Director of Public Prosecutions v Nguyen
[2020] VCC 639
•22 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR 19-02283
| DIRECTOR OF PUBLIC PROSECUTIONS (Cth) |
| v |
| THANH NGUYEN NGUYEN |
---
| JUDGE: | HER HONOUR JUDGE DALZIEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 May 2020 |
| DATE OF SENTENCE: | 22 May 2020 |
| CASE MAY BE CITED AS: | DPP v NGUYEN |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 639 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Importation of pseudoephedrine – Criminal Code (Cth) 307.11(1) - plea of guilty
Legislation Cited: Crimes Act 1914 (Cth) s16A(2), s17A
Cases Cited:XY v R [2013] VSCA 261; R v Lamella [2014] NSWCCA 122; R v Chandler [2010] QCA 21; Le v R [2019] VSCA 232
Sentence: Total effective sentence of six years, non-parole period four years
Section 6AAA declaration: nine years' imprisonment, non-parole period six years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Ms C Caretti | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Trood (Plea) Mr M. Kelly (sentence) | Melasecca, Kelly & Zayler |
HER HONOUR:
1.Thanh Nguyen Nguyen, you have pleaded guilty to one charge of importing a commercial quantity of a border controlled substance, namely pseudoephedrine, contrary to subsection 301.11(1) of the Commonwealth Criminal Code. The maximum penalty for that offence is 25 years' imprisonment, 5,000 penalty units, or both.
2.The prosecution filed a summary of your offending, which has been marked as Exhibit 1, on the plea. Through your counsel you indicated that you did not dispute the facts relating to your offending as set out in that summary.
3.In brief compass, in 2019 you were under a considerable amount of financial stress, with debts owed to a number of financial institutions. One of those debts had been referred to a debt recovery business and you were being pursued by that company for repayment of a personal loan.
4.You travelled to Vietnam with your wife and young child. On 22 August 2019 when you were passing through customs, on your return to Australia, your baggage was searched by officers from Australian Border Force. That search revealed that you had in your possession numerous packages, labelled as various types of food, which contained a powdered substance. Testing of that powder showed that it contained pseudoephedrine hydrochloride.
5.Further testing of 50 samples, with a gross weight 13.01 kilograms, showed that the powder contained pseudoephedrine at a purity of between 63.9 – 69.3 per cent, so that the quantity of pure pseudoephedrine you imported was (using the lower purity as the basis for the calculation) 8.27 kilograms. That amount is 6.9 times the commercial quantity applicable to pseudoephedrine, which is 1.2 kilograms.
6.When you were spoken to at Customs you admitted the suitcases you had in your possession had been packed by you, but told the officials that you had purchased the food items at a market.
7.You were arrested on that day and have remained in custody since.
8.Section 16A(2) of the Crimes Act 1914 (Cth) requires that I must take a number of different matters into account, if they are relevant and known to me. In arriving at your sentence I take into account the following matters which were raised on your plea hearing.
Personal Circumstances
9.You are 36 years old, and an Australian Citizen. You immigrated to this country from Vietnam when you were 16 years of age. You struggled to learn English after your arrival and did not complete year 12. You found work in factories and ultimately obtained work as a butcher, a role which you were employed in when you committed this offence.
10.You married and had a child in May 2018. Your daughter was found to suffer from moderate unstable asthma. As at November 2019 she had been admitted to the Children’s Ward at Sunshine Hospital on six occasions in that year.
11.You lived with your parents, who are now retired, and felt responsible for caring for them. When your wife ceased to work in order to be able to care for your daughter, you carried the financial burden of providing for your family. I was informed about two personal loans and two credit cards which required payments, and I accept that you were under pressure financially.
12.You have no criminal history and no matters pending in court. I take this into account as an indication of your good character, and also take into account the references provided by your friend, brother-in-law and wife, all of which speak of your honesty in dealing with your family and friends, and your care and attention to your family.
13.The report of Sandra Nguyen which was tendered on your plea was relied upon to demonstrate and establish your anxiety and concern for your family, your realisation of the effect of your conduct upon your family, the shame you feel for what you have done and for the disgrace you have brought upon yourself and your family.
Nature and Circumstances of the Offence
14.As I have said earlier, the quantity of pure pseudoephedrine you imported was 6.9 times the commercial quantity threshold. The prosecution note that if sold unchanged this quantity of pseudoephedrine could have realised between $214,968 and $289,380. Whilst there is no evidence that you were going to receive any financial reward commensurate with the potential earnings from the sale of the substance, you have admitted that you were to receive payment for your importation of it.
15.Your counsel submitted that the offending was unsophisticated, and that the suitcases and hence the pseudoephedrine were admitted by you to be yours. He submitted that there was no evidence that you had participated in packing the substance and that whilst it was accepted, by your plea, that you were reckless as to the substance being a border controlled substance there was no evidence that you knew precisely what it was or how much it weighed. Nevertheless, you were in possession of the suitcases and if, as you admitted, you had packed them then you were aware of the number of and approximate weight of the packets.
16.Your counsel submitted there is no evidence that you had arranged this importation by yourself, and no evidence of the intended use or sale by you of the substance. He submitted that as the person carrying the substance yours was at the lowest level of offending. On the other hand, a courier or carrier of a drug or border controlled substance is a necessary and trusted person.
17.I must sentence you upon the facts. You pleaded guilty to importing a substantial quantity of pseudoephedrine. There is no evidence of a larger organisation of which you were a part, nor is there evidence that you were acting alone. There is no evidence before me of what reward you were to receive, although it was accepted by you that you were to receive a financial reward for carrying the substance into this country.
18.Taking into account the weight of the pseudoephedrine, and what can be discerned about your role and culpability in relation to the offending, I do not accept your counsel’s characterisation of your offending as a low range instance of the offence. Whilst I must only sentence you on the evidence before me, the amount of drug you carried into this country was significant, placing your offending clearly above that which could be described as low level. You engaged in this conduct in order to receive a financial benefit, and whilst I accept that your motive for doing so was your financial concerns, this does not mitigate your offending or moral culpability.
Defence Submissions
19.The following matters were raised on your behalf on the plea:
19.1.Your plea of guilty;
19.2.Remorse and contrition;
19.3.Absence of criminal history;
19.4.Your positive prospects for rehabilitation; and
19.5.Matters adding to the burden of imprisonment.
Plea of Guilty & Contrition
20.You indicated that you would plead guilty to the charge on the Indictment at the first committal mention of this matter, on 15 November 2019. I accept that you indicated your willingness to plead guilty at the first reasonable opportunity.
21.Your plea warrants significant mitigation of your sentence, both because of the utilitarian benefits flowing from it, and as an indication of your remorse.
22.The references from your wife and brother in law, and the psychological report tendered on your behalf all speak of the shame that you feel and the shame you have brought upon your family by this offending. I accept that you are remorseful, and that the shame and sorrow you feel for putting yourself and your family in this position will act as a deterrent upon you from committing further offences in the future.
23.There was some discussion in the plea hearing as to whether your remorse included a realisation by you of the impact of your offending on the wider community. As I indicated in those discussions whether or not that is so makes, in the circumstances of your case, no material difference to the already substantial mitigation of your sentence by reference to the plea of guilty.
Specific Deterrence & Prospects of Rehabilitation
24.Whilst it is of concern that the debt that led you to offend will still burden you upon release, I accept that your remorse, your sense of shame, your prior good character, the controlling effect of your family upon you in future and the deterrent effect of your having been caught and gaoled for this offending are all powerful factors affecting your future conduct. Taking those matters into account, I consider that your prospects for rehabilitation are very good.
Burden of Imprisonment
25.Your barrister pointed to a number of factors which add to the burden of imprisonment for you. Since 21 March 2020 your family has not been able to visit you personally whilst you have been on remand. The video link contacts are of shorter duration than the earlier permitted contact visits, and clearly do not enable the same degree of comfort to you as is derived from a contact visit.
26.It was also noted that prison courses have been cancelled, and that you had one and a half days of lockdown in April this year. You are concerned about contracting COVID-19, and whilst you are not in a high-risk category your inability to control who you come into contact with, and to distance yourself from others, weighs upon your mind.
27.You are also concerned for your wife and child, and your parents, for whom you would otherwise provide. These concerns are heightened by the
COVID-19 issues, particularly in view of your daughter’s asthma and your father’s diabetes. I accept that this and the matters I listed earlier weigh upon you, and that your concerns make your imprisonment more burdensome than if these issues were not in existence. I note that your counsel did not submit that the circumstances surrounding your family amounted to exceptional circumstances, but the concern these issue cause you remain relevant and I have taken that into account.
Other Sentencing Considerations
28.The sentence I impose is intended to deter you from committing further offences. This is relevant and important in your circumstances as the financial pressure that led you to offend will not have ceased. The sentence I impose is also intended to act as a deterrent to others who may consider such offending, which is an important consideration in relation to offending of this nature. The sentence will also punish you for your offending.
29.Four cases which involved importation of pseudoephedrine were discussed in the hearing of your plea.[1] In each of those cases:
§ The offender had imported a lower quantity of pseudoephedrine than that which was imported by you;
§ The nature of the offender’s involvement was different to your conduct; and
§ More was known about the role and culpability of the offender than is known in you case.
Despite the differences between these cases and yours, they provide some assistance in considering what the appropriate sentence is for you, and I have taken them into account for that purpose.
[1]XY v R [2013] VSCA 261; R v Lamella [2014] NSWCCA 122; R v Chandler [2010] QCA 21; Le v R [2019] VSCA 232
30.I have concluded that a sentence of imprisonment is the only appropriate disposition in the circumstances of this case.[2] I note that your counsel accepted on your behalf that a term of imprisonment is warranted in this matter.
[2]Crimes Act 1914 (Cth) s17A
31.Whilst I have accepted the matters put on your behalf on the plea, the gravity of your conduct, and the need to deter you and others from committing offences of this nature are important considerations. Taking into account all the factors applicable to you, the objective gravity of your offending, and other sentencing factors, in my view a sentence in the range which your counsel submitted was open would be wholly inadequate.
32.On Charge 1, importation of a commercial quantity of a border controlled substance, you are sentenced to a term of imprisonment of six years.
33.Pursuant to s.19AB of the Crimes Act 1914 I fix a non-parole period of four years.
34.Pursuant to s.6AAA Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to nine years' imprisonment, with a
non-parole period of six years.35.Pursuant to s.18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 274 days, not including today, in pre-sentence detention and I direct that this be entered into the records of the court.
36.Counsel, are there any other matters?
37.MS CARETTI: No, thank you, Your Honour.
38.MR KELLY: No, Your Honour.
39.HER HONOUR: Thank you, Madam Interpreter, we will adjourn the court.
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