Director of Public Prosecutions v Nguyen
[2017] VCC 10
•25 January 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01966
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHIEU KIM THI NGUYEN |
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| JUDGE: | JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 August 2016 |
| DATE OF SENTENCE: | 25 January 2017 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 10 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – traffick drug of dependence (heroin)
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: R v Pidoto & O’Dea [2006] VSCA 185; R v Giretti and Giretti (1986) 24 Crim R 112; Boulton & Ors v R [2014] VSCA 342; R v Hasan [2010] VSCA 352; R v Lacey [2007] VSCA 196; R v Koumis & Ors [2008] VSCA 84; DPP v Borg [2016] VSCA; Hutchinson v R [2015] VSCA 115
Sentence: Convicted and sentenced to 3 years’ and 11 months’ imprisonment with a non-parole period of 2 years’ and 11 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Coghlan (Plea) Mr L. Cameron (Sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms N. Kaddeche (Plea) Mr C. Nikakis (Sentence) | Haines & Polites |
HIS HONOUR:
1Ms Nguyen, the reason why I will ask you to stay seated is that I want to go through the matters put to me on your behalf and the reasons why I am pronouncing this sentence. The importance of such is that you fully understand the reasons, and that such is available to your legal counsel and any persons why may wish to see it in due course.
2Insofar as Indictment C1510083, you, together with your co-accused Andy Duong, whom I sentenced on 4 December 2016 pleaded guilty to two charges under such Indictment.[1] On that day, the Director was represented by Ms Coghlan, you were represented by Ms Kaddeche, and today Mr Nikakis appears.
[1] See DPP v Andy Duong (Unreported, County Court of Victoria, Judge McInerney, 14 December 2016).
3You pleaded guilty to, in that Indictment, as I said, two charges of traffic in a drug of dependence. The first charge on the Indictment concerned that of heroin and was a between dates offence. That is, between December 2014 and February 2015, an offence against s.71AC of Drugs, Poisons and Controlled Substances Act 1981 (Vic). The amount of heroin found, it being understood that the trafficable amount is recorded as three grams, as set out in the schedule that I handed to counsel this morning, and I will refer to that schedule again, to which there has been agreement. It might well be appropriate to mark that Exhibit E in this matter.
4Insofar as the heroin, therefore, is concerned, it is 100 times the trafficable amount. However, it is three fifths of the next level on the R v Pidoto & O’Dea [2006] VSCA 185 quantity based sentencing regime, that we have in this State. That is, you would need 500 grams mixed to take you into the commercial trafficking level.
5There is also a further discrimination within the amounts found as to the heroin itself. Of that heroin, there was a difference in purity, 105 grams of the 303 grams was 72 per cent purity, and the balance, which was essentially bags prepared for street level sales was somewhere between 14 and 15 per cent purity. The street value, as described by the prosecution, of the heroin was $90,900.
6Coming then to Charge 2, which concerned methamphetamine, you, together with your co-accused, pleaded guilty to trafficking in that drug. It was a one-day offence, being trafficking on 13 February 2015, which was the day the warrant was executed upon the premises, which you were occupying. The amount of methamphetamine involved as 44.9 grams. The amount, therefore, was some 14 times the prescribed amount for a trafficable quantity, insofar as the charge under s.17AC is concerned, and one-eighth of the amount which is required to take you to the higher level, that is the commercial level, such amount being 500 grams.
7In addition, you also, as did you co-accused, pleaded guilty to three summary charges. The first of the summary charges was possession of a prohibited weapon, being a stun-gun and a baton, the maximum penalty prescribed for that being 240 penalty units and/or two years' gaol.
8The second summary charge is possess controlled weapon, a knife, the penalty prescribed being 120 units and/or one year's gaol.
9And the final summary matter to which there was a plea of guilty is the charge of being found in possession of proceeds of crime, in this instance the sum of $23,000, for which the maximum penalty prescribed is two years.
10As I said to Mr Duong, the seriousness of the two charges on the Indictment, that is the criminality committed by both of you is demonstrated by the maximum penalty imposed by Parliament, which is 15 years' gaol for each offence.
11Exhibit A was the prosecution summary, Ms Kaddeche, accepted the facts as set out in such summary as the facts upon which I am to sentence you.
12Insofar as the trafficking in regard to Charge 1 is concerned, the proposition put by the prosecution was based on trafficking on a Giretti basis (See R v Giretti and Giretti (1986) 24 Crim R 112). As recorded in paragraph nine of such opening, the traffic heroin Charge 1 was put on the basis that both of you trafficked heroin from 30 December until the time of the warrant being executed, and the search of the premises, which was conducted on 13 February 2015.
13It includes, of course, the heroin found during the search. It also includes evidence from a buyer of heroin that he had been buying heroin from the premises, from the both of you, since Christmas, and indeed a CCTV of the Commercial Road apartment, which shows significant numbers of people coming and going from the premises between 13 January and 13 February 2015.
14The second exhibit tendered by the prosecution, Exhibit B, was the photos which related to the proceeds, being the money. And the third exhibit, Exhibit C, was the certificate of analysis dated 17 September 2015.
15As to the trafficking of the heroin in Charge 1, in addition to the period over which such was undertaken, reference was made to the finding of a number of accoutrements such as the press described on the warrant, and as set out in particular in paragraph five of the summary, the cash that I have already referred to and the weapons that make up the summary charges. As I have indicated, the drugs seized were valued by way of street value at the respective rates that I have already stated.
16Insofar as you, Ms Nguyen are concerned, your priors of some note. Your priors are more serious, and relate to these offences, as against the priors of your co-accused.
17In December of 2012, you were convicted of traffic in heroin and were sentenced to a period of 23 days' gaol. In October of 2009, you were also sentenced for traffic heroin and given a six month suspended sentence. And in subsequent year, that is after the original trafficking offence, you were again convicted of possession and use heroin, which was a breach of the earlier suspended sentence, and I think the sentence imposed, if I recall, was simply to continue the CCO, but I might be wrong about that. You might just check that for me, Mr Prosecutor.
18The pre-sentence detention that you have served was initially 70 days. However, that has been expanded from the time of your arrest following the warrant that I issued when you did not appear at the sentencing hearing on 14 December 2016. it has been agreed that the pre-sentence detention relevant to you now is 110 days.
19Insofar as the plea made on your behalf, as I said, Ms Kaddeche appeared for you. She noted, as I detailed, that your priors were more significant and more recent than your co-accused. Tendered on your behalf was Exhibit N1, which was the report that I have referred to today, being the report of the psychiatrist Walton, dated the seventh day of July 2016.
20In regard to that report, it is clear that you have been unfortunately addicted to heroin since the age of 12. It is noted that you immigrated with your family to Victoria at the age of ten. You have, on occasions, gone through detoxification and methadone programs, but unfortunately you are still using drugs.
21Today has been tendered, Exhibit N4, a report of Dr Barnes, which gives a description of your current position. Your admission to the Marrmak (Psychiatric) Unit at Dame Phyllis Frost Centre, where you were admitted on 16 December 2016, suffering at that time, from florid psychosis complicated by methamphetamine use. You exhibited prominent paranoid and persecutory ideation. You were highly distressed and agitated.
22Your recovery was complicated. However, your symptoms apparently have almost completely resolved, and you have become increasingly willing to engage with clinicians, to the extent that a collaborative therapeutic relationship with a multidiscipline team at the unit has now been forged.
23It is noted that you will require ongoing psychiatric management in the community, and no doubt ongoing medication and assistance. It is noted that you have expressed to those treating you in that unit, a desire and a willingness to attend drug and alcohol rehabilitation as a matter of priority.
24The sad history of drug addiction, as demonstrated, has been extensive. You now being only 26 years of age, have suffered a psychotic reaction and ongoing issues.
25Tendered as Exhibit N1 was the report of Dr Walton, consultant psychiatrist. He refers to you being stabilised on methadone, when you were part of the CISP program. He notes the history that I have already referred to. He notes your continuing use of heroin. That is, as of July 2016, at that stage being a relatively reduced amount of two points only. Apparently your amphetamine use did not begin until approximately 2011, and that also, at the time you were examined by Dr Walton, was continuing.
26You told Dr Walton that the reason for your drug trafficking was to support your habits, and that is clearly obvious. It was suggested by you to Mr Walton that while the cash was paid to you, it was basically used for that purpose.
27As I referred to, your personal history was demonstrated. Your age is noted. Your prior de facto relationship for three years. You have a 12-month-old daughter, and a new baby.
28As to your mental status, it is noted that you, as demonstrated in Exhibit N4, you are distrustful and not easily reassured. It seems that that recent report shows some change in that regard. You are, when not under the effect of drugs, a person of normal intelligence, with intact cognition.
29The important opinion, it seemed to me, was set out at paragraph one on p.5 of the report, when Mr Walton said:
"Ms Nguyen has suffered from recurring bouts of paranoia and hallucinosis attributable to methamphetamine, in particular, but there is also a lingering suspiciousness currently, which I would describe as substantially reality-based, surrounding Ms Nguyen's appreciation that she may be forcefully returned to hospital against her will, and that she is in a precarious situation in terms of the drug supplier, as well as her own risk of being incarcerated."
30Importantly, he stated at paragraph three on p.5 that you might be described as having partly successfully engaged in drug rehabilitation. I had a question mark about that comment.
"She is now established on maintenance methadone but as yet she has not completely desisted with heroin use. Ongoing rehabilitation remains a high priority, and her newborn baby will also require treatment for narcotic dependency."
31At the time you were examined, you were not then currently in the florid state of drug induced psychosis. Clearly, as Exhibit N4 shows, you were in such a state when you were apprehended, as a result of the recent warrant.
32Exhibit N2 was also tendered on your behalf, and that is a report from Dr Sharma from St Vincent's Hospital. Essentially, it demonstrated that you have had a psychotic reaction as a result of your drug addiction, and the question was raised whether there might be another cause, apart from the matters referred to by both Mr Walton and indeed the report tendered today by Dr Barnes.
33In addition were the CISP reports, which demonstrated your progress, Exhibit 3, the CISP reports of 06/03/15, 26/05/15, 19/06/15 and 27/07/15, and ongoing. It is noted in the report of 19/06/15 that you had missed two drug assessment appointments, and in the report of 27/07/15, that there had been no urine samples taken.
34In the plea, Ms Kaddeche noted that you were bailed subsequent to this arrest and put onto the CISP Program.
35Reference was made by your counsel to the obvious importance in your life of giving up drugs; the need, if you are going to look after your children for you to effect an appropriate rehabilitation. Ms Kaddeche accepted that these are serious offences and an appropriate penalty must of course be passed. She asked, however, the Court to take into account your addiction and dependency, and the principles set out in Boulton & Ors v R [2014] VSCA 342.
36Ms Kaddeche referred to the personal hardships that you have endured, the fact that you bore a child while you were in gaol; and that you were removed from your daughter Vivian. She referred to your personal circumstances, your lack of education, and your early finishing of school.
37Insofar as the submission was concerned that you be given, in all those circumstances, a community correction order, the prosecution raised the issue as to whether such, in all the circumstances, was applicable, given the seriousness of the crimes. Subsequent to such submission, the Court received, and I thank the assessor for this matter, the assessor in this case being Ms Menzani, a positive report pursuant to the request of the Court. Such report saying that you were assessed as suitable for such a determination, and suggesting various conditions that should apply.
38As I said in sentencing your co-accused, and in dealing with the submission that the sentence should involve either by way or part or in full a community correction order, that there must be reference to an understanding of the scheme imposed by Parliament, and in particular it must be remembered that such quantity-based regime was imposed by Parliament, as was the maximum penalty, in order to show unambiguously how seriously the community views this particular crime.
39Indeed, it is irrelevant, as set out in Pidoto, what particular drug is involved. The system essentially is quantity-based and we have, in regard to the criminal provisions in our State, a quantity-based sentencing regime. I point out that the quantity of drugs itself has no arithmetical relationship to a sentence, but of course is a very significant matter in sentencing in regard to these crimes, as set out in the authorities.
40Such regime was fully detailed by the Court of Appeal in Pidoto, in particular at [34], where four of the Court of Appeal justices noted that by such structure Parliament has adopted a hierarchy of seriousness to be defined by and only by the quantity of the drug of dependence that has been trafficked.
41Further in Pidoto at [62], the Court indicated:
“Ultimately, the question to be considered is not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed for dealing in the material involved.”
42Here, as I have said, the heroin is three fifths of the quantity required to take one to the more serious level, and one eighth of the quantity in regard to amphetamine. At the same time, the amount of heroin is 100 times what is the qualifying weight for a simpliciter traffic charge, and some 14 times the minimum weight for a simpliciter trafficking charge concerning amphetamine.
43Sentencing statistics were presented to the Court as of June 2016, and showed that by way of a combination sentence, the sentences vary from one month through to seven-and-a-half years. The median total effective sentence for crimes of this type was two years and eight months. The non-parole period was one year and six months.
44It is of course important, when trying to assess current sentencing practice, to remember that snapshots are, as the Court of Appeal has said, just that, a snapshot. Such issue as to snapshots and how a Court takes such on board in its synthesis, was considered by the Court of Appeal in R v Hasan [2010] VSCA 352, in particular [44] through to [54] under the topic of “Consistency of Sentencing.” I am not going to go through them again in your sentence, but I did in Duong, and I adopt those comments.
45Clearly, as has been pointed out by your counsel, and is sadly obvious to the Court, your life has been blighted by addiction to both heroin and methamphetamine, and indeed poly-substances. Insofar as such addiction is concerned, the principles detailed in R v Lacey [2007] VSCA 196 at [16] and [17], and R v Koumis & Ors [2008] VSCA 84 at [53] to [59], are applicable, and I take those into account in assessing your moral culpability and the issues of rehabilitation relevant to this sentence.
46However, as I said to Mr Duong, and in particular I say to you, given your priors, your drug addiction explains the reason for your serious offending. It does not provide any justification for such offending. As already detailed, denunciation and general deterrence is of particular importance in regard to these serious crimes.
47As submitted by your counsel and accepted by this Court, rehabilitation, especially involving a woman who is still relatively young, is an important consideration for this Court.
48The question for consideration in regard to you, considering your history, is that the chance of successful rehabilitation must be dim, unfortunately. There is, however, the report tendered today, which does seem somewhat positive. However, one could not have great hope, given your history. That is not to discourage you; that is just to refer to the reality.
49But as I say, the steps taken since you have been apprehended, the comments made by Dr Barnes, Exhibit N4, at least provide some encouragement. As said by Dr Walton, unless you can effect such rehabilitation, then your life will continue to be blighted.
50The question, as I also came to discuss in the sentence of Mr Duong, as to the role you played. As I said, there are no doubt persons much higher than you, not supplying street dealers. You, with Mr Duong, had set up a rendezvous where many persons were able to visit, purchase drugs. You were concerned with the preparation of such street quantities, being prepared by you from larger purer amounts, that were held at the premises, as demonstrated by the certificate of analysis, being Exhibit C.
51Also, as the prosecutor submitted the Court must look at the dimension of this operation, the amount and values, the accoutrements held at the premises, and indeed the numbers of persons observed to be frequenting, as seen in the CCTV footage.
52It was in that light, as I said, that Ms Coghlan, the learned prosecutor submitted that although the principles of Boulton and the sentencing legislation, especially s.5(4C) of the Sentencing Act 1991 (Vic), allow for a combined order of the type sought in your case, that immediate imprisonment was essential. That is the submission of the prosecutor. The prosecutor also submitted that the Court needed to consider, given the dimension of the offending, whether it was appropriate, in these circumstances, for any such combined order to be passed.
53Insofar as consideration of the submissions of both your counsel and of the prosecutor, it is necessary to note that Boulton and the principles therein were recently canvassed by the Court of Appeal in DPP v Borg [2016] VSCA 53. At [110] in Borg, in understanding the new landscape, as regularly referred to at the Bar table, the Court said that it is against the background, where CCOs were brought in when suspended sentences had ceased, that Boulton must be understood.
54At [110] in Borg, the Court said as follows:
“It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.”
55I quote from further paragraphs in Duong, which I will not go over again, that is [106] and [108] in Borg.
56Finally in particular I want to refer again to Borg at [109], where the Court quotes from Hutchinson v R [2015] VSCA 115, where Priest JA, with the concurrence of Ashley JA, said:
“Acknowledging that a CCO might be appropriate ‘even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment’, it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, ‘to punish the offender to an extent and in a manner which is just in all of the circumstances’. There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just.”
57As I said in the sentence of Mr Duong, despite the strong plea put by Ms Kaddeche, and despite your more recent positive news, I have also concluded, as I did with the sentence of Mr Duong, after close consideration of all the circumstances, that a CCO would not be appropriate as a sentence to be passed on you.
58You can remain seated while I pronounce the sentence. There is no need for you to stand in the circumstances.
59In regard to Charge 1, you will be sentenced to a period of imprisonment of three years.
60In regard to Charge 2, you will be sentenced to a period of imprisonment of two years and four months.
61I order that nine months of the sentence imposed in Charge 2 be cumulated upon the sentence imposed in regard to Charge 1, making a total effective sentence of three years and nine months imprisonment.
62I order that the period that you must serve before being eligible for parole is a period of two years and nine months.
63I declare, pursuant to s.18 of the Sentencing Act 1991 (Vic), that the 110 days that you have served by way of pre-sentence detention is to be deemed as part of this sentence, and such declaration is to be recorded in the records of this Court.
64In regard to the summary matters, I sentence you in regard to Summary Charge 5 to a period of imprisonment of four months, in summary Charge 7 to a period of imprisonment of three months, and summary Charge 8 to a period of imprisonment of six months.
65I do not intend to cumulate any of those sentences, so that the maximum sentence imposed for the three summary charges is a period of six months.
66However, as I did for Mr Duong, I do intend that two months of these sentences be served cumulatively upon the sentence that I imposed upon you in the Indictment, so that you will be sentenced, therefore, to a period of imprisonment of three years and nine months, with a minimum period to be served, as I have pronounced, of two years and nine months, to which an additional two months will be added, which will be served in regard to the summary crimes.
67Insofar as the declaration required under s.6AAA of the Sentencing Act 1991 (Vic), it is important for me to indicate to you, Ms Nguyen, that had you not pleaded guilty, I would have sentenced you to a period of imprisonment of five years, with a minimum period of three years and nine months. Hence, the result of you pleading guilty, and the discount prescribed, is that instead of being sentenced to a period of five years with a minimum period of three years and nine months, you have been sentenced to imprisonment of three years and nine months, with a minimum period before being eligible for parole of two years and nine months.
68The only thing that remains for me to say, Ms Nguyen is, given that you now have two children, one hopes that you can overcome your addiction and that when you get out of gaol, which will be in a period of two years and nine months, less 110 days, plus two months on top of that, that you are able to effect rehabilitation and be able to change your life and change the life of your family. So I wish you well in that regard.
69Mr Prosecutor or Mr Nikakis, are there any matters that I have not attended to?
70MR NIKAKIS: Not that I can see, Your Honour.
71MR CAMERON: Just a couple of matters, Your Honour.
72HIS HONOUR: Yes?
73MR CAMERON: Firstly, Your Honour asked a question in relation to the CCO that was ordered on 15 September 2010 - sorry, 26 October 2009. That was simply confirmed on 15 September 2010.
74HIS HONOUR: That was confirmed. Yes, that is what I thought. Yes, it is confirmed. I just could not read my writing, Mr Prosecutor.
75MR CAMERON: Yes, Your Honour. Secondly, I just wanted to confirm, as I wasn't appearing on the last occasion, whether the orders sought for forfeiture, disposal, and the forensic sample order had all been made. I understand ‑ ‑ ‑
76HIS HONOUR: I do not know in regard to - I think I would have made them, but whether there were separate orders in regard to Ms Nguyen, I am not sure. Yes, apparently they have been done.
77MR CAMERON: Thank you for that confirmation, Your Honour.
78HIS HONOUR: Thank you, Mr Prosecutor.
79MR CAMERON: Sorry, two final matters.
80HIS HONOUR: Yes.
81MR CAMERON: The first was just to be absolutely clear and make sure I've got the correct understanding. The total total effective sentence, if I can put it that way, is three years and 11 months?
82HIS HONOUR: Yes.
83MR CAMERON: With the non-parole period still two years and nine months?
84HIS HONOUR: Yes, I have not interfered with that.
85MR CAMERON: Thank you, Your Honour.
86MR NIKAKIS: I don't know whether, and I don't like to interrupt, but I don't know whether that comes clear in your sentence.
87HIS HONOUR: Well, the same question was asked last time.
88MR NIKAKIS: Yes, I understand. I know what Your Honour did on the last occasion, but ‑ ‑ ‑
89HIS HONOUR: How did we do?
90MR NIKAKIS: But if it's clearly made out that the minimum period is two years nine months, and the maximum period in total is three years 11 months.
91HIS HONOUR: Well, no, I meant that - to just make it clear, as I did last time, what I meant was that the sentence on the Indictment would be served, that is in this case, three years and nine months with a minimum of two years and nine months.
92MR NIKAKIS: Correct.
93HIS HONOUR: And 6AAA, I have pronounced in regard to that. However, it was intended that there be no cumulation in regard to the summary sentences, but that two months be served cumulatively upon the sentence involved in the Indictment. So that would mean that in regard to the maximum, that would mean that after the Indictment sentence has finished, another two months has to be served.
94MR NIKAKIS: So that effectively makes it two years 11 months on the bottom?
95HIS HONOUR: That is right.
96MR NIKAKIS: Yes. That's how I thought Your Honour ‑ ‑ ‑
97HIS HONOUR: That is what we said last time. That is what I meant.
98MR CAMERON: Thank you for that clarification, Your Honour.
99HIS HONOUR: "I direct that two months of the sentence imposed on the summary charges be served cumulatively upon the total effective sentence imposed on the Indictment". That is the order that I intend to make here.
100MR CAMERON: Thank you, Your Honour. That's clear.
101HIS HONOUR: Mr Nikakis, no doubt you will - I am not quite certain of your client's state, but no doubt you will spend time explaining to her what I have said.
102MR NIKAKIS: I'll try.
103HIS HONOUR: Try. Mr Nikakis, you probably would not have heard this. This has not been the easiest sentence as far as I am concerned, because I just heard this morning that by good friend Michael Hennessy died last night.
104MR NIKAKIS: I knew him.
105HIS HONOUR: I know you know him well.
106MR NIKAKIS: Yes.
107HIS HONOUR: So it is a sad day.
108MR NIKAKIS: It is.
109HIS HONOUR: But at any rate, we wish your client well, and I hope that you come out of gaol and look after your children, and get off the drugs, all right? It is very important, so that you can look after them. All right, you will explain that, Mr Nikakis, as best you can, no doubt. The prisoner can be removed.
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