Director of Public Prosecutions v Nguyen

[2016] VCC 711

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-01339

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN TUNG NGUYEN

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2016
DATE OF SENTENCE:	26 May 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 711

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – plea of guilty to trafficking commercial quantity methylamphetamine, possess of an unregistered handgun, non-prohibited person possessing an unregistered longarm and others   

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited: Dao v R; Tran v R [2014] VSCA 93; R v Pidoto & O'Dea [2006] VSCA 185; R v Wilson & Ors [2012] VSCA 141Wong v R [2001] 207 CLR 585; Jed Harris v R [2016] VSCA 70; Hasan v R [2010] VSCA 352; R v Tezer; R v Davis [2007] VSCA 123; Gavanas & Khodr v R [2013] VSCA 178; Mileto v R [2014] VSCA 161

Sentence:Convicted and sentenced to 5 years and 1 month imprisonment with a non-parole period of 3 years and 5 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Martin	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J. Miller (Plea) Mr J. Valos (Sentence)	Valos Black & Associates

HIS HONOUR:

1On the 18th day of this month, Mr Van Tung Nguyen, who is aged 48, born on 28 January 1968, and is a handyman, pleaded guilty to three charges in Indictment F10191090. 

2The first of those was traffic a commercial quantity of methylamphetamine, for which the maximum penalty prescribed by Parliament is indicative of the seriousness of such charge, being 25 years.  Charge 2 on the Indictment was possess an unregistered handgun.  This related to both a Derringer pistol and a home-made .44 handgun.  The maximum penalty prescribed for that matter, again indicative of its seriousness, is one of seven years, and/or 600 penalty units.  And the third charge on the Indictment was possess an unregistered long arm, in this instance, two, being a Winchester rifle and a Stirling 12-gauge shotgun, for which the maximum penalty prescribed is one of two years. 

3In addition, pursuant to s.145 of the Criminal Procedure Act, I was asked by counsel on behalf of Mr Nguyen to deal with four charges summarily. Those charges were: possess a prohibited weapon, in this instance a bulletproof vest, Charge 7, for which the maximum penalty is two years' imprisonment and 240 penalty units; state false name, Charge 9, which brings with it a penalty of five penalty units; possess a cartridge, Charge 11, 40 penalty units; and possess a controlled weapon, in this instance being a samurai sword, Charge 12, for which the maximum penalty is one year and/or 80 penalty units.

4I have signed forfeiture and disposal orders, and have already given those to the prosecution.  Exhibit A was accepted, being the prosecution summary in the case by Mr Miller as the facts upon which I am to sentence Mr Nguyen.  All of the items that I refer to were found via a warrant executed at 35 Concord Circuit Albanvale on 15 January 2015.  This is a property which was owned by
Mr Nguyen's mother.

5As a result of such warrant and the items found, the matter was resolved by the following March, that is, 1 March.  Arraignment took place in April of this year, and as I remarked, albeit serious crimes, Mr Nguyen was here before the Court for sentence, within a little over a year from the time of apprehension. 

6The drugs involved 15.1 grams of methylamphetamine found in the house, and 247.8 grams found in Mr Nguyen's car, each of such being 90 per cent pure.  It is to be noted that the trafficking quantity insofar as pure methylamphetamine is a figure of 100 grams, that is, of a commercial quantity, pursuant to Table 3 of Schedule 11.  In this instance, we are dealing with 237 grams, and it is also, as indicated by the Court of Appeal, appropriate to note that the next level, which takes one into the large commercial quantity, is 750 grams.

7All the other firearms I have mentioned were also found, as were the accoutrements connected with such trafficking, and a sum of $2,380 cash. 
Mr Nguyen has spent on remand approximately 16 months in gaol, which has been confirmed today at 497 days, and has priors of significance.  It is important to make the point that one does not come up for sentence again in regard to one's priors, and significantly, in regard to Mr Nguyen, there was a large break between his criminality, some 11 years.  In both 1997 and 2004, he was gaoled for trafficking in heroin.  He had a further offence in 1997 for trafficking, for which he got a 15-month suspended sentence, and then going back to 1991, he had a conviction for possession.

8It is important, if possible, to ascertain the role of a prisoner in such criminality. Unfortunately, there was no precise instructions given to Mr Miller in this regard.  I said therefore, I would be required to sentence in regard to the weight, on the basis that he was trafficking a commercial quantity of such methylamphetamine.  I accepted the proposition put to me that there was no evidence in regard to Mr Nguyen of any enrichment or enhanced lifestyle as a result of such trafficking, there was no submission put by the Crown that I should not accept the proposition that he was doing so to feed an addiction, and that he was involved in this serious criminality to support his habit.

9All of such matters are put to explain this serious crime and why he was involved.  There was nothing further in mitigation put. Where there is no explanation as to role, or explanation as to why he played any particular role, I refer to Dao v R; Tran v R [2014] VSCA 93 [17] and [40-41]. The principles, of course, apply that clearly he has been found with over double the amount that brings him into the commercial level, and as I have stated, that is approximately one-third of the next level. He was found in possession, there was no other details, no evidence as to any precise sales.

10When you have a quantity-based scheme such as this, it is necessary to recall where Parliament prescribes a maximum penalty of this type, as was said in R v Wilson & Ors [2012] VSCA 141 such shows unambiguously how seriously the community through its Parliament views this particular crime. Indeed, it is irrelevant, as set out in R v Pidoto & O'Dea [2006] VSCA 185, which particular drug is involved. The system is quantity-based, and we have regard to the criminal provisions in our State, a quantity-based sentencing regime.

11I do want to point out, however, that quantity as such does not have an arithmetical relationship to a sentence, but of course it is a very significant matter in sentencing given such scheme.  So there is no confusion in this regard, I note the Court of Appeal's reference to Wong v R [2001] 207 CLR 585, in the recent case of Jed Harris v R [2016] VSCA 70, and the principles expressed therein, that the weight of drugs alone can never be the chief factor in sentencing, but all the myriad factors relevant to sentencing need to be given appropriate weight, given the particular facts and circumstances in any particular case.

12The scheme under which our drugs regime in Victoria operates was again, as I said, fully detailed in R v Pidoto & O'Dea [2006] VSCA 185 [11], where four of the Court of Appeal Justices noted that by such structure: "Parliament has adopted a hierarchy of seriousness defined by, and only by, the quantity of drug of dependence that has been trafficked". Further in that case at [62], the Court indicated that the ultimate question to be answered and considered by a sentencing Court is not whether trafficking one drug is to be viewed more seriously than trafficking of another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum that may be imposed in dealing with a particular matter involved.

13As I have said, the maximum penalty in regard to your offence, Mr Nguyen, is of utmost importance.  I do take into account the sentencing snapshot 162 taken during the period 2008, 2009, through to 2011 and 2013, which shows the median total effective sentence for this offence being one of four years, with a median period of eligibility for parole being three.  Albeit that these figures show a much broader range than that, I have only referred to median sentences.  The range, for example, goes up to ten years for the total effective sentence. 

14Indeed, as Mr Miller put by way of Exhibit 2, that particular snapshot has an update, prepared by the Sentencing Advisory Council, and shows in the period from September 2010 to 6 June 2015, the median period of imprisonment imposed has increased, so that the median total effective sentence is now, according to those statistics, four years and two months, and the minimum has gone up to two years and five months.  It is, however, important to assess sentencing snapshots for what they are, and that is simply another mode to assist judges to take into account, in sentences, as part of the process of synthesis.  In that regard, I refer to the comments of the Court of Appeal in Hasan v R [2010] VSCA 352 when they said, when considering relevant criminal culpability and/or parity that "it was necessary to assess the objective criminality of a crime, not so much in regard to each individual offence that may be committed, but in regard to the individual culpability".

15On the issue, your counsel provided me with a number of comparison cases, each of which I have read, each of which has its own particular circumstances.  The matter of R v Tezer; R v Davis [2007] VSCA 123 ‘Tezer’ involved what was described as a busy drugs salesman, it was a situation where the scheme was quite different, and the commercial quantity level, at that stage was one of 250 grams.  Also in regard to Tezer, which was part of that case, Tezer had no priors whatsoever.  The other cases were Gavanas & Khodr v R [2013] VSCA 178, and Mileto v R [2014] VSCA 161. All assist the synthesis, but essentially, as the authorities show, one has to come down to the particular facts in any particular case for the final consideration.

16Insofar as those particular matters are concerned, I had Mr Miller's written submission, Exhibit 1, and he spoke to those.  He spoke of the personal, family, educative and employment factors in paragraphs 4 through to 11.  At paragraphs 12 to 8 he took me to the history of Mr Nguyen's drug taking. As I said, in his favour, when he was released from his last significant period of imprisonment in 2005, he underwent the imposition of a Naltrexone belt, and apparently did do successfully in regard to his addiction issues for some time, as reflected in the considerable period of no further offending.  However, he drifted back, as these offences demonstrate.

17The prisoner’s father and sister were in Court at the time of the plea, and although he has not seen a lot of his father, such was indicative of family support.  I accept that the plea of guilty in this case could not have been really made any earlier, as I remarked, it is somewhat amazing to be before a Court and being sentenced so quickly after the time of detection.  I accept that discount in that regard is appropriate for this plea of guilty and its utilitarian benefit to the State. 

18Mr Ellis, in her submission, in answer to the matters put by Mr Miller, stressed the seriousness of the accompanying offences, in particular Charge 2, and I clearly do not dispute any of those matters.  I take into account as best I can all of those matters that I have referred to, Mr Nguyen, in your sentence.  Taking all those into account, I sentence you as follows, and I would ask to stand, please?

19On Charge 1, you will be sentenced to a period of imprisonment of four years. On Charge 2, a period of imprisonment of two years. On Charge 3, a period of imprisonment of six months, they are the charges in the Indictment.  Taking Charge 1 as the base sentence of four years, I would add to that base sentence nine months from the period imposed in Charge 2, and three months from the period imposed in Charge 3, and order that they be served cumulatively with each other, and with the base sentence, making a total effective sentence imposed for the Indictment, of five years.

20In regard to the summary matters, I sentence you in regard to Charge 7 to a period of three months' gaol.  In regard to Charge 9, two penalty units, the appropriate penalty unit at that time being $147.61, and as to Charge 11, ten penalty units, and Charge 12, four penalty units. 

21Insofar as the total effective sentence of five years in the Indictment, I order that one month of the period of gaol imposed in regard to the summary Charge 7 be served cumulatively upon the total effective sentence imposed on the Indictment, making a total effective sentence for all of the charges to which you have pleaded guilty in this matter of five years and one month.  I order that the minimum period that you should serve before being eligible for parole is a period of three years and five months. 

22I declare the 497 days that you have served to date be deemed as service of this sentence and the declaration of such be entered in the record of this Court.  Insofar as the 16 penalty units imposed for the summary matters, I grant a stay of three and a half years in regard to such payment.

23Madam Interpreter, it is important for me to ask you to explain to Mr Nguyen the following. The upshot of all that, in layman's language is that Mr Nguyen is being sentenced to a total sentence of five years and one month, with a minimum period of three years and five months. Pursuant to s.6AAA of the Sentencing Act, I am required by Parliament to say that had he not pleaded guilty, the sentence, and I relate this only to the total effective sentence, that is the best way I can comply with Parliament's requirements, had he not pleaded guilty, I would have sentenced him to six years and nine months imprisonment with a minimum period of four years and eight months.  Just so there is no misunderstanding, Madam Interpreter, that is stated to explain to him the importance of him pleading guilty, and the discount provided, but the actual sentence is five years and one month with minimum three years and five months, of which he has already done nearly 17 months, does he understand that?  All right?  Yes, well good luck, thank you, you can take the prisoner - sorry, is there any matters?

24COUNSEL:  No, Your Honour. 

25HIS HONOUR:  All right, thank you both.

26COUNSEL:  As Your Honour pleases.

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