Director of Public Prosecutions v Nguyen

[2020] VCC 623

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02070

DIRECTOR OF PUBLIC PROSECUTIONS

v

KIM NGUYEN

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2020
DATE OF SENTENCE:	15 May 2020
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VCC 623

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW --- SENTENCE

Catchwords:  Possession of 14 firearms --- Three imitation firearms --- Ammunition --- Prohibited person --- Cooperation with police – Admissions --- First time in custody --- Suitable for CISP --- Disintegration from original family unit --- Strong family bonds --- Ongoing employment --- Positive prospects of rehabilitation

Legislation Cited:

Cases Cited:DPP v Fligner 2010 [VSCA 143 --- Quadara v The Queen [2017] VSCA 260 --- DPP v Christopher Clark [2018] VCC 966 --- Kim v The Queen [2019] VSCA 149 --- Djemal v The Queen [2020] VSCA 25

Sentence:20 Days Imprisonment --- 2 Year Community Correction Order --- $300 Fine

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Office of Public Prosecutions
For the Accused	Mr M. Marcevski	Marcevski Lawyers

HER HONOUR:

1Kim Tuan Nguyen, you have pleaded guilty to a number of offences related to possession of firearms and drugs.  The most serious of those charges is possession of a trafficable quantity of firearms.  The threshold for trafficable quantity is three firearms.  In your case there were 14 firearms plus three imitation firearms and a quantity of ammunition.

2At the time of your offending you were 28.  You are 29 years old.  You were living at home with your mother and younger brother in St Albans.  You had hired a Kennards storage unit in October 2018 in your brother's name.  Apparently because he had a job you believed hiring under his name was more legitimate.

3You visited the unit twice between October 2018 and July 2019.  In July 2019 Kennards staff identified payment for your unit was in arrears.  Their hire contracts enable them to retrieve items from the unit and sell them to cover unpaid rent.  Two staff members unlocked your unit for that purpose.  Located inside was a karaoke machine and various other items.  However, at the rear, under a large cloth they located firearms and they called the police.

4The list of items located is as follows: a green ammunition box containing various types of ammunition; an Atus seafood bag containing one training hand grenade, which I note cannot be detonated; a quantity of ammunition and one magazine; a black back pack containing homemade silencers; an imitation pistol; a quantity of ammunition and various firearms parts; a lock-away case containing firearm cleaning tools; Australian automatic arm semi-automatic rifle with magazine, scope and trigger guard assembly.  That firearm had no serial number inscribed; a gold metal tin containing a quantity of shotgun shells, a Ubertin 1860 colt percussion revolver.  Checks of that firearm revealed it was an outstanding stolen item registered in Tasmania; a Browning pump action rifle disassembled into two pieces, a serial number could not be located on it; an incomplete homemade pistol; two silencers; a Smith and Wesson magnum revolver.  Checks revealed that was also an outstanding firearm stolen firearm registered in Tasmania; barrel and receiver of a Remington pump action shotgun.  No serial was located on that firearm; an SKB Japan under over 12 gauge shotgun with serial number erased; a drum magazine for a Tommy gun; modified imitation submachine gun with magazine; a Marlin bolt action .22 with a homemade silencer attached to the muzzle.  Checks of that firearm revealed it was an outstanding stolen item registered in Victoria; a Lithgow SMLE bolt action rifle with serial number erased; a Zastava M70 assault rifle with two magazines and a quantity of ammunition.  That firearm could not be located on the firearms database; a Reuger M77 bolt action rifle.  Checks on that firearm revealed it was an outstanding stolen firearm registered in Tasmania; an imitation Tommy gun; a Carl Gustaf bolt action rifle.  Checks revealed it was an outstanding stolen firearm registered in Victoria; a Remington pump action rifle, originally registered in Victoria then lawfully traded to New South Wales, however, never registered in New South Wales; a Browning A5 semi-automatic 12 gauge shotgun which was not recorded on the firearms database; an instruction manual for the production of a handgun. 

5In all a total of 14 firearms and three imitation firearms were seized as well as the other items I have described.

6At the time you were a prohibited person by virtue of s.3 of the Firearms Act 1996. That was as a result of having been served with a final family violence intervention order in May 2017. That order ran for 12 months. However, the provision of the Firearms Act means you were prohibited from possession of a firearm for five years.  You have never held a firearms licence. 

7Those matters constitute Charge 1, the possess trafficable quantity of firearms and Cover Charges 2, 3, 4 and Summary Charge 3 relating to individual items.

8On 24 July 2019 a search warrant was executed at your residence.  During the search police found a clear bag containing several smaller individually sealed bags of various tablets, including Xanax, for which you did not have a valid prescription.  That is Summary Charge 24, possess a Schedule 4 poison.  They also found:  a clip lock bag containing methylamphetamine, Charge 5, possess drug of dependence; as well as two swords, which is part of Summary Charge 7, possess a prohibited weapon; and a .223 magazine; a further Samurai sword in a red sheaf was found in the garage.  That is Summary Charge 7, possess a prohibited weapon.

9You were arrested and made admissions to police during the execution of the warrant.  Those admissions were later repeated in your record of interview despite having received legal advice to make no comment.  The prosecutor fairly described your admissions as fulsome.  You frankly acknowledged possession of all items found at the Kennards storage unit, saying you had collected firearms from various people who you did not name.  You told police you had been collecting firearms since you were 18 years old.  You told police you liked to take them apart and clean them.  You denied ever having fired a firearm.  You also explained that the ammunition often came with the firearms at the time you bought those.  At times you had paid up to five to $7000 for an item.  You admitted that failure to pay rent for the unit was as a result of your drug use and the fact that you just forgot about it. 

10You admitted owning the drugs and other items found at your premises.  The purchase of those firearms has obviously been through unlawful means.  You apparently obtained them through your involvement in drug use and the associated criminal milieu.

11After your record of interview you were immediately remanded into custody.  That is the first and only time you have spent in custody.  You have a limited prior criminal history.  In 2017 you were fined for tampering with a motor vehicle.  That related to letting down the tyres of your ex-partner's car during an acrimonious breakup.  That was part of the circumstances which led to the family violence intervention order.  Prior to that you had been convicted and fined for possession of cannabis and proceeds of crime, which were cash, in 2016. 

12You have otherwise not been dealt with for any other offending although you have a now longstanding drug addiction, in particular to ice.  In 2019 you were dealt with for two driving matters and you have been completing a work only community correction order in relation to those.

Sentencing Principles

13Possession of a trafficable quantity of firearms is a serious offence with a maximum penalty of 10 years' imprisonment.  The movement of weapons in the community is of great concern to the courts and community because of the threat such items pose to the health and safety of people.  Many of the weapons you possessed had the potential to cause serious injury or death.  The purpose behind provisions of the legislation and regulations around firearms and their registration is so that such items can be identified and movement of them through the community can be monitored.  Courts must impose sentences which denounce their unlawful possession and which deter others from obtaining them.  Community protection is obviously an important sentencing consideration.

14The prosecution accept that there is no evidence you were in fact trafficking these weapons or facilitating their movement in the community.  They accept that a number of items were unable to be fired or used, were in pieces or were imitation.  The firearm cleaning kit located goes some way towards supporting the explanation you gave.  It is also accepted that a number of the charges reflect the same set of facts, that is possession of a trafficable quantity of firearms includes also items listed in the prosecution opening at Item EHLMQ and R, which are the subject of their own separate charges, 2, 3, 4 and Summary Charge 3.

15The prosecution submit, however, that a major issue in sentencing you is the quantity of firearms, which is a high one. 

Personal Circumstances

16Your personal background is outlined in the psychological report of Mr Ian McKinnon, psychologist, and in CISP bail assessment and progress reports.  You were born in Perth, your parents had come to Australia from Vietnam.  You father abandoned you and your mother when you were two.  You also had a half-sister who is seven years older who remained with you and your mother. 

17Your mother than had a number of relationships, causing your family to move many times through your childhood.  You moved between Perth, Darwin, Sydney and eventually to Melbourne.  Your mother eventually settled in St Albans.  Several of your mother's partners were abusive and one in particular had been very violent.  He and your mother have a son together who is seven years your junior.  That is your half-brother.

18That man inflicted serious injuries on your mother, causing her to be hospitalised on several occasions.  He also hit you.  You told psychologist,
Mr McKinnon, 'He'd hit me too with rosebush branches with thorns, with a rubber hose.  I remember everything he did to me.  My little brother hates him for what he did to us.  He doesn't see his dad'.

19You managed to continue your schooling until Year 11 at St Albans Secondary College.  You then maintained employment, working at Best & Less clothing store in St Albans, where you remained for seven years, progressing to a position as a manager of that store.  You then worked for your mother for a period of about a year in a stonemasonry business until that business closed. 

20At 16 years of age you became involved with a girlfriend who you remained with for approximately 10 years as partners.  You and she have a son together who is now six years old.  You and your partner separated acrimoniously in 2018.  That separation you acknowledge was largely brought about by your ongoing drug use.

21You have experimented over the years with a number of substances but most problematic, you have been smoking methylamphetamine since your early 20s.  Prior to your remand for these matters you were using daily.  Both the CISP materials and report of Mr McKinnon confirm you were suffering with symptoms that met the clinical criteria for the following major diagnosable psychological disorders, substance dependence disorder and mixed anxiety and depression disorder.

22Mr McKinnon summarised your history and its impact on you as follows:  'The earlier antecedents to Mr Nguyen's anxiety and depression appear to be the disintegration of his original family unit, abandonment by his father, multiple moves around Australia during his early development period and the consequent adverse effects this had on his social development and formal educational experiences, violent and emotional abuse he suffered at the hands of at least one of his mother's partners, exposure to his mother's victimisation by several of her partners, and the development of chronic psoriasis, which is a source of social anxiety and embarrassment'.

23He says, 'More recently Mr Nguyen's anxiety and depression have been fuelled further by the breakdown of his relationship with his partner, his own chronic substance use and his withdrawal from employment over the last five years'. 

24On remand you were initially assessed by Mr McKinnon and also assessed for suitability for the CISP program.  Your time on remand was difficult.  As I have described, you were already suffering with a diagnosed condition of mixed anxiety and depression disorder.  In part you were detoxing from drug use but in addition your pre-existing anxiety and depression was heightened. 

25Psoriasis, which you have experienced since your late teens, which is exacerbated in times of stress, flared.  You were unable to access your regular medication.  Steroidal cream provided in custody made it worse to the point that it was apparently all over your face, you felt people did not want to be near you, and that increased your feelings of anxiety.

26You expressed both to the CISP assessors and Mr McKinnon, your genuine concerns for your mother and your son during your time on remand.  You are described as maintaining strong emotional bonds to your son and other family members.  Separation from them was another contributor to your increasing anxiety and depression when you are on remand.

27You were expressing motivation to address your drug use and your underlying issues.  On assessment you scored 86 out of 100 on the Corrections Victoria treatment readiness questionnaire, indicating you were treatment ready. 

28To that end you were bailed to the CISP program, that is an intensive program, for a period of three months.  You engaged in drug counselling through Drug Health Services, Footscray.  That was your first episode and experience of drug counselling. Your counsellor described you as engaging well and demonstrating remorse about your past poor choices.  The progress report, after two months, describes you as demonstrating a high level engagement, attending all appointments and engaging with all areas of your treatment plan.  You took up all suggestions and you were also proactive.  For example, you actively obtained a mental health plan from your general practitioner and arranged psychological treatment.  You organised your identification in order to access Medicare and Centrelink.  You engaged with a job coach.  You were noted to be maintaining abstinence from drug use.

29As I said, Mr McKinnon, psychologist, assessed you in custody.  You then attended on him as part of the CISP program.  However, when that program finished you continued to see him voluntarily.  You have now had eight sessions with him approximately now happening monthly, although you have regular contact with him by phone.

30You have returned to the workforce for the first time in over five years.  You are currently working again as a stonemason.  I have received a reference from your employer, who is a friend who has known you for a number of years.  He is aware of the current charges and your serious predicament.  He confirms you have been working now in the factory of Sai Stone three days a week for the last three months.  He says you are a, 'Very hard working person, punctual and very diligent in his duties of work.  He is a valuable team member and always does more in helping others, doing more than what is expected of him'.  He says you have mentioned that you are looking to study to further your career in stonemasonry. That work is ongoing.

31Along with your employer and another friend who has provided a reference, you have a number of peers who are not drug users and you are reconnecting fully with them in your efforts to steer away from the drug using scene.  You have commenced attending the gym regularly as a way of occupying yourself and of improving your physical health. 

32Your relationship with your son's mother has reached a point where you and she are now civil.  You now have custody of your son each weekend when he stays with you at your mother's.  You remain drug free and I have seen a recent urine screen.  You are most concerned about any return to imprisonment and the impact that would have on your mother and your son.

33According to Mr McKinnon he stated, 'In my opinion Mr Nguyen possesses considerable potential to address his personal challenges and psychological difficulties and make rehabilitative progress towards maintaining gainful employment and becoming a better father', to your young son.  Those comments were made in the assessment report and it seems that that is indeed what you have been able to put in place since your release on bail.

34Your counsel in those circumstances submitted that time you have already served plus a community correction order is the appropriate disposition.  The prosecution's submission was that a combination of imprisonment plus a community correction order is within range, however, submitted that time already served is not enough.  It follows from that submission that the prosecution say I should return you to imprisonment for a period not exceeding 12 months prior to releasing you on to a community correction order.

35It is, and has been, a difficult consideration given the amount of firearms and paraphernalia here.  Most other cases which deal with possession of firearms tend to see that offence accompanying other serious offending.  Mr Roper helpfully provided me with a number of decisions where that is so.  There are a number of others.  In summary, those decisions are as follows: 

a)    DPP v Fligner 2010 [VSCA] 143.  Mr Fligner was dealt with for very serious extensive and sophisticated drug related offending, including cultivating a very large quantity of cannabis.  There were 45 firearms located at a holiday house.  He was a person with a significant criminal history.  He received three years' imprisonment in relation to what the court described as an arsenal of weapons.  Eighteen months of that term was cumulative on the serious offences related to the extensive drug trafficking.  The seriousness of the other offending is reflected in the fact that his total effective sentence was eight years with five non-parole.

b)    In Quadara v The Queen [2017] [VSCA] 260 the offender there was in possession of six unregistered firearms.  They were possessed at a time when he was already on bail for serious drug related offending.  The drug trafficking offences related to multiple indictments and the seriousness of that other offending is reflected again in the fact that in his case the head sentence received was one of nine years.  For possession of the trafficable quantity of firearms he received a term of two years' imprisonment, nine months of which was cumulated.

c)    In DPP v Christopher Clark [2018] VCC 966 there were six firearms. There are comparative issues in that the offender there admitted to a fascination with firearms and there was no evidence of other criminal activity. He was a man aged 40 who pleaded guilty. He had a criminal history, including weapons and drug matters and at the time of his offending he was on bail for other offences. He received a term of 38 months' imprisonment.

d)    In Kim v The Queen 2019 [VSCA] 149 again there were six firearms but also accompanied by serious drug related offending.  That man had a limited criminal history and received a term of six months' imprisonment. 

e)    In Djemal v The Queen 2020 [VSCA] 25 there were seven firearms but again the offending was accompanied by serious drug related offending.  Mr Djamal was 56 with limited criminal history and received a term of 10 months' imprisonment.

36That sample of other cases demonstrates that in circumstances where accompanied by other high level offending and at times with relevant criminal history, terms of imprisonment at least in that sample, range from 10 months to three years' imprisonment. 

37As I have said, there are a number of other cases but most are accompanied by other serious offending.

38There are a number of matters in mitigation in your case: 

a)Firstly, you receive the benefit of your early plea of guilty.  The prosecution fairly accepts it is a plea given at the earliest opportunity.  You receive the utilitarian benefit of saving the time and expense of a trial.  In your case I accept it demonstrates genuine remorse. 

b)You have a lack of relevant prior criminal history.

c)You have made positive efforts on bail.

d)You have employment, family support, stable accommodation.

e)You have the support of peers who are not involved in the criminal milieu.

f)You have regular care of your son each week. 

g)Your prospects of rehabilitation are very positive, provided you can deal with your drug addiction.

39I have had the benefit of a second report from Mr McKinnon after the eight months of treatment.  He says this:  'Mr Nguyen has made significant rehabilitative progress over a sustained period.  Mr Nguyen has consistently expressed regret and remorse for his offending and evinced an awareness that his offending constituted antisocial activities with negative consequences for the wider community, his own family and himself.  I believe Mr Nguyen has made concerted efforts to avoid contact with former negative influences.  Fortunately Mr Nguyen has always maintained a social network with old, straight friends and they have been actively supporting and encouraging him to rehabilitate himself as has his mother.  In the current context I do not have any significant concerns about Mr Nguyen reoffending.  Mr Nguyen has responded with an appropriate level of responsibility and commitment to the opportunity afforded him by the court and he is likely to continue making rehabilitative progress with the current supports he has in place.’

40To return you to imprisonment at the current time would also see you return during the COVID-19 pandemic.  You are someone, as I have described, with pre-existing diagnosable anxiety, the outward expression of which is your chronic psoriasis.  Those conditions were exacerbated during your remand last year, as I have described, when COVID-19 was not relevant.

41COVID-19 means now you would be immediately subject to 14 days in-cell isolation.  There are no visits currently permitted, which would include your mother, son and brother.  There are no programs for which you could continue either your drug treatment or your psychological treatment operating at the present time.  A number of prisons are seeing increased lockdowns to limit movement.  It is accepted that imprisonment in the current climate is a more difficult environment for all of those reasons.  Further, prisoners cannot exercise their own autonomy with regard to social distancing or freedom of movement.  There is also general anxiety about the possibility of the virus entering prisons.  Higher courts have held that those are relevant matters for consideration in both bail applications and sentence.  They must be as they make imprisonment more onerous, and in a person with a predisposition to anxiety such as yourself, they become more relevant.

42In all the circumstances and taking into account the sentencing principles relevant, I have concluded that I will not return you to imprisonment.  If you had not taken steps towards your rehabilitation and shown a sustained effort, the result may have been different.  However, I do not think in all the circumstances it is necessary or appropriate to interrupt those efforts.  The time you have already served plus a CCO can address punitive and therapeutic aspects necessary in your case.

Sentence

43If you could stand now, please, Mr Nguyen.

44In relation to each of the charges relating to possession of firearms and firearm paraphernalia, that is Charges 1, 2, 3, 4, Summary Charge 3,
Summary Charge 7, you are convicted and sentenced to 20 days' imprisonment, plus a two year community correction order.  I have received an assessment report confirming your suitability for such an order.

45The conditions of that order are that you are to be under supervision for the period of that order.  You are to undergo drug assessment and treatment, including testing, as directed by the Office of Corrections.  You are to undergo psychological assessment and treatment as directed by the Office of Corrections.  You are to complete 200 hours of unpaid community work.  I take the recommendation in the assessment report in regards to offsetting or allowing for an offset of an amount of those hours.  In other words, if you complete up to 100 hours of treatment that can be offset against the 200 hours of unpaid community work.  That is for the sole purpose of encouraging you to continue with your treatment and to engage fully with drug counselling and assessment and treatment as directed.

46In relation to the two summary charges relating to the drugs, you are convicted and fined $200.  I declare that you have already served 20 days pre-sentence detention and that that should be reckoned as having been served as relevant to this sentence.  But for your plea of guilty, so in other words if you had not pleaded guilty, the sentence I would have imposed would have been a sentence of 18 months' imprisonment with a non-parole period of nine months' imprisonment.  I propose to make the disposal and forfeiture orders in the terms that have been sought.

47Mr Nguyen, do you agree to undertake the community correction order that I have outlined?  And do you understand that any breach of that order, that is by way of any further offending or failure to comply with the conditions of that order, would bring you back to me for re-sentencing on these offences?

48OFFENDER:  Yes, Your Honour.

49HER HONOUR:  All right.  Have a seat there, please.  Any issues to raise before I have Mr Nguyen sign that order, counsel?

50MR ROPER:   Yes, Your Honour.  Can Your Honour hear me?

51HER HONOUR:  Yes.

52MR ROPER:  Yes.  Just in relation to Charge 3, the Summary Charge 3, the ammunition charge, that is punishable only by a fine, Your Honour.

53HER HONOUR:  I am sorry.

54MR ROPER:  That cannot form part of an aggregate order with the other matters but it needs to have a separate sentence.  The other issue, Your Honour did mention the drug possession charges being summary.  Charge 5 - - -

55HER HONOUR:  Sorry, yes.

56MR ROPER:  Possession of the methylamphetamine is actually indictable.

57HER HONOUR:  Yes.

58MR ROPER:  But no quarrel with the - the fine is certainly open on that charge.  It is not alleged - it is only alleged a small quantity for personal use, and so they are the only two matters I wish to raise.  I do not think Mr Marcevski would disagree with that.

59HER HONOUR:  No, thanks for picking that up.  So the possession of ammunition without the licence, that is the maximum 40 penalty units.

60MR ROPER:  Yes, that is right.

61HER HONOUR:  All right, thanks very much, and when I revise the reasons I will correct that reference to the possession of drug being summary.  I know that was Charge 5, was it not?

62MR ROPER:  Yes, yes.

63HER HONOUR:  All right.

64MR ROPER:  Otherwise no other matters, Your Honour.

65HER HONOUR:  Thanks very much.  In relation to the possession of ammunition I am mindful of the quantity that was there.  So on that charge,
Mr Nguyen, you will be - I am also mindful of the overlap, as I have described, but on that charge you will be convicted and fined $100.  So the total fine is $300.

66All right, we will have that order printed out for Mr Nguyen to sign.  So,
Mr Nguyen, your signature on that order means that is your promise that you will comply with the conditions of that order, and that is what you must do, going forward.  All right, and the disposal and forfeiture orders I will make in chambers and they will be sent along with the final orders.  All right, thanks very much.  Thank you.

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