Director of Public Prosecutions v Nguyen
[2015] VCC 1558
•28 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01652
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VIET HUANG NGUYEN |
---
JUDGE: | His Honour Judge Chettle | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2015 | |
DATE OF SENTENCE: | 28 October 2015 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1558 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: Import a commercial quantity of a border controlled precursor - pseudoephedrine.
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Linfoot | Mr B. Stevens |
| For the Accused | Mr J.D. Singh | Mr A.H. Grossman |
HIS HONOUR:
1 Viet Nguyen, you have pleaded guilty to one charge of importing a commercial quantity of a border controlled precursor, pseudoephedrine, contrary to s.307.11, para.1 of the Commonwealth Criminal Code. This is a serious criminal offence. The maximum penalty is 25 years imprisonment and/or a fine of $850,000.
2 The facts of your offending are set out in Exhibit A, the prosecution opening. I incorporate that document into these reasons for sentence, and sentence you on the basis of the facts set out therein.
3 Briefly stated, in March 2013 you imported from Vietnam a package containing books and four boxes of Korean tea. Inside the tea were two bags containing a total of 2,617 grams of substance, found to be 67.6 per cent pseudoephedrine. That is 1,769 grams pure. A search warrant was executed at your premises in Sunshine West on 26 March 2013, and your mobile phone was seized. On that phone was a photograph of the consignment details of the imported package.
4 You also had a note stored on the phone that read, in part, "I know someone who has the precursor that makes ice. If okay, I can find one kilogram of that for you. She told me it's 45". When interviewed by Federal authorities you denied involvement in the importation, and said you didn't know why you name and address was on the package. You lied to investigators.
5 Section 314.6 of the Criminal Code provides that a commercial quantity of pseudoephedrine is 1.2 kilograms. Thus, you imported nearly 50 per cent more than a deemed commercial quantity. That said, the quantity is towards the bottom of commercial quantities often seen in these courts.
6 Your charge was listed as a trial up until 24 July of this year. When the translations of the prosecution exhibits were clarified, you admitted your guilt and pleaded guilty on that date. It is unclear exactly what was intended for the pseudoephedrine you imported. There is no evidence that you were going to manufacture an illicit drug, or distribute such a drug. It's clear, however, that the precursor was imported in order for someone to make methylamphetamine, and that enterprise was motivated by a desire for financial gain. You are not a drug user, but clearly intended to profit from your crime.
7 You asserted to Mr Cummins and through your counsel that you were prevailed upon by someone called Kevin to provide personal details to facilitate the importation. As I made clear during your plea, I do not accept your recent self-serving assertions that are totally unsupported by evidence. Your counsel declined to call you to give evidence as to these issues at your plea hearing. The contents of the note on your phone make your involvement in the importation crystal-clear. I reject the assertion that you were set up by a third party.
8 Turning to your personal circumstances, you were born in Vietnam on 9 March 1982, and you're now 33 years old. Your history is set out in the report of Mr Cummins, psychologist, Exhibit 2; the written submissions of your counsel, Exhibit 1; and the attached chronology. They need not be set out in detail here. You have no prior convictions, neither in Australia or in Vietnam. You have no subsequent or outstanding matters.
9 You grew up in Vietnam in a caring, supporting, middle-class family. You were well educated, completing a Bachelor of Business degree at the Commercial University of Hanoi in 2005. You then worked in Vietnam for over two years, before coming to Australia in July 2008 to study for nearly two years. You returned to Vietnam, married in 2009. You have two children from that marriage.
10 You and your first wife came to Australia in 2012 on a student visa, but returned to Vietnam in early 2013. Your first marriage failed and, as I understand it, you were divorced in September 2014. You came back to Australia on 1 March 2013 on your student visa, and committed the offence for which I am to sentence you virtually immediately.
11 You were arrested on 26 March, and have been on bail since then. You have remarried whilst on bail. Your second wife has two children, and she and you have just had another child, a son, on 18 August this year. Your wife and you apparently operate a mobile phone repair business together. You work ten hours a day, seven days a week in that business. Your mother is currently in Australia, but returns to Vietnam, as I understand tomorrow, when her visa expires. She gave evidence on your plea. She outlined your life in Vietnam and told the court of your assistance to orphaned and disadvantaged children in Vietnam. Your mother is obviously surprised and in despair following your arrest for this offending.
12 That voluntary work in Vietnam is amplified in Mr Cummins' report at para.23 Exhibit 3 includes the confirmation letters from Vietnam relating to your tutoring work between 2003 and 2006, and on an earlier period of time, between 1997 and 2001. Between March 2011 and June 2012 you assisted HIV-infected children in the Haiphong region by participating as a volunteer in education and health programs.
13 A number of personal references were tendered attesting to your good character. You are described as decent, reliable and hard-working. You are said to be a dedicated family-man. Your mother gave evidence to that effect upon your plea. Your previous employer describes you as a responsible, and hard-working and trustworthy man. Over the past 16 months you have been involved in charitable organisations providing assistance to orphaned students in Vietnam.
14 You have real concerns that you will be deported when you finish the term of imprisonment I will impose for your offending. The Migration Act 1958 (Commonwealth) has been recently amended and requires the relevant Minister to cancel the visa you hold if you are sentenced to a term of imprisonment of 12 months or more. There was a debate during your plea as to whether or not the prospects of deportation constitute a mitigatory factor. The prosecution contended that, ultimately, your position may be a matter of Ministerial discretion, and that the decision of DPP v Zwang (2005) VSCA 96, did not apply to you.
15 As I said then, I do accept that the real prospect that you will be deported will increase the burden of incarceration upon you, and is therefore a mitigatory factor in sentencing. I take that factor into account in sentencing you in fixing both the head sentence, and the minimum sentence I am going to impose.
16 I also accept that your poor English skills, together with your background, will see you isolated in prison. That too will make custody more onerous for you. I accept that, because of this, prison will be a more difficult experience for you than for most. This, in itself, will be a punishment and likely to act as a deterrent for you as well and, accordingly, as a person with no prior convictions, there is a reduced need for specific deterrence to be catered for in the sentence I am about to impose.
17 I have been provided with ten comparative cases by the learned prosecutor. I do not propose to set them all out here. They are in a folder that was provided to both counsel and myself. A consideration of those cases reveals that there is no established tariff for offences committed in contravention of s.307.11. The circumstances of each offence which has been committed vary, as do the subjective circumstances of the offenders referred to in those cases.
18 One fact, however, that is common in the underlying policy and approach taken by the courts in relation to such offences, and that is – namely, they are serious and they are to be deterred by way of serious, significant sentences. Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless that court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
19 Having regard to the seriousness of the present offence, the need for general deterrence, and taking into account all of the circumstances and submissions made, I am satisfied, regrettably, that imprisonment is the only appropriate sentence. Your counsel in my view properly conceded as much. The High Court made it clear in Hill and Jones v The Queen (2010) HCA 45 that there is no normal ratio of non-parole period for head sentence. The minimum term to be served must be determined by me in accordance with part 1B of the Crimes Act 1914.
20 The non-parole period which I intend to impose is, I consider, the minimum period of imprisonment that justice requires you to serve, having regard to all of the circumstances. I do take into account as well your plea of guilty. Although that plea was not entered at an early stage you are nonetheless entitled to a reduction in sentence to reflect that plea. You have saved the community the cost of what would have been an expensive trial. I accept the prosecution’s submission that you have refused to acknowledge your guilt by asserting, falsely as I said, that you were set up. However, you are nonetheless entitled to a reduction of sentence which I will quantify subsequently.
21 I have taken into account your prior good character, your charitable works, your lack of prior and subsequent history, and the effects that imprisonment will have upon you and your family. The principal sentencing consideration is general deterrence in cases such as yours. People who seek to import pre-cursor chemicals as part of the drug manufacturing and distribution system in Australia must know that significant terms of imprisonment await those convicted of such offending. Would you stand up please.
22 Mr Nguyen, on the one charge of importing a border-controlled pre-cursor you are convicted and sentenced to be imprisoned for three years. You are to serve 20 months of that sentence before being eligible for parole. Pursuant to s.6AAA of the Sentencing Act (Victoria) I indicate that but for your plea of guilty I would have imposed a term of imprisonment of four years with a non-parole period of three years.
23 INTERPRETER: Sorry, your Honour. The last bit, please.
24 HIS HONOUR: I would have imposed a non-parole period of – a term of imprisonment of four years with a non-parole period of three years but your (indistinct) PSD. 15?
25 MR SINGH: Five.
26 HIS HONOUR: Five days PSD?
27 MR SINGH: And your Honour, it has to be way of reconnaissance release order.
28 HIS HONOUR: No, it doesn’t, does it? I have got a choice.
29 MR SINGH: Not at three years. Three years and one day, yes.
30 HIS HONOUR: I see. I thought three years was the cut-off.
31 MR SINGH: No. If you make it three years and one day then everything’s fine.
32 HIS HONOUR: No, I won’t. I will make it three years. He needs to be released on a reconnaissance release order after 20 months.
33 MR SINGH: Your Honour pleases.
34 HIS HONOUR: The period of time is the same as I would have set for a non-parole period.
35 MR SINGH: Your Honour needs to set an amount of money (indistinct).
36 HIS HONOUR: In the sum of $1000.
37 MR SINGH: As your Honour pleases.
38 HIS HONOUR: I declare five days of the sentence I have just imposed has been served by way of PSD.
39 MR SINGH: As your Honour pleases.
40 HIS HONOUR: Pre-sentence detention, sorry. Anything else? Madam prosecutor? Have I fallen into any error (indistinct) ‑ ‑ ‑
41 MS LINFOOT: No, your Honour, and we can provide a reconnaissance release order as well.
42 HIS HONOUR: All right. I will have that down now, thank you. I wouldn’t increase the jail term, Mr Singh, just because I have made a technical error.
43 MR SINGH: One day wouldn’t have – anyway, thank you, sir. Thank you.
44 MS LINFOOT: Your Honour, would you indicate a period of good behaviour for the reconnaissance release order?
45 HIS HONOUR: Two years.
46 MS LINFOOT: Two years. Thank you.
47 HIS HONOUR: It’s academic, isn’t it?
48 MS LINFOOT: Pardon?
49 HIS HONOUR: It’s probably academic.
50 MS LINFOOT: Yes.
51 MR SINGH: It’s required.
52 HIS HONOUR: Yes. All right. Have you got – you’re about to draw that up for me.
53 MS LINFOOT: Yes, your Honour. My instructor is just completing it now.
54 HIS HONOUR: All right. You can have a seat. So you should know what it looks like.
55 MR SINGH: I’m sorry. Your Honour wasn’t supposed to (indistinct)
56 HIS HONOUR: You hear everything up here. I indicated that to Mr Langsai once, and he said, “Well, I suppose it depends on the size of the antennae”.
57 MR SINGH: Thank you, Your Honour.
58 HIS HONOUR: Yes. There you are. He has got to sign that now, does he?
59 MS LINFOOT: Yes, Your Honour.
60 HIS HONOUR: All right. Would you take him down and have him sign it in front of my associate, please. You go with her, Mr Singh.
61 MR SINGH: Thank you, Your Honour.
62 HIS HONOUR: Anything else required, Ms Linfoot?
63 MS LINFOOT: Yes, Your Honour. Under s.16F of the Crimes Act you would explain the order to the offender, including the consequences if he fails to fulfil the conditions.
64 HIS HONOUR: All right. Well, Mr Nguyen, the sentence I have imposed sees you being imprisoned for a head sentence of three years, but being released on a reconnaissance release order after 20 months, less the five days you’ve done in custody already. You’ve just signed an undertaking to be of good behaviour upon your release. If you breach that you’re liable to be resentenced with the term of – outstanding balance of the term of imprisonment, together with a fine of $1000, and the amount of the reconnaissance. It may be that you will be deported; that’s a matter for the authorities.
65 MS LINFOOT: Thank you, Your Honour.
66 HIS HONOUR: All right. I’ve explained it. I will stand down till whenever the trial is ready.
---
0
0
0