Director of Public Prosecutions v Nguyen

[2021] VCC 304

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
 Not Restricted
Suitable for Publication

Case No. CR-21-00102

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANH MINH NGUYEN

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	15 MARCH 2021
DATE OF SENTENCE:	25 MARCH 2021
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2021] VCC 304

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Possess a drug of dependence – Prohibited person possess a firearm – Traffick a drug of dependence – commercial quantity – Summary charge of deal with property suspected of being the proceeds of crime – Plea of guilty

Legislation Cited:      

Cases Cited:Roach v The Queen [2020] VSCA 205; Mourkakos v R [2018] VSCA 26; Gregory (a pseudonym) v R (2017) 268 A Crim R 1; Parks v R [2017] VSCA 232; Fernando v R [2017] VSCA 208; Barwick v R [2015] VSCA 100; Trajkovski v The Queen [2011] VSCA 170; Nguyen v The Queen [2011] VSCA 32.

Sentence:                  5 years’ imprisonment with a non-parole period of 3 years

Section 6AAA declaration: 6 years’ imprisonment with a non-parole period of 4 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. O’Toole	Office of Public Prosecutions
For the Accused	Mr J. Siggins (Plea) Mr J. Le (Sentence)	TQH Lawyers

HER HONOUR:

1Anh Minh Nguyen, you are to be sentenced today for the offences of possession of a drug of dependence, being a prohibited person possess a firearm, trafficking a drug of dependence in not less than a commercial quantity, and dealing with property reasonably suspected of being the proceeds of crime.

2In October 2019 Victoria police commenced investigating you in relation to suspected drug trafficking.  This investigation used, amongst other things, telephone intercepts and surveillance by police.

3Telephone intercepts captured conversations between you and others in April and May 2020 which appeared to be related to you selling drugs.  I note that you have not been charged with trafficking during that period, and that the prosecution rely on these conversations only as context relating to Charge 3.

4

On 1 June 2020 you were arrested by police at a restaurant in Deer Park. 

When the police searched you, you had in your possession $3,920 in Australian currency.  This money is the subject of the summary offence.

5The police then searched your home.  You were living in a bungalow at the rear of a property.  When the police searched your bedroom they found two vials of liquid containing anabolic steroid, which are the subject of Charge 1, possession of a drug of dependence, and a .22 calibre handgun, located on the shelf of your wardrobe, which is the subject of Charge 2, being a prohibited person in possession of a firearm.

6Police also located two ammunition magazines under the mattress of your bed, and a watch.  Neither of these items is the subject of a charge, however you have consented to forfeiture of the watch and the magazines.  During the search police also located a large quantity of white powder, which they believed to be cocaine, however on testing it proved not to contain any drug of dependence.

7

You were taken to Sunshine Police Station where you were interviewed. 

You admitted to possession of the firearm, which you described as a BB gun and said that you had purchased it from eBay.  You admitted to possessing anabolic steroids, saying that you use them for your own bodybuilding purposes.  You were remanded in custody.

8On 22 June 2020, you called your landlord and asked him to see whether a box of clothing near your bungalow was still there.  You asked your landlord to keep the box of clothing for you whilst you were in custody.

9

Your landlord found the box and looked through it.  He saw, underneath some dirty clothing, various plastic bags which contained blocks of a brown substance. 

Your landlord believed that this might be illicit drugs, so he contacted the local police station to report his observations.

10Police attended and seized three plastic shopping bags, which contained other plastic bags and packages of white powder, and a block of brown coloured powder.

11

The bags and their contents were analysed by the Victoria Police Forensic Services Centre and found to contain heroin.  The combined weight of the substances seized by the police on 22 June 2020 was 989.7 grams. 

The commercial quantity threshold for heroin when mixed with other substances is 250 grams, and the large commercial quantity threshold is 750 grams.  Of the drugs seized on 22 June 2020, 356.7 grams contained heroin with a purity below one per cent, and the remaining mixed substance (633.0 grams) contained heroin with purity above one per cent.  187.9 grams of the seized substances were of 70 per cent purity or above. 

12Charge 3 is put on the basis that that you were in constructive possession of the heroin from the time of your arrest on 1 June 2020 until the drugs were seized by police on 22 June 2020.  During that time you directed or attempted to direct the movement of that heroin by speaking to your landlord and asking him to keep it for you.  Your possession of the heroin was for the purposes of trafficking.

13Whilst the quantity of mixed heroin in your possession was above the threshold for a large commercial quantity (750 grams) the prosecution accepted that it could not prove beyond reasonable doubt that you intended to possess for sale a large commercial quantity of heroin, in view of the range of purity of the heroin in your possession, in particular that 356.7 grams were of very low purity.

14The firearm which had been found in your bedroom was confirmed on examination to be capable of discharge.  At the time of your possession of that firearm you were a prohibited person by reason of having been the respondent to a Final Family Violence Intervention Order in made 2016.

15You have a relevant criminal history.  On 15 December 2014 you were sentenced at Melbourne Magistrates’ Court for trafficking heroin and dealing with property suspected of being the proceeds of crime.  On that occasion you were convicted and ordered to undergo a community correction order for 12 months.  Conditions of that order included assessment and treatment in respect to drug abuse or dependency.  I was told that you successfully completed that Order.  You also were convicted on the offence of possession of cartridge ammunition without a licence or permit, on 1 May 2017, for which you received a fine.

16Your explanation for possession of the steroids was that you used that drug yourself.  In respect to the firearm you told the police that you had that gun to defend yourself if someone were to break into your home.[1]

[1]Answer 50, Record of Interview.

17

Regarding the possession of the heroin, this was not raised in the course of the police interview.  You told Mr Cummins, who examined you for the purposes of the plea hearing, that you do not know who put the drugs there, although by your plea you admit that you were in possession of the heroin.  You maintained that the call to your landlord was to preserve your belongings including the clothing, rather than attempting to control the heroin.  You also told Mr Cummins that you had been involved in drug trafficking and you said that the reason you trafficked drugs was that you were dependent yourself on a range of illicit substances.  You told

Mr Cummins that your drug use, and dependency, increased over recent years as a result of you separating from the mother of your daughter following a domestic violence incident.

Personal circumstances

18You are now 26 years old.  You were born in Vietnam.  You told Mr Cummins that you had a disrupted childhood - your parents had separated around the time of your birth and your mother sent you to live with her parents and your uncle in the countryside.  You said that you have been told that when you were around three years old you were taken in some form of kidnapping to Cambodia where you lived for 12 months but then you were returned to your mother.  You continued to reside with your mother’s parents and her brother.  When you were around 13 your mother immigrated to Australia and you joined her when you were 15, in 2009.  You are an only child.

19

You retain contact with your mother, who lives in Kingsbury.  Your mother has never been in trouble with the law and is aware of your legal situation. 

You reported to Mr Cummins that your mother has recently been diagnosed with skin cancer, although I note that there has been no medical certificate or statement put before me to confirm this.

20Once in Australia you attended Doncaster Secondary College from Year 8 to completion of year 12. You worked casually at McDonald’s in the Melbourne CBD from the age of 17, until you were around 21 or 22.  Since then you have worked as a maintenance person and have accumulated a variety of skills.  At the time of your arrest you had been working as a barber.

21From the age of around 18 to 23 you were in a relationship with a woman with whom you had a daughter, who is now five years old.  You were ultimately charged with assaulting the mother of your child and she took out an intervention order against you.  Since then you have not been able to see your daughter.  You say that this makes you feel depressed and drives you crazy.  You reported that in that context you had in the past taken an overdose of Xanax tablets and sleeping pills and ended up spending several days in hospital and then the in a psychiatric ward.  You have acknowledged that you have a difficulty managing your anger but that you have not done any courses such as the Men’s Behavioural Change program to address this.

22Most recently you have been dating a 19 year old woman who is not a drug user and who has never been in trouble with the law.  You said that you met her just before you were arrested and she has remained in contact with you since you were placed on remand.

23Despite your depression and suicide attempt in approximately 2017 you have never sought or received any talking based mental health treatment.  At present you are in custody and whilst in custody you have not received or sought any mental health treatment.  You described to Mr Cummins that you are keen to take steps to resume contact with your daughter although I note that you have apparently not taken such steps whilst you were still in the community.  You are experiencing depression related to your incarceration and your concerns about the potential length of your sentence.  You do not present with any other mental health issues, according to Mr Cummins.

24You have been on remand since your arrest.  I take into account, in mitigation, that this period on remand has been more difficult than otherwise would be the case, by reason of restrictions put in place by Corrections in response to the COVID-19 pandemic.

Drug History

25You told Mr Cummins that heroin had been something you had observed the use of since you were a child.  You saw your uncle smoking and this instilled in you a belief that heroin “wasn’t such a big issue”.

26

You told Mr Cummins that you commenced using methylamphetamine and heroin when you are around 17 years old.  You have since that time been a regular user of methylamphetamine.  You started smoking heroin every one or two months, but for the 12 months prior to your arrest you had been smoking heroin more often.  You commenced using cocaine when you were around 20 or 21 and you told

Mr Cummins that in the year before your arrest you were using up to one gram of cocaine every two or three days, and that you would combine cocaine with heroin.

27You also told Mr Cummins that you had never undergone any residential drug detoxification or rehabilitation. I note that part of your community correction order from 2014 included assessment and treatment for drug and alcohol issues.

Gravity of Offending

28Your explanation for possession of the gun was that it was for protection in case someone broke into your unit.  In view of your admission to Mr Cummins about trafficking, the telephone intercepts, and the drugs which were in your position for the purposes of sale, in my view your possession of the gun is in the context of other criminal offending.  Whilst the firearm was unloaded, these facts make this a more serious instance of this offence.

29Regarding the anabolic steroids, the prosecution have accepted that you were in possession of the substance for personal use.

30

In respect to the heroin, the charge is put on the basis of possession for sale. 

The facts before me are:

(a)   of the 989.7 grams of mixed substance, 187.9 grams were of 70 per cent or more purity, 445.1 grams were between one and 70 per cent purity, and 356.7 grams were below one per cent purity;

(b)   you admitted to Mr Cummins that you had been trafficking in drugs;

(c)   the telephone intercepts are indicative of trafficking activity by you before the charge period;  and

(d)   the quantity of mixed drug in your possession was nearly four times the applicable commercial quantity threshold, and exceeded the large commercial quantity threshold.

31

I am not sentencing you for the earlier activity or on the basis of your admission to Mr Cummins about trafficking, but in view of that information I find that the possession of the heroin by you was for the purposes of you selling that drug. 

I accept that the quantity of cash in your possession, the subject of summary charge six, was not significant. There is also no other evidence of enrichment.

32

Whilst I accept that you may have been selling heroin to fund your own addiction, the quantity of heroin in your possession, in particular the 187.9 grams at

70 per cent or above purity, indicates that you were not a street level trafficker, selling small amounts to fund your own addiction.  On the other hand, it does not appear to be the case that you were trafficking purely to make money, as a business.

33In respect to the weight of the drugs, I am mindful that although the weight exceeds the large commercial quantity threshold, you are being sentenced on the basis that you intended to traffic a commercial quantity.  I am also mindful that whilst reference to quantity, per se and as a multiplier of the threshold amount, is useful it is not a fact which overwhelms the assessment of gravity of the offending.

34Bearing in mind that categorisations of low, medium and high level offending are apt to distract from the facts of the case, taking into account the quantity of drug, the nature of the charge being possession for sale, the context in which you possessed the heroin, and your motivation for trafficking, I cannot treat this as a low level example of this offence.  On the other hand factors which would make this a more grave instance of this serious offence are absent.

Plea of guilty

35

Your plea of guilty to these charges is a significant factor in your favour. 

You indicated that you would plead guilty at an early stage in the proceedings, and this carries with it significant weight in mitigation by reason of utilitarian benefits to the court, and the facilitation of the administration of justice.  The weight in mitigation given to your plea of guilty increases in view of the effect of the

COVID-19 pandemic upon the operations of the court.

36In view of your statement to Mr Cummins denying knowledge or possession of the drug of heroin, I do not find that your plea in respect to Charge 3 carries with it any remorse.

Prospects of rehabilitation

37

I accept that you have some prospects of rehabilitation.  You are still a young man and it is to be hoped that this period on remand will act as a deterrent upon you and a spur to cease committing offences.  Whilst on remand you have done several vocational courses, three first aid units as part of a Certificate II in Community Services, and courses regarding drug and alcohol, which included a six hour program regarding ice and another six hour program regarding cannabis.  

You have a reasonable work history, and have the motivation of your child and relationships to remain offence free.

38

On the other hand you have a long-standing addiction to drugs and by your own report were raised in circumstances where the use of drugs was common. 

You have work to do to address your own addiction, and to find a source of income which is not criminal.  I accept the characterisation of your prospects of rehabilitation as “guarded”.

Other Sentencing Considerations

39General deterrence, denunciation, just punishment, and protection of the community are significant factors in sentencing for the offence of trafficking in a commercial quantity of a drug of dependence, and possession of a firearm whilst a prohibited person.  Furthermore, specific deterrence is a significant factor in sentencing you.

40Trafficking a drug of dependence in not less than a commercial quantity is a category 2 offence, for the purposes of the Sentencing Act 1991, so that unless an exception is made out, I must sentence you to a term of imprisonment which is not combined with a CCO. No exception was raised on your behalf.

41I was not referred to any comparable cases, although reference was made to authorities on sentencing principles.[2].  I have reviewed a number of cases involving commercial quantity trafficking which involved possession for sale.[3]  Whilst there were different factual situations in those cases, both in respect to the offending and the offender, these cases have provided some guidance as to current sentencing practice in respect to Charge 3.  I have also taken into account the guidance of the Court of Appeal in respect to sentence for the offence of being a prohibited person in possession of a firearm.

[2]Gregory (a pseudonym) v R (2017) 268 A Crim R 1; Nguyen v The Queen [2011] VSCA 32 at [90]; Trajkovski v The Queen [2011] VSCA 170.

[3]Fernando v R [2017] VSCA 208; Mourkakos v R [2018] VSCA 26; Parks v R [2017] VSCA 232; Barwick v R [2015] VSCA 100; Roach v The Queen [2020] VSCA 205.

42The sentences are as follows:

Charge number	Offence	Maximum	Sentence	Cumulation
1	Possession of a drug of dependence	1 year[4]	Proved and discharged pursuant to s73
2	Prohibited person possess firearm	10 years	1 year 6 months	6 months
3	Trafficking commercial quantity of a drug of dependence	25 years	4 years 6 months	base
6	Deal with property reasonably suspected of being proceeds of crime	2 years	1 month	-
TES: 5 years NPP 3 years

[4]The parties agreed that the lower maximum applies.

43I declare pursuant to s.18 of the Sentencing Act that you have already served 297 days not including today as pre-sentence detention and I direct that that declaration be entered into the records of the court.

44Pursuant to s.6AAA of the Sentencing Act, I note that had you not pleaded guilty, I would have sentenced you to six and a half years with a non-parole period of four years.

45Now there are forfeiture orders and a disposal order, are they consented to?

46MR LE:  Yes, they are, Your Honour.

47HER HONOUR:  I will make the orders as sought by the Crown.  Is there anything else?

48MR LE:  Nothing further.

49MR O'TOOLE:  As Your Honour pleases, nothing further.

50MR LE:  If Your Honour pleases.

51HER HONOUR:  Thank you.

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