, in order to recover their outstanding costs.  Located inside the front of the unit was a black case which contained a modified firearm.  Whilst at the storage unit, police also found a homemade silencer for a firearm.  The items that were located that I have just referred to gives rise to Charge 1 - prohibited person possessing a firearm and Charge 2, prohibited person possessing a silencer.

8Police returned to Kennards later in the day to execute a search warrant.  While at the storage unit, police observed a male walking from a black Nissan with a particular registration into Kennards. This car was being driven by an Asian male and there was a third male in the rear passenger seat.  The vehicle drove back out onto Hoddle Street and east into Tudor Street, Abbotsford.

9The male who entered Kennards was identified as a Sam Wilson (“Wilson”). Wilson attempted to pay the outstanding debt owed on the storage unit.  Wilson told police that he was paying the outstanding fees for a Nam Nguyen and was close friends with Nam’s younger brother, Viet Nguyen, who also lived in New South Wales.

10Police attended Tudor Street to see if the vehicle was still there and found you in the driver's seat of the car.  You were then arrested.  You were taken to the Richmond Police Station for the purposes of a record of interview.  Police conducted a search of your personal belongings and found your brother’s drivers licence, which had been used to hire the storage units.

11Police conducted a further search of the storage unit and found the following items.

12Thirty-four clandestine laboratory items, consisting of various types of scientific glassware, chemicals and other items used to assist in the manufacture of Methylamphetamine giving rise to (Charge 3 - possessing equipment for the purpose of trafficking a drug of dependence).

13Secondly they found a plastic container containing cannabis giving rise to (Charge 5 - possessing cannabis).

14Thirdly a plastic bag containing white powder which ultimately gave rise to (Charge 4 - trafficking heroin).

15Fourthly, a resealable plastic bag containing a white crystal substance giving rise to (Charge 6 - possessing methylamphetamine).

16Hard plastic container containing two Vietnamese bank notes, ANZ access card and personal organiser in the name of Hien Huynh who is your partner and further, they found assorted ammunition which gave rise to (Summary Charge 11 - possessing ammunition without exemption or approval).

17On 9 March 2017, police attended your home address in Elizabeth Street, Richmond, and executed a search warrant.  Upon conducting a search of the premises, further clandestine laboratory items were located.  On 10 March 2017, police re-attended the address to conclude the search.  They found the following items.

18Sixty clandestine laboratory items consisting of various types of scientific glassware, chemicals and other items used to assist in the manufacture of Methylamphetamine, also giving rise to (Charge 3 - possess equipment for the purpose of trafficking a drug of dependence).  Secondly, a black and silver key was found in the master bedroom which opened the lock which was initially placed on the storage unit. 

19Police enquiries revealed that you had purchased the glassware, powders, chemicals, firearm parts, accessories over the past four years on eBay.  When the learned prosecutor was asked about this, she indicated that the last of such items had been purchased in early 2017.  I was told that the police had created a spreadsheet with the dates of each of these purchases.  Unfortunately, the spreadsheet had not formed part of the depositions, so it was not until the day of the plea hearing that defence counsel learned of its existence.  I understand that she was shown this document during the running of the plea hearing.  I was told that you were registered with the email address 4evervietnam that was previously referred to.  When interviewed by police, you made a “No comment” record of interview.

20Mr Nguyen, your offending is most serious and calls for a punishment which is just in all of the circumstances, and your conduct must be denounced.  There is nothing which reduces your moral culpability in respect of this offending, and I find that your moral culpability is quite high.  This is especially so, in view of your relevant criminal history, which I will come to in a moment.  The quantity of drug making equipment was substantial and there was evidence that at least some of it had been used at some stage, as I was told a very small quantity,  .5 of a gram of an illicit substance had been found to have been successfully manufactured.

21Your counsel, who gave an excellent plea on your behalf, told me that you had bought the various pieces of equipment through eBay, and that it had been your plan to use the items the police had found for criminal activity.  However, your ‘grand plan’ never eventuated as you had envisaged, and you fell into arrears with the storage unit.  In sentencing you in relation to this offence, I accept that the equipment was not actually set up as a clandestine laboratory and was second hand.  I also accept that items in the storage unit were piled up and that the various incriminating items were found amongst an entire jumble of items being stored there.  

22Also, I must sentence you in respect of all of the offending, on the basis that you offended on one day only, which is how the charges have been framed by the prosecution.  

23I am very concerned about you having a firearm and a silencer, which had been stored at the storage unit, and that you were also were found to be in possession of ammunition.  However, I accept that the silencer did not fit the gun and nor did the ammunition.  At least there was no evidence that the Crown pointed to, which suggested that it did.  I also accept that the gun was not loaded and was not modified by you.  I was told that while these items were intended to be used for criminal activity, they had not been used by you for this purpose - that in the context of your drug addiction and consequent chaotic lifestyle, you lacked the capacity to go through with your grand plan, which was reflected in the fact that you were not able to keep up with the storage unit payments and that there was no evidence that you had accessed the unit for some time. 

24I am also concerned that you have engaged in trafficking heroin.  I was told that you did so in order to feed your own habit, which has been the pattern of behaviour that you have exhibited in the past, as seen in your criminal history. While that might be so, it does not excuse your behaviour.  It is just that your moral culpability would have been even higher if you did not use the drug.

25It has been repeatedly said by the courts in this state that illicit drugs are a scourge on our society.  They tear families apart.  They are a breeding ground for all sorts of crime and a great deal of heartbreak and misery.  You have a number of children, Mr Nguyen, who I am sure you would not want going near illicit substances, and yet, you have been content to peddle these to other people’s children.  Further, it appears that you had some rather ambitious plans to manufacture drugs.  It seems to me that you have little in the way of a conscience, at least this has been the case whilst you have been addicted to heroin.  Strong weight must attach to general deterrence in a bid to deter others who are tempted to behave as you have.

26I take into account your criminal history.  You have ten prior convictions for trafficking heroin, dating from 1997 to 2011, as well as a number of prior convictions for illicit drug possession, and dealing with proceeds of crime, as well as some dishonesty and driving matters.  You have one prior conviction for possessing a prohibited weapon without exemption or approval.  You have received the benefit of suspended sentences and an intensive corrections order.  You breached one of the suspended sentences imposed by further offending.  Your criminal history does reflect your substance abuse issues, but also a preparedness to traffic drugs.  

27I have factored in that there has been a gap of over six years between your last court appearance and matters which were dealt with in August 2017, at the Melbourne Magistrates Court.  These offences, which comprise possession of heroin and of methamphetamine, as well as dealing with proceeds suspected to be proceeds of crime, and stating a false name, were committed prior to those for which I now sentence you.  I was told that you were able to remain crime free for such a significant period as you had returned to your family in Bateman’s Bay and this had had a positive effect upon you.  That may be so, but the fact of the matter is that you have committed serious offences once again, which is relevant to my assessment, of your prospects of rehabilitation and the weight I ought give to specific deterrence and protection of the community.

28In your favour, you pleaded guilty at an early stage which entitles you to a significant discount in the sentence that you would otherwise receive.  That is because you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings.  While I accept that your pleas of guilty reflect a preparedness by you to take responsibility for your actions, and that you regret that you are now in custody, I am not convinced that you have much in the way of genuine remorse or insight in respect of your offending.

29You have been addicted to heroin for many years now, moving onto methamphetamine in more recent years.  However, I was told that since being remanded for these offences, you have managed to detoxify, which was verified by four clear urine screens, those being tendered at the plea hearing.

30I take into account your background.  You are 40 years old, you were born in Saigon, Vietnam.  You migrated to Australia in 1991 with your mother and siblings, following your father here.  Your parents were in search of better opportunities here.  You were contented here during your teenage years.  You completed your education to Year 10.  When you were 16, your family moved to Sydney, and you worked in a bakery owned by members of your extended family.

31When you were 18, you moved back to Melbourne with your girlfriend and your life became aimless.  You commenced using drugs at this time and quickly became addicted to heroin.  Between 1998 to 2004, you managed to abstain from drugs in the context of moving back with your family, who ran their own bakery in a coastal town in New South Wales.  However, your efforts to rehabilitate yourself were dashed when you returned to Melbourne in 2004 and you reverted to drug abuse and criminal offending once more.

32In 2012, you met with your now ex-partner, moving into her flat in Elizabeth Street, Richmond.  She had four children living with her and you became their stepfather.  You and your ex-partner went on to have three children of your own, who are now four, two and ten months.  Unfortunately, you were in custody at the time that your youngest was born.

33After you were remanded, your ex-partner met another man and is now cohabiting with him.  This has caused you a good deal of sadness, but you and your ex-partner are on good terms.  I was told that you speak with your children regularly and that you feel a good deal of guilt for the position you have put your family in.  In sentencing you, I have factored in that time in gaol has and will be harder for you, because of your concern for your family.  Having said this, I was told that you intend to go back to your parents’ bakery in Bateman’s Bay after you are released from gaol.  I was told that there have been no negative incidents involving you whilst you have been in prison, and that you have completed an anger management course which was the only program you were able to get into, rather than anger being an issue for you.

34In view of your offending on the occasion before me, your criminal history and your history of drug abuse, I find that your prospects of rehabilitation are guarded.  I must place fairly substantial weight on specific deterrence and protection of the community.  You have been in gaol since your arrest on
9 March 2017.  In August last year, you were sentenced to an aggregate term of six months’ imprisonment, in respect of the offences to which I previously referred.  In sentencing you, I have taken into account the entire period that you have been in gaol on this occasion, over and above the pre-sentence detention aspect.   I have applied the principle of totality in sentencing you, bearing in mind the period that you have been in gaol already and the fact that your offending is all said to have occurred on the one day.

35Your counsel provided me with a number of cases in order to assist me with current sentencing practice which is one of the matters that I must consider, although, it is not a controlling factor.  I have had regard to those cases insofar as they are of assistance in determining current sentencing practice in relation to offending such as yours.  However, they are of limited utility, as there are a number of substantive variables in respect of each of these cases when one considers your case.

36Your counsel most properly conceded that the only appropriate sentence was one of imprisonment with a non-parole period.  The prosecution was of the same view.  Your counsel submitted that any term of imprisonment ought be moderated in view of the matters in mitigation in your case.  I have done what I can to reflect this submission in the sentence that I have imposed, whilst also having to do justice to all relevant sentencing considerations.  

37You are convicted of each of the offences.  I make a disposal order in accordance with the document provided to me by the prosecution.  Such order is not opposed by you.  You are sentenced to the following periods of imprisonment:

·Charge 1, two years’ imprisonment; 

·Charge 2, eighteen months’ imprisonment;

·Charge 3, two years and six months’ imprisonment.  This will be the base sentence. 

·Charge 4, two years and three months’ imprisonment. 

·Charge 5, three months’ imprisonment. 

·Charge 6, six months’ imprisonment; and 

·In relation to the summary offence, you are fined $500.

38I direct that three months of the sentences from Charges 1 and 2 and six months from the sentence on Charge 4, be served cumulatively with each other and with the base sentence, producing a total effective sentence of three years and six months’ imprisonment.  I direct that you serve twenty-six months’ imprisonment before becoming eligible for parole.  I declare that you have already served 250 days by way of pre-sentence detention, which will be deducted from the sentence that I have imposed.  If not for your pleas of guilty, I would have convicted and sentenced you to a total effective sentence of four years and ten months’ imprisonment, with a non-parole period of three years and six months’ imprisonment.  That is in relation to the matters on the indictment.

39Take a seat for a moment please.  Is there anything arising counsel?

40MS GREEN:  No, Your Honour.

41HER HONOUR:  All right.  Now before I have Mr Nguyen removed, is there any request for his family or for counsel to have a word with him?

42MS GREEN:  No, Your Honour, I'll go and see him in the cells.

43HER HONOUR:  All right.  Yes, thank you.  Yes, thank you Madam Interpreter.  If Mr Nguyen could be removed please. 

44MS SAVILLE:  As Your Honour pleases.

45MS GREEN:  As Your Honour pleases.

46HER HONOUR:  Yes, thank you.  We'll now adjourn.

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