Director of Public Prosecutions v Nguyen

[2014] VCC 1444

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00907

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELIZABETH NGUYEN

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 August 2014
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2014] VCC 1444

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.D. Singh	Solicitor Office of Public Prosecutions
For the Accused	Dr N. Marcih

HER HONOUR:

1       Elizabeth Nguyen, you have pleaded guilty to one charge of aiding and abetting trafficking in a drug of dependence.  The maximum penalty for that offence is 15 years' imprisonment. 

2       The circumstances of your offending are set out in detail in the Prosecution Plea Opening (as amended) which was tendered as Exhibit A.  In brief the circumstances are as follows.

3       Between 1 December 2011 and 30 July 2012, you assisted your partner, Lai Jiang, to traffic heroin.  Lai Jiang was operating a business selling heroin in the northern suburbs of Melbourne.  Mr Jiang was sentenced in March of this year on one charge of trafficking in heroin and a number of associated charges.  He was sentenced to imprisonment for 6 years with a non-parole period of 4 years.

4        Mr Jiang usually required payment in cash but on occasion he was paid by purchasers depositing money into your bank account.  You assisted Mr Jiang by allowing your bank account to be used for the payment of purchase moneys.  In the period 8 December 2011 until 23 July 2012, a total of $1,380 was deposited in that account in 25 deposits on 17 different dates. 

5       Mr Jiang also accepted computer parts, electrical goods and other goods as payment.  You had two eBay accounts, one of which you controlled jointly with Mr Jiang and the other one you controlled yourself.  During the period of offending, there was a large volume of trading in electrical goods and computer parts using these two accounts.  You assisted Mr Jiang by allowing these eBay accounts to be used to facilitate the sale of goods which had been derived by Mr Jiang from his trafficking.  You could only be directly connected with the sale of one item. 

6       Four associates who assisted Mr Jiang on a number of occasions were charged with trafficking heroin.  They were sentenced in the Magistrates’ Court to Community Correction Orders or short periods of imprisonment wholly suspended.  The four associates had assisted Mr Jiang for shorter periods.  They cooperated with the authorities to varying degrees.

7       It is of considerable relevance that you have a prior conviction for trafficking heroin.  On 11 July 2007 you were sentenced by His Honour Judge Campbell in respect of trafficking that you engaged in with Mr Jiang.  You were sentenced to 15 months' imprisonment with a non-parole period of 9 months.  You were sentenced on the basis that there was a constant course of conduct by you and Mr Jiang over a two month period of supplying, on request, amounts of heroin ranging between 0.1 and 0.3 grams. 

8       In his Reasons for Sentence His Honour set out your personal circumstances and I agree with him that, “Your story is a sad one, of wasted talent and opportunity.”  It is clear from what counsel said on your behalf and the contents of a psychological report from Mr Gary McMullen (Exhibit 2) that you did well at school and started studying at university.  Sadly, you started using heroin when you were nineteen.  You were able to cease your use of heroin when you were pregnant with your now three year old child but resumed using after that.  I accept that since your arrest on this matter you have complied with a methadone program with some relapses with the last relapse being eight months ago. 

9       It appears that there were difficulties in your home life because your mother suffered from bipolar disorder.  Your mother’s mental health appears to have improved in more recent times and you and your child have been living happily with your parents since your arrest.  You plan to continue living with them if you are able to do so. 

10     Mr McMullen is of the opinion that you suffer from Post-Traumatic Stress Disorder (“PTSD”) as a result of you directly experiencing multiple suicide attempts by your mother.  It is his opinion that that condition has been exacerbated by assaults you have experienced in relationships with a previous partner and Mr Jiang.  Mr McMullen is also of the opinion that you are very depressed and that your depression most likely developed during adolescence, although your current situation will have exacerbated that condition.  He is also of the opinion that you meet the criteria for Opioid Use Disorder in early remission on maintenance therapy.

11     Mr McMullen describes you as a loving mother to your child.  He says that despite a poor family history in relation to your mother and also your father’s emotional absence, your parents are now providing you with a safe and secure home.  He says that it is extremely positive that you have been able to sever all ties with Mr Jiang.  He describes you as an intelligent women with significant potential and says, “With treatment and support to help her overcome her psychological vulnerabilities, there is every good prospect that she can make a productive, positive contribution to society.”

12     In sentencing submissions, your counsel relied on a number of factors in mitigation of sentence including:

13a) your plea of guilty;

14b) the delay since this offending without further offending;

15c) your efforts to manage your longstanding addiction to heroin;

16d) your family background and personal circumstances;

17e) your mental health difficulties;

18f) the potential impact of imprisonment on you and the effect on you of separation from your child;

19g) considerations of parity;

20h) your limited role in the offending; and

21i) your good prospects of rehabilitation.

22     Your counsel said that given your prior history a sentence of imprisonment was what you expected but that you were prepared to a Community Correction Order.  The prosecutor submitted that the offending warranted a sentence of immediate imprisonment.

23     Ms Nguyen, clearly any involvement in trafficking heroin is serious.  The courts have repeatedly described the damage caused to society as a whole and individuals themselves from the sale and distribution of illegal drugs.  You have been well placed to observe the detrimental effects of the use of illegal drugs.  You ought to have been well warned by your previous sentence not to get involved again.  It appears that you successfully completed your parole period but remained with Mr Jiang and relapsed into heroin use.

24     Both general deterrence and specific deterrence must be given significant weight in your sentence.  A sentence of imprisonment is clearly within the range and would not be inappropriate as a sentence for the purposes of specific and general deterrence and just punishment.  There are, however, a number of matters which operate in mitigation of sentence and after considering those I am of the view that a Community Correction Order could appropriately reflect the necessary sentencing considerations.

25     You have ultimately pleaded guilty, although at a late stage.  You are entitled to a significant discount for that plea which has saved the time and expense of a trial.  You have apparently faced the prospect of returning to gaol and have made arrangements with Mr Jiang’s parents with respect of the care of your child, as your parents are currently away. 

26     I accept that your offending occurred in the context of your relationship with Mr Jiang and heroin use by him and you.  Your involvement on this occasion in this offending was at a far lower level than your previous involvement.  You clearly knew what Mr Jiang was doing and were present with him on occasions when he sold heroin but you were not directly involved in the selling of heroin or the preparation of heroin for sale. 

27     I accept that the potential separation from your child is something that would weigh very heavily on you were you incarcerated.  I consider that your desire to try to deal with your heroin addiction and to be a good mother is a powerful incentive in your potential rehabilitation. 

28     Whilst your circumstances are different than those of the co-accused, there is also in my view a parity issue given the sentences that were imposed on them and the active way in which they assisted, albeit for different periods.  It is my view that a Community Correction Order would be more in line with parity considerations than a sentence of imprisonment.

29     Your efforts to deal with your heroin addiction, separation from Mr Jiang, family support and lack of offending since the commission of these offences, together with your role as a parent to your child, all suggest that you do have good prospects of rehabilitation.  It is my view that a Community Correction Order could assist in your rehabilitation as well as providing appropriate punishment for your crime.  Such a sentence, in my view, would sufficiently meet the sentencing requirements of general and specific deterrence and just punishment. 

30     You have been assessed as suitable for a Community Correction Order.  I can only sentence you to such an order if you consent to the order being made.  Could you please stand, Ms Nguyen.  I understand that you have spoken to a Community Corrections Officer and the core conditions of the order have been explained to you as well as the consequences of breaching that order.  Is that correct?

31     OFFENDER:  Yes, Your Honour.

32     HER HONOUR:  Do you understand what the Community Corrections Officer told you?

33     OFFENDER:  Yes I do, Your Honour.

34     HER HONOUR:  I now need to explain to you the special conditions that I would impose so that you can understand what you would be consenting to.  The order would be with conviction.  It would be for a two year period.  You would be required to perform 200 hours of unpaid community work over a period of two years, as directed by the regional manager.  I would order that all hours of treatment and rehabilitation, satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.  You would be under the supervision of a Community Corrections Officer for the period of the two years. 

35     You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager.  You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric, in a hospital or residential facility as directed by the regional manager.  I would also make an order for judicial monitoring.  You would be required to attend on 18 December at 9.30am.  That is a review before me to see how you are going on the order.  We can change that date if necessary but those are the terms of the order that I would make.  

36     The other thing I should explain to you directly is that if you breach this order by not doing as your told or as you are directed by the appropriate authorities, or if you commit further offences, you will be brought back before me for breaching the order.  If you are brought back before me, then I can resentence you on these matters and I would clearly be looking at a sentence of imprisonment then, depending on the nature of your breach.  So you need to understand that as well.  Do you consent to the order being made?

37     OFFENDER:  Yes I do, Your Honour.

38     HER HONOUR:  Thank you.  Ms Nguyen, on Charge 1 of aiding and abetting the trafficking in a drug of dependence, you are convicted and ordered to serve a Community Correction Order for a period of two years.  The order will commence today and ends on 28 August 2016.  You will be required to attend the appropriate Community Correctional Service by 4 pm on 2 September 2014.  The mandatory terms have been explained to you and the special conditions that I intended to impose have been explained to you.  Those will be the conditions that will be set. 

39     In respect of your plea of guilty, but for your plea of guilty I would have sentenced to you a term of imprisonment of 12 months' with a non-parole period of six months'. 

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