Director of Public Prosecutions v Nguyen

[2013] VCC 1046

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00266

DIRECTOR OF PUBLIC PROSECUTIONS

v

TROUNG NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 June 2013
CASE MAY BE CITED AS:	DPP v. Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 1046

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P Moran	Office of Public Prosecutions
For the Accused	Mr G. Kuek

HIS HONOUR:

1       Troung Quin Nguyen, you have pleaded guilty to one count of trafficking in a drug of dependence in a commercial quantity.  That carries a maximum penalty of 25 years' imprisonment.  You have also pleaded guilty to one uplifted summary matter of dealing with the proceeds of crime.

2       You pleaded guilty at an early opportunity to a settled indictment and are now 32 years of age.  I accept in the circumstances that your plea is accompanied by appropriate remorse, and you must, of course, get the utilitarian benefit of that plea.  You do have prior convictions, the most significant of which being for trafficking in a drug of dependence, albeit that conviction is now some 10 years of age.

3       The circumstances of the offending were that an operation known as Horizon was conducted by Victoria Police into a Mr Long Tanh Li essentially.  That operation used surveillance and telephone intercepts to gather evidence against him.  Other members of the syndicate, including a Bill Nguyen, an Anthony Tah and yourself were acting at the direction of Li.  Troung Quin Nguyen acted as a courier and holder of drugs for Li. 

4       On 7 February 2012 Li arranged to inspect and collect methylamphetamine at a restaurant in St Albans and leave it at your premises in Deer Park.  When police executed a search warrant there about half an hour later, you were found to be cleaning the ice for sale using acetone to remove yellow impurities and restoring it to a white colour or suitable for smoking.  A commercial quantity of the drug was seized. I am told that the total weight was 1.1 kilograms.  That gives rise to the charge to which you have pleaded guilty.

5       You had in your possession $2,605 in cash.  You said to the police that was the remainder of the $5,000 you had been paid to hold on to the ice, but you declined to say who had paid you to do that.

6       The offence has to be regarded as serious; indeed all the co-accused have been imprisoned for it.   Because of the application of general and specific deterrence as well as denunciation and appropriate punishment, a custodial sentence is inevitable, and you have already served a significant period of time.

7 Firstly, pursuant to s.464Z of the Crimes Act I hand down an order that the sample provided by you be retained for placing on the data base.  That is handed down.

8       Gentlemen, I will just double-check this.  Is it 192 days or 188?

9       MR MORAN:   192, Your Honour.

10      HIS HONOUR:  Yes, thank you.  The original thing said 188.

11      MR KUEK:  Plus another six days since last week, Your Honour.

12      HIS HONOUR:  In PSD?  I have written down 192, I'm just making sure that I was right with that.

13      MR MORAN:  Yes, Your Honour.

14      HIS HONOUR:  Essentially, he submission that was put on your behalf is that you have effectively done enough. 

15      Insofar as the offending was concerned, it was put that a co-accused received a sentence of three years and 18 months, and that you were lower, if I could put it in that way, than he.

16      Insofar as that is concerned, it seems to me that there are differences between you.  He has a wife and three children; you have a six-year-old son, who will as I understand it live with your parents, or is living with your parents.  The real distinction, I think, and Mr Long Li is of no significance to you, is the weight.  He, that is Mr Truong Nguyen, trafficked in two kilograms which he went to Sydney to bring back; you had the one kilogram.  However, it cannot be regarded as simply minding.  You had been paid a very significant amount of money to hold it, on your own admission, and there is no evidence before me as to what was to occur after that.  What can be seen is that you were in fact cleaning that ice using acetone, and there is no explanation before me as to how all that came about.  It seems to me it cannot be regarded as simply a minding, and I do not see that there is all that much difference between your position and that of your co-accused, albeit I do take into account that yours is significantly less.

17      I then look at the matters personal to you.  As is so often the case in these situations, you are from Vietnam.  You father was a fisherman, and he and his family, other than a brother, fled the country.  You remained in Vietnam for the next 10 years.  You went to school for a period of time, and you worked.  In July of 1997 you and your brother arrived in Australia. You were 16 years old.  You did not do well at school once you got here, and you ultimately in later years formed the relationship which gave rise to the child that I have already referred to.

18      What is put is that at the time this offending occurred you were using ice in a very significant way.  I take that into account, and on the material before me, I have no option but to accept that your involvement in this was at least very substantially to pay for your own addiction.  I refer to the matter of R v. Lacey insofar as that is concerned.

19      General deterrence plays a very significant part in this.  I might say that the comparative chart provided by your counsel was of real assistance in determining this matter.  I read the material from Mr McKinnon, the psychologist who spoke to you, and I accept that you have a depressive disorder, though not of a very severe nature.  It is hard to see that moral culpability other than potentially by reason of your addiction is altered, and there is nothing to suggest that you will do gaol harder than any other person.  As I have indicated, the major argument that was put on your behalf was one of parity.

20      I had you assessed for a Community Corrections Order, because I needed to think the matter through and to examine the comparisons that have been provided to me.  Having done that, as I have indicated, I think there has to be a distinction because of the weight, but other matters I think realistically balance out.

21      You have a prior for trafficking.  The other co-accused had two priors for trafficking even though they were older than yours.  There is very little else, I think, to significantly or appropriately distinguish between you.

22      The prospects of your rehabilitation are up to you.  The existence of your child should be a significant incentive for you.  The risk of you reoffending is dependent upon your rehabilitation.

23      Taking all those matters into account, in the end, on the charge of trafficking you are sentenced to be imprisoned for a period of two years and nine months.  I direct that you serve a minimum term of 16 months before becoming eligible for parole.

24      I direct that 192 days be reckoned as having been served under this sentence.

25      On the charge of proceeds of crime, one month concurrent.

26      Pursuant to s.6AAA, but for your plea of guilty you would have been sentenced to be imprisoned for a period of four years with a minimum term of three.

27      Any other orders?  Thank you, gentlemen, that was concisely done and well done, if I might say so.

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