Director of Public Prosecutions v Nguyen

[2016] VCC 1540

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-01280

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIET NGUYEN

---

JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2016
DATE OF SENTENCE:	13 October 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 1540

REASONS FOR SENTENCE
---

Subject:  Trafficking –drugs of dependence ­– proceeds of crime
Catchwords:
Legislation Cited:  Sentencing Act 1991
Sentence:  Convicted and sentenced to 2 years’ imprisonment with 15
  months non-parole. Section 6AAA declaration: conviction

and sentence of 3 years’ imprisonment with 2 years non-parole

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Pace	Office of Public Prosecutions
For the Accused	Ms K. Kothrakis	Doogue, O’Brien George

Pages 1 - 4

 

 

HIS HONOUR:

1Mr Nguyen, before I pass sentence, I am making an order that is not opposed that you provide a forensic sample by way of a saliva sample to the appropriate officers and I am required to just indicate to you and inform you that at the time when you are requested to provide that sample, if you do not co-operate with that they can use reasonable force to take it from you.  So it is a good idea to co-operate.  Do you follow that?

2OFFENDER:  Yep.

3HIS HONOUR:  Yes, all right.  You have pleaded guilty to two charges of trafficking in a drug of dependence.  The maximum penalty for this offence is 15 years' imprisonment.  Further, you have pleaded guilty to one summary charge of dealing with the proceeds of a crime.  The maximum penalty for this offence is two years' imprisonment.

4The circumstances of your offending are set out in the Summary of Prosecution Opening read to the court and tendered as Exhibit A.  The offending occurred on 3 March 2016.  The admitted circumstances do not need great elaboration but they disclose that 486.4 grams of heroin comprised the amount in Charge 1 located at your home on that day. 209.3 grams was pure heroin.  Also located were 53.4 grams of white crystals that comprise the amount in Charge 2. 45.14 grams was pure methylamphetamine.

5As to Charge 3, five bundles of cash, totalling $25,600 was located.  Multiple mobile phones, computer tablets and a metal press device were also located along with the cash and drugs as police executed a search warrant.  Multiple snap lock bags containing white powder, brown powder and white crystal substances were in the lounge room and laundry.

6You fully co-operated with the police.  You also assisted them as to the location of the cash and drugs.  You made admissions from the outset and at interview, you fully admitted your offending.  The pleas of guilty came at the earliest opportunity.

7I regard this as a serious example of this type of offending.  I am satisfied the amount of cash and quantity of drugs seized go beyond drugs intended only for your personal use.  I accept only some limited unspecified amounts were for personal use.  You made admissions beyond mere personal usage.  You admitted in the Record of Interview, at Question and Answer 326 that, "It's just my habit and plus I need to live."  Your trafficking involved two distinct substances.

8You have admitted the contents of a criminal record, but it involves only one offence of possessing a controlled weapon without excuse back in 2003.  I do not consider it relevant to the current sentencing task.

9Turning to matters personal to you, your age is 32 years now and at the time of offending.  You were in custody from 3 March 2016 until you were granted bail on 25 May 2016.  Your personal circumstances including your family background and relationship history have been set out in the exhibits tendered on your behalf.  Those exhibits were Exhibit 1, report of Pamela Matthews, forensic psychologist, 11 October 2016, Exhibit 2, report of Madeline Peterson, Odyssey House Victoria, 7 October 2016, Exhibit 3, letter from Stephanie Abate, Core Staff, 4 October 2016, Exhibit 4, urine test reports, Dorevitch Pathology, 7 September 2016, 21 September 2016, 27 September 2016, Exhibit 5, reference from Bianca Chau, 18 September 2016.

10Your history of early drug abuse, then a later relapse back into it has been covered in the plea.  Your recent urine tests indicate positive steps in terms of dealing with your drug usage.  You have obtained employment over the years and in particular over the recent months since you were bailed in May.  Presently, you are single but live with family members.  The documents tendered on your behalf indicated you relapsed back into drug usage following a relationship breakdown.

11I consider your prospects of rehabilitation are real although somewhat guarded in view of your resorting to drugs in two separate periods of your life.  Personal stress, not uncommon in human life, saw you relapse back into drugs in more recent times.  You have a good employment record and some extended family support as well as from friends.

12Your counsel pointed to a number of matters you are entitled to have taken into account in mitigation.  These include the very early guilty pleas and admissions and co-operation with police.  These factors as well as the exhibits point to your remorse.  The utilitarian benefit of your guilty pleas to the community is also taken into account in terms of the time and expense of a trial being saved.  Your lack of any similar past offending is relevant.  So too is your history of employment.  Some traumas in your family and personal life provide some explanation for your resorting to drugs but no excuse.  As already mentioned, your recent employment, clear drug tests and Odyssey House counselling all show positive steps in regards to rehabilitation.

13It was submitted your personal usage of at least some of the drugs you were trafficking diminished the culpability of your trafficking offences, when compared to other offending of this type where there are more real and tangible commercial benefits shown.

14Both counsel indicated to me that an aggregate sentence approach was appropriate in your case.  I agree.  I thus announced during the plea that was my sentencing intention.  The reasons are the charges that involve a single day are found on the same facts and they are of a similar character.  Your counsel submitted the appropriate disposition was a Community Correction Order with or without a term of imprisonment attached.  It was submitted that if a term of imprisonment was attached, the time served already would satisfy that aspect.  The Crown submitted your offending required immediate imprisonment to satisfy the purposes of sentencing.

15I have given attention to the provisions of s.5(4C) of the Sentencing Act.  After careful consideration, I consider the purposes for which a sentence is imposed cannot be achieved by a Community Correction Order, even with conditions and a term of imprisonment attached.

16As well as those matters personal to you to which I have referred, I must take into account other relevant sentencing considerations.  General and specific deterrence must be given weight in the sentence I impose.  The community cannot tolerate offending such as yours that plays a part in the movement of drugs in the wider community.  Prevalence of this type of offending is a matter to be taken into account in assessing the weight to be given to general deterrence.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must protect the community from any repetition of this type of offending and I must seek to deter you from further offending as well as deterring others.

17In the circumstances and for the reasons mentioned, I impose an aggregate sentence on these three charges of two years' imprisonment.  I direct that you serve 15 months before being eligible for parole.  I declare 86 days' pre-sentence detention pursuant to s.18 of the Act.  Pursuant to s. 6AAA of the Act, I declare but for your pleas of guilty, I would have imposed an aggregate sentence of three years with a non-parole period of two years.  I make the ancillary orders sought.

(Prisoner removed.)

18Is there anything else required?

19MS PACE:  No, Your Honour.

20MS KOTHRAKIS:  No, Your Honour.

21HIS HONOUR:  Thank you for your attendance.

‑ ‑ ‑