Director of Public Prosecutions v Nguyen

[2017] VCC 1136

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00681

DIRECTOR OF PUBLIC PROSECUTIONS

v

SON NGUYEN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2017
DATE OF SENTENCE:	17 August 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 1136

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW               
Catchwords:              Sentence – Traffick in a Drug of Dependence – guilty plea
Legislation Cited:     Drugs, Poisons and Controlled Substances Act 1991, Crimes Act 1958, Criminal Procedure Act 2009, Sentencing Act 1991

Cases Cited:       Nguyen v The Queen [2012] VSCA 297, The Queen v Pidoto &O’Dea [2006] VSCA 185

Sentence:Convicted and sentenced to 5 years’ imprisonment with a non-parole period of 3 years’ and 2 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. White	Office of Public Prosecutions
For the Accused	Mr C. Nikakis	Haines & Polites

HIS HONOUR: 

1Mr Son Nguyen, is aged 51, in fact has turned 52 - his birthdate being 15 August - came before this Court on Friday 11 August by way of a plea to Indictment H10093231.  That Indictment contained two charges of traffic in drug of dependence, pursuant to provisions of s.71AC, the first charge involved amphetamines and the second charge involved heroin.

2In both charges, the relevant provision requires, as the drugs were in possession for sale, a sentence whereby the maximum penalty is 15 years.  The circumstances were fully detailed in the prosecution opening (Exhibit A)prepared by Ms Karamicov, and were, accepted by Mr Nikakis as the facts upon which I am to sentence his client.

3In addition, pursuant to s.145 of Criminal Procedure Act I am also to sentence Mr Nguyen for being in possession of the sum of $6,485, being a proceeds charge under s.195 of the Crimes Act, for which the maximum penalty is two years.

4The prior offences are of relevance as Mr Nguyen had previously served a significant period of gaol for being convicted of a conspiracy to import a marketable quantity of border controlled drug into Australia.  He was sentenced, by trial Judge Montgomery, to imprisonment of seven years with a minimum of five years, such sentence was upheld by the Court of Appeal, Son VanNguyenv R [2012] VSCA 297. I say, for the record, and in particular for Mr Nguyen, the fact of a particular previous significant sentence does not mean you are liable for resentencing in regard to that matter.

5However, what is of import is that four months after the completion of parole from that significant sentence, here he was committing these offences on 10 January 2017. 

6These offences involved Mr Nguyen turning up at premises where the police already were, pursuant to warrant. He was totally cooperative, as was pointed out by Mr Nikakis, and the drugs were found both on himself - that is, on his person, and subsequently in his home, to which he directed the police. Insofar as Charge 1 relating to methamphetamine, a trafficable quantity defined under the Act is three grams. The total amount found both on his person and at the home was eight times that amount, being 26.1 grams. Also pursuant to the schedule, in regard to Charge 2, that is Part 3 Schedule 2 of the Drugs, Poisons and Controlled Substances Act, the trafficable quantity for heroin is also three grams.  In this instance, in totality, Mr Nguyen was found with 196.39 grams of heroin, being approximately 65 times such quantity.

7The purpose of me detailing those matters is because in Victoria, we are subject to, pursuant to the legislation, a defined scheme of which quantity becomes a significant and defining aspect, as referred to by the Court of Appeal in The Queen v. Pidoto & O’Dea [2006] VSCA 185, [11] [40-41]

8Having attended these premises where the police were, to use the learned prosecutor's words, he was caught red-handed.  He made a no comment record of interview, however as put by Mr Nikakis he was actually cooperative in the sense that the police were not required to undertake a significant search.  The location of the drugs were pointed out in the home.

9It was a particularly early plea, as was put by Mr Nikakis, the plea being indicated at the committal mention on 5 April 2017.  It is to be pointed out that it is somewhat unique, in regard to serious offending of this type, occurring in this January of this year, that here we are sentencing subsequent to the plea taking place on 11 August of this year.

10Insofar as the objective criminality, clearly on the principles set out in Pidoto, the criminality and culpability is high.  As I said, the scheme is quantity based.  Both are large amounts insofar as the relevant trafficable quantity is concerned, and therefore objectively the criminality is high.  I have signed forfeiture and disposal orders in this matter. 

11Exhibit 1 was tendered which were the submissions prepared by then the VLA chamber defender Jarrod Van Arkadie and Mr Nikakis, in his submission, essentially adopted those.  Such was of assistance to the Court, in that they gave a good background insofar as the personal circumstances of Mr Nguyen, his age, his family background, the fact that he still has the responsibility with his wife, who has also been subject to gaol for drug offences, for the upbringing of a 14 year old child.  That child, Kelvin, is in secondary school and is currently being looked after Mrs Nguyen's eldest daughter, being from a previous relationship.

12Mr Nguyen’s work history has not been great.  He has essentially worked in factory and kitchen type occupations since coming to Australia.  He opened in 2008, with his wife, a small nail salon however the drug offences in regard to both of them put an end to that.  Since his release from custody, he was living in Thomastown.  His son, in fact, was living with him at the time.  I am not too certain whether that is the daughter's address, however he was still finding work somewhat difficult and was suffering from a number of minor type health issues although it should never be said, I suppose, that diabetes could be in that class but it was under control I understand.

13It was put that the circumstances of this offending was he simply had no money.  That this was the way that he obtained money, he was quite honest about that.  Unfortunately, it is a very dangerous way to live.  As was conceded, and adopted by Mr Nikakis, in paragraph 16 of the submission, Mr Nguyen acknowledged his commission of serious offending.  He acknowledges that the principles of deterrence, denunciation and just punishment must form a significant part of the sentencing in this matter, albeit it that, of course, the subjective factors must obviously be taken into account.

14Reliance was strongly put by Mr Nikakis upon both the plea of guilty and the cooperation, as was indicated insofar as the search for the drugs is concerned, his facilitation of the legal process and the utilitarian benefit of the plea.  I have already remarked on the time frame, given the serious nature of these crimes. As to sentencing, I was asked to consider his early plea, his cooperation and the personal matters that relate to him.

15In response to such plea, the learned prosecutor stressed the relationship of the two amounts, or the totality of the drugs, to the defined trafficable quantity under the Act. She stressed that here was a person undertaking these crimes for the sole purpose of financial gain. There is no suggestion that he is addicted in any way. The Prosecutor stressed the need for general deterrence and denunciation, and referred the Court specifically to ss.5(1)(e) of the Sentencing Act 1991, to the need for community protection.

16The Prosecutor submitted to the Court that, community protection was important, given that so soon after finishing his parole, he is trafficking in serious drugs.  She further submitted that his chances in those circumstances of effecting rehabilitation, must pragmatically be seen as somewhat guarded.  It seems to me that I must accept that.

17The Prosecutor also submitted that the Court, given the importance of discouraging crimes of this sort, should ensure that there be some period of cumulation imposed insofar as the proceeds matter was concerned. 

18I take all of those submissions into account.  One hopes that gaol has some effect.  As I say, Mr Nguyen has served a significant sentence, subsequently he committed the crimes for which he is going to get gaol again.  One would only hope the message gets home.  He has been in in gaol for a significant period, when his young son was developing and again, he is going to miss a portion of that development. One would hope that common sense prevails.

19Yes, Mr Nguyen, if you would stand up please?  Madam Interpreter? 

20Insofar as Charge 1, I sentence to Mr Nguyen to a period of imprisonment of four years. 

21In regard to Charge 2, a period of imprisonment of four and a half years.

22I order that six months of the sentence imposed in regard to Charge 1 be served cumulatively upon the sentence in regard to Charge 2, making a total period of imprisonment of five years.

23I order that the minimum period that should be served by way of that sentence before being eligible for parole is a period of three years.  Insofar as the summary offence is concerned, I sentence you to a period of imprisonment of six months and I order that two months of that should be served cumulative upon the period of imprisonment imposed in the indictable matter.

24Pursuant to s.118 of the Sentencing Act, I order that the 218 days served on remand be deemed as service of this sentence and the declarations to such effect be recorded in the records of this court.

25Insofar as s.6AAA is concerned, doing as best I can to comply with the requirements of Parliament, to try to ascribe to one fact only of the sentencing process some basis for differentiation.  As I say, doing as best I can, I indicate to you that had you not pleaded guilty you would have been sentenced for the indictable offences not to five years, but a period of six years and eight months. The minimum period of imprisonment to be served before being eligible for parole would have been not three years, butfour years.

26Insofar as the sentence for the summary matter, had you not pleaded guilty, I would have imposed a period of imprisonment of eight months, not six months.

27Madam Interpreter, it is important for you to point out to Mr Nguyen that by pleading guilty, he has been given a sentence of five years with a minimum of three years and two months as against what otherwise, he would have been given of six years, eight months with a minimum of four and two months.

28Mr Nikakis, just for clarity the two months cumulative, I think I just say that really makes it, in effect, three years minimum before he gets his parole and he's got to do another two months.  That is what I really mean to effect, the question is how I do it.  The head sentence, I suppose, is five years.

29MR NIKAKIS:  Correct, the minimum is three years, from what I can see on Your Honour's current order, three years, two months.

30HIS HONOUR:  Yes.

31MR NIKAKIS:  Yes and that is what I have been calculating.

32HIS HONOUR:  Yes, that is what I mean.  Are you happy with that, Mr White?

33MR WHITE:  Yes, Your Honour.

34HIS HONOUR:  Thank you.  Anything else, Mr Nikakis?

35MR NIKAKIS:  No, Your Honour.

36HIS HONOUR:  Yes, thank you for appearing.  Madam Interpreter, any questions from your client?  No doubt Mr Nikakis will be talking to him at some stage.

37MR NIKAKIS:  I will, yes.

38HIS HONOUR:  Today or subsequent?

39MR NIKAKIS:  Should be today.

40MR NIKAKIS:  As Your Honour pleases.

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