Director of Public Prosecutions v Nguyen

[2015] VCC 1777

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00720

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHAU NGUYEN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 June 2015
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2015] VCC 1777

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Ruddle
For the Accused	Mr C. Kilias

HER HONOUR: 

1Chau Nguyen, you have pleaded guilty before me to one charge of trafficking in a drug of dependence. You have also pleaded guilty to a summary charge of possessing the proceeds of crime, which charge was uplifted pursuant to s.145 of the Criminal Procedure Act to be dealt with in this court in conjunction with the charge on the indictment.

2The facts underlying your offending are as follows.  Between 18 November 2014 and 26 November 2014 you were observed by police on a number of occasions essentially dealing heroin from your car to various buyers.  It seems you were seen selling heroin to around three or four people in that time.  Eventually police followed you home and executed a warrant at your house at 13 Manna Way, Mill Park. 

3There they discovered a block of heroin weighing about 58 grams; $5,320 in cash, the subject of the charge of dealing in the proceeds of crime; digital scales with white powder and other paraphernalia commonly associated with trafficking such as mobile phones, zip-lock bags, a chopping board with white powder in the kitchen drawer and so forth. 

4You were interviewed by police but denied offending in this way.  You referred police to another man in your home, Paul Martin, who was then asked to leave as being the possible owner of the drugs; however, this was not found then to be a viable option in terms of what they had discovered.  It is acknowledged that your plea was entered at an early stage.

5The maximum penalty for trafficking pursuant to s.71AC of the Drugs, Poisons and Controlled Substances Act is 15 years maximum and the maximum penalty for dealing with property suspected of being the proceeds of crime is two years.  You were kept in custody from the time that you were arrested on 26 November until your ultimate release on 19 December 2014. 

6I now turn to your personal circumstances.  You are 34 years of age and were born in Vietnam.  Your parents separated and your father emigrated to Australia.  You joined him in your early teens but discovered he had repartnered and you were not welcomed and your entry to this country was extremely difficult for you.  Your father went on to repartner on a regular basis and you have a large number of half-brothers and sisters as a result.

7You briefly attended Collingwood High School but were then taken from school to Bundaberg in Queensland by your father, who set you to work on a farm up there.  When you were 18 you were introduced to a man who was a friend of his and ordered for form a relationship with him.  Two children were born of that relationship, the first being born when you were about 20.  When you were 23 you left that partner and returned to Victoria with the two small children who had been born of that relationship.  That first partner, apart from being a man much older than you, was apparently a chronic gambler and violent towards you.

8In Melbourne you obtained Housing Commission housing in the Richmond area and worked sporadically at urban farms; however, most of the money you made went on child minding.  It was at this time you formed a relationship with one Paul Martin, a man who was also found to be present in your house at the time police executed the warrant in November last year.  He was a long-term user and drug trafficker and it appears that you have had relationships with him on and off for many years since.

9Eventually you met your partner Mr Hurt, again an older man, and you formed a relationship with him in about 2007.  You have two children of that relationship, the youngest one not yet attending school.  Mr Hurt originally moved in with you in your Housing Commission apartment in Richmond.  He was working on commission for a company which eventually became a very successful business and he profited.  As a result he purchased a very large and rather palatial house in Mill Park.  Pictures were contained on the brief showing the grandiosity of this house that you were living in, including as it does enormous bedrooms, an indoor swimming pool and the like.

10The relationship with Mr Hurt was not an untroubled one.  You separated briefly in 2009, at which time you had one child with Mr Hurt, and again linked up with Paul Martin.  He had introduced you to heroin and it appears that you have been a regular user of it on and off, although your use of it has increased when you have had contact with Mr Martin. 

11In that time in 2009 during the period of separation with Mr Martin you engaged at his behest in the business of what appears to have been low-level trafficking, for which you were ultimately charged and placed on a community-based order by a Magistrates' Court in that year, which you successfully completed.  You returned to Mr Hurt but then again continued to see Mr Martin on a clandestine basis, continuing to use heroin and trafficking in that substance.  You were again charged with trafficking heroin, dealt with by a Magistrates' Court in 2011 and placed on a four-month suspended sentence.

12Eventually you and Mr Hurt reconciled, as I have said, in 2009 and it appears, according to your counsel, that he was aware of the offending for which you appeared before the Magistrates' Courts on two occasions, but this did not affect your relationship.  Eventually you discovered that, although he had left his wife when he formed a relationship with you, he did not in fact end that marriage for some years after you believed it had in fact been ended. 

13HER HONOUR:  You remained in a de facto relationship with Mr Hurt, but eventually, when you discovered the lies he had told you about divorcing his first wife, he being, your counsel tells me, financially reliant upon you for some years, you became extremely angry and a longer-term separation occurred with both of you living - but living separately - under the same roof.

14In 2014 Mr Hurt went overseas in June to the Ukraine.  The trip was supposed to last for two weeks; however, he remained there for some months and in that time met and married a Ukrainian woman.  Mr Hurt has since returned to Australia, but his Ukrainian wife remains in the Ukraine, the plan being that she is to join him in Australia.

15Once Mr Hurt left and it became clear he was not coming back, you were then left to financially support your four children.  Your counsel informed me, looking at Family Court documentation about the expenses and outgoings related to the property at Mill Park, that you needed to find at the very minimum $3,600 in order to pay for bills and the mortgage.  This you were simply unable to do and you promptly relapsed back into trafficking heroin.

16I note in the prosecution summary that police at one stage placed an intercept on your telephone and you are overheard talking to Mr Hurt in the following terms.  That is that you had done everything to keep your children together and that, "Look at yourself.  What have you got for the kids if I not selling drug, old man?"  I accept the scenario put forward on your behalf by your counsel as to the circumstances and the context in which this offending occurred, that is in a circumstance of financial desperation. 

17As a result of your arrest the Department of Human Services became involved and your two youngest children have been placed with Mr Hurt and you see them on a weekly basis.  You are now residing in Deer Park, sharing a house in somewhat cramped conditions with your sister-in-law and are able to remain there for the foreseeable future with your two eldest children.  I should add that your eldest son was also attending a private school, Parade College, throughout this time.

18Family Court proceedings are under way and the house has been sold and a restraining order placed over the profits.  The Family Court matters have yet to be finalised and it is your fear that Mr Hurt intends to return with his Ukrainian wife to the UK, where he was born, taking your two youngest children with you.

19I have received a couple of psychological reports which I will not refer to in any depth, as they were not in my view particularly helpful, but both psychologists diagnosed you as suffering a significant depressive disorder as a result of the situation you are in vis-à-vis these court proceedings, the Family Court proceedings and your youngest children.

20Understandably, given your two prior convictions for trafficking in heroin, the prosecution submitted that I should deal with you by way of a sentence of imprisonment to be immediately served; however, it does seem to me, after due reflection, that the principles in Boulton's case as enunciated by the Court of Criminal Appeal have application here.  That is under a community corrections order I can impose a non-custodial disposition which answers both the deterrent and rehabilitative aspects important in your case.

21Can you stand up, please, Ms Nguyen.

22In relation to both charges, the charge of trafficking in a drug of dependence and in dealing with the proceeds of crime I am going to place you on a community corrections order for a period of two years.  You may not have understood what I just said, Ms Nguyen.  I know your English is not too bad, but I would imagine, given that I have used a lot of legal language, that you did not understand.  You are really lucky not to be going to gaol.  If you sell heroin again and police catch you, this will be the fourth time you come to court for selling heroin and no one is going to care and you are going to go straight to gaol.  Do you understand me?

23OFFENDER:  I understand, Your Honour.

24HER HONOUR:  Tell me just what I said to you.  I need you to tell me what I just said to you, Ms Nguyen.  If you get caught stealing heroin again, what do you think will happen?

25OFFENDER:  I'll go back to prison, Your Honour.

26HER HONOUR:  Yes, you will get a gaol sentence.  There will be no more chances.  I understand you have been through a really difficult time.  I understand it is very difficult keeping your children together, but selling heroin is something that, if sent you to gaol today, would make it almost impossible for you to get your two youngest children back.  Do you understand that?

27OFFENDER:  I understand, Your Honour.

28HER HONOUR:  You are going to have to find another way to cope with any financial pressures that you have.  I understand that is very easy for me to say, but you cannot keep doing this.  All right?  What I am going to do today is you are not going to gaol.  You remember you were on a community-based order?

29OFFENDER:  Yes, Your Honour.

30HER HONOUR:  All right.  This will be the same only it is going to be more severe.  It will be more strict, all right?

31OFFENDER:  Yes.

32HER HONOUR:  It will last for two years and there are things that you have to do while you are on that order, all right?

33OFFENDER:  Yes.

34HER HONOUR:  One of the things you will have to do is you will have to report back to me every six months so that I know you are not offending again, that you are not selling heroin again.  Do you understand that?

35OFFENDER:  I do.

36HER HONOUR:  So I will be keeping an eye on you for the next two years.  So that is No.1.  Now ,there are conditions that I have to tell you about.  You must report to the Community Corrections Office within two working days, all right?  So that is by next Monday you must report to the Community Corrections Office.  While you are on the order for the next two years, you cannot get into any trouble with police - not selling heroin, not stealing things from shops, nothing.  You cannot get into any trouble.  If you do, you will come back in front of me, I will sentence you again, all right?  No more offending. 

37Third thing is if you change your address or you change your job you have to tell the Office of Corrections within 48 hours.  Do you understand? 

38OFFENDER:  Yes.

39HER HONOUR:  While you are on the order, you have to allow community corrections officers to visit you and you have to go and see them when they tell you to.  All right?

40OFFENDER:  Yes.

41HER HONOUR:  You are not allowed to leave Victoria unless Community Corrections Office gives you permission, all right?

42OFFENDER:  Yes.

43HER HONOUR:  You have to obey all the orders that Community Corrections give you, all right?

44OFFENDER:  Yes.

45HER HONOUR:  The other thing that is going to happen is this.  I am going to order that you undertake 170 hours of unpaid community work.  Do you understand what that is?

46OFFENDER:  No, Your Honour.

47HER HONOUR:  You will be told by the Office of Corrections that you have to go and do some work.  You will not be paid for it, it is part of the penalty.  Second thing is you have to go and see a psychologist, all right?  Do you know what a psychologist is?

48OFFENDER:  Yes.

49HER HONOUR:  You will have to go and see a psychologist.  You will also have to go and see someone about using drugs, about using heroin.  All right?

50OFFENDER:  Yes.

51HER HONOUR:  The other thing is they are going to supervise you and you need to come and see me every six months.  I will get a report from the Office of Corrections every six months about how you are going and you will need to come back to court and I will talk to you about how I think you are going and I will be asking Corrections what their opinion of you is.  All right?

52OFFENDER:  Yes.

53HER HONOUR:  So that is going to be lasting for two years.  So do you agree to being placed on this order?

54OFFENDER:  I agree, Your Honour.

55HER HONOUR:  Thank you.  Have a seat.  We will just get the paperwork.

56MR KILIAS:  Your Honour, the non-contact - - -

57HER HONOUR:  Yes, the other conditions are these.  It is a condition you are not to have any contact with Paul Martin, all right?

58OFFENDER:  Yes.

59HER HONOUR:  So he must be - he has to be out of your life now. 

60OFFENDER:  Yes.

61HER HONOUR:  And you need to think about him this way:  he is a danger to your children, because when you see him, if you start using heroin, if you start selling heroin, because of him you will lose your kids.  So you are not allowed to see him.  Who was the other bloke?

62MR KILIAS:  Jack Simionidis.

63HER HONOUR:  You are also not allowed to have any contact with Jack Simionidis.  All right?

64OFFENDER:  Yes.

65HER HONOUR:  No telephone contact, no meeting up with him.  Same with Mr Martin.  No contact with either man.  Can you manage that?

66OFFENDER:  Yes, Your Honour.

67HER HONOUR:  You are going to have to.  Have a seat and we will get the paperwork done.

68MR KILIAS:  May it please - - -

69MS RUDDLE:  Your Honour, I may have missed Your Honour mentioning it, but I do not believe you announced the condition in relation to compliance with the regulations.

70HER HONOUR:  What is that? 

71MS RUDDLE:  It is s.45(1AB), that the offender must comply with all the relevant regulations.  The main one is not to - the main one that judges make reference to is the regulation requiring that people not be under the influence of drugs or alcohol at the time, but it is just one of the - - -

72HER HONOUR:  I have never done that.

73MS RUDDLE:  It is one of the core conditions, Your Honour.

74HER HONOUR:  Well, you must obey all the other conditions - stand up, please, Ms Nguyen.  What is the condition again?  I have never imposed the - - -

75MS RUDDLE:  It is s.45(AB), "The offender must comply with any obligation or requirement prescribed by the regulations". 

76HER HONOUR:  All right.  You have to comply.  There is a whole lot of regulations about how you behave while you are on the order, such as you may not be under the influence of drugs or alcohol when you see a community corrections officer.  You must abide by all those regulations.  Luckily for you you have got Mr Kilias, who will explain them in greater detail.

77MR KILIAS:  As soon as I work them out, Your Honour.

78HER HONOUR:  Yes, excellent.  Well, that is what you are there for, Mr Kilias.  Lucky old Ms Nguyen having you.  Have a seat, thank you.  We will get the - well, that is news to me.  You learn something every day.  All right, we will just get the paperwork organised.

79In sentencing you I take into account your early plea of guilty, your remorse, your difficult personal circumstances and the fact that this was low-level offending committed in a particular context and circumstance which has now changed so that I am satisfied that aspects of general deterrence and just punishment for your offending are aptly met by the community corrections order and that s.5 of the Sentencing Act - that is the degree of satisfaction which a court must have before a sentence of imprisonment is the only recourse - I think I am getting tangled up with my grammar - has not led me to that final stage as required and hence I have imposed the disposition that I have today. 

80I reserve the right to edit transcript to correct the grammar difficulties. 

81MS RUDDLE:  You can just say "parsimony", Your Honour, and we will - - -

82HER HONOUR:  Pardon?

83MS RUDDLE:  You can just say "parsimony", Your Honour, and we will all be there.

84HER HONOUR:  Parsimony?  Thanks very much.  That is very helpful, along with the regulations directions.  Thanks, Ms Ruddle.  Yes.

85MR KILIAS: I was going to say I just wrote down as Your Honour was trying to form the sentence, s.5 Sentencing Act, satisfied that for no gaol being needed.

86HER HONOUR:  I think I did it - even my mangled efforts were better than that, Mr Kilias.

87MR KILIAS:  That is why I am telling you, Your Honour.  You did much better than I did.

88HER HONOUR:  All right, thank you.  It is amazing; judges always do.  I am going to wonder if people say, "Gosh, you've expressed it so much better than I could", when I'm no longer a judge.  I doubt that I will be hearing that much.

89Here we are, you can take that down to be signed.  So just remember, Ms Nguyen, you need to - I will be seeing you every six months.  You really need to understand for the next two years people are going to be watching how you go, all right?

90OFFENDER:  Yes.

91MR KILIAS:  Could I attend that signature, Your Honour?

92HER HONOUR:  Yes, certainly.  Excuse me, Pat.  I will hand you back the restraining order.  Thank you very much, Ms Ruddle.

93MS RUDDLE:  Thank you, Your Honour.

94HER HONOUR:  Very well, Ms Nguyen, I wish you well.  I hope you go well on this and I will see you in six months' time.  So that will be on 16 December, all right, is the next time that I will see you.  So hopefully you will be doing well.  All right.

95OFFENDER:  Thank you so much.

96HER HONOUR:  Beg your pardon?

97OFFENDER:  Thank you so much.

98HER HONOUR:  All right.  I know it is very difficult.  Just understand this this is the last chance you will ever get.  Thank you.  We will adjourn to 9.30 tomorrow morning.  Thank you very much.  I thank counsel for their assistance in this matter.

99MS RUDDLE:  Thank you, Your Honour.

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