Director of Public Prosecutions v Nguyen

[2015] VCC 926

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00484

DIRECTOR OF PUBLIC PROSECUTIONS

v

CUONG HUU NGUYEN

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	18-22 May, 26-29 May, 1-5 June, 26 June 2015.
DATE OF SENTENCE:	30 June 2015
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2015] VCC 926

REASONS FOR SENTENCE
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Subject: Criminal law – sentence.
Catchwords: Trafficking in not less than a large commercial quantity of a drug of dependence, namely cannabis, contrary to s.71 of Drugs, Poisons and Controlled Substances Act 1981. Guilty verdict.
Cases Cited: R v Giretti (1986) 24 A Crim R 112; Verdins; Buckley; Vo (2007) 16 VR 269
Sentence: Eight years and six months imprisonment with a non-parole period of six years and six months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough	Office of Public Prosecutions
For the Accused	Mr D. Gray	Tait Lawyers

HER HONOUR: 

1Cuong Nguyen, you have been found guilty of one charge of trafficking in not less than a large commercial quantity of a drug of dependence, namely cannabis, between 5 June 2007 and 15 July 2008.  The maximum penalty for the offence is life imprisonment. 

2The prosecution sought orders for the taking of a forensic sample pursuant to s.464ZF of the Crimes Act 1958, which you did not oppose. The prosecution also sought a declaration pursuant to s.89DI of the Sentencing Act that you are a serious drug offender.

3The circumstances of your offending may be briefly summarised. Terry Barry, a drug dealer living in Brisbane, operated a drug distribution business there.  Over time, he entered into an agreement with you to obtain cannabis from you. He would send couriers by plane to Melbourne carrying between $150,000 and $200,000 in cash.  They would hire cars at the airport, drive to premises occupied by you and your wife in West Footscray and East Keilor.  You or your wife would open the roller door to the garage, they would enter, give their keys to you, wait in the house and have coffee.  During this time, the cannabis in one pound sealed bags would be placed into the boot of the hire car.  The couriers would be given their car keys back and would drive back to Brisbane. 

4There was some divergence of the evidence of the witnesses, Terry Barry and Glen Debney, concerning the precise amount of cannabis trafficked by you during the charged period.  The prosecution relied on calculations put to the jury to the effect that, putting together the evidence of Debney and Barry to the effect that they picked up an average of at least 50 pounds of cannabis per trip from you, with the evidence of airline travel and car hire during the charge period, there were 21 occasions during the charge period on which 50 kilograms or more was trafficked by you.  This amounted to 447 kilograms of cannabis, almost double the threshold amount to make out the offence.

5Your counsel commented that Barry and Debney were criminally concerned witnesses who received lenient sentences and had a motive to exaggerate the amount of cannabis you trafficked.  It is clear, however, that, by its verdict, the jury was satisfied that over the charged period, you were involved in the trafficking of not less than 250 kilograms of cannabis and I sentence you on this basis. 

6There was also some disagreement between the parties concerning your precise role in the trafficking operation.  While it was not in dispute that you were wholesaling cannabis, the prosecution case is that you were the lynchpin of the trafficking operation, that you played a management role in that you made the arrangements with Terry Barry, discussed the trading with him in the covert recording, met the couriers in Melbourne on many occasions at both locations and that there was no evidence that you had to defer to anyone else in running the operation to supply the cannabis to the couriers sent to Melbourne by Barry. 

7When you were out of the country during the charge period, you instructed your then wife, Dang Tran to receive the couriers, accept the cash they provided and arrange for the cannabis to be loaded into their hire car. 

8By contrast, your counsel submitted that you were financially beholden to Dang Tran by virtue of your illegal status in Australia and that you were her puppet in the wholesaling operation.  I consider that your role was that of wholesaler but I find that you dealt personally with Barry and the couriers and took no direction in that regard from anyone. 

9A number of exhibits were tendered on your behalf including psychological reports by Mr Bernard Healey dated 5 July 2014 and 24 June 2015, two negative urine samples and four certificates concerning courses completed whilst in custody. 

10Your personal circumstances were set out in Mr Healey's reports and referred to by your counsel and I have taken them into account in sentencing you.  They may be briefly summarised as follows.

11You are now 39 years old. You were born and raised in Vietnam.  Your mother is 59 and your father 61.  You had an unhappy home life with a domineering father.  You completed 12 years of schooling there and started and economics degree at university in Saigon before coming to Australia at the age of 21 to study English.  Your student visa expired but you stayed on, working on the black market in restaurants and fruit picking. 

12You married Dang Tran in 2008.  You took your younger daughter to Vietnam in 2009.  Dang Tran was arrested on 29 April 2009.  She pleaded guilty on 31 January 2011 to one count of trafficking in a commercial quantity in a drug of dependence, namely cannabis, and was sentenced to a term of imprisonment of five years, with a non-parole period of two years and six months.  She was released at the end of 2011.

13You returned to Australia in 2012.  You were arrested here on 17 July 2013 as you were leaving for Vietnam.  You have no prior criminal history.  Your counsel relied on the reports of Mr Healey as enlivening limbs 4 and 5 of Verdins.  Mr Healey reported in 2014 that you had symptoms of depression, anxiety and a mild paranoid trend with some suicidal ideation.  In his more recent report, he noted that you were labile emotionally, have lost weight, were stressed and depressed over the jury verdict and no longer able to tolerate the gastric side effects of the anti-depressant medication you have been taking. 

14You have lost contact with your ex-wife and daughters since your arrest.  You remain isolated within the prison but have used your time to undertake various courses. He noted your physical health problems including headaches, arthritis and back pain. He concluded that he held real concerns about your depression and that this condition is making prison far more onerous for you than it would be for other prisoners. 

15In sentencing submissions, your counsel relied on the following matters in mitigation. First, that imprisonment will weigh more heavily on you because of your mental and physical health concerns. Second, that you have no family here, are isolated in prison and your incarceration will weigh heavily upon you.   Third, that you are likely to be deported at the conclusion of your sentence.  Fourth, that there is no evidence of betterment. Fifth, that almost all of your possessions have been forfeited to the State after the conviction of Dang Tran. In particular, your parents contributed about $300,000 to the purchase of the house in East Keilor which was forfeited as part of the pecuniary order made against Dang Tran when she was sentenced. Sixth, the sentences of your co-offenders, Glen Debney and Terry Barry. Seventh, that you have no prior convictions and good prospects of rehabilitation. Eighth, that there has been substantial delay in that the offending ceased in 2008 but you were not charged until 2013 and have spent two years in gaol already. 

16On 1 September 2009, Glen Debney pleaded guilty to one count of trafficking in a drug of dependence on 15 July 2008.  He was intercepted while driving to Shepparton with some 24 kilograms of cannabis in the boot of the car.  He indicated he would plead guilty at a very early stage and co-operated with authorities by making two statements in which he implicated you and Mr Barry, as well as by giving an undertaking to assist law enforcement authorities in the investigation and prosecution of you and Mr Barry.

17In sentencing Debney, His Honour Judge Nixon noted his acceptance that the evidence given by Debney was vital for the prosecution, that Debney acted only as a courier, was paid as a courier and did not share in the profits of the sale of the cannabis.  Debney was sentenced to two years' imprisonment, wholly suspended for two years. 

18Terry Barry pleaded guilty on 15 September 2010 in Brisbane to one count of trafficking in cannabis over a period of five years with an amount of between 888 and 1273 kilograms for a profit of between $500,000 and $1 million.  His role was that of a wholesaler;  his wife was suffering from inoperable cancer;  he co-operated with police; he was sentenced to five years' imprisonment, to be wholly suspended after serving a period of 18 months.

19For the sake of completeness, as I have already noted on 31 January 2001, Dang Tran pleaded guilty to one count of trafficking in a commercial quantity of a drug of dependence, namely cannabis, and was sentenced by His Honour Judge Patrick to five years' imprisonment, with a non-parole period of two years and six months. 

20Your counsel conceded that a significant period of imprisonment was the only appropriate sentence but submitted that the Sentencing Snapshot demonstrated a very wide range of sentences because cases dealt with different drugs and, in some cases, after 40 times of threshold quantity.  Your counsel urged me to sentence on the basis of an unknown quantity of cannabis of more than 250 kilograms and on the basis that you were a middleman wholesaling the drug and urged me to impose a sentence that was not crushing in light of the mitigating factors raised. 

21There is no doubt that your offending is very serious. Regardless of the exact quantity of cannabis over 250 kilograms, there is no doubt that the quantity was well over the threshold.  You were actively and intrinsically involved in organising the trafficking with Terry Barry and in the collection of the cannabis by the couriers and in receiving payment.  The frequency of trafficking by you brings it within the business of trafficking as defined in R v. Giretti[1] and I accept that you were a wholesaler of the cannabis and I am satisfied from the covert recording that you were used to dealing personally with Terry Barry about the business you conducted with him and did not defer to anyone else when doing so. 

[1] (1986) 24 A Crim R 112

22General deterrence must play a very significant part in the sentence.  People who engage in the business of the sale of illegal drugs for profit must understand that if they are caught they risk serving lengthy periods in gaol.  They also risk losing substantial assets. General deterrence, just punishment and denunciation warrant a significant sentence of imprisonment. You were engaged as a wholesaler in the business of trafficking well over 250 kilograms of cannabis over a 13 month period. 

23I accept that the Sentencing Snapshot No 163 of 2014 is of limited assistance.  Similarly in this case, the sentences received by your co-offenders are of limited assistance because of the specific features of their cases, including the different charges pleaded to, the co-operation with police and a number of other factors. 

24Whilst you have expressed no remorse, I accept the matters raised by your counsel in mitigation. I accept that you suffer from depression which warrants a modest moderation of the principle of specific deterrence and I note that this condition will make imprisonment more onerous for you than for someone who does not suffer from this condition. 

25I accept that you have lost access to the financial contribution made by your family to the purchase of the home in East Keilor.  I accept that you are isolated in prison and that this will make imprisonment more burdensome for you.  I accept that you are likely to be deported after the completion of your term of imprisonment and I accept that you have used your time in custody well thus far. 

26I accept that there has been some delay in bringing you to trial. You have no prior criminal history and are relatively well educated.  You have an incentive to rehabilitate yourself and your prospects of doing so may be described as good. 

27Mr Nguyen, on Count 1 of trafficking in a large commercial quantity of a drug of dependence, you are convicted and sentenced to a term of imprisonment of eight years, six months.  I fix six years and six months as the period you must serve before being eligible for release on parole. 

28I also propose to make the order for the taking of a forensic sample pursuant to s.464ZF of the Crimes Act 1958. I have made that order because of the seriousness of the circumstances of the offending and because the order is not opposed. I have made the order that the sample be taken by a saliva swab. I am required to inform you that if you do not co-operate in that process, then the authorities may use reasonable force to take a blood sample from you.

29I declare that you have served 713 days by way of pre-sentence detention and I order that the declaration be recorded in the records of the court.

30I also make the declaration under s.89DI of the Sentencing Act 1999 that you are a serious drug offender. 

31I will sign the orders, do you want to approach Mr Nguyen, Mr Gray, once I sign the orders, and have a few moments with him?

32MR GRAY:  Yes, Your Honour, there was one matter I needed to note.

33HER HONOUR:  Yes.

34MR GRAY:  For the records that make it easier later on, my friend and I, the prosecution have agreed that the $5650 that was the subject of Charge 2 where no evidence was led, for the record, is to be returned to Mr Nguyen.

35HER HONOUR:  Very well, do I need to say anything about that?

36MR GRAY:  No, it's on the record, thank you.  I may approach my client?

37HER HONOUR:  Absolutely, excuse me a moment while I sign these orders. 

38MR GRAY:  One point, Your Honour, the translator has given me a copy - I noted Your Honour said eight and a half years with a minimum parole period of six years ‑ ‑ ‑ 

39HER HONOUR:  Six and a half.

40MR GRAY:  I thought Your Honour said six, it must have been my hearing.

41HER HONOUR:  Six, six.  Eight years and six and six years and six.

42MR GRAY:  Thank you, Your Honour. 

43HER HONOUR:  Very well, I have signed those orders.  On the draft, Mr Gray, it was written in a word, not in a number so it may be that they just didn't see it.

44MR GRAY:  Thanks, Your Honour, it's clear now.

45HER HONOUR:  Very well.  Mr Gray, if you want to approach your client in the interim, that's all right.

46MR GRAY:  Thank you, Your Honour, we're just making arrangements to see him.

47HER HONOUR:  This order only refers to the this one charge?

48MR GOODENOUGH:  That's right, Your Honour, yes.

49HER HONOUR:  Thank you. 

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