Director of Public Prosecutions v Nguyen
[2013] VCC 932
•19 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00015
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN SUA NGUYEN |
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JUDGE: | His Honour Judge Smallwood | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 June 2013 | |
CASE MAY BE CITED AS: | DPP v NGUYEN | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 932 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr. B. Kerlin | |
| For the Accused | Mr. J. Dowsley |
HIS HONOUR:
1 Van Sua Nguyen, you have pleaded guilty to one count of importing a marketable quantity of a border controlled drug, that being heroin. That crime carries a maximum penalty of 25 years imprisonment.
2 You are 71 years of age. You have pleaded guilty and I accept that you have displayed, in the end, appropriate remorse. You must also get the utilitarian benefit of that plea of guilty. You have no prior convictions or finding of guilt, and you have no matters pending. All those matters go very much in your favour.
3 The circumstances of the offending were that on 25 September 2012, you arrived on an aeroplane from Vietnam. You were travelling on an Australian passport and are indeed, an Australian citizen. Hence, as I understand it, you will not be subject to deportation.
4 You were subjected to a screening by border control and underwent a baggage search at around about 9.13 a.m. At 10.52 a.m. you were subjected to a frisk search which was carried out in a private room, in the presence of a Vietnamese interpreter. Customs' officers located a hard package situated in your groin region. You were asked what it was. You said "I have gambling debts and I think I have heroin on my body." They then cautioned you and then conducted a full body search. At 11.48 a.m. it was discovered that you were wearing three pairs of underpants and three packages were concealed inside one of those pairs of underpants, which appeared to have modified stitching. One package was a pink-coloured balloon containing a substance moulded into a cylindrical shape. The remaining two packages were orange coloured balloons of a similar shape. At about 12.27 p.m. you consented to an internal search and nothing was found, as you had indicated. You then underwent a CT scan at the hospital, which again indicated there were no foreign substances inside of your body. Ultimately at 5.50 p.m. you were placed under arrest for the importation of the drug heroin and taken to the police station. You were given there an opportunity to rest.
5 In explanation to the police, you told them that you had gone to Vietnam and arrived at 8.30 a.m. on 25 September. You told them that a man known to you as Fatso No. 4 had asked you to take three packages to Australia. You were to be paid $15,000. There is some suggestion that you did not know it was heroin but it does not really matter, because the Crown do not have to prove what the actual drug was, as long as it was a drug of dependence in the manner that it is described.
6 In any event, the interview was concluded and you were formally charged and you were transferred into the custody of the Australian Federal Police. The total weight of the three packages was 296 grams, of which 208.3 grams was pure heroin. Two grams is the marketable quantity. At a wholesale level, the drug would be worth in the order of $100,000. You proceeded by way of a straight hand-up brief and entered a plea of guilty at the earliest opportunity. As I have said, you are 71 years of age.
7 Crimes of this nature require very much the application of general deterrence and specific deterrence, as well as punishment and appropriate denunciation. The authorities are clear that general deterrence play a very large part in sentencing people for offending such as this, and the lack of a criminal history does not avail one as much as it does in other circumstances. The fact remains, however, that you are 71 years of age.
8 A custodial sentence is, and has been since the outset, inevitable. In terms of looking at the length of that sentence, I turn to matters personal to you. I am aware of the provisions of s.16A2 of the Act, and take all those matters into account.
9 Firstly, I indicate that you have five children who have all done well since your arrival in Australia. Your history was outlined in a laudably brief chronology provided by Ms Trumble. You were born in 1944. Between 1969 and 1975 you served in the South Vietnamese Army. After the end of the war, you were detained in a re-education camp which effectively means a prison. You were kept there for two years. Between 1977 and 1982, you were sent to work as a rice farmer and given a small parcel of uncultivated land to clear and farm. In 1982, the government sought to repossess that land and make the farmers work the land for pay, mainly by rice provisions. You refused to give up your land and become a worker. You were incarcerated for disobeying that order. Between 1982 and 1984 you were in prison. I have been told from the Bar table, and I have no doubt that it is true, that you were extensively interrogated and tortured during that imprisonment. That was on the understanding that they apparently had, that you were an organiser of resistance to the compulsory acquisition of the property.
10 In 1984, you were released. In 1985, you attempted to flee. You had been targeted by the government, you said, as having a history of disobedience. You were unable to create a life for yourself. You were detected, but were unable to escape the authorities. In 1986, you again attempted to flee. You were detected, arrested, and incarcerated for two years. You were again tortured in an attempt to identify those responsible for assisting you in trying to flee. In 1989, you successfully fled Vietnam with two teenage daughters. Your wife and the other children remained. From '89 to '93 you lived in a refugee camp in Indonesia. You did well at that camp. In 1993, you were granted refugee status in Australia and flew here with your two daughters. In 2004, your former wife and the other children came to Australia, having been sponsored by your eldest daughter. You speak very little, if any, English, and were in your 50's when you arrived as a refugee.
11 Importantly, in your situation, you suffer from ill-health and I have no doubt of that. A deal of material was tendered in support of that, but I think it can be very much summarised in a report from the Joslin Clinic which said in relation to you:
"His current symptoms of chronic severe diarrhoea after his bowel surgery for bowel cancer" which, I interpolate, was in 2010 - "means he needs to take Lomotil regularly. He also suffers from chronic lung disease which causes shortness of breath after walking 10 steps, despite use of regular inhaler medications listed below. He is susceptible to lung infections, such as pneumonia and influenza, particularly when living in close contact with others, such as would happen if he was incarcerated. He is also at risk of reactivation of his TB when stressed or if he has a reoccurrence of his cancer, and if he has poor nutrition which would be of importance when incarcerated."
12 I think that covers the situation entirely. You are very unwell man. Gaol will be much harder for you and there is a serious risk, in my view, that it will exacerbate the problems that you suffer from. I indicated to your counsel that often in custody, people do better, however, Ms Trumble pointed out to me that when you were incarcerated for 61 days previously, you spent 33 days of that in either St Vincent's or the gaol hospital, so one can infer from that, that you did not do well in custody.
13 I do not propose to go through the medical documents that were tendered on your behalf. I accept what I have just described. You have good family support. Your children have been here to support you, and I would say that it is very clear that you have been a good dad. At 71, I think the prospects of you rehabilitating are good. The risk of you re-offending, certainly in this way, I think, is absolutely zero.
14 What we are left here with, Mr Nguyen, is a 71 year old man in very poor health, both in terms of his lungs and the potential and past examples of cancer of the colon. I have taken all those matters into account. The Crown range I think, bearing in mind that it was on a person of age 62, was reasonable, but has to be reduced because of the actual age which I must sentence you for. I am well aware of the authorities relating to matters such as this, and clearly, a person who imports heroin must expect a significant gaol term, not only in terms of the head sentence, but a minimum term as well.
15 In your particular situation, I think that it is a circumstance which, when you described to police that the reason you did this, for the $15,000 at least, very much in part, was that you wanted to be able to buy a tomb in Vietnam for your impending death.
16 It is very difficult for a Judge not to, in my view, exercise an element of mercy. I do not propose to do that in respect of the head sentence, because I think general deterrence say that is inappropriate, but in your particular personal situation, I am giving you a minimum term, which while still very significant for a person of your age, is somewhat less than what might otherwise have been the case.
17 Accordingly, on the charge of importing heroin, you are sentenced to be imprisoned for a period of three years and three months. I direct that you serve 18 months before becoming eligible for parole, and I direct that 62 days be reckoned as having been served under this sentence. If you are released upon parole in the ultimate, and I have great confidence that you will be, any offending or breach of conditions may result in that parole being cancelled and you being re-incarcerated.
18 I say that, to see you and your family understand how much benefit was received from pleading guilty. But for your plea of guilty, you would have been sentenced to be in prison for a period of five years with a minimum term of three. I declare that the sentence commences today.
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