Director of Public Prosecutions v Thu Thi Nguyen
[2012] VCC 1878
•7 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01223
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THU THI NGUYEN |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 November 2012 | |
DATE OF SENTENCE: | 7 December 2012 | |
CASE MAY BE CITED AS: | DPP v Thu Thi Nguyen | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1878 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Plea – Sentence – Criminal Code Act 1995 (Cth) – Trafficking in a controlled drug – Heroin.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. McGillivray | Commonwealth Office of Public Prosecutions |
| For the Accused | Mr M. Gumbleton | Victoria Legal Aid |
HER HONOUR:
Introduction
1 Ms Nguyen, I am going to ask you to stay seated. I will read my sentencing remarks slowly, and then I will ask you to stand when I am ready to sentence you..
2 You have pleaded guilty to one charge of, on 23 February 2011, trafficking in a controlled drug, namely heroin, the maximum penalty for which is 10 years’ imprisonment and/or 2,000 penalty units, which amounts to $220,000, and that relates to s.302.4 of the Criminal Code Act 1995 (Cth).
3 For the purpose of s.314.1(1) of the Criminal Code, the minimum marketable quantity for heroin is 250 grams and the traffickable quantity is 2 grams.
4 The penalty involved is a clear indication of the seriousness of this offence, as is the fact that you trafficked in a quantity many times more than the minimum, namely, 223.8 grams at 72.7% purity or 162.7 grams of pure heroin.
5 During the course of the plea hearing it was acknowledged on your behalf that the amount trafficked of this controlled drug was potentially very valuable, whether sold for its wholesale or street value.
Antecedents
6 At 42 years of age you have no prior convictions. You were born in Vietnam and migrated to Australia at age 17. When you committed this offence, you were unemployed, living in shared rental accommodation in Sydney and a single mother raising two daughters, now aged 13 and 18, respectively.
The circumstances of the offending
7 The prosecution’s opening (as amended) was read into transcript and tendered as an agreed summary of the facts. A copy of that part of the summary relating to the circumstances of the offending is marked as attachment “A” to my reasons for sentence. Accordingly, I do not propose to repeat the content of the summary in any particular detail.
8 In 2010 and 2011, using the codename “Operation Rattlesnake”, the Victoria Police Drug Task Force in cooperation with a number of other police agencies investigated a drug syndicate involved in importation of heroin from Vietnam to Australia through the use of drug couriers and in domestic trafficking of imported heroin.
9 Khanh Minh Duong (“Duong”) headed the syndicate based in New South Wales. On 22 February 2011, police intercepted text messages and calls between you and Duong in which you initially arranged to courier 5 ounces of heroin to Melbourne.
10 Later the same day, you booked a bus ticket to Victoria. This, no doubt was intended to avoid passing through any airport checks. You then went to Duong's premises in Cabramatta where you received some 8 ounces of heroin to transport to Melbourne.
11 The same evening you travelled overnight by bus, arriving at Campbellfield at about 6:40 am on 23 February 2011.
12 Prior to your arrival in Victoria, Duong notified a Melbourne-based associate, Van Lon Bui, that you were carrying 8 ounces of heroin.
13 As the various messages exchanged reveal, Bui was to collect the heroin from you. You subsequently gave him directions for the exchange of the heroin. However, before this meeting took place, police intercepted a vehicle in which you were travelling in Thomastown. At the time, you were carrying a hat containing a plastic bag with three egg shaped pellets of heroin weighing approximately 8 ounces. You were also carrying $1450 in cash in your purse, which you later told police was the balance of $2000 paid to you in cash to transport the package.
14 At 10:33 am on 24 February 2012, you telephoned Duong and Bui and told them that you had been arrested. Notably, on 28 March 2011, you exchanged text messages with Duong in which you expressed concern about the weight of the heroin trafficked and expressed your relief when he indicated that the amount was the equivalent of 8 ounces only. You have acknowledged that you took a calculated risk in carrying the drug. As your counsel conceded, the enquiry made indicated that you knew enough about trafficking to be concerned that you had not reached the 250 g threshold for a commercial quantity of heroin under the Victorian legislation, that is the Drugs, Poisons and Controlled Substances Act.
15 You participated in a taped record of interview on 23 February 2011. Having been caught red-handed, you made a number of relevant admissions. However, you have conceded that your responses were not full and frank because, among other things, you tried to protect those higher up in the chain of distribution by not disclosing the identity of the person with whom you had arranged to transport the drug.
16 You attribute this offending to the need to repay a gambling debt. Whilst this may explain your motivation for this offending, it was acknowledged at the plea hearing that this factor is not mitigatory of your sentence.
17 I was told that due to the larger ongoing investigation, there was some delay in finalising the prosecution of your charge. However, on 16 July 2012, you were committed to trial in the County Court by way of straight hand-up brief after entering a plea of guilty to this charge.
18 For sentencing purposes, the prosecution has conceded that in the circumstances described your plea was entered at the earliest opportunity. The early plea of guilty entitles you to a substantial sentencing discount as it demonstrates a willingness to facilitate the course of justice and it has a utilitarian value in sparing witnesses the inconvenience and the community the cost of a contested trial.
19 Your plea is also an indicator of a level of remorse, and allowing for the reports contained in the bundle of references submitted by family members, I have accepted that you are probably very sorry for the predicament in which you have placed yourself, your young daughters and your mother, for whom you had been a paid carer following her diagnosis of terminal liver cancer earlier this year.
20 The delay in prosecuting your charge, according to your counsel some 19 to 21 months, also has some mitigatory impact, as during this comparatively lengthy interval you have reportedly abstained from gambling and you have had the prospect of imprisonment hanging over your head.
Personal Circumstances
21 I was told that you are the second eldest of seven siblings, aged from 24 to 45 years. Currently all of your siblings reside in Melbourne.
22 It appears that your parents' first five children were born in Vietnam. The early years in Vietnam were overshadowed by poverty and by your father's lengthy imprisonment due to his opposition to the government of the day.
23 In 1985, your parents escaped from Vietnam, travelling by boat via Malaysia with only their eldest and youngest children. This meant that you and two other siblings were left in the care of your paternal grandparents. You too eventually escaped by boat via Indonesia accompanied by only one of your younger brothers and, in 1987, you migrated to Australia.
24 I was told that you were educated to age 15 in Vietnam and, after coming to Australia at age 17, you worked in factories with your father. Accordingly, unlike four of your younger siblings, raised and educated in Melbourne, who are bilingual and have attained higher educational qualifications, you are not fluent in English or well educated.
25 You were 24 when your eldest daughter was born in Melbourne. I was told that at age 28 you separated from your partner because he was violent. You then moved to Sydney where you have raised your eldest daughter without support from her father. However, after moving to Sydney you re-partnered and, at the age of 29, you gave birth to your youngest daughter, whose father left shortly after the birth.
26 As I have already noted, you have raised your daughters without the support of either father. Without indicating when this happened, I was told that until there was a shortage of this work, you worked as a sewer in Sydney. However, for sometime now, you have been reliant on government support and, more recently, on a carers’ pension received since you took over the care of your terminally ill mother earlier this year.
27 It is to your credit that both your daughters, the eldest of whom is now studying law and business degrees, have continued to perform well in their studies, despite the likely impact of this offending on their lives and despite what family members have described as your long standing gambling addiction.
28 By your account, you were introduced to gambling by your mother, a lifelong gambler. You started gambling when your daughters were in school, ostensibly to escape from your single parenting duties and loneliness. This habit apparently escalated after your father died in 2009.
29 It appears that since your arrest you have focussed on your children's upbringing and caring for your mother. However, it was not clear from the material tendered when and over what period you obtained the counselling to which your sister, Ngoc Tran, referred in her written reference on 22 November 2012. Nonetheless, you report that since your arrest, you have not gambled.
30 It was conceded on your behalf that you are not able to establish exceptional circumstances due to the impact of a custodial sentence on your family or dependents, which could justify avoidance of immediate incarceration. In formulating the sentence, I have nonetheless taken into account the likely greater burden faced by you due to your poor command of English and the impact of the separation from your daughters and mother during any period of imprisonment in Victoria.
31 As I have already indicated, the references written by family members are very positive. They show that you enjoy ongoing support from your immediate and extended family, a number of whom demonstrated their support by attending Court both at the plea hearing and today.
32 However, until you address the long standing factors underlying this offending, the risk of further offending remains, although your otherwise good character suggests that your current prospects of rehabilitation are probably favourable.
Sentencing Principles
33 Factors such as the quantity of the drug involved, your role as an interstate courier, the reward received, what assistance, if any, was given to authorities post-arrest, your criminal history, or lack of it, and your prospects for rehabilitation are among the factors relevant to the formulation of your sentence in respect to the offence of trafficking heroin in a quantity many times more than the minimum.
34 The significant penalty for trafficking heroin, among other things, is a strong indication of Parliament’s intention to protect the community from distribution of illicit and harmful drugs. The circumstances of your case evidence an important role in facilitating illicit drug distribution and, no doubt, an appreciation that, if caught in this activity, you would face stern punishment.
35 The prosecution has called for an immediate custodial sentence in a range between 12 to 24 months imprisonment, with 6 to 12 months to serve.
36 On your behalf, your counsel conceded that a term of imprisonment is the only appropriate disposition. Moreover, he did not cavil with the range submitted by the prosecution. However, relying on the matters raised in mitigation, it was submitted that a sentence that did not require actual imprisonment, namely a fully suspended sentence under a recognisance release order, or a sentence that only requires you to serve a short period in custody before release, was appropriate.
37 During the plea hearing, there was some discussion of comparable sentences. Whilst other persons have been charged for offences relating to the drug syndicates operating in Victoria and New South Wales, it appears that, of the persons who entered pleas of guilty on 16 July 2012, your plea is the first to be heard.
38 I was also told that one person who acted as a courier for Duong has been dealt with summarily on one charge of trafficking. This charge was brought under Victorian legislation which involves a maximum penalty of 15 years’ imprisonment. This man apparently had no prior record. He and another person were intercepted whilst carrying some 215.46 grams of heroin, with an import grade purity of 73.9%. The Magistrate apparently imposed an immediate custodial sentence of a straight 12 months’ imprisonment.
39 In sentencing you today, insofar as they are relevant, I have taken into account each of the matters contained in s16A(1) and (2) of the Crimes Act 1914 (Cth). However, general deterrence also has an important part to play in the formulation of this sentence. The sentence must acknowledge the penalties applicable to this crime, the difficulty in detecting drug offences, the great social consequences suffered through the distribution of illicit drugs and send a strong warning to who may be similarly minded to avoid trafficking illicit drugs.
40 Your history and the period over which you have reportedly abstained from gambling suggests that specific deterrence has a reduced role in the formulation of this sentence, although the sentence must nonetheless protect the community from someone who is prepared to participate in the distribution of illicit drugs.
41 For the purpose of s17A of the Crimes Act, after having considered all other available sentencing options, I was satisfied that no sentence other than a sentence of imprisonment is appropriate.
42 However, allowing for all of the circumstances of this case I was satisfied that to achieve relevant sentencing purposes, a sentence involving both an immediate period of custody and your early release on a recognisance release order is justified.
Sentence
43 Please stand, Ms Nguyen.
44 On one charge of trafficking heroin you are convicted and sentenced to 12 months’ imprisonment.
45 The total effective sentence is 12 months’ imprisonment. The sentence starts today.
46 In accordance with sub-s.20(1)(b) of the Commonwealth Crimes Act I propose to order that you be released after serving 6 months of the sentence imposed upon your own recognisance in the sum of $1,000 on the condition that you be of good behaviour for a period of 6 months.
47 I am required before I make that order, to explain to you the purpose and the effect of the order, the consequences that may follow if you fail, without reasonable cause or excuse, to comply with the conditions of the proposed order, and that any recognisance given in accordance with the order may be discharged or varied under the Act.
48 The purpose and effect of the recognisance order is to grant you conditional freedom after you have served 6 months of the sentence, the condition being that you be of good behaviour for a further period of 6 months. If you breach the recognisance order, which comes into effect, as I said, after you have served 6 months of the sentence and are released, you will be brought back before the court, and most likely that will be before me, to be dealt with for that breach and to be resentenced. The orders that I am now making may be extended, or revoked, and you may be required to serve the remaining term of imprisonment. A breach would also mean that the sum of $1,000 would be forfeited.
49 You should also bear in mind that having given your recognisance, either you or the Commonwealth Director of Public Prosecutions may apply to vary or discharge it.
50 Do you understand what I have said, and do you agree to the conditions of the recognisance release order.
51 PRISONER: (Through interpreter): Yes, Your Honour.
52 Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty a sentence of 18 months’ imprisonment with a recognisance release order after serving 10 months’ imprisonment would have been imposed.
53 I understand that there is no pre-sentence detention.
54 A forfeiture order was sought at the plea hearing and was not opposed. I have signed that order. Counsel, do you have a recognisance release order?
55 MS McGILLIVRAY: I do, Your Honour. I haven't shown it to my friend.
56 HER HONOUR: Perhaps if you could just show it to her. Please take a seat, Ms Nguyen for a moment.
57 MR GUMBLETON: Yes, thank you, Your Honour.
58 HER HONOUR: Mr Gumbleton, you probably want to approach the dock, my associate will approach as well.
59 MR GUMBLETON: Yes.
60 HER HONOUR: Do I need to look at that?
61 MS McGILLIVRAY: Your Honour, it needs to be signed obviously for the order to have effect by Your Honour.
62 HER HONOUR: I realise that, but she needs to sign it first, does she not?
63 MS McGILLIVRAY: It doesn't really matter, Your Honour. Once it's signed she's agreeing to the order being made, and then Your Honour can formally make the order, yes.
64 HER HONOUR: All right. I'll sign it first. Thank you for assistance in that, Mr Gumbleton. I have made that order in the terms already mentioned. Are there any other matters I need to address in relation to the making of the orders or any matters that I raised in my sentencing remarks that require clarification?
65 MS McGILLIVRAY: I don't believe so, Your Honour.
66 MR GUMBLETON: No, not from my perspective, Your Honour. Your Honour, I know that the procedure that Ms Nguyen will be taken into custody into the cells downstairs. I don't know what Your Honour's practice is, I certainly know what the direction is, that that needs to happen when Your Honour leaves the bench or before Your Honour leaves the bench.
67 HER HONOUR: Usually before I leave the bench.
68 MR GUMBLETON: I'm asking really as a favour. I need to be in another court at 10.30, and I just ask if I can approach her and speak to her with the assistance of the interpreter without having to clear the cells downstairs. If that's not a possibility, I entirely understand it, I'll go downstairs and do it as quickly as I can.
69 HER HONOUR: Well, Mr Gumbleton, I need to clear the court too, because there are other people here as well, that's the difficulty, isn't it.
70 MS GUMBLETON: Yes, of course.
71 HER HONOUR: And as you know, the practice is not to have people other than counsel or security officers approaching the dock.
72 MS GUMBLETON: Yes.
73 HER HONOUR: I am happy for you to approach the dock now, and I will wait and allow you to have a short discussion, and then I'll clear the court.
74 MS GUMBLETON: I would be really indebted. Thank you for that.
75 HER HONOUR: Please go ahead.
76 MS GUMBLETON: Your Honour, I'm very appreciative, thank you, and I do apologise for appearing scantily dressed, Your Honour.
77 HER HONOUR: Please remove the prisoner. Thank you for your assistance.
- - -
Attachment “A”
PROSECUTION SUMMARY
INDICTMENT
The Accused is charged with the following:
Trafficking a controlled drug, namely, heroin, contrary to subsection 302.4 (1) of the Criminal Code (Cth)
PENALTIES
The maximum penalty for the offence of trafficking a controlled drug, contrary to subsection 302.4 (1) of the Criminal Code (Cth) is a period of imprisonment for 10 years and/ or a fine to a maximum of $220,000.
FACTS
BACKGROUND
Operation Rattlesnake was an investigation conducted by the Victoria Police Drug Task Force in co-operation with a number of other police agencies. Phase One of the Operation was investigated between August 2010 and February 2011, with Phase Two investigated between August 2010 and April 2011. This matter is part of Phase Two. The operation targeted a well organised syndicate involved in the importation of heroin from Vietnam to Australia through the use of drug couriers who were concealing heroin internally and the domestic trafficking of the imported heroin.
Over the course of the investigation, police gathered evidence using multiple telephone intercepts, listening devices, closed circuit television footage, (hereinafter referred to as CCTV) from multiple locations, in conjunction with police physical surveillance. The accused generally spoke in Vietnamese and used code to discuss their illicit activities.
Khanh Minh DUONG (‘DUONG’) headed the syndicate based in New South Wales. He also utilised several sub - syndicates based within both New South Wales and Victoria to import and traffic drugs.
The Accused, Thu Thi NGUYEN, is a resident of New South Wales it was her role as part of the syndicate to transport heroin. On 22 February she travelled from Liverpool, New South Wales via bus to Campbellfield, Victoria in possession of heroin. On 22 February 2011 the offender was arrested by Victoria Police in possession of 8 ounces of heroin (223.8 grams at 72.7% pure, therefore 162.7 g pure heroin)[1].
[1] Pages 1487 – 1493, statement of …, pages 1494 – 1495, Customs Certificate of Analysis (Volume 5 of the Brief of Evidence)
22 February 2011:
In a series of text messages and calls between the Accused and DUONG they make arrangements for the Accused to courier heroin to Melbourne. The Accused indicates via text message to DUONG that she is willing to transport the heroin. When she hadn’t heard from DUONG about an hour later, she telephoned him. The Accused asked how much she will be given. DUONG says “a few hundred”, the Accused says she will “drop by later”. DUONG later sends a text message saying that he will “give her 500 to spend”[2]. Consistent with code used in other telephone intercepts, this is a reference to 5 ounces of heroin.
[2] Pages 10816 – 10822 (Volume 24)
The Accused is under physical police surveillance at this time, which shows that she left her house in Canley Vale at 3:47 pm. She arrived at DUONG’s premises in … at 5:40 pm and went inside. She is observed leaving the premises with her handbag at 5:45pm. Surveillance is maintained on DUONG’s premises and he is seen outside the premises at 5:58 pm[3]. This is when the Accused was supplied with 8 ounces of heroin to transport to Victoria by Khanh Minh DUONG.
[3] Pages 2747 – 2753 (Volume 8, surveillance photographs )
At 4:42 pm the Accused had booked a Firefly Express bus ticket via the internet to travel to Victoria that night[4]. At about 8 pm the Accused departed Sydney on board the Firefly bus bound for Melbourne. The Accused disembarked from the bus on Sydney Rd, Campbellfield at about 6.40 am.
[4] Page 2754 (Volume 8)
23 February 2011:
At about 1.10 am DUONG sends a text message to an associate who is based in Victoria, Van Lon BUI (‘BUI’): “I send you 8 hundred to spend, ok bro. I send it with Thu as she travels. Thanks brother”[5]. This confirms that the Accused is in possession of 8 ounces of heroin which she has been given by DUONG, rather than the 5 discussed earlier.
[5] Page 10828 (Volume 24)
At about 9:30 am DUONG and BUI discuss on the telephone that DUONG owes BUI a “few hundred from before and since she is going I want to give it back to you…” BUI asks DUONG if he has given this to the Accused to which he replies, “Yeah, the eight hundred I borrowed from you from before”. DUONG tells BUI that the Accused will call him and he should collect the heroin from her[6].
[6] Pages 10829 – 10830 (Volume 24)
The Accused stays in contact with DUONG about her progress via a series of text messages. She advises DUONG that she is waiting for BUI to come and collect the heroin, but BUI is waiting for his wife to return with the car before he can come and meet her. She tells DUONG that she will fly back to New South Wales later that day[7].
[7] Pages 10847, 10850, 10851 (Volume 24)
At 3:56 pm the Accused provided BUI with directions on where BUI was to meet her for the exchange of the heroin[8]. They also discussed this in further telephone calls that afternoon/ evening[9].
[8] Pages 8834 - 8835 (Volume 20)
[9] Pages 8837 – 8838 and 8840 (Volume 20)
At around 7.15 pm a vehicle with the Accused in the front seat passenger was intercepted by Victoria Police in Mahoneys Rd, Thomastown. Located within a hat being held by the Accused was a plastic bag with 3 egg shaped pellets that were found to contain approximately 8 ounces gross weight of heroin. She also had AUD$1,450 in cash in her purse[10].
[10] Pages 1102 – 1107 (Statement of …), Pages 1108 – 1111 (Statement of …) and pages 1115 – 1116 (Statement of …) (Volume 4)
At 7.41 pm DUONG rings BUI and asks him to ring the Accused. BUI advises DUONG that they went to the house, but no one was there[11].
[11] Pages 8842 – 8843 (Volume 20)
At 7:42 pm DUONG tried to call the Accused but the call was unanswered, he then sends her 2 text messages to try and locate the heroin[12]. BUI also attempted to call the Accused on a number of occasions but his calls also were not answered[13].
[12] Pages 10880 – 10882 (Volume 24)
[13] Pages 8841, 8847, 8848 and 8853 – 8857 (Volume 20)
24 February 2011:
At 10:33 am the Accused telephoned DUONG to tell him that she had been arrested by police[14]. She also telephones BUI to advise him of her arrest[15]. BUI and DUONG discuss this development and BUI says he is going to meet with the Accused to find out what happened[16].
[14] Pages 10898 – 10899 (Volume 24)
[15] Pages 8870 – 8871 (Volume 20)
[16] Pages 8874 – 8875 (Volume 20)
28 March 2011:
In a series of text messages between the Accused and DUONG the Accused reveals that she is concerned about the weight of the heroin she trafficked, “8 or 9 hundred if it was 8 hundred, then I won’t have to worry as much”. DUONG confirms that she had 8 ounces of heroin when she was caught by police. DUONG tells the Accused: “Don’t worry, exactly 8 hundreds. Don’t worry. You know me”[17]. This is said to be a reference to the Drugs, Poisons and Controlled Substances Act (Vic) which provides for a 250 gram limit for a commercial quantity of heroin.
[17] Pages 11489 – 11491 (Volume 25)
RECORD OF INTERVIEW
The offender participated in a taped record of interview upon arrest on 23 February 2011, with Victoria police officers … and …, with a Vietnamese interpreter present[18]. NGUYEN stated the following during the interview:
[18] Pages 2760 – 2784 (Volume 8, transcript of TROI)
That she was coming to visit her father in Victoria and someone asked her if she wanted to make some money by bringing the substance down from Sydney. She was told it was “ice or something”[19];
[19] Page 2763 (Volume 8)
She met a man named Peter in a club and he told her it would be easy, “just to transport this stuff here to hand over to somebody and get some money for transport…”[20];
[20] Page 2764 (Volume 8)
Peter probably said that it was ‘ice’. She did not know what it was, she has ‘never known ‘ice’ or other drugs, she just took it and placed it in her handbag’[21];
[21] Page 2765(Volume 8)
After she went to the club she went home, and then got on the bus to Victoria. Once in Victoria she went to her sibling’s house[22];
[22] Page 2766 (Volume 8)
The next day she was going to the cemetery to see her father and she was told that a person would ring her to find out where she was and arrange to pick up the package from her[23];
[23] Page 2767(Volume 8)
On the way to the cemetery the police stopped her and searched her bag[24];
[24] Page 2771 (Volume 8)
She identified the package seized by police as the one she had transported from New South Wales[25];
[25] Pages 2771 – 2772 (Volume 8)
She was paid $2,000 in cash to transport the package. She had spent some of it, and had $1,450 left when she was arrested by police[26];
[26] Pages 2773 – 2774 (Volume 8)
Her brother did not know about the package[27]; and
[27] Page 2775 (Volume 8)
She was planning on returning to Sydney by plane, she had a return ticket booked for that night[28].
[28] Page 2776 (Volume 8)
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