Director of Public Prosecutions v Nguyen

[2025] VCC 214

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

Case No. CR-24-00495

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID NGUYEN

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2025
DATE OF SENTENCE:	4 March 2025
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2025] VCC 214

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty - Trafficking in a drug of dependence large commercial quantity – Trafficking in a drug of dependence – Possession of a drug of dependence – Knowingly dealing with proceeds of crime and intending to conceal that it was proceeds of crime contrary – Prior criminal history – Possession for the purposes of trafficking – Very serious example of offending – Bugmy – Reasonable prospects of rehabilitation – Serious drug offender.

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 ss 71(1), 71AC(1), 73(2); Crimes Act 1958 ss 194(1), 195; Sentencing Act 1991 ss 5(2), 6AAA, 11A(4)(c), 18, 89DI.

Cases Cited:

Sentence:                  Imprisonment for a period of 12 years and 6 months with a non parole period of 7 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Pickering	Office of Public Prosecutions
For the Accused	Mr P Dunn KC	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1David Nguyen, you have pleaded guilty to:

(a) two charges of trafficking in a drug of dependence contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (‘Drug, Poisons and Controlled Substances Act’), which carries a maximum penalty of 15 years imprisonment (Charges 1 and 2);

(b) one charge of trafficking in a drug of dependence – large commercial quantity contrary to s 71(1) of the Drugs, Poisons and Controlled Substances Act, which carries a maximum penalty of life imprisonment (Charge 3);

(c) one charge of possession of a drug of dependence contrary to s 73(2) of the Drugs, Poisons and Controlled Substances Act, which in this instance, carries a maximum penalty of 5 years imprisonment (Charge 4); and

(d) one rolled up charge of knowingly dealing with proceeds of crime and intending to conceal that it was proceeds of crime contrary to s 194(1) of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 20 years imprisonment (Charge 5).

2You have also pleaded guilty to a related summary offence of dealing with property suspected of being proceeds of crime contrary to s 195 of the Crimes Act, which carries a maximum penalty of 2 years imprisonment (Summary Charge 15).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5You are currently 36 years old. At the time of offending, you resided in Northcote.

6You leased the Northcote address on 10 September 2021.

7You also used a property in Fitzroy for the purposes of your offending. The property was leased by your mother. You used a bedroom at the Fitzroy premises to store drug paraphernalia and other materials.

8The prosecution alleges that you were trafficking drugs of dependence from the Northcote and Fitzroy addresses.

9As part of the investigation of your drug trafficking, police lawfully obtained telecommunication interception warrants for your four mobile phones from 22 October 2022.

10Investigators also identified you as using the encrypted application ‘Threema’ for the purposes of communicating with suppliers, customers and other associates. The name you used for the Threema application was ‘skieskiez’.

Conversations with ‘The Savage’

11On 15 November 2022, you communicated via Threema with a person using the name ‘The Savage’.

12The Savage told you he had $22,000 but will be getting a further $24,500 for you. He asked if you could supply him with 7 ounces. You told The Savage that he needs to clear his current debt of $26,000.

13The Savage asked you to sell him the drugs at $4,700 per ounce so he could make a profit of $300-400 per ounce. You said that you will supply the drugs to The Savage at $4,850 per ounce and will supply 4 ounces for the cash payment when the two of you met up.

Conversations ‘The Zimmerman’

14On 17 November 2022, you communicated via Threema with a person using the name ‘The Zimmerman’.

15The Zimmerman told you that the that the drugs you supplied were not the same as those supplied previously and that it must be wrong because it was ‘only 56 and doesn’t smell like tea’ (methylamphetamine).

16You apologised and said it was your mistake and it should be returned because it would not sell due to its poor quality.

17On 19 November 2022, The Zimmerman contacted you via Threema, saying that he had been able to sell the bad bag for $4,700. He also had another $20,150 to purchase two more ounces of ‘tea’ (methylamphetamine).

18You asked The Zimmerman for the $20,150 in exchange for 125g, which was agreed.

19On 30 November 2022, you contacted the Zimmerman via Threema, asking him to clear his debt for drugs. The debt consisted of $21,000 for ice, $5,500 for heroin, together with a new debt of $17,900 ($4,700 per ounce).

20The Zimmerman claimed that he had cleared the debt and only owed you $27,000.

21You told The Zimmerman that you were paid $22,000 for heroin, with $5,500 for methylamphetamine remaining unpaid. In addition, you stated there was another $32,900 owed for 5 ounces of ice, less $15,000 already paid by the Zimmerman to you.

22On 2 to 3 December 2022, you asked The Zimmerman to sort out the outstanding debt for drugs. After discussing the quality of the drugs sold, The Zimmerman asked you to supply a quarter of a kilogram of methylamphetamine, you agreed that you had that amount but the debt had to be cleared first.

23On 4 December 2022, you advised The Zimmerman that the current debt for drugs owed to you was $14,800, with $21,000 ‘for the old eye’ (methylamphetamine) and $5,500 for the ‘hot’ (heroin).

Conversations with ‘pb’

24On 10 December 2022, you communicated via Threema with a person using the name ‘pb’. You asked pb for a block of heroin as you had the money ready, pb replied that he will order it and that he has one left. The two of you agreed to meet after 5pm.

25On 12 December 2022, you asked pb for another block of heroin as you had sold the last, saying that you can make a profit of $2000 on it.

26On 17 December 2022, police seized a ledger page from rubbish dumped by you outside the Northcote apartment that listed debts owed by ‘Tony’ as follows:

·‘Tony’ owes $5,500 for ‘hot’ and $21,000 for ‘cold’;

·the base price per ounce is $4,700 for methylamphetamine; and

·‘Tony’ has purchased 16oz.

28 December 2022 – Charges 1 and 2

27On 28 December 2022, police attended at the apartment at the Northcote address and executed a search warrant pursuant to the Drugs, Poisons and Controlled Substances Act.

28You were not present at the time the warrant was executed.

29Police located a ‘Balenciaga’ branded bag in the bedroom wardrobe. Inside the bag, police located:

(a)   a snap lock bag containing 308g of white powder. A sample was later analysed and found to be heroin with a purity of 76% (Charge 2);

(b)   a snap lock bag containing 97g of a white crystalline substance. A sample was later analysed and found to be methylamphetamine with a purity of 81% (Charge 1).

Conversations with The Zimmerman

30On 13 January 2023, you communicated with The Zimmerman via Threema about the poor quality of the drugs, and that you wanted The Zimmerman to return the money in exchange for the remaining drugs. You said that you were only able to move one bag. You attached photographs taken from your bedroom with the remaining bags.

Conversations with ‘Platinum’

31On 27 January 2023, you communicated via Threema with a person using the name ‘Platinum’. You discussed providing Platinum with ‘sealed white teas’ (methylamphetamine), saying that you could sell 1 kilogram of the drug for $150,000, which was made up of $145,000 outlay plus the profit of $5000 on top.

32You also sent a photograph of a white crystalline substance in a snap lock bag. You also stated that the ‘return is good bro if any trouble with our side’.

33On 14 February 2023 at 11.42am, you communicated via Threema with a person using the name ‘Division’, who asked you to source ‘lion brand’ heroin. You said that you had been struggling with heroin sales lately and had been stuck with product for the last month. You said the price had dropped from $135,000- $120,000, affecting your profits.

34You told Division that you could sell white tea (methylamphetamine) for $155,000 per kilogram and blocks of heroin for $115,000, although you did not have the heroin at that time.

35That afternoon, you communicated via Threema with a person using the name ‘cryptoking’.

36At 3.19pm you said that you had the white tea, sending a photograph of the drugs in white tea packaging. Cryptoking asked for the price for 1.75g and you provided cryptoking with a contact number for the purchase for $600. You both agreed that you would sell 3.5g for $1,300 to cryptoking.

37At 3.24pm, you communicated via Threema with a person using the name ‘Goblin999’. You sent the same photograph of the white tea package, saying that you had the white tea for $155,000.

38At 3.36pm, you communicated via Threema with Platinum, asking whether Platinum still needed the product as you now had 2 x 1kg packages of white tea if he was interested. Platinum declined as he already has a supply of green tea.

39At 3.56 pm, you communicated via Threema with a person using the name ‘Mini’, telling Mini that you had white tea available.

40At 4.19pm, you communicated via Threema with a person using the name ‘Super…123’, telling this person that you had two packages of white tea and to see what price Super…123 could get so the two of you could make money.

14 February 2023 – Charges 3 to 5

41On 14 February 2023 at approximately 7.30pm, police executed search warrants at the Northcote address.

42Police located the following during the search of the premises:

(a)   two cryovac bags, each containing a white package which matched the photographs sent by you via Threema earlier that day. The white coloured packages contained a white crystalline substance;

(b)   a set of digital scales in a box;

(c)   a grey ‘Balenciaga’ branded bag containing three snap lock bags, one bag containing white powder and the other two containing a white crystalline substance;

(d)   a black ‘Jean Paul Gaultier’ branded tin containing two snap lock bags, each containing a white crystalline substance;

(e)   a snap lock bag next to the bed containing a white crystalline substance;

(f)    a Google pixel mobile phone which showed Threema messages on the screen (related summary offence 15);

(g)   A Realme brand mobile phone (related summary offence 15); and

(h)   $23,710 cash in a ‘Jo Malone’ branded shoe box.

43You were not present at the time of the search.

Arrest

44On 14 February 2023, you were arrested outside a restaurant at approximately 10.22pm. Police seized the following items from you at the time of arrest:

(a)   a Samsung galaxy mobile phone;

(b)   a snap lock bag containing a white crystalline substance; and

(c)   $650 cash.

45You were transported to the Northcote apartment. A Rolex watch was seized from you, along with a Longines watch (Summary offence 15).

46You were transported to the Fitzroy address and police executed search warrants. Police located the following in your bedroom:

(a)   $3,400 cash;

(b)   $7,000 cash;

(c)   a white ZTE mobile phone (Summary Offence 15);

(d)   a black Huawei mobile phone (Summary Offence 15); and

(e)   a black Nokia mobile phone (Summary Offence 15).

47Later analysis of the drugs seized on 14 February 2023 at the Northcote address showed the following:

(a)   Exhibit 34: snap lock bag: 0.7g methylamphetamine, 89%purity

(b)   Exhibit 42:

(i)sealed package 1: 996.6g methylamphetamine, 86% purity

(ii)sealed package 2: 996.5g methylamphetamine, 88% purity

(c)   Exhibit 45: snap lock bag: 54.6g heroin, 83% purity (Charge 4);

(d)   Exhibit 46: snap lock bag: 48.5g methylamphetamine, 85% purity;

(e)   Exhibit 47: snap lock bag: 9.2g methylamphetamine, 86% purity;

(f)    Exhibit 50: snap lock bag: 10.4g methylamphetamine, 85% purity;

(g)   Exhibit 51: snap lock bag: 25g methylamphetamine, 86% purity; and

(h)   Exhibit 57: snap lock bag: 2.6g methylamphetamine, 84% purity

48The total quantity of the methylamphetamine seized by police on 14 February 2023 was 2089.5g, with a purity of 84-89% (Charge 3).

49The total cash seized from you on 14 February 2023 was $35,410. The prosecution alleges this is the proceeds of crime and that you intend to conceal as being the proceeds of crime (Charge 5).

50You were transported to Melbourne West police station and participated in a DVD recorded interview, making ‘no comment’ to the allegations.

Nature and gravity of the offending

51Charge 3, trafficking in a large commercial quantity of a drug of dependence, is a very serious offence, reflected in the maximum penalty imposed by Parliament being life imprisonment, and by the fact that it is a standard sentence offence, the standard sentence being 16 years. In this instance the total amount of methylamphetamine found on 14 February 2023 was 2089.5 grams. The large commercial quantity threshold is 750 grams. Thus, the amount subject to Charge 3 is approximately 2.8 times the large commercial quantity.

52Charge 4, possession of heroin, also relates to 14 February 2023 and your possession of 54.6 grams of heroin. While you have only been charged with possession, in all the circumstances I formally find that your possession was for the purposes of trafficking and the higher penalty therefore applies.

53Turning to the charges relating to 28 December 2022. As to Charge 2, the amount of heroin in your possession was 308 grams. The traffickable quantity of heroin is 3 grams while the commercial quantity is 250 grams. In this instance therefore while you are only to be sentence for trafficking simplicitor, the amount in your possession makes this a serious example of trafficking.  Charge 1 relates to trafficking methylamphetamine relating to 97 grams found in your possession. The traffickable quantity of methylamphetamine is 3 grams and the commercial quantity is 250 grams making Charge 1 a relatively serious example of trafficking simplicitor.

54While the charges you face relate to single dates, in assessing the gravity of your offending, I also take into account the recorded conversations with your suppliers and customers that demonstrate the extent of your drug trafficking business. For example, on 14 February 2023, the prosecution opening summarises your negotiations with six different customers between 11.42am and 4.19pm discussing amounts of drugs to the value of hundreds of thousands of dollars. I also take into account that upon the search of your property on 14 February, police found the large quantities of drugs as noted, and a number of items connected to your trafficking including the $35,410 the subject of Charge 5.

55In all the circumstances the evidence demonstrates that you were running an established drug trafficking business, and your offending can only be described a very serious.

Personal circumstances

56You were born in Australia in 1988 and are the youngest in a sibship of four.  Your parents were born in Vietnam and were accepted as refugee migrants in Australia in 1983. Your parents had no family or relatives in Australia upon arrival and did not speak English.  

57Your parents gained employment in piece work clothing manufacture working long hours. In 1985, your family moved to a 3 bedroom apartment in the commission flats in Collingwood. You report that in your early childhood you were often left in the care of your older brothers while your parents were at work.

58Your three brothers were between 7 and 12 years your senior and were all using heroin within the confines of the house in your early childhood. You report that you were surrounded by drug use and drug paraphernalia from a young age. 

59Your eldest brother Heiu was born in 1975. You report being quite attached to Heiu and that he would cook for you and take you to school. Your middle brother Thien, born in 1977, was involved in a serious motor vehicle accident, suffering a head injury and later, in his early adolescence, being diagnosed with Prodromal Schizophrenia. Your third brother Thuc, born in 1981, was murdered by your middle brother Thien when he was suffering a psychotic episode. At this time, Hieu was in Vietnam completing a detox and was not made aware of the circumstances of your brother’s death. After returning to Australia, Hieu overdosed on heroin and died.  You were aged nine at the time of these events.

60Following the death of your two brothers and the incarceration of Thien, your parents suffered immense stress and grief. Your father left the family home and your mother obtained housing in Fitzroy. Initially, you were placed in the care of your father however your mother required further support and you returned to her care, eventually taking on the role as her primary carer. Up until your recent remand, you have been living with and supporting your mother and brother, Thien. You have great concerns for your mother and brother, who are both suffering chronic and complex health issues.

61You report that you had to repeat primary school and struggled to learn in the aftermath of your brother’s deaths. You attended Northcote High School until year 9 albeit missing large periods and struggling academically. You state that despite your academic failure, you believe your school progressed you through the grades in light of your difficult family circumstances.

62A psychological report prepared by Luke Armstrong dated 7 February 2025 was tendered on the plea. Mr Armstrong, who also gave evidence on the plea, summarises your highly turbulent and traumatic childhood. He notes you were exposed to emotional neglect throughout your early development and states that although he cannot formally diagnose you with an intellectual disability, you fall within the bottom two per cent of the population on the WAIS test.  

63It is clear that your family’s experience of grief and the subsequent family breakdown has substantially impacted your emotional and academic development. In particular, you report that you have experienced periods of self-harm behaviour, anger and agitation, nightmares, anxiety, flashbacks and emotional withdrawals. You have been diagnosed with Social Anxiety Disorder and show severe symptoms of general anxiety, depression and stress.

64You have a longstanding history of substance abuse, largely because of your exposure to your brothers’ involvement with drug abuse and drug related crime in your early years. Mr Dunn KC, who appeared on your behalf submitted that  you were groomed from early childhood to be exposed to the milieu of drug offending.

65You report that you first experimented with cannabis at age 15 and that you were smoking daily before school. You experimented with methylamphetamines at age 20, which coincided with your first encounter with the criminal justice system.  By age 25, you report your use of ice had escalated to daily use, combined with cannabis. You state that in more recent years your drug use patterns would include a minimum of two grams of ice daily, cannabis use every second day and alcohol abuse at least twice weekly. You also state that you smoked heroin weekly during your mid-twenties up until your arrest in 2023.

66Due to your drug habits, you have not maintained employment for substantial periods. You were working casually at an Asian grocery store prior to your arrest. Whilst on bail you have maintained employment three days a week.

67You were granted Court Integrated Services Program (CISP) bail in March 2023 and you have sustained a drug free lifestyle since your release. You have engaged well with the relevant supports, including psychological treatment and alcohol and drug (AOD) counselling.  You have also maintained stable accommodation, rebuilt a relationship with your father and obtained a truck license. The final CISP progress report dated 28 November 2023 commends you on your engagement with both the integrated CISP supports and your efforts in maintaining independent AOD supports and psychological counselling.

68A letter of Amanda Brown, drug and alcohol counsellor, dated 5 May 2024, was tendered on the plea and states that while you have remained abstinent from drugs whilst on bail, she is concerned that the level of distress you experience may lead you to return to illicit substances to relieve distress.  Further, Mr Armstrong is of the view that while your motivation to remain drug free is genuine, your remission status is fragile, secondary to your relatively poor mental state.

69You are currently supported by your partner Julie Nguyen, who also gave evidence on the plea. She attests to your caring nature and resilience in the face of adversity. Above all else, Ms Nguyen states that your efforts to rehabilitate yourself since your release on bail has demonstrated a commitment to turning your life around.

70Importantly, and as is evident in the character references tendered on the plea, your family and friends have come together to support you in your efforts to rehabilitate. These references acknowledge the suffering and unresolved trauma you have experienced as a result of your troubled childhood and emphasise the remorse and responsibility you feel as a result of your offending.  It is clear from the materials that if you stay motivated to remain abstinent from drugs, you will enjoy ongoing support from your family and friends.

Sentencing considerations

Matters in mitigation

71I first take into account your plea of guilty. You conducted a contested committal; however a number of charges were struck out at the conclusion of the evidence. You ultimately entered a plea of guilty soon after the matter was committed to this court. Your plea has utilitarian value saving the court the time and expense of a trial, thereby advancing the course of justice.

72Mr Dunn submitted that Bugmy principles are enlivened as a result of the challenges you faced in your younger years. As noted by Mr Armstrong:

The circumstances of his childhood remained complex. He was exposed to ongoing neglect in the aftermath of the traumatic deaths of his two brothers. Complicating his experience further was the fact that his surviving brother was charged with the murder of one of his siblings. The family collapsed and Mr Nguyen survived as a parentified child, adolescent and adult. I suspect that in adolescence and adulthood he developed a combination of borderline and dependent personality traits. The complexity of his profile is compounded by concurrent PTSD symptoms. All of this has been self medicated from adolescence with at first Cannabis and later, alcohol and methamphetamines. The experience of childhood has been highly destabilising for your client. He is only now for example able to tolerate an intimate relationship in a functional way, for the first time in his life.

73It is not in dispute that you experienced a very difficult childhood. As the youngest child you were often left alone in circumstances where your three older brothers were using heroin and involved in criminal activity. You were therefore exposed to drug culture from a very young age. You then experience the trauma of the murder of your second eldest brother Thien, at the hand of one of your other brothers, Thuc. Soon after the murder, your oldest brother Hieu died from an overdose of heroin. You were nine years of age when your brother was murdered, and I accept that you had limited parental support before and after this traumatic period. I also note that Mr Armstrong is of the view that your ‘extremely low to borderline intelligence emerged within a context of social disadvantage, including extreme neglect’. In my view in the circumstances, your disadvantaged childhood experience is able to be taken into account when assessing your moral culpability.

74Mr Armstrong is of the opinion that imprisonment will be far more arduous for you as a result of the complexities of your psychological profile. Your borderline intellectual functioning, your PTSD symptoms, and the complex interdependent relationships you currently have with your mother and brother will, in Mr Armstrong’s view make it difficult for you to adapt well to prison life. I take this into account.

75Turning to your prospects of rehabilitation, Mr Dunn focused on the efforts you have made since you were bailed in March 2023. Through CISP you have consulted a psychologist and completed some 21 counselling sessions, you have attended drug counselling sessions including additional counselling with Amanda Brown, you have largely produced clean drug screens and you have not reoffended. Further, you have been in a stable relationship since November 2022 with a person who has no drug or criminal history and is in full time employment. You have the ongoing support of your family and friends as evidenced in the numerous references that were tendered. While you are at the early stages of rehabilitation, in my view, if you continue on the trajectory you have maintained since being granted bail, your prospects can be assessed as reasonable.

Other sentencing considerations

76General deterrence and denunciation of your conduct are prominent sentencing considerations. Trafficking in a large commercial quantity of drugs ultimately results in enormous harm to individuals, families and the wider community. An unequivocal message must be conveyed to others that if they choose to engage is such conduct, they will face substantial periods of imprisonment. Given your criminal history and your long term drug addiction, you also must be deterred from engaging in such conduct in the future and as such, specific deterrence must carry some weight in the sentencing calculus.

77In addition to the matters that I am required to take into account under s 5(2) of the Sentencing Act 1991 (‘Sentencing Act’), I must also take into account that Charge 3 is a standard sentence offence. The standard sentence for trafficking in a large commercial quantity of a drug of dependence is 16 years imprisonment.

78Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalties, the standard sentence and the serious nature of your offending, the sentence I will impose on Charge 3 falls below the standard sentence.

79Pursuant to s 11A(4)(c) of the Sentencing Act in fixing a non parole period for a standard sentence offence, where the term of imprisonment is less than 20 years the court must fix a non parole period of at least 60 per cent unless the court considers it is in the interests of justice not to do so. It was submitted on your behalf that any non parole period should be lower than 60 per cent given your positive prospects of rehabilitation. Taking into account the relevant sentencing considerations, in all the circumstances I am not persuaded that it is in the interest of justice to fix the non parole period below 60 per cent. That said, the non parole I intend to fix falls at 60 percent of the total effective sentence.

Sentence

80Mr Nguyen would you please stand.

81David Nguyen, on Charge 1 trafficking in a drug of dependence, you are convicted and sentenced to 3 years imprisonment. On Charge 2, trafficking in a drug of dependence, you are convicted and sentenced to 4 years imprisonment. On Charge 3 trafficking in a large commercial quantity of a drug of dependence, you are convicted and sentenced to 11 years imprisonment. On Charge 4 possession of a drug of dependence you are convicted and sentence to 2 years imprisonment. On Charge 5 knowingly dealing with the proceeds of crime, you are convicted and sentenced to 3 years imprisonment.

82On related Summary Charge 15, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 3 months imprisonment.

83I direct that 9 months of the sentence imposed on Charges 2 and 5 be served cumulatively on each other and on Charge 3 making for a total effective sentence of 12 years and 6 months imprisonment. I direct that you serve 7 years and 6 months before becoming eligible for parole.

84Pursuant to s 18 of the Sentencing Act, I declare that 39 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

85Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 15 years and 6 months imprisonment with a non-parole period of 11 years.

86Finally, as Charge 3 is a ‘serious drug offence’, you are declared to be a serious drug offender pursuant to s 89DI of the Sentencing Act.