Director of Public Prosecutions v Nguyen

[2020] VCC 259

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01778

DIRECTOR OF PUBLIC PROSECUTIONS

v

TU NGUYEN

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 March 2020
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VCC 259

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Offender	Mr B. Moore

HIS HONOUR:

1Tu Cong Nguyen, you have pleaded guilty to two charges of trafficking in a drug of dependence, namely heroin.

2On both 8 January 2019 and 6 March 2019, you sold a quantity of heroin to a covert Victoria Police operative. The offending concerned, on the first occasion, 56 grams of heroin consisting of 28.1 grams of 80 per cent purity and 27.9 grams of 75 per cent purity. And on the second occasion, 54.9 grams of heroin, 28.2 at 78 per cent purity and 26.7 grams at 81 per cent purity. It is by no means an insignificant quantity on either occasion.

3The maximum penalty for each of those offences, contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981, is 15 years’ imprisonment.

4By way of background, you are currently aged 29.  You were born in Vietnam.  You came to Australia about 10 years ago.  Initially you came to study for a Diploma in Building and Construction at Holmesglen Tafe.  You failed to complete that course, largely because you married and soon after had a child.  You needed to work in order to support your family.  Your child is now aged six.

5You separated from your wife in about December 2018, and soon after moved in with a friend, Dung Nguyen.  You lived at his home for some time prior to your offending.  I consider that, given you had lived in the home of Dung Nguyen for some period before these offences were committed, you would have been well-aware of Dung Nguyen’s business of trading in illicit drugs.

6I was informed by your counsel that you were living rent free with Dung Nguyen and felt guilty not paying rent, and initially thought you were doing him a favour by making deliveries for him.  I consider that you well knew that the deliveries you were making contained heroin.

7I was informed by your counsel that you stood to make no money from making those deliveries.  I think this is highly unlikely and I do not accept that.

8The offending for which I am to sentence you occurred on 8 January and
6 March last year.  You have achieved steady, full-time employment for the past seven and a half years with the same employer.  Such steady employment augurs well for your future rehabilitation.  You currently see your child each weekend whilst your former partner works.  You have no prior convictions of any sort and there is no suggestion that you have been in any trouble with the police prior to this offending, or since.

9To your credit, you pleaded guilty at the earliest opportunity.  You have been released on bail for the past 10 months and have adhered to all bail conditions since that time.

10A report from Penelope Karvelis, a psychologist, dated 27 February 2020, was tendered on your behalf.  In that report Ms Karvelis describes that you had, in many respects, an unhappy childhood due to your father’s gambling and alcoholism.  You were subjected to a number of violent threats by persons to whom your father was indebted.

11On a number of occasions you ran away from home, and during these periods you were, it seems, raised by a paternal uncle and grandfather whilst your mother worked on a full-time basis and your father gambled daily.  Your mother remarried some 10 years ago.

12Although I accept that you have been diagnosed with some marks on your lungs, relating to your employment as a stonemason, your counsel did not suggest that this was relevant to any sentence that I am obliged to impose upon you.

13Ms Karvelis has accepted that you were severely depressed following the breakup of your marriage - withdrawn, feeling helpless and hopeless.  In that time Dung Nguyen and his wife were kind to you.  Meals were cooked for you.  Initially small requests were made to you for some assistance, including collecting shopping products from a market.  However, about two weeks after having moved in with Dung Nguyen he became increasingly angry and aggressive and you became progressively more scared of his instability.  You felt trapped in this predicament according to Ms Karvelis.

14Since separation your relationship with your ex-wife has been challenging.  You consider, it seems, that her demands are unreasonable.  Ms Karvelis states that you told her that you had been cooperative, open, honest and transparent with the police during the interview process.  Having read your record of interview with police I do not agree with that description.  I accept that you co-operated with police to an extent, but not greatly.

15Your counsel submitted that you had also provided some assistance to police in relation to unrelated matters.  The prosecution sought instructions from the informant in relation to this and I was advised that although you did provide some information to police, police were fully aware of it before that advice was given.  Nevertheless, I take such cooperation into account when sentencing you.

16Ms Karvelis considered that you were suffering from a major depressive disorder, recurrent and severe, together with a generalised anxiety disorder.  She considered that you had made some significant progress in addressing your psychological symptoms, gaining positive insights into your emotions and behaviours, and considered that you had acknowledged that you had derived benefits through psychological treatment and motivation.  She has been treating you since about August 2019.  She considers that you have been committed to addressing your symptoms and gaining control over the direction of your life.  She did not consider that you were at risk of reoffending.  She considered that if you were to receive a custodial sentence you would be at significant risk of experiencing a deterioration in your mental state and that it would be preferable for you to be actively monitored by a mental health professional to ensure that you received appropriate treatment.  She acknowledged that virtually all prisoners would experience some level of depressive symptomology.  She considered that your recurrent episodes of depressive disorder puts you at a considerably greater risk of developing more extreme symptoms in the course of potential incarceration.

17In sentencing you I take into account the purposes for which I am committed to sentence you, set out in s.5 of the Sentencing Act of 1991, and the various matters of which I am required to take account, set out later in that same section.  I consider that the crimes you committed were serious ones.  On any view heroin is a dangerous drug which has ruined the lives of many people.  Your trafficking of heroin exposed others to substantial risks associated with the use of that substance.  In all the circumstances I do not consider that a non-custodial sentence would adequately reflect the seriousness of your offending.  I do, however, consider that your prospects for rehabilitation are probably good.  It is to be hoped that you will continue with your counselling with Ms Karvelis, or a similarly qualified person for such period, and with such frequency, as is recommended.

18I consider that the sentence that I impose should be one that is severe enough to deter you from offending again, and to deter others in the community from offending in a similar manner to you.

19I am in possession of a report from Corrections Victoria, dated 11 March 2020, indicating that you have been assessed as being suitable for a community correction order pursuant to Part 3A of the Sentencing Act of 1991.  In that report Corrections Victoria suggest that the appropriate conditions for you would be unpaid community work and the non-association clause that I had in mind in relation to Dung Nguyen.  However, I had originally suggested that you should be subject to a condition relating to rehabilitation in connection with your mental health, noting that Ms Karvelis had stated that it would be preferable if you were actively monitored by a mental health professional to ensure that you received appropriate treatment.  Whether this would happen in prison during your term is debatable, and probably doubtful.  Nevertheless, it was not suggested that I make such a rehabilitation in relation to your mental health a term, and I will simply repeat what I said before, and that is that it is to be hoped that you will continue with your counselling - with either Ms Karvelis or another suitably qualified person – on your release from prison.

20Now, as I said earlier, my intention is to sentence you to imprisonment for nine months and to impose upon you a community correction order of two years duration to commence upon your release from prison - that is, a combined order of prison and a community correction order - however, I would only be permitted to make such an order, regarding a community correction order, if you consented to it.  Before I ask you whether you do consent to it I should tell you what conditions I intend to attach to the community correction order.

21Firstly, there are mandatory conditions attached to any community correction order, and I will just go through those briefly with you.  Firstly, during the two-year period of the order you must not commit – whether in Victoria or outside Victoria – an offence punishable by imprisonment.  Further, you must comply with any obligation or requirement prescribed by regulations.  During the period of the order you must report to and receive visits from Corrections Victoria.  You must report to the Community Correction Centre at 46 Walker Street Dandenong within two clear working days after the order comes into force.  The order will come into force upon your release from prison in approximately nine months’ time.  Within two clear working days of that release you must report to Community Corrections at that address - you will be given a piece of paper with the address written on it shortly.  Further, you must notify Corrections Victoria of any change of your address or employment within two clear working days after that change.  Importantly, you must not leave Victoria except with the permission – either generally or in relation to a particular case – of Corrections Victoria, and you must comply with any direction given by Corrections Victoria necessary to ensure that you comply with the community corrections order.

22In addition to those mandatory orders I intend to impose a further condition that during the course of the two-year period of the community correction order you perform 200 hours of unpaid community work pursuant to s.48C of the Sentencing Act.  Secondly, pursuant to s.48F of the Act, during the period of the community correction order you are not to contact or associate with Dung Nguyen.  If you breach any of those conditions you have breached the community correction order - which is, in itself, an offence carrying a maximum penalty of three months’ imprisonment - but what is probably more important; if you breach the order then you will come back before this court and one of the things open to me to do is to re-sentence you on these two charges of trafficking heroin.  You might think it is unlikely, if you are re-sentenced, that you will be given another community correction order.  You might think it is far more likely that you will be given a longer prison sentence.

23Now, I will ask you whether you do consent to the making of a community correction order in these circumstances and I will allow you to – you might approach the - just approach the dock and get instructions, if you would,
Mr Moore.  Yes.  Do you consent to those orders, Mr Nguyen?

24OFFENDER:  Yes, I do consent.

25HIS HONOUR:  Thank you.  On Charge 1; trafficking in a drug of dependence, namely heroin, on 8 January 2019, you are sentenced to imprisonment for a term of nine months and you are sentenced to a community correction order of two years with the conditions that I have already outlined to you.  Such a community correction order is to commence on your release from prison.

26On Charge 2; trafficking in a drug of dependence, namely heroin, on 6 March 2019, you are sentenced to imprisonment for a period of nine months, and on release from prison you are sentenced to a community correction order of two years with the conditions that I have already outlined to you.

27I direct that the sentence in relation to Charge 2 is to be served concurrently with that imposed in respect of Charge 1.

28Pursuant to s.6AAA of the Sentencing Act of 1991 I declare that had you not pleaded guilty to these charges I would have sentenced you to a total effective term of imprisonment of two years with a non-parole period of 18 months.

29MR MOORE:  As Your Honour pleases.

30HIS HONOUR:  Further, I shall make the disposal order as sought by the prosecution in relation to your black Nokia mobile phone used in connection with these offences. Your counsel advised me at your plea hearing that you consented to such an order.

31Now, there is a document that you are required to sign in respect of the community correction order.  I will hand that to your counsel and, between he and the interpreter, if you could explain it to him and ask him to sign it.

32MR MOORE:  Your Honour, signed by my client now.

33HIS HONOUR:  Thank you.  Might I be impertinent enough to ask if either of the people sitting in court are Dung Nguyen?

34MR MOORE:  No, Your Honour.

35HIS HONOUR:  They’re not?

36MR MOORE:  They’re certainly not.

37HIS HONOUR:  Good.

38MR MOORE:  They’re good people, Your Honour.

39HIS HONOUR:  Well, I’m pleased to hear that.

40MR MOORE:  Never been in trouble before.

41HIS HONOUR:  Just stand up for a moment, Mr Nguyen, please.  I just want to say this to you; that there are some people in our community who might think that the sentence that I have just handed down is a very lenient one indeed.  Trafficking in heroin is a serious offence, but the matters that I have considered important in arriving at that sentence; firstly, your relatively young age.  Secondly, the fact that you have no prior convictions at all, and thirdly, that you appear to have attempted to sort yourself out by attending on Ms Karvelis since August of last year.  They are three factors which I thought were important.

42If you were to reoffend in a similar, or other manner, you would not expect such a lenient sentence ever again.  You understand?  Yes, thank you. Yes, Mr Nguyen can be taken downstairs.

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