Director of Public Prosecutions v Nguyen

[2015] VCC 1908

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-01515

DIRECTOR OF PUBLIC PROSECUTIONS

v

UT NGUYEN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2015
DATE OF SENTENCE:	16 December 2015
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2015] VCC 1908

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              Sentence – traffick heroin – Operation Isoleucine – gambling addiction

Legislation Cited:      Drugs, Poisons and Controlled Substances Act1981 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:R v Pidoto & O'Dea [2006] VSCA 185, R v D'Aloia [2006] VSCA 237, Nguyen v R [2010] VSCA 127, Hasan v R [2010] VSCA 352, Ibbs v R (1987) 163 CLR 447

Sentence:Convicted and sentenced to 3 years imprisonment with a non-parole period of 1 year and 9 months imprisonment

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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 B. Nibbs	Melasecca Kelly and Zayler

HIS HONOUR:

1Ms Ut Nguyen is aged 60, having been born on 20 September 1955.  Her normal occupations are clothing work and in factories that produce clothing.  I should say, Madam Interpreter, if you could say to Ms Nguyen that when I finish the sentence I will ask for her to stand as I pronounce it.

2On 8 December of this month Ms Nguyen pleaded guilty to charges in Indictment No.E13371911. In that Indictment was one charge laid pursuant to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981, that is, a charge of trafficking simpliciter in heroin.  The period detailed for such trafficking was a period of one month, from 8 September 2014 through to 8 October 2014.  The seriousness of such behaviour is recognised by the fact that the max penalty imposed by Parliament is one of 15 years' gaol.  That in itself indicates the seriousness of this offence.

3Exhibit A, which is the prosecution summary, was tendered by agreement with Mr Nibbs as representing the facts upon which I am to sentence Ms Nguyen.  Ms Nguyen comes before the Court as a result of an investigation undertaken by the police force in what is known as Operation Isoleucine.  It began in February of 2014 and involved heroin trafficking throughout south-eastern Melbourne.  The role played by Ms Nguyen was an on-seller of heroin imported from Sydney, supplied to her by the Trinhs, specifically Lin Trinh.

4The particular role played by the prisoner in on-selling such heroin was discovered by observation and listening devices.  The sales by her were usually in two-ounce lots and at an average cost of some $18,500.  She was involved in the recorded discussions, in discussions as to the quality of heroin, as to the manner of deliveries, as to customers' reactions, all of such discussions with her supplier, Lin Trinh.

5On 9 October 2014 warrants were executed throughout Melbourne pursuant to this police operation.  This particular warrant was on her premises at Unit 1, 11 Charles Street, Sunshine.  On that particular occasion there was cash found in the premises in the sum of $4,230.  I have been asked to sign a disposal and forfeiture order, which I believe I have, and the provisions as to forensic orders apply automatically. 

6Where Parliament prescribes a maximum penalty of 15 years, such shows unambiguously how seriously the community, through its Parliament, views this particular crime.  Indeed, it is irrelevant what particular drug is involved.  The system essentially is quantity-based, and we have in regard to the criminal provisions in our State what is known as a quantity-based sentencing regime.  I should point out that the quantity of such has no arithmetical relationship to a sentence, but of course is a very significant matter in sentencing. 

7This particular regime has been fully detailed by the Court of Appeal in R v Pidoto & O'Dea [2006] VSCA 185 [34], where four of the Appeal Court Justices that I have referred to and noted that by that structure Parliament has:

“Adopted a hierarchy of seriousness defined by, and only by, the quantity of the drug of dependence that has been trafficked." 

8In Pidoto & O'Dea at [62] the Court indicated that the ultimate question for a Court is:

“Not precisely what item was trafficked or who was involved, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that there may be imposed in dealing with the material involved." 

9As I have remarked, the maximum penalty in regard to your offence, Ms Nguyen, is of significance. 

10Further, Nettle JA, as he then was, in R v D'Aloia [2006] VSCA 237 [56], set out the general approach for sentencing judges. In that case he was dealing with MDMA. He said as follows:

"As far as the effects of MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are described have deleterious consequences of antisocial proportions, and that trafficking in any of them is therefore appropriate to be regarded as a serious criminal offence."

11Clearly, Ms Nguyen, your offence warrants a sentence of imprisonment.  In the plea on your behalf by Mr Nibbs that was realistically accepted, there was no argument with that proposition.  Mr Nibbs’ submission essentially involved the extent of that and whether or not, given the matters put to me, imprisonment could be combined with a Community Correction Order.  As to range, I take into account the comments of the Court of Appeal in Nguyen v R [2010] VSCA 127, in particular as the current sentencing practice, albeit that that particular case was directed to a cultivation charge.

12I also note the Court's comments as to the current inadequacy of current sentencing practice, but the fact is that this Court is bound by such current sentencing practice. 

13In that regard, Sentencing Snapshot No.161 indicates that in regard to this particular crime the majority of persons sentenced were male, which certainly has not been the situation in the last three weeks in which I have been involved with this particular syndicate.  Eighty-seven per cent of persons sentenced were given an immediate gaol sentence.  In the period analysed in such Snapshot from 2008-09 through to 2012-13 the median sentence was two and a half years, with the median parole period, that is, a period to be served before being eligible for parole, being one year and six months.  The range as to both median figures is obviously far broader than that.  The range in regard to head sentences went from three months through to eight and a half years, and in regard to non-parole periods, again from three months through to six years.

14I think it is important, as the Court of Appeal said in Hasan v R [2010] VSCA 352 that a Court realises that a Snapshot is just that; it is only one of the factors that a Court takes into account. By far the most important matter that needs to be taken into account in this particular case is the legislation itself, and the matters set out in the Sentencing Act 1991, in particular s.5(2)-(6).

15As I think is now obvious to you, Ms Nguyen, the amount that you were involved with in a regime based on quantity was substantial, albeit, in the circumstances of this case, not able to be quantified precisely.  I therefore assess your criminality in the mid to high range (see Ibbs v R (1987) 163 CLR 447 [452]).

16The role that you played was accepted by Mr Nibbs as being a supplier of street dealers.  You have a prior.  It was of some time ago, being seven years.  It was a matter dealt with in the Melbourne Magistrates' Court on 11 October 2008.  It concerned a traffic and possession case.  You were given three months' imprisonment, which was suspended for 18 months. 

17The fact is that you successfully carried out that period of suspended sentence, and that is positive, however what is not positive is that the suspended sentence finished in approximately May 2013 and here we are
15 months after that and you are involved in criminality of this degree.  As I said, Mr Nibbs accepted in his submission that albeit the prior, he made the point that it is only one prior given your age and that you were successful insofar as completing the requirements of that particular disposition.

18While accepting that a period of immediate imprisonment is appropriate in this case, he put to me a number of issues.  The first of course is the early resolution of this matter, being resolved at committal, and such being an indication of your personal remorse and the utilitarian benefit of such plea. 

19In particular he tendered as Exhibit 1 the report of Mr David Ball psychologist, dated 24 November 2015.  Mr Ball set out your personal circumstances and his professional opinion, and this is not put by way of any excuse, but was satisfied that you came under the heading of the DSM-V diagnostic criteria for serious gambling disorder; that because of your current position such as in sustained remission, as he called it, in a controlled environment; and that there was in his view a clear nexus between your gambling and your offending.

20Insofar as your rehabilitation, it is clear that your rehabilitation depends upon you not being involved in any gambling whatsoever, and that is why I was taking the view that you should not be, in my view, anywhere near Crown Casino for anything, much less entertainment venues.

21Insofar as your personal background, those matters were set out by Mr Nibbs, in particular from paragraphs 7-14 in his submission.  Those details indicate that you are now divorced, that you have three adult sons, however there has been no contact with you for some time.  There has been in regards to you what appears to be a shunning of you; whether it is to do with these matters or other broader matters, I am not too sure.

22Insofar as your employment is concerned, I have already indicated that essentially because of your limitations of language your employment has been largely factory work and retail sales.  Insofar as your time in custody is concerned, it is submitted that that has been onerous because of the difficulties that you have with your language and your age and the limited number of Vietnamese people. However during that time you have been diligent.  You have done a number of courses and you have been working while in prison, and tendered as Exhibit 3 were a number of certificates as to the courses that you have undertaken.

23However, as was put by Mr Nibbs, this is the first time that you have been in custody, and as a result you have found it particularly onerous given your age, some of the people that you have met at prison, and you are somewhat scared in prison and scared insofar as your future was concerned. 

24Insofar as your offending, it was put by Mr Nibbs that the real causative factor was gambling, that such came about as a result of your loneliness and the fact that you were living in a single household, that you gambled with others, which was socialisation for you.  It is suggested that you lost a lot of money and were subject to the loan sharks at the casino.  I think I have said enough about the casino in the last two weeks.  Again, it mystifies me how all this drug dealing, exchanging of money, can go on within a casino, that is supposed to be secure and being controlled by security. 

25It is suggested that you borrowed some $30,000, and that ultimately the debt that you had to work off, so to speak, became a sum of $80,000, and it was suggested that that is the way that you came into this criminality.  Again, as I put, there was no excuse offered by way of that, but just an explanation of how a person, despite your one prior for a similar crime, could suddenly be propelled, or in their life suddenly be involved in such serious criminality.

26The submission from Mr Nibbs as a result of all of those matters essentially stressed your age, your current position.  It acknowledged the seriousness of the charge and the principles that I have already referred to, the need for general and specific deterrence to be taken into account by this Court.  As to ultimate disposition, Mr Nibbs realistically indicated that there must be an immediate term of imprisonment consistent with the principles that I spoke of earlier, however submitted that the time that you have served, which as of today is 433 days, could be sufficient in all the circumstances. Further that such could be combined, upon the provisions set out in the Sentencing Act 1991 and the principles set out by the Court of Appeal in its guideline judgment in Boulton v R [2014] VSCA 342, with a Community Corrections Order. He asked me to give that matter consideration and suggested various conditions that should apply.

27As I have indicated, tendered today was a pre-sentence report pursuant to s.37(b) of the Sentencing Act 1991.  That has been tendered as Exhibit B.  It is a positive report and, as detailed and discussed earlier, it talks about various conditions that could be appropriate in your regard.

28In response to such submission the learned prosecutor indicated that it was within range for a combined prison and Community Correction Order to be imposed; that is the view of the prosecution.  However, unlike the others that I have dealt with in this series of crimes of trafficking, it was submitted that this case was somewhat different because of the prior offence in regard to like offending, albeit much less serious than the crime that you are before the Court today.

29I have given the submission appropriate consideration and, as I say, the principles of Boulton I have also considered, however I conclude, given the seriousness of this criminality, it would not be appropriate to impose a Community Correction Order in this matter.

30If you would stand please.

31For this offence of trafficking in heroin I have determined that the appropriate period of imprisonment that should be imposed upon you is a period of three years' gaol, and I further order that the period, Ms Nguyen, that you must serve prior to being eligible for parole is one year and nine months.

32You have currently served 433 days, which is approximately one year and three months.  Pursuant to s.18, I declare that such service be deemed as service of this sentence, and Madam Interpreter, you can tell Ms Nguyen that roughly means she has a further six months to serve before she would be eligible for parole.  As I say, I formally make a declaration pursuant to s.18 in regard to those 433 days.

33I also declare pursuant to s.6AAA of the Sentencing Act 1991 that had you not pleaded guilty, to the extent that one is able to satisfy the requirements of Parliament insofar as it relates to only one issue that a Court takes in regard to sentencing, the period that I would have sentenced you to serve is a period of four and a half years, with a minimum of three years. 

34It is important, Madam Interpreter, that you explain to Ms Nguyen that the sentence that I have given her of three years with a minimum of one year and nine months would not have been the sentence had she not pleaded guilty.  Had she pleaded guilty and been convicted the sentence would have been four and a half years, with a minimum of three years.  So it is important for her to understand the discount that has been given to her in those circumstances.

35Gentlemen, are there any other matters I need to attend to?

36COUNSEL:  No, Your Honour.

37HIS HONOUR:  Yes, Madam Interpreter, can you just say, one, you must not go back to Crown, and I am sure once you have served this sentence you will go back to working in the community as you have prior to this time.  Yes, I thank counsel, and I will stand down while we get ready for the next one.

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