Director of Public Prosecutions v Nguyen

[2014] VCC 1299

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01589

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIEN CONG NGUYEN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2014
DATE OF SENTENCE:	13 August 2014
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2014] VCC 1299

REASONS FOR SENTENCE

Subject: Criminal law – sentence.            

Catchwords:     Pleas of guilty to one charge of trafficking, 4 charges of possessing drugs, one charge of handling stolen goods.   Good prospects for rehabilitation – already served six months – good compliance with previous CCO.

Sentence: 3 months imprisonment for trafficking, declared already served – two year CCO for other charges.    

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Piper	OPP
For the Accused	Mr J. Wheelahan	Robert Stary & Associates

HIS HONOUR: 

1Dien Cong Nguyen, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine; four charges of possessing a drug of dependence and one charge of handling stolen goods.  The maximum penalty for trafficking and for handling stolen goods is 15 years imprisonment and for the charges of possession, one year. 

2On 14 March 2013, police searched a house in Springvale that was rented by you at the time.  They located 39.5 grams of methylamphetamine, which is the subject of the charge of trafficking.  I note that a trafficable amount is 3.0 grams.  Some of this was found in the house and some in the two cars at the premises, both of which were cars driven by you. 

3Also found were small quantities of other drugs which are each the subject of the charges of possessing drugs; they were MDMA, 0.3 grams; cocaine, 0.4 grams; diazepam, two grams, and cannabis, two grams.  Also located were five mobile phones and equipment commonly used for the preparation of drugs for trafficking.  

4Various items suspected of being stolen were also found, including a camera case, a computer and associated equipment, jewellery and a TomTom navigation device.  Large amounts of money were also found in a safe in the house and in your pocket, initially the subject of a charge, but which was eventually withdrawn.  When interviewed, you told police that you had been unemployed for 15 months, but you were living off superannuation and redundancy money and the proceeds of gambling.  You agreed the drugs were yours and that you were at the time a user of ice and cannabis.

5You were arrested and remanded in custody the same day as the search.  You were on bail for other offences at the time.  Soon after this, you were assessed as to your suitability for CISP, the Court Integrated Services Program, but you were found to be unsuitable because bail had been refused.  On 15 May 2013, you were assessed again and found suitable subject to being released on bail, but again bail was refused as new facts and circumstances had not been found. 

6Because you elected to go to trial, a committal was held in August last year and there was no application for bail then, apparently because you were facing charges at Moorabbin Magistrates' Court for which bail had not been granted.  Following the granting of bail later in that court, you were ultimately granted bail in this court on 6 September and released from custody.  Negotiations were ongoing at the same time as drug analysis was completed and inquiries made as to the source of the money found during the search.  Those discussions and inquiries continued until December last year when the matter was listed as a plea and you had been prepared to plead guilty, but were without funds.  A possible solution was to have the case remitted to the Magistrates' Court, but your application was refused. 

7Once released, you were on bail conditions under CISP and also completed a community treatment order with drug counselling in respect of the matters heard in November 2013. 

8An early report provided by the CISP case manager states that you were engaging well with the program and a recent report from South-East Alcohol and Drug Services confirmed your abstinence from drugs for over 14 months.  Persistent efforts to find a job were fruitful and you have been working as a printer.  You are living in stable accommodation and you are seeing your young son regularly and, through counselling, you have also begun to tackle some emotional problems you were experiencing.  The writer of the report considers that you have demonstrated commitment and motivation to change. 

9Indeed, you have just completed 160 hours of a community treatment order; the one I referred to a moment ago, which you received in November 2013 for possession of drugs, offending which was subsequent to these charges.

10Your criminal history is otherwise fairly limited and your last conviction was in 1993 for theft of a motor vehicle and trafficking.  Quite a complex and unusual procedural history has led to a delay and the postponement of your plea, but despite that, the plea of guilty you have now entered is at the earliest practicable time once the charge as to the proceeds of crime was withdrawn and you are entitled to a discount on your sentence for having avoided a trial.  I also accept it as an indication of remorse. 

11I turn now to your background, noting that you are now aged 44, a single man and the father of a four year old son.  The relationship with your former de facto wife ended a few years ago, around the same time as the death of your mother and you have had difficulty dealing with the grief associated with both those events.

12You were born in Vietnam and came to Australia aged 13 or 14 by boat as an unaccompanied minor after spending six months in a refugee camp.  Your father had died when you were very young and your mother remained in Vietnam.  In Melbourne you were raised by your older brother and you completed secondary school and a post-secondary course in basic electronics.  You completed an apprenticeship in the printing industry and worked in that field until you were retrenched in 2006, receiving considerable superannuation and redundancy payments.  You had further work after that until 2011 and then it seems a combination of drug use and gambling filled your time until you were remanded in custody. 

13Your prospects for rehabilitation are to be considered in the light of your age, your previous offending, your motivation to change and your recent efforts in that regard, as well as the fact that you were addicted to the drug ice for a period of time, using cannabis as well.  Your age is relevant in that for many years while leading a productive and stable life, you did not offend, having settled down after early offending when you were apparently influenced by an anti-social peer group.  Experience of prison, followed by community service and treatment, has provided you with strong motivation to change, and that has been demonstrated by your progress.  I accept that the need for specific deterrence is considerably reduced by these measures, but when drugs are concerned, prospects are often guarded, and that is true in your case. 

14Trafficking is a serious charge and the courts' disapproval must be made clear.  That can be achieved here by the imposition of a combination of sentences, one of which should provide some structure and supervision.  You have already served 179 days not including today; that is about six months.  Even though you have spent that time in custody, I shall sentence you to three months imprisonment for Charge 1.

15Would you stand now, please, Mr Nguyen. I sentence you to three months imprisonment for Charge 1 and declare that you have already served 179 days of pre sentence detention which will be noted on the court record.  I take into account the balance of the time that you have spent in custody, not as time served, but as an additional reason why the sentence should be reasonably lenient. 

16You have been assessed as suitable for a Community Corrections Order, and I shall impose that order for the other five charges.  It begins today and lasts for two years.  You will be under supervision.  Although you have just completed extensive community work hours, I take the view that you should complete 50 further hours under this new order.  It will also require you to comply with assessment and any necessary treatment for drug use.  You must attend the Office of the Community Correctional Services at 46-50 Walker Street, Dandenong by 4pm on Friday, that is 15 August. 

17If you had pleaded not guilty to these charges, I would have sentenced you to a total effective sentence of eight months imprisonment. The prosecution seeks an order for disposal and forfeiture of drugs and equipment and also cash. There is an application also for an order for the obtaining of a forensic sample of saliva under s.464ZF of the Crimes Act, but I do not have instructions from you about that, Mr Wheelahan.  Do you have those instructions or would you like to get them?

18MR WHEELAHAN:  That's consented to, Your Honour.

19HER HONOUR:  I make those orders by consent and I simply add, Mr Nguyen, that the police have the power to use reasonable force to obtain the sample of saliva if necessary, but I trust that will not be necessary. 

20Now, some signing has to be done.  The order is available for Mr Nguyen to sign.

21MR WHEELAHAN:  May I approach the dock, Your Honour?

22HER HONOUR:  Yes, certainly. 

23(Orders signed.)

24HER HONOUR:  Are there any other matters?

25MS PIPER:  No, Your Honour.

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