Director of Public Prosecutions v Vu

[2016] VCC 660

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00853

DIRECTOR OF PUBLIC PROSECUTIONS

v

CUONG VU

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2016
DATE OF SENTENCE:	19 May 2016
CASE MAY BE CITED AS:	DPP v Vu
MEDIUM NEUTRAL CITATION:	[2016] VCC 660

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS N. KOHN	Office of Public Prosecutions
For the Accused	MR P. GALBALLY	Galbally & O'Bryan

HIS HONOUR:

1Mr Vu, you have pleaded guilty to one count of trafficking in a drug of dependence being a commercial quantity of that drug.

2For completeness, I also mention that there is a count of dealing with proceeds of crime. That count has been pursuant to s.242(5) of the Criminal Procedure Act returned to the Melbourne Magistrates' Court.  Ultimately that jurisdiction will deal with that case so I have got no further involvement and is now being dealt with for that offence here today.

3Mr Vu, you would have heard the Crown prosecutor, it was then Miss Mahady, tell this court what the maximum sentences were for this offence.  To refreshen your memory, that is 25 years' imprisonment.  That maximum should indicate to you, and of course the community, that this is indeed a serious offence.

4For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for pleading guilty.

5As you are aware, there are a number of other persons that were indicted or charged arising out of the same set of circumstances.  Some of them, to my knowledge, have been dealt with for their offending.

6Mr Vu, the facts in this case are set out in the prosecution opening, that I called "Exhibit A" when we were last together about a week ago.

7As I just mentioned, there are a number of other individuals that were involved in this activity and, and I will come back to this in a moment, the prosecutor identified what their role is or was in that activity and the prosecutor together with defence counsel agreed that Mr Vu was classified as "the middle man".  I will not refer to those facts, however I intend to place Exhibit A on the file together with these comments so as to enable any interested party to understand what the activities were that occurred in terms of you, Mr Vu, and the other offenders.

8Mr Vu, you have seen Sandra Nguyen, a counselling psychologist.  This lady has prepared a very informative report and useful report for my purposes.

9Mr Johns, your barrister who represented you seven or eight days ago, referred to personal matters contained within Ms Nguyen's report.  I will read some of those personal matters from that report to the court record now.  Ms Nguyen reports that you are now aged 47 having been born on the 9th of November 1968.  You are the second oldest of five siblings.  You were born in North Vietnam.  Your parents still reside in Vietnam with your younger brother and younger sister.  You have two sisters living here in Australia with you.  Well, they are living in Australia is what I mean; not living physically with you but they are living here in Australia.

10Ms Nguyen reports on your very frightening experiences as a young fellow whilst growing up in the midst of a war.  As a young person you reported to Ms Nguyen that you felt scared and displaced at this time.  I am not surprised by that observation.

11Apparently you completed Year 10 and then joined the workforce for about a year before then escaping by boat and going to Hong Kong as a refugee.  Whilst living in the refugee camp you met and subsequently married Nga.  Of course this relationship existed during your younger years and was fraught with difficulties and as you well know you spent approximately five years in that refugee camp before coming to Australia in 1993.  You and Nga separated divorcing in 1994.

12When you first arrived in Australia you lived in Queensland.  You attended, along with other Vietnamese people, the local Buddhist temple and whilst amongst your own you were recognised as coming from North Vietnam.  As I understand it, amongst those in the Vietnamese community, the South Vietnamese can identify the North Vietnamese accent and other similar matters.  Unfortunately and unhappily you suffered discrimination and became upset and depressed because of the treatment you received from others within the Vietnamese community.  To avoid this difficult situation you left Queensland and moved to Melbourne.

13On coming to Melbourne in 1994, shortly thereafter you met and married Mai.  This marriage was in 1995.  Whilst you were employed in Melbourne, I infer as a tailor and working in-house around inner Melbourne, Mai worked on different farms as a fruit picker.  Because of the nature of her work she was moving around from farm to farm and unhappily for you, Mr Vu, Mai became pregnant to a fellow farmworker.  Understandably this brought devastation upon you.  You felt betrayed.  You became depressed and experienced insomnia during this time and you later divorced Mai in 1997.

14In 2003 you commenced a de facto partnership with Kim whom you met through your sister.  You reported to the psychologist, Ms Nguyen, that this was a good relationship, Kim was understanding and caring.  You had three children from this union.  Those children are aged 12, 10 and 9.

15In late 2010 or early 2011, once again your partner let you down when she formed a relationship with another woman.  Not surprisingly devastation revisited you.  Ms Nguyen reports, and I quote, "You were concerned for your children's welfare."  You disagreed with Kim's lifestyle and together with this lady it was agreed that the children would live with you, you being their primary carer.  From this point forward you put the welfare of your children first.  You focused on giving them a good life, education and future.  It is my understanding that the children spend the weekdays with Dad and the weekends with Mum.

16Mr Vu, all of your arrangements in terms of looking after your beloved children, came crashing down on the 28th of September 2014.  It was on this date that you were arrested and all of the material is contained within that Exhibit A that I spoke of earlier.  The circumstances of the arrest together with the offending are set out therein.  You have been in custody ever since that date, that is the 28th of September 2014.

17Mr Vu, since migrating to Australia you have been a hardworking industrious man and you have been involved as a self-employed tailor.  You further imported ceramics from Asia to on-sell here in Australia.  You further worked in a newsagency before then opening up a Vietnamese restaurant in Sunshine.  Since going into custody in 2014 your brother-in-law has been running that restaurant.  It is your intention to take over management of this business on your release from custody.

18You have no prior convictions.  This is your first encounter with the criminal justice system.

19Mr Vu, I assure you that I have taken into account all that was said on your behalf by your counsel, Mr Johns.

20I further take into account, as I mentioned earlier, your plea of guilty which in itself indicates your remorse.

21Ms Nguyen, the psychologist, reports this and I quote Ms Nguyen.  She says "He has expressed sincere remorse for his actions.  He is very disappointed in himself and the shame he has caused to his children and family."  Ms Nguyen says that you stated that you had lost your appetite.  You have no cravings for food.  Ms Nguyen further says you reported feelings of worthlessness and hopelessness which have affected your self-esteem.  Ms Nguyen further says these symptoms have caused significant distress and impairment in his social and daily functioning.

22Your prospect of rehabilitation has to be said to be good, if not excellent.  It is your intention to return to managing that restaurant on your release from custody.  I understand that your brother-in-law remains supportive of you.  He demonstrates that report by attending court on the last occasion and he is again here today.

23In the difficult circumstances of the riot that occurred at the Melbourne Remand Centre you still, despite that riot, endeavoured to pursue courses to further your prospects and enhance your rehabilitation.  The lockdown, that is being contained within your cells either for 23, 22 or 21 hours per day, have created substantial frustrations in you attempting to better yourself.

24I assure you, Mr Vu, that this lockdown is well understood by the judiciary.  All the judges in this court that I have spoken to are concerned because this matter is raised, and properly raised, when people such as yourself come before the court.  The unfortunate reality is that there are many prisoners innocent of rioting coming before the court such as yourself.  I assure you that I propose to reduce the sentence that I may have otherwise imposed to accommodate the lockdown effect upon those, such as yourself.  Prison is uncomfortable when you have 12 hours out of the cells let alone one or two or perhaps three hours out.

25Mr Johns in his eloquent plea pointed out that in addition to being imprisoned, the lockdown has had a significant impact upon you.  Your depressed state has been aggravated by the limited hours out of your cell and the lack of contact with your children.  Visitation rights that might have been exercised are now limited because the limited numbers of hours that you are out of your cell.

26Your counsel raises the issue of delay that he pleads has occurred in this case.  In the Victorian Court of Appeal case of R. v Tezer; R. v Davis [2007] VSCA 123, Habersberger AJA summarised many cases touching upon the issues and principles of what the court, in this instance such as this court, should apply because of delay.

27You were arrested in September of 2014, then going into custody.  It was six months later before your case reached the committal proceedings at the Melbourne Magistrates' Court.  Following that hearing your case was listed for the 16th of March 2015 but it was not dealt with until nine months later so the resolution of the matter took nearly nine months to occur at which time I am sure you were agonising over what would happen in relation to your difficulties.  I recognise, if we count today, you have been in custody for 600 days.  So from start to now 600 days are gone and that is a delay.  For the record I quote some of the principles attaching to delay mentioned in Tezer and Davis' case to be found at [2007] VSCA 123.

28In the case of Miceli at [1998] 4 VR 591, Tadgell JA said this: "There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. ... Most particularly is the matter of delay Most particularly is the matter of delay between the commission of offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large...", that does not apply here but that is what the judge said.

29Later in that same case of Tezer and Davis, the President of the Court of Appeal, Maxwell P, said: "On a proper analysis ... the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. ... The relevance of delay lies rather in the effect which the lapse of time – however caused – has on the accused.  Delay constitutes 'a powerful mitigatory factor'.  In particular, it focuses attention on issues of rehabilitation and fairness."  I assure you that I will take into account the fact that you have spent, counting today, 600 days in custody before finality.

30I now quote from your general practitioner's report to this court, that is from
Dr Vu Le.   This doctor in his report which was dated the 9th of February 2016, only about five or six weeks ago, indicates you have received medication for stress and depression not to mention insomnia since 2011.  Dr Le reports that you were depressed up until, and of course continuing from, September of 2014.  Whilst I am not a doctor, I have no doubt accepting that you still struggle with this depressive issue.

31The psychologist, Ms Nguyen, in her report speaks of your struggle with depression.  I again quote from her report.  She says this: "Mr Vu has had a history of depression which he has struggled to manage on his own.  He has had to rely on antidepressant medication as prescribe by his doctor to enable him to cope with his emotions and manage his life to care for his children and provide for them and their future.

32His current incarceration has exacerbated his depression and anxiety which is detrimental to his mental health.  He has reported increased insomnia, frequent headaches and ruminating negative thoughts from that effect and loss of self-confidence and self-esteem."  Therefore, Ms Nguyen, the psychologist, is 100 per cent in accord with what Dr Vu Le reported.

33Mr Vu, as your counsel conceded this offence is a very serious offence indeed.  The maximum penalty reflects I am sure upon you the serious level that the Parliament has attached to such offending.  In this type of offending general deterrence is of importance.  The courts must seek to stop others from committing similar offences to this hence general deterrence is an important sentencing factor that must be taken into account.

34The other element is specific deterrence.  That reflects upon you, Mr Vu, yourself.  You must be reminded by what happens to you so as to not re-offend.  From all of the material contained in what was produced on your behalf by Mr Johns, I get the distinct impression that you will not re-offend.  As I mentioned earlier this is your first foray into the criminal justice system. 
I sincerely hope that it is your last.

35As you know I touched upon some very personal matters in terms of your relationship with the three ladies with whom at some stage of your life you were their partner and Ms Nguyen, the psychologist, I believe very articulately spells out the circumstances surrounding that and why I again raise it.

36You will be pleased to know that I am nearly finished but I just want to reassure you.  Ms Nguyen said this: "Given Mr Vu's remorse and consent to receive psychological counselling once he is released from custody, his prognosis is good."  Ms Nguyen says, and I think very sensibly, "His treatment would focus on his multiple relationship breakdowns."  The betrayal surrounding infidelity from at least - I add this - from at least two of his partners, the discrimination and harassment he has endured, as well as the trauma he experienced from his escape from Vietnam is a starting point.

37Ms Nguyen says "The uncertainty of his future and the separation from his children have exacerbated his fears.  The exacerbation has also touched upon his anxiety and depressive symptoms."

38Thank you.  Would you stand up for a moment please.

39Mr Vu, your activities as middle man in this criminal escapade is to be denounced in the strongest of terms.  Whilst these facts and figures are in Exhibit A which is the summary of the offending, I just repeat these short facts: the parity of sentencing that I must undertake when sentencing you, Mr Vu, compared to others who have already been sentenced, is certainly exercising my mind.  As to parity of sentencing I remind you that Duc Nguyen was sentenced to 7 months' imprisonment together with a community corrections order with various conditions.

40The prosecutor, it was a different prosecutor then but I am sure this lady endorses this comment, the prosecutor classified, if you like, Duc Nguyen, was said by the prosecutor to be a courier in terms of his activity in this criminal activity.  Whilst I am not certain, it is my belief from the material that Duc Nguyen was aged 24, significantly younger than Mr Vu.

41The other gentleman who has been sentenced is Hoan Nguyen.  He was sentenced on the 19th of February to 11 months' imprisonment together with a community corrections order, again with various conditions.  The prosecutor in court a week or ten days ago classified Hoan Nguyen as a crop sitter in terms of the criminal activity.

42Mr Vu, you are classified, if there is such a classification, as the middle man and in terms of this serious offending are classified as a much higher or more serious offender than a crop sitter or a courier.  You are older than both Duc Nguyen and Hoan Nguyen.  Your counsel, Mr Johns, implores or urges this court to find that the time already served, that is counting today 600 days, is more than an adequate sentence.  "Any longer term...", pleads Mr Johns, "...would offend the principles of parity."  The prosecution resisted that submission.  They submitted, which was not opposed, an immediate custodial sentence was proper but 600 days was not adequate.

43Mr Vu, in light of all of the reports from Dr Le and Ms Nguyen and the existence of your depressive state which I am sure is true because it has been treated since at least 2011, that depressive illness may well affect any given sentence and that sentence may weigh more heavily upon you if you are compared to an individual who is in good mental health.  Consequently I am conscious of the principles in Verdins' case and I intend to modify the sentence accordingly to accommodate your depressive state.

44I again indicate to you, and I am not going to go over it again which I am sure you are pleased about, but I do take into account your plea of guilty, your remorse and your positive prospect of rehabilitation, particularly with the help of your brother-in-law.

45For the offence, occupying the position as middle man of trafficking in this instance, you will be convicted and sentenced to be imprisoned for a period of 20 months but further to that conviction and sentence you are also to be released on a community corrections order for a period of 12 months.

46There are only two special conditions.  One I rather suspect is going to be virtually finished very quickly and I will explain it.  The recommendation from the Corrections Officer is that you, pursuant to s.48D(3)(a) be subjected to assessment and if necessary treatment for drug issues.

47(Speaking to the accused through an interpreter):  Now why I was somewhat hesitant; he will be assessed and if he does not have drug issues that is the end of it.  Why I say that again is, any drug addiction or drug use was never raised in this court so I am not suggesting he is burdened with drug problems but they are going to make an assessment and if he is not, once the assessment is over and he does not need any treatment that is the end of it.  If he does need counselling then he must comply.

48This provision I am confident that he does need some help.  That is, pursuant to s.48D(3)(e) he is to undergo assessment and treatment for his mental health issues.  That is, his depression and anxiety in particular.

49Ms Nguyen's report, that I found to be very valuable and helpful, said this: "Vu would benefit from ongoing psychological counselling to help him cope with the issues that are affecting his depression and anxiety."  I am sure that is right.

50You can sit down for a moment now.  There is a few more housekeeping matters I must attend to.

51Pursuant to s.18 of the Sentencing Act the prisoner is to be given credit for having served 599 days which of course does not count today.  You will get that credit of course and I am relatively sure that had it not been for his plea and his complete cooperation, whilst he did not answer questions and he has not in any way endeavoured to contest any issue in this matter, I believe I would have highly probably sentenced him to a period of six and half years with a minimum of four years and three months had he not pleaded guilty.

52The forfeiture and disposal orders will be made. They are not opposed.  The s.464ZF order will be made.  In relation to the 464ZF, I do not expect anyone to understand that, it means this: that he will have to supply a sample.  It will be a buccal swab where a thing is spun around in his mouth and a sample of his DNA is taken.  I do not know why the legislation says I have got to do it but it says "I must tell him that reasonable force can be used to take that should he resist."

53That is the end of the sentencing comments.

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