Director of Public Prosecutions v Nguyen
[2015] VCC 1945
•19 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-02196
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNY NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 19 June 2015 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1945 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Accused | Mr J. Gullaci | |
| For the Director of Public Prosecutions | Ms T. Tran |
1Kenny Nguyen, you are to be sentenced for one charge of attempting to traffick a commercial quantity of the controlled drug, methamphetamine, and one charge of trafficking such drug in a marketable quantity. Both are offences under the Commonwealth Criminal Code. The respective maximum sentences are life imprisonment and 25 years' imprisonment.
2You pleaded guilty before me on 24 March 2015. When interviewed by police on 31 July 2014, you exercised your right to silence. You entered a plea of guilty at committal on 16 December 2014 and the matter was listed for plea hearing in this court.
3You receive the benefit of your plea of guilty, which has been early, and the level of cooperation that history of proceeding shows. You have facilitated the interests of justice and by your plea expressed remorse.
4At your plea hearin, which ran on 24 March and 11 and 12 June, Ms Tran for the Crown tendered a written summary of prosecution opening, (an amended version was tendered on 11 June) and a number of photographs relevant to the offending. Mr Heliotis QC, who appeared with Mr Gullaci for you, tendered the forensic psychologist report of Ian McKinnon dated 20 March 2015, certificates related to programs undergone by you in remand custody, a large number of letters of character reference and a series of emails relating to events preceding Charge 2 on the indictment, the trafficking of methamphetamine in a marketable quantity.
5Both Ms Tran and Mr Heliotis provided me with written outlines of submission and other materials, including High Court authority said to bear upon current sentencing practices and the appropriate sentence in your case.
6The circumstances of your offending are comprehensively set out in the tendered Crown opening which, as amended, is Exhibit A. My own summary may therefore be shorter. My summary also has some reference to matters raised by Mr Heliotis.
7As to Charge 1, in July 2014 approximately 40 kilograms of methamphetamine were imported from China into Australia. It was concealed in a shipment of 70 toilets which arrived at the Melbourne dock on 18 July. You are not charged with any role in the organisation of the importation. During 25-27 July Customs examination and testing revealed methamphetamine within two of the 70 boxes containing the toilets. In total there were 17 packages containing 50.118 kilograms of the drug at 78.2 percent purity, thus making the total pure weight of 39.192 kilograms.
8The threshold for commercial quantity of methamphetamine is 750 grams. The imported methamphetamine was substituted with an inert substance and a controlled delivery put in play. A shipment consisting of nine pellets was released from customs to the warehouse of the relevant freight forwarding company. Instructions were received from China to isolate four of the boxes, including the two which had contained the drug. You were assigned the role of receiving and holding the drug.
9On 30 July, using a false name, you contacted the freight forwarder and advised a delivery address in Kings Park. It is or was your mother's home. After some miscommunication the boxes were accepted by you at that address. You had left your place of work at lunchtime to do so. The boxes did not fit into your Sedan car. You left them in your mother's garage and returned to work. Police surveillance of you continued. You were seen to return to your mother's address that evening and to load items into your car.
10On 31 July at about 12.30 pm you were arrested leaving your place of work, UECOMM Optus, an information technology company in Richmond. In short, eight packages of the inert substance, representing approximately half of the importation, were located in the boot of your car. A sum of $45,000 in cash was found at your workstation; Mr Heliotis stated to me, under your desk. Evidence of you having dismantled the boxes within the garage was found.
11Soon after on 31 July, a police search at your home, an apartment in City Road Southbank, revealed the other half of the inert substitution contained in nine packages. Other items including packaging and scales and items perhaps consistent with methamphetamine production were found. These items have not been the subject of submission or argument to be related to Charge 1.
12The drugs imported and found by police amount to an extremely large shipment possessed by you for sale. The Crown opening puts as a guide estimates of wholesale and so-called street values. The circumstances of your possession make in my view the wholesale the more appropriate guide to me. It is a figure of $20 million to $24 million.
13Mr Heliotis put to me that about 12 months earlier you had met the man who was the organiser of the importation and, one surmises, the further distribution of the drug at the Melbourne end. He is said to have befriended you. About one and a half weeks prior to your offending on 30 and 31 July he contacted and asked you to accept the boxes. You knew it to be about drugs. Although you presumed it to be considerable, you did not know the scale of the importation. You left work at lunchtime to receive the boxes and were surprised at the size. The boxes did not fit into your car and, as stated, you left. You made contact with your associate, including that you told him about the problem with size. You were told to proceed and promised good compensation or reward. You attended that evening at the Melbourne Casino and received $45,000 in payment. Also that evening you moved half of what you thought was the drug from your mother's garage to your apartment. You left the other half and the cash in the boot of your car.
14Mr Heliotis pointed to aspects of these events which he argued were disorganised and born of little planning and sophistication on your part. He stated, on your instructions, that your role was low placed in any hierarchy and limited at your storage or holding the drug for the main organiser. Ms Tran for the Crown did not accept such a limited involvement. However, her challenge did not point to evidence which significantly conflicts with the role put on your behalf. I have proceeded on the basis that the five judge Court of Appeal case of R v Storey [1998] 1 VR 359 remains the leading authority in this State as to fact-finding on plea hearings. Whilst perhaps not directed at its central statements of principle, that judgment includes the following observation by four of the five judges at p.371, paragraph 30:
"We have spoken of proof. Ordinarily much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the Bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can and commonly do act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence. But that is to stop well short of adopting the procedure by way of so-called “Newton hearing” that has been adopted in England and Wales. The procedures for hearing pleas in this State have not been shown to be wanting and while we readily accept that 'Nothing gives a bigger sense of injustice to a convicted man than false statements made about him after the verdict' we do not accept that present procedures are deficient in this respect."
15Attempting to apply the Storey principles whilst recognising the sometimes difficult task of distinguishing what is a matter adverse or favourable to an accused, I make the following findings.
161) I do not find that you were a senior player in the importation or planned movement of the drugs.
172) I accept as likely the role put on your behalf by Mr Heliotis, that is, on being asked or required and ultimately for very considerable reward, you accepted and held the drugs for others over the two days alleged in the indictment. How long that was going to last is a matter of speculation.
183) You knew that the shipment contained drugs and in a considerable quantity, at the very least amounting to a commercial quantity. Upon realising its full extent, you proceeded in your role.
19I see these findings as plausible in the light of the objectively shown circumstances of your movements and conduct on 30 and 31 July. They are consistent with aspects such as the use of your mother's home, placement of one part in your home, one part in your car and possession of the $45,000 at your workplace. That money cannot be seen and was not put as proceeds of sale. The proposition that it was your payment for the service described is a feasible, and the most likely, explanation. I also see your exposure to risk in such aspects of your conduct as consistent with being a lesser player or at least not major player in the scheme. I do not see this case as very similar to R v Dowe and Tran [2014] VSCA 93 to which I was directed, that is, in terms of what role can properly be discerned. In that case it seems to me it was important that the accused provided little or really no explanation of their role. They stood mute, as it was put at one point.
20Charge 2, trafficking in a marketable quantity of methamphetamine, is not put as connected with Charge 1. Keys located at your home in 135 City Road Southbank led police to search another City Road apartment, 283 City Road. You were the tenant on lease; however, you had not resided there for some time. Here, police found a so-called clandestine laboratory.
21Paragraphs 56 and 57 of the Crown state the following. "During the search of apartment 301/283 City Road Southbank, police located a clandestine laboratory for the deconstruction or extraction of narcotic substances. The apartment was unfurnished and smoke detectors in each room were removed from the ceiling. The hallway and kitchen sprinklers were covered with latex gloves and the living room sprinklers were covered with plastic bags….Police forensic scientists attended the apartment and seized relevant items. Forensic analysts confirmed (i) a solid liquid suspension in a porcelain pot containing 445.7 grams pure methamphetamine, 873.6 grams gross; (ii) a plastic bucket circular metal rack and bottle containing a thermometer which contained traces of methamphetamine; (iii) a Kristallon scoop contained 0.46 grams pure methamphetamine, 0.6 grams gross with a purity of 76.1 percent; (iv) a Sistema jug and two red funnels contained 0.3 grams pure methamphetamine, 0.5 grams gross with a purity of 60.4 percent; (v) a fan heater, latex gloves, scoops and filter papers."
22The methamphetamine had undergone the process of recrystallisation in that way. Mr Heliotis put that the process was at its end and the drug was settling into that form and this was not challenged. He stated that the apartment had been leased to you since December 2000-2013 but that you were not occupying it, having moved and lived at 135 City Road where the inert substitution was found. You had made this apartment available to the same people, realising that it was to be used in some way for drugs. In mid to late July you had been asked to return to and clean up the apartment and began to do so on about 21 July. You had completed much of that. The recrystallised methamphetamine was in your possession for sale by others, I accept applying the Storey principles, and you will be sentenced on this basis. It is consistent with a series of emails between you and the real estate agent between 21 and 31 July. The apartment was to be vacated for further lease on or by 18 August. It was to be open for inspection early in the week following 31 July. It is also consistent, as much as I can deduce with the photographic evidence. I do not find beyond reasonable doubt that you were directly engaged in the production or recrystallisation process. The 455.7 grams of recrystallised methamphetamine found is given an estimated wholesale value of $350,000 to $420,000 and street value of about $870,000.
23You are a 34 year old single man presently held in remand custody at the Metropolitan Remand Centre. Your family are South Vietnamese and left Vietnam as refugees. You were born in Malaysia and came to this country as a newborn child. The family lived in a Flemington public housing estate. You have a younger sister born here. Your father was a violent alcoholic and your mother left when you were 5. The years following were of dislocation and in my view, marked hardship. There was a period of about one year in Sydney where you had been taken by your father. You were not properly cared for. You returned to your mother in Melbourne. There were a series of partners to her. Several or most were abusive and drug users. You have a 12 year old half-brother, born to her and one of her partners. Your mother used and trafficked drugs and in one period was imprisoned. You were in Government care at about 7 and separated from your sister. That was in New South Wales. There was a further neglected period in Sydney with your father. You again returned to your mother after her release, now eight. The family lived in women's refuges and public housing. This seems mainly in Sydney.
24Your sister's tendered letter quite powerfully describes events in your childhoods, including an occasion of your mother recovering her from your father's custody but forced to leave you behind. Your secondary education was in Sydney, including toward the end at a Catholic Boy's college. You completed Year 12 which can be seen as a considerable achievement, given your early years. Your family is supportive of you and members attended court.
25You reported to Mr McKinnon periods in adulthood of excessive alcohol and recreational drug use. It was not put to me that this offending was caused by or connected to drug dependence.
26After school you completed an advance diploma in Network Engineering at Sydney TAFE. You have worked since, it seems successfully, in Information Technology. As I have earlier stated, your last employment was at UEECOM Optus in Richmond. You were there for about three years and promoted to project manager.
27For most of the last 10 years you have lived in Melbourne. Your mother and sister also live here.
28You have one prior conviction. In October 2004 you were convicted and placed on a Community-based Order for obtaining financial advantage by deception. Reparation was ordered in the sum of $12,209. Now over 10 years old (you were aged 23) this is of limited relevance. You have no subsequent or pending matters.
29Psychologist Ian McKinnon states no identified psychological condition and that you are of at least normal cognitive functioning. He presents a picture of a naïve, impressionable and perhaps socially underdeveloped person. He relates this in part to your early life experiences and deprivation. I should add that parts of the character reference material tendered supports this. Mr McKinnon purports, perhaps beyond his expertise, to relate this to your motivation and situation leading to the offending. I give what he says about your personality some credence. As stated, it is to some extent supported by what is independently stated in the tendered material by your family and long-term friends. I also accept that there was an element of at least latent intimidation to what you agreed to do, given the associations you had formed. However, it remains that your decision to join and assist this drug operation was made as a mature man unaffected by any relevant psychological condition. Further, this must be seen in the context of the quite immense scale of it. I do accept that, given your personality and situation, you will continue to find imprisonment difficult and intimidating.
30It hardly needs stating that this is very serious offending, particularly Charge 1. The respective maximum sentences reflect that. Your role, whilst not senior and accepted as earlier found by me, was important. It could be said critically so. Your involvement was short in duration but, as stated by Ms Tran, you were trusted to accept and hold the shipment. Although I also accept your personal vulnerability to involvement with those who ran the operation, ultimately you did it for reward. The amount of drug involved was extremely high, perhaps it can be said historically towards the highest level. The scale of it is an important factor. Although lesser, Charge 2 is also a serious example of the offence and of substantial scale. In such a case as this the sentencing purposes of deterrence, particularly general deterrence, and condemnation of the offending are important. The moral culpability is high.
31General deterrence is the primary sentencing purpose. Abuse of drugs such as methamphetamine is seen to be a prevalent and damaging problem. It is necessary to protect the community by sentences which deter traffickers, particularly traffickers of such a dimension as this. The proportionate punishment must be a substantial sentence of imprisonment.
32There are some mitigating and/or moderating factors, some of which I have already raised. They include the following.
331) Your plea of guilty and cooperation. That plea expresses remorse; but also I am satisfied by the tendered character reference material that you feel considerable and genuine remorse. 2) Your personal history and circumstances. 3) I see you as having good prospects for rehabilitation. As stated, you have a limited criminal history and no subsequent or pending matters. Further, that tendered material quite emphatically presents you otherwise as a person of decency and kindness. I found this material unusually persuasive. You have good family support and the capacity for good employment when you leave prison. I do not see specific deterrence as having the importance it otherwise would in a case like this.
34The mitigating factors go to reduce your sentence. However, the exceptionally serious nature and scale of the offending and the need for general deterrence remain paramount. I am persuaded that I should impose a significantly lesser minimum term than what might normally be imposed because of the matters favourable to you.
35I was directed to Section 16A of the Crimes Act and those matters I must take into account. I have done so and feel that I have identified those I see to be particularly relevant. You are sentenced as follows:
36On Charge 1, attempting to traffic in a commercial quantity, you are sentenced to 10 years' imprisonment.
37On Charge 2, trafficking in a marketable quantity, you are sentenced to three and a half years' imprisonment. I direct that 12 months of Charge 2 be served cumulatively on Charge 1. That is a total effective sentence of 11 years' imprisonment. I set a minimum term of six and a half years before eligibility for parole. I declare under Section l8 323 days of pre-sentence detention.
38What other matters do I need to address, Ms ‑ ‑ ‑ ?
39MS TRAN: Your Honour, in terms of the commencement dates we have to nominate starting dates so I'll do that.
40HIS HONOUR: I see, it's done in the Commonwealth form.
41MS TRAN: Yes, that's right, Your Honour.
42HIS HONOUR: And that's to reflect the cumulation.
43MS TRAN: That's so, Your Honour.
44HIS HONOUR: All right. I should have raised this with you before I began my sentence. I usually do that so that you or your instructor can do the arithmetic.
45MS TRAN: We can do that between ourselves I think, Your Honour. There was also a forfeiture order, so if I can hand up the balance of that.
46HIS HONOUR: Yes, I'll sign the forfeiture order. That's related to the drugs, is it?
47MS TRAN: The money, Your Honour, $45,000.
48HIS HONOUR: The money, yes, I'll sign that.
49Yes, I've signed that. I need to indicate what sentence I would have imposed ‑ ‑ ‑
50MS TRAN: For the plea of guilty.
51HIS HONOUR: Yes, if he has not pleaded guilty I would have imposed a sentence of 15 years with a minimum term of 12 years. What else do I need to do?
52MS TRAN: We're just working out the start date, Your Honour ‑ ‑ ‑
53HIS HONOUR: Yes, sorry. So I'll need to formally restate the sentence, won't I? Do you want me to wait outside while you do that? You might need to discuss it.
54MS TRAN: If Your Honour pleases.
(Short adjournment.)
55HIS HONOUR: My quick assessment is that - in order to achieve 12 months of Charge 2 being cumulative upon Charge 1 do I direct that the sentence on Charge 2 commence at 7 and a half years from today?
56MS TRAN: We could do that. My learned friend and I have had a quick discussion. It might be achieved also if Your Honour starts Charge 2 today and then the sentence on Charge 1 within 12 months, so it would be 19 June 2016.
57HIS HONOUR: Doesn’t matter, that's - how does that affect the minimum term?
58MS TRAN: It doesn’t, Your Honour.
59HIS HONOUR: It doesn’t, all right.
60MR GULLACI: Your Honour, the only reason that we suggest that is that it might be - firstly it's easier from a mathematical point of view which I don't think lawyers collectively at all are very good at but, Your Honour, also it won't affect the ultimate non-parole period because Charge 2 will have well and truly finished before obviously Charge 1 does.
61HIS HONOUR: Yes - I think that's a legitimate concern. I'm sure Ms Tran is right but it makes it all very clear, doesn’t it?
62MR GULLACI: Yes.
63HIS HONOUR: One's expectation would be that this man would be a viable parole candidate but one doesn’t know; it's a matter for another body. So just stand up again. I sentence you as follows.
64On Charge 1, you are sentenced to 10 years' imprisonment.
65On Charge 2 you are sentenced to 3 and a half years' imprisonment. In order to effect that 12 months of Charge 2 be served cumulatively on Charge 1 I direct that the sentence on Charge 1 not commence until a date 12 months from today. That amounts to, as I said before, a total effective sentence of 11 years. However, I have set a minimum term before eligibility of parole of six and a half years and set against that is my declaration of 323 days of that minimum term already served. Does that achieve it?
66MS TRAN: Yes, Your Honour, thank you.
67HIS HONOUR: Very well, thank you for your assistance. The prisoner must be taken into custody now.
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