DPP v Minh Phuoc Nguyen-Huynh
[2012] VCC 1742
•16 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01219
| THE QUEEN |
| v |
| MINH PHUOC NGUYEN-HUYNH |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 23 October 2012 | |
DATE OF SENTENCE: | 16 November 2012 | |
CASE MAY BE CITED AS: | DPP v Nguyen Huynh, Minh Phuoc | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1742 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – Plea – Sentence – Criminal Code Act 1995 (Cth) – Trafficking in a controlled drug in a commercial quantity – Methamphetamine – Quantity many times the minimum commercial quantity with multi million dollar street value.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Breckweg (Ms M. Brown at sentence) | Office of Public Prosecutions |
| For the Accused | Mr R. Stary | Robert Stary Lawyers |
HER HONOUR:
Introduction
1 You have pleaded guilty to one charge of between 7 and 8 April 2012 trafficking in a controlled drug, namely methamphetamine, in a commercial quantity, the maximum penalty for which is life imprisonment and/or 7,500 penalty units (namely $825,000) or both (s302.2(1) of the Criminal Code Act 1995 (Cth)).
2 The quantity involved was 4,567.1 grams comprising 4,417.8 grams located in a vehicle driven by you and, following your arrest, a further 95.3 grams located in your home. For the purpose of s314.1(1) of the Criminal Code, the minimum commercial quantity for methamphetamine is 750 grams and the traffickable quantity is 2 grams.
3 The potential wholesale value of the methamphetamine has been assessed as being between $1,708,000 and $2,013,000.
4 The total potential street value of the methamphetamine was assessed as being $6,117,900, comprising approximately $5,989,400 for the drug found in the vehicle and approximately $128,500 for the drug found at your residence.
5 The penalty involved is a clear indication of the seriousness of this offence. The fact that you trafficked in a quantity of methamphetamine, many times more than the minimum commercial or traffickable quantity, with a multi million dollar street value, is also a significant factor in sentencing you.
Antecedents
6 You are 41 years of age. You have admitted a prior criminal record. This involved convictions in August 2004 on assault with a weapon and make threat to kill charges for which you served a 3 month aggregate sentence. You attribute this offending to alcohol induced conflict between you and the complainant.
7 More recently, in July 2011, you were convicted on one conspiracy to defraud offence for which you were sentenced to a term of 16 months’ imprisonment, wholly suspended for 2 years. I was provided with a transcript of the sentencing reasons which, among other things, indicate:
· that between 22 December 2008 and 5 April 2009, you conspired with others in the commission of credit card and small loans fraud in Adelaide;
· that the reported purpose of this offending was to obtain money for your father who had suffered severe head injury in Vietnam; and
· that in suspending this sentence, the Judge had also placed weight on the reported hardship your wife and young family would experience should you be immediately imprisoned.
8 In sentencing you today, I have treated the commission of the trafficking offence during the operational period of the sentence imposed in 2011 as an aggravating factor. It was, however, common ground that the possibility of restoration in the future of the suspended sentence imposed by a South Australian Court should not influence the sentence imposed by me.
The material before the Court
9 The prosecution’s opening was read into transcript and tendered without objection. I have read the depositional material.
10 In support of your plea in mitigation, a number of documents were tendered. These comprised:
· translations of testimonials dated 30 September 2012 and 7 October 2012 prepared by your mother and wife, respectively, and a statement dated 8 October 2012 from you addressed to, among others, the Court;
· translated copies of medical certificates issued for your father and mother on 28 August 1995 and 11 January 1999 respectively. The first of these certified that your father had suffered a stroke and the second that your mother suffered from an unspecified illness which required regular treatment;
· a translation of a copy CT scan result obtained for your father on 28 June 2010 apparently indicating the presence of an old brain injury, identified as a cerebral infarction;
· a translated copy of a cash loan contract into which your brother reportedly entered in Vietnam on 31 October 2011;
· a copy psychological report dated 10 October 2012 prepared by a psychologist who reported that she had provided your wife with counselling services since 26 April 2012; and
· undated testimonials prepared by your mother-in-law and sister-in-law.
The circumstances of the offending
11 I do not propose to repeat all of the matters outlined in the prosecution’s summary.
12 Suffice to say that at approximately 11:05pm on Saturday, 7 April 2012, Australian Federal Police (AFP) members intercepted a silver Nissan Murano travelling south on the Hume Highway about 2.5 kilometres north of Broadford in Victoria. I was told that this vehicle was registered in the name of another individual who absconded the day after your arrest.
13 In any event, you were the driver of this vehicle in which your wife, Thi Hong Hanh Nguyen, and your two children, aged five years and 19 months respectively, were passengers.
14 Police members searched the vehicle pursuant to a search warrant. A pink and yellow children’s backpack displaying cartoon pictures was located in the rear of the vehicle. The backpack contained six silver packages secreted in children’s clothing. Each package contained a crystalline like substance and weighed approximately 1 to 1½ kilograms. Presumptive testing indicated the presence of an amphetamine type substance in the powder.
15 Police members also located a brown handbag next to the middle console of the vehicle containing 8 x $100 notes and a wallet containing 2 Optus SIM cards. A black mobile telephone was located in the glove box of the vehicle and a silver mobile telephone, a white mobile telephone and an iPhone were also located.
16 You were subsequently arrested. At approximately 2:24am on Sunday, 8 April 2012, you participated in a ‘no comment’ taped Record of Interview.
17 Your wife’s explanation that the money found in the wallet had been sent from her mother in Vietnam and was being held for her sister, was not contradicted. Moreover, I note that no evidence was advanced by the prosecution to establish the connection, if any, between this offence and the SIM cards and the additional mobile phones located in the vehicle, or for that matter the four mobile phones later located in your home.
18 The formal forensic analysis of the 5,989.4 grams of methamphetamine found in the vehicle revealed that its purity was between 73.4% and 75.2%, resulting in a total pure weight of 4,471.8 grams.
19 Subsequent to your arrest and interview, at approximately 7:00am on Sunday, 8 April 2012, police searched your home in Cairnlea. During the search, they located the 4 additional mobile telephones, to which I have already referred, and a blue and gold coloured children’s backpack in the master bedroom of the premises.
20 The backpack contained a brown bag with a Glad Snap Lock bag containing 4 separate Glad Snap Lock bags, inside each of which was a quantity of a crystalline substance. Presumptive testing indicated the presence of methamphetamine.
21 The 128.5 grams of methamphetamine found in the backpack revealed a purity of between 71.7% and 75.8%, resulting in a total pure weight of 95.3 grams.
22 You attribute this offending to a financial crisis in Vietnam precipitated by your parents’ ongoing ill-health and your desire to assist them and your brother who, under the cash loan contract I have already mentioned, had been unable to repay $4,500 to $5,000 within the required 6 months.
23 Notwithstanding these matters affecting your Vietnamese family, your anticipated reward of between $20,000 and $30,000 clearly indicates that, at the time, you were also motivated by the prospect of a considerable financial gain.
24 I infer from the circumstances involved in travelling to Sydney to collect this drug and the extent of the reward anticipated that you probably understood that you were transporting a significant quantity of drug. Otherwise, the prosecution conceded that it could not prove beyond reasonable doubt that you knew the quantity or the value of the drugs collected or that your activities in relation to this illicit drug were other than as a courier, who had travelled to Sydney where you collected and transported the larger quantity of drug to Melbourne in a vehicle supplied by a third party.
25 According to your counsel, the drug located at your home, also concealed in a child's backpack, was delivered before you travelled to Sydney, the intention being that, on your return, it would be collected along with the drugs transported by you from Sydney.
26 In my view, the circumstances relating to the further quantity of drug indicate a different activity performed by you, because, if your explanation is accepted as true, you were holding or storing a quantity of drug at your home in addition to transporting more drug from Sydney. This, however, is not to say that for the purpose of this sentence the range of activities performed by you in the distribution of this drug placed you other than at the lower end of the distribution network.
27 I was told that your plea of guilty was entered at committal mention stage on 16 July 2012 and that you have not sought to avail yourself of any other defence that may have been available to you.
28 On your behalf, it was submitted that a further reduction was appropriate because the evidence against you was not overwhelming or conclusive. In this regard, I was referred to the decision in The Queen v De Macedo.[1] De Macedo was an observer, who accompanied two couriers carrying illicit drugs on the same flight. His decision to plead guilty was treated as a more significant matter because the Court found that it was made in the face of inconclusive evidence.
[1][1992] VSCA 191
29 In my view, the prosecution case against you was hardly a weak case. Among other things, fingerprint evidence connected you to the drugs found in your home. Indeed, the circumstances of this offending indicated a stronger evidentiary basis than that initially gathered against the offender in De Macedo’s case.
30 For sentencing purposes, your 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 the witnesses the inconvenience and the community the cost of a contested trial.
31 Your plea is also an indicator of a level of remorse and, allowing for the various testimonials tendered and your statement, I have accepted that you are probably very sorry for the predicament in which you have placed yourself and your young family.
Personal Circumstances
32 I was told that you are the eldest of four siblings born in Vietnam. It appears that the first 5 years of your life were disrupted by your father’s conscription to serve with the South Vietnamese Army and by the time spent by him in a re-education camp in North Vietnam after the War ended.
33 You apparently completed your secondary education in 1989, at which stage your parents separated and your father re-partnered. This coincided with you entering Malaysia as a refugee, where you spent 3 years in a refugee camp, before being repatriated to Vietnam after the camp closed.
34 You father had already suffered a stroke injury by the time you migrated to Australia in 1997, where you became a citizen from early 2000.
35 Essentially, your employment in Australia since 1997 has involved unskilled work either in a battery factory or in a bakery.
36 I was told, and this is repeated in some of the statements tendered, that when working in Australia you regularly sent $200 to $250 per month to Vietnam to contribute to the support of your ailing parents.
37 You have been in a de facto relationship with your partner since 2006. At the time of this offending, you had 2 children aged 5 years and 18 months respectively and your partner was pregnant with your third child, who was born whilst you were in custody on 16 September 2012.
38 It appears that, on 21 December 2011, you returned to Vietnam where you visited family for some three months and, depending on whether I rely on the submissions made or on statements tendered, either before or after you came back to Australia on 10 March 2012, you suffered a shoulder injury which you claim prevented your return to employment.
39 As I have already mentioned, by your account, the catalyst for this very serious offending was your brother’s inability to meet the cash loan repayment which fell due in April 2012.
40 On balance, I was not persuaded by the various statements and testimonials from members of your family that your desire to financially assist them had somehow led to an error in judgment.
41 A number of factors informed this conclusion, namely the amount of the reward you expected to receive, your earlier criminal record, which is clearly at odds with your written statement in which, among other things, you claim to have never committed any crime no matter how difficult life had been in the past and the fact that your family’s financial plight was also offered as an explanation to the South Australian Court when you were sentenced last year for your part in serious fraud offending in 2009.
42 Moreover, I note that the statements and testimonials tendered from family members sought to emphasise your good character as a dutiful son, partner and parent, yet omitted any reference to the amount of the substantial reward you expected to receive or to your criminal history. Irrespective of whether this was because they were not aware of or knew and did not see fit to consider these matters, this omission has reduced the weight I might otherwise have afforded their evidence.
43 The South Australian District Court clearly gave considerable weight to the position of your wife and family when suspending a sentence of imprisonment in mid-2011.
44 However, it was conceded on your behalf that you were not able to establish that the circumstances faced by your three very young children or by your partner, whom the psychologist reported had experienced anxiety and stress following your separation, were exceptional for the purpose of fixing this sentence. Obviously, they will each suffer varying levels of hardship due to your absence. Unfortunately, despite some assistance from her own family members, your partner's reported dependence on you and her psychological state particularly since the birth of your third child will probably also cause her some additional hardship.
45 I have nonetheless made some allowance in this sentence for the likely affect on you due to the difficulties now faced by your immediate family.
46 Notwithstanding your expressions of remorse and your reportedly good behaviour since being remanded in custody, your history indicates that the risk of re-offending probably remains high particularly should you or your extended family face financial pressures after your release from custody.
Sentencing Principles
47 During the course of the prosecution submissions my attention was drawn to, among other cases, the recent decision of the Court of Appeal in Nguyen v The Queen, Phommalysackv The Queen.[2] In this decision, the Court set out the reference points for consideration by a sentencing court in respect to drug importation offences. These reference points involve consideration of the quantity of the drug, the role of the accused, the accused's reward, what assistance, if any, was given to the authorities post-arrest and the accused's criminal history and prospects for rehabilitation.
[2][2011] VSCA 32
48 These factors are no less relevant to the formulation of your sentence in respect to the offence of trafficking methamphetamine in a commercial quantity.
49 However, consideration of a number of sentences imposed in other cases involving an offence under s302.2(1) of the Criminal Code subsequently decided by the Court of Appeal,[3] have reinforced the view that each case must be decided on its own circumstances and that the quantity of the drug involved is but one of a number of important circumstances for consideration.
[3]See for example, XinLiangv The Queen [2011] VSCA 148, Lam v The Queen [2011] 140 and Nguyenv The Queen [2011] VSCA 139
50 The significant penalty for trafficking methamphetamine in a commercial quantity, among other things, is a strong indication of Parliament's intention to protect the community from the distribution of illicit and harmful drugs.
51 Whilst your precise role is not clear-cut and your motivation probably involved both a desire to relieve the immediate financial stress affecting your family in Vietnam and an expectation of significant personal gain, you are sentenced today on the basis of the known circumstances.
52 These circumstances 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.
53 The sentence imposed must act to denounce your conduct and, despite your professed ignorance of the actual quantity or value of the drug trafficked, the sentence must send a strong warning to others, who may be similarly vulnerable to performing the activities you performed in this operation.
54 The prosecution has called for an immediate custodial sentence. Among other things, it was submitted that the appropriate sentencing range is between 8 and 12 years’ imprisonment, with a non-parole period of between 6 and 9 years’ imprisonment.
55 You have been in custody since your arrest. You do not dispute the appropriateness of an immediate custodial sentence, although based on the circumstances of this case I was urged to extend some leniency, at least in regard to the minimum term served.
56 In sentencing you today, insofar as they are relevant, I have taken into account each of the matters contained in s.6A(1) and (2) of the Crimes Act 1914 (Cth). The principle of general deterrence also has an important part to play in the formulation of your sentence. The sentence must acknowledge the high penalty applicable to this crime, the difficulty in detecting drug offences, the great social consequences suffered through the distribution of illicit drugs and it must act to dissuade other individuals from trafficking illicit drugs.
57 In view of your history, specific deterrence remains a relevant sentencing consideration, as does the need to protect the community from someone who is prepared to participate in the distribution of illicit drugs.
58 For the purpose of s.17A of the Crimes Act, I am satisfied that no other sentence other than a sentence of imprisonment is appropriate.
59 In all the circumstances of this case I was satisfied that a sentence at the lower end of the range submitted by the prosecution is justified. However, I could see no proper basis for imposing a reduced non-parole period.
Sentence
60 Please stand, Mr Nguyen.
61 On one charge of trafficking in a commercial quantity of a controlled drug, you are convicted and sentenced to eight years' imprisonment.
62 The total effective sentence is eight years' imprisonment, with a non-parole period of five years' imprisonment. This sentence starts today.
63 Pursuant to s.16F of the Crimes Act I must explain to you that you must serve a period in custody of not less than 5 years’ imprisonment and that the purpose of imposing a non-parole period is to allow your release under supervision. However, non-compliance with a parole order may lead to you serving the full sentence.
64 Pursuant to s.16E I declare that the period of 220 days, including today, is to be reckoned as time already served under the sentence, and I direct that the fact of this declaration and its details be recorded in the records of the Court.
65 Pursuant to s6AAA of the Sentencing Act 1991, assuming that that provision applies, I indicate that but for your plea of guilty a sentence of 10 years and eight months’ imprisonment with a non-parole period of seven years’ imprisonment would have been imposed.
66 HER HONOUR: Were there any other matters that you wanted brought to my attention counsel?
67 MS BROWN: No Your Honour.
68 HER HONOUR: You looked as though you wanted to stand up Mr Stary.
69 MR STARY: No Your Honour.
70 HER HONOUR: All right, thank you, you may remove the prisoner. Thank you Madam Interpreter. Thank you counsel for your attendance today.
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