Director of Public Prosecutions v Nguyen
[2019] VCC 2256
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-18-01073
CR-18-00923
Indictment No. C1711393
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HA HUU NGUYEN and OANH NGUYEN |
---
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 to 20 July 2018, 16 December 2019 | |
DATE OF SENTENCE: | 19 December 2019 | |
CASE MAY BE CITED AS: | DPP v Nguyen & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2256 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – Trafficking in a drug of dependence - Trafficking in a drug of dependence in not less than a commercial quantity – Negligently dealing with proceeds of crime – Early plea of guilty – Offenders are husband and wife – Wife played a minor role – Wife knowingly assisted husband to commit the offences – Wife acted as husband’s interpreter – Offending amounted to 54.4 kilograms of cannabis – Youthful offenders – Good prospects of rehabilitation – Husband high moral culpability
Legislation Cited: Sentencing Act 1991 s5(4)
Cases Cited:Nguyen v The Queen (2016) 311 FLR 289 – Adams v The Queen (2008) 234 CLR 143 - Markovic v R – Pantelic v R [2010] VSCA 105 – R v Bailey (1988) 35 A Crim R 458 – Barbaro v The Queen (2012) 226 A Crim R 354 – R v Merrett, Piggott and Ferrari (2007) 14 VR 392 - DPP v Dalgliesh (a Pseudonym) (2017) 262 CLR 428 – Nguyen v The Queen (2016) 311 FLR 289
Sentence: Husband – Total effective sentence of 4 years and 11 months imprisonment – Wife – 50 hours of unpaid community work over 6 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P J Pickering | Ms A Hogan, Acting Solicitor for Public Prosecutions |
For Ha Huu Nguyen For Oanh Nguyen | Mr J Anderson Ms C Dwyer | Stephen Andrianakis & Associates Milides Lawyers |
HIS HONOUR:
1 Ha Huu Nguyen, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence in not less than a commercial quantity (Charge 5 on the joint indictment) and one charge of negligently dealing with proceeds of crime (Charge 6 on the joint indictment). Oanh Nguyen, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence (Charge 12 on the joint indictment).
2 The maximum penalty for trafficking in a drug of dependence in not less than a commercial quantity is 25 years’ imprisonment, the maximum penalty for negligently dealing with proceeds of crime is 5 years’ imprisonment and the maximum penalty for trafficking in a drug of dependence in the circumstances of this case is 15 years’ imprisonment.
3 The prosecution filed a summary of prosecution opening dated 12 July 2018, which I have been told by both your counsel I can treat as a statement of agreed facts.[1]
[1] Exhibit P1.
The Facts
4 In March 2017 police commenced ‘Operation Tropics’ which targeted the cannabis trafficking activities of Nejat Sazimanoski. This operation was concerned with his cannabis trafficking operations, his suppliers, distributors and customers. Police used tracking devices and surveillance techniques to track those involved in the distribution and sale of cannabis to and from Sazimanoski.
5 You Ha Nguyen and you Oanh Nguyen are husband and wife and, at the relevant time, you resided at 6 Lansdowne Road, Cairnlea with your co-accuse, Thong Van Tran. You Ha Nguyen supplied cannabis to Sazimanoski for on-sale by him in return for payment, while you Oanh Nguyen acted as your husband’s interpreter during the transactions in which you were involved.
6 Sazimanoski and his wife, Gezime Sazimanoska, on-sold the cannabis they bought from you Ha Nguyen to Frank Rocky Margariti, Stuart Thomas Wicks and John Francis Taouk, who further on-sold the cannabis to other buyers further down the distribution chain. Tuan Le and Tran were also caught up in the operation.
7 Police telephone intercepts and physical surveillance showed the extent of the involvement of you both in the trafficking of cannabis during the charged period —in your case Ha Nguyen, between 4 May 2017 and 1 August 2017, a period of nearly three months — and in your case Oanh Nguyen, between 20 May 2017 and 1 August 2017, a period of some two and a half months. This involvement is detailed in Schedule A to the summary of prosecution opening as follows:
(a) On 6 May 2017 you Ha Nguyen offered to sell cannabis to Sazimanoski at $1900 per pound.
(b) On 20 May 2017 you were both involved in multiple conversations with Sazimanoski regarding the supply of cannabis. There was discussion regarding the cannabis being dry, good quality and with no stem.
(c) On 26 May 2017 you Ha Nguyen asked Sazimanoski if he wanted any more cannabis. Sazimanoski said he did not need any more at that time as he had enough and ‘everyone is full’.
(d) On 28 May 2017 you Ha Nguyen offered to sell 50 pounds of cannabis to Sazimanoski at $2,000 per pound. Sazimanoski wanted to view it first and the provision of a sample was arranged for 5.30 pm that day.
(e) The next day you Ha Nguyen told Sazimanoski the cannabis delivered the previous day was too wet and not ‘finished’ and you arranged to meet the following day.
(f) On 14 June 2017 Sazimanoski telephoned you Ha Nguyen and asked if you had any cannabis. You said you had access to 100 pounds. Sazimanoski said he did not want that much. You both discussed prices. Sazimanoski wanted to pay $1,800 per pound, whereas you Ha Nguyen wanted $2,050 per pound. You were unable to agree on a price.
(g) On 20 June 2017 Sazimanoski ordered 20 pounds of cannabis from you Ha Nguyen for the delivery the following day.
(h) The next day you Ha Nguyen told Sazimanoski the cannabis was still wet and it would be dropped off the following day.
(i) On 22 June 2017 you Ha Nguyen telephoned Sazimanoski and told him the delivery would be at 3 pm.
(j) On 24 June 2017 you Oanh Nguyen telephoned Sazimanoski on your husband’s behalf and you both agreed for 30 pounds to be delivered on 26 June.
(k) On 26 June 2017 Sazimanoski had a number of telephone conversations with you Ha Nguyen and you Oanh Nguyen regarding the delivery the following morning. You arranged for delivery at 7 am. Later that day you Ha Nguyen delivered 30 pounds of cannabis to Sazimanoski.
(m) On 4 July 2017 Sazimanoski telephoned you Ha Nguyen and asked for a few pounds straight away. He asked how many you could get for tomorrow. Sazimanoski wanted 30 pounds. You both confirmed 30 pounds and agreed for you Ha Nguyen to deliver it to Sazimanoski on 6 July.
(n) On 7 July 2017 you Ha Nguyen telephoned Sazimanoski and asked if he is still taking cannabis. Sazimanoski said ‘No, No, have to be a good boy for a few weeks’. You Ha Nguyen confirmed you had cannabis in stock and you asked Sazimanoski to telephone you when he wanted more.
(o) On 9 July 2017 you Ha Nguyen confirmed with Sazimanoski a delivery of 40 pounds of cannabis at $2,200 per pound, a total of $88,000. You arrived at the Wollert property carrying two large bags containing 40 pounds of cannabis. You Oanh Nguyen were present.
(p) On 21 July 2017 Sazimanoski telephoned you Ha Nguyen and asked for 30 to 40 pounds of cannabis. You agreed on a price of $2,000 per pound.
(q) On 31 July 2017 Sazimanoski telephoned you Ha Nguyen and you both agreed that 30 pounds of cannabis would be delivered the following day.
(r) On 1 August 2017 30 pounds of cannabis was delivered by you Ha Nguyen to Sazimanoski at the Wollert property.
8 On 1 August 2017 police arrested you Ha Nguyen in Craigieburn Road East, Wollert. You were the front seat passenger in a car driven by your co-accused Tran. Sazimanoski had just purchased 30 pounds of cannabis from you at his daughter’s property in Wollert. This transaction was monitored by police, who intercepted the vehicle you were in as you drove away from the property. Police seized $60,000 in cash they located in the car. This was the proceeds of the sale of the cannabis purchased by Sazimanoski from you Ha Nguyen. This forms part of the negligently dealing with proceeds of crime charge (Charge 6).
9 That same day police searched the home in Cairnlea you Ha Nguyen shared with you Oanh Nguyen and Tran. They located 70.81 kilograms of cannabis together with documents related to growing, distribution, sales, profits and expenditure involved in trafficking cannabis. The 70.81 kgs of cannabis does not form part of the possession for sale of cannabis relied upon by the Crown in support of Charge 5. Tran has pleaded guilty and been sentenced by me in relation to his trafficking in that cannabis.
10 At the Cairnlea address police also located $15,360 in cash. This amount forms the balance of the negligently dealing with proceeds of crime charge (Charge 6) in relation to you Ha Nguyen.
11 It is alleged by the prosecution that you Ha Nguyen trafficked a total of 120 pounds of cannabis during the charged period.
12 You Ha Nguyen were interviewed by police in a tape-recorded record of interview. You made no comment in relation to the alleged offending, as was your right, save for admitting you were present in the vehicle intercepted by police at the time of your arrest.
13 You Oanh Nguyen were arrested by appointment at the Melbourne West police station on 25 August 2017. You were interviewed by police in a tape-recorded record of interview and made no comment in relation to the alleged offending, as was your right.
14 The Crown defined your role, Oanh Nguyen, as being a knowing and willing participant in some of your husband’s criminal drug transactions by acting as his interpreter.
Offence Seriousness
15 Trafficking in a commercial quantity of a drug of dependence is a serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you Ha Nguyen have committed in Charge 5. Moreover, recklessly dealing with the proceeds of crime (Charge 6) is a serious enough criminal offence carrying, as it does, a maximum penalty of five years’ imprisonment.
16 So far as you are concerned Oanh Nguyen, trafficking in a drug of dependence is also a serious criminal offence as indicated by the maximum penalty of 15 years’ imprisonment. This shows how seriously the community, through the Parliament, views the conduct you have committed in Charge 12.
17 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking of cannabis by modern methods.[2] The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[3]
[2] Nguyen v The Queen (2016) 311 FLR 289, 331 [142] (Redlich JA, Tate and Whelan JJA agreeing) (‘Nguyen’).
[3] See Nguyen 326 [123].
18 While the sentencing regime for trafficking offences is quantity-based,[4] the amount you each trafficked is not determinative of my assessment of the objective gravity of your offences. Nonetheless, the weight of drug you each actually trafficked remains a relevant factor in assessing the objective gravity of your offending conduct, as too is the role you each played in the overall drug transactions uncovered during ‘Operation Tropics’.
[4] Adams v The Queen (2008) 234 CLR 143.
19 By selling a commercial quantity of cannabis you Ha Nguyen were knowingly part of the conduit between the grower of the cannabis and the final buyer on the street. You Oanh Nguyen knowingly assisted your husband to conduct a number of relevant drug transactions by acting as his interpreter.
20 Ha Nguyen, so far as your motivation for offending is concerned, I was told by your counsel that having grown up in relatively impoverished circumstances, you came to Australia in the hope of bettering yours and your family’s financial circumstances. You then became motivated to earn money to support your family in Australia and your family in Vietnam. This motivation was heightened by the knowledge that both your parents were suffering serious illnesses.[5]
[5] Discussed below at [39]–[40].
21 You instructed your counsel that your role in the offending was originally as a delivery driver. During the relevant period of offending, you liaised between the grower of the cannabis and Sazimanoski, by making deliveries of cannabis. You instruct your counsel that you were paid between $500 and $1,000 per delivery, and you estimate your total earnings to be approximately $5,000.
22 I do not accept this is an accurate account of your involvement in the trafficking operation. It may well be the case you acted as the intermediary between the cannabis grower and Sazimanoski, but, given the agreed facts, you were much more than a mere delivery driver. Your role was more that of an active facilitator who discussed prices, availability, quantities and the quality of the cannabis being offered for sale by the grower.
23 Nonetheless, I do accept you were not receiving a percentage of the proceeds of sale. Rather, you received a set amount for your role in facilitating the transactions in which you were involved. Moreover, whilst you were committing these offences for financial gain, I accept that you were not living an extravagant or wealthy lifestyle.
24 Your counsel noted that your offending occurred over a 3 month period and amounted to 120 pounds or 54.4 kilograms of cannabis. This is equivalent to just over twice the commercial quantity threshold.
25 Ha Nguyen, I find your trafficking offence falls in the mid-range of seriousness of offences of this kind. It follows that the warning given by the Victorian Court of Appeal in Nguyen v The Queen[6] that in future sentencing courts should, by increments, increase the sentences for offences against s 72A of the Drugs, Poisons and Controlled Substances Act in the mid-range of seriousness, applies to you, albeit yours is an offence against s71AA of the Act. For the purposes of the application of the principles espoused in Nguyen, I consider it is artificial to draw any distinction between a mid-range commercial cultivator and offending committed by a mid-range commercial trafficker, who provides at least part of the conduit between the cultivator and the ultimate end user.
[6] Nguyen 296 [4 iv], (Redlich JA), 358–9 [245], 365–6 [272] (Whelan JA).
26 Accordingly, on Charge 5 I sentence you on the basis that yours is mid-range offending and that the principles declared by the Court of Appeal in Nguyen apply in sentencing you. Overall, I assess your moral culpability as being relatively high when compared with others involved in ‘Operation Tropics’. Your counsel accepted your trafficking offence is a ‘serious offence’.
27 So far as the proceeds of crime charge (Charge 6) is concerned, Ha Nguyen, this money was seized on 1 August 2017 and will be the subject of a Forfeiture Order under section 34(1) of the Confiscation Act 1997.
28 So far as you are concerned Oanh Nguyen, I accept that yours was a relatively minor role in the overall offending conduct caught by this operation. The Crown accepts your role in the trafficking offence (Charge 12) is constituted by interpreting for your husband on a number of occasions regarding the supply of cannabis by him to Sazimanoski. I understand it is also a matter of agreement you did not know the quantity being trafficked by your husband and you were unaware of any payments your husband received from the trafficking activities in which you assisted him.
29 Accordingly, I accept that your trafficking offence falls at the lower end of the range of offending of this type in that it was relatively spontaneous, not for profit or personal gain, but to assist your husband. It involved only a small number of occasions when you interpreted for him over a 10 week period, and that you had no knowledge of the quantity of cannabis being trafficked by your husband during that time.
30 Nonetheless you did knowingly assist your husband in committing his offences, albeit you are not to be sentenced as being complicit in your husband’s offending. Of course, you also fall to be sentenced for the less serious offence of trafficking simpliciter.
Personal Circumstances — Ha Nguyen
31 Turning first to your personal circumstances Ha Nguyen. You come from a very humble background. You were raised in Hi Dinh, a relatively small town located in the central north coastal region of Vietnam.
32 Your parents were rice farmers who later in life were able to improve their situation by running a small retail business selling food and household items, such as bedding.
33 You completed the equivalent of Year 12 in Vietnam at the local public school. You were essentially raised as an only child, your parents having a further child, a brother now aged 9, when you were in your late teens. He lives with your parents in Vietnam.
34 Upon leaving school, you commenced employment in the family business and undertook English studies before travelling to Australia.
35 You arrived in Australia in 2013 on a student visa, intending to study English at the Melbourne Institute of Technology. You did attend that institute for a short time, but you did not complete the first year of study. As a consequence, your English skills remain rudimentary.
36 It appears that your family were struggling to provide the resources necessary for you to continue your studies in Australia. As a result, you found it necessary to commence paid employment. You discontinued your studies at the end of 2013.
37 You have engaged in various jobs during the time you have been in Australia, originally working as a fruit picker on Victorian farms between 2013 and 2014. You then started working as a handyman, obtaining work through advertisements in Vietnamese newspapers. At the time of your arrest you were engaged primarily as a handyman.
38 You met your co-accused, Oanh Nguyen, in 2014 and you married in 2016. You have one child, Daniel, who was born in July 2016. Ms Nguyen has been visiting you twice weekly whilst you have been in custody on remand for these offences, bringing Daniel with her.
39 Both your parents have been diagnosed with significant health issues. Your father has been diagnosed with a respiratory illness and liver failure, while your mother has been diagnosed with lung cancer.
40 I have had regard to the letter prepared by your father, Nguyen Kien Kuong, dated 1 July 2018[7] and to the Certificate of Hospitalisation, dated 4 March 2018, in respect of your father, who, at that time, was suffering ‘acute pneumonia/liver failure’,[8] and the Certificate of Hospitalisation in respect of your mother dated 9 March 2018, indicating that she has been diagnosed with ‘lung cancer (Stage 1)’. I accept that the separation from your family in Vietnam, particularly in these desperate circumstances, is weighing more heavily on you and making your imprisonment more burdensome than it might otherwise be.[9]
[7] Exhibit HN2.
[8] Exhibit HN3.
[9] Markovic v R; Pantelic v R [2010] VSCA 105 at [20]; R v Bailey (1988) 35 A Crim R 458 at [462] (Lee J).
41 I note that you have no history of using illicit drugs. Whilst you do consume alcohol socially, I was told by your counsel that you suffer no problems with alcohol and neither drugs nor alcohol were related to your offending.
42 I have had regard to the report Ms Carla Lechner, clinical psychologist, dated 26 June 2018.[10] I note her opinion that you do not present with symptoms of an underlying psychological or psychiatric disorder and that you do not suffer from any substance abuse problems. Ms Lechner assessed your level of intellectual functioning as being ‘average/low average’ intelligence.
[10] Exhibit HN4.
43 Ms Lechner administered the Beck Depression Inventory and your score on that inventory fell in the mild range, being consistent with your presentation at interview and your self-report of suffering ‘sadness’.
44 Whilst I accept the Crown’s submission that you were not being entirely frank with Ms Lechner during her assessment of you regarding the degree of your involvement in this drug-trafficking syndicate, and you also sought to minimise your level of culpability, I do not believe this has significantly affected the veracity of her opinion.
45 Ms Lechner concluded that you do not present with any symptoms of an underlying psychological or psychiatric disorder, or substance abuse problem and that no treatment was indicated. Accordingly, your counsel conceded no Verdins’ principles are engaged in your case.
Personal Circumstances — Oanh Nguyen
46 Oanh Nguyen, so far as your personal circumstances are concerned, you are currently 26 years of age and you were aged 23 at the time of committing this offence. Accordingly, like your husband, you are to be effectively dealt with as a youthful offender.
47 You were born in Vietnam and you remain a citizen of that country. You are the middle child in a sibship of three, having two brothers residing with your father in Vietnam.
48 Your parents had a somewhat conflicted relationship involving, on occasions, physical violence perpetrated by your father towards your mother. Understandably, you found this to be very distressing.
49 Your parents separated when you were 15 years old and your mother left the family home to work overseas for several years. She currently resides in Angola. You have had sporadic contact with her over the ensuing years. Nonetheless, you retain a positive relationship with your family and continue to maintain contact with both your parents and siblings.
50 You lived with your father in Vietnam until you were 18 years old and completed your schooling prior to moving to Hanoi, where you enrolled in a double degree in tourism and commerce at the University of Hanoi, which you completed. You worked part-time in a café to financially support yourself during your studies.
51 You came to Australia on a student visa in 2014 to study leadership and management at Cambridge International College, after initially studying at Victoria University upon your arrival in the country.[11]
[11] See Exhibit ON3.
52 Since the plea hearing you have completed your studies and have been awarded a Diploma of Leadership and Management on 27 July 2018 by the Cambridge International College here in Melbourne.[12]
[12] See Exhibit ON6.
53 Since your student visa has expired you have remained in Australia on a bridging visa, which was granted on 28 March 2019.[13]
[13] See Exhibit ON7.
54 You are married to your co-offender, Ha Huu Nguyen, whom you met in 2015 and married in 2016. You have a child with him, Daniel, who is now aged three years. You described your relationship with your husband in positive terms to Dr Barth, but noted you struggled financially and this often contributed to verbal conflict.
55 While your husband has been your primary source of emotional support, you have had support from others in the Vietnamese community whilst you have been living in Australia. I accept that separation from your husband whilst he is remanded in custody has been difficult for you, and I take that matter into account in your favour.
56 You are relatively socially isolated, not having any family living in Australia other than your husband. You are emotionally supported to some extent by your parents-in-law, who reside in Vietnam and, as I earlier observed, have serious health conditions.
57 Because of your sense of shame at committing the present offence, you have not revealed your offending to your mother or to your father and brothers.
58 At the time of committing the present offence you were not working but staying at home looking after your son. However, you have since obtained employment in a nail salon in Torquay. Initially, upon your arrival in Australia you also worked in nail salons in order to repay the debt you incurred to your family in Vietnam for the expenses of you coming to Australia. I was told it took you three years to repay this debt.
59 You currently reside in a bungalow in the rear of a property in St Albans occupied by a Vietnamese family. You share this bungalow with a friend, who was supporting you in court at the further plea hearing held earlier this week.
60 You pay $400 in rent and you earn up to $130 per day, an average of $500 per week, working in the nail salon. Your son is in childcare when you are working and this costs you $50 per day. After allowance for rent and childcare costs, you have about $600 per month for the rest of your expenses, including utilities, food and clothing. You are unable to pay the cost of $126 per day for your son to attend three-year-old kinder.
61 You have found being charged with the present offence, and the circumstances of your husband remaining in custody, very difficult. Nonetheless, you have provided for your son and obtained employment to support him and yourself. You have been punctilious in your bail reporting conditions. You have continued to report once a week on bail for the whole of the period you have been on bail.
62 I was told that it is your current plan to return to Vietnam as soon as possible to rejoin your family and to provide for your son’s schooling. The school year in Vietnam commences in August, and it is hoped that you may be able to effect a move back to Vietnam in time for your son to commence his schooling in that country.
63 I have had regard to the psychological assessment of you conducted by Dr Mathew Barth dated 4 July 2018.[14] Dr Barth reported that you described an intense emotional reaction in the aftermath of being charged with the current offence and that you experienced intense anxiety and ‘panic’. At the time of his assessment, you continued to experience feelings of anxiety, worry and ‘sadness’ as a consequence of these legal proceedings. You have been prescribed antidepressant medication by your general practitioner. However, you ceased taking this after a short period because of its side effects. You have never consumed alcohol or used any illicit substances.
[14] Exhibit ON2.
64 Dr Barth diagnosed you as meeting the DSM-V criteria for a diagnosis of an ‘adjustment disorder – with mixed anxiety and depressed mood’. Otherwise, your cognitive functioning is normal and you do not meet the diagnostic criteria for any mental illness or personality disorder. However, I do sentence you on the basis that your current depressive and anxiety-related symptoms would make the service of a sentence of imprisonment more onerous on you, and that a sentence of imprisonment would have a deleterious effect on your mental health. Consequently, Verdins principle 5 and, to a much lesser extent, principle 6 are engaged in your case. Your counsel accepted Verdins’ principles are not otherwise engaged.
Mitigating circumstances — Ha Nguyen
65 Turning to mitigating circumstances present in your case Ha Nguyen, I accept you have pleaded guilty at a reasonably early stage in the proceedings. I accept that forensically it was appropriate for you to clarify the Crown’s case with respect to the degree of your involvement in this syndicate and the number of transactions you were personally involved in and the amount of cannabis involved in those transactions.
66 Clearly your plea of guilty is significant in that it has a utilitarian benefit, particularly given the likely length of any trial. Moreover, it demonstrates an acceptance of responsibility on your part and a willingness to facilitate the course of justice. However, on the material before me I am unable to make a finding in your favour that you demonstrate true contrition and remorse over and above what is evident from the plea itself.[15]
[15] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] (Maxwell P, Harper JA and T Forrest AJA).
67 I accept that you are regretful for your actions and the effect that these have had on you and your family, both here in Australia and back in Vietnam. Nonetheless, as the Courts have often observed, there is a significant difference between regret and true contrition and remorse.
68 At the time of committing these offences you were aged 23 to 24 and you are presently aged 26. Whilst you are no longer technically a youthful offender, that is only by reason of the delay that has occurred in sentencing you. I accept your counsel’s submission that whilst your offence is serious, it is not so serious as to displace the application of sentencing principles generally applying to youthful offenders.
69 Moreover, you have no prior criminal history and therefore you fall to be sentenced as a youthful first offender. I was told by your counsel that you have no subsequent offences and no matters are outstanding or pending.
70 By reason of your relative youthfulness, rehabilitation is a significant sentencing consideration in your case. I accept that, given your lack of criminal history and the protective factors present in your case, you have good prospects of rehabilitation.
71 I also accept that separation from your wife and child whilst you have been on remand for these offences, and the knowledge that your parents are suffering serious illnesses, has been a significant factor in making the hardship of your custody greater than it might otherwise have been.
72 Moreover, I accept that the delay between the plea hearing and your being sentenced has meant you have had this matter hanging over your head longer than should have been the case. You have also been on remand and not a sentenced prisoner, which may have affected the programs available to you and had other adverse consequences during the time you have been in custody. I take these effects of delay into account in your favour.[16]
[16] R v Merrett, Piggott and Ferrari (2007) 14 VR 392, 399–400 [33]–[36] (Maxwell P, Habersberger AJA agreeing), 403–4 [50] (Chernov JA).
73 I am of the opinion I need give little weight to specific deterrence in sentencing you. A I earlier observed, you have no prior criminal history and no outstanding or pending matters. I accept that your time on remand has been a salutary lesson to you and that you are unlikely to re-offend in the future.
74 I also note Ms Lechner’s observation that you are aware that you will be deported back to Vietnam when these matters are finalised. She says that you are, in fact, hopeful of returning to Vietnam as soon as possible in order to support your parents and younger brother. It is expected that your wife and co-accused, Oanh Nguyen, and your young son, will join you there.
75 Accordingly, whilst I take into account the fact of deportation in your case, it is not as significant a mitigating factor in these circumstances as it might otherwise have been. Nonetheless, it is a matter weighing on you whilst you are serving your sentence, and there is a degree of extra-curial punishment in you not being permitted to settle in this country as a result of your offending conduct. I take these matters into account in your favour.
Mitigating Circumstances — Oanh Nguyen
76 Turning to mitigating circumstances in your case Oanh Nguyen, I accept there are a number of significant mitigating circumstances you can rely upon.
77 You have pleaded guilty at the first forensically reasonably stage in the proceedings. Clearly your plea of guilty is significant in that it has a utilitarian benefit, particularly given the likely length of any trial. Moreover, it demonstrates an acceptance of responsibility on your part and a willingness to facilitate the course of justice.
78 Dr Barth expressed the opinion that you demonstrate remorse and shame for your behaviour. He reports you as stating that:
I was naïve and stupid for helping my husband. I’m very sorry for that I did. [sic] Now I have to face the consequences. Drugs are very bad for the people that use it.
79 As a consequence of your expressions to Dr Barth of remorse and victim empathy, I am prepared to sentence you on the basis that you do demonstrate true contrition and remorse for your criminal conduct
80 You have no prior criminal convictions or findings of guilt, and there are no subsequent criminal matters or matters outstanding or pending. Accordingly, you fall to be sentenced as a youthful first offender. Advancing your prospects of rehabilitation must be given primacy in sentencing you.
81 Moreover, your role in the overall offending conduct was considerably less than any of the others involved in ‘Operation Tropics’.
82 In his psychological report dated 4 July 2018,[17] Dr Barth noted that you ‘manifested strong signs of emotional stress throughout [your] interview and required a relatively supportive interviewing style to retain [your] composure’. I accept that you have been significantly impacted by your offending and the effect that it has had on you and your family. Consequently, I am satisfied that you have learnt your lesson and are unlikely to re-offend in the future. Accordingly, I need give very little, if any, weight to specific deterrence and protection of the community in sentencing you.
[17] Exhibit ON2.
83 Separation from your young son would cause significant emotional distress on you and therefore lead to any sentence of imprisonment weighing heavily on you. I take this into account in your favour. But, the present circumstances are not exceptional such as to give rise to separation from your son being given weight as an effect on a third party basis.
84 Delay is also a significant mitigating circumstance in your case. I accept the submissions made by your counsel at the further plea hearing that these matters have weighed heavily on you and that this has caused additional punishment which needs to be given real weight in sentencing you.
85 Moreover, there has been punishment by reason of you being subject to the bail conditions, including weekly reporting. During this period, your husband’s future has also weighed heavily on you. I also accept that you are largely rehabilitated in respect of these matters and that your good work history, your ability to look after your son, and your ability to remain offence-free over a lengthy period of time since committing this offence, augers well for your future prospects of rehabilitation.
86 I also accept there is some degree of a disconnect between the commission of this offence and you being sentenced for it.
87 As I said earlier, I am of the view that you have largely learnt your lesson and are unlikely to re-offend in the future, thereby causing me to give little, if any, weight to specific deterrence and protection of the community in sentencing you.
88 Taken together, all these matters do indicate that a shorter community correction order other than what might otherwise be imposed in a different case is justified in sentencing you. You are a person of prior good character who has pleaded guilty at the earliest reasonable forensic opportunity and you demonstrate true contrition and remorse for your offending conduct.
89 I have had you assessed for suitability for a community correction order. You have been assessed as suitable for that order.[18] You have been assessed as being low risk of re-offending according to the Level of Service Risk Assessment Tool.
[18] See exhibit C1.
90 After much anxious consideration, and taking into account all of the mitigating circumstances present in your case, I am of the view that all sentencing principles relevant in your case can be best served by sentencing you to a community correction order for a relatively short term with minimal program conditions. The Crown effectively accepted that such a disposition was open to me in the circumstances of your case.
Application of Sentencing Principles
91 I have had regard to current sentencing practices in relation to the charges before me, particularly that of trafficking in a commercial quantity of a drug of dependence, in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym)[19] and the Victorian Court of Appeal decision in Nguyen v The Queen.[20] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to the present offences.
[19] (2017) 262 CLR 428.
[20] (2016) 311 FLR 289 (‘Nguyen’).
92 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in each of your cases.
93 The parity principle is a significant sentencing consideration in this case, as is the need for me to pass sentences on both of you which are not unfairly disparate from the sentences I have passed on others involved in ‘Operation Tropics’. I have had regard to these other sentences in determining what are appropriate sentences in each of your cases.[21]
[21] See DPP v Le [2019] VCC 583; DPP v Margariti [2019] VCC 1218; DPP v Sazimanoska [2019] VCC 617; DPP v Sazimanoski [2018] VCC 973; DPP v Taouk [2019] VCC 582; DPP v Tran [2019] VCC 1373; DPP v Wicks [2019] VCC 135.
94 In your case Ha Nguyen, both the prosecution and your counsel accept that the sentence I imposed on Sazimanoski is the most relevant in terms of parity. I sentenced him on a commercial trafficking charge arising from this police operation to 4 years’ imprisonment.[22] With orders for cumulation he received a total effective sentence of 5 years and 3 months’ imprisonment and I fixed a minimum non-parole period of 2 years and 6 months.
[22] DPP v Sazimanoski [2018] VCC 973.
95 As I explained in my reasons for sentence in Wicks’ case,[23] for reasons apparent from my sentencing remarks in Sazimanoski, owing to circumstances personal to him I imposed a very lenient sentence considering the objective seriousness of his offending conduct. This significantly distinguishes his case from yours, Ha Nguyen. However, the fact you fall to be effectively sentenced as a youthful first offender who has pleaded guilty at the earliest forensically reasonable opportunity, coupled with the delay there has been in bringing your case to finality, these factors, to some extent, operate to redress the balance in your favour.
[23] Ibid [49]–[53].
96 So far as the negligently possessing proceeds of crime charge (Charge 6) is concerned Ha Nguyen, on a similar charge, involving a similar amount, I sentenced Taouk to be convicted and sentenced to imprisonment for 6 months and I cumulated 2 months of that sentence on his base sentence of 4 years’ imprisonment.[24]
[24] DPP v Taouk [2019] VCC 582.
97 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you both I must have regard to a range of factors, such as the seriousness of your respective offences, your culpability for them and your personal circumstances
98 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are both rehabilitated and reintegrated into society; albeit, most probably not the Australian society.
99 General deterrence is a very important sentencing consideration particularly for the offence charged in Charge 5 affecting you Ha Nguyen.[25] The offence is prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[26] Some real weight must also be given to general deterrence in sentencing you on Charge 6 and in sentencing you, Oanh Nguyen, on Charge12.
[25] Nguyen 330 [139]–[140].
[26] Nguyen 331 [141].
100 Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis in both your cases, I am of the view that, in each of your cases, specific deterrence and protection of the community need be given very little, if any, weight. As I said earlier, I accept that you both have good prospects of rehabilitation.
101 Nonetheless, so far as you Ha Nguyen are concerned, trafficking in a commercial quantity of cannabis is a serious crime and your moral culpability is relatively high. Consequently, as the Court of Appeal has observed on numerous occasions, immediate imprisonment should ordinarily be regarded as virtually unavoidable in cases of this type.[27] I am, therefore, of the view that in your case Ha Nguyen, a sentence of imprisonment with a non-parole period is the only sentence which will give appropriate weight to the purposes for which the sentences I pass on you are imposed.[28]
[27] Nguyen 330 [140].
[28] Sentencing Act 1991 s5(4).
102 I accept that the proceeds of crime the subject of Charge 6 were derived from at least one of the transactions, the subject of Charge 5. Accordingly, there will be a significant degree of concurrency between the sentences I impose on Charges 5 and 6.
103 So far as the money found in your home is concerned, you instructed your counsel this was the proceeds of an earlier cannabis sale unrelated to Sazimanoski, which had not yet been paid to the grower. It is entirely unrelated to the subject matter of Charge 5. I accept this was not money you personally derived as part of your drug trafficking operations and you possessed it on account of someone else. Accordingly, some measure of cumulation between Charges 5 and 6 is warranted to reflect this.
104 In your case Ha Nguyen, I consider it is appropriate to impose a sentence which will allow for your release on parole earlier than might otherwise have been the case.
105 In your case Oanh Nguyen, I consider that a community correction order for a relatively short term, with minimal program conditions, is sufficient to give appropriate weight to the purposes for which the sentence I pass on you is imposed.[29]
[29] Sentencing Act 1991 s5(4).
Stand up Mr Nguyen.
On the charge of trafficking in a commercial quantity of a drug of dependence, namely cannabis (Charge 5) you will be convicted and sentenced to be imprisoned for 4 years and 9 months.
On the charge of negligently dealing in proceeds of crime (Charge 6) you will be convicted and sentenced to be imprisoned for 6 months.
I direct that 2 months of the sentence imposed on Charge 6 is to be served cumulatively with the sentence imposed on Charge 5, making a total effective sentence of 4 years and 11 months imprisonment.
I order that you serve a minimum of 2 years and 6 months’ imprisonment before becoming eligible for parole.
I declare 870 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.
Mr Nguyen this declaration means that you will be eligible for parole in about 43 days. Whether you receive parole will be a matter for the Adult Parole Board and in any event, you are likely to be taken into immigration detention immediately upon your release from custody.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you Ha Nguyen but for your pleas of guilty would have been a total effective sentence of 6 years’ imprisonment with a non-parole period of 4 years’ imprisonment.
Stand up Ms Nguyen
On the charge of trafficking in a drug of dependence, namely cannabis (Charge 12) you will be convicted and sentenced to be released on a community correction order for a period of 6 months commencing from today with 50 hours of unpaid community work.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you Oanh Nguyen but for your plea of guilty would have been a community correction order for a period of 12 months with 100 hours of unpaid community work.
0
15
0