Director of Public Prosecutions v Nguyen
[2022] VCC 353
•18 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ALAN NGUYEN |
---
JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 March 2022 | |
DATE OF SENTENCE: | 18 March 2022 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 353 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Trafficking in a drug of dependence, not less than commercial quantity – Theft of a motor vehicle – Resist emergency worker – Handling stolen goods – Guarded prospects of rehabilitation – Poor mental health – COVID-19 pandemic.
Legislation Cited: Crimes Act 1914 s 74; Sentencing Act 1991 ss 6AAA; 18
Cases Cited:DPP v Ryan Campbell [2020] VCC 1920; DPP v Staff [2020] VCC 1656; Fernando v The Queen [2017] VSCA 208; Gregory (a Pseudonym) v The Queen [2017] VSCA 151; Worboyes v R [2021] VSCA 169.
Sentence: Imprisonment for a period of 2 years and 8 months, 18 months non-parole period.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Hamnett | Office of Public Prosecutions |
| For the Accused | Mr D. Sala | Stary Norton Halphen |
HER HONOUR:
1Alan NGUYEN you have pleaded guilty to an indictment containing a number of charges committed on 16 August 2019: Charge 1: trafficking in a drug of dependence, namely methylamphetamine, in not less than a commercial quantity; Charge 2: theft of a motor vehicle; Charge 3: resist emergency workers on duty and Charge 4: handling stolen goods.
2The charges on the indictment carry the following maximum sentences:
Charge 1, 25 years' imprisonment; Charge 2, 10 years' imprisonment; Charge 3, 5 years' imprisonment; and Charge 4, 15 years' imprisonment.
3In addition, you consented to this court hearing and pleaded guilty to the following related summary offences: possess controlled weapon (Charge 5), which carries a maximum penalty of 1 year imprisonment; drive disqualified (Charge 7) which carries a maximum penalty of 2 years' imprisonment; and commit indictable offence on bail (Charge 9) which carries a maximum term of
3 months' imprisonment.
Circumstances of the offending
4The full circumstances of your offending are set out in the Summary of Prosecution Opening dated 18 February 2022 and marked as Exhibit A on the plea.
5In brief, at approximately 11.20am on Friday 16 August 2019, closed circuit television records you driving a dark coloured Nissan Pulsar, with registration plates RFR 557, into a carpark located next to a kindergarten in Keysborough. You parked your car and remained there for some 30 to 40 minutes before a worker from the kindergarten parked nearby and noticed you. Later she and a colleague contacted the police as they observed you rocking back and forth and thought you were drifting in and out of consciousness. At 12.25pm police arrived and conducted checks and inquiries revealing that your number plates were registered to a different vehicle and that your vehicle had also evaded police a couple of days earlier.
6Police approached you and observed you reclined in the driver's seat. You woke up and started yelling, screaming, flailing your arms, and acting erratically. You did not comply with the request to exit the vehicle. When police attempted to remove you from it you began throwing your arms around which broke the grip of officer HANSEN, causing him to fall backwards. Officer AMOS was holding the driver's door open, and you tried unsuccessfully to close it. You reached for the keys which were still in the ignition and officer HANSEN attempted to grab hold of you again, but you continued to thrash your arms and body around and could not be contained. As a result, officer AMOS deployed capsicum foam which had an immediate effect. You were removed from the car and placed in handcuffs. At this time, you began cooperating with police.
7Checks on the vehicle confirmed the correct registration and that it had been stolen from Bayswater on 20 June 2019.
8In the vehicle police observed the small zip lock bag in the pocket of the driver's door. A search of the vehicle was then conducted, and a number of items were located including: a black handled double-edged knife in a black bum-bag on the front passenger seat; another two stolen registration plates, some of your personal documents; a black mobile phone; and a white screw top container which contained a clear crystal substance. This substance was spot tested and returned a positive result for methylamphetamine and was sent for full analysis.
9Subsequent forensic analysis of the substance found that it totalled 428.7 grams, with 90 grams (or 21%) being pure methylamphetamine.
10The mobile telephone seized was also analysed and a number of text messages were located, including messages relating to the sale and weighing of drugs, as outlined in the prosecution opening.
Arrest & procedural history
11You were arrested and you participated in a record of interview. In the interview you admitted to knowing the car you were in was stolen and you said you got it from a man named Leigh Neil as you had no place to sleep. You admitted that your driver's licence had been suspended and to knowing the knife was in the car but stated it was not yours. In relation to the drugs, you said that Leigh Neil had got them from a guy named Abslor. You thought the drugs were amphetamine, but you had been told it had been cut with cutters, so it was not real and it was 'fake shit'. You said it was Leigh Neil who put the drugs in the car and that they were already in there when you took the car. You said that your fingerprints would be on the drugs because you touched them to sell some of them.
12You were initially remanded in custody on the day of your arrest, 16 August 2019. You were later bailed on 18 June 2020. This totals a period of 308 days. On 12 October 2021 you were remanded for unrelated offending. On
12 November 2021 your bail was formally revoked on the current matter. From 12 November 2021 until your day of sentence, being 18 March 2022, you have spent a further period of time on remand. You therefore have a total of 434 days as pre-sentence detention.
Nature and gravity of the offending
13The maximum penalty for trafficking in a commercial quantity of methylamphetamine is 25 years, signifying the seriousness of this offence. Charge 1 is also a Category 2 offence. I am therefore obliged to make an order for imprisonment pursuant to Division 2 of Part 3 of the Sentencing Act. It was not disputed in your case that a sentence of imprisonment with a non-parole period is warranted.
14As already noted, the commercial quantity threshold for a mixed substance is 250 grams. The commercial quantity threshold for pure methylamphetamine is 50 grams. The quantity of drugs is clearly a relevant and important factor in assessing the objective gravity of the offending. As Ms Hamnett points out, the quantity of pure methylamphetamine involved here was just under twice the 50 gram threshold for trafficking in a commercial quantity, or just under approximately 20% of the large commercial quantity threshold.
15Your offending also occurred whilst you were on a 12 month Community Corrections Order imposed on 15 May 2019, and while you were on bail. I note here that as I regard your offending on bail as an aggravating feature, any sentence I impose on the summary matter will be served concurrently to avoid double punishment for that offence.
16In relation to your offending, it was submitted by your counsel Mr Sala, that it was fuelled by your own addiction and reflective of your chaotic lifestyle at the time. You were homeless and at times sleeping in cars, such as the one you were arrested in. You were abusing methylamphetamine. You were only very sporadically receiving and complying with your depot medication that treats your diagnosed schizophrenia.
17While it was not disputed that you were trafficking and had relevant knowledge of the substances in the car, there was no evidence that you were the ultimate or proprietary owner of the drugs. The text messages in fact suggested that the drugs belonged to someone else. In this case, it was submitted on your behalf that there was no evidence of enrichment. It was submitted, and I accept, that in fact the opposite is suggested in light of your impoverished circumstances at the time. While your offending is serious, given its inherent seriousness and the quantum involved, I accept that your case can be distinguished from those involving commercial and sophisticated operations involving the substantial distribution of drugs at substantial profits, or where higher quantities of drugs are involved. I accept, as was submitted on your behalf, that when considered against a scale of seriousness, your offending does not sit at, or approach, the top end. Your offending sits in a lower category of seriousness. I accept that your offending was bound up in, and motivated by, your serious drug addiction at the time. Of course, while this provides the context for your offending and is relevant, it is not an excuse for what you have done. I also take into account that Charge 1 is charged as a single date, being 16 August 2019.
18In relation to the theft of motor vehicle and handle stolen goods I note that you did make some relevant admissions in your record of interview. In respect of the possess controlled weapon, it is not alleged that you attempted to use it or brandish it in any way. In relation to the charge of resisting police, police were executing a lawful function and were entitled to do so without the resistance you displayed, however, I note that you appeared drug affected at the time, were suddenly woken from sleep and once you were managed you became co-operative.
Plea of guilty and remorse
19Your case has had a number of listings since the filing hearing in August 2019. On 10 February 2020 a submissions only contested committal proceeded and there have been a number of subsequent listings since that date. A trial date was vacated in late 2020 due to the interruptions caused by the pandemic. I was also told that there has been in the past some difficulty in obtaining instructions from you due to your compromised mental health and limited ability to fully understand or grasp the relevant legal concepts.
20I accept that you are entitled to a sentencing discount because of your plea, entered after the committal hearing but before trial. I also accept that there is significant utilitarian value to your plea at a time when the court's operations have been disrupted by the COVID-19 pandemic.[1]
[1] Worboyes v R [2021] VSCA 169.
21In relation to remorse, your counsel did not press this in the traditional sense but submitted that there is some remorse that can be gleaned from: your plea; how you have handled the process; your expressions of remorse for the shame and hardship that you have put your mother through; and the harm you have caused society in general. Associate Professor Andrew Carroll in his report of 25 February 2022 stated that you appeared to show prudential regret with respect to the offending, in particular regretting the impact that your incarceration has had on your mother. I am prepared to accept that you have engaged in some reflection and demonstrated some remorse, though I consider this to be limited in all the circumstances.
Personal circumstances
22I take into account your background which was set out comprehensively in the reports of Susan Carey of 24 March 2019 and Associate Professor Carroll.
23You are of Vietnamese background. Your mother came to this country as a refugee and gave birth to you when she was still only quite young herself, at the age of 15. Your father is also Vietnamese, but you are unsure of his background. He left the family home when you were around eight years of age and you have not seen him since. Your father was violent towards both you and your mother and you have experienced and witnessed a great deal of trauma and violence in your childhood. When you were around the age of 10 you were sexually abused by a relative. This is something you are reluctant or unable to speak about. Your counsel tendered a psychiatric discharge summary for 5 to 17 June 2013 where you presented very unwell, had had arguments with your uncle and reported that you had beliefs that people were being kept in your house and getting raped. As was discussed at your plea hearing, the inability to confront or deal with such abuse, is sadly not uncommon for survivors of childhood sexual abuse.
24You have a very close and loving relationship with your mother. Prior to your arrest you were living with your mother at her house in Hampton Park. She works in an office and as a cleaner. When in the community you rely on your mother for shopping and cooking. Your mother provided a detailed and insightful letter to the Court dated 8 March 2022. She laments that you did not have a father as a role model to seek advice and support from and that at school you struggled and made connections with the wrong group of people. She outlines how she has tried to support you and get assistance for your drug addiction and your mental illness over the years. She speaks of the prohibitive fees of private treatment and the long waiting lists that afflict the public sector. It pains her that you are in custody, but she hopes that you might use this opportunity to quit drugs so that you can start afresh. She also speaks of the difficulty in not being able to see you in custody because of COVID-19. It is clear that your mother has spent years anxiously worrying about you and that she is prepared to continue to support you and hopes that you can rebuild your life and be the man that she knows you are capable of being; kind, thoughtful and generous.
25You experienced significant academic problems. You missed out on a lot of schooling, and you were also bullied and teased about your appearance. You ended up leaving in Year 9. By this stage, you were using cannabis on a daily basis. Your mother also reflects on the problems you had at school and in learning and keeping up with studies.
26You completed six months of a TAFE cookery course and otherwise you have a very limited vocational history. Your longest job has been for six months, and you have not worked now for four years. You have mainly been unemployed since leaving school.
27As a teen you started drinking alcohol and smoking cannabis. You smoked cannabis until your early 20's, but then changed over to using methamphetamine some 5 years ago, since approximately 2014. In the community you report smoking between half and one gram 'every couple of days'. You have also occasionally used cocaine and ecstasy.
28You have been diagnosed and suffered from gout for years. The Justice Health files notes accessed by Dr Carroll record significant problems with mobility due to pain in your ankles, knees and wrists, evidently related to your gout.
29On 31 December 2019 Justice Health records also note facial injuries due to an assault in the prison.
30You have an established diagnosis of schizophrenia which had its onset in your late teens. You were involved in a violent incident with your uncle while in the midst of your first episode of psychosis and you subsequently spent some six months in a psychiatric inpatient facility, indicating how severely unwell you were at the time. You were managed for several years by the Early Psychosis Service at Monash Health, and you have had between 8 to 10 admissions since the onset of your illness. When you become unwell you report hearing voices and experiencing paranoia. You have also attempted suicide while psychotic in the past. You have been treated with a number of different antipsychotic medications, most recently with the antipsychotic aripiprazole depot injection administered on a monthly basis. You have also previously been the subject of a Community Treatment Order (CTO). At the time of this offending, you were not on a CTO and you were not being actively case managed. You were instead receiving your depot antipsychotic from a general practitioner.
31In sentencing you, Mr Nguyen, I take into account your background history and in particular your developmental history for significant trauma. I have regard to the physical abuse you witnessed and were exposed to at the hands of your father and the other abuse referred to. As Dr Carroll opines, '[Your] childhood adversity would have acted as a significant risk factor to [your] development of a substance use disorder.'
Prior criminal history
32You first appeared before the Courts on 7 August 2018 when you were dealt with for a consolidation of matters, including theft, carjacking, commit indictable offence on bail, resist emergency worker and possess methylamphetamine. You were convicted and placed on a 12 month Community Corrections Order ('CCO') with conditions. On 15 May 2019 you were charged with breaching the CCO and further criminal offences, including theft, fail to answer bail, dangerous driving while pursued by police, and unlawful assault and you were sentenced to
3 months' imprisonment and a 12 month CCO with conditions. Time held in custody was noted as 165 days, which was reckoned as a period of imprisonment already served under the sentence. On 23 May 2019 you were sentenced to seven days' imprisonment for one charge of unlawful assault.33In one sense, your criminal history is relatively limited in that you have 3 prior appearances at Court. However, clearly your history is a relevant one and in particular relevant to an assessment of the need for specific deterrence in your case and your prospects of rehabilitation. I do note that you have no prior history for drug trafficking.
34I was also informed at the plea hearing of one subsequent matter. On
27 November 2019 you were sentenced to one month imprisonment on dishonesty matters and for breaching the CCO imposed on 15 May 2019. While this is not a prior matter, it is relevant to totality in your case and in sentencing you I have had regard to the fact that you have served an additional one month imprisonment during your remand period, which is not strictly referable to the pre-sentence detention available in this case.
Psychiatric conditions
35As I have already noted, Mr Nguyen, you have an established diagnosis of schizophrenia and have over the years been treated as an inpatient, on treatment orders and with psychiatric medications. In his report Dr Carroll confirms your diagnosis of schizophrenia – multiple episodes, currently in full remission; and a Methamphetamine Use Disorder, currently in remission in a secure environment.
36In terms of any nexus between your offending and your mental illness, Dr Carroll states that you were actively using methamphetamines at the time, which is likely to have, to some degree, destabilised your mental illness. Poor compliance with your medication is likely to have also contributed to this. At the time of the offending, you are likely to have suffered some degree of disorganisation of thought and behaviour and possibly intermittent psychotic symptoms, though your limited recall of this period makes it difficult to be certain about this. The fact that your mental state appears to have improved within a matter of days after your subsequent reception into custody, suggests that you were not suffering 'from a full-blown relapse of [your] underlying schizophrenic illness.' Also, there was no evidence that you were suffering from the severe symptoms of your illness that have afflicted you when you have become acutely unwell in the past.
37Given these opinions, your Counsel did not submit that there was a causal nexus between your mental illness and your offending.
38I accept that your time in custody may generally be more challenging than it would be for others due to your mental illness, particularly during COVID when there are greater restrictions and you are limited, particularly in seeing your mother, who is an important support. Dr Carroll was not of the opinion that incarceration would cause a deterioration in your condition.
39While your mental illness does not strictly speaking appear to invoke the full ambit of Verdins considerations, as both parties agreed, your schizophrenia is clearly a relevant sentencing consideration. Dr Carroll states the following:
'For a number of reasons, Mr Nguyen has a significant degree of psychosocial disability. It is likely that chronic 'negative' and 'neurocognitive' symptoms of schizophrenia (such as impaired motivation and difficulties with planning and organisation) are in part responsible for his difficulties in establishing himself in the workplace or achieving any level of stability in his life. These factors place him at higher risk of a chaotic lifestyle, homelessness, poor choices of companions, substance use and hence of related offending.'
40I note that in her earlier neuropsychological report, Ms Carey found mild impairments evident in the more verbally mediated executive functions, including your immediate attention span, very complex mental set-shifting, verbal reasoning and unstructured idea generation. She excluded an acquired brain injury and thought it likely to be a result of your psychiatric diagnosis of schizophrenia combined with the very elevated psychological distress you were showing at the time of her assessment.
41I have regard to your mental illness and to these matters in sentencing you. As was canvassed at the plea hearing, denunciation and deterrence are important and primary sentencing purposes for offending such as yours and they are important considerations in your case. I do, however, accept, as it was submitted by Mr Sala, that given your well established history of schizophrenia that you are not the most appropriate vehicle for general deterrence and that this calls for some modest moderation of general deterrence as a sentencing consideration. In some respects, it seems that your mental illness has played a relevant role in your earlier dysfunction and places you at a social disadvantage and at a heightened risk of instability and poor decision-making in the future.
Prospects of rehabilitation
42I accept the submission made by both parties that your prospects of rehabilitation are guarded. The offending, as I have already noted, is serious, and you have a relevant prior criminal history, though your previous offending is not of the same order as the current charges. Much, Mr Nguyen, will depend on your ability to address your drug addiction and to continue your treatment for your mental illness. In his report, Dr Carroll opines that your schizophrenia is responsive to medication, and he also indicates that you have some insight into your mental illness and the need for medication.
43As for future treatment, Dr Carroll suggests that you require substantial support to achieve your desired goal of abstinence from substances. In relation to your schizophrenia, he opines that it is likely to remain under good control provided you desist from methamphetamine and cannabis and continue with your depot medication. He offers some useful recommendations in his report as to how best to address your future needs and suggests that you would benefit from a NDIS package to fund support workers who could assist with your reintegration into educational/vocational and recreational pursuits.
44Upon your release you have the support, both practical and emotional, of your mother. You are also currently motivated, it appears, to address your drug addiction, telling Dr Carroll that 'It is more addiction now' and that you are genuinely 'looking to stop’.
45I consider that your rehabilitation is best facilitated and supported through interventions that actively assist with your reintegration into the community. You would also benefit from counselling from practitioners who are skilled in working with 'dual diagnosis' cases, that is, with persons who suffer from both addiction and mental illness.
46For completeness I note that I have also had regard, and taken into account, other factors raised on your behalf by Mr Sala, including: your relatively young age, you were 25 at the time of the offending and you are now 28 years of age; the delay involved in your case, caused apparently by a number of factors but nevertheless still a relevant consideration in sentencing; and the more restrictive and onerous conditions in custody caused by COVID-19 which I accept have made, and will likely continue to make, prison more burdensome. I also take note of your previous experience of being assaulted in custody.
Sentencing principles
47In sentencing you I must give effect to the principles of just punishment, general and specific deterrence as I have already referred to, denunciation and protection of the community. I must also promote your rehabilitation. I am also required to have regard to current sentencing practices for offences of the kind that you have committed, and I have done so.[2]
[2] Fernando v The Queen [2017] VSCA 208; Gregory (a Pseudonym) v The Queen [2017] VSCA 151.
48The prosecutor, Ms Hamnett, provided the Court with sentencing snapshots and two cases in this jurisdiction relevant to Charge 1 which deal with comparable circumstances and quantities of drugs.[3] I have considered this material and while it is of assistance, particularly for the references to general principles, I note that there are some discernible differences in the cases referred to. For example, in both cases the accused had prior convictions for drug trafficking. Also, while there may have been some relevant mental health considerations, neither accused had a significant or well-established mental illness, such as you have. Further, the case of DPP v Staff involved a greater amount of pure methylamphetamine.
[3] DPP v Ryan Campbell [2020] VCC 1920; DPP v Staff [2020] VCC 1656.
49Your counsel sensibly did not dispute that a term of immediate imprisonment with a non-parole period was warranted in your case. His submission, however, was that any sentence imposed should involve a significant disparity between the non-parole period and total effective sentence to reflect all the mitigating factors and maximise your potential for rehabilitation. The prosecution accept that the goal of reducing your risk of reoffending and improving your social circumstances may best be achieved by a longer parole period but noted again, of course, the seriousness of the offending and your past failed opportunities at rehabilitation. In all the circumstances, I consider that your rehabilitation is best facilitated by the imposition of a lengthy parole period and that this ultimately is in the community's best interests.
50I also take into account the principle of totality. To reflect your overall criminality, I have attempted to moderate your sentence and in turn, will make appropriate orders for cumulation and concurrency.
Sentence
51Mr NGUYEN, that brings me to the numbers that I am going to impose, all right. Are you still following? All right. You are convicted and sentenced as follows:
52Charge 1: 30 months' imprisonment, in other words 2 and a half years – this is the base sentence; Charge 2, 6 months' imprisonment; Charge 3, 3 months' imprisonment, Charge 4, 6 months' imprisonment.
53For the summary offences, you are sentenced on Charge 5 to 1 month imprisonment, charge 7, 2 months' imprisonment, and Charge 9, 2 months' imprisonment.
54I now make the following orders for cumulation: 1 month on Charge 2 and
1 month on Charge 4 to be served cumulatively upon the sentence on Charge 1 and upon each other. The remaining sentences will be concurrent. This makes a total effective sentence of 32 months, in other words 2 years and 8 months' imprisonment.55I direct, Mr Nguyen, that you are to serve a period of 18 months, in other words
1 year and 6 months imprisonment before becoming eligible for parole.56I declare that pursuant to s18 of the Sentencing Act, you have already served 434 days by way of presentence detention.
57On charge 2, I am required pursuant to s74 of the Crimes Act and Ms Hamnett, I am going to pause here. That is correct, I am required to cancel and disqualify Mr Nguyen for driving, given I have convicted him.
MS HAMNETT: Yes, Your Honour.
58HER HONOUR: What I am proposing to do on the basis that there is no mandatory minimum, I am only going to disqualify Mr Nguyen for a relatively short time, but can I explain that by indicating that he has obviously spent a long time in custody. So, the period of disqualification is going to be 3 months. Unless I am told that there is a minimum term that needs to be imposed.
59Pursuant to s6AAA of the Sentencing Act, I declare that had you been found guilty after trial, Mr Nguyen, I would have imposed a sentence of 4 years and
2 months with a non-parole period of 2 years and 7 months.60I make the disposal order and forfeiture orders sought and note that they were unopposed.
61MR SALA: If it please the court.
---
0
5
0