Director of Public Prosecutions v Nguyen
[2015] VCC 1545
•29 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01166
CR-15-01305
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH NGUYEN |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 October 2015 | |
DATE OF SENTENCE: | 29 October 2015 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1545 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | OPP |
| For the Accused | Dr M. FitzGerald | Martine Marich & Associates |
HIS HONOUR:
1 Anh Nguyen, you have pleaded guilty to charges as follows:
· On Indictment number E10434556 (the first indictment) - one charge of Possess Drug of Dependence, one charge of Traffic Drug of Dependence and one charge of Possess Tablet Press. You have consented to me dealing with a related summary charge of Deal with Property Suspected of Being the Proceeds of Crime. You have pleaded guilty to that charge.
· On Indictment number E12106546 (the second indictment) - two charges of Possess Drug of Dependence, one charge of Traffic Drug of Dependence - Commercial Quantity and three charges of Traffic Drug of Dependence. You have also consented to me dealing with related summary charges of Deal with Property Suspected of Being the Proceeds of Crime (2 charges), Possess Prohibited Weapon without Approval, Drive Whilst Disqualified and Possess Imitation General Category Handgun. You have pleaded guilty to these summary charges.
2 The maximum penalties for the offences are as follows:
· Possess Drug of dependence:
o Trafficking purpose excluded: one year imprisonment or 30 penalty units
o Trafficking purpose not excluded: five years' imprisonment or 400 penalty units
· Traffick Drug of Dependence - Commercial Quantity- 25 years' imprisonment
· Traffick Drug of Dependence - 15 years' imprisonment
· Possess Tablet Press - five years' imprisonment
· Deal with Property Suspected as Proceeds of Crime - two years 'imprisonment or 240 penalty units
· Possess Prohibited Weapon - two years' imprisonment or 240 penalty units
· Possess Imitation General Category Handgun - two years' imprisonment or 240 penalty units
· Drive Whilst Disqualified-
o First Offence: four months' imprisonment or 30 penalty units
o Subsequent Offence: two years' imprisonment or 240 penalty units.
3 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in the plea proceedings.
4 Briefly, the charges on the first Indictment (and the related summary offence) were all committed on 6 February 2014. On that date, the police executed a search warrant at your home address in Maidstone. Two other persons, Cipriano and De Guzman were present at the time. Police searched the bedroom occupied by Cipriano and located a small quantity of drugs. They met you on the second level of the house. You had 12.9g of methylamphetamine in a bag in your pocket (charge 2) and $9520.60 cash in a satchel you were carrying (related summary charge). Police then searched the bedroom finding 30 clear plastic capsules containing MDMA and a bag of empty clear capsules (Charge 1). Finally, police located a tablet press under the staircase, the plunger matching a drawing in a notebook located in your bedroom (Charge 3).
5 You were arrested and interviewed. In relation to the money in your possession, you told the police that your parents in Vietnam had provided half of it. You told the police that you did not know the drugs were in your pocket. Otherwise you made no comment.
6 You were released on bail with conditions that included participation in CISP.
7 Your counsel submitted that as far as Charge 1 on the indictment is concerned, I should be satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in that drug of dependence. He noted that you were a drug user with appearances in the Magistrates' Court in June, August and November 2013 for possession of the drug ecstasy. He also submitted that the quantity of drug was relatively small and consistent with possession for your own use. The prosecutor disagreed submitting that although there may be some element of possession for your own use, the circumstances of this case – including the large quantity of cash in your possession, the trafficking in metylampetamine and the discovery of the pill press - all spoke against such a finding. I agree with the prosecutor’s submission. This means the higher maximum penalty applies on this charge.
8 The charges on the second indictment (and the related summary offences) arise out of an investigation by police in the first half of 2014, of drug trafficking in the Latrobe Valley area by you and two co-offenders, Borg and Hornsey.
9 On 14 June 2014, you were driving your car along the Princess Highway at Flynn when the police intercepted you. When searching the vehicle, the police located 14 MDMA tablets and 4.4 grams of white powder (Charge 1).
10 On 26 June 2014, the police executed a warrant on your address in Sunshine West. They located 732.3 grams of methylamphetamine, including 657.1 grams on a tray in the spare room and the balance in zip lock bags (Charge 2); 1407.4 grams of 1,4 Butanediol in 2 bottles in the fridge (Charge 3); 71.4 grams methylone (Charge 5); 27 tablets of MDMA, 10 tablets of buprenorphine, 13 tablets of diazepam and 26 tablets of methorphan (Charge 4); and 1.723 kg of cannabis L in plastic bags (Charge 6).
11 In addition, the police found a sword and scabbard (related summary charge of possess prohibited weapon); an imitation firearm in the form of a cigarette lighter (related summary charge of possess imitation firearm); property including an Audi car, a Honda motorbike, computer equipment, mobile phones and other items (related summary offence of deal with the proceeds of crime) and $6,130.00 dollars in cash (related summary offence of deal with proceeds of crime). Finally, you admitted to police that on 25 June 2014 you drove a vehicle whist disqualified.
12 On Charge 1 on this indictment, your counsel submitted that given the quantity of drugs located in your possession, I should be satisfied on the balance of probabilities that the offence was not committed for any purpose relating to trafficking in that drug. The prosecutor disagreed with that submission, referring me to your ongoing involvement with two other offenders in the Latrobe Valley and your subsequent apprehension for trafficking drugs. Again I accept the force of the prosecutor’s submission on this issue. This means the higher maximum penalty applies to this charge.
13 Mr Nguyen, the offending covered by the second indictment is very serious. You were in possession of a commercial quantity of methylampheatamine. The maximum penalty available for that offence is an indication of its seriousness. You were also involved in trafficking other drugs. The drugs, property and cash found in your possession confirm that you were not a low-level subsistence trafficker. You were clearly involved in an operation that was profitable and relatively sophisticated. The fact that you were on bail for other drug matters at the time aggravates the offending.
14 Mr Nguyen with this offending, general deterrence, just punishment and denunciation are all highly relevant sentencing considerations.
15 On 4 June 2014, you were convicted and fined $2,000 in the Magistrates’ Court for a number of offences including possess prohibited weapon and drive whist disqualified. A charge of possess ecstasy was proved and dismissed. These convictions were recorded prior to your offending on the second indictment. In addition, there were a number of charges laid against you throughout 2013. These included possess ecstasy, use ecstasy and drive whilst disqualified. These matters were resolved in the Magistrates’ Court on 6 October 2014 and do not constitute prior convictions. However, they are relevant because they confirm your history of drug abuse and offending. This in turn means that specific deterrence and protection of the community have some relevance as sentencing considerations.
16 I now move onto those matters relative to your background and those matters in mitigation.
17 You are 24 years old. You come from Vietnam. Your mother, father and two older sisters still reside in Vietnam. You come from a successful and loving family. Your counsel told me that you had a “privileged upbringing.” Your parents placed great value on education and wanted you to be educated in an English speaking tertiary institution.
18 When you were 17 years old, you came to Australia on a student visa. You were unable to speak or understand English and you spent six months studying the language. Your parents financially supported you. They wanted you to obtain qualifications that would assist you when you returned to work in Vietnam.
19 After completing your course at Monash College, you enrolled in a business college. You did not complete the course at that institution. You met other young people who exposed you to a lifestyle that you found impossible to resist. You did not have the supervision of your family to protect you and you succumbed to a hedonistic lifestyle. You attended night clubs where you were exposed to drug use. You first used ICE in late 2011 or early 2012 and you became addicted. You also engaged in the use of MDMA. In the circumstances of escalating drug use and indebtedness to suppliers, you leased premises from a known criminal figure who entrusted you with the pill press. These were the circumstances of your first foray into drug trafficking.
20 When the police attended the Maidstone address on 6 February 2014 they found you in possession of methylamphetamine, MDMA and a considerable amount of cash. Had your offending stopped then, you may well have avoided a lengthy term of imprisonment. No doubt you were bailed into CISP with the expectation that you would make the most of the opportunity to address your drug abuse and remain offence free. That didn’t happen. You continued to use drugs and became actively involved with two other offenders in trafficking drugs in the Latrobe Valley. Your co-offenders were arrested on 25 June 2014. Their cases are yet to be resolved. You have been in custody since your arrest on 26 June 2014.
21 Your counsel told me that after completing your sentence it is your desire to return to your family in Vietnam. It seems likely that, one way or another, your desire will be realised. Given this situation, I am unable to accept the submission that the prospect of your deportation should be regarded as a significant matter in mitigation of sentence. In some cases the prospect of deportation would be a burden for an accused. This is not such a case.
22 Mr Nguyen, I am satisfied that you are most likely to be successful in your rehabilitation if you return to Vietnam. Your family reside there and they offer you strong support. They currently have regular weekly phone contact with you. Your father has written a letter in which he makes it clear that notwithstanding the fact you have caused your family great distress by your behaviour, they will support you fully on your return to Vietnam. On the other hand, your last few years in Victoria have been marked by persistent drug use, a failure to comply with bail conditions designed to assist your rehabilitation and serious criminal offending.
23 In determining the appropriate sentence in this case, I have taken account of the following matters in mitigation. First, you were a young man when you committed these offences. Even though this offending is very serious, your youth is still a factor of relevance – most particularly as it relates to your future prospects. Second, this is your first sentence of imprisonment. Third, you have endeavoured to assist your prospects of rehabilitation by completing courses and programs in prison. Ms Ziluski has provided a positive report about your participation in the Prison Fellowship program. You have also become active in a Buddhist prayer group. Fourth, you must be given appropriate credit for your early guilty plea. It is an acceptance by you of your responsibility for the offending. It has also saved the community the expense associated with a criminal trial. Finally, I am required to ensure when sentencing you that the total sentence I impose is “just and appropriate” to the whole of your offending.
24 Mr Nguyen you will be convicted on all charges and sentenced as follows.
25 On the first indictment - Charge 1, three months' imprisonment; Charge 2, nine months' imprisonment; and Charge 3, six months' imprisonment.
26 On the related summary offence of deal with property suspected of being the proceeds of crime, six months' imprisonment.
27 I direct that three months of the sentence on Charge 3 on the indictment be served cumulatively upon the sentence imposed on Charge 2. This makes a total sentence of 12 months' imprisonment.
28 On the second indictment – on Charge 1, three months' imprisonment; Charge 2, four years' imprisonment; Charge 3, three years' imprisonment; Charge 4, 12 months' imprisonment; Charge 5, two years' imprisonment; and Charge 6, two years' imprisonment.
29 I make the following orders on the related summary offences.
30 Possess prohibited weapon, three months' imprisonment; possess imitation firearm, proved and dismissed; deal with proceeds of crime relating to the property in your possession, 15 months' imprisonment; deal with proceeds of crime relating to $6,130, nine months' imprisonment; and drive whilst disqualified, one month imprisonment.
31 On the second indictment, I order three months on Charge 3, two months on Charge 5 and three months on Charge 6 be served cumulatively upon each other and upon the sentence imposed on Charge 2.
32 This makes a total sentence of four years and eight months.
33 I order four months of the sentence on the first indictment be served cumulatively upon the sentence imposed on the second indictment.
34 This makes a total effective sentence of five years' imprisonment. I direct you serve a minimum term of three years and four months before being eligible for release on parole. I declare that you have served 490 days pre-sentence detention.
35 If you had been found guilty after a trial, I would have sentenced you to a total effective term of seven and a half years' imprisonment with a minimum of five years.
36 I make the disposal and forfeiture orders sought by the prosecution.
37 I also make an order for the taking of a forensic sample pursuant to the relevant provisions of the Crimes Act. Mr Nguyen, if you do not co-operate with the authorities in the taking of the sample, reasonable force may be used to obtain it.
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