Director of Public Prosecutions v Nguyen
[2023] VCC 2092
•17 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00637
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANG NGUYEN |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2023 | |
DATE OF SENTENCE: | 17 October 2023 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2092 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Traffick in a drug of dependence – diacetylmorphine - trafficking simplicita – operation kingfisher
Legislation Cited: Sentencing Act 1991; s5(4C)
Cases Cited: Worboyes v The Queen [2021] VSCA 169
Sentence: Convicted and sentenced to six months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Wilson | The Office of the Director of Public Prosecutions |
| For the Accused | Ms S. Stafford | Giorgianni & Liang Lawyers |
HIS HONOUR:
1Thang Nguyen, on 16 October 2023, the County Court of Victoria at Melbourne, you pleaded guilty to one charge on indictment number C2215435:
Charge 5 trafficking in a drug of dependence said to be heroin. This charge has a maximum penalty of 15 years' imprisonment.
2You have no prior criminal history. You have served 29 days of pre-sentence detention prior to being granted bail on 10 June 2022.
The circumstances of your offending
3You have been involved and caught up in the net of Operation Kingfisher. In the Amended Prosecution Opening for Plea dated 16 October 2023, sets out in detail your involvement in the overall offending, which is limited. Your role, however, is integral to the illegal drug trafficking business conducted by your co-accused's.
4
Your offending occurs on a single day, that day being the day of your arrest on
11 May 2022. On that day, at about 12.50 pm, you arrived at 9 Steane Street, Reservoir. This house was under surveillance by police. You were driving a Queensland registered vehicle 119-EA9. You went into the house. The same vehicle had been observed at that premises on an earlier occasion, you were not the driver on that occasion.
5At about 3.10 pm on the day of 11 May 2022, an Asian woman unknown to the police, was dropped off by taxi and entered that same Reservoir address, carrying a bulky green carry bag and a shoulder bag.
6At about 5.06 pm, Mr Cheng arrived at the property in Reservoir, in his Lexus. Mr Cheng went to the front door and returned shortly after carrying a large green enviro bag. Mr Cheng returned to the Lexus and then emerged from the Lexus carrying a brown carry bag. He took that to the front door before returning to the Lexus empty handed, he then drove away. All of that took three minutes.
7At about 5.30 pm, the unknown Asian woman exited the Queensland registered car wearing gloves and carrying the bag that Mr Cheng had delivered. She then entered the house. Shortly after, that is about 5.40 pm, you drove away from the Reservoir house in the Queensland registered vehicle.
8At about 6.20 pm, you were intercepted by police whilst you were driving that Queensland registered vehicle on the Hume Highway up near Beveridge. Initial search of the car located the sum of $2,275.
9Following the attendance of the police sniffer dog at about 7.40 pm, police dismantled the centre console of the car that you had been driving. Once dismantled, it revealed six packages which had been wrapped in a number of layers of brown paper, cling wrap, and vacuum sealed.
10Later forensic analysis of those packages revealed a total of 2,094.4 grams of compressed white powder which contained heroin to a purity of 70 per cent.
11You were interviewed by police, and you stated the following to them:
·An unknown male had contacted you by phone on 9 May 2022 and offered you $2,000 to drive a car from Queensland to an unknown destination in Melbourne.
·Upon arrival in Melbourne, you had contacted the unknown male who had then instructed you via text message where to go, that being 9 Steane Street, Reservoir.
·When you arrived at 9 Steane Street, Reservoir, which was approximately midday, you spoke to a Vietnamese woman that you had never met before at the front of the address and asked her if you could go inside and watch television.
·You slept on the couch in the woman's house.
·You then woke up and left at about 5 pm once that person who had offered you the $2,000 to take the car and instructed you to take it back to Queensland.
·You stated to police that you had no knowledge of drugs being present in the car.
·
When asked by the police if you were not suspicious, you said, 'So, no, no,
I was - I didn't know. I never, you know, know anything, you know, like this'.
·You then later said, 'I thought it was, you know, a bit strange. Yeah. I don't know what was in there, but you know, they - they - they - they said they'd give me $2,000'.
·The money located during the search of you and the vehicle was the $2,000 that you'd been given to drive the vehicle to Victoria.
·You were not aware of any person by the name of Lok Tan Nwong who was the registered owner of the vehicle you were driving, that you were instructed to 'drive down there, park it there, and then when finished, drive it back and park it'.
12You have pleaded to this charge of trafficking on the following basis which is accepted by the prosecution. As I have just described, on 11 May 2022 you were intercepted at Beveridge by the police and while driving that vehicle on route to Queensland. Police found 2.1 kilograms of heroin pressed into six 350-gram blocks hidden inside the centre console which had been dismantled to accommodate the drugs.
13The prosecution has accepted your plea on the charge of trafficking simplicita on the basis that you were not involved in the concealment of the drugs in the vehicle, did not have actual knowledge of the drugs on board, nevertheless that you were aware of the likelihood that the car that you were driving carried a drug that was being trafficked as an awareness that there was a significant or real chance that your conduct involved trafficking a drug. That is the basis upon which you will be sentenced.
Your personal circumstances
14You are a 73-year-old man. You have no criminal history. It is accepted by you through your counsel that there was a real chance that your conduct involved the trafficking of a prohibited drug. You were born in Kamao in Vietnam which is part of Mekong Delta. You are the youngest of a sibship of six children. Your three surviving sisters live in Vietnam. You have limited contact with them. Your father died when you were approximately 14 years of age. You reported to Ms Lechner that he was murdered by the communists. Your mother died in 1994.
15You were educated to Year 11. After your father's untimely death, there was financial hardship within your family. As an 18-year-old, you were then drafted in the South-Vietnamese Army and remained there until the end of the war in 1975, a total of five years' service. You saw active fighting and were wounded. Your brother was killed in the fighting. You were required to escort fellow soldiers that had worked with you to the military cemeteries.
16At the end of the American war as it is referred to in Vietnam, you spent six months as a prisoner of war. Upon release, you worked for two years as a delivery driver. You then sought other work in Saigon, but by 1982 you escaped from Vietnam by boat. After three months in a refugee camp, you then came to Australia.
17You lived in Darwin for the first two years in Australia. You then moved to Sydney until 2003 when you separated from your then wife. You live with your son in Brisbane at the current time. He is here in court with you.
18In 1989, you married. You have two children; your son, Stephen, 32 years old, and Isabelle, aged 30 who lives in Sydney. You live with Stephen, his wife, and two young children aged eight and six. You are a live-in grandfather.
19Your working life in Sydney was as a truck driver and factory worker. Your working life ended as a result of a back injury. Ms Lechner's opinion is that you suffer from PTSD going back to your wartime experiences. You stated that your one-month on remand was an isolating experience, and that you have learned a salutary lesson as a result of it. Ms Lechner notes that you were attracted to the idea of making quick money to help the family finances.
20
You suffer from hypertension and have breathing difficulty and a left shoulder injury; all of those conditions are requiring medication and that is set out in
Exhibit N3.
21You clearly have support of your son who has prepared a reference (Exhibit N4) and been in court for the whole of these proceedings. Your daughter, Isabelle, has expressed her support for you in Exhibit N5.
22After living a law-abiding life in Australia to the age of 72, for $2,000 you have placed your twilight years in jeopardy.
Sentencing considerations
23The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions, and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.
24I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community and seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
25I am also required to take into account current sentencing practises in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and current sentencing practises mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.
26I am also mindful of the provisions of the Sentencing Act, in particular, s5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.
27Your counsel submitted the appropriate sentence was a combination of the time served on remand, which is 29 days, and a community corrections order. This offending is too serious for a community corrections order to satisfy the sentencing principles applicable to your offending.
28You have pleaded guilty to this charge. You offered to plead to this charge as early as 2 December 2022. The prosecution did not accept that plea at the time; it does now.
29Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of the court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal system set up to protect the community.
30Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to this charge indicates and demonstrates remorse on your part.
31Your plea offer was also made at a time when you were on bail and the courts were labouring under severe delays as a result of the Covid-19 pandemic. Your plea of guilty to this charge enlivens what is known as the Worboyes discount, and that perceptible amelioration of sentence is to result from your plea of guilty.
32I also accept your plea of guilty is given in circumstances where the prosecution relies on inferences being drawn about your degree of knowledge and intention in respect of this offending. The prosecution case is not a weak case, but your plea has obviated the need for any trial.
33There has been a delay of some 17 months from the time of your arrest to the plea hearing date, none of the delay is attributable to you. Your early plea offer, as I said, in December 2022 is a clear example of that fact. In that period, you have been on bail after spending one month on remand. The risk and fear of a return to custody has been weighing on you for that period of time. Further, you have not reoffended whilst you have been on bail which is in effect returning to the previous way in which you have conducted your life and lived your life here in Australia offence free.
34Your moral culpability for this offence is measured by your wilful blindness to the charge to which you have pleaded guilty. I accept that:
(i) Your offending occurs on a single date;
(ii) You did not have actual knowledge of the drug or the amount of the drug;
(iii) You are not an integral part of the criminal syndicate that your co-offenders either side of you are part;
(iv) You did not conceal or touch the drugs in any way;
(v) Your role is that of a courier or properly described as a transporter of the drugs;
(vi) You were to be and were paid $2,000 to drive from Queensland to Victoria and back to Queensland again in a car which had its secret compartment in the centre console;
(vii) Your role as courier transporter is critical in the overall drug trade in distribution; and
(viii) Whilst you have no actual knowledge of the precise amount of the drug, the amount is relevant in assessing, generally speaking, the seriousness of the offending due to the potential harm that such quantities of heroin could do.
35I assess your prospects of rehabilitation as very good. Your offending is a one-off serious mistake of judgment on your part. In drug offending such as this, general deterrence is at the forefront of sentencing considerations.
36The principle of general and specific deterrence, denunciation of your actions, and just punishment, protection of the community, and to a lesser degree in your case rehabilitation indicate that the only appropriate sentence is a term of imprisonment.
37Would you stand, please.
38On Charge 5, you are convicted and sentenced to six months' imprisonment. That is a total effective sentence of six months.
39I declare you have served 29 days pre-sentence detention in respect of this sentence.
40I have signed the disposal order.
41In respect of the forfeiture order, I have signed it in respect of items 1, 3 and 4.
42MR WILSON: May it please the court.
43MS STAFFORD: As Your Honour pleases.
44HIS HONOUR: Thank you. So, Mr Nguyen, what's just happened?
45INTERPRETER: Um, Your Honour, I just summarised that he's got six-month um, imprisonment.
46HIS HONOUR: I was just about to tell him that, yes. What has just happened if you'd just interpret for me.
47INTERPRETER: Yes, Your Honour.
48HIS HONOUR: Thank you. What has just happened is this, I have sentenced you to six months' imprisonment. You have served one of those effectively; you've got five months to go then you can go back to Queensland. Thank you.
49COUNSEL: As the court pleases.
50HIS HONOUR: Thank you.
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