DPP v Nguyen

[2015] VCC 297

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted

Suitable for Publication

Case No. CR-11-02257

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH NGUYEN

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATEOF HEARING:	16 March 2015
DATEOF SENTENCE:	April 2015
CASE MAY BE CITEDAS:	DPP v Nguyen
MEDIUMNEUTRAL CITATION:	[2015] VCC 297

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Sentence – trafficking in a drug of addiction (4 charges) – knowingly deal with proceeds of crime (1 charge)

Legislation Cited:     Drugs, Poisons and Controlled Substances Act 1981, s71AC; Crimes Act 1958, s194(2); Sentencing Act 1991

Cases Cited:            Director of Public Prosecutions v Nguyen [2015] VCC 296; R v Verdins

& Ors (2007) 16 VR 269; Taouk v R [1992] 65 A Crim R 387; R v Birtles

(1969 1 WLR 1047

Sentence:                  Total effective sentence of 27 months’ imprisonment with a non-parole period 18 months.

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APPEARANCES:	Counsel	Solicitors
For theDPP	Mr M Sharpley	Solicitor for the Office of Public Prosecutions
For the Accused	Mr S Langslow	Melasecca Kelly & Zayler

COUNTY COURT OF VICTORIA

250 William Street, Melbourne

HIS HONOUR:

1Minh Nguyen, you have been found guilty of four counts of trafficking in a drug of dependence contrary to s71AC of the Drugs, Poisons and Controlled Substances Act 1981, each of which carries a maximum sentence of imprisonment of fifteen years.

2You were further found guilty of knowingly dealing with the proceeds of crime contrary to s194 (2) of the Crimes Act 1958, which carries a maximum period of imprisonment of fifteen years.

3The quantity of methamphetamine involved with respect to Charges 1 to 4 is as follows:

·Charge 1 – 3.5 grams of crystalline powder containing 1.7y grams of methamphetamine

·Charge 2 – 3.4 grams of crystalline powder containing 1.7 grams of methamphetamine

·Charge 3 – 13.7 grams of crystalline powder containing 6.85 grams of methamphetamine

·Charge 4 – 27.7 grams of crystalline powder containing 11.08 grams of methamphetamine.

4The total quantity of the drugs involved is 48.3 grams of crystalline powder containing 21.38 grams of methamphetamine.

5Charge 5 involves the sum of $12500 being money you received for the drugs you supplied in the transaction the subject of Charge 4.

6There is no issue that your convictions relate to four separate drug transactions, in the course of which a covert police operative, Tom Masters, entered into an agreement with Dominic Caporale that Caporale would supply him with various

quantities of methamphetamine.

7On each occasion upon which Caporale supplied the methamphetamine to Masters, Caporale obtained the methamphetamine from Vu Phan. It is clear that on each of these occasions the jury was satisfied that Vu Phan had obtained the methamphetamine from you.

8In sentencing you, the first issue for my determination involves my finding as to the role you played in the trafficking offences in respect of which you have been found guilty.

9It is put on your behalf that the evidence is such that it discloses a level of activity on your part consistent only with that of a courier.

10As to that submission:

(i)With respect to each of the four counts there is no evidence that there was any person other than yourself involved in the supply of the drugs which the jury was satisfied you delivered to Phan, or that you were merely delivering the drugs on behalf of some other person.

(ii)In addition, as to count four, the evidence clearly establishes that on 7 April 2011, in the course of the trafficking of methamphetamine which occurred on that day, of the sum paid for in exchange for the drugs, namely

$14,000, $12,500 of that money  was received and retained by you.

(iii)I am satisfied that this fact alone is sufficient to suggest that your participation in this transaction was not merely that of a courier but that you were playing a primary role in the transaction in that you received the major portion of the funds associated with the transaction. Further there is no evidence that you received the money on behalf of someone else with the intention of passing it on.

11Whilst it was put on your behalf that no drugs, cutting agents or drug-dealing

paraphernalia such as scales were located at your address or in your vehicles, the absence of incriminating evidence of this type cannot, in my opinion, amount to evidence which would justify the making of a finding that you have discharged the onus upon you to satisfy me that you occupied only a minor position in the trafficking activities with which you have been convicted.

12For these reasons I am satisfied that I should sentence you on the basis that you were the primary  supplier of drugs to Vu Phan in this instance and accordingly that you were the primary player in these transactions.

13It was put on your behalf that a real possibility arises in the present case that but for the activity of the police undercover operative you would not have committed these crimes and thus your culpability with respect to the commission of the crimes is substantially diminished.

14In making that submission Mr Langslow relies upon the principle that a victim of an entrapment may receive a discount in the sentence which would have otherwise be imposed by reason of the presence of reduced culpability.

15In this instance, I am satisfied that the principle of entrapment does not operate such as would entitle you to a reduction in your sentence.

16There is no evidence that the activity of the police undercover operator in any way induced you to commit any of the crimes in respect of which you have been found guilty.

17The position that you were so induced is totally inconsistent with your pleas of not guilty in this instance and the fact that you continue to maintain that you played no part in drug dealing in respect of the jury had returned guilty verdicts against you.1

1     See Hani Taouk v R [1992] 65 A Crim R 387 and R v Birtles (1969 1 WLR 1047.

18There is no issue that parity should be applied with respect your sentencing and those of your co-offenders.

19Each of your co-offenders with respect to the transactions the subject of the current charges have pleaded guilty and have been sentenced in the Magistrates’ Court:

·Vu Phan, faced four charges, three of which were largely identical to the faced four charges faced by you, the fourth involving the possession of a prohibitive weapon. Phan received an aggregate sentence of imprisonment of two years with a non-parole period of fourteen months. Phan had a number of prior convictions, including convictions for violence, together with two convictions with respect to trafficking in a drug of dependence.

·Dominic Caporale, who was charged with trafficking in methamphetamine, together with charges of possessing ammunition and being a prohibited person in possession of a firearm; received an aggregate sentence of imprisonment of eighteen months with a non-parole period of eleven months. Caporale had prior convictions for breaches of a Community Based Order and a suspended sentence, and offences involving burglary, theft and criminal damage

20There is no issue that the drug offences in respect of which Phan and Caporale received aggregate sentences on this occasion involved each of the transactions in which you were involved. It is clear that their sentences were influenced to a degree which is not capable of being determined, by reason of their prior history and the other charges they faced. Equally, it is to be recognised that the pleas of guilty entered by Phan and Caporale must have been taken into account in discounting the sentence imposed upon them in respect of which no sentencing remarks are available.

21In applying parity when sentencing you I am satisfied given my findings as to

your involvement in these transactions that the sentence fixed in respect of Phan has the most relevance.

22In the course of your plea, a series of medical reports were tendered on your behalf, from Mr Dinh, a psychologist, dated 17 November 2010; and from Mr David Ball, a forensic psychologist, who has provided two reports dated 27 November 2014 and 9 March 2015.

23It was put on your behalf that those reports raise to varying degrees each of the sentencing principles as discussed by the Court of Appeal in R v Verdins & Ors (2007) 16 VR 269.

24In the course of your evidence before me as to the summary charges in respect of which I have made findings,2 you said:

That  your  mental  health  issues  caused  you  to  be  a  regular gambler at the Keysborough Hotel;

·     That you had devised a gambling system which you employed to alter the usual odds associated with gambling via electronic machines; and

·     That you regularily organized syndicates to take part in that system;

·    That you were involved in training members of the syndicates;

·    That the discipline which was required to be applied in order to ensure that your system was employed appropriately;

·    That you won substantial sums of money using that system.

25Given this evidence I am satisfied that your level of mental functioning as at the time of offending the subject of these charges was such that the first four

1. [2015] VCC 296

Verdins sentencing principles have no relevance.

26Whilst it was put in the course of your plea that the fifth and sixth principles of

Verdins3 have some application in this instance; in my opinion;

·    Neither the medical evidence;

·     Nor any other evidence;

makes any of the sentencing principles discussed in R V Verdins relevant to the sentence which I should impose.

27I am satisfied however that in sentencing you, I should take into account the statement made by Mr Ball in his report of 9 March 2015; namely:

“Mr Nguyen’s lack of written and verbal English will make his time in custody more onerous than might be the case for other prisoners. He will be unable to participate in treatment or occupational programs and may have difficulty finding employment in the prison system. This appears to have been the case so far. He may have further difficulties communicating with prison authorities, dealing with prison procedures and communicating with other inmates.”

28Your personal history is as follows.

29You were born in Vietnam on 19 May 1967. You are currently forty-seven years of age. You are the second youngest of eight children. Your father was a furniture manufacturer and the operator of a prawn farm in Vietnam. The farm still operates on the outskirts of Ho Chi Minh City and is, at the present time, managed by your brother. The furniture factory continues to operate in Vietnam and is managed by another of your brothers.

30Both of your parents are alive. Your father is ninety and your mother is eight- five.  You have not seen them since 2001.

31You were educated to Year 12 in Vietnam. Upon the completion of your education, notwithstanding the fact that you qualified to attend university, you

1. R v Verdins & Ors (2007) 16 VR 269

were one of the organisers of a refugee boat which travelled from Vietnam to Australia. In the course of the journey, your boat was intercepted by Thai pirates who raped one of the female passengers and assaulted you in your attempt to help her. On continuing your journey, you, together with your fellow refugees, made your way to a Malaysian oilrig from where you were transferred to a Malaysian island where you remained a refugee to two years before, in 1998, you were sponsored to come to Australia.

32On arriving in Australia, you moved into shared accommodation at Springvale.

During this period, you married, but your marriage broke down after approximately two years. In Australia, you commenced a clothing manufacturing business which manufactured women’s shirts. You also operated an importing business in which you brought in furniture from Vietnam. You continued in these activities for approximately ten years, at about which time you developed a depressive illness and each of the businesses failed.

33You met Lucy Tran and through your relationship with her, you have two children: Evan aged nine, and Jadden, aged six. You were living with Ms Tran in Amy Court at the time of the commission of these offences. One of the vehicles used by you in the commission of these offences, a silver Lancer, was Ms Tran’s car, which you drove on occasions.

34Relevantly you come before me with no prior convictions.

35In sentencing you in this instance I am satisfied that I should take into account the fact that your offending was not isolated but involved a number of transactions which took place within a few weeks, in the course of which you were able to supply increasing amounts of methamphetamine at relatively short notice when requested to do so. I that sense your behaviour is appropriately characterised as involving a clear business element

36Trafficking in drugs of dependence represents a scourge on our society. Every day this Court is confronted by either primary or secondary victims of drug-

related offending.

37I am satisfied that it is appropriate to categorise you as being involved at a primary level in a criminal activity which is responsible for social carnage within our community, given;

·    The destructive effect which the use of drugs of dependence has upon the lives of those using such drugs, and developing an addiction to them and

·    The flow-on effects of such addiction upon innocent members of the community who are victims of, and or exposed to the range of serious crimes performed by such users and addicts.

38In sentencing you I must impose a sentence which is just in all the circumstances. I must have regard to the seriousness of your offences and your culpability for the commission of those offences. I am required to take into account the need to denounce your behaviour as being totally unacceptable in our  community and to fix a sentence which ensures you are appropriately punished. I must also consider issues of general and specific deterrence and the need to protect the community, but at the same time, the interest of the community which is served by ensuring the rehabilitation of offenders and their re-integration into the community.

39There can be no issue in this instance that the serious nature of the offences in respect of which you have been found guilty justifies the imposition of an immediate period of imprisonment for a significant time.

40The Court of Appeal has made repeated statements that in crimes of this type, a sentence involving stern punishment is warranted in almost every case, and the sentence should be such as to signal to would-be drug traffickers that the potential financial rewards associated with drug trafficking are neutralised by the risk of the imposition of a significant prison sentence.

41It follows that in the present instance, the need:

·To punish you for your offending;

·To  make  a  statement  to  the  community  that  those  involved  in  drug trafficking face the prospect of significant prison sentences; and

·The need to deter you from further offending and the need to protect the community;

are each sentencing principles of significant relevance.

42The nature of your offending satisfies me that I should impose the following periods of imprisonment with respect to each of the charges:

43With respect to Charge 1, you are convicted and sentenced to three (3) months’ imprisonment.

44With respect to Charge 2, you are convicted and sentenced to three (3) months’ imprisonment.

45With respect to Charge 3, you are convicted and sentenced to nine (9) months’ imprisonment.

46With respect to Charge 4, you are convicted and sentenced to eighteen (18) months’ imprisonment.

47With respect to Charge 5, you are convicted and sentenced to six (6) months’ imprisonment.

48Taking into account the circumstances of your offending to which I have referred I am satisfied that there should be some cumulation with respect to the sentences which I have imposed.

49The sentence with respect to Charge 4 will be your base sentence. I direct that six (6) months of the sentence imposed in relation to Charge 3, one (1) month

of the sentence imposed in relation to Charge 2, one (1) month of the sentence imposed in relation to Charge 1 and one (1) month of the sentence imposed in relation to Charge 5 be served cumulatively upon the sentence imposed upon Charge 4 and each other sentence.

50The total effective sentence which I have fixed for you is 27 months, in respect of which I fix a minimum period which you are required to serve of 18 months.

51 Pursuant to the provisions of s18 of the Sentencing Act 1991, I declare you have spent a period of 214 days including today by way of pre-sentence detention and that such period be reckoned as time served and noted in the records of the Court.

I am further satisfied that I should make each of the forfeiture orders sought in respect of the following items in the schedule attached to the notice under s32 of the Confiscation Act 1997 dated 4 March 2105 namely

Item 1- Cash in the sum of $ 12500;

Item 13- A silver Mitsubishi Lancer RVL513 Item 14- A Gold BMW YTA295.

Each of the items were intimately involved in the offending. You used the cars to transport the drugs and the money was paid to you for the supplying the drugs.

I will make the Forensic sampling order sought under s464ZF (2) of the Crimes Act.