Director of Public Prosecutions v Nguyen, Than
[2013] VCC 557
•1 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00288
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THAN NGUYEN |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2013 | |
DATE OF SENTENCE: | 1 May 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen, Than | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 557 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms H. Loh | |
| For the Accused | Ms D. Dempsey |
HIS HONOUR:
1 Than Quang Nguyen, you have pleaded guilty to an indictment charging you that on 22 November of last year you imported heroin in a quantity that was in excess of the minimum marketable quantity.
2 The minimum marketable quantity is two grams. The quantity in pure form that you imported is 147.65 grams. The average purity of the mixture that you brought in was 66 per cent.
3 The total value on the black market in Australia is $157,200 sold at wholesale level, and $243,350 if sold in .2 of a gram caps at street level.
4 You have admitted one prior conviction for an offence of occasioning actual bodily harm. You were sentenced on 15 October 1993 in the Supreme Court of South Australia to a term of imprisonment wholly suspended, and an order that you perform 180 hours of community service over a period of 12 months. Clearly that is an offence of a very different nature. It occurred many years ago in circumstances where you were caught up in a melee which got out of control after one of those persons that you were with produced a knife. It is not suggested by the prosecution that the prior conviction has any substantial significance so far as this sentencing exercise is concerned. For all intents and purposes I place little weight upon it.
5 The prosecution has relied upon a document entitled "Plea summary". That is Exhibit A on the plea hearing. It is accepted by counsel for the defence, Ms Dempsey, that the contents of that document accurately set out the facts, and it can be treated as an agreed statement of facts for the purposes of sentencing. I am not going to read it out again. Suffice to say that it describes how you were intercepted on your return to Australia from a trip to Vietnam, with a number of pellets concealed in your body, each of which contained a mixture, including heroin. As I say, the average purity of the mixture was 66 per cent heroin. Once the pellets had been retrieved, you were interviewed by the police, and you admitted your part in the offence. Amongst your admissions you asserted that you were motivated by a desire to have a $4,000 gambling debt expunged and by the promise that you would be paid a further $10,000 over the top of that debt. Your fares to and from Vietnam were also paid, it seems, by the person who organised your travel, and brought you into this importation venture. Whilst it is to your credit that you cooperated with the police by admitting your offending conduct, your cooperation did not extend to naming those who were also apparently also involved in the venture, or otherwise assisting the police in identifying such persons. I do not find that particularly surprising. It is not unusual and persons are often in fear of revealing that kind of information. But it does not enable me to give you any discount for cooperation in the sense of assisting law enforcement authorities in the enforcement of the law.
6 The maximum term of imprisonment for the offence to which you pleaded guilty is 25 years' imprisonment, and I am bound to take that into account in determining appropriate sentence.
7 Turning to matters personal to you, your counsel helpfully provided me with a document entitled "Outline of submissions", together with a number of accompanying documents. There were two letters, or translations of letters, from your wife, setting out her parlous financial state in Vietnam and the struggles that she has to cope with, the everyday living expenses that she has, not just herself, but in caring for your three and a half year old daughter in Vietnam. Amongst the documents that were tendered were also a number of certificates which indicate that during the period upon which you have been in custody on remand you have used your time wisely. It is submitted on your behalf that those certificates are consistent with the proposition that you are a good candidate for rehabilitation, and consistent also with the proposition that you exhibit signs of remorse. Those documents that I have just identified are marked Exhibit 1 on the plea.
8 The outline of submissions helpfully sets out a good deal about your background. It seems that your mother abandoned you at a young age, and you were brought up by your father in Vietnam. He was involved in the fighting in the war, and ended up being tortured. You were sent to Australia in 1990 at the age of 17 as an unaccompanied minor, and you resided with your aunt initially in Adelaide. You enrolled in high school, Year 10. But after your father died you did not continue with schooling, and you got into the work force. Your father died in 1991, it seemed that you were able to find work consistently between 1991 and the time of your arrest, working as a farm labourer in market gardens as a builder, as a painter, in a steel factory, and as a waiter in a restaurant, all of which would suggest that you have the capacity to get back to work when you are free to do so, and provides some further support for the proposition that you are a good candidate for rehabilitation.
9 Your marriage broke down, I am told, in 2007. You started gambling at that time, and over the period between then and your departure from Vietnam, which led to this matter, you built up a debt of some $4000 to lenders in Australia. You had in the period after your marriage broke up met a young lady who lives in Vietnam, and you have a daughter by her aged three and a half. She is of course the author of the two letters to which I have referred earlier. You have provided support for her, and indeed borrowed what is said to be large sums of money from lenders in Vietnam to help support your wife and daughter, and your wife's extended family. Your wife, of course well aware of your current predicament, has indicated clearly that she stands by you and expects your relationship to continue. You still, it seems, have the broader family support of your aunt. You left Adelaide in your mid twenties, and you joined extended family residing in Smithfield I am told. And you were a resident of Sydney at the time of your arrest for this matter. You will be required to serve a term of imprisonment in Victoria. It seems that you have no relatives in Victoria. You do not have any contacts in Victoria. Apart from those persons that you struck up a social relationship with in prison, you are essentially isolated. Clearly you are isolated from your wife, your partner, and your daughter, who remain in Vietnam, and you will not be in a position to assist them to move to Australia whilst you are incarcerated. Your separation and your inability to provide support for them during your sentence will no doubt weigh heavily upon you and increase the burden of the term of imprisonment that I will impose upon you, and I take all that into account in assessing an appropriate sentence.
10 I think because you have limited English and because there are cultural differences between yourself and presumably the majority of the prisoners with whom you are mixing, that too is a factor that makes the burden of your time in custody more difficult than for somebody who has a greater capacity to integrate into a prison community. As I indicated in discussion with your counsel, it does not seem to me that the reasons you put forward for involving yourself in this offence really mitigate this offending conduct substantially, if at all, and I have indicated that I do not accept all of what you said to the police in the course of your interview. It was not supported on oath before me. I am willing to accept that you are extremely concerned about the effect of your predicament upon your family, that you are sorry in that respect, and that you have set about yourself useful in a prison environment, and demonstrating a capacity for rehabilitation. I do not regard those matters as signs of remorse of particular significance. Again, I have not received any evidence on oath to support the proposition that remorse is a significant sentencing consideration.
11 I do think you are sorry that you got caught, but you rolled the dice and came unstuck. As I say, I do think you are concerned about the effect on your family, and there is not doubt that that effect is likely to be significant.
12 I am required under the Commonwealth sentencing provisions, particularly s.16A of the Commonwealth Crimes Act, to take into account a number of matters. Under s.16A(2) there are a number of items set out there which clearly are relevant to these proceedings. The nature of your offending conduct, I accept that you are a courier in this criminal venture, and therefore not an organiser, that you fall to be sentenced as a courier towards the lower end of the scale of sentencing for offences of this kind. This is clearly a very serious offence, and the seriousness with which the Parliament regards offending of this kind is reflected in the maximum term of imprisonment of 25 years. It is very much to your credit that you admitted your offending conduct, and that you have pleaded guilty, and indicated a plea of guilty at the earliest opportunity. That reflects a willingness to facilitate the course of justice, and has significant benefits in terms of avoiding the expense of a trial, and you are entitled to a discount for the utilitarian benefits arising from that early indication of a plea of guilty.
13 I do not regard specific deterrence, that is deterring you, as a significant sentencing consideration. It is not irrelevant. If you were faced with a situation again one would hope that this experience would prevent you from falling into the temptation of engaging in similar conduct again. Nevertheless, in sentencing you I need to consider deterring you in the future. It is not put forward, as I understand it, that your family circumstances amount to special circumstances. I have already indicated that those circumstances are likely to cause your wife, your partner, and daughter, hardship, and in particular to make serving your sentence more onerous than for a person who did not have those concerns.
14 I regard your prospects of rehabilitation as good. It is submitted on your behalf that I should facilitate your prospects of rehabilitation by imposing a minimum non-parole period that is lower than usual, so that you may be released on parole at an earlier stage, and resume your role in the work force. There is some force in that proposition. It will enable you to get back into the work force and to resume the support of your partner and child, and your partner's extended family. I am also invited to give proper regard to the principle of totality, and parsimony, that is, to impose no more a severe sentence than is necessary in the circumstances to achieve the competing sentencing objectives.
15 The prosecution provided me with a document headed "Sentencing submissions", which is Exhibit B on the plea. They have drawn my attention to s.16A, both sub-s.(1) and sub-s.(2), and specifically to a number of the considerations under s.16(2) that are relevant in this particular case. I take all those into account. The submissions also contain a sentencing range proffered by the prosecution which involves a head sentence of between five and six and a half years' imprisonment, with a minimum period to be served of two and a half to four years before you become eligible for parole. I indicated to counsel for the prosecution that it seemed to me that there was tension between that range, having regard to all the circumstances of your case, and to some of the decisions of the Court of Appeal in this state, including Harper v R (2011) VSCA 314, and a decision of the Commonwealth DPP against Johnson (2012) VSCA 38. And perhaps to some extent, the decision in DPP v Bui (2011) VSCA 61, to which I was referred by the prosecution. In a comparative sentencing table, which is designed to support the range proffered by the prosecution as being the range within which sentence should be imposed, many of the cases in the table are cases of first instance other than the matter of DPP v Bui, to which I have just referred. Most of them are decisions of district courts in either New South Wales of Western Australia. They provide some indication of what is happening elsewhere in Australia, and identify similar factual circumstances to those that apply in this case, and tend to support the range proffered by the prosecution. I am far from convinced however that that range is an appropriate one in all the circumstances of this case.
16 In my opinion, a sentencing range which begins with a head sentence of five years for offending of this kind does not identify the range. It may identify the correct sentence, the range, having regard particularly to those cases of Harper and Johnson, to which I have referred, would seem to encompass sentences of less than five years, head sentence, in appropriate circumstances. Balancing all of those factors that I have to consider in arriving at an appropriate sentence, including the need to have regard to current sentencing practice, would you please stand, I am ready to impose sentence.
17 For the offence of importing a marketable quantity of heroin I convict you and sentence you to a term of imprisonment of four years and six months. I order that you serve a minimum term of two years and nine months before you are eligible for parole.
18 But for your plea of guilty to this offence, I would have sentenced you to a term of six years' imprisonment, with a non-parole period of four years.
19 HIS HONOUR: I declare that 160 days of pre-sentence detention, that is not including today's date, are to be reckoned as time served under the sentence that I have imposed, and that the records of the court should reflect that fact. Is there any other order that I need make?
20 MS LOH: No, Your Honour.
21 HIS HONOUR: Thank you both for your assistance. Of course the sentence commences today, I probably need to state that in regard to the Commonwealth legislation.
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