Director of Public Prosecutions v Nguyen

[2018] VCC 482

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 16-00738

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHA NGUYEN

---

JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATEOF HEARING:	6 April 2018
DATEOF SENTENCE:	16 April 2018
CASE MAY BE CITEDAS:	DPP v Nguyen
MEDIUMNEUTRAL CITATION:	[2018] VCC 482

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

REASONS FOR SENTENCE

---

---

APPEARANCES:  Counsel  Solicitors

For the Office of Public Prosecutions

Ms D. Tang  Office of Public Prosecutions

For the Accused  Mr J. Valos  Valos Black & Associates

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone [phone]

HIS HONOUR:

1Kha Nguyen, you have been found guilty by a jury of your peers of three charges of trafficking in a drug of dependence, large commercial quantity (Charges 1, 2 and 3) and one charge of trafficking in a drug of dependence, (Charge 4). You pleaded not guilty to Charges 1, 2, 3 and 4 and conducted a trial, which is your right. Whilst you are not to be punished in any way for doing so, equally you cannot expect the benefit that would attach to a plea of guilty, or any indication of remorse that such a plea may have demonstrated. You have pleaded guilty to Charge 5, trafficking in a drug of dependence, large commercial quantity. Charges 6, and 7, trafficking in a drug of dependence. Charge 8, possession of substance material documents or equipment for trafficking in a drug of dependence. Charge 9, possessing an unregistered general category handgun and Summary Charge 11, possess cartridge ammunition.

2These offences carry the following maximum penalties.

"Trafficking in a drug of dependence, large commercial quantity, Charges 1, 2, 3 and 5, life imprisonment and 5,000 penalty units. Trafficking in a drug of dependence, Charges 4, 6, and 7, fifteen years imprisonment and/or 1800 penalty units. Possess substance equipment for trafficking, possess substance material documents or equipment for trafficking in a drug of dependence, Charge 8, ten years imprisonment and/or 1200 penalty units. Possessing an unregistered general category handgun, Charge 9, 600 penalty units or seven years imprisonment, (first offence). Possess cartridge ammunition, Summary Charge 11, 40 penalty units".

3The general circumstances surrounding these offences are as follows. During the period of this offending from 1 January 2015 to 8 September 2015 you resided in an apartment 2211/80 Clarendon Street, Southbank. You came to the attention of police when you were speaking in phone conversations which were the subject of lawful telephone intercepts. Police executed a search warrant at your premises on 8 September 2015. The search of your apartment revealed a sophisticated and well organised manufacturing process used for the large scale distribution of drugs of dependence, particularly heroin and methylamphetamine.

4Leading Detective Senior Constable Grant Farley gave evidence (Transcript 118/119), that during the execution of that search warrant you were found in possession of the following.

1.   A large commercial quantity of methylamphetamine (1.212 kilograms, Charge 5).

2.   A quantity of heroin, (113.2 grams, Charge 6).

3.   A quantity of ecstasy, (139.4 grams, Charge 7).

5The drugs were prepared and ready for distribution. They were located in the kitchen, bedroom and study of the apartment. The police seized many items from your apartment, including an hydraulic heroin press and assorted dyes, multiple dishes, packages, snap lock "Deal" bags and packaged envelopes with handwritten notes containing drug terms used to describe the type of heroin. The police seized assorted drug paraphernalia used for the manufacturing and distribution of drugs of dependence, (Charge 8). The police also seized a shortened rifle, silencer and ammunition, (Charge 9 and Summary Charge 11).

6You pleaded guilty to the charges relating to the drugs and associated items found and seized during the execution of the search warrant on 8 September 2015, save and except for charges based on diaries and notebooks seized by police. The police searched the red Ferrari Coupe you had been hiring and from that motor vehicle they seized approximately $22,000 cash, phones, SIM cards, equipment used in conjunction with the heroin press, a passport and a black diary containing various documents and handwritten notes in Vietnamese and English.

7The personal diaries seized from your apartment and motor vehicle were the basis of Charges 1 to 4, the charges to which you pleaded not guilty and upon which a jury of your peers found you guilty. These diaries and notebooks were examined and translated by a Vietnamese translator and interpreter and they were analysed by Victoria Police. It was the prosecution case that these diaries were in effect your business ledgers in which you recorded your distribution of

large quantities of drugs in various forms and quantities to many associates.

8The prosecution alleged that the diaries and notebooks contained coded references to various  drugs and quantities of drugs. These codes were deciphered and interpreted by the Victoria Police officers with expertise in the investigation of large scale drug offences. It was the prosecution case, based upon the analysis and the interpretation of these diaries and notebooks, that you were trafficking in a large commercial quantity of heroin, (Charge 1, 20.1689 kilograms), a large commercial quantity of cocaine, (Charge 2, 2.196 kilograms), a large commercial quantity of methylamphetamine, (Charge 3,

1.472 kilograms) and trafficking in ecstasy, (Charge 4, 900 tablets).

9It was alleged by the prosecution that during the relevant period, you had received approximately $6m for drugs and paid approximately $4.4m for drugs. You gave evidence upon your trial. You denied any involvement in drug trafficking prior to 8 September 2015. You stated that it was your handwriting in the numerous diaries and notebooks found in your apartment and motor vehicle. You stated that you had completed the entries in these diaries and notebooks at the request of a Vietnamese man. He had provided information on various pages and had asked you to write that information into the diaries and notebooks. You had done this for him on about ten occasions. As a result of performing this service for him he had foregone a $5,000 debt you owed him.

10It is clear from the jury's verdict that the jury rejected your evidence. It was submitted on your behalf that although you were to be sentenced on Charges 1, 2 and 3, for trafficking in a large commercial quantity of a drug of dependence, in respect of each charge of trafficking in a large commercial quantity, I could not be satisfied the quantity of the drug of dependence was anything other than at least 1 kilogram. In particular, I could not find trafficking in approximately 20 kilograms of heroin.

11It was submitted on your behalf that I ought be very cautious in arriving at any

conclusion on the actual quantity of heroin, cocaine and methylamphetamine sold, given that the only evidence of trafficking was based upon the diaries and notebooks and the police witnesses' interpretation of these diaries and notebooks. In these circumstances it was submitted that I could not be satisfied beyond reasonable doubt of anything other than that you had trafficked in at least 1 kilogram of heroin, cocaine and methylamphetamine. It was submitted on behalf of the prosecution that I could be satisfied beyond reasonable doubt that you had trafficked in the quantities of these drugs as described in the evidence elicited by the prosecution. I have carefully reviewed the evidence of the prosecution witnesses. Phu Ngugen was the Vietnamese translator and interpreter. He translated the notebooks and diaries and gave evidence of his interpretation of various words and phrases.

12The principal prosecution witness was Detective Senior Constable Damian Dean. He was in the Clandestine Laboratory Squad and he was involved in the investigation of large scale drug trafficking and manufacturing in Melbourne. Dean was responsible for analysing the contents of the diaries and notebooks seized from your apartment and motor vehicle. He said that in his opinion each book contained a ledger of drug transactions. Dean prepared a spreadsheet of these drug transactions, based upon the entries in the notebooks and diaries (Exhibit 6).

13The spreadsheet recorded drugs coming into and going out of your possession and money received and outgoing. In his evidence in chief Dean was taken through the entries in the spreadsheet. During the course of his evidence he explained to the jury the various codes and terms used to describe particular drugs and quantities. I found Dean to have been a very straight forward and reliable witness. His evidence demonstrated a careful and conservative approach to the analysis of the seized notebooks and diaries. On numerous occasions he accorded any benefit of the doubt to you when confronted with uncertainty or possible ambiguity in respect of a handwritten entry.  I found his

analysis of these diaries and notebooks to have been internally consistent and logical having regard to the various meanings ascribed to coded words in respect of drugs, weights and prices.

14Dean was, in my opinion, an experienced and competent police officer in respect of the investigation of large scale drug offending. I found his analysis of the raw material in the notebooks and diaries to have been thorough and accurate. I am satisfied beyond reasonable doubt that the amounts of the various drugs you trafficked was as described by Dean. I accept his evidence on the number and nature of the individual transactions set out in the spreadsheet, (Exhibit 6), and the overall total amounts trafficked, which was recorded on what was exhibited as the last page of the ledger, (Exhibit 6).

"Heroin, 20168.9 grams.  Ice - methamphet, 1472 grams.  Cocaine, 2196 grams.  Ecstasy, 900 tablets".

15Detective Senior Constable Tim Norris also gave evidence on the codes used.

He has extensive experience in the investigation of drug related offending. The drug terminology was described in a document entitled "Drug Terms Chart", (Exhibit 7). Norris also gave evidence of the usual prices or values of various weights of particular drugs. His evidence was, in my opinion, substantially consistent with the evidence of Dean.

16I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty to Charges 5, 6, 7, 8 and 9 and Summary Charge 11. You are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial in respect of these charges. Witnesses have been spared the ordeal of giving evidence upon your trial.

17You did cooperate with police during the search of your apartment. You admitted possession of the drugs, equipment and weapon found in your apartment. A summary of the detailed admissions you made on 8 September 2015  is  contained  in  paragraph  16  to  18  of  the  amended  summary  of

prosecution opening.

18I accept that your plea of guilty is some evidence of remorse.

19I have been told something of your personal circumstances and these matters are set out in the defence submissions on plea and the psychological report of Carla Ferrari dated 27 March 2018.

20You are 40 years of age, having been born on 5 April 1978 in Vietnam. You came to Australia with your family in 1990. You had a close relationship with your mother. She attended court on the plea hearing to support you. Your father was a violent alcoholic who physically abused you and your mother. You did well at school until Year 11 when you started using drugs and mixing with other drug users. You dropped out of school in Year 12. You left home. You started using cannabis and heroin. You have used illicit drugs since this time. You have only ever had some casual employment. You have a 22 year old son from your first relationship. You have a 17 year old son from a second relationship. You commenced a third relationship in 2006. You had an affair with the co-accused. You have been on remand since 8 September 2015.

21I accept that whilst on remand you have suffered hardship as a result of restrictions imposed after prison riots and this has made the time spent on remand more onerous. I have taken this into account.

22You have served periods of imprisonment for drug trafficking and drug related offending in both Australia and Vietnam. I will discuss these matters further when I deal with your prior convictions.

23There are 952 days of pre-sentence detention. You have been using your time in custody in a constructive manner. You are a mentor in the Offender Behaviour Program.

24I accept the opinion of Carla Ferrari that you suffer from mild depression, post- traumatic stress disorder and severe drug use disorder in remission.  I have

taken these matters into account as part of your general personal circumstances. It is not submitted on your behalf that any of the well-known principles enunciated in Verdins case apply.

25Carla Ferrari is of the opinion that the precipitating factors for your offending were chronic substance use and immature coping mechanisms as you commenced using illicit drugs at a very young age. Whilst she is of the opinion that you are deemed to be a low risk of reoffending, I am of the opinion that having regard to the very serious nature of these charges and your extensive relevant prior criminal history, your prospects of rehabilitation are cloudy.

26Against these matters in mitigation, however, your actions were very serious indeed. Trafficking in a large commercial quantity of a drug of dependence is a very serious offence. This is reflected in the maximum penalty of life imprisonment. You were predominantly a wholesaler being involved in the buying and selling of drugs of dependence. You also engaged in some retail sales. You were conducting a drug trafficking business. This business involved large quantities of various drugs, with numerous transactions and very large amounts of money changing hands. It is clear from the different drugs of dependence involved that the nature of your drug trafficking business was wide ranging. You were in possession not only of much paraphernalia associated with drug trafficking, but also a firearm and ammunition.

27You have admitted before me numerous prior convictions. There are approximately  nine  court  appearances  between  16  September  2003  and

20 February 1997, involving convictions for drug offences, motor vehicle offences, offences of dishonesty and offences of violence. Of particular relevance are the sentences of imprisonment for drug related matters. On 18 August 1998, you were sentenced to an aggregate term of eight months imprisonment, four months of which was suspended for two years, in respect of trafficking heroin, possession of heroin and other offences. On 16 September 2003, you were convicted and sentenced to five months imprisonment in

respect of trafficking heroin and other offences. The sentence was wholly suspended for two years.

28I was also told by your counsel that on 14 September 2000, in Vietnam you were convicted and sentenced to two years imprisonment for using heroin. You were released on 14 September 2002. On 12 May 2007 in Vietnam, you were convicted and sentenced to eight years imprisonment, with a requirement that you serve six years imprisonment, for trafficking and use of ecstasy and methylamphetamine.

29The nature of these Australian prior convictions for drug related offences is highly relevant to my task of sentencing you today. I accept the submission made by your counsel on the sentences imposed upon you in Vietnam for drug related matters. This is also relevant.

30The co-offender, your girlfriend or mistress, was dealt with for trafficking a small quantity of drugs.  It is not submitted that there is any relevant parity principle. I have had regard to the principle of totality. This is important as you are to be sentenced for numerous offences including four charges of trafficking in a large commercial quantity of a drug of dependence.

31As well as the matters to which I have referred I must also take into account the need for general and specific deterrence. Specific deterrence is relevant in view of your  long history of drug use, relevant prior convictions for drug trafficking and drug related matters and past sentences of imprisonment.

32General deterrence is also of considerable importance in a case such as this.

Superior courts have consistently emphasised that drug trafficking, particularly involving large quantities of drugs of dependence must be discouraged. I am called upon by the Sentencing Act, and it is appropriate that I manifest the community's denunciation of your conduct. I must also generally impose a just punishment. There is no issue that an immediate custodial sentence is required and  it  is  acknowledged  by  your  counsel  that  you  know  that  you  face  a

substantial prison sentence for this offending.

33The most serious offence is Charge 1, trafficking a large commercial quantity of heroin, as the amount of approximately 20 kilograms is approximately twenty times the large commercial quantity limit. The sentence on Charge 1 will be the base sentence. You are to be sentenced as a serious drug offender in respect of Charges 2, 3 and 5. I direct that pursuant to s.6F of the Sentencing Act there be entered in the records of the court that I have sentenced you in respect of these charges as a serious drug offender within the meaning of the Act.

34I must therefore regard the protection of the community from you as the principal purpose for which the sentences are imposed. I must decide in your case whether sentences longer than that which would be proportionate to the gravity of the offences should be imposed and whether I should direct that the sentences be served cumulatively on any uncompleted sentence or the sentence I impose on this day.

35In the circumstances I do not consider it is appropriate for me to impose sentences longer than that which are proportionate to the gravity of the offence considered in the light of its objective circumstances. I have had regard to the statutory requirement in s.6E concerning cumulation. I have sought to impose what I consider to be appropriate sentences in all the circumstances, with a degree of cumulation to take account of the separate offending in accordance with the principles enunciated in Grabovac's case.

36It is particularly relevant that the large commercial quantity trafficking charges do involve three different drugs of dependence, heroin, cocaine and methylamphetamine. I have made what I consider to be appropriate orders in all the circumstances for partial cumulation. There are different sentences for trafficking in a large commercial quantity of a drug of dependence in view of the different quantities involved and taking into account your plea of guilty on Charge 5. It is appropriate that there be some cumulation in respect of the less

serious offences, as they are significant separate matters.

37Having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows. Charge 1, trafficking large commercial quantity heroin. Convicted and sentenced to fourteen years imprisonment. Charge 2, trafficking large commercial quantity cocaine, convicted and sentenced to nine years imprisonment. Charge 3, trafficking large commercial quantity methylamphetamine, convicted and sentenced to eight years imprisonment.

38Charge 4, trafficking MDMA, convicted and sentenced to eighteen months imprisonment. Charge 5, trafficking large commercial quantity, methylamphetamine, convicted and sentenced to six years imprisonment. Charge 6, trafficking heroin, convicted and sentenced to fifteen months imprisonment. Charge 7, trafficking MDMA, convicted and sentenced to fifteen months imprisonment.

39Charge 8, possession of substance material, documents or equipment for trafficking in a drug of dependence, convicted and sentenced to twelve months imprisonment. Charge 9, possessing an unregistered general category handgun, convicted and sentenced to twelve months imprisonment. Summary Charge 11, convicted and fined $400.

40I direct that eighteen months of the sentence imposed on Charge 2, eighteen months of the sentence imposed on Charge 3, five months of the sentence imposed on Charge 4, fifteen months of the sentence imposed on Charge 5, five months of the sentence imposed on Charge 6, five months of the sentence imposed on Charge 7, three months of the sentence imposed on Charge 8, three months of the sentence imposed on Charge 9, be served cumulatively upon the sentence imposed on Charge 1 and upon each other. Otherwise the sentences be served concurrently.

41The total effective sentence is twenty years imprisonment. The non-parole period is the minimum term that justice requires you to serve, having regard to

all the relevant circumstances that exist. For that reason, it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.

42In all the circumstances I direct that you serve a minimum term of sixteen years imprisonment before becoming eligible for parole. As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is 952 days, including this day, which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.

43I have made the forfeiture order and disposal order sought by the prosecution.

Pursuant to s.6AAA of the Sentencing Act, I state that the overall sentence and non-parole period I would have imposed, but for the plea of guilty, is twenty-five years imprisonment, with a non-parole period of twenty years imprisonment. Do you want to double check the figures?

44MS TANG: That's correct, Your Honour.

45HIS HONOUR: Yes, thank you. Remove the prisoner. Thank you.

- - -