Director of Public Prosecutions v Nguyen

[2020] VCC 1543

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-20-00340, CR 20-00254 and CR-20-00255

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUNG TIEN NGUYEN

HAI HOANG

VAN TRAN

---

JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2020
DATE OF SENTENCE:	24 September 2020
CASE MAY BE CITED AS:	DPP v Nguyen & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 1543

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Office of Public Prosecutions
For Accused Nguyen	Mr R. Melasecca	Melasecca, Kelly & Zayler
For Accused Hoang	Mr C. Pearson	Vassis & Co
For Accused Tran	Mr A. Waters	Haines & Polites

HIS HONOUR:

Introduction

1Dung Tien Nguyen, you have pleaded guilty to two charges of trafficking in a drug of dependence.  First, between 12 November 2018 and 6 March 2019, at Noble Park and Keysborough, you trafficked in heroin.  Second, between 3 April and 25 April 2019, at Keysborough, you trafficked in methylamphetamine.  These are Charges 1 and 6 on the indictment.

2Hai Hoang, you have pleaded guilty to three charges of trafficking in a drug of dependence.  First, on 19 December 2018, at Noble Park, you trafficked in heroin.  Second, on 8 January 2019, at Keysborough, you trafficked in heroin.  Third, on 4 February 2019, you trafficked again in heroin.  These are Charges 2, 3 and 4 on the indictment.

3Van Tran, you have pleaded guilty to four charges of trafficking in a drug of dependence and one charge of possession of a drug of dependence.  First, on 8 January 2019, at Keysborough, you trafficked in heroin.  Second, on
4 February 2019, at Keysborough, you trafficked in heroin.  Third, on 6 March 2019, at Keysborough, you again trafficked in heroin.  Fourth, on 3 April 2019, you trafficked in methylamphetamine.  Fifth, on 21 May 2019, at Mulgrave, you possessed methylamphetamine.  These are Charges 3, 4, 5, 7 and 8 on the indictment.

Appeal

4Hai Hoang, you have appealed sentences imposed in the Magistrates' Court at Dandenong on 28 November 2019.  You pleaded guilty to charges of trafficking in a drug of dependence, of dealing with property suspected of being the proceeds of crime, of possessing drugs of dependence, of possessing Schedule 4 and Schedule 8 poisons and various firearm charges.  You were sentenced to a total effective sentence of three years' imprisonment with a non-parole period of two years.  You were also fined a total of $1,400.

5Because I am required to set aside the orders of the magistrate in determining this appeal, I will set out the result of all of the charges the subject of the original hearing:

(1) Trafficking heroin; two years.  This was an aggregate sentence.

(2) Trafficking methylamphetamine.  The sentence was part of the sentence on Charge 1.

(5) Dealing with property suspected of being the proceeds of crime; six months' imprisonment with three months cumulative.

(6) Being a prohibited person possessing a firearm; 18 months' imprisonment with nine months cumulative.

(11) Possess ecstasy; two months' imprisonment and part of an aggregate sentence.

(13) Possess 1,4 Butanediol; a sentence of imprisonment which is part of the aggregate sentence imposed on Charge 11.

(19) Possess a prohibited weapon; two months' imprisonment to be served concurrently.

6Charges 3, 4, 7, 10, 12, 20, 21, 22 and 25 were struck out.

7On Charges 8 and 14, you were convicted and discharged.

8On Charges 9, 15, 16, 17, 18, 23 and 24, you were fined.

Summary charges

9There are three summary charges involving two of you.

10Mr Nguyen, you have pleaded guilty to possessing a prohibited weapon on
16 April 2019.  The weapon was a baton.  You have also pleaded guilty to dealing with property suspected of being the proceeds of crime.  This charge comprises possession of $19,625 on 16 April 2019 and $14,160 on 21 May 2019; a total of $33,785.

11Mr Tran, you have pleaded guilty to a charge of dealing in property suspected of being the proceeds of crime on 21 May 2019 and involving $1,265.

Circumstances

12The circumstances of the offences contained in the indictment are set out in a detailed document entitled 'Summary of Prosecution Opening on Plea'.  The circumstances of the summary offences are contained in the same document.  The circumstances of the charges in the Magistrates' Court are set out in a police officer's statement for the preliminary brief.

13During late 2018 and early 2019, police officers investigated drug trafficking in Keysborough, Dandenong and Noble Park.  Their investigations uncovered a drug trafficking business operated by Harry Piperias.  After his arrest and remand in custody the business was conducted by his domestic partner, Nicole Dellar.  A supplier of drugs to that business was you, Mr Nguyen, to whom both of you, Mr Hoang and Mr Tran, supplied drugs.

14For Charge 1 you, Mr Nguyen, trafficked in heroin as follows:

(a) On 12 November 2018, you supplied Mr Piperias with 28 grams of heroin;

(b) On 19 December 2018, a covert police operative known as 'Sammy' bought 28.1 grams of 73 per cent purity heroin for $8,500 from
Mr Piperias and a Mr Zukowski.  You supplied the heroin to Mr Piperias;

(c) On 8 January 2019, you trafficked in 84 grams of heroin;

(d) On 4 February 2019, in 56.2 grams;

(e) On 11 February 2019, in 56 grams, and;

(f) On 6 March 2019, in 54.9 grams.

15These amounts total 307.2 grams of heroin.

16For Charge 2 you, Mr Hoang, trafficked an ounce of heroin on 19 December 2018.  This involved 'Sammy'.  The price paid was $8,500.

17For Charge 3 you, Mr Hoang, and you, Mr Tran, trafficked in heroin on 8 January 2019.  In relation to Mr Hoang the amount is 27.9 grams, while in relation to
Mr Tran it was 56 grams.  The drug was trafficked to 'Sammy'.

18For Charge 4 you, Mr Hoang, and you, Mr Tran, trafficked in heroin on
4 February 2019.  For both of you the amount of heroin involved is 28.1 grams.  Again, the ultimate recipient was 'Sammy'.

19For Charge 5 you, Mr Tran, trafficked in heroin on 6 March 2019.  The amount involved is 54.9 grams.  This is the amount sold to 'Sammy' for $16,400.  It was contained in two plastic bags.

20For Charge 6 you, Mr Nguyen, trafficked in methylamphetamine between 3 April 2019 and 25 April 2019.  The total weight of the drug trafficked was 111.3 grams.  This total was reached after trafficking on three dates - 3 April 2019, 55.7 grams; 16 April 2019, 0.3 of a gram, and; 25 April 2019, 55.3 grams.  Dealing briefly with each date:

(a) On 3 April, 55.7 grams of methylamphetamine was sold by Ms Dellar to another covert operative known as 'Chris' for $7,400.  Ms Dellar obtained the drug from you, Mr Nguyen.  You obtained it from someone else.

(b) On 16 April, police officers searched your residence and found a small amount of methylamphetamine, an extendable baton and $19,625 in cash.  The baton and the cash are the subject of summary charges, which I will deal with later.  Mr Nguyen, you were interviewed by the police and then released and told you would be charged with offences by way of summons.

(c) On 25 April, you were part of a chain which supplied 'Chris' with 55.3 grams of methylamphetamine for $7,400.

21For Charge 7 you, Mr Tran, trafficked in methylamphetamine on 3 April 2019.  The weight of the drug was 55.7 grams and contained in two plastic bags.

22For Charge 8 you, Mr Tran, possessed methylamphetamine on 21 May 2019.  The amount involved is half a gram.

Summary charges

23There are three summary offences:

(a) Mr Nguyen, you pleaded guilty to possessing an offensive weapon, the extendable baton.  As I said earlier, it was found during a search of your home.  When questioned, you said it belonged to a friend and kept it in your bedside drawer.

(b) Mr Nguyen, you also pleaded guilty to dealing in property suspected of being the proceeds of crime.  This charge encompasses two sums of money.  First, the $19,625 found when your residence was searched on 16 April 2019.  When interviewed, you said you did not know about the money except for $800 in your wallet, which was given to you by your sister.  Second, on 21 May 2019 the police executed another search warrant at your residence and found cash totalling $14,160.  When interviewed, you did not comment about this money.

(c) Mr Tran, you pleaded guilty to dealing in property suspected of being the proceeds of crime.  On 21 May 2019, police executed a search warrant at your residence and found cash totalling $1,265.  Presumably, when asked about these monies, you made no comment.

Appeal

24I now turn to your appeal, Mr Hoang.

25You were charged with offences following a separate police investigation on
12 February 2019.

26On 28 November 2019, at the Magistrates' Court at Dandenong, after pleas of guilty, you were convicted of 16 charges.  Other charges were withdrawn and struck out.  You were sentenced to a total effective sentence of three years' imprisonment with a non-parole period of two years' imprisonment.  You were also fined a total of $1,400.  On two of the charges you were convicted and discharged.  Various forfeiture orders were made.

27The circumstances of these offences are as follows.  On 12 February 2019, police officers intercepted you while you were driving your motor vehicle.  They found in the vehicle the following:

(a) 56.9 grams of heroin.  This is Charge 1 in the appeal;

(b) 8.2 grams of methylamphetamine.  This is Charge 2;

(c) $6,655 in cash (in a bag and on your person) and six TAB betting slips with a total value of $12,000.  This is Charge 5; dealing in property suspected of being the proceeds of crime.

28Police officers then searched your residence and found:

(a) A .22 calibre pump action firearm, together with ammunition.  It had been stolen during a burglary in 2013.  Its rear stock had been removed, its barrel had been shortened.  It was threaded in a way to allow the attaching of a silencer.  These circumstances relate to the charges of being a prohibited person in possession of a firearm, an unlicensed person storing a firearm and ammunition in an insecure manner and possessing cartridge ammunition;

(b) Two electro-conductive weapons - this constitutes Charge 19, possessing a prohibited weapon;

(c) A Ziplock bag containing four ecstasy pills - this is Charge 11, possessing a drug of dependence;

(d) A plastic container containing 1,4 Butanediol - this is Charge 13, possessing a drug of dependence;

(e) Three bags containing cannabis - this is Charge 14, possessing a drug of dependence;

(f) A glass vial containing Lidocaine, a blister pack with six capsules of Lyrica and a blister pack containing Temazepam pills.  These are Schedule 4 poisons.  They comprise Charges 15, 16 and 17 - possessing Schedule 4 poisons;

(g) A Ziplock bag containing Xanax pills.  This comprises Charge 18, possessing a Schedule 8 poison.

29A search warrant was executed at another address and police found:

(h) A Ziplock bag containing eight Xanax pills - this is Charge 21, possessing a Schedule 8 poison, and;

(i) A blister pack containing six capsules of Valium - this is Charge 24, possessing a Schedule 4 poison.

Penalties

30The maximum penalties for the various offences are:

(a) Trafficking in a drug of dependence, 15 years' imprisonment.  With Mr Hoang's appeal the same maximum penalty applies, however the jurisdictional limit in the Magistrates' Court applies to this appeal.  That limit is two years' imprisonment for an offence;

(b) Possessing a drug of dependence, five years' imprisonment.  The same jurisdictional limit of two years applies for the appeal.  There is a lesser maximum of a year if the possession is for a purpose other than trafficking, with Mr Hoang bearing the burden of proving it was not for the purpose of trafficking.  With a small quantity of cannabis, the maximum penalty is five penalty units;

(c) A prohibited person possessing a firearm, 10 years' imprisonment;

(d) An unlicensed person storing firearm or ammunition in an insecure manner, four years' imprisonment;

(e) Dealing in property suspected of being the proceeds of crime, two years' imprisonment;

(f) Possessing a prohibited weapon, two years' imprisonment;

(g) Possessing cartridge ammunition, 40 penalty units;

(h) Possessing a Schedule 4 Poison, 10 penalty units;

(i) Possessing a Schedule 8 poison, 10 penalty units.

Criminal histories

Nguyen

31Mr Nguyen, you have one previous court appearance.  On 15 August 2017 you were found guilty of charges of trafficking methylamphetamine and possession of heroin.  Without conviction the charges were adjourned to 15 February 2019 with the condition you continued receiving assistance from a drug counsellor.  On 15 February 2019, the charges were dismissed after the completion of the undertaking.  You had ceased counselling in September 2018 and the offences to which you have pleaded guilty today were committed during the period of the adjournment.

Tran

32Mr Tran, between 27 April 1990 and 27 February 2015, you have appeared in a court on eight occasions and been found guilty of 28 charges.  You have been sentenced to unsuspended sentences of imprisonment on six occasions.  There have been eight charges of trafficking a drug of dependence over the years.

33Your last three court appearances are instructive.

34On the last occasion, on 27 February 2015, you were sentenced to 42 months' imprisonment on each of two charges of trafficking a drug of dependence and one month on a charge of driving while your licence was suspended.  The total effective sentence was 42 months' imprisonment with a non-parole period of 24 months.

35Previously, on 31 May 2012, on charges of trafficking a drug of dependence and dealing with property suspected of being the proceeds of crime, you were sentenced to two years and seven months' imprisonment with a non-parole period of eight months fixed.

36Finally, on 1 August 2011, on charges of trafficking heroin, methylamphetamine and dealing with property suspected of being the proceeds of crime, you were sentenced to an aggregate penalty of 12 months' imprisonment with a non-parole period of six months.

Hoang

37Mr Hoang, between 18 September 1995 and 9 July 2014, you have appeared in a court on 19 occasions and found guilty of 73 charges.  Among those charges were seven charges of trafficking a drug of dependence; four involving heroin and three, methylamphetamine.

38Your last appearance in a court was this court for an appeal against sentences imposed in the Magistrates' Court.  In this Court, you were sentenced to 18 months' imprisonment for trafficking heroin, methylamphetamine and dishonesty and firearm charges.  A non-parole period of 12 months' imprisonment was fixed.

39Your longest sentence occurred in this Court on 8 November 2010, when you were sentenced to four and a half years' imprisonment with a non-parole period of two years' imprisonment for three offences of trafficking heroin and methylamphetamine and eight other charges relating to possessing drugs and dishonesty.

Hoang: Personal Circumstances

40Mr Hoang, you are now 46.  To use the words of your counsel, you are entrenched in the drug trafficking culture, or as Mr Healey, the clinical psychologist, explained[1]:

'He became involved in smoking heroin in mid-adolescence but it really gained momentum in his early 20s, by which time he was gambling at the casino in order to pay drug debts and he became more deeply involved in the drug sub-culture, which meant trafficking in heroin, but also became markedly addicted to the substance.'

[1] Report dated 17 August 2020 at p 4.

41You were born in Saigon.  You have five brothers and sisters.  Two of your sisters have written references for the purposes of this proceeding.

42Your father died recently, while you have been in custody.  Your mother is 78 and is in poor health.

43In 1990, you and members of your family came to Australia.  You were about 17.  All of you were sponsored by an older brother and sister, who were already living here.  You had already completed your education in Vietnam, however you were placed in Year 10 here because you needed to learn English.  You completed Years 11 and 12.  Although gaining a place in a chemical engineering course at Swinburne University, you did not start that course.

44After leaving school, you worked as a machine operator for a year, after which there was little work because of your gambling and drug abuse.  You worked in a bakery for about six months and then as a courier for about six months.  For most of the last 20 years you have not worked.

45You have had one significant relationship between the ages of 22 and 28.  There are no children.  Your gambling and drug abuse ended that relationship.

46While in prison, in about 2000, you contracted Hepatitis B.

47You started smoking heroin in your mid-adolescence.  It increased in your early 20s.  Over the last 10 years, when able, you smoked at least half a gram of heroin daily and up to a gram of methylamphetamine a day.

48While on remand you have completed 18 months of a 24 month course in horticulture.  You have gardened while in custody.

49At present, you see your family weekly through FaceTime.

Verdins

50Your counsel does not rely upon any of the principles or limbs set out in the case of R v Verdins[2].

Healey

[2] (2007) 16 VR 269.

51I have already quoted from the report of Bernard Healey, who is a very experienced clinical psychologist.  On 17 August 2020, he interviewed you at the request of your solicitor.

52Mr Healey noted you were taking 40 millilitres of methadone daily, as well as medicine to treat the symptoms of Hepatitis B.

53He saw you as suffering from chronic depression due to:

'He felt an abject failure, acknowledging that drugs had taken over his life, making it increasingly difficult for him to secure work.  He felt that there was no future for him, and in that context drug abuse addiction provided him with a form of escape from the reality of life.  He is also worried about the persistent health problems associated with Hepatitis B.  He feels ashamed and self-berating, having let his family, himself, and the community down over such abuses and associated offending.'

54Mr Healey thought you had some prospect of rehabilitation through your apparent willingness to stay family oriented, remain within your family, seek drug and alcohol counselling, provide urine samples for testing and seek medical treatment for your depression and Hepatitis B.

Guilty plea

55You pleaded guilty to the charges on the indictment at an early opportunity.  Your pleas are evidence of your remorse.  They save the time and expense of a trial and the inconvenience for witnesses in giving evidence at a trial.

56Two of your sisters, Julie and Van, have written references.  They speak well of you despite your difficulties.  Both believe you will help your mother upon your release from custody.

Tran: Personal Circumstances

57Mr Tran, you are now 56.

58You were born in South Vietnam and are the eldest of nine.  Five of your brothers were killed in the Vietnam war.

59When you were 15, you attempted to flee South Vietnam.  You failed and were imprisoned.

60In 1981, when you were 17, you successfully fled the country and reached Indonesia, where you spent seven months in a refugee camp.  You came to Australia through the sponsorship of another brother.

61Throughout the 1980s, you worked as a machine operator in a factory.  In 1990, you opened a fruit and vegetable shop in Yarraville.  Unfortunately, this business failed after about one and a half years, leaving you substantially indebted.  At about this time, your mother died in Vietnam.  These events led to you using heroin.  Nevertheless, you obtained work in signwriting as a letter cutter.

62In 2000, you married. There is one child, a son, now aged 20.  You and your wife are divorced.

63Your drug taking led you to losing the signwriting job.  In order to continue using heroin, your dealer offered you free heroin if you were involved in trafficking.

64In 2017, your father died in Vietnam.  You would like to set up a memorial for him, as is the Vietnamese custom.

65Following your remand in custody, you were diagnosed with liver cancer.  After eight hours of surgery 15 per cent of your liver was removed.  You now take medicines, presumably to prevent the reoccurrence of the cancer.

66While in custody, you have undertaken three of seven sessions of a drug and alcohol program.  You are a unit billet with special responsibility for helping new persons in custody to get used to the environment.  In particular, you look after persons of Vietnamese background.

Guilty plea

67You have pleaded guilty to these charges shortly before the start of a contested committal hearing on 17 February 2020.  This is neither an early or a late plea of guilty.  It is midway.  I accept the pleas are evidence of remorse.  They too have the effect of assisting the administration of justice by bringing this proceeding to an end sooner than would be the case if there was a trial.

Rehabilitation

68The discovery of cancer and its aftermath have been an awakening for you.  At 56, you are resolved to free yourself of your addiction.  You have promised your son to do so.  Despite your remorse, you are battling an entrenched addiction.  Objectively, I do not share Mr Healey's view and consider your prospects of rehabilitation as poor.

Nguyen: Personal Circumstances

69Mr Nguyen, you are now 29.  You were born in Vietnam.

70On 24 February 2011, you came to Australia in order to undertake a degree in design.  After two deferments, you studied during 2013.  You did not re-enrol in 2014 because you could not afford to do so.  You had lent a friend a large sum of money, which he did not repay.  You were struggling, and with the encouragement of friends you started using methylamphetamine.  You became addicted and could not break the addiction.

71Your parents live in Vietnam.  In 2017, you discovered they were divorcing.

72While on remand, you have engaged in an occupational health and safety course for construction sites, a two-day drug rehabilitation course and a course entitled, 'Managing affect self-control'.  This last is significant, as Luke Armstrong, a consultant psychologist, explained.

Armstrong

73At the request of your solicitors, Mr Armstrong interviewed and tested you on
16 December 2019.  Thereafter, he counselled you for a total of nine and a half hours.  All this occurred while you were in custody.

74Mr Armstrong diagnosed you as suffering from two recognised disorders; a Dependent Personality Disorder and a Stimulant Use Disorder.  These disorders entwine.

75Mr Armstrong engaged you in a drug treatment programme while you were in custody – I have already said the name of the programme.  Between 24 February and 7 May 2020, you received nine and a half hours of face to face treatment.  The programme contains six sessions.  It has been evaluated to achieve two outcomes: causing addicts to remain in treatment for longer than they would otherwise and improving their psychological functioning.

76After undergoing the programme, you are willing to undergo appropriate counselling to control your guilt and shame, which are the core of your addiction.

77The prognosis was very favourable, for Mr Armstrong does not see you as a risk of re-offending because:

(a) You participated in treatment and are committed to long-term intensive treatment;

(b) Testing has revealed no evidence of entrenched criminality in you;

(c) Being on remand has brought home to you that you have a significant drug problem which requires long-term treatment.

Deportation

78At the last hearing, your counsel advised that your visa to remain in this country had been cancelled.  Since that hearing, the Administrative Appeals Tribunal has reversed that decision.  I am not concerned as to why that Tribunal made its order; the fact is that it has, and you have a visa enabling you to stay in this country.

79The issue of deportation and sentencing was the subject of an informative paper dated November 2019, issued by the Sentencing Advisory Council and entitled, 'Deportation and Sentencing: An emerging area of jurisprudence'.

80Section 501 of the Migration Act 1958 empowers the relevant minister to cancel a visa enabling a person to stay in Australia. You are not an Australian citizen. Although you have lived in Australia for several years, your right to do so is based on a visa. Under the Act, the minister must cancel your visa if you do not pass the character test. In your case, from today you do not pass that test because you have a substantial criminal record evidenced simply by my sentence of imprisonment of more than 12 months. Once your visa is cancelled, you have the ability to apply to reverse the cancellation. You have already gone through that process, so you have a good idea of what is involved.

81I cannot impose a sentence which will avoid the operation of that Act and avoid cancellation of your visa if it is not the appropriate sentence.  It would be improper for me to do so.

82I cannot assess the likelihood of you being deported, for there is no evidence before me on the point.  All I can say, there is a significant risk you will be deported to Vietnam at some stage in the future.  This is a significant factor:

(a) From the time of my sentence until the final decision of the relevant minister, and any court or tribunal process, you will not know whether, after your release from custody, you will be detained at some stage and ultimately deported to Vietnam.  This will be a source of anxiety for you.

(b) If you are deported this will be an extra punishment, because you lose the chance to live in Australia permanently and all that involves.  I note in your letter the strong wish to remain in Australia.

83It may be that if your visa had not been cancelled in the first place, you might have entered some form of drug rehabilitation.  If so, the evidence of your rehabilitation may have been very robust, however I agree with the prosecution that I should not indulge in such speculation.  The loss of an opportunity or chance is not something the criminal law countenances in sentencing, but in your case, it does not matter, for I consider your prospects of rehabilitation are very good.  This is so despite your failure to remain drug free during the period of your adjourned undertaking and you ceasing counselling with Ms Brown.

84I also agree with the prosecution submission that I should disregard an ability to undertake a community correction order as a factor considered by the minister on the issue of deportation.

Verdins

85Although your counsel said the principles in the case of R v Verdins[3] were applicable, he did not elaborate.  He referred to the recent judgment of Brown v R[4] but, again, did not elaborate.  However, it is clear he relied upon the evidence of Mr Armstrong that principles (1) and (2) of Verdins are engaged in that your Dependent Personality Disorder impaired the quality of your decision making capacity.

[3] (2007) 16 VR 269.

[4] [2020] VSCA 212.

86It is clear Verdins requires clinically significant impairment of mental functioning to engage any of its propositions.  In your case, based on the evidence of
Mr Armstrong, the reduction in the level of your moral culpability is marginal.  The existence of that disorder will bear upon the conditions of any community correction order I impose.

Letter

87I have read your undated letter.  You express sentiments which give me confidence in your prospects of rehabilitation.  More particularly, your desire to break your addiction to methylamphetamine.

Sentencing statistics

88Your counsel provided a document entitled 'Sentencing Snapshot' published by the Sentencing Advisory Council.  Dealing with the topic of trafficking in a non-commercial quantity of drugs, the document analyses sentences imposed in this court for a five year period between 2012-2013 and 2016-2017.  It sets out the number of persons who had this offence as their principal offence, the type of sentences imposed, the average length of sentences of imprisonment and the average length of non-parole periods.

Co-offenders

89Of the other persons involved in this drug trafficking business, to date, only two have been found guilty and sentenced.

90Tu Cong delivered drugs for you, Mr Nguyen.  He pleaded guilty to the equivalent of Charges 1 and 3 on the indictment.  These are charges of trafficking heroin.  On 12 March 2020, he was sentenced to a total effective sentence of nine months' imprisonment and a community correction order of two years' duration.  I assume Mr Cong had no previous convictions or findings of guilt.

91As I said earlier, Ms Nicole Dellar was the domestic partner of Mr Piperias.  She is 43 years old.  After his remand in custody, she continued his drug trafficking business under his direction from prison.

92On 29 January 2020, she pleaded guilty to four charges.  On a charge of trafficking heroin between 6 March 2019 and 21 May 2019, involving a total of 119.1 grams, she was sentenced to 18 months' imprisonment.  On a second charge of trafficking methylamphetamine, involving 223.2 grams, she was sentenced to six months' imprisonment.  On a charge of dealing with property suspected of being the proceeds of crime, involving $58,350, she was sentenced to four months' imprisonment.  Her total effective sentence was 20 months' imprisonment.  A non-parole period of 12 months' imprisonment was fixed.  There were 253 days of pre-sentence detention.

93To an extent, the circumstances of Ms Dellar's offending can be gleaned from the detailed prosecution opening in this matter.  At the plea, it was submitted her reason for the offences was she acted under the influence of Mr Piperias.  Presumably, that submission was accepted by the sentencing magistrate.

94Between 2002 and 2016, Ms Dellar had appeared in courts to answer criminal charges.  I do not know the number of such appearances.  During those appearances, she was found guilty of five charges of possessing a drug of dependence, one charge of attempting to introduce a drug into the body of another person and a charge of using a drug of dependence.  I do not know what penalties were imposed.

Guilty plea

95Mr Nguyen, you will enjoy a somewhat similar discount on your sentences as enjoyed by the others, and for the reasons which applied to them.

Discussion

96Trafficking in illegal drugs like heroin and methylamphetamine is almost always a serious matter.  It is clearly so in each of your cases.  Counsel for Mr Nguyen referred to the sentencing remarks in the case of Legg.[5]  At paragraph 17, Judge Lyon said:

'Time and again the courts have described drug trafficking as a pernicious crime which attracts denunciation, just punishment and a measure of the protection of the community.  The dominant sentencing disposition for this crime is usually imprisonment.'

[5] [2020] VCC 1459.

97In this context 'pernicious' means 'wicked'.  It is so because of the great harm heroin inflicts on its users and the broader community.

98There are various purposes of sentencing including just punishment, deterring the person being sentenced and any other person from committing the same or a similar offence, denouncing the conduct engaged in and protecting the community from the offender.  Another purpose is establishing conditions to facilitate the rehabilitation of an offender.  Depending on the case, one or other or all of these purposes apply.

99For each of you, the amount of the drugs involved was significant.  You have trafficked to the distributor or other traffickers.  For you, Mr Nguyen, Charge 1 is a very serious charge.  It covers a period of nearly five months during which, on six occasions, you trafficked heroin.  The amounts varied between 28.1 grams and 84 grams.  The total amount trafficked by you was 307.2 grams of heroin.

100Again, for you, Mr Nguyen, the charge of trafficking methylamphetamine covered a period of three weeks.  It involved three occasions where the amount trafficked varied between 0.3 of a gram and 55.7 grams.  The total amount trafficked was 111.3 grams.  This is a serious charge.

101Each of you has used drugs over a long period.  Only Mr Nguyen gives confidence in an ability to overcome his addiction.  I appreciate, Mr Tran and Mr Hoang, that both of you wish to do so, but your wish is a poor basis to have any confidence in your ability to do so.  Your prospects of rehabilitation are poor despite the stage of life you have reached, Mr Tran, including your health and your son, or the family support you enjoy, Mr Hoang.

102Both of you, Mr Hoang and Mr Tran, have extensive criminal histories.  How one sentences in the face of such records was recently discussed in the case of Nelson v R, where the Court said of Mr Nelson[6]:

'Despite this atrocious criminal record, the appellant must be sentenced according to law.  He did not fall to be punished a second time for his previous offending.  His appalling prior criminal history was highly relevant to a number of sentencing considerations, including the assessment of the appellant's character, specific deterrence, general deterrence and protection of the community.  However, he fell to be punished for the offences committed and the impact of his prior convictions must be limited by what is a proportionate penalty to the offence under consideration.  Whilst a "continuing attitude of disobedience of the law" can readily be distilled from the appellant's criminal history and will inform considerations of deterrence and protection of the community, it cannot lead to a penalty disproportionate to the gravity of the instant offending.  Further, courts must approach the consideration of community protection with caution.  A sentence cannot be lengthened beyond what is proportionate to the gravity of the offending merely to protect the community.'

[6] [2020] VSCA 219 at [38].

103For both of you, Mr Hoang and Mr Tran, your criminal histories display a continuing attitude of disobedience of the law.  They raise several of the purposes of sentencing for consideration; specific and general deterrence and the protection of the community.  The nature of the offending itself raises the purpose of denunciation.

104For you, Mr Nguyen, your previous appearance in a court resulted in a very modest penalty.  I can only assume that the circumstances of your offending were very modest also.  You were given a chance, which you wasted by committing your offences while subject to the undertaking.  In other words, you breached your promise to be of good behaviour during the adjournment.  Moreover, after your initial interview by police on 16 April 2019, you were released on the basis you would be charged on summons.  The next day, you spoke to Ms Dellar as a prelude to you committing the offence in Charge 6; namely, trafficking in methylamphetamine.  Despite these events, I am satisfied you are now a very good prospect for rehabilitation.

105Again for you, Mr Nguyen, the issue of parity with the sentences imposed on Ms Dellar was raised.  Her charges of trafficking are not the same as the trafficking charges brought against you.  Even though her charges and your charges are part of the larger drug trafficking enterprise, I do not consider the issue of parity arises.

COVID-19

106Each of you has experienced restricted conditions in custody since the start of the restrictions arising out of the pandemic.  They have meant your time in custody has been far more constrained than would otherwise be the case.  Those restrictions have not yet ceased.  How long they will last in their present form, or some other form, is uncertain.  It is a factor I will take into consideration.

Sentence

Hoang

107Mr Hoang:

1)    on Charge 2 on the indictment; trafficking 28.1 grams of heroin on 19 December 2018, I will sentence you to two years' imprisonment.  This is the base sentence.

2)    On Charge 3 on the indictment; trafficking 27.9 grams of heroin on 8 January 2019, I will also sentence you to two years' imprisonment.

3)    On Charge 4 on the indictment; trafficking 28.1 grams of heroin on 4 February 2019, I will again sentence you to two years' imprisonment.

On the appeal:

1)    On Charge 1; trafficking 56.9 grams of heroin on 12 February 2019, I will sentence you to two years' imprisonment.  The jurisdictional limit in the Magistrates' Court is simply a limit on jurisdiction, it does not create a different sentencing regime.  I must impose a proper penalty but cannot exceed the jurisdictional limit.

2)    On Charge 2; trafficking methylamphetamine on 12 February 2019, six months' imprisonment.

3)    On Charge 5; dealing with property suspected of being the proceeds of crime on 12 February 2019 - being $6,655 and TAB betting slips to the value of $12,000 - three months' imprisonment.

4)    On Charge 6; being a prohibited person in possession of a firearm on
12 February 2019, 12 months' imprisonment.

5)    On Charge 11; possession of four pills of ecstasy on 12 February 2019, one month imprisonment.

6)    On Charge 13; possess a plastic container of 1,4 Butanediol on 12 February 2019, one month imprisonment.

7)    On Charge 19; possess a prohibited weapon - being two electroconductive weapons - two months' imprisonment.

108For the remaining charges I will make the same orders made by the magistrate - that is, the striking out of charges, the convicting and discharging of other charges, the imposition of fines, including aggregate fines, and the orders for forfeiture.

109Bearing in mind the principle of totality, on the indictment six months of the sentences on Charges 3 and 4 will be served cumulatively upon the base sentence, and upon themselves.  On the appeal, 12 months of the sentence on Charge 1 and six months on Charge 4 will be served cumulatively upon themselves and the sentences on Charges 2, 3 and 4 on the indictment.  The total effective sentence is four years and six months' imprisonment.  I will set a non-parole period of three years and four months' imprisonment.

Tran

110Mr Tran,

1)    on Charge 3 of the indictment; trafficking heroin on 8 January 2019, I sentence you to two years' imprisonment.  This is the base sentence.

2)    On Charge 4; trafficking heroin on 4 February 2019, two years' imprisonment.

3)    On Charge 5; trafficking heroin on 6 March 2019, two years' imprisonment.

4)    On Charge 7; trafficking methylamphetamine on 3 April 2019, two years' imprisonment.

5)    On Charge 8; possessing methylamphetamine on 21 May 2019, 1 month imprisonment.

6)    On the summary charge of dealing in property suspected of being the proceeds of crime, 1 month imprisonment.

111Six months on each of the sentences on Charge 4 and 5 are to be served cumulatively upon the base sentence and each other.  This gives a total effective sentence of four years' imprisonment.  I will fix a non-parole period of three years' imprisonment.

Nguyen

112Mr Nguyen,

1)    on Charge 1; trafficking in heroin between 12 November 2018 and 6 March 2019, 18 months' imprisonment.

2)    On Charge 6; trafficking in methylamphetamine between 3 April 2019 and
25 April 2019, I will have you assessed for the purposes of a community correction order.

3)    On the summary charge of possessing an offensive weapon, you are convicted and fined $500.

4)    On the summary charge of dealing in property suspected of being the proceeds of crime, three months' imprisonment.

Pre-sentence detention

113Subject to anything that counsel wishes to say for you, Mr Nguyen, I declare 492 days of pre-sentence detention, not including today, as a period of imprisonment already served.

114For you, Mr Hoang, I declare 590 days of pre-sentence detention, not including today, as a period of imprisonment already served.

115And for you, Mr Tran, I declare 492 days of pre-sentence detention, not including today, as a period of imprisonment already served.

Section 6AAA

116In the absence of your pleas of guilty I would have imposed the following total effective sentences:

(a) Mr Hoang - five years and 10 months' imprisonment with a non-parole period of four years and four months.

(b) Mr Tran - five years and two months' imprisonment with a non-parole period of three years and 11 months.

(c) Mr Nguyen - 23 months' imprisonment. The rest of my declaration under s.6AAA of the Sentencing Act depends on my sentence on Charge 6, following an assessment.

Forfeiture

117In relation to you, Mr Nguyen, I note you do not oppose the making of the forfeiture order sought by the Director of Public Prosecutions in relation to the sums of $19,625 and $14,160.  Since it is also appropriate otherwise, I will make that order.

118As to the declaration of pre-sentence detention, does any counsel have any issue with the figures that I just stated?

119MR MELASECCA:  That's correct, Your Honour, for Mr Nguyen.

120MR PEARSON:  That's correct for Mr Hoang, Your Honour.

121MR WATERS:  Correct for Mr Tran, Your Honour.

122HIS HONOUR:  I assume Mr Tran, Mr Hoang and Mr Nguyen were able to hear all of that, as I hope counsel were able to hear what I said?

123COUNSEL:  Yes, Your Honour.

124MR ALBERT:  Just one query on the sentence of Mr Van Tran.  Of course, (indistinct words) check the figures in detail when we receive the orders, but for Mr Van Tran, as I understand it, it was two years – the base sentence on Charge 2 – and cumulation on Charges 4 and 5 of six months?

125MR WATERS:  Well, that's how it's said, yes.

126HIS HONOUR:  Sorry, did I make a mistake?

127MR ALBERT:  Look, it might be – it's probably my mistake, Your Honour, but the cumulation on – for Mr Van Tran on Charges 4 – for Charges 4 and 5 – were six months each, is that correct?

128HIS HONOUR:  Just let me go back to my judgment.  I have to bring it up on my screen.

129MR WATERS:  Your Honour didn't mention a cumulation figure for Charge 7?

130HIS HONOUR:  Yes, I've made a mistake.  The intention was to give a total effective sentence of four years' imprisonment.  The amounts that should be cumulated on Charges 4 and 5 should be 12 months rather than six months.

131MR ALBERT:  Your Honour pleases.

132HIS HONOUR:  Have I made any other arithmetical errors?

133MR MELASECCA:  Your Honour, in the matter of Nguyen you did not articulate whether the three months would be cumulative or concurrent, sir.

134HIS HONOUR:  Plainly, it's concurrent.

135MR MELASECCA:  Yes.  Thank you, sir.

136HIS HONOUR:  Now, the other thing with Mr Nguyen – because I've not completed his sentencing my associate will have to arrange for a Corrections officer to assess him ‑ ‑ ‑ 

137MR MELASECCA:  Yes.

138HIS HONOUR:  ‑ ‑ ‑ for a community correction order.

139MR WATERS:  Your Honour, could I briefly just interrupt?  Just going back to Mr Tran, I just wonder in regards to the sentence – Charge 7 you mentioned a sentence of two years on that charge but you'd not mentioned a figure of cumulation on that charge?  I'm not sure whether your mistake was the cumulation figures on Charge 4 and 5 or a failure to mention the cumulation on Charge 7.

140HIS HONOUR:  No, I think it's fair to say that I meant 12 months on each of those charges and the other one was concurrent.

141MR WATERS:  As Your Honour pleases.

142HIS HONOUR:  Mr Associate, can you see whether an assessment could be made of Mr Nguyen either today, or at some other time?

143ASSOCIATE:  Yes, Your Honour.  I'll make those enquiries now.

144MR ALBERT:  Your Honour, if – just while that's being checked would Your Honour, after we receive the court orders, allow us to check them, and if there is something that arises in terms of the arithmetical additions, if we could have liberty to raise it with Your Honour?

145HIS HONOUR:  What I'll do is I will – my associate will do a draft, okay?  So I won't enter it in the records of the court and will provide each of you with a copy of the draft.

146MR ALBERT:  Thank you, Your Honour.

147MR PEARSON:  Yes, thank you, Your Honour.  I was going to suggest that that might be the appropriate way, Your Honour, so, yes.  I just need to check the arithmetic in relation to Mr Hoang, Your Honour, but if there's any issues I'll bring it back before Your Honour.

148HIS HONOUR:  All right.

149MR WATERS:  Likewise, Your Honour.

150HIS HONOUR:  I'm not entering it into the records of the court because you have reason, gentlemen, to be a bit wary of my arithmetic.

151MR PEARSON:  When Your Honour leaves the Bench could I perhaps just have a quick conference with – is Your Honour's associate or tipstaff prepared to just allow me to have a quick conference with Mr Hoang so I can just explain the effect of Your Honour's sentence to him?

152HIS HONOUR:  I'm sure if we can arrange it we will.

153MR PEARSON:  Thank you, sir.

154ASSOCIATE:  Silence please.  This honourable court stands adjourned until half past nine o'clock tomorrow morning.

155HIS HONOUR:  No, don't adjourn the court.

156ASSOCIATE:  You disappeared, Your Honour.

157HIS HONOUR:  I'm still here.

158ASSOCIATE:  Okay.

159HIS HONOUR:  We've still got a matter with Mr Nguyen over this pecuniary penalty order that's being sought.  Is that still being sought, Mr Albert?

160MR ALBERT:  Yes, it is, Your Honour.

161HIS HONOUR:  Well, we most definitely have something to wait for.  Perhaps it would be appropriate if we embarked on that issue now?

162MR PEARSON:  Would Your Honour be prepared to excuse me and
Mr Hoang and I'll make a phone call to Fulham Prison so that I can speak with him?

163HIS HONOUR:  All right.  What about you, Mr Waters?  Do you want the ‑ ‑ ‑ 

164MR WATERS:  If it please, Your Honour.

165HIS HONOUR:  Okay then.  Well, perhaps we'll continue the hearing with
Mr Albert and Melasecca.

166MR MELASECCA:  Thank you, Your Honour.

167HIS HONOUR:  And Mr Waters.

168MR WATERS:  And I'll contact my client.  I'll contact you, Mr Tran, over the phone.  We'll discuss the matter.

169HIS HONOUR:  All right.  So I think - Mr Melasecca, have we still got your client?  Mr Nguyen?

170MR MELASECCA:  Yes, he's there, Your Honour.

171HIS HONOUR:  All right.  Yes, Mr Albert?

172MR ALBERT:  Yes, Your Honour.  The order's still sought.  I don't believe the quantum of the order is in issue, it's just the making of it.

173The quantum is around $66,000, I think, Your Honour – or I'll get the disposal order there – but that takes into account that the forfeiture order for the $33,000 was made, so the total amount that's said to be – he's profited or benefitted – is $90,000 less the $33,000, subject to the forfeiture order.  What's said is he's benefitted from it, that's the price that was paid to him.  We say the order should be made.

174HIS HONOUR:  So what's the precise amount?

175MR ALBERT:  Let me just get that, Your Honour.  Pardon me, Your Honour, I'll just get the disposal order out, if I could?  $60,515.

176HIS HONOUR:  $60,550?

177MR ALBERT:  Fifteen – one five.

178HIS HONOUR:  This is the enjoyable side of this form of link.

179MR ALBERT:  Perhaps your associate might be able to disconnect them, Your Honour?

180HIS HONOUR:  Yes, that's not a bad suggestion.  He seems to have disconnected you.

181MR ALBERT:  No, I'm here, Your Honour.

182HIS HONOUR:  Okay.  Mr Melasecca?

183MR MELASECCA:  Your Honour, the application for a pecuniary penalty order can be made, however it's a discretionary matter pursuant to the Act and there are a number of principles that would apply.

184One of the principles is whether it's contrary to the order that's been made by the court – one that focuses on continued rehabilitation.  There must be a recognition of a person's capacity to pay – the conditions of that individual – and it's not usually made if it's not in the interests of justice to do so, and interests of justice can be measured by the fact that he was previously a student, he's now without the capacity to earn until he has employment, and the factor that he must now get back onto his feet and continue his rehabilitation and it would be in the best interests of the community to do so.

185It is also of significant interest, when Mr Albert refers to principles of parity, that he is the only one for which an application is being made in this whole ring of traffickers starting from (indistinct) to where we are, and there seems to be something that doesn't ring true there and it may well be that that was a reflection of the prosecution aim to obtain the $33,000, which has now been conceded.

186That being the case, Your Honour, it's my respectful submission that it's not in the interests of the community and it's not a proper exercise of a discretion – although within power to make such an order.  I don't think there's any argument that it's a discretionary matter - it's a matter that Your Honour can take into account - and what I say, Your Honour, is that historically, since time immemorial, a person's capacity to pay has been a relevant feature even in the imposition of fines.

187My learned friend perhaps could postulate that time might change and one day he'll have money, however that kind of burden should not be posed upon him if he is to participate in a significant period of rehabilitation, Your Honour, and that is the thrust of the submission.

188HIS HONOUR:  Tell me this.  You're referring to factors to be taken into account in the exercise of discretion?

189MR MELASECCA:  Yes.

190HIS HONOUR:  What does the legislative provision say that enables me to make such an order?

191MR MELASECCA:  Just simply the word that you 'may' as opposed to 'must', Your Honour, and the words of 'in the interests of justice to do so'.

192HIS HONOUR:  Can you read the entire provision to me?

193MR MELASECCA:  Yes, I'll look it up, Your Honour.  Sorry.

194HIS HONOUR:  Maybe Mr Albert's in a better ‑ ‑ ‑ 

195MR MELASECCA: No, I can look it up very quickly, Your Honour. So the provisions are found in the Confiscation Act, and just opening as we speak. So s.58 is 'the DPP may apply to the court for a pecuniary penalty order. A court must not grant leave' – sorry.

196HIS HONOUR:  Sorry?

197MR MELASECCA: Sorry, Your Honour, I just killed a phone that was coming in. The – sorry, sir - determination – s.59, Your Honour. 'On an application the court may', ss.1, 'assess the value, order the accused to pay a penalty if the court thinks it desirable to take into account any amount paid. The court may take into account any material it thinks fit.' I think that's about it, sir.

198In s.58 there's lots of references to 'in the interests of justice to do so', but the determination section is s.59 and it requires an assessment, then the taking into account any amount paid, and then if an application – the court may make an order and it may take into account any material it thinks fit and the whole, or any part of the transcript of the proceedings, is admissible in so doing.

199So that - one would think that that is a reference to a discretion where everything that has been said on behalf of a particular individual can be taken into account and there is always the overriding provisions, Your Honour, of the discretion of a court to determine some – a matter in the interests of justice.

200Now, I can't refer Your Honour to specific places on the topic other than to say it's my opinion – sorry.

201HIS HONOUR:  My submission.

202MR MELASECCA:  Forget my opinion.  My submission, from experience, that the ability of an individual to make repayments has been, historically, one of the factors that has been taken into account as against the future of that individual and the rehabilitation of that individual.

203I know of cases where that has occurred, and can refer Your Honour to them, but I can say to Your Honour that they were not extensive judgments, they were basically one line statements of a discretion being refused on the very grounds that I have just articulated, and the last one that comes to mind is Justice King in the Supreme Court, in a matter in which the Mokbel co-accused were involved, and one of the individuals within - there was such an application and Her Honour took into account the unlikelihood of that individual being able to pay.  I think it was Rizzo in that case, Your Honour.

204But that is all, Your Honour. I don't have the authorities at hand, but it's simply the powers that's contained in s.59.

205HIS HONOUR:  Well, 59 – I'm looking at it on my iPhone.

206MR MELASECCA:  Yes.

207HIS HONOUR:  Sub-section 1.  'On an application under ‑ ‑ ‑ 

208MR MELASECCA:  Yes.

209HIS HONOUR:  ‑ ‑ ‑ s.58(1) or (2) the court may, (a), assess the value of benefits derived by the accused in relation to the offence'.

210MR MELASECCA:  Yes.

211HIS HONOUR:  Do I take it that it's agreed that the benefits obtained by
Mr Nguyen were the figure that's – ultimately results in $60,515 after deduction of the forfeiture order of some $33,000, which I've made?

212MR MELASECCA:  Yes.  It would appear that that law has become that it's not the profit to Mr Nguyen, but the gross amount, so, yes, Your Honour, that amount would be able to be taken into account.  So the fact that you paid ‑ ‑ ‑ 

213HIS HONOUR:  But you agree on the amount?

214MR MELASECCA:  Yes, Your Honour.  The mathematics is correct.

215HIS HONOUR:  At least someone's got the maths right.

216MR MELASECCA:  Yes.

217MR ALBERT:  I can't take credit for that, Your Honour, it was my instructor that checked it.

218HIS HONOUR:  Well, you're just too candid.  Well, then it goes on to say, '(b), order' – this is (indistinct words).

219MR MELASECCA:  Yes.

220HIS HONOUR:  'Order the accused to pay the State a pecuniary penalty equal to the value of the assessed – as so assessed less'.

221MR MELASECCA:  Yes.

222HIS HONOUR:  'If the court thinks it desirable to take into account any amount paid, or payable, by way of restitution or compensation in relation to the same conviction'.

223I don't know, it probably speaks about it in the legislation, but if I made such an order is it it just becomes a debt that is recoverable as debts are recovered in court?

224MR MELASECCA:  Yes, Your Honour.

225MR ALBERT:  It does, Your Honour.

226HIS HONOUR:  Yes.  So that's the second regime that applies to compensation orders, isn't it?  Restitution.

227MR ALBERT: Yes, Your Honour. It's the provision in sub-section (b) of s.59(1), where it refers to restitution and compensation doesn't – it doesn't encompass forfeiture, if I could put it that way, but I agree, Your Honour, it is a discretionary matter.

228HIS HONOUR:  But Mr Melasecca's saying, 'Well, say with the imposition of a fine, the legislation requires that one enquires of the capacity of the person to be fined – to pay a fine'.

229MR ALBERT:  Yes.

230HIS HONOUR:  Where you have that person before you.  So it's a relevant matter there and the traditional view was that you don't impose fines that the person cannot pay, or pay easily, otherwise you invite them to commit offences in order to pay fines.  Restitution; not necessarily subject to the same line of reasoning except that it's possible to say that obviously one has no capacity - or best in the foreseeable future to pay restitution - and would you make such an order?  Would the same line of reasoning apply to this particular type of order?

231MR ALBERT:  Some of the elements are there, Your Honour.  It may be more comparable to a compensation order, where there is discretion to make a compensation order for various reasons.  One of the matters is capacity to pay but it is a balancing of factors, Your Honour, in a situation where there is a benefit obtained from offending; that it should not be just passed by or swept under the carpet.  There is a benefit and, of course, against that you balance whether there is a capacity to pay in the future or it may be onerous on the accused; the fact if it's onerous does not necessarily mean it should not be made.

232MR MELASECCA:  In answer to my learned friend, Your Honour, you cannot ignore – there's one thing about capacity and then there's another thing about discretion.  There is no doubt that in making an order one looks at the amount that was transacted, and the amount that was transacted equals an amount of $60,000 - that is the mathematics that is applicable – but it's a different consideration when one looks at a discretion.

233When one looks at a discretion you can take into account that drugs do not appear from the magic tree - that drugs are purchased from others - and what my learned friend has applied for is the wholesale figure.  When justice is applied that would certainly not have been the figure that Mr Dung Nguyen ended up with, and in addition to that you're looking at ‑ ‑ ‑ 

234HIS HONOUR: Mr Melasecca, I thought you were saying that you were – where s.59(1)(a) says ‑ ‑ ‑

235MR MELASECCA:  Yes.

236HIS HONOUR:  ‑ ‑ ‑ 'the court may assess the value of the benefits derived by the accused in relation to the offence'.

237MR MELASECCA:  Yes.

238HIS HONOUR:  Now you seem to be submitting to me that the benefits derived by him is not the $60,000 odd dollars but some other figure.  Are you submitting that?

239MR MELASECCA:  I'm saying that that's the reality when you look at justice, but for the purpose and the case law a benefit has become ruled upon in the past as being the wholesale figure.  So the benefit is the immediate benefit upon the sale of the drugs, so if a person sells a drug for $10,000 the benefit is $10,000.

240The fact that he might have to pay someone else $8,000 is not part of the calculus, however when applying discretion that's a more general proposition and justice is a matter of taking into account things like future rehabilitation, capacity to repay actual money that ended up in his pocket in the interests of justice generally, and that, Your Honour, is what I say should be the focus of any discretion, as opposed to what my learned friend says – and I'm not putting words in his mouth, I hope, but, 'Your Honour's got the power to do so and let's just leave it there and you never know, one day he might have the capacity'.

241The reality is as at today he does not have that capacity.  His priority, on an exit from gaol, would be accommodation with the assistance of those that will assist him.  I'm sure the Government – the CISP bodies will assist in helping him there, but the reality is he's going to have to focus on getting back on his feet and participating in a process which, as Your Honour has said, there might well be a significant process before the Administrative Appeals Tribunal, and there'll be costs relating to that.

242So expense is a major factor of his future and the kind of pressure that can be placed upon him by all those everyday features can be alleviated by the exercise of a discretion, and that's why Your Honour has been asked to exercise a discretion and an amount has already been gained – an amount that was not gained in respect of all the co-accused in the matter.

243HIS HONOUR:  We seem to come back to the issue of capacity to pay.

244MR MELASECCA:  Yes.

245HIS HONOUR:  I mean, depending on what I do with the charge to which he'll hopefully be shortly assessed in relation to a community correction order - let's assume I do sentence him to a community correction order.

246MR MELASECCA:  Yes.

247HIS HONOUR:  On my sentence he has about two months left to remain in custody.  He then would be the subject of a community correction order, presumably released from custody.

248MR MELASECCA:  Yes.

249HIS HONOUR:  Given the length of the sentence imposed of imprisonment his visa will be cancelled.  That seems to be extremely likely.

250MR MELASECCA:  The process would be that he would be given the opportunity to respond.

251HIS HONOUR:  Yes.

252MR MELASECCA:  He would most likely be allowed to remain in the community whilst that process is being conducted.

253HIS HONOUR:  So it's very uncertain.

254MR MELASECCA:  (Indistinct words).  Yes, Your Honour?

255HIS HONOUR:  It's very uncertain as to, following his release from prison, what actually will happen to him; whether he will be in the community or whether he'll be in custody.

256MR MELASECCA:  My experience in many cases that I have done where I have acted on behalf of individuals in visa cancellation is that whilst the process is being carried out he will continue to remain in the community, however long that takes.

257HIS HONOUR:  Okay.  And subject to the visa he's got ‑ ‑ ‑ 

258MR MELASECCA:  Yes?

259HIS HONOUR:  That doesn't enable him to engage in paid employment, does it?

260MR MELASECCA:  The visa is the reinstatement of the previous visa.

261HIS HONOUR:  Yes.

262MR MELASECCA:  And I believe that it may, Your Honour, I'm not sure.  Are we able to ask that question direct of Mr Nguyen?  Mr Nguyen, do you remember whether you were allowed to work on the visa as you previously had it?

263OFFENDER NGUYEN:  Ah, I'm not allowed to work on – on a visa.

264MR MELASECCA:  Okay.  So before, when you had the visa, you were not permitted to work.  Is that correct?

265OFFENDER NGUYEN:  Yes.

266MR MELASECCA:  Okay, thank you.  Yes, there would need to be a further application made for that permission to be granted, Your Honour.  So that's a process.  It's not impossible, Your Honour.

267HIS HONOUR:  Mr Albert, has this provision – which has been around for a while – has it been judicially considered by anyone else, to your knowledge?

268MR ALBERT:  The issue has been – and I'm looking for those cases as we were speaking, Your Honour – what it encompassed; whether it encompassed profit.  Whether the word 'benefit' meant 'profit' or 'immediate benefit', and the cases have, for a long time, said that it means the immediate benefit, which means the gross total received.

269In my experience they've said it has been a discretionary matter whether the court has imposed a pecuniary penalty order, and taking into account a number of factors including the circumstances of the offending and the personal circumstances of the offender as at the time of sentence.

270HIS HONOUR:  To your understanding there's been no detailed consideration of the exercise of the discretion in the sense of reasons that have been formally published?

271MR ALBERT:  No, Your Honour.  Look, I've been looking at my other computer with my cases - which I thought I had a number of them on - but, no, I have not.  Your Honour, this matter will have to return to Your Honour anyway.  Maybe if we had the opportunity to research them and provide them to Your Honour before the matter comes back?

272HIS HONOUR:  I think that's an excellent suggestion.  It'd be one that you would support, Mr Melasecca?

273MR MELASECCA:  Yes, Your Honour.  Your Honour, my instructor has just handed me a case that applied not dissimilarly to principles of forfeiture in relation to a house where cannabis had been growing, and there appears to be a number of comments made in that case relating to the exercise of a similar discretion.  In that case it related to a forfeiture of a house so that the amount was considerably greater.

274I'll just find it, Your Honour, and we will make further submissions, as Your Honour suggests, but I just wanted to read this paragraph to Your Honour.

275HIS HONOUR:  Okay.

276MR MELASECCA:  There appears to have been considerations in respect of forfeiture and there are a reference to a number of decisions and it says:  'If opposing forfeiture on the grounds of hardship it is necessary to show hardship other than what might be expected to arise from the ordinary operation'.  And you look at the question of proportionality - whether it's disproportionate - and there are a number of cases, so I think we will be able to find some cases and address Your Honour.

277HIS HONOUR: Well, I suppose the first port of call is whether – probably my associate has done it already, but no doubt you gentlemen are doing it – you punch in s.59 of the Confiscation Act and see if it's been judicially considered.

278MR MELASECCA:  Yes, (indistinct words).

279HIS HONOUR:  And the second step would be to go into ‑ ‑ ‑ 

280MR MELASECCA:  HONOUR:  Well, or even the website that controls County Court judges.  If there were any ‑ ‑ ‑ 

282MR MELASECCA:  Yes.

283HIS HONOUR: ‑ ‑ ‑ judgments there would be a few of those, and punch in s.59 and maybe something will come of it.

284MR MELASECCA:  Yes.

285MR ALBERT:  The Victorian Sentencing Manual, Your Honour, probably has it.

286HIS HONOUR:  You're probably right.  I dare say, Mr Albert, you had a hand in it.

287MR ALBERT:  No, I can't get the credit for that.

288HIS HONOUR:  Mr Associate, have you found out a time or a day for Mr Nguyen to be assessed?

289ASSOCIATE:  Yes, the Corrections officer said they'd be able to accommodate a 1 pm appointment today, but that's contingent on the video links people having availability to sort out a video link between then and Fulham Prison, so because the video link can't be confirmed until I'm told in about two hours' time that appointment remains tentative, but it's 1 pm as far as the Corrections assessment people are concerned.

290HIS HONOUR:  Well, Mr Albert and Melasecca, do you want me to stand this case down to later in the day or would you like me to adjourn it to tomorrow, or another day, in order to ‑ ‑ ‑ 

291MR MELASECCA:  I would appreciate later in the day, if possible, Your Honour.

292MR ALBERT:  I've got a commitment at the Magistrates' Court at 3 pm, Your Honour.

293HIS HONOUR:  Well, the assessment will take at least an hour, if it's even started at one, so that doesn't help you at all.  What about tomorrow?

294MR MELASECCA:  I'm before His Honour Judge Ryan in the County Court for a further plea and I don't know how long that will take, Your Honour.  It might take all day, then again it might only take the morning.

295HIS HONOUR:  So that's tomorrow.  What about Monday?

296MR MELASECCA:  I appear to be clear.  Yes, Monday's fine by me, Your Honour.

297MR ALBERT:  Yes, Your Honour.

298HIS HONOUR:  Well, that gives both you gentlemen time to research everything under the sun.  Will we make it again 9.30 on Monday?

299MR MELASECCA:  If it please, Your Honour.

300MR ALBERT:  If it please, Your Honour.

301HIS HONOUR:  Mr Associate, that doesn't clash with anything of mine, does it?

302ASSOCIATE:  No, Your Honour.  You only have a directions hearing at 9 o'clock, but I don't think it'll be that long.

303HIS HONOUR:  Which one's that?  That's that – yes, that should be all right.

304ASSOCIATE:  Yes.

305MR ALBERT:  That's not something to be – there's no problem with the video link to Fulham?

306HIS HONOUR:  That's a good question.

307ASSOCIATE:  I think with a few days they should be able to organise it by then.

308MR ALBERT:  Okay.

309HIS HONOUR:  Why don't we make it 10 o'clock on Monday just to be safe.  Would 10 o'clock cause any difficulty?

310MR MELASECCA:  No, Your Honour.

311MR ALBERT:  No, Your Honour.

312HIS HONOUR:  Right.  Monday's the 28th, so if I adjourn Mr Nguyen's matter to Monday 29 September at 10 o'clock.

313MR ALBERT:  28 September, Your Honour.

314HIS HONOUR:  Twenty-eighth, sorry.  (Indistinct words).  Do you understand all that, Mr Nguyen?

315OFFENDER NGUYEN:  Yes, sir.

316HIS HONOUR:  Okay.

317MR MELASECCA:  Might I ask your associate to leave Mr Nguyen on the screen after Your Honour's departed, sir?

318HIS HONOUR:  Can you do that?

319ASSOCIATE:  Yes, we can.  Certainly.

320HIS HONOUR:  Yes, that's fine.  Okay, we'll adjourn Mr Nguyen's matter to next Monday at 10.  I'll get the draft orders and I'll have a look at them and then they can be provided to each of you gentlemen.

321MR MELASECCA:  May it please, Your Honour.

322HIS HONOUR:  As well as the other two.  Okay.

323MR ALBERT:  Thank you, Your Honour.  Your Honour pleases.

324HIS HONOUR:  We'll adjourn this court till tomorrow, Mr Tipstaff.

---