Director of Public Prosecutions v Nguyen
[2013] VCC 921
•20 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00265
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILL NGUYEN |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2013 | |
DATE OF SENTENCE: | 20 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 921 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Moran | Office of Director for Public Prosecutions |
| For the Accused | Ms E Turnball |
HIS HONOUR:
1 Bill Nguyen, you have pleaded guilty to one count in trafficking in a drug of dependence being not less than a commercial quantity. That crime carries a maximum penalty of 25 years' imprisonment.
2 You are 43 years of age. You have pleaded guilty to a settled indictment which I regard as pleading guilty at the earliest reasonable opportunity. You have shown and displayed remorse in respect of your offending and you must, of course, get the utilitarian benefit of that plea of guilty.
3 Indeed, in your particular situation I accept that you feel ashamed of your offending. In particular, because of the effect that it has had and is having on your young daughter. You will be in custody while she celebrates - if that be the correct term now - her 18th birthday and she is also doing Year 12. I accept that you realise that you are putting enormous pressures on her by your conduct.
4 In so far as prior offending is concerned, you have one fine for trafficking heroin back in 2002 and it is there and I cannot take it much further than that. It remains the fact, of course, that you have done this before.
5 I have sentenced two people already in relation to this particular operation and Mr Tan Le to six and a half with three years and three months minimum and I do not think that is of particular relevance to your sentencing proposition and also a Mr Truong Tran Nguyen to three years with a minimum term of 18 months.
6 There is one further plea where I will be sentencing next week and another which will be done in some months time.
7 The circumstances of the offending were that an operation was being conducted by Victoria Police between July 2011 and March 2012 into a Lon Tan Le, he was the major target of that organisation. Surveillance and telephone intercept techniques were used to gather evidence against him and other members of what is described in the Crown opening as a syndicate being you, Anthony Ta and Truong Huynh Nguyen.
8 You were the main associate of Le, it would appear, assisting him in the trafficking of ice. You also trafficked in your own right to people who came to your address. As the Crown opening describes two key events, book end the charge. On the 5 October 2011, nearly two kilograms of methylamphetamine was seized from Truong Nguyen and on the 2 March 2012, 71.3 grams of methylamphetamine at an address in Eucalyptus Drive in Maidstone.
9 Truong Nguyen was arrested at the Southern Cross Railway Station Bus Depot when he returned from Sydney. He had been recruited by you for the trip. You had travelled to Sydney on instructions from Le and you have made full admissions about arranging to have the drugs paid for, picked up and returned to Melbourne, that is, the large amount of methylamphetamine that is referred to. You flew to Sydney, went by taxi to Gosford to collect the drugs, inspected them and reported back to Le. You then flew back to Melbourne the next day leaving Truong Nguyen to travel back with the drugs on a bus.
10 The 2nd of March seizure was of drugs that you had stored at an address where your nephew lived but where you paid the rent.
11 Between 3 October 2011 to 3 March 2012, telephone intercepts demonstrate that on numerous occasions you were engaged in trafficking ice but the amount involved cannot be further particularised. In other words it is a Geratti-type trafficking. I cannot, in any way be certain of the overall amount but it is certainly well in excess of a commercial quantity and I sentence on that basis.
12 In so far as you are concerned on the material before me I have no option but to accept that you became essentially involved through the owing of money and being addicted yourself.
13 It would appear from the references that you have been living very close to the edge in terms of criminality for some period of time. I do accept that you are lower down the scale than Le, but I think that you are a bit higher up the scale than Truong Nguyen. An active custodial sentence is inevitable and your counsel did not demur from that.
14 I then look to matters personal to you. Clearly, in a situation such as this, general deterrence must play a very significant part. In your situation there must also be referenced as specific deterrence, denunciation and appropriate punishment.
15 Tendered on your behalf were a report from Dr Aaron Cunningham, testimonials from your partner, your daughter and an aunt and certificates of programs that you have laudably undertaken in gaol.
16 A concise chronology was provided by your counsel for which I am grateful. It points out a number of things. There is no sign of enrichment or enhanced lifestyle. It turns out that you, at least, initially were trafficking to support your own habit, that your history was one of being in Vietnam, of going to East Germany, while escaping to West Germany and from there on being on a refugee status and having various jobs.
17 It is clear that you worked in factories and restaurants, a machine operator, and have conducted businesses of your own.
18 You established in 2003, a karaoke bar and restaurant in Abbotsford. It is your ambition to build up an aquarium and trade in exotic fish when you are ultimately released. Your aunty seems to think that you have never really had a respectable job and should go on an oyster farm but she may be old-fashioned, I do not know. In any event that is the history of someone who we know can clearly work and has got himself into this situation.
19 The testimonials. The first is from your partner who is clearly a respectable person. She is now in the position where she has to look after your daughter while you undergo this sentence. She points out that Jodie, who is your daughter, is studying Year 12. However, she does point out that you have been the best you can as a good father. You have together strong beliefs in family values and at the end of your sentence it is a joint decision and desire of each of you to go somewhere where you can get away from your previous peers and start afresh. She is in her 30's and you are in your 40's. So if you can rehabilitate there is no reason why that cannot take place.
20 As I have indicated the next testimonial was from an aunt who described your background and most importantly confirms that you do have the ability to start afresh and confirms that your partner is a very stable and devoted person and can be of real assistance to you in your process of rehabilitation. You told her that you are going to do courses in gaol and, indeed, you have done that.
21 The last is from your daughter who talks about you having been a good father, despite the choices that you have made over the years and she, too, expresses a belief and her very strong desire that after your sentence is finished you will be able to become again, as you certainly have been at some stages in the past, a useful member of the community.
22 You have done a number of courses in gaol whilst on remand and that is very much to your credit.
23 Finally, with the report from Dr Erin Cunningham it clearly indicates there are no real psychological difficulties with you. Nothing to do with it doing it harder in gaol or the principles of Verdins or anything along those lines. He, again, goes through your history about the relocation to East Germany, your escalating drug use and your ending up involved in crime in this way.
24 Importantly, what he does say at the end of his report is, "Mr Nguyen appears to have several current protective factors that may reduce his risk factors, stabilising within the community and improve his psychological functioning. Mr Nguyen stated that he is motivated to provide for his daughter upon his release from gaol. He stated that he would like to relocate to Queensland to separate himself from his prior peer group. He stated that he would like to visit his mother before her death and she, as I understand it, is in her 70's in Vietnam and 'He accepted the wrongfulness of his behaviour'."
25 That fits in with remorse and I add to that the family structure that you have been able to create in more recent years and the strong support of your partner.
26 When I take those matters into account, whilst it remains very much a matter for you and a matter for your own personal sense of shame I think that the prospects of your rehabilitation are good. If you can effect that rehabilitation, upon your ultimate release the risk of you re-offending, if you have the family values that you profess to have should be fairly slight.
27 However, it remains serious offending. The community demands that people who traffic in death, as this really is, should receive condign punishment. I think the Crown range was sensible. What I have done is because of my essentially giving earlier opportunities for parole to the two accused that I have sentenced so far it would be unfair to you, I think, not to give you the same opportunity.
28 Indeed, I think it is in the interest of the community that you do have that opportunity. There might be difficulty with parole about shifting to Queensland and those matters but you will be released under supervision and with assistance. And, accordingly, I propose to give the same, at least, percentage differential between them.
29 Taking all those matters into account on the charge of trafficking you are sentenced to imprisonment for a period of three years and eight months. I direct that you serve a minimum term of 22 months before becoming eligible for parole and I direct that 160 days be reckoned as having been served under this sentence.
30 So that both yourself and your family understand the benefit that you have obtained by reason of your plea of guilty but for your plea of guilty I would have sentenced you to be imprisoned for a period of five and a half years with a minimum term of three and a half.
31 MR MORAN: As Your Honour pleases.
32 HIS HONOUR: Are any orders there to sign?
33 MR MORAN: A disposal order, Your Honour.
34 HIS HONOUR: Yes. I will sign that immediately just so I do not have to keep him in the dock.
35 MR MORAN: And we will email to your Associate the matter of the forfeiture and destruction of the exhibits, Your Honour.
36 HIS HONOUR: Yes.
37 MR MORAN: And you have already signed the retention order.
38 HIS HONOUR: Yes. I have. All right. The disposal orders are made and handed down.
39 MR MORAN: Thank you, Your Honour.
40 HIS HONOUR: And I will authenticate the retention order at some later time.
41 MR MORAN: As Your Honour pleases.
42 MS TURNBULL: As Your Honour pleases.
43 HIS HONOUR: Thank you for that.
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