Director of Public Prosecutions v Nguyen

[2017] VCC 1893

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01359

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUY KIM NGUYEN

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 November 2017
DATE OF SENTENCE:	11 December 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 1893

REASONS FOR SENTENCE
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Subject: Trafficking in a drug of dependence; possessing equipment for trafficking in a drug of dependence; possess prohibited weapon; possess ammunition
Catchwords: Methamphetamine; MDMA
Legislation Cited: Firearms Act 1996
Cases Cited: R v Renzella [1997] 2 VR 88; Haddara v The Queen [2016] VSCA 168
Sentence: 3 years and 4 months; 2 year non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert
For the Accused	Mr B. Johnson

HER HONOUR:

Charges

1Thuy Kim Nguyen, you have pleaded guilty to two charges of trafficking in a drug of dependence and one charge of possessing equipment for trafficking in a drug of dependence.

2The maximum sentence for trafficking in a drug of dependence is 15 years.  The maximum sentence for possessing equipment with the intention of using it for the purpose of trafficking in a drug of dependence is ten years.

3You have also pleaded guilty to the summary offence of possessing a prohibited weapon without exemption, and possessing cartridge ammunition while not the holder of a license under the Firearms Act.

4The maximum sentence for possessing a prohibited weapon is two years, or 240 penalty units.  The maximum penalty for possessing ammunition without a license is 40 penalty units.

Circumstances of offending

5The circumstances of your offending are set out in full in the prosecution opening, which will form part of this sentence.

6In May 2015, the police commenced an investigation into a group that trafficked and manufactured drugs in and around the suburbs of Melbourne.  The investigation which established that you were trafficking in drugs of dependence was extensive and included telephone intercepts, covert surveillance and searches.

7At the time, you were associated with Ben Kim and you divided you time between your respective houses in Noble Park and Thomastown.

8Your son, Du Tran, and your daughter Lily Tran, lived with you in your house in Noble Park.  Your son Tran also operated as a drug trafficker and:

·he received and acted on your directions in relation to obtaining drugs;

·he gave credit and collected drug debts;

·he was a contact point for your drug customers, when they could not contact you;

·he generally assisted you, as well as running his own business.

9Your relationship with your son, however, was somewhat strained, as you considered that he squandered money, placing you under financial pressure.  In addition,  you believed that he had taken drugs, and not given you the money, claiming that he had sold the drugs on credit.     Essentially, you felt that his inappropriate actions affected your reputation with your clients.

10Your trafficking operation also overlapped or merged in some areas with Ben Kim and you provided assistance to each other. 

11The intercept evidence in your case, reveals that between 15 September 2015 and 20 January 2016, you were party to approximately 800 intercepted telephone calls, and SMS messages that were drug related.  The other parties to the intercepts included 25 drug customers, or potential customers.

12The intercepts concerned enquiries from potential buyers about the availability of drugs, the prices and where to meet to collect the drugs, et cetera.

Charge 1

13Charge 1, traffic in a drug of dependence, being methamphetamine relates to eight transactions involving 70 grams of methamphetamine.

14When the police executed a search warrant at your residence in Noble Park, they also found 24.4 grams of methamphetamine in crystal form, the purity varying between 82 per cent at the highest, and six per cent at the lowest.  The quantifiable quantity of methamphetamine is therefore 94.4 grams.

Charge 2

15Charge 2, trafficking in a drug of dependence, being MDMA, relates to the police finding 85 MDMA tablets weighing a total of 20 grams.  Some of the tablets were impressed with a star symbol, as were some of the tablets found by the police at Ben Kim's residence.

Charge 3

16Charge 3 relates to the fact the police also found scientific glassware, two condensers, some beakers (washing from two of the beakers contained some methamphetamine) and a flask which contained some cocaine.

Charge 8

17Charge 8 relates to the finding of a point 25 calibre cartridge ammunition, being two bullets.

Charge 9

18Charge 9 relates to two swords and a knife.

19In your record of interview, you denied trafficking, and claimed that you did not know how the methamphetamine found by the police in your residence got there.  However, on 8 August 2017, you made a plea offer and the case was listed for a plea of guilty on 27 November 2017.

Personal circumstances

20Your personal circumstances are that you were born in Vietnam on 4 July 1970.  You come from a poor family, and you are one of nine children.  Your father fought for the South Vietnamese Army. After the war, he was sent by the North Vietnamese to re-education camp.

21You had a limited education, leaving school at an early age, and while you are literate, you do not speak English.

22You first worked as a cleaner, then as a maid in Vietnam.  You came to Australia to marry in 1992, aged 22 but that marriage was short-lived.

23You have three children, Du Tran, Lilian Tran, and Lily Tran, and each of your children have a different father.  You have been the sole parent or provider for your children.

24You have had limited paid employment while you have been in Australia, but you worked at a factory, operating sewing machines for a period.  At the time of your arrest, you were in receipt of Centrelink benefits.

25You were arrested and detained in relation to two allegations of drug importation on 1 March 2012.  You were in custody on this charge for over a year until 22 March 2013, when you were acquitted following a trial.

26With respect to your mental health, you were diagnosed with depression around 2000, and prescribed anti-depressants.  You instructed your counsel that in 2014, you attempted suicide by cutting your wrists and overdosing on prescription medication.

27Following your acquittal and release from custody on the importation charges, you became depressed and you were introduced to drugs through a friend.

28You used methamphetamine and heroin; addiction took hold, and by late 2015, you were using about 1.7 grams of methamphetamine every two to three days.

29You instructed your counsel that you were trafficking in order to feed your own drug addiction.  Your plan on release is to stay away from drugs and do a course to become a hairdresser or beautician.

Defence submissions

30In mitigation of your offending, your counsel relied on the following matters:

·you pleaded guilty at an early stage, which saved the time and cost of the trial and the inconvenience to the witnesses of giving evidence; 

·your offending occurred in the context of a serious drug addiction and was to feed that addiction,  it could not be said that you were living an extravagant lifestyle;

·you had no prior matters;

·you had good prospects of rehabilitation, which was evidenced by the fact that you had completed a number of courses while in custody, including a drug and alcohol education program;

·you had been tested for drugs on five occasions while in custody and returned negative results; 

·you had strong family support as you would live with your eldest daughter on your release; and

·that the court should take into account that you had spent 387 days on remand for offences of which you had been acquitted (the drug importation charges).

31While your counsel accepted that the only appropriate sentence was imprisonment, he submitted that the mitigatory matters in combination with the time you had already spent in custody, called for a term of imprisonment which would allow your immediate release.

Sentencing remarks

32In sentencing you, I have taken into account all these mitigatory matters. You have received a discount for your plea of guilty, which has saved the state the inconvenience or the expense of a trial, and the witnesses the inconvenience of giving evidence.

33In accordance with the case of Renzella,[1] I have made an allowance for the time you spent on remand on Charges on another matter.  I have also taken into account that there has been a delay between the date when you were charged, and the date of the plea.

[1] [1997] 2 VR 88

34I accept that your prospects for rehabilitation are now fairly good, now that you have withdrawn from drugs while you have been in custody, and because you will have the support of your daughter when you are released.

35However, I have also taken into account the serious nature of your offending.  The charge period reflects that your offending was prolific and protracted.  You were the principal of your own drug operation. 

36The quantity of drugs trafficked, while not of a commercial quantity, was considerable. 

37An aggravating feature of your offending was that there was evidence that on one occasion, you provided ecstasy to your 15 year old daughter.  It is also disturbing that your son was involved in your business, as well as running his own.

38In Haddara v The Queen,[2] the Court of Appeal stated,

"It seems to us that it has become a matter of common knowledge that trafficking in ice is not only prevalent, but that its prevalence has increased.  Prevalence of the offence of trafficking methamphetamine is a proper matter for a sentencing court to take into account when assessing the weight to be given to general deterrence.  As we have mentioned, sentencing courts may, to a relatively modest extent, adjust the sentencing standards for trafficking in ice to deal with its increased prevalence."

[2] [2016] VSCA 168

39In sentencing you, I have taken this decision of the Court of Appeal into account.  It is well established that drugs of dependence caused great harm to our community.  The use of drugs often leads to the destruction of family units, the commission of crimes, and an increase in mental illness.  You may stand up now.

Sentence

40On Charge 1 of traffic in a drug of dependence methamphetamine, you are sentenced to three years' imprisonment.

41On Charge 2 of traffic in a drug of dependence MDMA, you are sentenced to 18 months'.

42On Charge 3 possessing equipment for trafficking in a drug of dependence, you are sentenced to 12 months' imprisonment.

43On the summary offence of possessing a prohibited weapon without exemption, you are sentenced to four months'.

44On the summary charge of possessing ammunition, you are convicted and fined $300.

45The base sentence is the sentence of three years on Count 1.  I accumulate three months of the sentence on Count 2, and one month of the sentence on Count 3 on the base sentence.

46This means that your sentence is three years and four months.  I fix a
non-parole period of two years.

47But for your plea of guilty, it would have been five years to serve, three years and six months.

48Yes, it will be apparent from that sentence that the Renzella times have been taken into account.  It means that I think it is just a question of a couple of weeks or a month or not long.

49MR JOHNSON:  Yes.

50HER HONOUR:  Because she has already served 690 days', is that right?

51MR JOHNSON:  690 days, Your Honour.  That is it.

52HER HONOUR:  So it is not today, but it is not in the far future.  It is about a month.

53MR JOHNSON:  Yes.

54HER HONOUR:  So 690 days is time reckoned as already served.

55MR ALBERT:  Your Honour, in Your Honour's order, there will be mention that you will have taken into account, there is other time.

56HER HONOUR:  I did.

57MR ALBERT:  Yes, I know.  But just in the formal record, that they will be included, and I take it Your Honour has taken into account, all the Renzella time.

58HER HONOUR:  I did not declare how many days I have taken into account, and I do not intend to do that.  But I can assure you I have taken it into account.  It will be reflected literally in the fact that she will be out in a month's time.

59MR ALBERT:  The only concern, what I say is that subsequent - if she has other charges, they have a look at the record has all of time ‑ ‑ ‑

60HER HONOUR:  Well, the written reasons say that one of the reasons for her sentence was the ‑ ‑ ‑

61MR ALBERT:  That time.

62HER HONOUR:  ‑ ‑ ‑ Renzella case, taking into account the Renzella time.  In accordance with Renzella's case, I have made allowance for the year that you spent on remand on other charges.

63MR ALBERT:  Thank you, Your Honour.  Yes.  That will cover it.

64HER HONOUR:  That should cover it, and that can go on the records of the court as well, if need be.

65MR ALBERT:  The ancillary orders are a disposal order, a forensic sample order.

66HER HONOUR:  Yes, and I make a forensic sample order on the grounds that it is in - the seriousness of the offence, I gather it is by consent.

67MR JOHNSON:  Yes, Your Honour.  It is not opposed.

68HER HONOUR:  And the interests of the public, and I make the disposal order.  I have to tell you that with the forensic order, the police take a swab, get a swab, and they take a swab from inside your mouth.  If you were to object to that, they can use all necessary force to get it from you.  But it is not a painful, difficult procedure.  Yes, and you have consented, so I do not see there will be any problem.

69MR JOHNSON:  I have explained that to her, Your Honour.

70HER HONOUR:  Good.  All right, is there anything else arising out of this?  So we only have one more to go in this particular matter, and that is not until March.

71MR ALBERT:  March, yes.

72HER HONOUR:  Yes.

73MR ALBERT:  The third sentence of Quoc as well, Your Honour.

74HER HONOUR:  Yes, and that is adjourned to - when is that adjourned to?  March as well I think.  All right, well in those circumstances, we will adjourn the court.  Thank you.

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