Director of Public Prosecutions v Nguyen

[2016] VCC 242

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-01492

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH NGUYEN

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2015, 3 February 2016
DATE OF SENTENCE:	3 March 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 242

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – traffick drug of dependence (heroin) large commercial quantity – Operation Isoleucine

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:R v Wilson & Ors [2012] VSCA 141; R v Pidoto & O'Dea [2006] VSCA 185; R v Hasan [2010] VSCA 352; Ibbs v R (1987) 167 CLR 447

Sentence:Convicted and sentenced to 6 years imprisonment with a non-parole period of 4 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Solicitor for the Office of Public Prosecutions
For the Offender	Mr A. Dickenson (Plea) Ms A. Nguyen (Sentence)	Revill & Papa Lawyers

HIS HONOUR:

1The plea in this matter was entered on 8 December 2015.  Mr Pickering appeared on behalf of the Director and Mr Dickinson appeared on behalf of Mr Minh Nguyen.  Mr Nguyen is 31 having been born on 7 January 1984.  He is a kitchenhand by occupation. 

2The Indictment is C1409863.1 being one charge, a breach of s.71 of the Drugs, Poisons and Controlled Substances Act1981, of trafficking in a large commercial quantity of heroin.  The period over which Mr Nguyen committed this offence, is that he trafficked over the period 11 September 2014 to 8 October 2014, essentially one month.  The seriousness of this offence is demonstrated from the fact that Parliament has proscribed the highest penalty possible in our legislature for the breach of this section, and that is a period of imprisonment of life and 500 penalty units.

3Mr Dickinson accepted Exhibit A, which was the summary by the learned prosecutor.  Essentially Mr Nguyen's role, as described from that summary, is that he would deliver heroin on behalf of the head supplier to the syndicate that was discovered by the operation detailed in paragraphs 3 to 7 of the opening, being Operation Isoleucine.  The two persons who I have sentenced today were the persons who instigated that operation and since I am getting towards the end of the sentences in this matter and I have not, at any time, thanked the police in this regard and unfortunately the informant has chosen to not be here.  He was before.  Decided it was time to leave, did he?

4MR PICKERING:  I believe he had another commitment, Your Honour, yes.

5HIS HONOUR:  Well no doubt you will convey to him, Mr Prosecutor, certainly as far as the Court is concerned.  I think I have only got one sentence to do after this, have I not?

6MR PICKERING:  Yes, only Uyen Thai, the co-offender.

7HIS HONOUR:  Perhaps the comment should be made that the community is particularly thankful and if I can express on behalf of the community, the operation appears to be particularly successful, determined and used all the appropriate facilities available to the police to detect the criminality, in the broad sense.  I do not say that in any way to reflect on the prisoner I am sentencing because the operation related to a lot of criminals and a lot of charges of which he is not involved but I do take this opportunity to thank, in particular, the police involved in this operation.  It was a very professional operation.

8As I said, Mr Dickinson accepted the summary and, Mr Nguyen was, essentially, a person utilised by the leading administrative head, that is one way I have described her, or the hub of the wheel in another way I described her when I sentenced her, Ms Linh Trinh, who was the head supplier of the heroin into Victoria.

9With his partner or with his girlfriend at the time - with his girlfriend, Uyen Thai, he was involved, essentially, in delivering the heroin from Ms Trinh to Men Tran but also assisted at the Gordon Street property in Footscray in cutting and packaging the heroin that Ms Trinh would bring in from New South Wales.  That cutting and packaging reduced the heroin from a block size down into items and amounts which could be utilised by Men Tran to give to her customers, who then on sold. 

10In doing those items and carrying out that work at Gordon Street, Footscray, Mr Nguyen pressed the drugs, weighed them, stored them and divided them.  He was also involved in actual deliveries and the basis of the plea is that the deliveries that he was involved in to Men Tran were not less than one kilogram, being the amount required to qualify him for this particular charge.  It is to be pointed out the on-selling of Men Tran involved a much larger amounts which involved a sum of some 2.38 kilograms.

11The pre-sentence detention served by Mr Nguyen to date was 425.  Have we got an agreed pre-sentence detention?

12MR PICKERING:  Yes, it's the same as the others, 511, Your Honour.

13HIS HONOUR:  Is 511 not including today.

14MR PICKERING:  Correct.

15HIS HONOUR:  Insofar as the plea lodged by defence Counsel in the matter, again, it was a matter of fact plea considering the seriousness of this matter.  I accept the letter tendered by Mr Nguyen of apology, an acceptance of the seriousness of his criminality.  I accept also, as part of that Exhibit N3, the steps that he has taken and the courses undertaken while in prison to improve himself.  It has been appropriate and something to which he should be complimented upon.

16Insofar as the plea itself was concerned Counsel's submissions were tendered as Exhibit N1.  Counsel stressed that, as far as he was concerned to use his words, Mr Nguyen was involved in what turned out to be a very "dangerous romance".  He was assisting Uyen Thai in her assistance and her carrying out the same type of jobs and work that he had done.  She had already been so involved for some three to five months.  As he pointed out, Mr Nguyen’s role was much more limited than her and he was, essentially, trying to assist her.

17The objective gravity, he submitted, was at the lower end and, indeed, that has been the plea that is accepted.  As I say the amount delivered by way of trafficking by Men Tran is a much larger amount than the amount pleaded to in this matter.

18It was submitted that such difference discriminates their criminality.  The fact is, however, that Mr Nguyen was involved at quite a different stage.  He was a person who was assisting the main supplier and delivering to persons the product which would then be on-delivered to street dealers.  So in the hierarchy he was, in fact I find, higher in the hierarchy than Men Tran. 

19These matters are always difficult because the sentence I handed to Men Tran involved a period of her dealing at not only a higher quantity but for a longer period.  Also it involved - she had no habit and was there simply for financial reasons.  But as I said, I find her to be at a lower level in the hierarchy.  I take those matters into account as best I can on the issue of parity.  Nothing is ever, exact but clearly the difference in quantity between Men Tran and Mr Nguyen is a matter of importance.

20That importance comes about from the law in this regard, which is appropriate to recite.  In determining your role as an assistant to Linh Trinh, who was the hub in the wheel or the major organiser, you were an assistant to her.  As I say she had sourced the drugs.  You assisted in the breakdown of such sourced drugs to a degree that it could be delivered to street level.  You did that with your co-accused, and then partner.  You were, as I say, part of the organisation with the largest administrative organiser, Linh Trinh.

21Fortunately you were only involved for one month.  However that involvement was of a high degree and you have pleaded to trafficking at the highest punishment level, albeit at the bottom of that level, of persons who plead to such a charge of traffick a large commercial quantity.  I place your place in the hierarchy as clearly, obviously, less than the highest person in the hierarchy, Linh Trinh, but at a higher level than the person supplying the street dealers, of which there were five.  One of which was Men Tran, to whom you made deliveries to.

22When I sentenced Ms Trinh I mentioned that we never get the people at the top and that is probably true in this instance.  But as was pointed out by the learned prosecutor, it was Trinh who was the person, insofar as this particular scheme of trafficking was concerned, who was bringing the drugs into Victoria and in that instance it was you, Mr Nguyen, who was assisting her in a very important regard.  As the Courts have consistently pointed out, any person in the chain of such trafficking, is a person who is going to be subject to a sentence of condign punishment. 

23The considerations one had to take into account in these matters was set out by the Court of Appeal in Wilson v R [2012] VSCA 141. In particular at paragraph 21 where the following was said:

"In offending of this kind primacy must also be given to considerations of general and specific deterrence, protection of the community and denunciation of anti-social behaviour".

24Then in specifically in regard to this crime at paragraph 26 the following was said by the Court:

"Trafficking in a large commercial quantity is an offence of utmost seriousness as the maximum of imprisonment unequivocally demonstrates".

25This is particularly so where such offending was clearly for profit.  In regard to you particularly, there does not seem to be any evidence of gaining huge financial benefits however you were part of, no doubt, assisting Trinh in obtaining large financial benefits and it is farcical to think that you were there only because of your relationship.  There is no doubt in my mind that you were also there for some financial benefit.

26When you have a quantity based scheme such as this it is necessary to recall that where Parliament proscribes a maximum penalty of this type, as was said in Wilson, 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. I do want to point out, however, that quantity as such does not have a arithmetical relationship to sentence but, of course, is a very significant matter in sentencing given such scheme.

27This scheme was fully detailed by the Court of Appeal in Pidoto & O’Dea and in particular at paragraph 34 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 the drug of dependence that has been trafficked".

28Further in that case, at paragraph 62 the Court indicated:

"The ultimate question for a sentencing Court of consider, given such structure, is not whether trafficking one drug is to be viewed more seriously than trafficking another but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing with the particular matter involved".

29As I have said, the maximum penalty in regard to your offence is one of utmost importance and significance.  Your offence, and there was no issue with your Counsel in this matter, warrants a sentence of imprisonment which was realistically accepted by Mr Dickinson.  His submissions essentially involved the factors I should take into account in fixing both the head sentence and the minimum period you should serve before being eligible for parole.

30Mr Dickenson, as I said earlier, pointed out the differences between you and your co-accused.  He pointed out, in particular, your background, the plea being made at its earliest stage, the utilitarian benefit of that and the significance saving to the community. He not only submitted that such was an indication of your remorse but relied upon Exhibit N2, which was your letter, which I have already referred to, as a further indication of such remorse.

31As indicated you are a person with no priors.  You have a background of good schooling, with a degree.  I am not quite sure what degree it was but it was something to do with trade and commerce and you were part of a grocery business of your in-laws. 

32You came to Australia in 2011 and you have had children to two different women.  You apparently separated from the last of those women in 2014 when you met your co-accused.  Your Counsel described what you did for her by being part of this scheme as misguided altruism or a dangerous romance.

33Mr Dickenson also spoke of the certificates that you have received in gaol from the work you have done and as I said, those matters I have re-looked at, being Exhibit N3.  He spoke of the problems you have had, given that you have been subject to the lockdowns which have occurred at Barwon, and of course the risks that you face, albeit with your children here, one daughter here, of deportation.

34That matter of course is not a matter for me, it is an administrative matter, and he was simply stating that as a fact.  He submitted that in so far as the sentence of Men Tran is concerned you should be sentenced at a lower level then her.

35Mr Pickering, in reply, accepted there was a need for a discrimination in sentence in regard to Men Tran's sentence and put some propositions about the law in so far as the deportation issue which really are not relevant.  Sorry, were of assistance, but in the circumstances, being that it is administrative, it is a matter that will in due course take care of itself.

36I think the balancing of your role as against the role of others that I have sentenced, in particular Men Tran, the understanding of the serious nature of your crime, albeit for a much smaller portion, and placing you in a higher level of hierarchy are interesting balancing propositions when considering your sentence.

37In final conclusion I have accepted the submission put by Mr Dickinson and that will be reflected in the sentence.  If you would stand please?

38You will be sentenced to a period of imprisonment for this offence of six years with a minimum period to serve before being eligible for parole of four years. 

39The one matter that I did not point out that I do take into account in imposing this sentence is the statistics in the snapshot.  The snapshot that I refer to is Snapshot No.163, a period 2008/2009 through to 2012/2013, the median sentence for this offence was one of seven years with a median period of eligibility for parole being five. Albeit that these figures show a much broader range than that, I only refer to the median sentences.  The range, for example, goes up to 20 years for the head sentence.  It is, however, important to assess sentencing snapshots for what they are, and that is simply another mode to assist Judges in taking into account upon the issue of synthesis. In that regard I refer to the comments of the Court of Appeal in R v Hasan [2010] VSCA 352.

40When making considerations as to relevant criminal culpability and/or parity is it necessary of course to assess the objective criminality of a crime, not so much in regard to each individual offence that you may have committed, but in regard to the individual offences, for example, of Men Tran, upon which submissions have been made in this case.

41I refer to the comments in so far as Ibbs v R (1987) 163 CLR 447 at 452. However I stress that the comments made in Pidoto & O’Dea are that “other things being equal,” the larger the quantity trafficked the more serious the offence, and I stress the comments made by the Court in that matter, "other things being equal."

42I take into account the differences between you as I have detailed, and Men Tran, as to such level of criminality.  As I say, taking account of those matters, I have determined the appropriate sentence that should be imposed upon you in this matter is one of six years with a minimum of four.

43In regard to the period of service of pre-sentence detention I declare pursuant to s.18 of the Sentencing Act1991 that the 511 days, not including today, that you have served to date while on remand be taken as service of this sentence, and the declaration to that effect be recorded in this Court.

44Madam Interpreter, I want you to explain the following. The Parliament has prescribed that I should tell Mr Nguyen that there was a benefit to him of pleading guilty. Pursuant to s.6AAA of the Sentencing Act 1991 I declare that had you not pleaded guilty I would have sentenced you to a period of imprisonment of eight years with a minimum of five.  It is important for you, Madam Interpreter, to tell Mr Nguyen that by pleading guilty his sentence is not eight years with a minimum of five, but six years with a minimum of four.

45That is the benefit to him of pleading not guilty.  Mr Prosecutor or Ms Nguyen, any other matters that I need to attend to?

46MR PICKERING:  No, Your Honour.

47MS NGUYEN:  No, Your Honour.

48HIS HONOUR:  I assume from your letter you already realise the stupidity of you being involved in this serious criminality.  When you serve your sentence, if you are lucky enough to remain in Australia, one would hope that you become a much better citizen.  Thank you.  The prisoner can be taken away, officer.

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