Director of Public Prosecutions v Nguyen

[2017] VCC 941

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00739

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAN NGUYEN

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 July 2017
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2017] VCC 941

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Accused	Mr J. Anderson

HIS HONOUR:

1Han Thu Thi Nguyen, you have pleaded guilty to one charge of trafficking in a drug of dependence, one charge of possession of substance, material, documents or equipment for trafficking in a drug of dependence, and one charge of possession of a drug of dependence.

2You have consented to a summary matter being heard here to which you have pleaded guilty, namely possessing a prohibited weapon, a samurai sword. 

3You have admitted your criminal history, which comprises of two matters in January 2013, possess/use methamphetamine, possess ecstasy, deal with property suspected proceeds of crime.  You were fined with a conviction, and then same date, same court, you contravened a community-based order for theft, which was a conviction on 19/10/2011.

4Your counsel filed written submissions and supplemented them orally.  The facts of the matter are set out in the summary of the prosecution opening, it is not disputed by your counsel.  Any reader of these reasons can refer to the exhibit to place the sentence in its factual context.

5Briefly stated, on 8 September 2015 police from the Clandestine Laboratory Squad executed a search warrant at Apartment 2211-80 Clarendon Street, Southbank.  Upon entry, they observed you were present.  A search of the apartment revealed a sophisticated and well-organised manufacturing process used for large-scale distribution of methylamphetamine and heroin.  Drugs were located in the study, bedroom and in the safe.  The prosecution case is that you played a lesser role than that of the principal, Kha Nguyen, and you were subservient to him.  The prosecution also conceded that you had no access to the safe that contained a large quantity of drugs.

6Your co-accused, Kha Nguyen, is listed for trial on charges including trafficking in a large commercial quantity.  I am also told that he has an extensive criminal history comprising of drug convictions.

7Your counsel tendered a number of documents.  The essence of the plea was, in addition to the discount you get for pleading guilty, that you had served 242 days, and I should consider then imposing a community corrections order.  At the time of the offending, you were 26.  You are now aged 28.  Both your parents came to Australia from Vietnam.  You were born here.

8Unfortunately, as you aged you became involved in the drug world, including the use of heroin and amphetamines. Your counsel put after being on heroin since the age of 17, by the age of 22, you had conquered the problem.  However, in 2013 you began to use ice, and that led to further heroin use. 

9You were bailed by this court after 242 days because Judge Taft of this court considered that the child you were bearing, whose father is the co-accused, should be born not in custody.  Since that time, you have looked after your child.

10In the material tendered by your counsel, documents from the Dame Phyllis Frost Centre say that you had spent your time of imprisonment in protective custody, but they were not prepared to say what would happen, if you were placed in custody again, as to where you would be placed, and what would occur with respect to the child.  If you were in the protection unit, it would be unsuitable for the placement of the child. 

11Two documents were tendered from the nurses who conduct enhanced mental child health centres, one at Brimbank Council, and one at Boroondara Council.  In the report dated 2 November 2016 from Sally Goulding, she said that you - presented as engaged, appropriate with a desire to learn about being a new mother.  You attended on her some 20 times.

12She said that she performed health and development assessment on your son John, and he was assessed to be developing satisfactorily.  You then moved address, thus you came under the care of Lorelle Smith at Brimbank Council.  She said that you arrived on time for your appointments, and your son was always dressed appropriately, happy and smiling, and there were nil concerns with physical checks.

13She said the interaction between parent and child was appropriate.  DHS became involved because of your connection with someone who you had been in gaol with, so they did a report on you. 

14After investigating you, they considered that there were no issues for them to be involved with the protection of your child, or in relation to the upbringing of your child.  They expected you to remain involved with the maternal healthcare system and had no difficulties with the way you were bringing up your child.  They set out a case plan, and the permanent objective was for family preservation, that is, for your son John to remain in parental care.

15The prosecutor, in reply to your counsel's submission that I could consider the time served plus a CCO, did not dispute that a CCO might be appropriate, but submitted that there should be some more time.  I asked for a community corrections report, which I will make Exhibit 3. 

16#EXHIBIT 3 -    Community Corrections Report by Terrence Sequeira.

17In that, you were assessed as being a medium risk of reoffending.  You expressed remorse for your behaviour, and reported that you had stopped using drugs, and you were making changes to your lifestyle, and you were assessed as being suitable, and you agreed to comply with the order.

18In sentencing you, I must have concern to a range of matters.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community seeking to ensure as far as possible offenders are rehabilitated into society.  I express my denunciation of your behaviour.  The drug problem is a real problem for this community, it is almost at the stage of being out of hand, and if people like yourself and your ex-boyfriend/partner/boss, whatever you like to call him, were not in the business, then the drugs would not be available.

19You have been a user, you know exactly the effect that drugs have on you and the addiction they cause, and the havoc that they can wreak on one's personal life.  In sentencing you, I must consider punishment, general deterrence (that is, I have to impose a sentence to deter others), specific deterrence (that is, to try and convince you not to reoffend, and that is a factor here because of your previous criminal history and the nature of the offending, denunciation and protection of the community.  I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, and your personal circumstances.

20Your counsel in making his submission referred me to the case of Apostolopoulos [2016] VSCA 201, not as a parity case, but as a statement of principle in relation to how the court should treat the decision of Boulton, the guideline decision on community corrections orders.  Boulton still applies, even though the jurisdiction of this court with respect to CCOs has been considerably diminished by legislation.  But the general principles in my view still apply, and at [42], the Court of Appeal said:

"In our view, while the sentence could be described as lenient or merciful, this was the very sort of case to which the Court's observation in Boulton apply.  The CCO offers the sentencing court the ability to choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence".

21Taking all those factors into account, and in particular your plea of guilty, which is an acceptable of responsibility by you for your offending, and has saved the court the time and cost of a jury trial, your personal circumstances, I am prepared to accede to the defence request, and I do so in addition to those matters take into account the fact that you seem to have made considerable progress towards obtaining a normal life by caring for your son properly.  That is attested to by the references from the maternal health nurses. 

22You are now living in premises, the child is healthy.  You, according to those reports, are very interested in the upbringing of your child.  In addition, the time that you spent in custody, around seven and a half months, was in protection.  That of course is a more difficulty type of custody than normal custody, and I am told that it was because the wife or ex-girlfriend of Mr Kha somehow took a grudge against you, and for that reason you were moved into protection.

23So taking all those matters into account, in relation to Charges 1 to 4, I impose an aggregate sentence of 242 days.  I declare that the 242 days that you have already served are to be reckoned to be the term of imprisonment that I have just imposed.

24In relation to the summary offence, I convict and discharge you.  You are then, in addition on Charges 1 to 4, to be placed on a community corrections order for a period of two years, with a condition that you attend drug counselling.  I do not think there is any need to address the issue of programs looking at offending or - the issue here is that you became involved in this through your association with Mr Kha and your involved in the drug world as a user.  Programs to reduce reoffending, in my view, are covered by any drug programs you get in to reassess your current good progress towards remaining drug-free.

25Now, if that changed, seeing DHS already have you on the file, you understand what would happen?  You would lose your child.  Forget about what I can do to you, that would be probably insignificant, but if you were to resume behaving in this way again, take it from me, DHS would become involved, and your child would go out of your care, so bear that in mind.

26If you were to reoffend in any way or breach the order that I have just made (it applies for two years), you are then brought back before the court and the court will then have to think of something else to do with you, and I suspect that would be more gaol time.  If you were to breach, you have got until May of next year to get it back before me, but after that, it will be someone else.

27I declare pursuant to s.6AAA of the Sentencing Act that if the matter had proceeded to trial and you were convicted by a jury, you would have been sentenced to at least six years with a non-parole period of four years.  I have signed all the other relevant orders.  I made a s.18(1) declaration, are there any other orders that I need to make?

28MR DEVLIN:  No Your Honour.

29HIS HONOUR:  No, is there any reason why - she has to sign the CCO?

30MR DEVLIN:  Yes Your Honour.

31HIS HONOUR:  All right, just take a seat for a moment and that will be prepared.  If you would like to take that up to your client and make sure she understands the effect and conditions of the order?  Thanks. 

32MR ANDERSON:  Yes, thank you Your Honour.

33HIS HONOUR:  You can come down here if you like, Ms Nguyen.  No reason to stay back there.  Okay, just take a - you understand - you have signed that saying you understand the terms and conditions of the order and you consent to the order being made?  Just take a seat for a moment thanks.

34There is a supervision order in that CCO too.  Adjourn the court until 10 o'clock tomorrow, thank you.

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