Director of Public Prosecutions v Nguyen
[2020] VCC 584
•8 May 2020
| lN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No CR-19-00562
Indictment No J12814297
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Thanh Lam NGUYEN |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 May 2020 |
| DATE OF SENTENCE: | 8 May 2020 |
| CASE MAY BE CITED AS: | DPP v Nguyen |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 584 |
REASONS FOR SENTENCE
---Catchwords: Attempted trafficking in Commercial Quantity Drug of Dependence. 3 ½ kg of heroin secreted within chocolate bars. Controlled delivery of package with drugs removed. prior criminal history including two recent appearances for trafficking and commercial quantity trafficking, 34 years old.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Singh | Office of Public Prosecutions |
| For the Accused | Mr A. Jackson | Valos Black & Associates |
HIS HONOUR:
1 Thanh Nguyen you have pleaded guilty to a single charge of attempted trafficking of a commercial quantity of heroin.
2 You have a highly relevant recent criminal history which includes two prison sentences imposed in the District Court of South Australia for trafficking or commercial quantity trafficking in drugs.
3 You had been released from prison only a matter of 8 months before you committed this serious crime.
4 You were born on 24 July 1985. You were approaching, by my calculations, 33 years of age at the time of the offending in October 2018. You are now 34 years old. You are an Australian Citizen. It was important that I checked that specifically as had you not been, I would have been required to consider the mitigatory effect of potential deportation. That does not now arise of course.
5 The maximum penalty is correctly set out in the prosecution summary. It is 25 years' imprisonment.
Facts
6 The prosecutor, Mr Singh, opened this matter to me by placing before the court a written prosecution opening dated 4 May 2020. Your counsel, Mr Jackson, told me that that was an agreed summary. He did not need it read aloud in open court and of course there was no-one in the body of the court at all in this COVID-19 period. The hearing was conducted using the WebEx. I briefly summarised aloud the opening and we have then moved ahead into the plea. I see no need then to describe the full factual setting here in my reasons. I will not stray beyond the agreed facts set out in that document which is marked as Exhibit A in these proceedings.
7 Stated very briefly, on 12 October 2018 Border Force officers examined a suspicious consignment arriving at the Melbourne Gateway facility out at Tullamarine. The consignment was from Malaysia addressed to a named individual living at premises out at 10 Daintree Retreat in Caroline Springs. The consignment purported to be chocolate but in fact contained 3.5 kilograms of heroin by way of mixed weight. Subsequent formal analysis disclosed a purity of between 82-86 per cent. The parcel was provided on to the police. You contacted Australia Post on 16 October asking about that parcel. You had the consignment number. You contacted Australia Post again on 24 October and sought to have the parcel redirected to an address that you provided in
South Australia. You said you were in South Australia. You said that the consignment contained chocolate. You rang again the next day, that is on the 25 October, and made the same request. On 26 October, at 10.04 am a police member pretending to be a warehouse manager for Australia Post rang you and delivery of the parcel to the Caroline Springs address was organised for 12.30PM that day. He rang you on a number ending in the numbers 912. That phone number was the phone number written on the actual consignment. You rang back using that number and altered that arrangement to 4 pm as you said you were flying down from Sydney. You did in fact fly down from Sydney on a 12.10 pm flight. You then caught a taxi out to 10 Daintree Retreat in Caroline Springs. That was a vacant property which was up for sale. You then set about pretending to be the occupant tidying up the yard and then watering the garden. Then on the 912 phone service, you rang the person you believed to be the warehouse manager (who of course was a police officer) and said that you were at the address watering the garden and awaiting delivery of the parcel. The parcel was then delivered. You received it and put it into the taxi and you were then promptly arrested. You had close to $5,000 cash in your possession, four mobile phones and two laptops and made a no comment interview upon formal police interview. Prior to the interview, indeed at the time of the arrest you gave a garbled and everchanging account of what you were doing and how you happened to be involved.
8 This was plainly a commercial enterprise you were caught up in. You had made the enquires of Australia Post in relation to the parcel, spent, you said, $900 on the air ticket, had travelled down from Sydney to Melbourne to make the collection, had spent $200 on a taxi and had booked two nights' accommodation in Melbourne for $800. You came to the designated address and the parcel had a phone number on it which when called rang a handset in your possession. This was not something sprung upon you in the days before as you seemed to be suggesting to the police in the arrest tape. You were in this up to your neck but were reluctant to tell the police too much about the details. That is not a matter in aggravation, I make that very plain.
9 You have been in custody ever since which, of course, is a significant period of time already.
10 This was very serious offending. You were attempting to traffic a commercial quantity of heroin. That is based on your endeavours to possess the drug for sale. The substitution is the only thing that makes it an attempt. The maximum penalty remains unchanged and so too of course your culpability. The quantity of the drug of dependence is only one of a large range of factors to be taken into account in assessing the seriousness of an offence of attempted trafficking or trafficking in a commercial quantity but it is undoubtedly an important consideration. Often enough it is one of the few points of distinction. You had not just tipped over the commercial quantity threshold by some small margin or fraction. Commercial quantity was 250 grams mixed. Large commercial quantity I was told was 500 grams pure or 750 grams mixed at the time. This parcel contained 3500 grams mixed weight and over 2800 grams pure, so well over the large commercial threshold. However I must not deal with you for the more serious offence of attempted trafficking in a large commercial quantity. You intended to and attempted to traffic in a commercial quantity not a large commercial quantity and it is important I not lose sight of that fact.
11 So much then for my summary of the summary. The full summary will remain available on the court file. This was very serious offending, as was conceded by Mr Jackson who appeared on your behalf. There can only be one response to it and that is to send you to prison for a substantial period of time. Again, that is conceded. Exhibit B contains the sentencing remarks from two previous South Australian District Court sentences imposed upon you for trafficking in drugs or trafficking in a commercial quantity of drugs.
Mitigation
12 Mr Jackson had prepared a written outline and took me to your background briefly. He made submissions as to the objective gravity of this offence and the purposes of sentencing in play here. This was a realistic and sensible plea conducted on your behalf by him. That is offered by way of praise as we as judges see enough very unrealistic submissions and pleas conducted before the court. There is just no point mucking around and making unrealistic submissions and of course Mr Jackson did not. It is not the way he conducts himself in court. He said there was little that really could be put in mitigation and he was right. But he did rely upon those matters he could rely upon.
13 He relied upon:
· Your guilty plea;
· The early stage of that plea;
· Some increase in your custodial burden owing to the COVID-19 response by Corrections;
· He argued that you had at least some prospects of rehabilitation;
· He made some submissions as to your role.
· He conceded the seriousness of the offence, the seriousness of your past criminal history as well as the inevitability of a substantial term of imprisonment. The issue was the length of the sentence as well as the length of that non-parole period.
Prosecution
The prosecutor, Mr Singh had little need to say anything by way of submission given the sensible concessions that had been made by your own counsel.
Mr Singh placed before me the case of Fatho [2019] VSCA 311 which dealt with the previous cases including the case of Gregory which had held that there had been inadequate sentencing practices for this crime for many years and that sentences must be uplifted.
Background
14 I turn then briefly to your background. I have no reason not to accept the family background that has been placed before me in the plea conducted by
Mr Jackson. It really has nothing to do with this offending and I do not see the need to set it all out in my reasons. Of course, I take into account as far as I am entitled to your personal background. You are 34 years old now, born in July 1985. You were born in Vietnam, but the family fled that country in 1986, when you were still an infant, and spent some years in a refugee camp in Malaysia before the family settled in South Australia in about 1990. You were educated to Year 12 and then have had a variety of jobs including as a kitchen hand, a machinist and as a seafood supplier in a seafood supply business. It seems from the sentencing remarks, marked as Exhibit B, that the seafood business that you got into troubles and that there were debts arising from the business or drug use, it is not entirely clear. But that that had some role to play in that prior act of commercial quantity trafficking that was the subject of that first sentence. Returning to your family background, your older brother is a lawyer. Your mother a hairdresser, your father a diesel mechanic. It is said that really you have messed up your life, with gambling and drugs taking a significant toll on your life. You have a highly relevant criminal history of that there really can be no doubt. I am not going to work my way line by line through that history. It is tightly compressed onto the page but betrays a large number of appearances before the courts over the years. I totally ignore the oldest of the appearances that seem to connect up to Children’s Court matters. They are totally irrelevant to my task.
15 You have been dealt with in the past by courts and you have served those sentences that have been imposed. I want to make it plain that, you do not fall to be sentenced a second time by me for those past crimes. They do not alter the objective gravity of your offending that I have to deal with. But I do have to make judgments as to the need to deter you and to protect the community from you as well as judgements as to your prospects of rehabilitation and risk of
re-offence and your moral culpability, for that matter. The recent history is highly disturbing. I am not going to rehash the sentencing remarks from the 2013 and 2015 South Australian District Court appearances. You have in those two appearances, two charges of trafficking in drugs and one charge of trafficking in a commercial quantity of drugs. The commercial quantity trafficking involved movement of ice by you from New South Wales into South Australia to wipe out a debt. That was in December 2011 and you were sentenced in 2013. The sentencing judge concluded that the offending was isolated. You had committed though the other two trafficking offences whilst on bail in December 2012. They were dealt with in 2015 after a trial and jury verdict. Those various sentencing remarks, as I say, are exhibited in this matter. They are Exhibit B on the plea. On each occasion submissions were made by your counsel to the court, as to your desire to turnover a new leaf, to lead a law abiding life and your determination to do that in the future upon your release. On each occasion relatively favourable views were held by the Bench as to your prospects. You were released from the second sentence in February 2018. Here you were again in October of that same year up to your neck in a serious criminal offence. Since 2013 I am told you have spent most of your time in prison and that is because of course upon release you choose to commit very serious crimes.
16 You have given an account to your counsel of how you came to be involved in this enterprise that I am dealing with. He relied upon what you had told the police in the pre interview exchange, that is the arrest tape. He placed before me your bank statement. The bank statement, which I marked as Exhibit 2, really says nothing at all as to your actual role. It simply sets out transactions and it did indicate that you had been in NSW in October but previously had been in South Australia. As to how you came to be involved and what you were doing, the bank statement said nothing at all. There are entries suggesting that you gamble but nothing in the document speaking of any sizeable debt. Indeed I note that in the month of October, there were credits to that account totalling over $21,000, by my calculation, with various deposits made into banks or at ATM’s. Mr Jackson submitted that the bank account supported your account to the police in the secretly taped arrest tape. That is by the way an account which you then refused to admit in the formal police interview. You made a no comment interview as of course was your right. The trouble is you plainly were not being truthful in a number of areas in that arrest tape account. I do not accept your account for one moment. You told the police you did not know who had asked you to collect the parcel. You told the police that you had been asked a couple of days before hand which of course was demonstrably false. You were, after all, the person making enquiry on 16 October as to the fate of this consignment. You told the police you did not know what you were picking up and gave varying accounts of the debt that you owed. At one point in the tape it was $5,000, at another it was $100,000. You said you did not know where the drug was to be taken and that you were going to be receiving a phone call on that topic on that phone, from that unknown person. A phone that had somehow been provided to you, it is unclear how. I put your counsel on notice that I had issues with your instructions and Mr Jackson chose not to call you to give evidence. Well as I said, I had difficulties with your account and further consideration has not removed them, I do not accept your account. What was your exact role and where exactly did you fit into any hierarchy? I will probably never know. That is not unusual in this sort of case. I am certainly not satisfied that you were some low-level journeyman. You were doing everything necessary to reduce into your possession this parcel. You had the consignment number and the phone service which was entered on the actual consignment. You knew that the consignment purported to contain chocolate. You rang and sought on two occasions to move the parcel to an address in South Australia, an address which you provided. You, I should add, generally lived in South Australia. How is that direction given by you consistent with not knowing what was to become of the parcel? You were spending, it was said, your own money. Well, if that be so you were spending it like a millionaire. You said that you paid $900 for the flight and had a taxi wait incurring another $200. You had booked two nights' accommodation for another $800 and you had $5,000 in your pocket as well as four phones in your possession and two laptops. Why? There is just silence on those topics. You were plainly a critical player. You were not some low-level functionary. I am simply not satisfied on the balance of probabilities of your account. I know nothing about who if anyone was above you in the hierarchy.
17 It was suggested that there was a gambling debt. That debt if it existed had been incurred either after your release from prison in February 2018 or predated that release. I am not able to accept on the balance of probabilities your account as to the existence of a sizeable debt or your account of the benefit to you of $20,000 being removed from your debt. That was the same explanation for the previous commercial quantity trafficking offence and even if true it really cannot excuse this sort of criminal conduct.
18 Moving back then to your personal background if I may. You have been in custody since your arrest on 26 October 2018. You are currently at Fulham and have been working. In recent times conditions have become tougher in prison, owing to cessation of visits and lockdowns brought about by concern as to the COVID-19 virus. It is not easy being in custody in such a setting as this.
Guilty Plea
19 I turn then to consider the submissions made on your behalf.
20 I turn firstly to your guilty plea. You have pleaded guilty and you have done that at an early stage. Now, your counsel was not suggesting that it was at the earliest stage but it was of course your right to run the committal and the committal was sensibly conducted. It was a very brief committal focussing on the large commercial quantity charge which, ultimately, for whatever reason did not proceed. Importantly I was told by the prosecutor that you had offered to plead to this very charge that I am dealing with prior to the committal getting underway. Once committed to this court on the large commercial quantity charge, the matter resolved pretty quickly. You were from March 2019 always prepared to plead guilty to the commercial quantity charge. So I will treat it in fact as a very early guilty plea. You have taken that early responsibility for your offending. There is a utilitarian value in pleading guilty. The community has been saved the time, the cost and the effort associated with the conduct of a full-blown committal hearing in the Magistrates' Court and/or a trial up in this court. Witnesses have, with the exception of the informant called in the lower court, been spared the experience of giving evidence. You have facilitated the course of justice and I must reward you for your decision to plead guilty, and at the early stage which you did.
21 I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury after conducting a trial.
Remorse
22 Now, no submission was made as to the presence of remorse and of course that is perfectly understandable given the history placed before me. I could probably say no more on the topic. Some might think it an unusual notion for a judge to even entertain that a person who was prepared to traffic or in your case attempt to traffick in drugs at this level might be remorseful. The fact is though that we as judges see enough people who do commit serious crimes and do actually have a sense of remorse or contrition after the event. People can reflect upon their past conduct. People can actually alter their views and change for the better. You have pleaded guilty and you have done that at an early stage and a guilty plea is usually though not always evidence of at least some remorse. Here of course the case was an overwhelming one. The problem is of course that you have done it twice before and been caught and imprisoned and then released. Despite that history, you were prepared to traffick and at a high enough level here. It does not suggest to me the presence of any remorse. I am just not satisfied on the material that there is much by way of remorse in this case. Nor did your counsel suggest that I should find remorse.
Prospects or rehabilitation
23 I turn now then to your prospects of rehabilitation. Courts have tried to lead you away from crime but have very evidently failed in that exercise. Being charged has not deterred you. Being on bail has not deterred you. Spending sizeable periods in prison has not deterred you. You were no silly teenager committing some immature crime or behaving with immature misjudgement or the lack of foresight as to the consequences that younger people may well have. You knew the consequences and you must have weighed them up. This was not a spontaneous crime or some minor or transitory error of judgement. You were a mature man with highly relevant criminal history and have disclosed, by your conduct, that you are prepared to re-offend in a most serious way. This was serious, calculated and planned offending and your culpability was high here.
24 You have yet again committed a crime, this time a very serious one and the only explanation for this of course was the hope of some sizeable financial gain. Financial gain is virtually always the answer in this area. I am not satisfied on the balance of probabilities that there was any aspect of dire financial need or pressure being brought to bear upon you as there sometimes is. You have made a choice and as you must know and must have known at the time, more significantly, it was a very bad choice. I am not satisfied on the balance of probabilities that your conduct was driven by financial need or to in any way support any addiction.
25 It is not a good time to be in custody. You have at least pleaded guilty and you have done that an early stage and I give you full credit for those things. You have been held in custody on remand for a decent period now already and that time already and the time that lies ahead may, I hope, play some role in deterring you into the future. The problem is the same no doubt would have been thought by the judges who imprisoned you in 2013 and then later in 2015. Yet here you are again. I can only really be very guarded as to your future prospects. You still have some level of family support which provides to me a glimmer of hope. I find that you have some prospects into the future but I really cannot put it any higher than that. I think those prospects are actually quite poor. You plainly have a risk of reoffending in the same or similar way in the future and you must be deterred from doing that.
Increased burden: COVID-19
26 Your counsel submitted that the COVID-19 global pandemic will make your time in custody more difficult. That it already had and likely would into the future.
27 The Court of Appeal first dealt with the issues of the COVID-19 virus in a decision of Brown [2020] VSCA 60 in late March of this year. They correctly cautioned Judges against speculating. There have been many decisions since mainly in the Supreme Court but with a few brief mentions made in the Court of Appeal. Cases such Broes [2020] VSC 128; McCann [2020] VSC 138. Tong [2020] VSC 141, Madex [2020] VSC 145, Sazimanoska [2020] VSCA 66 and Nguyen. More recently Nicholls [2020] VSC 189, Re Diab [2020] VSC 196, Thomas [2020] VSC 206 and Wyka [2020] VSCA 104. Many of these decisions related to bail applications where there are I think slightly different considerations in play.
28 It is still too early to know how this is all actually going to play out in the prisons. It is a rapidly evolving setting changing almost week by week. Even in the space of a few weeks since some of the very gloomy forecasts in some of the bail decisions I have referred to, there have been massive changes in the outlook in the community. Things are looking, I must say, far less gloomy than they were a month ago when the courts first pronounced on this topic. The curve has flattened out in the community and the rate of new infections is probably the envy of the world. There are moves afoot to relax some of the restrictions. At this stage as I understand it, there are still no active cases within a Victorian prison.
29 What steps will be taken by Corrections if the virus hits the prisons? How many prisoners would be infected and how will those not infected be impacted? How long will any restrictive measures be in place? Who knows? I cannot know any of those things. I cannot know how it will all actually impact upon you. Only time will tell. If I cannot know, nor can you and that must be a worrying thing for a prisoner. I do not doubt therefore that the pandemic and the response to it will be generating stress amongst prisoners. Will there be lockdowns into the future and to what extent? How long will visits be suspended for? What educational and other programs will be available if any? Will there be allowances made by the authorities by way of the declaration of emergency management days during this crisis? I do not know. I cannot speculate about any of these things.
30 I do not though believe it is speculative to conclude that there is an increased prison burden for you. Lockdowns are already in place to some extent and visits have been suspended. Now you were not actually receiving visits prior to this crisis with your family resident interstate, but there had been some hope of some family visits close to the plea and that hope of course is now dashed. So lockdowns to some extent and no personal visits with the spectre of reduced programs and courses is hardly an ideal setting for a prisoner. None of these things is easy. Will these things continue? I think I can conclude that they will for that is because they are in place already and social distancing and isolation are said to be the key to avoiding the spread of this virus and how else can that really be instituted in a prison setting. It is pretty clear to me that the need for social distancing is going to continue both in the community and in a prison setting, even when some restrictions are lifted.
31 So how will all this play out for you? I really cannot know. What I do know though is that the virus itself and the prison authorities concern about the virus will likely limit social interaction, work opportunities and access to courses, education and programs. You are still working which at least is a plus for you. Visits have already been suspended and lockdowns are in place already to some extent. As I said in the course of the plea, there probably is no good time for any person to be in prison. However, this is certainly not a good time to be there. There are increased stresses and an increased custodial burden here for these various reasons and I take that into account in your favour.
The Offence
32 As to the offence itself, Mr Jackson conceded the seriousness of your crime. He was right to make that concession. This was planned serious offending by a mature man with a highly relevant prior criminal history. As I mentioned earlier, the quantity of drugs is always a matter of some real importance and you did not just tip fractionally over the threshold into a commercial quantity. You were way over that threshold and leaving aside the fact of a commercial quantity being involved here, this was unmistakably a commercial venture with flights from interstate to Melbourne, to collect the consignment, accommodation and proposed movement of the drugs back across a state border, though which border is anyone’s guess actually. You were an integral player and not acting at a low level at all. I do not accept your account as to your role. You were plainly at the very least a much-trusted player and undoubtedly you were motivated by the expectation of sizeable financial gain. There is no reduction in your culpability at all.
Purposes
33 I have to consider a number of purposes of sentencing and they are not limited only to considering your prospects of rehabilitation. I do not ignore your prospects of rehabilitation. Rehabilitation is after all one of the sentencing purposes, but those prospects are quite poor. You have a sizeable enough risk of re-offending. Though I do not ignore your rehabilitation, it must to a degree take a back seat in this task owing to my need to give weight to other purposes of sentencing.
34 I am required to punish you justly and proportionately. Punishment is obviously an important sentencing purpose in this sort of case. I must also denounce your conduct. That is also an important purpose. This was very serious criminal conduct. You knew that.
35 I must deter you and others from offending. General and specific deterrence and community protection are important sentencing purposes in this case. Specific deterrence is the need for the court to deter or dissuade you from offending in the future. It is plainly of real significance here. You must somehow get it into your head that you must never head in this direction ever again. Courts have tried to deter you in the past. They have imprisoned you for related serious offending and your response upon release has been to reoffend. I will try again but specific deterrence is plainly very important in this case. For the same reasons, so is community protection. I must protect the community from you. That is in fact the principal purpose of sentencing owing to your status as a serious drug offender though there is no need to impose a disproportionate sentence here and I will not.
36 General deterrence is another sentencing purpose of real importance. This court must send a clear message to other individuals in the community who might be minded to consider committing this sort of serous drug offence. Drugs have changed so much in our community. They exact an enormous toll upon us, as you surely must know. You have had problems with drugs yourself.
37 People who traffick or “attempt to traffick” drugs at any level, they are almost always taking a calculated risk as you were. It is virtually always done for financial reward or gain of some description. Offenders no doubt weigh up the risks and the benefits. They hope not to be caught. They weigh up as you no doubt did the potential financial rewards as against the risks. You knew a fair bit about the risks given your criminal history and you calculated that it was worth taking on that risk. Well, it is always a calculation. You hoped not to be caught. You gambled in what you knew was a very high stakes game. You have after all previously been dealt with for commercial quantity trafficking in South Australia, an offence that had the same maximum of 25 year' imprisonment. You have the two later trafficking convictions which had a lower maximum but were rewarded with a higher term of imprisonment imposed.
38 The courts have a vital role to play. We, as judges, must spell out how grave the risk is. We must convey the clear message through the sentences imposed that though the financial benefits and rewards may appear attractive, on the other side of the equation, there is the grave risk of detection, arrest and successful prosecution with the likelihood then of very significant terms of imprisonment being imposed. Life altering sentences for offences which, after all, carry these very high maximum penalties. This charge has a 25 year maximum penalty and I am required to have regard to that maximum penalty. The courts must, by the sentences imposed, seek to deter future like-minded offenders from committing these serious crimes, and that is a very important purpose here. Those who are prepared to traffic in drugs should expect little by way of leniency when brought before the courts. Happily, there are not too many who come back to a court at this level for their third such appearance. You have two prior convictions for trafficking simpliciter and one for trafficking in a commercial quantity. You just will not learn and you really have exhausted any claim for leniency.
39 I do pay regard to current sentencing practices. It is not a single controlling factor, it is just one of the many matters I must have regard to. I have looked at the relevant table of cases in the Judicial College of Victoria sentencing site (the new manual), dealing with commercial quantity trafficking. Whilst of course I do not lose sight of the fact that this is an attempt, the maximum penalty is the same and here the only reason it is an attempt is because of the removal of the drug prior to the delivery. Statistics have got inherent limitations. So too do outcomes in other cases.
40 One has to be very careful looking at past cases and the relevant sentencing statistics in this particular area owing to decisions in the Court of Appeal starting off with the case of Gregoryv The Queen [2017] VSCA 151 back in 2017.
41 That case has a useful survey of a number of other sentences passed for commercial quantity trafficking. It considered the sentencing data which existed in the lead-in to that case. Gregory was argued in November 2016 and judgment was delivered in June of the following year.
42 Sentencing Advisory Council Snapshot 219 (of August 2018) deals with the commercial quantity offence and discloses that the most common prison sentence in the period covered by the data (that is from 2012-13 to 2016-17) was between four to less than five years. Much of that data, if not all of it, predates the Court of Appeal decision in Gregory.
43 In the case of Gregory, to which I have referred, the Court of Appeal concluded that the current sentencing practices for serious examples of commercial quantity trafficking had been unduly compressed, were inadequate, and did not reflect the inherent seriousness of the offence, the impact upon the community, or the fact that the maximum penalty was 25 years.
44 The court in that case looked at a number of the past sentences that have been imposed and then analysed the statistical data then available to them. There was an apparent clustering of sentences all under 10 years with a ceiling of some eight years which made no sense at all. It betrayed, the Court of Appeal said, a persistent error in the way in which serious instances of this offence had been treated. The Court of Appeal identified features which they said would lead, in the future, to the expectation of sentences well into double figures for this crime. See paragraph 98 of that decision. One factor was if the quantity was close to the large commercial quantity. Other factors mentioned by the Court of Appeal included a person having a senior role, or role in charge, or lengthy duration of offending, or relevant prior convictions, or running a trial and being found guilty. Your role was clearly an important one, I have said as much. You have a highly relevant criminal history. The quantity was not fractionally over the commercial quantity threshold, that is for sure, though again I am astute to avoid dealing with you for attempted trafficking in a large commercial quantity. I must deal with you for the commercial quantity offence that you have pleaded guilty to. But plainly this must be viewed as at the top margins of commercial quantity.
45 There were a number of factors which the court in that case said would lead to far greater sentences being imposed in the future for serious examples of this crime. The eight-and-a-half-year term imposed upon Gregory was not disturbed, but the Court of Appeal went on to say that had they not been constrained (as they then actually thought they were) by current sentencing practice, a sentence of 13 to 15 years would have been within the range on a guilty plea in that case. That case was also considered in the decision of Fernando [2017] VSCA 208.
46 Since those decisions there have been others in the Court of Appeal which confirm the stance taken in Gregory and speak plainly of the need to uplift sentences in this area. See the case of Fatho [2019] VSCA 311, see also the case of Condo [2019] VSCA 181.
47 Having said all that though, I want to make it plain, sentencing is not a mathematical exercise. The appropriate sentence is not arrived at by imposing upon you the sentence imposed in another case on another offender for another crime or selecting the most common sentence that has been imposed. I have got to pass an appropriate sentence upon you for your crime.
48 I have to consider the nature and gravity of your offence. Rightly or wrongly, one does try to assess where an offence falls on the spectrum of offence seriousness.
49 Where then does this offence fall on the spectrum of offence seriousness? In my judgement, it is a serious example of a serious offence. The weight of the drug is a fixed matter here. We do not need to guess. It does not require speculation or guesswork. It is a given. I am not to concern myself with the harmfulness of the particular drug. This is a quantitative based regime but heroin unlike some other drugs of dependence is of course a highly valuable drug.
50 I will never know your precise role or the nature of any hierarchy above or below you. But as I have said, I do not accept your account. But even if I had, it could not take you very far. Your account would have me find that you have moved from Adelaide to Sydney to be involved in this process of collection then from Victoria of a commercial quantity of heroin to be moved on to some other destination with the reward of $20,000 on offer by way of reduction of a large debt by a man who had offended in such a way and for similar reasons in the past. There is frankly not a lot of mitigation to be had in that account but as I say, I do not accept your account.
51 All I can really do is look at what you actually did. Your movements speak plainly of the commerciality of the exercise and of your level of autonomy and seniority. Your role was obviously a senior and trusted one. You were alone down in Melbourne taking into your possession this highly valuable consignment.
52 I do not accept that it was done out of financial need or in circumstances in any way reducing your culpability.
53 This is attempted commercial quantity trafficking at a high level by a mature offender with highly relevant prior history, who just will not learn.
54 I have no option but to pass a very sizeable prison term upon you. There are in truth, as Mr Jackson said, not very many matters in mitigation here.
55 I must proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the possibility of release on parole or even speculate on that issue. I am required to provide for that possibility, unless one of the very rare exceptions set out in s.11 of the Sentencing Act arises. It occurs to me, and you should bear this in mind into the future, that a court dealing with you for any future similar offending may well find that your past history makes the fixing of a non-parole period inappropriate. We are though, in my judgement, not at that point here today. So I am bound to fix a non-parole period. The Adult Parole Board then will make the decision as to whether you can be released on parole. That has nothing to do with me. In fact, I must not even consider or speculate about what they may or may not do. It is just none of my business. They will receive these remarks. They will make of them what they will. They will have the job of assessing your behaviour in custody and making judgements as to whether you can be granted parole at a later point. That possibility, and that is all it is, I am afraid many years away from today.
Forfeiture and Disposal Orders.
56 I turn then to the ancillary orders that are sought in this case.
57 There is firstly a disposal order that is sought under the provisions of s.78(1) of the Confiscations Act. There is no issue taken with this. This relates to the items in the schedule, including the actual drugs and packaging. I am satisfied the preconditions for the making of that order are well and truly made out. I have signed that order and the items referred to in the schedule will be held and dealt with in the manner contemplated by the signed order.
58 Secondly, there is a forfeiture order under the provisions of s.33 of the Confiscations Act, relating to the various things in your custody, including the currency, the phones, the boarding pass, the laptop, the sim card packing, brown diary and the other bits and pieces. There has been discussion about that.
59 We have just lost the connection; I will try and re-stablish it.
60 We just lost you for a moment, Mr Nguyen, can you see and hear me again>?
61 OFFENDER: Yes, I can hear you again, Your Honour.
62 HIS HONOUR: Great, all right, sorry about that, was not for long. And as far as you, Mr Jackson; you, Mr Singh, you are back online with us? Yes, all right, thank you. All right.
63 I am moving now then to the forfeiture order under s.33 of the Confiscations Act, I have already set out the various things that are referred to in the schedule. There is no issue about that order being made. There is no opposition to it being made. I am satisfied the preconditions for the making of that order are made and the property referred to in the schedule is forfeited to the Minister.
Sentence
64 Look, I am sorry to have taken so long getting to this point. You want to know the sentence. You want to know the ‘numbers’ to put it starkly. Normally you would be in court and I would be getting you to stand up at this stage. I will not do that now, I will have you remain seated and then I will pass sentence upon you. So just remain seated.
65 On the charge on the indictment, that is the charge of attempted trafficking in a commercial quantity of a drug of dependence, namely heroin, I convict and sentence you to 11 years' imprisonment. That is the only sentence and hence of course that is the total effective sentence.
Non-Parole Period
66 I fix a period of eight years during which you will not be eligible for release on parole.
Section 18
67 You have already spent 560 days in custody by way of pre-sentence detention, and that period is declared as having already been served under this sentence, that declaration made under s.18 is to be entered into the records of the court.
6AAA
68 Had you been found guilty of this offence following a jury trial I would have sent you to prison for 14 years. I would have fixed a non-parole period of 11 years in that setting and that is to be noted in the records of the court.
Serious Drug Offender
69 I have sentenced you as a serious drug offender and that fact is also to be entered into the records of the court.
70 Let me just see if there are any other matters. So Mr Singh, Mr Jackson; are there any other matters that I need to deal with it?
71 MR SINGH: Not from this end, Your Honour.
72 HIS HONOUR: All right. Mr Jackson, that completes my sentence. If we were doing this live you would be at the Bar table, your client would be in the dock. I would have him removed, he would be taken downstairs and I would then be telling him you would be coming downstairs to see him and have a chat to him about that. Now that is now what we are doing, we are doing it by way of WebEx. As I did the other day, are you wanting to speak to him now using the current facility or not? Are you on mute, I have got you on - I just cannot quite hear you at the moment, you are on mute. Can you hear me, just - Mr Singh, you can hear me?
73
MR SINGH: I've been able to hear you, sir, but I haven't been able to hear
Mr Jackson for some little time.
74 HIS HONOUR: Yes, all right, Mr Jackson, we might just - I wonder can you just leave the meeting and come back. Re-join the meeting and we will see if we can get you back with some volume.
75 MR SINGH: Your Honour, before my friend does that is it appropriate that I leave the meeting now so that in case Mr Jackson wishes to speak to his client?
76 HIS HONOUR: I think in fact what I will do is I think we will all leave the meeting and Mr Jackson can then try and re-join and then have the communication with Mr Nguyen. So anyway, they are the only orders - I have made the appropriate orders, there is nothing else I need to do. So Mr Nguyen, we are just having trouble hearing Mr Jackson, but we want him to have at least the capacity to try and speak to you now. So what we might do is I am going to leave the Bench in a moment, the prosecutor will leave the meeting as well and we will then have Mr Jackson try and reconnect so that he can then have a chat with you about what has taken place. Do you understand?
77 OFFENDER: Yes, Your Honour.
78 HIS HONOUR: All right, so that is what I will do then. So Mr Singh, if you could leave the meeting at this stage then.
79 MR SINGH: Your Honour pleases.
80
HIS HONOUR: Thank you. I will leave the Bench and hopefully
Mr Jackson can reconnect. But we will stay online with you, Mr Nguyen, so that Mr Jackson can have a conference with you. So you stay put where you are for the moment and hopefully you can speak to your barrister, all right? 10.30, Monday, thank you.
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