Director of Public Prosecutions v Nguyen
[2021] VCC 262
•15 March 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST | |
| CR-20-01595 | |
| DIRECTOR OF PUBLIC PROSECUTIONS v TUNG THANH NGUYEN | |
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| JUDGE: | HER HONOUR JUDGE HASSAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 March 2021 |
| DATE OF SENTENCE: | 15 March 2021 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 262 |
REASONS FOR SENTENCE
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| Subject: | CRIMINAL LAW |
| Catchwords: | Sentence — trafficking in a drug of dependence – commercial quantity — possession of substance, material, document or equipment for trafficking a drug of dependence — possession of a drug of dependence — deal with property suspected proceeds of crime — plea of guilty — cocaine — drug addiction — gambling addiction — prospect of deportation — general deterrence — just punishment — denunciation — community protection — specific deterrence |
| Legislation Cited: | Sentencing Act 1991 (Vic) |
| Cases Cited: | - |
| Sentence: | Total effective sentence of three years and nine months with non-parole period of two years and three months Section 6AAA declaration: total effective sentence of six years with non-parole period of four years |
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter (for plea) Ms N Stevenson (for sentence) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M Brogden | MNG Lawyers |
HER HONOUR:
1Tung Thanh Nguyen, you have pleaded guilty to one charge of trafficking cocaine in a commercial quantity (charge 1), for which the maximum penalty is a term of imprisonment of 25 years.
2You have also pleaded guilty to possessing substance and equipment to traffick in a drug of dependence (cocaine) (charge 2), for which the maximum penalty is a term of imprisonment of 10 years.
3You have pleaded guilty to the summary charge of dealing with property suspected of being the proceeds of crime, for which the maximum penalty is two years’ imprisonment.
4Finally, you have pleaded guilty to the possession of cannabis (charge 3). This was a small quantity for personal use. The maximum penalty is five penalty units. You are convicted and discharged on this charge.
5The offence of trafficking in a commercial quantity is a category 2 offence pursuant to s 3(1) of the Sentencing Act 1991 (Vic) and therefore, pursuant to s 5(2H) of that Act, the Court must impose a sentence of imprisonment, other than a combined sentence of imprisonment and a community correction order, unless a special reason exists under the Act. It was not submitted by your counsel, Ms Brogden, that a special reason exists, and therefore you are caught by the mandatory application of s 5(2H).
6You have no criminal history.
7Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’ which sets out in some detail the circumstances of your offending. In brief, they were as follows.
8You are a Vietnamese national who lived with your wife in Australia. You and your wife rented a property at 56 Lawn Crescent, Braybrook, from 10 April 2019. You did not reside at this address.
9On 9 January 2020, police executed a search warrant at 56 Lawn Crescent, Braybrook. Police located money, drugs and a hydraulic press inside the premises. During the execution of the warrant, you drove past the address in your vehicle. Upon seeing police, you attempted to drive away, however were intercepted by police and arrested. You denied that you lived at the address. However, police located a key in your possession which opened the security door.
10Police located the following items at the address:
(a) Laundry cupboard:
§Vacuum-sealed bag containing compressed cocaine
§Two clear resealable bags containing cocaine
§One clear resealable bag containing cocaine — this item was located in a cardboard box containing assorted resealable bags consistent with those used in the trafficking of drugs of dependence
§Four black coloured mould templates which are of a similar shape and size as the compressed blocks of powder as described above
§Two packets of vacuum seal bags and a vacuum sealer device
§Cocaine purity test kits
(b) Master bedroom:
§$3,700 in cash on top of a chest of drawers
§$51,025 in cash in the top drawer of the chest of drawers
§$65,000 in cash within a Christian Dior paper bag, located in the walk-in robe
§Assorted books containing numeric figures
(c) Bedroom 2:
§A vacuum-sealed bag containing a compressed block of cocaine
(d) Cupboard under staircase:
§A yellow-coloured hydraulic press used to assist in the manufacturing and production of cocaine. Your fingerprints were located on this item.
(e) Kitchen:
§Ziplock bag containing cannabis, located in the cupboard above the fridge, weighing 4.6 g. Your DNA was located on this item.
(f) Garage
§A partially disassembled hydraulic press located in the cupboard
(g) Vehicle NTT 499
§Seven small clear resealable bags containing cocaine. Your DNA was located on this item.
§One large clear resealable bag containing cocaine
§$1,045 cash
§Eight bank trust account documents in the name of Tung Nguyen
11The total amount of cocaine located in the premises was 488.7 g mixed and 358 g pure.
12The total amount of cash located was $120,770 in Australian currency. Of that total, $56,470 is money suspected of being the proceeds of crime.
13You were interviewed by police with the assistance of a Vietnamese interpreter. You denied the offending and told the police that you did not know there were drugs at the premises. When asked about the drugs in your car, you answered, ‘no comment’. You told police you were employed in the printing business.
14You were remanded in custody.
15You pleaded guilty at the third committal mention on 23 November 2020. This is an early plea which has spared the community the cost of a trial, and its utilitarian benefit is of heightened value in the present situation of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic. I will discuss the issue of your remorse later in these reasons.
16I turn now to your personal circumstances.
17You were born on 6 February 1991 and you are presently 30 years old. You were born in Hanoi. Your parents separated when you were in your teens. After your parents’ separation, you lived with your mother and your father moved away. You have had no contact with your father since this time.
18Your mother is now in her seventies and is retired. She is aware of your situation and you have her continued support.
19You came to Australia on a student visa when you were only 15 years old. You lived with your aunt in Braybrook and you attended Braybrook Secondary College, where you obtained your VCE. You moved out of your aunt’s home when you were 17 years old to live with your brother, who had also come to Australia to study.
20After completing your VCE, you undertook a variety of vocational courses in hairdressing, business, and IT, but you did not complete any of these courses.
21You do not seem to have had any paid employment of any real note since arriving in Australia. You receive money from your mother regularly, and you gamble in an attempt to generate an income.
22You also support yourself by your drug trafficking. You told Jeffrey Cummins, clinical and forensic psychologist, with whom you spoke on 2 February 2021 and who prepared a report which was tendered at your plea, that you sold cocaine to support your own cocaine and ice habit. You said, ‘For several years I was just living the lifestyle of being a drug user and then spending time gambling at Crown Casino’.
23You have both an entrenched drug and a gambling addiction. You have been using drugs since the age of 18, beginning with cannabis. At the time of your offending you were polysubstance dependent, using both cocaine and methamphetamine. You have gambled regularly since the age of 20, frequenting Crown Casino. Your drug use and your gambling have continued despite the protestations of your wife.
24You married your wife in Melbourne in November 2019. You had been in a relationship for three years prior to your marriage. Your wife is also Vietnamese.
25You have been in Australia on a variety of visas but you are not a permanent resident. You face the inevitable reality that you will be deported to Vietnam after the completion of a custodial sentence. This will weigh heavily upon you. You told Mr Cummins you do not know how you will cope returning to Vietnam. When you spoke with Mr Cummins, you were particularly distressed about the impact on your marriage. You told him that you loved your wife and did not want your marriage to end, but if your marriage is to endure, given the consequences that will flow from your offending, your wife will have to return to Vietnam with you. I was told at your plea that you have the continued support of your wife and she will return to Vietnam with you. A consequence of your offending is therefore that you have not only destroyed your own future in Australia, but that of your wife. I take this into account in sentencing you.
26I also take into account the additional hardship that the prospect of deportation will cause you in custody. I also take into account the additional hardship of the restricted conditions in prisons necessitated by the COVID-19 pandemic.
27You have been in custody since your arrest. You have used your time productively and you have undertaken study and courses to address your drug and gambling addictions.
28You have the support of your family, including your wife, your brother, and your aunt with whom you lived when you arrived in Australia. You also have the support of the wider Vietnamese community, and a number of character references were tendered on your behalf. I do note however that a number of these references describe you as reliable and hardworking, which is at odds with what you told Mr Cummins about your lifestyle of drug taking and gambling.
29I find your prospects of rehabilitation difficult to assess. You have made good efforts in custody, but you have a significant and entrenched drug and gambling addiction which in my view will require significant interventions if you are to rehabilitate.
30Mr Cummins found it difficult to assess your insight into your offending, given that your presentation was guarded and that you only gave information in response to direct questioning. I am not persuaded that you have positive prospects of rehabilitation.
31It is also difficult to assess whether you are remorseful. Your counsel relies upon your plea of guilty. You told Mr Cummins that you had ‘learnt your lesson’, but this statement is as close as you have come to any expression of remorse. I take into account that you are as Mr Cummins described you, a man of few words, but even so, I find no evidence that you have demonstrated full and insightful remorse.
32I turn now to assess the objective gravity of your offending and your moral culpability.
33The maximum penalty for the offence of trafficking a commercial quantity of a drug of dependence is 25 years’ imprisonment. This reflects the seriousness with which Parliament regards the offence.
34The statutory sentencing regime for all drug offences in Victoria is quantitative rather than qualitative; that is, it is based on the quantity of the drug trafficked rather than any subjective assessment of the harmful properties of the drug trafficked.
35The total of the cocaine located at the premises was 488.7 g mixed and 358 g pure. The purity is 1.4 times the relevant threshold for a commercial quantity of cocaine. The quantity is therefore at the lower end of a commercial quantity, but it still represents a significant amount of cocaine.
36While the quantity of the cocaine is an important consideration in assessing the gravity of your offending, there are other relevant considerations; in particular, an assessment of the role you played in the drug trafficking operation.
37It was submitted on your behalf that you were a ‘low-level functionary’ who merely stored drugs at your house for others to sell. I reject that submission. There are multiple pieces of evidence which in my view indicate precisely the opposite.
38First, your DNA links you to multiple items of drug production and trafficking in the house. Secondly, you told Mr Cummins that you were selling drugs. Thirdly, there was cocaine packaged in resealable deal bags and over $1000 in cash found in your car — in my view, clear and indisputable evidence that your trafficking activities involved selling. Finally, the large amount of unaccounted-for cash found at the premises and the subject of the summary charge — I am satisfied this is related to your drug trafficking. I am satisfied that the evidence demonstrates that this was your own drug dealing enterprise, or you were at the least a largely autonomous operator within a larger syndicate. I am also satisfied that your drug trafficking generated profits beyond the money you needed to support your own drug taking.
39Your drug and gambling addictions may to some extent explain your offending, but your addictions do not reduce your moral culpability, which in my view is high.
40I turn now to the sentencing submissions of the parties. The prosecution submitted that, given the gravity of your offending and general deterrence being the dominant sentencing purpose in this case, as in all cases of drug trafficking, a sentence of imprisonment consisting of a head sentence and a non-parole period was the only sentence available to me.
41The prosecution accepted that the sentence on charge 2 could be wholly concurrent with the sentence on charge 1, given the charges are based on the same facts and circumstances.
42Defence accepted that a sentence of imprisonment was required, but submitted that a straight sentence of time served could give effect to all of the various sentencing considerations.
43I now turn to the relevant sentencing principles. In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are: just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
44General deterrence — that is, the need to deter others from behaving as you did — just punishment, denunciation and community protection are all important sentencing principles in cases of drug trafficking. Drug trafficking is harmful to the health and wellbeing of the community. Those who seek to profit from the sale and production of drugs without regard for the harm they cause must expect stern punishment.
45I also consider that the principle of specific deterrence is engaged, given your offending cannot be characterised as a single one-off incident, but that you operated a drug trafficking business of some standing.
46Weighing all the various sentencing considerations as best I can, I intend to sentence you as follows.
47You are convicted on all charges.
48On charge 1, traffick in a commercial quantity, you are sentenced to a term of imprisonment of three years and six months.
49On charge 2, you are sentenced to a term of imprisonment of 18 months.
50On charge 3, as I stated, you are convicted and discharged.
51On the summary charge, you are convicted and sentenced to a term of imprisonment of six months.
52I order that three months of the sentence on the summary charge be served cumulatively to the sentence on charge 1.
53This makes a total effective sentence of three years and nine months. I am directing that you must serve a period of two years and three months before you are eligible for parole.
54Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 431 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.
55Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I direct that had you not pleaded guilty, I would have sentenced you to a sentence of six years with a non-parole period of four years.
56I make the forfeiture and disposal orders sought by the prosecution. These orders were unopposed.
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