Director of Public Prosecutions v Nguyen
[2021] VCC 1564
•15 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01564
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NEIL NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 September 2021 |
| DATE OF SENTENCE: | 15 October 2021 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 1546 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Three charges of trafficking in a drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 198, namely, cocaine, 3,4-Methylenedioxy-N-Methylamphetamine and Methylamphetamine – related summary offending – one charge of committing an indictable offence whilst on bail – one charge of dealing with property suspected to be the proceeds of crime – one charge of possessing a Schedule 4 Poison, namely Cialis
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Worboyes [2021] VSCA 169; R v Verdins [2007] VSCA 102; R v Bugmy (2013) 249 CLR 571.
Sentence:Total effective sentence of 37 months' imprisonment with a non-parole period of 22 months' imprisonment.
s6AAA: 54 months' imprisonment with a non-parole period of 33 months' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Schwartz | Office of Public Prosecutions |
| For the Accused | Mr M. Amad | Amad Lawyers |
HIS HONOUR:
1To begin these sentencing remarks, I will tell you, Mr Nguyen, what my sentences will be. I intend to sentence you to an overall sentence of 37 months’ imprisonment and set a non-parole period of 22 months’ imprisonment. I will declare that the 344 days of your pre-sentence detention, excluding today, will count as time served under the sentences.
2Neil Nguyen, you have pleaded guilty to the following charges:
(a) trafficking cocaine between 26 August 2020 and 22 October 2020;
(b) trafficking MDMA between 23 September 2020 and 29 September 2020;
(c) trafficking methylamphetamine between 16 October 2020 and 19 October 2020;
(d) committing an indictable offence whilst on bail between 26 August 2020 and 29 September 2020, and;
(e) on 5 November 2020 dealing with property, namely $31,131, suspected of being the proceeds of crime;
(f) on 12 November 2020 possessing a Schedule 4 poison, namely Cialis.
Circumstances
3The circumstances of your offending are described fully in the document entitled, 'Summary of prosecution opening for plea', which is Exhibit A. What follows is a summary of that opening.
4During early September 2020 Western Australian police arrested Phillip Bauer. They seized his mobile phone and 15 grams of cocaine. Examining the phone, the Police realised Mr Bauer was trafficking drugs and was sending money to P.O Box 512, Noble Park. The Western Australian police notified the Victorian police.
5After arresting Mr Bauer, the Western Australian police intercepted four postal packages addressed to him. Each package held 20 packets and each packet contained about a gram of cocaine. In all, the amount of cocaine was 74.4 grams.
6Inquiries by Victoria Police revealed post office box 512 at Noble Park was registered to you. You had posted each of those packages to Mr Bauer.
7On 23 September 2020, you posted another three satchels and on 29 September 2020 you posted a further four satchels. These satchels were addressed to different persons. In all, they contained 93 grams of cocaine and 87 grams of MDMA.
8Also on 29 September Police in Queensland seized two packages sent from different post office branches. You posted one package and your partner, Kim Li, the other. One package contained 47 grams of cocaine and the other a total of
212 grams of MDMA.9Between 9 and 12 October 2020 you posted five packages each to a different addressee interstate. In total, they contained 59 grams of cocaine.
10Earlier on 7 October 2020, Queensland Police seized another package containing 7.5 grams of cocaine.
11Between 16 and 22 October 2020, you posted a total of seven packages at two post office branches. In total they contained 124 grams of cocaine and 8 grams of methylamphetamine.
12Overall, you posted packages containing:
(a) 399.9 grams of cocaine. This constitutes Charge 1, a charge of trafficking cocaine between 28 August 2020 and 22 October 2020;
(b) 298 grams of MDMA. This constitutes Charge 2, a charge of trafficking MDMA between 23 September 2020 and 29 September 2020;
(c) 8 grams of methylamphetamine. This constitutes Charge 3, a charge of trafficking methylamphetamine between 16 October 2020 and 19 October 2020.
13On 5 November 2020, Police executed a search warrant at an apartment in Blackburn Road, Clayton. You were present and were arrested. A search of the apartment revealed, among other things, cash totalling $31,130 and some MDMA. The cash is the subject of the summary charge, dealing with property suspected of being the proceeds of crime.
14When interviewed by Police, you were largely unhelpful with your answers, explaining you posted packages containing magic cards. You denied the packages you sent contained drugs. You explained the cash in the apartment as being there, rather than a bank, for tax purposes.
15On 12 November 2020, the Police seized six packages addressed to Kim Li. Five of the six packages contained cash. The sixth contained 62 Cialis tablets. These tablets are the subject of another summary charge, possessing a Schedule 4 poison.
16Between 16 August 2020 and 29 September 2020t, you were on bail for other charges. You committed the offences in Charges 1 and 2 while you were on bail. This constitutes another summary charge, committing an indictable offence whilst on bail.
Personal Circumstances
17You are now 37 and you are the third of four children. While you two older siblings were born in Vietnam, you and your younger brother were born in Australia. While you mother is Vietnamese, you are uncertain as to the identity of your father.
18Your childhood was disrupted. Because of her psychological state, for a time, your mother could not care for you and you were cared for by your grandparents and, at one stage, by your older sister who left university in order to do so.
19You attended primary and secondary schools and completed Year 12 successfully. You started, but did not complete, a diploma in business marketing.
20You left TAFE and worked in retail for several years. You then undertook further study or training in information technology. You worked in information technology with several employers until 2018.
21Owing to your drug and relationship difficulties, you left that industry and were unemployed for a time. Ultimately, you returned to work at your brother's bakery and cafe.
22You met and married Kim Le in 2003. You have two young children. You left Ms Le in 2016 for another woman, Peggy. You and Ms Le divorced in 2018.
23Peggy lives in the United States. You visited her there and both of you used drugs and gambled. For various reasons your relationship with Peggy ceased in 2019.
24Although your use of drugs started two years earlier than when you met Peggy, it intensified in her company. It continued after your return to Australia. Nevertheless, you did not use drugs leading up to your recent arrest and you have not used them while in custody.
25Your gambling also started in 2014. It too intensified in the company of Peggy. You descended into a cycle of gambling recklessly and borrowing extensively. It led you to the first set of offences and then this set of offences, the subject of the charges before me.
26You sought the help of Gamblers Anonymous in 2017. You told Mr Newton in 2020 that gambling was no longer a problem for you because you had lost the urge to gamble.
Mr Patrick Newton
27Patrick Newton is a clinical and forensic psychologist. At the request of your solicitors, he has interviewed you three times, with the most recent interview on 16 September 2021.[1]
[1]Report dated 19 September 2021.
28After your first interview in January 2020, you resolved to change your behaviour and took steps to do so. These steps faltered due to your brother's bakery and cafe closing due to the pandemic. You lost your job.[2] You could not pay your debts and you were repeatedly threated by one of your creditors to harm you and your family. Your drug counselling and other support services were confined to phone calls. By August 2020, you were feeling hopeless. You were approached by others who suggested trafficking drugs to repay your debts.
[2]At [24].
29When he interviewed you in 2020, Mr Newton could not diagnose a recognised psychological disorder; by September 2021, he was able to do so. He diagnosed an adjustment disorder with depressed mood. Your symptoms were somewhat more intense than those expected of a prisoner at your stage of imprisonment. Although the onset of this disorder occurred after offending, Mr Newton said:
“…if the Court were to consider that a further period of custodial detention were to be warranted in Mr Nguyen’s case, he would be at considerably greater risk for continued depressive symptoms than would a ‘typical’ prisoner undergoing sentence. To this extent, his experience of incarceration is likely to remain somewhat more intense than is typical.”
30While in custody, you have realised the link between your offending and drug use. It has strengthened your resolve not to use drugs and your remorse for the consequences of your offending. Although Mr Newton describes your insight as being at the 'formative' stage, it is a positive sign because it provides a basis on which to work for follow-up counselling and education. The same consideration applies to your gambling.
31Previously Mr Newton diagnosed you as suffering from two other psychological disorders, substance use disorder and gambling disorder. Both disorders were in remission because you are in a controlled environment, namely, prison.
Discussion
Maximum Penalties
32The maximum penalties for the offences are:
(a) trafficking in a drug of dependence – 15 years' imprisonment;
(b) dealing with property suspected to be the proceeds of crime – two years' imprisonment;
(c) possess a Schedule 4 poison – 10 penalty units;
(d) commit an indictable offence while on bail – 30 penalty units or three months' imprisonment.
Current Sentencing Practices
33Neither counsel referred me to any material dealing with current sentencing practices for the offence of trafficking in a drug of dependence. This is understandable given the very wide range of circumstances encompassed by the offence.
Nature and Gravity of the Offending
34As counsel for the Director submitted, in drug trafficking charges, the quantity of the drug trafficked is significant. In your case, the quantity of the drug trafficked in Charges 1 and 2 became very significant because of the frequency with which you trafficked the respective drugs.
35Overall, you posted 26 packages or satchels on seven occasions containing cocaine, MDMA and methylamphetamine. The total amount of the drugs trafficked were 399.9 grams of cocaine, 298 grams of MDMA and 8 grams of methylamphetamine. For your trafficking you received, or expected to receive, large amounts of money. Some of these monies were destined to repay your drug and gambling debts.
36Your offending was not sophisticated in that you took few steps to hide your identity.
37Overall, the gravity of the first two offences is greater than the mid-range. The gravity of the third offence is below the mid-range.
Culpability and degree of responsibility
38There is no question that your degree of responsibility and blame worthiness for these offences is high.
Impact on the Victims
39Given the nature of the offences, there are no victim impact statements. No doubt your trafficking has harmed others.
Guilty Pleas
40Despite the resolution taking place at the fourth committal mention hearing, it is accepted that your pleas of guilty occurred at the earliest reasonable opportunity. Apparently, the delay in your entry of pleas of guilty was due to the delay in the service of the prosecution’s brief of evidence. As your counsel pointed out, you entered those pleas despite not having evidence of the analysis of some of the drugs.
41In normal times your pleas of guilty would have merited a discount on the sentences that would otherwise have been imposed by saving the time, cost and inconvenience to witnesses of a trial. These are savings to the community in the administration of the criminal justice system. During the restrictions caused by the pandemic the Court of Appeal has refined the benefit of such pleas in R v Worboyes:[3]
“As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.”
[3][2021] VSCA 169 at [35].
42Your pleas are also evidence of your remorse.
Prospects of Rehabilitation
43After your release from custody, you wish to reunite with your former partner, Ms Le, and your children. You have the support of your older brother, Jonathan, and at least your close friend, Danny Lay. Your brother paints a picture of your life, tracing your troubles with the law to your reaction to the breakdown of your marriage. He is confident that you will not reoffend. Mr Lay is confident that you have the support of your other friends.
44I consider you are remorseful for your offending and are keen to avoid reoffending. However, as Mr Newton points out, to improve your prospects of rehabilitation you need to undertake counselling and education.
45You have never been imprisoned before. The time you will have spent in custody is a powerful message as to the deterrent effect of the law. It should give you a strong reason not to reoffend in a similar manner in the future.
46I do not know whether the external pressures over your drug and gambling debts will have disappeared by the time you are released from prison. These pressures saw you reoffending while on bail for similar offences, and saw you continue offending while the subject of a Community Correction Order.
47Overall, your prospects of rehabilitation are reasonably good.
Criminal History
48You have had only one appearance in a criminal court on 2 October 2020 at the Magistrates' Court at Broadmeadows. You were convicted of three charges of trafficking a drug of dependence, two charges of possessing a drug of dependence, one charge of possessing a Schedule 4 poison and one charge of negligently dealing with the proceeds of crime. You were placed on a Community Correction Order with a duration of
24 months. The order contained conditions as to supervision, assessment and treatment for drug abuse or dependency and programs to reduce reoffending.49Although the offences, the subject of the order, were committed in about mid-2019, the order itself covered part of your offending for Charge 1 and all your offending for Charge 3. An essential term of any Community Correction Order is that during the period of the order you must not commit an offence punishable by imprisonment.
50The existence of this order provides information about your moral culpability relating to Charges 1 and 3. It also affects my assessment of your prospects of rehabilitation and the need for specific deterrence.
Co-operation with Police
51When interviewed, you cooperated to a very limited degree with the Police. You identified yourself in the CCTV footage. Other than that, you lied about the content of the packages. However your lying merely removed an item of evidence from the prosecution. As far as I can see, the prosecution case against you was even then very strong.
Cumulation
52Part of Charge 1 and all of Charge 3, were committed while you were on bail for other offences. Section 16(3C) of the Sentencing Act applies. It provides that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to other offences must be served cumulatively on any uncompleted sentences of imprisonment imposed whether before or at the same time as that term. This direction applies unless the court directs otherwise.
R v Verdins
53Through your counsel, you rely on limbs five and six set out in the case of R v Verdins[4]. Mr Newton has compared your mental state in 2020 with your mental state in September 2021. He has concluded there has been a significant deterioration. He concludes it is likely your experience of further imprisonment will be, “somewhat more intense than typical”. Although his language is not robust, I consider both limbs apply. There will be a moderation of your sentence because of their application.
[4][2007] VSCA 102.
R v Bugmy
54Your counsel referred to the judgment in R v Bugmy[5]. Relevant to you, the Court affirmed that a deprived background may mitigate an offender's sentence. That case dealt with an Aboriginal offender, but the proposition applies whether you are an Aboriginal or not. It also affirmed that the effects of profound childhood depravation did not diminish with the passage of time and repeated offending.
[5](2013) 249 CLR 571.
55The existence of such depravation does not necessarily mean a reduction in the sentence. For example, the court noted:[6]
“…An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”
[6]At [44].
56As his primary submission on sentence, your counsel urged me to sentence you to a combined imprisonment and Community Correction Order. I cannot do that, for as you will see in a few moments, my sentence on Charge 1 will exceed the maximum that I could sentence you on that charge if I imposed a combined sentence. That is before I sentence you on the other charges and consider the issue of cumulation.
Sentence
57On Charge 1, a charge of trafficking in cocaine, between 26 August 2020 and 22 October 2020, I sentence you to 27 months' imprisonment.
58On Charge 2, a charge of trafficking in MDMA between 23 September 2020 and 29 September 2020, I sentence you to 18 months' imprisonment.
59On Charge 3, a charge of trafficking in methylamphetamine, between
16 October 2020 and 19 October 2020, I sentence you to six months' imprisonment.60On the charge of dealing with the proceeds of crime, I sentence you to three months' imprisonment.
61On the charge of possessing a Schedule 4 poison, you are convicted and discharged.
62On the charge of committing an indictable offence while on bail, I sentence you to two months' imprisonment.
63The sentence on Charge 1 is the base sentence. Six months of the sentence on Charge 2, two months of the sentence on Charge 3, and the entirety of the sentence on the summary charge of committing an indictable offence while on bail, will be served cumulatively upon themselves and the sentence on Charge 1. The sentence on the summary charge of dealing with property suspected of being the proceeds of crime will be served concurrently with the other charges.
64The total effective sentence is 37 months' imprisonment. I will set a non-parole period of 22 months' imprisonment.
Pre-Sentence Detention
65You have remained in custody since your arrest on 5 November 2020. Excluding today, that represents a total of 344 days of presentence detention. I declare that 344 days of your presentence detention is time served under the sentences I am imposing today.
Disposal and Forfeiture Orders
66I will make disposal and forfeiture orders in the terms sought.
Declaration under s6AAA of the Sentencing Act 1991
67If you had not pleaded guilty to these offences and had been found guilty after a trial, I would have sentenced you to 54 months' imprisonment with a non-parole period of 33 months' imprisonment.
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