Director of Public Prosecutions v Nguyen

[2022] VCC 111

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01239

DIRECTOR OF PUBLIC PROSECUTIONS

v

VU QUOC NGUYEN

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	11 February 2022
DATE OF SENTENCE:	11 February 2022
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2022] VCC 111

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Trafficking in a drug of dependence (1 count) – Possession of a drug of dependence (3 counts) – Commit an indictable offence while on bail (1 count)

Legislation Cited:         Sentencing Act 1991 (Vic)

Cases Cited:Boulton v The Queen [2014]; Borg v The Queen [2020] VSCA 191 VSCA 342; Worboyes v R [2021] VSCA 169.

Sentence:  Combination sentence – term of imprisonment of 34 days – 12-month Community Corrections Order with conviction

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms L Andrews	Office of Public Prosecutions
For the Accused	Mr S Ranjit	Papa Hughes Lawyers

HER HONOUR:

1Vu Quoc Nguyen, following a sentence indication given on 7 February 2022  to the effect that I would not be likely to impose on you a sentence of imprisonment that commences immediately, you pleaded guilty to one charge (Charge 1) of trafficking in a drug of dependence  (Methylamphetamine - 139.9 grams mixed quantity) and to 3 charges of possession of a drug of dependence (Charges 2, 3 and 4) (MDMA -1.4g, Cannabis L - 0.8g, and Cocaine - 0.6g, respectively). You also consented to the uplifting of a summary charge (Summary Charge 13) of committing an indictable offence while on bail, and have pleaded guilty to that charge. The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment. The maximum penalty for possession of a drug of dependence, where the trafficking purpose is not excluded, is 5 years imprisonment. Where the trafficking purpose is excluded, the maximum penalty is imprisonment for 1 year. Where the quantity of cannabis is small, there is a maximum fine of 5 penalty units. 

2The charges arise from offending in North Melbourne on 20 October 2020, when you were in the company of your then de-facto partner, Anna Fees - who is also your co-accused in respect of Charge 1. You were driving a vehicle with Ms Fees as your passenger and were pulled over by police, in an area known to police for high drug activity.

3The material relied upon at the plea hearing were those tendered at the sentence indication hearing: the Summary of Prosecution Opening; outline of prosecution submissions; CISP recommendation report (dated 19 November 2020); CISP progress report (dated 14 January 2021); outline of defence submissions; a brief medical report dated 19 November 2020 confirming your diagnosis with non-ischaemic cardiomyopathy; a prison history report; and your prior criminal record.

4The circumstances of your offending are set out in detail in the Summary of Prosecution opening and I sentence you on the basis of those facts. They can be summarised briefly as follows.

5The offending occurred during lockdown due to the COVID-19 pandemic. Police approached you, and you admitted there was some stuff in the car’s central console. Police located that drug, then arrested and cautioned you, before searching the vehicle pursuant to the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Ms Fees emerged from the car carrying a backpack, which was found to contain a total of 136.8g of Methylamphetamine stored in two purses (Charge 1). Cannabis was located in a toolbox on the back seat of the car (Charge 3). At the police station, you told police you had drugs concealed in a bag in your underwear. Police located 3.1g of Methylamphetamine (charge 1); 0.8g and MDMA and 2 MDMA (ecstasy) tablets weighing 0.6g (Charge 2); and a ziplock bag containing 0.6 g of Cocaine (Charge 4).

6A police search at your home (which you shared with Ms Fees) located a vacuum sealer and multiple seal bags in a TV cabinet.

7At the time of offending, you were on bail for trafficking in Methylamphetamine (Summary Charge 14 – commit indictable offence on bail). You have relevant prior offences, in 2016 (possess and traffick Cannabis, possess Cocaine) and 2018 (possess Methylamphetamine).

8The prosecution submissions indicated that there are 34 days PSD, that you have been on bail since 23 November 2020, that you successfully completed the 4-month CISP program, which speaks to your prospects of rehabilitation, and that your risk of reoffending is linked to your abstinence from illicit substances. The prosecution noted that the trafficking charge is a single date charge and that the trafficking is put on the basis of joint possession for sale. Whilst it submitted that your moral culpability is high, and that there is a need for specific deterrence given your prior history, it conceded that a plea at the current stage would still have a significant utilitarian benefit in sparing the time and expense of a trial and that you are entitled to a more pronounced amelioration of sentence because your plea will be made during the currency of the COVID-19 pandemic. In oral submissions, the prosecution conceded that a combination sentence is open to the court.

9The written submissions tendered on your behalf indicate that you were educated to Year 12, deferred your university place and worked in management for McDonald’s for 20 years. Your criminal history is very limited and began when in 2016 you were 42, after being diagnosed with non-ischaemic cardiomyopathy and being told by doctors that you may die peacefully in your sleep. You then had regular periods of hospitalisation with cardiac symptoms, and lost your job. You started self-medicating with drugs to stay awake so as to avoid dying in your sleep and your offending occurred in that context. You live with your parents and your disabled brother. Your other four brothers are successfully employed in various occupations.

10After being released on bail, you successfully completed the CISP program, have remained abstinent from drug taking, and see your daughter and grandchildren weekly.

11Whilst conceding that trafficking Methylamphetamine is a serious offence, your counsel noted that your offending lacked many of the indicia of more serious examples of this offence in that: there was no evidence of enrichment or sale or attempts to sell; there was no equipment associated with trafficking such as scales or text messages; and you were not known to police as a drug trafficker.

12Your counsel emphasised that you have been on stringent bail conditions for over 12 months and have not reoffended. You have a limited prior history consisting of low-level offending resulting in fines only and this is your first offence for trafficking Methylamphetamine. Your outstanding matter pre-dates the current offending. You have experienced 34 days in custody. A further period of incarceration could have an adverse effect on you, particularly in the light of your medical condition, for which you are taking regular medication. Your heart condition means that there is a higher risk of adverse outcomes if you contract COVID while in custody. Given the current COVID restrictions in prisons, you would be isolated from family and there are few, if any, rehabilitative programs available.

13In all the circumstances, it was submitted that time served together with a CCO can adequately satisfy all relevant sentencing principles.

14You were assessed at my request by Corrections Victoria and by the Mental Health Advice and Response Service (MHARS) on 8 February 2022. You presented as insightful as to the negative impact of illicit drug use and were assessed as suitable for a Community Corrections Order with recommended conditions of supervision, unpaid community work, medical treatment and rehabilitation and drug treatment and rehabilitation. The MHARS report indicated that you have no background of mental illness, have remained abstinent from drug use, that your cardiac condition continues to be monitored by your doctor, and that you are not experiencing any mental health issues requiring intervention. You spend your time working in your parents’ garden, looking after your grandchildren and helping your son who has just started university.

15I accept all the matters put on your behalf by your counsel. Although the offence of trafficking Methylamphetamine is a serious one, I do not consider that your offending lies at the more serious end of the range for this type of offending. You have limited priors, commencing when you were 42 years old, after 20 years of solid employment in management, in the context of drug-taking which resulted from distress at the diagnosis of non-ischaemic cardiomyopathy. This is a most unusual factual matrix. After 34 days in prison, you successfully completed the CISP program. You live at home with your parents and have family support. You are entitled to a discount for your plea of guilty and to an additional amelioration of sentence for your plea being made during the currency of the COVID-19 pandemic.[1] Your serious cardiac condition puts you at a much higher risk of adverse outcomes in the event of infection acquired in custody.

[1]        Worboyes v R [2021] VSCA 169.

16As the Court of Appeal has reiterated in Borg,[2] it remains clear from Boulton’s[3] case that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.

[2]        Borg v The Queen [2020] VSCA 191, [55].

[3]        Boulton v The Queen [2014] VSCA 342.

17For all of the above reasons, I consider it appropriate to impose a sentence of imprisonment of 34 days in combination with a CCO of 12 months’ duration. In the light of the MHARS report, I consider it appropriate to order a CCO with the following conditions: supervision, 100 hours of unpaid community work, and drug treatment and rehabilitation, as directed. I indicate that all of the hours of unpaid community work can be satisfied by attending such treatment and rehabilitation. I declare 34 days of PSD to be reckoned as already served.

18Pursuant to s 6AAA of the Sentencing Act, I indicate that, had you been found guilty of the offending by a jury I would have sentenced you to a term of imprisonment of 6 months in combination with a 12-month CCO.

19I note that the prosecution has sought a disposal order, and that through your counsel you have not objected to it. I will make that order.