Director of Public Prosecutions v Nguyen

[2014] VCC 245

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-00462

DIRECTOR OF PUBLIC PROSECUTIONS

v

TU NGUYEN

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2014
DATE OF SENTENCE:	7 March 2014
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2014] VCC 245

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Patton

For the Accused Ms E. Turnbull

HIS HONOUR:

1You pleaded guilty to an indictment charging you with trafficking a drug of dependence, namely heroin, in a commercial quantity, and to trafficking in a drug of dependence, namely methylamphetamine.

2The period over which you trafficked in heroin was between 8 April 2011 and 5 June 2011.   The maximum term of imprisonment for the offence subject to Charge 1 is 25 years and the maximum sentence for the trafficking offence subject to Charge 2 is 15 years.

3You have also pleaded guilty to a number of summary offences which have been uplifted from the Magistrates' Court.  Entering an intersection against a red traffic light, driving a motor vehicle on the Eastern Freeway whilst your authorisation to do so was suspended, dealing in property, namely $12,810, being the proceeds of crime or suspected as being the proceeds of crime, driving a motor vehicle whilst impaired by drug and another charge of dealing in property suspected of bringing the proceeds of crime, namely $2,350.

4You have also admitted to prior convictions, the last of which was for trafficking in a large commercial quantity of heroin for which you ultimately received a sentence from the Court of Appeal on 14 August 2008 of six years with a non-parole period of four years.  Eight hundred and ninety seven days of pre-sentence detention was reckoned as time served under that sentence.

5The prosecution has tendered and relied upon a Summary of Prosecution Opening which sets out the circumstances of each of those offences that was read out in open court a few minutes ago and I am not going to go through that again.   Suffice to say that the sequence of events which constitutes the various charges involved you being stopped or intercepted by police, first on 8 April 2011 when you were found in possession of both methylamphetamine and heroin, and then on 3 June 2011, when you were found in possession of about an ounce of methylamphetamine and an ounce of heroin.

6On each of those two occasions you were also found in possession of substantial sums of money.   Ultimately you were the subject of the execution of a search warrant upon your home premises and were found in possession of further quantities of both methylamphetamine and heroin.

7The total quantity of heroin possessed by you during the period between 8 April and 3 June 2011 was 663.3 grams of heroin mixed with other substances.  The minimum commercial quantity is 500 grams of a mixture including heroin so it is accepted I think by the prosecution that the quantity is towards the lower end of the range of offences involving commercial quantities of heroin.

8As far as methylamphetamine is concerned the total that you possessed was 190.4 grams.   The offence subject to Charge 2 is an offence which occurred on the one day and is below the commercial quantity limit.   You are therefore to be sentenced only for the offence of trafficking simpliciter.

9It has been pointed out that you committed these offences whilst on parole for the offence for which you were sentenced in 2008.   Indeed you lost your parole on 22 June 2011 and served out the rest of the sentence that you were undergoing.

10You are also to be sentenced on Charge 1 as a serious drug offender which means that I am required to regard protection of the community as a primary sentencing consideration.  That would give me the power to impose a sentence that was more severe than the circumstances of the offence would ordinarily warrant.   However the prosecution has not sought to persuade me that I should impose such a sentence and I do not intend to oppose a sentence that is greater than that which would ordinarily be merited by the circumstances of the offending conduct.

11Turning to matters personal to you I have been provided with helpful plea submissions, on your behalf by your counsel Ms Turnbull.   She points out that you are now 46 years of age, acknowledges that you have relevant prior convictions and acknowledges that I am required to impose a sentence upon you that is commensurate with the seriousness of your offending, pays proper regard to deterring you from committing further offences and pays proper regard to deterring others from committing similar offences.

12However, she also urges me to look to facilitate your rehabilitation as far as I reasonably can in all the circumstances and points out that ultimately the protection of the community is to be better served by rehabilitating you than not.  The thrust of her submission is that I should not impose a crushing sentence, rather I should pay proper regard to the fact that because of this offending conduct you have put yourself in breach of parole and have had to serve the balance of the sentence that you would otherwise have been able to serve on parole.   You have therefore spent an extra two and a half years, in round figures, in prison that you would not otherwise have had to serve.

13There is a history which is set out in paragraph 3 of her sentencing submissions which shows that you were born in Vietnam.   Your father died fighting during the war in Vietnam, your mother remains in Vietnam.   You are the youngest of five siblings, one sister in Australia, the balance remaining in Vietnam.   You came to Australia as a refugee in 1998 at the age of 20 having spent five years in a refugee camp in Hong Kong.

14It seems that you set about learning English, obtaining employment and worked diligently for a period of time.   It was around that time that you were first introduced to heroin.  You met your wife and co-offender whilst working in a factory in Heidelberg.   You now have three children of that relationship aged 13, nine and six, two of whom I think are in court today.

15It is submitted that this offending conduct is a reflection of your long term addiction to heroin, although it is accepted that you were dealing in heroin beyond the need purely to service your addiction.  It seems also that you had become a methylamphetamine user and that that too had become a substance that you were abusing, at least towards the end of the period of your offending.

16Whilst trafficking in these two drugs aggravates your offending conduct it seems to me that it is part and parcel the same business that you were running.   Although the business enterprise did go clearly beyond that required to service your habit or habits it does not fall into those high range categories of offending conduct involving international drug syndicates and so on and so forth that puts you in the higher sentencing bracket.   It is relevant that your addiction to heroin undoubtedly played a part in your offending conduct.

17You have physical health problems involving a recurring infection of a heart valve which is being treated daily whilst you have been in custody.  You also suffer from chronic asthma.  The real thrust of the plea made on your behalf was not to impose a crushing sentence and to draw to my attention that it was necessary to apply the totality principle.   That is looking at your offending conduct as a whole in arriving at a sentence that is just, punishes you sufficiently without imposing a crushing sentence and also takes into account the time that you have spent serving the balance of the sentence for which you were paroled, that is I think a total of - what was it nine hundred and ‑ ‑ ‑ 

18MS TURNBULL:  It was one thousand and six.

19HIS HONOUR:  One thousand and six days altogether but less one three five days wasn't it for ‑ ‑ ‑ 

20MS TURNBULL:  One three six.

21HIS HONOUR:  ‑ ‑ ‑ pre-sentence detention.  One three six is it?  Yes.  One three six days of pre-sentence detention which applies to this matter.

22I accept that submission.  It seems to me that it would have been necessary and approaching the correct sentence in this case, to be looking to impose a sentence that was greater than that which was imposed on the last occasion you were before the court in 2008 where the Court of Appeal imposed a sentence of six years with a non-parole period of four years.   I would have been minded to impose a greater sentence than that.   But it is necessary to give proper affect to what is generally known as the Renzella principle, taking into account that period during which you have had to serve out your parole for that sentence.  For that reason I do make a very significant reduction to the sentence that I otherwise feel bound to impose.

23It was also submitted that I should impose a non-parole period which would be shorter than usual to enable you to engage in rehabilitation programs.  Of course there are rehabilitation programs available within the prison system and I urge you to make use of those.   But I do accept that rehabilitation is important, although at the moment I am not inclined to think that I could regard you as being a good candidate for rehabilitation.  Whether you become a good candidate for rehabilitation will depend very much on your own efforts within the prison system and in impressing the Corrections department that you are or have become a good candidate for parole.   If you do that you might get parole at an early stage rather than at a later stage of your sentence.

24Taking all those matters into account and taking into account that although I need to sentence for the various summary offences those offences pale in significance compared with the seriousness of the offence, particularly the subject of Charge 1.   Whilst they merit terms of imprisonment in some cases I do not propose to make any of those sentences cumulative.

25I also regard the proceeds of crime offences as being part and parcel of your trafficking and for those reasons I do not intend to impose any cumulation of sentence arising from either of those proceeds of crime offences or indeed the offences subject to Charge 2 on the indictment.

26Mr Nguyen would you please stand.  For the offence the subject of Charge 1 of trafficking in a commercial quantity of heroin I convict you and sentence you to imprisonment for four and half years.

27On Charge 2 of trafficking in methylamphetamine I convict you and sentence you to imprisonment for a period of two years.

28The total effective sentence is therefore four and a half years.  I am sorry I should say I need to sentence you for the summary offences also before I declare that.  In respect of the offence of running a red light I convict you and discharge you.

29For the offence of driving while suspended I sentence you to imprisonment for one month.

30For the offence of driving whilst impaired by a drug I sentence you to imprisonment for two months and disqualify you from driving or holding a driver's license for a period of two years.

31For the offence of possessing $12,810, reasonably suspected of being the proceeds of crime, I sentence you to imprisonment of seven months.

32And for the offence of possessing $2,350, reasonably suspected of being the proceeds of crime, I sentence you to imprisonment for four months.

33I declare that in respect of Charge 1 on the indictment that I sentence you as a serious drug offender and I make it clear that all of those sentences of imprisonment will run concurrently.   Therefore the total effective sentence is four and a half years imprisonment and I order that you serve a period of two years and six months before you become eligible for parole.

34But for your pleas of guilty I would have sentenced you to a total effective sentence of six years' imprisonment with a non-parole period of four years.

35I declare 135 days of pre-sentence detention as time served under the sentences that I have imposed, to be deducted administratively for the period that you will actually have to serve.

36I make the forfeiture order in the terms of the draft with which I have been supplied.  Are there any other orders that I need to make gentlemen?

37MR PATTON:  There's a disposal order attached too.

38HIS HONOUR:  And the disposal order, yes.

39MR PATTON:  As well Your Honour, there's one of each.

40HIS HONOUR:  Thank you very much.  And the disposal order in the terms of the draft.  You can take a seat for a moment Mr Nguyen.

41MR PATTON:  Your Honour there's one summary charge that Your Honour's yet to sentence on.

42HIS HONOUR:  Really?

43MR PATTON:  Yes.

44HIS HONOUR:  Which one did I miss?

45MR PATTON:  It was another one for the proceeds suspected of - the deal property ‑ ‑ ‑ 

46HIS HONOUR:  There were three proceeds ones were there?

47MR PATTON:  Yes there were Your Honour.  It was ‑ ‑ ‑ 

48HIS HONOUR:  Yes.

49MR PATTON:  ‑ ‑ ‑ three thousand ‑ ‑ ‑ 

50HIS HONOUR:  That was the three thousand odd dollars wasn't it?

51MR PATTON:  Yes.  Three thousand nine hundred and something.

52HIS HONOUR:  Yes.  All right well for that offence I convict the accused and sentence him to a period of five months' imprisonment.

53MR PATTON:  As Your Honour pleases.

54MS TURNBULL:  As Your Honour pleases.

55HIS HONOUR:  Mr Patton I seem to have three copies of the disposal order but only two of the forfeiture order, is that correct?  Or should I have a ‑ ‑ ‑ 

56MR PATTON:  No Your Honour I was - would have expected there to have been three of each with this.

57HIS HONOUR:  I would have expected that.  It's possible that I've got them ‑ ‑ ‑ 

58MR PATTON:  A copy may not have been ‑ ‑ ‑ 

59HIS HONOUR:  ‑ ‑ ‑ muddled up with something else but do you need a third copy?

60MR PATTON:  I'll just check with my instructor.

61HIS HONOUR:  Yes.

62MR PATTON:  No I don't believe a third is strictly necessary Your Honour.

63HIS HONOUR:  No, all right.  Well look I'll hand you back what I've signed and I'm more than happy to sign another one if it's useful or necessary for me to do so.

64MR PATTON:  Thank you Your Honour.

65HIS HONOUR:  All right well thank you very much both of you.  You can take the prisoner down now, thank you, and I will leave the Bench whilst the other prisoner's brought up.

---