Director of Public Prosecutions v Nguyen

[2020] VCC 288

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01999

DIRECTOR OF PUBLIC PROSECUTIONS

v

BINH NGUYEN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2020
DATE OF SENTENCE:	19 March 2020
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VCC 288

REASONS FOR SENTENCE
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Subject: Trafficking a drug of dependence – early guilty plea – relevant prior convictions – serving a sentence for similar offending - totality
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 18 months imprisonment – minimum non-parole period of 9 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. O'Toole	Office of Public Prosecutions
For the Accused	Ms A. Liang	Giorgianni & Liang Lawyers

HIS HONOUR:

1Binh Nguyen, you have pleaded guilty to one charge of trafficking in drugs of dependence, namely methamphetamine and heroin, on 18 February 2019.  You have also pleaded guilty to a related summary charge of dealing with property suspected of being proceeds of crime. 

2The circumstances of your offending are set out in the prosecution opening for plea.  They are agreed facts. 

3On 18 February 2019, police attended your home with a search warrant.  You answered the door to them.  Inside your flat they found four bags which contained 75.6 grams of heroin powder.  The pure weight of heroin was
13.06 grams.  They also found two bags which contained 15.6 grams of methylamphetamine mixture.  The pure weight of methylamphetamine was
12.11 grams. 

4A trafficable quantity of heroin is three grams of mixture.  A commercial quantity is 500 grams of mixture, or 250 grams of pure heroin.  A trafficable quantity of methylamphetamine is three grams of mixture.  A commercial quantity is
250 grams of mixture, or 50 grams of pure methylamphetamine.

5Police also found a bag containing a large number of plastic snap-lock bags in the flat and $250 in cash in your wallet. 

6Police arrested you and when you were interviewed, you told them the methylamphetamine was yours and you had bought it for around $1,500 for your personal use.  You said you did not really know about the heroin. 

7By your guilty plea, you admit you were in possession of both drugs to sell them and that conduct constitutes Charge 1, trafficking a drug of dependence. 

8Your possession of the $250 in cash is the conduct with constitutes the related summary charge of dealing with property suspected of being proceeds of crime. 

9You have admitted a lengthy criminal record of summary convictions for drug and dishonesty offences between 2004 and 2018. 

10Relevantly, on 6 January 2004 at Dandenong Magistrates' Court, you were convicted of trafficking heroin and sentenced to 60 days' imprisonment, which, but for nine days, was suspended for 12 months. 

11On 28 June 2015 at Dandenong Magistrates' Court, you were convicted of trafficking heroin and sentenced to 12 months' imprisonment, to be served by way of a combined custody and treatment order. 

12On 17 May 2018 at Dandenong Magistrates' Court, you were convicted of trafficking methylamphetamine, negligently dealing with proceeds of crime and possessing a prohibited weapon and sentenced to 18 months' imprisonment, to be served by way of a drug treatment order.  You were undergoing that order when you offended on 18 February 2019.

13I now turn to your personal circumstances. 

14You were born in November 1967 and are now aged 52 years.  Ms Liang, who appeared on your behalf, told me you were born in Vietnam.  Your father died before you were born and your mother raised you and your three older siblings on her own.  You went to school until Year 10.  In 1988 you fled Vietnam by boat.  You spent two years in a refugee camp in the Philippines and then sponsored by one of your brothers, you came to Australia.  You arrived in Brisbane, where you lived for two years and you then moved to Victoria.  Your mother and older sister have remained in Vietnam.  You have one older brother living in Melbourne and the other in Brisbane. 

15You met your wife in a refugee camp.  You were married for 25 years and have four children, aged 23, 25, 27 and 30. 

16In Australia you have worked on farms, in factories and doing car repairs.  You held your longest job between 1994 and 2004, when you worked at Bosch. 

17Around 2000, friends at nightclubs introduced you to drugs.  You used heroin for three years and then started using methylamphetamine, which led to your offending in 2004 and 2005. 

18For the next 12 years you led a law-abiding life, until 2017 when you relapsed into drug use and your marriage broke down.  Your wife and children rejected you.  You have not worked for several years. 

19In 2017 you were using drugs and, on 20 January 2017, you were released on a community corrections order for driving offences and possession of methylamphetamine.  You breached that order by re-offending in 2018. 

20Your performance on your drug treatment order, imposed in 2018, was poor. 
On 7 June 2018, 10 July 2018, 28 August 2018 and 9 January 2019, the order was varied for non-compliance and each time you were sentenced to seven days' imprisonment. 

21You committed the offences now before this court on 18 February 2019. 
You have been in custody since that date. 

22On 9 May 2019 your drug treatment order was cancelled and you were ordered to serve the unexpired portion of that order, that is, 370 days, in prison. 

23Ms Liang told me you have been incarcerated at Fulham Gaol, where you have engaged in the limited programs made available to you.  You are on a waiting list to undertake a drug and alcohol problem.  You have work in the prison horticulture. 

24Your family supported you while you were on the drug treatment order, but since you have been in prison, you have been too ashamed to ask them to visit you. 

25In written and oral submissions, Ms Liang submitted your drug trafficking was a lower end example of the type and your motivation was, in part, to obtain drugs to feed your own addiction. 

26Additionally, she relied on the following factors in mitigation of penalty:  Firstly, your early plea of guilty for its utilitarian benefit, your acceptance of responsibility for your actions and remorse.  Secondly, the delay in sentencing, which has denied you the opportunity for a high degree of concurrency of the sentence I impose, with the sentence you are currently serving.  And thirdly, the principle of totality to ensure the sentence I impose properly reflects the overall criminality of your offending behaviour in 2018 and 2019.

27She submitted I should impose upon you a term of imprisonment which does not require me to fix a minimum non-parole period.  In the alternative, she submitted I should have you assessed for a community corrections order to consider a combination sentence. 

28Mr O'Toole, who appeared for the prosecution, in written and oral submissions, accepted your guilty plea was made at the earliest opportunity and in addition to its utilitarian benefit, is evidence of remorse.  He also acknowledged offences of trafficking in the quantities of drugs which you had, are commonly dealt with in the Magistrates' Court. 

29He submitted any charge of trafficking in drugs is nonetheless inherently serious and general deterrence is an important sentencing consideration.  He also submitted, given your prior convictions for drug trafficking, your poor performance on your drug treatment order and that you offended whilst you were on that order, specific deterrence is also important.  For the same reasons, he submitted your prospects of rehabilitation are poor.  He submitted your offending warrants the imposition of a term of imprisonment, with a non-parole period fixed. 

30Any offence of drug trafficking is serious.  The illicit drug trade wreaks social havoc in our community.  Your offending warrants a term of imprisonment.  Quite properly Ms Liang did not argue otherwise. 

31I accept, firstly, your offending is limited to your possession of drugs in amounts much less than a commercial quantity, for sale on a single date, and is lower end. 

32Secondly, your guilty plea has high utilitarian benefit and is evidence of your acceptance of responsibility for your actions and remorse. 

33Thirdly, because you are currently serving a term of imprisonment for similar offending, delay is a mitigating factor and the totality principle has application to moderate your total effective sentence and non-parole period. 

34Fourthly, for the reasons the prosecution advanced, specific deterrence is an important sentencing consideration in your case. 

35Fifthly, given your history of non-compliance with previous combined custody and treatment order, a community corrections order and drug treatment order, you are unlikely to be suitable for another community corrections order. 

36Sixthly, your prospects of rehabilitation, which very much depend on your continued abstinence from drug use, will be best advanced by a period of supervision following your release from prison. 

37Mr O'Toole referred me to a sentence of Judge Morrish in the Director of Public Prosecutions v Van Nguyen you [2016] VCC 197. There the offender pleaded guilty to four charges of trafficking heroin and methylamphetamine. Her Honour imposed individual sentences ranging from two years to four years' imprisonment.

38On one occasion police found him in possession of 157 grams of heroin and 16.4 grams of methylamphetamine, with drug use paraphernalia and a pill press.  Five months, to the day, later, they found him in possession of
125.2 grams of heroin and 55 grams of methylamphetamine, together with drug trafficking paraphernalia, including snap-lock bags, scales, two steel powder presses, notebooks containing details of drug transactions, a number of mobile phones and $30,000 in cash.  I consider his offending was substantially more serious than yours. 

39As I guidepost, I have had regard to a number of sentences of this court, including the case of Van Nguyen, which ranged from community corrections orders, combination sentences and terms of imprisonment of four years or more, as well as the Sentencing Advisory Council sentencing snapshot from August 2018, which summarises sentencing in this court for trafficking in a drug of dependence and shows a median sentence of two years and sentences most commonly ranging between one and two years.

40Please stand, Mr Nguyen.

41By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or a similar kind. 

42I must also look to your rehabilitation.  In that regard, your ability to defeat your drug addiction is the key to your rehabilitation and I am hopeful with a period of enforced remission and, as you move into middle-age, some self-realisation on your part, that you will reform.      With that in mind, and taking into account the circumstances of your offending, all 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 Charge 1, trafficking drugs of dependence, you are convicted and sentenced to 18 months' imprisonment. 

43On the summary charge of dealing with property suspected of being proceeds of crime, you are sentenced to two months' imprisonment, which is to be served concurrently with the sentence I have imposed on Charge 1. 

44Your total effective sentence is 18 months' imprisonment. 

45I fix a minimum non-parole release period of nine months' imprisonment.

46I declare you have served 80 days' imprisonment by way of pre-sentence detention.

47I declare, but for your plea of guilty, I would have sentenced you to two years' imprisonment and fix a minimum non-parole period of 14 months.

48You may have a seat.

49COUNSEL:  As Your Honour pleases.

50HIS HONOUR:  I will make the procedural orders too.

51Pursuant to s.78(1) of the Confiscation Act, I make an order for disposal of the drugs and deal bags seized.

52Pursuant to s.33(1) of the Confiscation Act 1997, I make an order for forfeiture of the $250 in cash.

53The sentence of imprisonment that I have imposed well be served concurrently with the unexpired portion of the term that you are currently serving, so that in effect, you will be eligible for parole release in September of this year.  It will be a matter for the authorities to determine whether or not you will be released on parole at that time or at all.

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