Director of Public Prosecutions v Nguyen
[2025] VCC 266
•12 March 2025
P Pickering
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01456
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VIET NGUYEN |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2025 | |
DATE OF SENTENCE: | 12 March 2025 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 266 | |
REASONS FOR SENTENCE
Subject:Obtaining property by deception
Catchwords: Guilty plea – property valued at $240,000 – restitution – remorse
Legislation Cited: Confiscation Act 1997 (Vic).
Cases Cited:Boulton v The Queen [2014] 46 VR 308; R v Pham [2015] HCA 39; Hutchinson v the Queen [2015] VSCA 115; Stanimir Atanackovic v The Queen [2015] VSCA 136; Christine Melnikas v The Queen [2016] VSCA 112; R v Starr [2002] VSCA 180; R v Hildebrandt [2014] VSC 321; Director of Public Prosecutions v Lombardo [2022] VSCA 204.
Sentence: Two year community corrections order.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr P Pickering | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr W Barker | Marshall Jovanovska Ralph Lawyers |
HIS HONOUR:
1Viet Nguyen, you have pleaded guilty to:
(a) two charges of obtaining property by deception; and
(b) one charge of possession of a precursor chemical.
Circumstances of alleged offending [1]
[1] The circumstances set out in exhibit A are agreed facts.
Charge 1
2In late October 2023, you agreed to hire 11 arcade machines from “Xtreme Party Hire”. You told the owner of the business you wanted them for a children’s birthday party.
3On 4 November 2023, the business owner delivered the machines to you at a garage at a Maribyrnong address.
4On 6 November 2023, when the owner returned to the address to collect the machines the garage was empty.
5He reported the missing machines to police and posted on social media about it.
6Someone posted CCTV footage of a removalist’s truck attending at the Maribyrnong address on 5 November 2023.
7Someone else had seen the same truck on the same day, with a motorcar, which was registered to your brother, and a rental truck, at a Sunshine factory where arcade machines were being removed from the two trucks.
8Using a false name, Renato Silva Medina, you had rented the Maribyrnong property from 2 to 5 November 2023 on Airbnb and rented the truck from Budget rental.
9Using the false identity, you had deceived the owner of the machines to believe:
(a) you were genuinely hiring the machines;
(b) you were Renato Silva Medina;
(c) you lived at the Maribyrnong address;
(d) you were hiring the machines for a child’s birthday party; and
(e) you intended to return the machines at the end of the hire period.
10The 11 machines were valued at $160,000
11Police recovered four of them from the Sunshine factory.
Charge 2
12On 5 April 2024, “Murray’s Machines”, another business which hires arcade machines, received an enquiry from “Lia” who wanted to hire six arcade machines, for a children’s birthday party at a Truganina address from 6 to 7 April 2024.
13On 6 April 2024, the business owner delivered the six machines to a Truganina address. You met him there and told him your name was “Lia”.
14When he returned to the address the next day to collect the machines, they were missing. The locked key box was broken, and the house was unoccupied.
15When you did not answer his calls, he reported the matter to police.
16“Liai Le’ had rented the Truganina property on Airbnb from 5 to 7 April 2024.
17Using that false identity, you had deceived the owner of the machines to believe:
(a) you were genuinely hiring the machines;
(b) your name was Lia;
(c) you lived at the Truganina address;
(d) you were hiring the machines for a child’s birthday party; and
(e) you intended to return the machines at the end of the hire period.
18The six machines were valued at $80,000.
19On 11 April 2024, police searched a storage unit, which you rented from “site safe storage” at Derrimut. Inside the unit they found two of Murray’s pinball machines.
Charge 3
20Inside the “safe site” storage unit, police also found three boxes which contained 100 500 ml plastic bottles.
21The bottles contained EMDMG, which weighed 49.197 kg.
22EMDMG is a precursor chemical for the manufacture of MDMA. The prescribed weight is 25 g.
Arrest and interview
23On the same day, police arrested you at your home. There, they found four more arcade machines owned by “Murray’s machines”.
24On your phone, in the “signal” app, they found messages concerning the hire of the arcade machines from the two companies, arranging the Airbnb houses and setting the arrangements up to appear genuine.
25When police questioned you, you exercised your right to remain silent.
Chronology of proceedings
26You entered your guilty plea at the committal mention stage.
Victim impact statement
27The victim impact statement of the owner of “Xtreme party hire” was read to the court. [2]
[2] Victim Impact Statement of Andrew Saliba (Exhibit B).
28His is a family business. The loss of use of the machines worth approximately $160,000 was a “huge” disruption. He was unable to meet a number of bookings in consequence of your deception. He got some machines back but others, which are worth $26,000, were not recovered.
29You have repaid him $26,000 for the loss of the machines.
30The harm you caused to the owner was not only financial. As a family-owned business, he describes the anger, distress and anxiety caused to him, his wife and his son. He states that his family’s ability to trust future customers has become fragile.
31The owner of Murray’s machines did not make a victim impact statement.
Assessment of gravity of offending
32Your crimes are objectively serious.
33Twice, you targeted two arcade machine suppliers and deceived them to obtain 17 gaming machines, which were valued at $240,000.
34Murray’s recovered their machines. However, three of Extreme’s machines were not recovered.
35There was a degree of planning to your crimes. To reduce the risk of detection, you used false identities to hire the machines, to rent properties for delivery of the machines, and to rent a truck to move them.
36Although you did the organising and made the arrangements to obtain the machines, messages in your phone indicate you were acting under the direction of “Gohan” who was financing the crimes. [3]
[3] See exhibit 24 from the Depositions (Exhibit C).
37While the value of the deceptions was high, you were a subordinate in the criminal scheme.
38Overall, I assess your offending to fall below mid-range for crimes of the type.
Criminal record
39You have admitted a criminal record.
40On 8 August 2005, in this court, you were convicted of unlawful assembly and sentenced to a two-year community-based order.
41I have read Judge Nixon’s reasons for sentence. [4]
[4] R v. Duong, Minh Duong; Lam, Hiep; Nguyen, Ben Thu Thanh; Nguyen, Dep; Nguyen, Hieu Huu; Nguyen, Phuoc Huy; Nguyen, Lanh Van; Nguyen, Trong Quyen; Nguyen, Nghia Trong; Nguyen, Veit Quoc; Duong, Lindon; Ziong, Zair; Tiet, Hong Ba; Tran, Dong; Zhang, Li Xian; Tran, John; Duong, Long Duc; Mai, Tuan; Duong, Minh Vu [2005] VCC 949.
42You were one of a large group, comprising two gangs of young men who had converged on Fitzroy Gardens on 28 February 2004 intending to fight. You were then only 17 years old.
43The two major protagonists, each armed with a samurai sword, started fighting. Shortly into the fight, one severed the hand of the other, and everyone ran off.
44Judge Nixon’s sentence you on the basis you had followed the others into the fight.[5]
[5] Ibid, at [154].
45I accept you had successfully rehabilitated yourself before you reoffended in 2023 and 2024.
Personal circumstances [6]
[6] Your personal circumstances are set out in the report of Aaron Cunningham dated 7 February 2025 (Exhibit 2) and the submissions filed on your behalf (Exhibit 1).
46You were born in October 1986. You are 38 years old.
47In the mid-80s, following the Civil War, your parents fled Vietnam as refugees. You were born in an Indonesian refugee camp. When you were only months old your parents managed to get on a boat to Australia. In Australia, you stayed in a refugee camp and, eventually your parents got Visas and settled in Melbourne.
48You went to local schools. after you completed Year 12, you enrolled in an engineering course at TAFE. After a year, you left and got work in fast food cafés, at call centres and at a bedding store.
49Your father and younger brother work together in a petfood factory.
50Your father feels guilty that you got yourself into trouble. [7] He and his wife worked hard for a better life for you brother and you. Five years ago, he saw you struggle with the separation from your fiancé, Ayaka. When police arrested you, you told him “everything”. According to your father you had surrounded yourself with bad people. Since, you have moved back home, shared the care of Ayaka’s two-year-old son [8] with her and maintained stable work. Your father believes you regret what you have done and have become a better person.
[7] Reference of Van Qua Nguyen (Exhibit 4)
[8] Whom you have adopted.
51Ayaka described you as “not the smartest” but you have a kind heart. According to her, you got into trouble gambling and then started using drugs. She wrote, following your arrest, you realised you needed to change “back to normal again”, you stopped taking drugs and became an active parent who spends a lot of time with your son. [9]
[9] Reference of Ayaka Izumikawa (Exhibit 7)
52Two friends, [10] who believe your offending is out of character, have seen you cut yourself off from former bad associates, return home to family and devote your time to your work and your son.
[10] References of Andrew Harland (Exhibit 5) and Sarinah Bardsley (Exhibit 6)
53You also have stable employment. For the last three months you have worked at a St Kilda café. You have a lengthy daily commute from St Albans. Your employer, who met you through a mutual friend, knows about your prosecution. She provided an impressive reference for you. [11] She wrote you have shown “great dedication and growth” during your time with her and are a “valued” staff member. [12]
[11] Reference of Lavina Chen (Exhibit 8)
[12] Ibid.
54You have borrowed money to repay “Extreme” for the arcade machines it lost.
55Your parents and a longtime friend supported you at court.
56Dr Aaron Cunningham, psychologist, assessed you on 7 February 2025. [13]
[13] Report of Aaron Cunningham dated 7 February 2025 (Exhibit 2).
57You told him you offended to repay drug debts. You expressed regret for your wrongdoing.
58You tested as a person of average intelligence.
59Although you were depressed and anxious when you separated from your son’s mother, and the uncertainty of the outcome of this proceeding has also made you anxious, in Dr Cunningham’s view, you showed no signs of mental illness.
60He concluded you are “an emotionally immature individual who made poor decisions during a difficult period”.[14] From a psychological perspective, he believes you would benefit from drug and alcohol counselling and maintaining your current stable lifestyle.
[14] Ibid.
Defence submissions
61Your counsel, Mr Barker, made constructive written [15] and oral submissions.
[15] Sentencing submissions (Exhibit 1).
62He acknowledged your offending is serious.
63In support of a submission I should impose a CCO, he relied on several mitigating factors, namely:
(a) your early guilty plea
(b) your remorse and restitution; and
(c) your good prospects of rehabilitation.
64Additionally, he provided me with a table of sentences if this court, [16] largely cases of theft from an employer, involving sums comparable to, and larger than, your deception, where a CCO was imposed. [17]
[16] Table of sentences (Exhibit 3).
[17] Because they involved offending of a different type they were of limited assistance. See R v Pham [2015] HCA 39, [26].
65Relying on the guideline judgement of Boulton & Ors v The Queen[18] (‘Boulton’), Mr Barker submitted a CCO could achieve sentencing objectives in your case, which otherwise might have warranted a term of imprisonment. [19]
[18] Boulton v The Queen [2014] 46 VR 308.
[19] ibid, [131].
Prosecution submissions
66Mr Pickering, who appeared for the Crown also made helpful submissions.
67He submitted, because of the substantial value of the property obtained, the level of sophistication and planning to its execution and the harm caused to the victims, your deceptions are objectively serious.
68He submitted there is insufficient material before the court to establish the motive for offending was to repay drug debts; or drug addiction was a substantial cause of your offending.
69And, accordingly, I should be guarded in my assessment of your prospects of rehabilitation.
70Mr Pickering reminded me of the Court of Appeal’s caution [20] that a CCO should not be seen as a ”’Get Out of Jail Free’ card in cases where a sentence of imprisonment is necessary.
[20] Hutchinson v the Queen [2015] VSCA 115, at [17].
71He also referred me to the appellate court’s further caveat that nothing said in Boulton “alters the long-standing principles for assessing the seriousness of individual offences and the weight to be given to particular sentencing considerations in relation to them”. [21]
[21] Stanimir Atanackovic v The Queen [2015] VSCA 136, at [159].
72Mr Pickering ultimately submitted, because of the objective gravity of your offending, [22] a term of imprisonment, not in combination with a CCO, is the appropriate sentence in your case.
[22] Christine Melnikas v The Queen [2016] VSCA 112, [62] and [63].
Consideration
73The maximum penalty for each deception offence is 10 years imprisonment.
74The maximum penalty for the possess precursor chemical is five years imprisonment.
75They are a guidepost to the seriousness of your crimes.
76Because of the substantial value of the property involved, the level of planning and targeting of two companies, and notwithstanding you were an underling, your deceptions were serious crimes.
77On the basis of your ex-fiancé’s letter, I accept it is likely your gambling and drug use led to you to criminal connections and to these crimes. And, while I also accept your motive was to repay drug debts, it is not an extenuating circumstance. Ordinarily, your deception offending would attract a sentence of imprisonment.
78The possession of the precursor chemicals is less serious. They were stored in a unit which you rented. There is no evidence they were yours. As I accept you were acting under the direction of someone else when you executed the deceptions, I accept you were likely holding the chemicals for someone else; in each case to shield them from detection.
79There are strong mitigating factors which operate to moderate the sentence and the type of sentence I will impose, namely:
(a) firstly, your early guilty plea. It has high utilitarian value, and indicates your willingness to facilitate the course of justice and accept responsibility for your actions;
(b) secondly, your remorse and restitution[23] which, itself, demonstrates your contrition and your desire to repair the harm you caused and ensures that you have not profited from your crimes;
(c) thirdly, you have no relevant criminal record;and
(d) fourthly, you have made impressive steps towards your rehabilitation. You appear to have severed contact with criminal associates, and stopped gambling and using drugs. And you have maintained stable work and focused on being a good parent to your young son, with the help of supportive family and friends.
[23] R v Starr [2002] VSCA 180, [26]; R v Hildebrandt [2014] VSC 321, [68].
80I assess your prospects of rehabilitation to be very good.
81Overall, I am satisfied a CCO can achieve all of the sentencing purposes, including just punishment.
82A Community Correction Order is a punitive sanction. There is a burden to complying with its conditions and the person serving the order is under threat of imprisonment for its contravention, together with resentencing for the original offending.[24]
[24] Boulton v The Queen (2014) 46 VR 308, [91] and Director of Public Prosecutions v Lombardo [2022] VSCA 204, [99].
83I have had you assessed for a Community Correction Order and you have been found suitable.
84You will be required to complete substantial unpaid community work as a punishment.
85You will also be required to engage in ongoing drug and alcohol counselling to promote your rehabilitation.
86And you will be subject to supervision to reduce the risk of you reoffending.
Sentence
87By the sentence I impose, I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation
88Considering the circumstances of your offending , your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the two charges of obtaining property by deception and the charge of possession of a precursor chemical you are convicted and sentenced to a community correction order.
89The duration of the order will be two years
90In addition to the core conditions, I impose the following special conditions
(a) 200 hours community work;
(b) Supervision;
(c) drug treatment and rehabilitation; and
(d) alcohol treatment and rehabilitation.
91While there is some artificiality in the process, I declare, but for your of plea of guilty, I would have imposed a total effective sentence of one year and nine months imprisonment and fixed a minimum non-parole period of one year.
92I order the forfeiture of a Google pixel mobile phone listed in the schedule to the draft order, filed with the court, pursuant to section 33 (1) of the Confiscation Act 1997 (Vic).
93I order disposal of the seven items, including the precursor chemicals, which police seized and are listed in the schedule to the draft order dated 7 February 2025, pursuant to section 78 (1) of the Confiscation Act 1997 (Vic).
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