Director of Public Prosecutions v Nguyen

[2019] VCC 1207

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01596

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

CHUNG KIEN NGUYEN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2019
DATE OF SENTENCE:	2 August 2019
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 1207

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Attempt to possess an unlawfully imported border controlled drug (cocaine commercial quantity) – Deliberative nature of offending - Role as an active facilitator in attempting to possess consignment importation – Sophisticated plan in attempting to possess consignment including use of false identities and tax file numbers – Financial motivation – No prior offending alleged

Sentence:Convicted and sentenced to 7 years and 8 months’ imprisonment with a non-parole period of 3 years and 8 months’ imprisonment – 431 days’ pre-sentence detention declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Crouch	Commonwealth DPP
For the Accused	Mr L. Barker (Plea) Mr A. Ford (Sentence)	Emma Turnbull Lawyers

HER HONOUR:

1Chung Kien Nguyen, you have pleaded guilty to one charge of the Commonwealth offence of Attempting to Possess a Commercial Quantity of an Unlawfully Imported Border Controlled Drug, which has a maximum penalty of life imprisonment.

2I must take the maximum penalty into account when sentencing you as this reflects the seriousness with which the Commonwealth Parliament regards this offence.

3The plea was accepted by the prosecution and entered on the express basis that you knew that the substance which you intended to possess was cocaine, and thus a border-controlled drug.

FACTS

4On 22 March 2018, an Australian Federal Police officer, acting undercover and posing as a delivery driver, delivered a consignment (to which I will refer, from time to time, as ‘the consignment’ or ‘the parcel’) to a particular address in Mernda, Victoria (which I might refer to as ‘the consignment address’ from time to time).

5The consignment was addressed to a Jiahao Shen, with a contact phone number ending in 360 [which I will refer to as ‘the consignment phone number’]. It was a wooden crate and was described as containing ‘car spare parts sprocket shaft’. It had been sent air cargo from Costa Rica on 1 March 2018 via the USA.

6The consignment had been intercepted by authorities in the USA and found to contain 5.139 kilos of a substance including cocaine. It was later analysed and found to contain 3.319 kilos of pure cocaine. The cocaine was removed by authorities in the USA. Australian authorities were notified and the consignment, without the cocaine, arrived in Melbourne by air cargo in early March 2018. Australian Federal Police officers took possession of the consignment on 9 March 2018.

7The freight forwarding company responsible for shipping the consignment to Australia was Bringer Air Cargo [‘BAC’].

8The parcel was delivered to a Chun Yin Tsang [who might be referred to as ‘Tsang’ from time to time], who was present at the address. Tsang is an associate of yours. 

9Sometime, around a month before the delivery was made, you had asked Tsang if he would receive a package for you. You told Tsang that you would pay him between $500 and $1000 if he accepted the package for you. Tsang asked you what the package contained.  You told Tsang not to ask and that he did not need to know.

10Tsang asked you several times over the next month as to when the parcel would be coming.  Tsang was anxious to receive the money promised to him. You kept responding to Tsang by telling him it was coming.

11Between 19 March and 22 March 2018 you and Tsang exchanged messages about the arrival of the package and when Tsang would be paid. Following its arrival on the morning of 22 March 2018, Tsang signed for the delivery and told the delivery person (the undercover AFP agent) that the addressee was his ‘housemate’.

12Tsang messaged you on WhatsApp telling you that the parcel had arrived. You told him to “just wait” and subsequently told him to delete your WhatsApp conversation, so Tsang deleted the messages.

13On 13 and 19 March 2018, you, using the name Jiahao Shen, contacted Toll Dnata, the cargo holder, to arrange for the release of the consignment.  On 19 March, you, again using this false name, called Toll Dnata on mobile number ending 360 and left a message.  You were called back and were told to get a customs clearance agent to clear your cargo as charges were accumulating. You asked what sort of documents were needed to clear the cargo, and said that you would organise a customs clearance agent ‘right now’.

14On 19 March you engaged Platinum Freight as the customs clearance agent.

15From 19 March until 22 March 2018, to arrange payment for the services, Platinum Freight exchanged emails and calls with you – again, you used the identity, ‘Jiahao’ and an email address of [email protected].  A MasterCard credit card in your actual name was used by you to pay the $1972 owing to Platinum Freight.  Various documents relating to the consignment, including the commercial invoice from Maxi Force Diesel Engine Parts and documentation from Bringer Air Cargo, a completed Authorisation and Acknowledgment of Trading Conditions with Platinum Freight and a false NSW driver’s licence in the name ‘Pei Xin’ were sent by you using [email protected] to Platinum Freight.  You also confirmed your contact details as ‘Jiahao Shen’ using the number ending 360, that is, the consignment phone number; you subsequently provided another mobile number which ended 693.

16On 19 and 20 March 2018, police, pretending to be from Platinum Freight, called the consignment phone number and on each occasion,  spoke to you, although you  purported to be ‘Jiahao’, in relation to the delivery of the consignment.

17On 22 March 2018, search warrants were executed at the address in Mernda at 2 pm and at your home in Parkville at 6pm, and you were arrested.

18At your home, police found in the glovebox of your car, ( a Ford Mondeo, YOW 336), a letter from the Australian Tax Office in the name of ‘Jiahao Shen’ with a post office address in Brunswick South, Victoria, and with a tax file number ending 481.  Also found was $6000 in cash in Australian currency.

19At your home, two iPhones were found on the kitchen table.  The police gained access to the phones and found that one phone had the consignment phone number, and the other phone had the number left with Platinum Freight.

20One of the iPhones was later analysed and found to have a device name of ‘Travis’s iPhone’ and with iMessages and Facetime linked to a phone number ending 693 and an email address of [email protected]. The WeChat, WhatsApp and Gmail applications were found on the phone. The WhatsApp and WeChat applications were configured with profile names of ‘Travis Nguyen’ and an associated number ending 693. Gmail was configured with three email accounts including [email protected] and [email protected].

21Various emails - and documents sent via WeChat - relating to Platinum Freight and the consignment were found on the phone such as the MaxiForce Diesel Engine Force invoice. Various chat logs [from WeChat] were also found. One recorded you using the name ‘Peixin Travis’. Others recorded you advertising the sale of cartons of ‘cigarettes’ and texts to you regarding the diesel engine parts and the BAC Airway Bill. In one text you are urged to ‘finish everything’ regarding the consignment. Other texts showed you discussing the price of drugs and arranging to buy 7 grams and other photos of a payment slip from Chung Kien Nguyen. Some texts were from a person called ‘Mary’.

22You also had another phone number registered to you at your Parkville address, the number ending in the numbers 170.

23On 22 March 2018 at about 8.28 pm police conducted an interview with you, which was recorded.

24You denied any criminality in relation to the consignment, but, amongst other things, you said the following:

·That you were known as ‘Travis’;

·Your  phone number was the number ending 693;

·You owned the Ford Mondeo;

·You were asked to receive the parcel via WeChat by a friend called Kenneth from overseas;

·You thought it contained diesel engine parts;

·Kenneth sent you the details and asked you to do the custom clearance;

·All you did was pay the agent;

·Kenneth was your friend;

·You paid $2000 to the agent for agent’s fees;

·Kenneth asked you to call a person in Hong Kong – you thought that this was the importer but you didn’t know his name;

·This man sent you pictures of the diesel engine parts;

·You  knew that the consignment address in Mernda was where your friend ‘Oscar’ lived;

·You called Oscar a week earlier, after Kenneth had called you from overseas and asked him to arrange receipt of a consignment for you;

·You asked Oscar to receive the consignment for you;

·You told Oscar that the consignment contained “car parts”;

·You told Oscar that Kenneth would buy dinner for you and Oscar for receiving the consignment for him;

·You had delivered ‘ice’ previously for Kenneth to another, collected the money and then you were paid;

·You  first knew about this consignment on 13 March and first contacted Oscar to help you on 14 March because you were not home and available;

·Oscar gave you his address for the delivery of the consignment;

·You gave Oscar’s address to Kenneth and Kenneth said that he would use the address to send the diesel parts to;

·You sent an authorisation letter to the customs agent;

·You have a PO Box in ‘Brunswick Lower’;

·You had previously organised a tax file number;

·Kenneth had also asked you to arrange an ABN to facilitate the storage of drugs;

·Kenneth had a WeChat name called Mary;

·You admitted calling Dnata and Platinum Freight and using the name Jiahao Shen and of having lied to the police about this earlier in the interview;

·You said that you had lied because you didn’t want to get into trouble;

25The Crown alleged that ‘Oscar’ is Tsang, and ‘Kenneth’ is Kenneth Lam.

26Immediately after the recorded interview ended, you said to police:

‘is the recording off?… I was only told there were two kilos in the package. I had no idea there were 20 kilos. Can you help me’…and that you ‘couldn’t say that in the interview’.

27Also after the interview, you told police, off tape, that you were ‘going to be paid $10,000 Aus for (your) role in receiving the package but thought it was going to be 2-3 kilos of drugs’.

28At about midnight on the same day, when you were being processed by another police officer, you said that you ‘didn’t know that there was 20 kilo’s in the package but  thought that there was only two kilos’. You also said that ‘it was not fair as (you were) just going to hand off the drugs the next day for cash’.

29You also said that ‘It shouldn’t be (you) going to Prison’. You offered to assist police by handing the drugs to Lam in exchange for his payments and having police assist you. Due to operational reasons, this offer was not taken up by police. I understand that Mr Lam has not been arrested, having been denied travel to Australia in Japan.

30But for the removal of the cocaine in the USA, it would have been imported into Australia.

31You are to be sentenced on the following basis-At all relevant times, you:

a.Were a facilitator of the attempted importation of the consignment, arranged by or on behalf of Kenneth Lam;

b.Believed that there was to be 2-3kgs of cocaine in the consignment (as per your admissions to police); and

c.Were to be paid $10, 000.00 for your role in facilitating the import and delivery of the consignment.

32I was told that the references in your admissions to the 20 kilos of drugs emanated from information erroneously given by the American authorities to the AFP.

33Mr Nguyen, your offending is most serious and is deserving of adequate punishment. Your offending must be appropriately denounced, and your sentence must be of a severity which is appropriate in all of the relevant circumstances.

34You were prepared to take part in the importation of a significant quantity of cocaine, a little over one and a half times the threshold for commercial quantity of this border controlled drug. In saying this, I make it clear that you are to be dealt with for attempting to possess a border controlled drug. You were to facilitate the delivery of the drug into Australia on behalf of Kenneth, a person with whom you’d had previous dealings in respect of drugs, and the distribution of imported cigarettes. You created a fairly sophisticated web of deceit in order to facilitate the delivery of the cocaine, which involved the use of false identities, including a false tax file number, as well as a number of phone numbers and email addresses.

35I was told that the only reason that you arranged for your associate to collect the consignment was because you had work commitments and you were often visiting your girlfriend in hospital after she had suffered serious injuries in a motor vehicle accident. The Crown submitted that they were not in a position to prove beyond reasonable doubt that the use of your associate’s address was a measure to distance you from delivery of the ‘would be’ drugs, if this were the approach that needed to be taken. Mr Barker pointed to the lack of sophistication employed by you in giving your own credit card details to pay Platinum Freight, and what you told police in the record of interview in respect of your lack of availability, in support of his submission that your explanation for not taking delivery yourself was truthful.  In the end, while I am unable to find beyond reasonable doubt that the measure was taken to distance yourself from the delivery, nor am I able to be satisfied on the balance of probabilities that it was not - I make no finding in this regard. However, whatever the reason for this arrangement, you were prepared to allow an associate to become implicated in this criminal enterprise, putting him at risk, at least, in the eyes of the law.

36Your role was an important and an active one, as the context in which your offending occurred, revealed. As the Crown submitted, your offending was the culmination of nine days of activity on your part, in the context of an ongoing criminal relationship with Mr Lam. In saying this, I accept that your other criminal activity with Mr Lam was of a fairly limited, albeit, concerning, nature.

37However, as submitted by the Prosecution, your role as a facilitator of the attempted importation involved the following aspects - You:

(a) Liaised with Toll DNATA using a false name (‘Jiahao’) to arrange receipt of the consignment,

(b) Engaged ‘Platinum Freight’ as a customs clearance agent using the false identity ‘Jiahao’, including providing relevant documents, and paying of $1972 with your own credit card,

(c) Liaised with the police (purporting to be Platinum Freight) to arrange delivery of the consignment,

(d) You made arrangements for a third person, Chun Yin Tsang (‘Tsang’) to pick up the consignment, and arranged to pay Tsang to pick up the consignment, and

(e) You instructed Tsang about receipt of the consignment and to conceal the offending by deleting their WhatsApp conversations with him.

38You were motivated by greed, in circumstances where you were envious of other students who appeared to be more affluent than you. You wished to have the trappings of wealth that they appeared to enjoy, as you frankly acknowledged in your letter to me which was tendered at the plea hearing. You were not funding a drug habit, so your motivation was purely financial - in all of the circumstances, I find that your moral culpability is high.

39However, in assessing your role, I have also factored in that you were not at the top of the hierarchy in respect of this importation, but rather, you were doing the bidding for others at a higher level. Further, although the promise of $10,000 was a significant sum, compared with the value of the drugs that you were supposed to handle, and the reward that others in respect of such offending are often promised or receive, the payment was not the highest that one sees in cases of this nature. I also note that you never received the payment.

40I was told that the cash in your possession was winnings from the Casino.

41In your favour, you have no prior convictions, and the character references that I have received indicate that you are someone who has some fine character traits, and you are well regarded by family and your employer, who was present at Court in support of you, as were some other supporters.

42You entered a plea of guilty to the charge now before me at a late stage, after I made some rulings which went against you at the commencement of your trial. You also ran a contested committal hearing. In the circumstances, I allow for an appropriate discount in the sentence that you would otherwise receive, as you ultimately saved witnesses from giving evidence at trial and in circumstances where you entered a plea of guilty at an early stage of the trial, therefore the expense and time of running a full trial was not as great as it might have been. However, the discount that you receive will not be nearly as substantial as it would have been had you pleaded guilty to this charge at an earlier stage.

43Mr Barker submitted that the letter that you wrote to me and the things that you have said to your character referees reflected remorse on your part. In the context of you pleading to the charge now before me so late in the piece, I have difficulty with this submission, especially in view of the deliberative nature of your offending and the context in which it occurred. While you were young when you offended, I find it difficult to accept that you were somewhat naïve when it came to the harmfulness of drugs or the seriousness of what you were doing. While you were prepared to help the police, off the record, this was more in a bid to save your own skin than insightful remorse, in my view. At the end of the day, I accept that you are sorry that you have landed yourself in this serious trouble and that you are sorry for the way that it has impacted on you and your family; however, your ability to feel heartfelt remorse for what you have done and the potential it had to negatively impact on the lives of others is a work in progress.

44I take into account your background, which was set out by Mr Barker in his thorough written submissions.

45You were only 21 at the time of the offending and you have just turned 23.

46You were born in Hong Kong, and your family was always quite poor. Your father has worked as a labourer in the construction industry and your mother has worked as a tour guide on a casual basis. She has also performed home duties, caring for you and your family. Your parents met each other in a refugee camp in Hong Kong, having arrived there as refugees from Vietnam. You have a younger sister who is now 22.

47You undertook your education at public schools in Hong Kong, completing Year 12 in 2013. You were a strong student and finished in the top band of students in your final year at school. Your best subjects were English and accounting-you speak 3 other languages and are most articulate in your fourth, English, as your letter reflects.

48You are also a very skilled sportsman, especially in basketball.

49You came to Australia when you were 17 years old, in order to pursue tertiary studies- You were financially supported by your parents in doing so, who were able to afford this by borrowing and using funds that they were earning through a venture that your father was involved in at the time and which was successful for a while. You obtained a certificate in business and law at MIBT, then in 2015, you commenced a Bachelor of Commerce at Deakin University. When you were arrested, you only had three units to go in this degree, and once sentenced, you are hopeful that you might be able to complete the degree while you are in prison. I express the strong wish that you are able to do so.

50Your parents were unable to sustain your living expenses after a while when you were living in Australia and you worked a number of jobs here in order to pay for your accommodation. Your parents paid for your tuition. From 2015, you lived in the flat in Parkville which is where you were arrested. You obtained employment at a bedding business and did some machine work and administrative tasks. You formed a close friendship with the owner and manager of the business, Mr Phan, who gave a character reference in support of you.

51You also volunteered as a basketball coach and you were very well regarded, as attested to by one of your other character referees.

52You have had one romantic relationship with a young woman-this ended shortly after you were remanded in custody. This person was involved in a serious motorcycle accident several months before you offended, which saw her in hospital for an extensive period with serious injuries, principally to her ankle and foot. I was told that you visited her once a day and usually twice a day.

53You are much loved by your family, who have expressed great dismay, through your sister, at your predicament. Your sister also spoke of your increasing maturity in the past months whilst you have been on remand.

54I also take into account that you have been a model prisoner and that you have completed a number of courses and have a position of responsibility as a kitchen billet in the prison.  

55A number of your character referees expressed disbelief as to your offending, as this was not the person that they had come to know. They also spoke of your strong work ethic and diligence as a student.

56You spent 54 days in custody upon your arrest then you were granted bail. However, you were returned to custody after less than three months when your student visa expired, and you have been in custody ever since.

57You are smart enough to know that you have thrown away a good deal in terms of your studies and your prospects in Australia, and you have endured a substantial period in gaol which has served as a salutary lesson for you. In this regard, I note that this is your first time in gaol and that you have had some visits from those who are close to you, but you are away from your loved ones in Hong Kong, with the prospect that this will be the case for a prolonged period into the future. I accept that your time in gaol will be somewhat harder than for those who have more people to visit them and who are more seasoned in the prison environment.

58It is almost inevitable that you will be deported once you have served your sentence but I do not speculate about this. No submission in respect of this aspect was made by Mr Barker, save that, he said that this prospect further enhanced your prospects of rehabilitation insofar as offending in Australia was concerned.

59In all of the relevant circumstances, I find that your prospects of rehabilitation are very good and I need only place minimal weight on specific deterrence and protection of the community. However, strong weight must attach to general deterrence in a bid to deter others from offending as you have.

60Your youth is an important consideration in this case. You were only 21 when you offended and you have only just turned 23. This is your first occasion before the Courts for any matter, and I must do what I can to maximise your chances of rehabilitation.

61I have considered current sentencing practice in relation to your case, bearing in mind that this is but one consideration to take into account and it is not a controlling one.

62It is conceded by your Counsel, most properly, that the only appropriate penalty in your case is a period of immediate imprisonment and that the period imposed must exceed that which could be accommodated by way of a recognisance release order. However, Mr Barker submitted that in all of the relevant circumstances, especially pointing to your youth and very good prospects of rehabilitation, that I ought impose a lengthy parole period. The prosecution did not oppose such a course.

63After taking all relevant matters into account, I have arrived at a sentence which, in my view, does justice to the weight which ought attach to all relevant sentencing principles.

Would you please stand up?

64You are convicted of the offence and you are sentenced to seven years and eight months’ imprisonment which is to commence today, and I direct that you serve three years and eight months’ imprisonment before becoming eligible for parole.

65If not for your plea of guilty, I would have sentenced you to nine years commencing today with a non-parole period of six years.

66I declare that you have already served 431 days by way of pre-sentence detention which will be deducted from the sentence that I have imposed.  Would you take a seat for a moment please?  Is there anything arising from those remarks?

67COUNSEL:  No, Your Honour, thank you.

68Did you want an opportunity to speak with your client or will you see him downstairs?

69COUNSEL:  I will see him downstairs.

70HER HONOUR:  Yes, thank you.  Yes, if Mr Nguyen could be removed?  Thank you.  Yes, thanks.