Director of Public Prosecutions v Van Nguyen
[2016] VCC 197
•29 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-02003
CR-15-02004
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN NGUYEN |
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JUDGE: | Her Honour Judge J Morrish | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February and 29 February 2016 | |
DATE OF SENTENCE: | 29 February 2016 | |
CASE MAY BE CITED AS: | DPP v Van Nguyen | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 197 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Hannan | Office of Public Prosecutions |
| For the Accused | Mr C. Farrington | Emma Turnbull Lawyers |
HER HONOUR:
1 VAN NGUYEN, you are to be sentenced in respect of four charges of trafficking in a drug of dependence contrary to s.71AC of the Drugs Poisons and Controlled Substances Act 1981 (Charges 1, 2, 4 and 5) and one charge of possess equipment for trafficking in a drug of dependence contrary to s.71A of the same Act (Charge 3).
2 The maximum applicable penalty for the trafficking charges is 15 years’ imprisonment per charge, and 10 years’ imprisonment for the charge of possess equipment for trafficking in a drug of dependence.
3 You pleaded guilty to all charges when arraigned before me on 26 February 2016, and you admitted your prior criminal history.
Circumstances of offending
4 The circumstances of your offending are well set out in the written prosecution opening dated 25 February 2016, tendered as Exhibit A. I shall not read that summary aloud now. Rather, I shall attach a copy of it as “Annexure A” to these reasons for sentence.
5 Suffice it to say for present purposes that your offending arises from two separate incidents when police executed search warrants at your premises. The premises comprised of a house and bungalow, all surveyed by an elaborate closed circuit television system. You lived in the house with your wife and three children. But in the bungalow, you and others used heroin and amphetamines. It was the place from which you trafficked in heroin and amphetamine.
First incident
6 On 12 September 2014 police executed the first search warrant at your premises. When they forced entry to the bungalow they found a number of men inside using drugs. Police found a large quantity of heroin (157 grams, Charge 1) and methylamphetamine (16.4 grams, Charge 2) and these were in the vicinity of these men. They also found paraphernalia associated with the drug use. Police also found a tablet press used for the manufacture of illegal tablets (Charge 3).
7 You were arrested and interviewed. You told police that you rented rooms to associates in which they could use drugs. You were bailed the next day, on 13 September 2014.
Second incident
8 Five months later, on 12 February 2015, whilst still on bail, police executed a second search warrant on the premises. On that occasion you were with four other people. Police located approximately 125.2 grams of heroin (Charge 4) and 55 grams of methylamphetamine (Charge 5). They also located paraphernalia associated with drug trafficking including many snap lock bags, scales, two steel presses with components to press heroin, notebooks containing details of drug transactions and a number of mobile phones.
9
Police viewed the CCTV footage from your surveillance cameras which showed a high volume of people attending the premises at all times of the night and day, staying for short periods of time. You were seen regularly inside the bungalow and in the rear patio area. The CCTV footage was taken over a number of days. Charges 4 and 5 are confined to your offending on
12 February 2015.
10 You were remanded in custody on 12 February 2015, where you have remained ever since.
Aggravating features
11 At the time of committing the first series of offences, Charges 1, 2 and 3 you were undergoing a community corrections order that had been imposed in the Sunshine Magistrates' Court on 19 December 2013. On that day you were convicted and sentenced in respect of trafficking in heroin, trafficking in methylamphetamine, possess equipment to manufacture a drug of dependence in order to traffic, handle or receive or dispose of stolen goods, deal with property suspected of being proceeds of crime, possess an unregistered handgun, possess a silencer without a permit and possess cartridge ammunition without a licence or permit. An aggregate sentence of three months’ imprisonment was imposed together with a community corrections order for 12 months to commence on 19 March 2014, the date of your release after serving the three months' imprisonment. You had completed the 180 hours of community work but there was also a requirement that you attend for treatment and rehabilitation in respect of your drug abuse or dependency.
12 At the time of committing the second series of offences, Charges 4 and 5, not only were you still undergoing the community corrections order, but more significantly you were on bail in respect of the first series of offences. This fact engages s.16(1A) and (3C) of the Sentencing Act 1991, meaning that the presumption of concurrency of sentences does not apply. Rather, a presumption of accumulation applies.
Gravity of trafficking in heroin and methylamphetamine
13 Time and time again, Appellate Courts have stressed the harmful and evil nature of this offence. More than 25 years ago, Tadgell J observed in Moran & Byrnes v R (1987) 31 A Crim R 248, at 254:
“… Drugs of addiction - wantonly produced, distributed and used - continue to present to a modern civilised society an increasing burden both monstrous and intolerable. It is a monstrous burden in the sense that it is unnatural and evil. Moreover it begets further evil, as anyone who cares to sit as an observer in this Court for a week will surely find. It is an intolerable burden because the modern civilised society simply cannot sustain its crushing weight and yet remain civilised: one by one the civilising props must give way. Year by year we see decent standards warped. They do not suddenly fail, but noticeably they are upheld by progressively fewer members of the society as soft options fostered by addictive drugs become acceptable. Community life then tends to be supported less and less upon robust, natural attitudes and more and more upon artificial, compromised, drug-engendered values.”
14 His Honour was there speaking about trafficking in amphetamines, albeit on a larger scale and involving a more sophisticated operation than this one.
15 In R v Kalache (2000) 111 A Crim R 152, also a case involving trafficking in amphetamines, Hulme J stated, at p.201, paragraph 192:
“… no long experience in the courts or other areas of society is needed to become aware both of the grave harm that amphetamines, cocaine, ecstasy and cannabis do to the minds and lives of many who use them, and of the consequential damage that such users then inflict on the rest of society either in obtaining the funds to feed their habits or in consequence of the irrational or anti-social behaviour which such drugs can induce. … .”
16 Ordinarily in cases such as these, deterrence, denunciation and condemnation and protection of the community are dominant sentencing factors. Although imprisonment is usually a sentence of last resort, in cases that involve a commercial element of trafficking, a term of imprisonment must usually be imposed.[1] The importance of deterrence often leads to less weight being given to factors personal to an offender. The authorities are clear enough: stern sentences of imprisonment should be expected to those who traffic in drugs of dependence.
[1]See R v Mangelsdorf, Perry & Richards (1995) 83 A Crim R 272, at 278
Plea in mitigation
17 Your counsel, Mr Farrington, made a comprehensive plea in mitigation, in accordance with his written submissions, tendered as Exhibit 1.
18 Mr Farrington quite frankly conceded the gravity of your offending and that the only appropriate response is one involving your immediate imprisonment for a term exceeding two years.
19 Apart from explaining that for many years now, since approximately 1989, you have been hopelessly addicted to heroin and of more recent times to methylamphetamine, and stating that your premises was used by other drug users to take their drugs of dependence, Mr Farrington offered little by way of explanation of the circumstances of your trafficking and your role in what must be inferred to be a commercial operation. It is not in dispute that on the second occasion over $30,000 in cash was located, as were notebooks containing details of drug transactions (see paragraph 8, Exhibit/Annexure A) and other paraphernalia previously described.
Personal circumstances.
20 You are now aged 47 years. You were born in Vietnam and immigrated to Australia in 1989 because of the conflict in Vietnam. In 1995, you married. Your wife was present to support you in court at the plea hearing. You have three children aged 16, 15 and 8 years respectively. Your oldest child has severe autism and although he is a teenager, his disability is too profound to enable him to be integrated into a regular school. Your wife takes on the principal responsibility of caring for your children, particularly for your autistic child who requires much attention and care. Because of this, your wife is unable to obtain employment. You were the sole income earner in your household.
21 I should add here that your counsel, while noting the hardship that your family will continue to face because of your inevitable imprisonment, does not submit that this hardship constitutes exceptional circumstances.
22 You have limited education and cannot read or write in English at all.
23 In so far as your employment is concerned, you have worked regularly as a cook despite your lack of qualifications. At the time of your arrest you were working part-time in a noodle shop.
24 Your drug addiction has affected almost every aspect of your life. At the time of arrest, you were using in excess of one gram of heroin per day and half a gram of methylamphetamine. It interfered with your capacity to work and no doubt it had an adverse effect on your relationship with your wife and children. In fact, she has separated from you on a number of occasions because of your drug habit. She has reconciled on your promise to address your problem, but you soon slipped back into your old ways.
25 Your time on remand has been difficult. Your son’s autism, has posed an additional obstacle to prison visits, making family visits less frequent. In addition, your conditions on remand involve lengthy periods of lock-downs.
26
Your drug addiction has led to your prior and present offending. As
Mr Farrington correctly concedes, personal as well as general deterrence has a role to play in sentencing you today. Mr Farrington has said little, if anything, about your prospects of rehabilitation. Yours has been a long-term addiction, which you have tried, unsuccessfully, to overcome on a number of occasions. Without help from professionals, expert in treating drug addiction, and without your commitment to beat your addiction, your prospects for rehabilitation are bleak.
27 You have no mental or behavioural disturbances or disorders that engage the “Verdins” principles.
28 Mr Farrington placed great emphasis on your guilty plea. At committal, this matter proceeded by way of straight hand-up brief, and you indicated your intention to plead guilty. It is accepted by the prosecution that this indication was given at an early time. I accept you have never really sought to test or challenge the Crown case. No witness has ever been required to give evidence against you.
29 When interviewed by police you made some admissions. Although much remains unexplained, you accept that you committed the physical acts the subject of the charges.
30 In determining the weight to be given to your plea of guilty, I take into account the following factors:
(i) the timing of your plea;
(ii) you are entitled to a statutory discount because of your plea;
(iii) I accept that your plea is indicative of some level of remorse;
(iv) you have avoided the cost and inconvenience of a trial. You have spared witnesses the inconvenience of giving evidence, both at committal and at trial.
(v) your plea is consistent with the cooperation you showed with the police when interviewed; and
(vi) although it would appear the prosecution case against you was overwhelming, nevertheless, there is social utility involved in your guilty plea.
31 However, as well as the factors personal to you, as I said before, there are other matters to take account of when sentencing you. I must also take into account such matters as both general and specific deterrence, both of which are of considerable importance in a case such as this. In addition, I am required to consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending.
32 The Sentencing Act compels me to manifest the community’s denunciation of your conduct, and more generally to impose a just punishment in all the circumstances. I must pay due regard to the fact that Charges 4 and 5 were committed whilst you were on bail.
Sentences to be imposed
33 In all the circumstances I have no option but to impose terms of imprisonment.
34 On Charge 1, traffic in a drug of dependence, heroin, you are convicted and sentenced to three years’ imprisonment.
35 On Charge 2, traffic in a drug of dependence, methylamphetamine, you are convicted and sentenced to two years’ imprisonment.
36 On Charge 3, possess equipment for the purpose of trafficking in a drug of dependence, you are convicted and sentenced to nine months' imprisonment.
37 On Charge 4, traffic in a drug of dependence, heroin, you are convicted and sentenced to four years’ imprisonment. This will be the base sentence.
38 On Charge 5, traffic in a drug of dependence, methylamphetamine, you are convicted and sentenced to three years’ imprisonment.
39 On the question of whether cumulation is required, I take account of the fact that the first three charges arose out of the same transaction, although the offending was discrete. In regard to the second set offences, Charges 4 and 5, there is a presumption of cumulation because you committed them whilst on bail. However, I cannot lose sight of principles of totality and proportionality.
40 Balancing these matters, I consider it appropriate to order some period of cumulation or concurrency. I therefore direct that six months of each of the sentences imposed in respect of Charges 1 and 5; and four months of the sentence imposed in respect of Charge 2 be served cumulatively upon the sentence imposed on Charge 4, the base sentence and with each other.
41 That results in a total effective sentence of five years and four months’ imprisonment.
42 In determining the non-parole period, in your case I am required to take in account the purpose of fixing a non-parole period which is “to provide for mitigation of punishment in favour of your rehabilitation through conditional freedom”.[2] The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question of when you should be eligible for release. The relevant factors I am required to take into account are:
“(a) that a non-parole period has a penal element;
(b)where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
(c)the prisoner’s prospects of rehabilitation are almost always a significant consideration.”[3]
[2]See DPP v Josefski (2005) 13 VR 85 paragraph 43
[3]Josefski, paragraph 43
43 I have already mentioned that I assess as poor your prospects of rehabilitation.
44 Taking all of the matters into account in relation to fixing of the non parole period, I direct that you serve a minimum period of 42 months’ imprisonment before becoming eligible for parole.
45 Under s.18(4) of the Sentencing Act 1991, I declare that the period of 383 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
Statement and direction under s.6AAA Sentencing Act
46 I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for the plea of guilty. Therefore, pursuant to s.6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea, the sentences I would have imposed are as follows:
47 On Charge 1, traffic in a drug of dependence, heroin, you would have been convicted and sentenced to four and one half years’ imprisonment.
48 On Charge 2, traffic in a drug of dependence, methylamphetamine, you would have been convicted and sentenced to three years’ imprisonment.
49 On Charge 3, possess equipment for the purpose of trafficking in a drug of dependence, you would have been convicted and sentenced to 18 months’ imprisonment.
50 On Charge 4, traffic in a drug of dependence, heroin, you would have been convicted and sentenced to six years’ imprisonment. This would have been the base sentence.
51 On Charge 5, traffic in a drug of dependence, methylamphetamine, you would have been convicted and sentenced to four and one half years’ imprisonment.
52 On the question of cumulation, I would have directed that nine months of each of the sentences imposed in respect of Charges 1 and 5; and six months of the sentence imposed in respect of Charge 2 be served cumulatively upon the sentence imposed on Charge 4, the base sentence and with each other.
53 That would have resulted in a total effective sentence of eight years.
54 I would have directed that you serve a minimum of five years and four months’ imprisonment before becoming eligible for parole.
55 I direct pursuant to s.6AAA that the sentences that would have been imposed but for the plea of guilty be noted in the court’s records.
Ancillary Orders
Application under s.464ZF(2) Crimes Act 1958
56 The Crown has sought an application that you undergo a forensic procedure, for the taking of a scraping from the mouth and/or a blood sample, in accordance with subdivision 30A of part 3 of the Crimes Act. Your counsel does not oppose the making of such an order - I should say you do not oppose the making of such an order - and I propose to make the order. You, Van Nguyen, are ordered to undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with subdivision 30A of part 3 of the Crimes Act 1958, until a sample of sufficient standard is obtained for placement on the database.
57 The charges to which this order relates are set out in Indictment E13066395. Having considered the seriousness of the circumstances of the forensic sample offence, I am satisfied in all the circumstances the making of such an order is justified, because the seriousness of the circumstances of the offending warrant the order. Your prior convictions are such as to warrant the making of the order. The order is not opposed and the granting of the order is in the public interest.
58 Van Nguyen, if at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
59 OFFENDER: Yes.
Application for a Disposal Order
60 HER HONOUR: Are these opposed, Mr Farrington?
61 MR FARRINGTON: No
62 HER HONOUR: I propose to make the disposal order in the form submitted for my signature. Do either of you require the order to be read into the transcript?
63 COUNSEL: No, Your Honour.
64 HER HONOUR: The only amendment I have made to the draft is to amend the date to today's date.
65 COUNSEL: Yes.
66 HER HONOUR: And add my name.
Application for Forfeiture Order
67 So, there is no application for the forfeiture order being withdrawn, is that right?
68 COUNSEL: No, there isn't, Your Honour.
69 HER HONOUR: Are there any further matters?
70 COUNSEL No.
71
HER HONOUR: Can I thank counsel for the most comprehensive submissions on the plea and for your assistance in the plea. Thank you
Mr Farrington, Mr Hannan. Thank you, you can remove the prisoner. Thank you, Ms Tran.
- - -
72
“ANNEXURE A”
IN THE COUNTY COURT Indictment No: E13066395
OF VICTORIA
AT MELBOURNE
THE DIRECTOR OF PUBLIC PROSECUTIONS
V
Van NGUYEN
[AMENDED] PROSECUTION OPENING
….
Background to first incident
- The offender has been living at [address] Ardeer for over 15 years with his wife and children. The premises is a 3-bedroom brick veneer home with a driveway running one side leading to a rear bungalow. Within the bungalow was a close circuit tv set up allowing vision to the loungeroom of the main house. The set up captured cars and people approaching the house from Ballarat Rd as well as other areas both external and internal to the bungalow.
- At 10.40am on 12 September 2014 police executed a search warrant. The found the offender sitting in the back yard overseeing the bungalow. Police forced entry to the bungalow and found a number of males seated within using drugs. A large amount of heroin and methylamphetamine was located within the vicinity of these drug users. Police also located metal syringes, scales, lighters, deal bags, cutting implements and paraphernalia. A number of drugs and items were seized for later analysis.
Charge 1 Trafficking Heroin
- This charge is based upon the heroin possessed for sale totalling 157gm.
Charge 2 Trafficking Methylamphetamine
- This charge is based upon the methylamphetamine possessed for sale totalling 16.4gm.
Charge 3 Possession of substances & equipment with intention of using for the purposes of trafficking
- Police also located a tablet press used for the manufacture of illegal tablets.
Interview
- The offender was interviewed later that day and stated that the property belonged to his wife. He admitted to going in and out of the bungalow on occasions. He stated that he rented the rooms to associates for them to use drugs. He denied selling drugs to them. He was later bailed on 13 September 2014
Second Incident
- Police executed a second search warrant on the premises on 12 February 2015 at about 11am. Again, the offender was located outside the bungalow in the rear yard. He was with four other associates. In clear view on a coffee table around which they were seating, police located a large quantity of methylamphetamine (approximately 55gm) and heroin (approximately 127.2gm).
- Inside the bungalow police located a large amount of snap lock bags, scales, two steel presses with components to press heroin, notebooks containing details of drug transactions and various mobile phones. Analysis of the CCTV footage obtained revealed a high volume of people attending the premises at all times of the day and night and stay for a short amount of time. The offender is routinely seen inside the bungalow and in the rear patio area at the relevant times.
Charge 4 Trafficking Heroin
- This charge is based upon the various packages of heroin found during the execution of the warrant amounting to 125.2gm. The purity ranged from 77% to 10%. This heroin was possessed by the offender for sale.
Charge 5 Trafficking Methylamphetamine
- This charge is based upon the offender possessing 55.5gm of methylamphetamine with an approximate purity of 81%. This was possessed for the purposes of sale.
Interview
- When interviewed the offender again stated that he let people use the bungalow for drug use at all times of the day and night. He stated that people would give him $100-$300 to him to help him out for letting them use the bungalow. He stated that he used the bungalow for his own drug use and denied trafficking.
CCTV
- Investigators seized a Digital Video Recording (DVR) during this second incident and obtained 8 days of footage from 4 cameras at the address. The footage shows the offender spending the majority of his time in or around the bungalow, coming out of the bungalow carrying a white box, counting amounts of money and handing it over to an unknown male, carrying a glass bottle containing a white rock substance and handing it to an unknown male, exiting his house carrying a bag and removing what appears to be plastic bags containing white substance and handing it over to an unknown male. The offender also is seen leaving the bungalow as investigators entered the rear yard on 12 February, 2015.
Timing of Plea
- This matter was originally to proceed as a contested committal. On the day of the contested committal, 12 November 2015, the matter resolved and proceeded by way of straight hand up plea of guilty.
Pre-Sentence Detention
- Mr NGUYEN has been in custody on these matters since 12 February 2015. He was also remanded in custody on 12 September 2014, and then subsequently bailed from Sunshine Magistrates Court on 13 September 2014. He has thus spent 380 days in custody on these matters up to but not including 26 February, 2016.
Maximum Penalties
- Trafficking a Drug of Dependence – Level 4 imprisonment (15 years maximum) pursuant to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981.
- Possession of substance, material, documents or equipment for trafficking in a drug of dependence – Level 5 imprisonment (10 years maximum) pursuant to s.71A of the Drugs, Poisons and Controlled Substances Act 1981.
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