Director of Public Prosecutions v Nguyen, Thanh
[2013] VCC 579
•29 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01252
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH NGUYEN |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 April 2013 | |
CASE MAY BE CITED AS: | DPP v Nguyen, Thanh | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 579 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Stevens | |
| For the Accused | Mr K. Oldis |
HER HONOUR:
1
Thanh Nguyen, you have pleaded guilty to an indictment charging you with one offence of importing Tier 1 goods, namely pseudoephedrine, without authorisation contrary to s.233BAA(4) of the Customs Act 1901. The total quantity of pure pseudoephedrine that you imported was 3737.4 grams, which is 149 times the minimum commercial quantity of that drug, which is
25 grams. The maximum penalty for the offence concerning that amount is five years' imprisonment. You have no prior convictions either here or in Vietnam. You were granted bail after your arrest and you have never spent any time in custody.
2 Mr Stevens, on behalf of the prosecution, has tendered and read out in open court a summary of the case that is brought against you, which is Exhibit 1. You have admitted the truth and accuracy of that summary as amended by the prosecution, and I sentence you on the facts contained in that document.
3 The relevant facts may be outlined as follows:
4 You were born on 15 February 1960 and are an Australia citizen of Vietnamese descent. You left Australia for Vietnam on 23 February 2012. You returned to Melbourne on Saturday 10 March 2012 on Vietnam Airlines flight VN781.
5 Prior to your arrival into Australia you completed and signed a Vietnamese language incoming passenger card and you listed your intended address at
5 Odette Place, Melton West, Victoria. On that card you marked "No" to Question 1, which asks, "Are you bringing into Australia goods that may be prohibited or subject to restrictions, such as medicines, steroids, pornography, firearms, weapons, illicit drugs?" You declared "Yes" to Question 6 in relation to bringing in food, that is, dried, fresh, preserved, cooked and uncooked food. You answered "No" to the other questions on the form.
6 After being processed at the entry control point, you were questioned by a customs officer about your travel. You did not have the assistance of a Vietnamese interpreter. You stated that you had attended your father's funeral and visited family and friends whilst in Vietnam.
7 You were selected for a baggage examination. At the baggage examination hall you presented with two items of luggage, a blue/grey carrier bag and a blue/grey soft-sided suitcase. You were asked a series of questions prior to the baggage examination, to which you answered it was your signature on the incoming passenger card, you had read and understood all the questions on the card, you had packed your bags and were fully aware of the contents of the bags.
8 During the examination, officers located seven packets of Magic Taste Abalone Mushroom seasoning and six packets of Hatnam mushroom granules in your suitcase. When customers officer Gadd asked you what was inside the packaging, you replied "Mushroom."
9 One of each of the types of packets was opened. Each of them contained a similar yellow granular substance. Presumptive testing on the contents of the packets yielded a positive result for the presence of ephedrine.
10 When questioned about the food, you stated that you had bought the food for a friend for a few dollars from a market in Vietnam and that it was for a friend. You were then given a caution and your rights. You were taken to an interview room and a Vietnamese telephone interpreter was contacted. You were advised that presumptive testing of the bags of food found in your luggage were positive for ephedrine. Customs officers searched your luggage and detained you for a frisk search. Both searches returned a negative result.
11 Customs investigators attended Melbourne International Airport and interviewed you with the assistance of a Vietnamese speaking telephone interpreter. During the interview you stated that you reside at 83 George Street, St Albans, you work as a cleaner and also at a farm picking apples; you earn approximately two to three hundred dollars a week; you travel to Vietnam to visit your sick brother and to visit family; there you had met an old friend called Tang but you did not remember his surname; you had last seen Tang ten years earlier; Tang asked you to bring back the food for his brother and his brother was to visit to collect the food; you had not met Tang's brother before; you were told the items could not be bought in Australia; you told Tang that you did not want to bring back anything illegal; to allay your concerns, they bought you some soup to try which had been cooked using the same food packets; you tasted the soup and believed there was no poison in there, so you agreed to bring the packets back to Australia; the next day Tang gave you some more packets. You said that you did not think it was illegal, you trusted the wrong person. You last visited Vietnam in October, November 2011 as your brother had had a stroke, and you said that you did not buy the food, that a friend bought it for you.
12 On 16 March 2012 samples of each packet were sent for analysis, and a chemical analysis confirmed that the yellow granular substance was pseudoephedrine ranging in purity between 59.6 and 62.7 per cent. The gross weight of the substance was 6091.5 grams and the pure weight of the pseudoephedrine was 3737.4 grams.
13 The cost of obtaining that number of grams of pure ephedrine from pseudoephedrine-based medication purchased on the black market would be in the order of $520,000. Using South Australian figures, that amount of pseudoephedrine could be sold at a price between $250 per ounce, that is, for a total of about $330,000, and $500 per ounce for a total of $660,000.
14 The importation of pseudoephedrine is restricted under the Customs Prohibited Import Regulations 1956. To import the substance into Australia the importer needs the written permission of the Secretary to the Minister administering Therapeutic Goods Act 1989, currently the Department of Health and Ageing, or an authorised person.
15 The Office of Chemical Safety and Environmental Health is part of the Department of Health and Ageing and responsible for issuing permits to importers of goods listed in Schedule 4 of the regulations, which applies to pseudoephedrine.
16 The Department of Health and Ageing, Office of Chemical Safety and Environmental Health treaters and compliance has verified that you did not have permission to import pseudoephedrine into Australia.
17 Pseudoephedrine is listed as a Tier 1 good in Schedule 1AA of the Customs Regulations 1926, with a critical quantity of 25 grams.
18 During the plea hearing your counsel, Mr Oldis, made a number of submissions on your behalf. He noted that as the substance was infused into the food parcels, you were not aware of the amount of the substance involved. However, he said that your plea was squarely made on the basis you were aware that there was a substantial risk that the packages you were carrying contained Tier 1 goods and you went ahead and imported them.
19 Your personal circumstances are outlined in the psychological report from Michael Crewdson, dated 21 March 2013, which was tendered on your behalf.
20 You are 53 years old and were born in the south of Vietnam, where you lived with your family. Your are literate in Vietnamese. You left home at the age of 15 to work as a bus driver's assistant and then as a bus driver. Your mother died in a traffic accident in 1976. In 1983 you and some family members built a boat and sailed to Malaysia. You spent four years in a refugee camp before coming to Australia in 1987. Your father was killed in a traffic accident in 1989 and you have a brother in Vietnam who is paralysed due to a stroke.
21 Prior to the events which bring you to the court today, you have no prior convictions and have never faced police charges.
22 In 1989, around the time you became an Australian citizen, you married your former wife, a seamstress, and for some time you were involved with her in a business employing machinists to sew garments. You had a daughter, who is now in her early twenties, but have had no contact with her in the past ten years. The business failed in 2004 and you separated. You became depressed. You started travelling regularly to Vietnam.
23 A few years ago you met a woman there, Thi Hanh Nguyen, who you had known from your younger days. She had a small café which you helped finance. You developed a relationship with her which was sporadic and depended on your visits to Vietnam. She and her brother have disappeared since your arrest.
24 At the time of the offence you were living in a flat with friends. You had worked as a cleaner and fruit picker. For the past six months you have been living in a living room of a married couple's Housing Commission flat. You have not worked since you were charged and bailed. You spend your days drinking and ruminating.
25 You are 53 years old and live on a Disability Support Pension. You have suffered from a major depressive disorder for the past two to three years, according to the Registrar of Psychiatry, Dr Quan Kan Le, and have been on antidepressant medication since that time.
26 Mr Crewdson reported that you have longstanding depression with anxiety and that your depression is within a range that warrants hospital admission. He also diagnosed an adjustment disorder relating to the outcome of the present hearing. He stated that you are socially isolated, introverted and have frequent suicidal thoughts and felt abandoned and betrayed.
27 The prosecution acknowledge that the range proposed by it, a head sentence of between 26 to 38 months with a minimum period of 16 to 24 months in custody. needed to moderated in the light of the plea material relating to your psychological background and state. However, the prosecution relied on your role as a courier, the large quantity of the substance you imported and on your knowledge of the substantial risk that the packages would contain Tier 1 goods. The prosecution submitted that the explanations you gave at the airport without an interpreter were inconsistent with those given later when you were interviewed with an interpreter and that it should be inferred that you would receive financial gain.
28 The prosecution conceded that you pleaded guilty at an early opportunity and offered to assist police and that these factors indicate remorse. The prosecution also acknowledged your prior good character, but submitted that on the authorities this factor is of less weight in importation cases.
29 The prosecution acknowledged that specific deterrence was not relevant in this case, but submitted that there was no evidence of any current risk of suicide or self-harm so as to preclude an immediate term of imprisonment.
30 The prosecution provided me with a table of comparative cases along with some sentencing remarks and submitted that even taking into account the psychological evidence tendered on your behalf, immediate release would be outside the range.
31 Your counsel submitted that because of your depression, social isolation and relationship with the young woman in Vietnam, you were vulnerable to being persuaded to do what you did. He said that your poor English and fragile psychiatric state will make a gaol term very burdensome for you. In the circumstances it was submitted that you are not an appropriate vehicle for general deterrence. He also submitted that in this case there was no evidence that you were to receive any payment for bringing the packets into the country, that you have never had any gambling problems and that you had a very limited role in the importation. You do not have a car, do not pay rent and live on benefits. You pleaded guilty at an early stage and have shown remorse. You have no prior history in Australia and must be considered to have good prospects for rehabilitation. He submitted that you are most unlikely to re-offend, as you are very depressed and spend all your time indoors drinking.
32 In the circumstances it was submitted that it was appropriate that you be sentenced to a term of six months with an order that you be released upon a recognisance of $100 to be of good behaviour for a period to be specified.
33 I give you full credit for your early plea of guilty, which has saved the community a trial and witnesses the inconvenience of attending court. I accept that you are remorseful and that you are a person of good character with good prospects of rehabilitation. There is no evidence before me that you were to receive payment for what you did, nor that you were motivated by any gambling or other problem .
34 I take into account that you are suffering a major depressive disorder as well as an adjustment disorder in determining an appropriate sentence and I will reflect this in the reduced period that you will have to serve before becoming eligible for release.
35 I accept that it is very unlikely that you will re-offend. However, the quantity of the drug you imported was very substantial and the role of courier is often undertaken by people without prior convictions.
36 I take into account the maximum sentence for this offence. I have endeavoured to structure a sentence which puts you in the appropriate place in the hierarchy of offending and which is consistent with the sentencing of others in this court for similar offending.
37 Would you please stand?
38 On Charge 1, with conviction, you are sentenced to a term of imprisonment of 24 months with a release on recognisance after serving 12 of those 24 months. This means that after serving 12 months you must be of good behaviour for the balance of the term or else you will be liable to be called back to serve the balance of your sentence. I will fix the recognisance in the sum of $100.
39 MR OLDIS: If Your Honour pleases.
40 HER HONOUR: Do you understand that, Mr Thanh?
41 PRISONER: Yes, Your Honour.
42 HER HONOUR: Thank you.
43 MR STEVENS: Your Honour, if I could just have a moment to prepare the bond form.
44 HER HONOUR: I note that Mr Thanh, well, at the time you made your plea, was taking medication, so obviously these are the sorts of things that would want to be recorded on the custody management issues.
45 MR OLDIS: Yes, that's right.
46 HER HONOUR: The presence of his psychiatric illness, his major depressive disorder and his anxiety and adjustment disorder, the fact that he takes antidepressant medication and requires a Vietnamese interpreter?
47 MR OLDIS: That's right, Your Honour. If Your Honour pleases.
48 HER HONOUR: All right.
49 MR STEVENS: Your Honour, can I just confirm?
50 HER HONOUR: Yes.
51 MR STEVENS: In terms of the good behaviour period, would that be expressed as good behaviour for 24 months or for 12 months given that Your Honour has indicated a balance of the term?
52 HER HONOUR: You are right. Twelve months. Yes.
53 MR STEVENS: That's the way I filled the bond form out, Your Honour, so I'll hand that up now.
54 HER HONOUR: Yes, thank you.
55 MR STEVENS: Thank you, Your Honour.
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