DPP v Nguyen

[2019] VCC 1815

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01425

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER NGUYEN

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2019
DATE OF SENTENCE:	4 November 2019
CASE MAY BE CITED AS:	DPP v NGUYEN
MEDIUM NEUTRAL CITATION:	[2019] VCC 1815

EX TEMPORE REASONS FOR SENTENCE

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Subject:  Criminal Law  
Legislation Cited: s 5A and s 89DI of the Sentencing Act 1991 (Vic)

Cases Cited:The Queen v Brown [2018] VSC 742; The Queen v Robertson [2019] VSC 145

Sentence:9 years 6 months imprisonment. 5 years and 6 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr J. Dickie	Ms V. Worrell
For the Accused	Mr R. Richter QC Ms S. Seoud	Mr S. Andrianakis

HIS HONOUR:

1Peter Nguyen, on indictment, you have pleaded guilty to five charges, one charge of trafficking in a drug of dependence in a large commercial quantity, Charge 1, which carries with it a maximum penalty of life imprisonment, two charges of theft of motor vehicles, Charges 2 and 3, which carry with them a maximum penalty of ten years' imprisonment, one charge, Charge 4, of possession of substance material, documents, or equipment for trafficking in a drug of dependence, which carries with it a maximum penalty of ten years' imprisonment and one charge of handling stolen goods, Charge 5, which carries with it a maximum penalty of 15 years' imprisonment.

2In addition, you have pleaded guilty to seven summary offences, being four charges of dealing with property suspected of being proceeds of crime, summary Charges 6, 18, 21 and 24, which carry with it a maximum penalty of two years' imprisonment, one charge of displaying incorrect numberplates, summary Charge 7, which carries with it a maximum penalty of a fine and two charges of possessing a Schedule 4 poison, summary Charges 23 and 25, which carries with it a maximum penalty of two years' imprisonment.

3The circumstances surrounding your offending are set out in the prosecution opening for the plea hearing, which became Exhibit 1, and I heavily rely upon it for my sentencing purposes.  On 22 August 2018, you had trafficked in a large commercial quantity of a drug of dependence, methylamphetamine, better known as Ice, in a commercial setting.  You carried about 4.4 kilograms of that drug in a backpack whilst driving a motorbike in the early hours of the morning and possessed 200 grams of methylamphetamine in Apartment 2412, at 22-24 Jane Bell Lane in Melbourne.

4It is that possession which relates to Charge 1.  The BMW motorbike that you were riding was stolen and that relates to Charge 2 and a motorbike displaying numberplates other than those issued relates to the summary Charge 7.  You also carried on your person $2,905 cash, which relates to summary Charge 6 and had at the family home $10,750 in cash, which relates to summary Charge 24, both amounts being reasonably suspected to be proceeds of crime.

5You also stole a BMW 3401 Sedan found by police on 23 August 2018 in the carparking space for Apartment 2413 and it is that theft, although it is not suggested you were the original thief, that relates to Charge 3.  In addition, you unlawfully possessed 5.9 grams of the restricted poison ephedrine that was located in a bag inside that BMW motorcar and that relates to summary Charge 25.

6Two days later, as part of the investigation, on 24 August 2018, in Apartment 2504, police found various materials possessed by you, with the intention of using the materials for the purpose of trafficking in a drug of dependence, that being related to Charge 4.  In Apartment 2412, you dishonestly retained stolen goods, being various personal cards, knowing or believing the items were stolen and that relates to Charge 5.  You also had $19,950 cash, that was reasonably suspected of being proceeds of crime and that relates to Charge 18 and a further 3.5 grams of ephedrine, which relates to summary Charge 23.

7The circumstances surrounding your apprehension on 22 August 2018 was that at 3.05 am on that Wednesday morning, you were riding your BMW S1000 motorcycle and stopped outside 176 Power Avenue, Chadstone.  The motorbike owned by a Ming Tao Liu had been stolen from an underground carpark in West Melbourne between 12 and 15 August 2018.  That relates to Charge 2.  The motorbike was worth about $20,000 and it displayed numberplates other than those issued for the motorbike, summary Charge 7.

8You carried a light grey backpack.  Inside the backpack was a second black bag which held six large ziplocked bags and a medium size ziplocked bag, containing white crystal substance.  The substance was methylamphetamine, this being part of Charge 1.  It weighed a total of 4,384.8 grams and had a purity of between 77 per cent and 83 per cent.  That comprised a total of 3.4 kilograms of pure methylamphetamine of that total amount of approximately 4.3 kilograms.  This quantity of 4.3 kilograms is approximately six times the large commercial quantity of that substance.  A large commercial quantity is set by Parliament at 750 grams.

9Police had been patrolling the area as part of the nightshift divisional van duties.  They approached you for a routine check.  You said you had just been visiting your girlfriend.  You said you did not have your licence and you said falsely that your name was Dong An and that your date of birth was 20 January 1992. 

10Checks conducted by police could identify a person with that name and a similar date of birth, but it was observed that this person required glasses to drive and was not currently licenced.  One of the police officers noticed that the registration plates on the motorbike was in an unusual location and attached with cable ties.  When you were asked about the motorbike, you said that it was a friend's.  You were asked to dismount, which you did.

11When you were asked about the numberplate, you ran off towards Waverley Road.  At the time, you were carrying the backpack and wore a black leather jacket.  Police were unable to catch you and lost sight of you.  At about 3.15 am, that is ten minutes after the initial contact with police, you were captured on CCTV footage at a nearby house at 184 Power Avenue.  The cameras activation brought your presence to the attention of the residents who in turn contacted police.

12Whilst at that address, you discarded your backpack next to the fence in the front garden.  Three minutes later at 3.18 am, police saw you walking along Moorong Street, one street away from Power Avenue.  At this time, you were wearing your jacket.  Police briefly lost sight of you and you discarded your jacket in the front of 20 Moorong Street.  Police later found you there.  When approached, you initially claimed to have had a rough night after breaking up with your missus.  Shortly afterwards, you agreed that you were the man earlier seen on the motorbike.  You were arrested, police having identified that the motorbike was stolen.

13Police also found your discarded motorcycle jacket.  It contained an ice pipe, three mobile phones and $1,910 in cash.  You confirmed that the jacket was yours.  You also had a number of keys including access cards and a BMW car key.  Responding to the call from residents, police attended at 184 Power Avenue where they found the backpack with the methylamphetamine inside.  The backpack also contained $995 cash in the front pocket.  There were reasonable grounds for suspecting this and the $1,910 from the jacket, a total of $2,905 in cash, were proceeds of crime, Summary Charge 6.

14When you overheard police relaying the discovery of the drugs over the radio, you were seen dry retching and said 'I'm fucked'.  You eventually provided police with your correct name and date of birth and your residential address of 21 Timberglade Drive in Noble Park North.  At 3.35 pm of that same day police executed a warrant at this address where they found and seized certain items.  This included $10,750 in cash, comprising $6,700 in one hundred dollar and fifty dollar notes from a portable safe in your bedroom and also $4,050 predominantly in fifty dollar notes inside a sports bag in the closet across from your bedroom.  There were reasonable grounds to suspect that this property were proceeds of crime, Summary Charge 24.  In your bedroom, police also found a bond agreement for Apartment 2504 at the Jane Bell Lane Melbourne address, dated 10 August 2018.  At 6.45 pm, you were interviewed and you exercised your right to make no comment. 

15The following day, Thursday 23 August, police attended at the Jane Bell Lane address where they discovered that three of the keys found on you could access two apartments being Apartment 2412 and Apartment 2504. Police found in the car space for Apartment 2412 a BMW Sedan with registration plates that did not belong to the car.  Enquiries revealed that the vehicle was stolen from a Cheltenham on 3 or 4 May 2018 and is the subject of Charge 3.  It was worth about $65,000.  The BMW car key found in your jacket operated the car.  CCTV footage obtained from the premises showed you driving the BMW.  Inside police found a bag containing 9.5 grams of ephedrine, a restricted poison that you were not authorised to possess, Summary Charge 25.   

16In the ensuing investigation, at 9.08 am on Friday 24 August 2018, police executed search warrants at Apartments 2412 and 2504.  No persons were present, but it appeared that a person or persons had recently been living in Apartment 2412.  After police found what appeared to be a clandestine laboratory in Apartment 2504, the police Clandestine Laboratory Unit were contacted and later attended. 

17About 4.30 pm, the unit completed their search of Apartment 2504 and items seized by the unit, or later by police included the following:

(a)Nine plastic bags, thirteen glass dishes or containers, five plastic bowls or containers, three plastic colanders, four plastic funnels, a plastic pump bottle, an electric cooker and filters all containing liquid and/or solid substance. 

(b)Face masks and deodorisers. 

(c)Containers described as holding acetone, being four litres, one litre and five hundred millilitres.

(d)A receipt in your name for the purchase of a pair of sunglasses.

(e)Notes relating to drug manufacturer.

(f)And $18,900 in cash.

18The assorted glassware, equipment and chemicals in Apartment 2504 were possess by you, with the intention of using them for the purpose of trafficking in a drug of dependence, Charge 4.  It is not, I emphasise, alleged that you possessed the substances seized in Apartment 2504, but you were aware of and possessed in that sense the materials, but another, or others, may have been involved in the production of the substances.

19In Apartment 2412, police also found and seized certain items, including:

(a)Two glass beakers, a glass jar, a glass carafe and a plastic bag, all containing a liquid and/or solid substance.

(b)Seven Ziplock or freezer bags containing powder.

(c)Forty-three personal identity cards in names of eight individuals, a Debit card and bank letter in one individual's name and three driver's licences;

(d)And $19,950 in cash.

20Eight items seized from Apartment 2412 contained a total of 200.5 grams of a substance containing methylamphetamine, this being part of Charge 1.  The purity of those substances varied between 36 per cent to 100 per cent.  One item contained about 3.5 grams of the restricted poison ephedrine, Summary Charge 23.  It is reasonably suspected that the $19,950 found in that apartment was proceeds of crime, Summary Charge 18.  You would have known or believed that a number of the personal cards in the Apartment 2412 were stolen, Charge 5.  With respect to other cards and items, it was reasonably suspected that they were stolen property, Summary Charge 21.  In relation to the driver's licence found, one had the face altered to have your image on it.  Another was in the name of Dong An, the name you initially provided to police on 22 August 2018 upon your interception. 

21Further enquiries were conducted with respect to both of those apartments, 2412 and 2504, and a bond agreement was found at your home.  On 9 August 2018, in response to an advertisement on Gumtree to sublease Apartment 2504, you met and texted the landlord.  He agreed to an initial three month lease with an ongoing monthly arrangement.  On 10 August 2018, you were captured on CCTV footage attending a meeting to sign the bond agreement for Apartment 2504.  There were texts regarding the lease to and from a mobile phone found on you when you were arrested.  The mobile number was subscribed to another person's name.  When signing the bond agreement, you signed as Dong An.  You provided $800 on the day and a further $4,500 was transferred on 11 August 2018. 

22Items seized were analysed for DNA and fingerprints.  DNA was identified and a drink bottle and cap found in the BMW car in the space for Apartment of 2412 were found to be one hundred billon times more likely for you to have been a contributor than not.  A fingerprint was also found on the glass beaker seized from Apartment 2412, which was found by a fingerprint examiner to match your fingerprint.  Having been arrested on 22 August 2018, you have remained in custody ever since. 

23Your committal hearing was originally listed for 24 March 2019 but was vacated on 21 March 2019 and relisted for a two day hearing on 17 July 2019.  On that latter date, after discussions various charges were withdrawn on the basis that you entered pleas of guilty to the remaining charges.  You were thereafter committed by way of straight hand-up brief on those charges, with the relevant summary charges transferred, entering pleas of guilty.  It is conceded by the prosecution that this involves early pleas of guilty and I act on that basis, as I will come to in due course.

24You have only one prior court appearance at the Moorabbin Magistrates' Court on 4 June 2010, in relation to a theft of a motor vehicle, going equipped to steal and other associated driving offences.  On each charge, without conviction, the matter was adjourned for a period of twelve months to 3 June 2011.  As indicated during the course of discussion, that prior matter is of no moment whatsoever to the sentencing disposition in this particular case. 

25The charge of trafficking in a drug of dependence in a large commercial quantity is part of the standard sentencing regime.  In that regard, I have been provided with a number of sentences by other Judges of this court which I have read.  They are of no moment other than their assistance in understanding that scheme.  More appropriately, the scheme has been articulated in its operation by Justice Champion in two cases.  The first being The Queen v Brown [2018] VSC 742, where his Honour most helpfully analyses this standard sentencing regime. The standard sentencing for trafficking in a large commercial quantity is 16 years.

26Turning to his Honour's sentencing reasons commencing at paragraph 77, under the heading 'Standard sentence', his Honour wrote:

‘The standard sentence for murder, as provided by s 3(2)(b) of the Crimes Act 1958, is 25 years’ imprisonment.

Section 5A(1)(b) of the Act further provides the standard sentence is:

the sentence for the offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

For the standard sentence to act as a legislative guidepost in a particular case, it requires ‘content be given’ to its specification as the sentence for an offence in the ‘middle of the range of objective seriousness’. This is done by taking into account the objective factors affecting the relative seriousness of the offence under consideration.’

27Under the heading 'Identifying ‘objective factors’ affecting the relative seriousness of the offence':

'Section 5A(3) of the Act provides:

For the purpose of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined-

(a)without reference to matters personal to a particular offender or class of offenders; and

(b)wholly by reference to the nature of the offending.

In light of the clearly expressed language of s5A(3) of the Act, when assessing the objective factors affecting the relative seriousness, a sentencing court is prevented from taking into account matters personal to the offender, and must determine it wholly by reference to the nature of the offending.

These provisions reflect the language used by the High Court in Muldrock, which concluded in respect of the NSW legislation that:

Meaningful content cannot be given to the [standard non-parole period] concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.

The direct adoption of the High Court’s language, strongly suggests that, in this respect, the Victorian standard sentence provisions should be interpreted consistently with the approach taken in Muldrock.

The assessment required by ss5A(1)(b) and 5A(3) of the Act is directed at giving meaning to the standard sentence. It does not, as has been clearly established, require or permit the Court to engage in a ‘two-step approach’, involving and initial ‘classification’ of the offending at issue by reference to whether it falls in the middle range of objective seriousness.

In Williams v R, the NSW Court of Appeal considered the approach taken by the sentencing judge in making a finding that ‘the offence fell at just above the mid-range for such offences’. The Court confirmed it is not necessary for the judge to ‘classify’ the offending or assess whether it falls in the middle range of objective seriousness, but concluded her Honour’s sentencing remarks did not reveal she had adopted a two-stage approach to sentencing as:

The sentencing judge did not commence with an assessment of whether the offence fell within the middle range of seriousness and then point to factors that justified a longer of shorted non-parole than had been prescribed (emphasis added).

The Court further accepted that aw sentencing judge should ‘continue to assess the objective seriousness of the offence’ and that the objective gravity of an offence is an essential element of the sentencing process.

It is to be observed that the ‘nature and gravity of the offence’ is a further sentencing factor pursuant to s 5(2)(c) of the Act. The assessment of the objective gravity of an offence is essential to the sentencing process in Victoria. This task will continue to be undertaken in non-standard sentence cases. To do so is to follow the guidance provided in Muldrock that the Curt fully identify the ‘facts, matters and circumstances’ that bear upon the determination of the appropriate sentence. However, the standard sentence scheme viewed as a whole indicates that when sentencing for a standard offence, the court must follow the requirements of ss5A(1)(b) and 5A(3) when making an assessment of the seriousness of the offence in issue.

I proceed to discuss ss 5A(3)(a) and (b) of the Act, before considering all the factors impacting the seriousness of your offending.’

28His Honour then continued with the examination of s.5A(3)(a) under the heading ‘Section 5A(3)(a) - matters personal to a particular offender' and wrote:

‘There has been significant judicial discussion in NSW about whether an offender’s personal circumstances may ever be relevant to an assessment of the objective gravity of the offence. In Biddle v R, for instance, the NSW Court of Appeal noted some tension in the High Court’s reasoning in this regard, pointing to its consideration of the relevance of an offender’s cognitive impairment or mental illness and statement that:

A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. … in sentencing a mentally retarded offender … the lack of capacity to reason, as an ordinary person might, as to the wrongfulness for the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.’

29His Honour then continued:

‘Some authorities have interpreted Muldrock as meaning that an offender’s personal circumstances, particularly their mental state, mental health or cognitive status, will be relevant to this assessment where they are causally connected to the commission of the offence. This is because an offender’s mental condition at the time of the commission of the offence may be ‘a critical component of “moral culpability” which in turn affects the assessment of “objective seriousness”.’’

30His Honour continues at paragraph 93, under the heading 'Section 5A(3)(b), the nature of the offending':

‘In determining the objective factors affecting the relative seriousness of the offence, the meaning of the phrase the ‘nature of the offending’ is important. While often used, it appears little time has been given either by the High Court in Muldrock or in previous Victorian sentencing cases, to extrapolating the meaning of the expression.

In Williams v R, Price J in obiter expressed the view ‘the nature of the offending’ should not be confined to the ‘ingredients of the crime’, but rather taken to mean ‘the fundamental qualities of the offence’. This characterisation has been adopted in later cases in NSW.’

31His Honour continues at paragraph 99:

'In my view, the correct approach to take under s 5A(3) of the Act is for a sentencing judge to make an assessment of what factors causally affect the relative seriousness of the offence, complying with the prescribed language and structure of the legislation.’

32There is no suggestion in this case, that matters personal to you are causally connected to your offending.  His Honour returned to this standard sentencing regime in The Queen v Robertson [2019] VSC 145 observing at paragraphs 50 to 56.

'Section 5(2)(ab) of the Act provides that a court must have regard to the standard sentence, if any, for the relevant offence.

Section 5A provides:

If the Act that creates an offence, or prescribed the maximum penalty for an offence, specifies a period as the standard sentence for the offences, then-

(a)  the offence is a standard sentence offence: and

(b)  the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

Section 3(2)(b) of the Crimes Act 1958 provides the standard sentence for the offence of murder is 25 years’ imprisonment.

It is clear the standard sentence for an offence should be viewed as a ‘legislative guidepost’ as to the middle range of objective seriousness of that offence. As the Explanatory Memorandum to the Amended Act states:

The standard sentence is not the starting point for sentencing, nor does it require a two-stage sentencing. Rather, the standard sentence is intended to provide the courts with a legislative guidepost of objective offence seriousness that is compatible with the instinctive synthesis approach to sentencing, which has been affirmed as part of the common law in Victoria.

Sections 5A(1)(b) and 5A(3) of the Act can be seen to be directed at giving meaningful content to this legislative guidepost.

As noted, s 5A(1)(b) of the Act dictates that the standard sentence is the sentence for an offence in the ‘middle of the range of seriousness’, taking into account ‘only objective factors affecting the relative seriousness’ of the offence. Section 5A(3) of the Act further provides:

For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined-

(a)  without reference to matters personal to a particular offender or class of offenders; and

(b)  wholly by reference to the nature of the offending.

In light of the clearly expressed language of s 5A(3) of the Act, when assessing the objective factors affecting the relative seriousness of the offence, a sentencing court is prevented from taking into account matters personal to the offender, and must determine it wholly by reference to the nature of the offending.’

33And so it is that I turn to this task of assessing the objective seriousness of your offending in relation to Charge 1, trafficking in a drug of dependence in a large commercial quantity.  Here, the quantity was a not an inconsiderable quantity, being 4.38 kilograms of methylamphetamine.  Parliament has prescribed that a large commercial quantity of that drug is 750 grams.  This means that the quantity that you were in possession of at the time when you were intercepted was almost six times a large commercial quantity.  The purity was high, ranging between 77 to 83 per cent pure.  You knew that the package you had with you was heavy, because it was in your backpack.  You, in moving that drug, were performing an essential role in its movement down the line from one place to the other.  You had to have been trusted by others to have such a large quantity of that drug.  You were obviously motivated by financial gain. 

34Methylamphetamine is of course a scourge in our community.  You willingly participated in trafficking that drug.  You chose to take the risk and but for the police stop in the early hours of the morning you probably would not have been stopped from delivering that drug to whomever it was that you were carrying it to.

35During the course of discussion between counsel, Mr Richter QC and
Mr Dickie, it was agreed by the parties that this offending is towards the lower end of the mid-range for such offending.  In the circumstances of this case, I agree that that is so and act upon it in that regard.  So much for the objective assessment of the seriousness of this offending, as is plain from his Honour's sentencing remarks in the above two cases, the exercise in sentencing you is not a two-step exercise.  I take into account that the standard sentence here is 16 years as a guidepost, in the same way that the maximum penalty of life imprisonment is a guidepost set by Parliament. It is essential that in sentencing you I do not fall into the error of adopting a two-step process.  Rather, I look to those guideposts, as with all other sentencing factors that I must take into account, in order to arrive at a sentence which is appropriate, being the product of the instinctive synthesis in sentencing.

36I now turn to matters personal to you.  You were born in Australia on
14 November 1991.  You now are 27, turning shortly 28 years of age.  You were 26 at the time of the offending.  Your mother and father came to Australia as refugees from Vietnam.  They separated in your infancy and you have no memory of your father.  You have two younger twin brothers who are 23 years old.  Your brother John Nguyen holds a Bachelor of Science from the University of Melbourne and works for the Australian Taxation Office.  Your brother David Nguyen also holds a Bachelor of Science from the University of Melbourne and works casually at Woolworths.

37You too have tertiary qualifications, being a Bachelor of Engineering with Honours from the Royal Melbourne Institute of Technology. You were admitted to that degree in 2014, having already completed an Associate Degree in engineering and technology, also from that same institute of technology in 2012.  All three of you have been academically successful. In the psychological report of Mr David Bell, which became Exhibit PN1, he informally assessed you as having superior intellect. 

38Your family has been supportive of you.  Indeed, your long term partner continues to be supportive of you.  What is it that brought you here?  It appears that the same drug, ice, has brought about your fall, as it has so many others who have come before this court.

39You commenced using illicit substances around the age of 19.  You began using cannabis and then moved onto ecstasy and cocaine in the party context.  Your choice of drug was marijuana, until you were introduced to ice around early 2017.  You, unsurprisingly, reported becoming addicted to ice quickly.  Using it twice in the same week after you first tried it.  Your ice use was one where you would stay up for days on end, using the drug before having one to two days sleep and then repeating the process.  You estimated that you, at your worst, were using some 1 to 3 grams per day.

40Turning to the psychological report of Mr Ball, he writes at p.3:

'Mr Nguyen reported all aspects of his mnemonic function to be operating within normal limits, but he said his memory is “not as good as I’d like it to be”. He was oriented to time, place and person. I would estimate his IQ to fall within the superior range.

Overall, Mr Nguyen impressed me as a man with the capacity to exercise food judgment and to plan and execute positive and self-sustaining behaviours. However he presents with an unmanaged anxiety disorder which he has self medicated with illicit substances.’

41At page 4, in relation to your drug and alcohol history, he writes:

'Mr Nguyen said that he started drinking alcohol when he was aged 16 but reported mostly moderate patterns of consumption. He said that he ceased drinking alcohol when he was ages 24 when he started using methylamphetamine. He said that he has additionally used cannabis habitually, cocaine and MDMA on an occasional basis. He said that he considered himself to have been addicted to both cannabis and methylamphetamine and would use up to 3g of this latter substance on a daily basis. He acknowledged some of the negative impacts of his substance use and said, “It has blinded me and made me trust in people I should not have mixed with … It has made me do things I would never imagine I’d do and I regret deeply.

Mr Nguyen said that since being in custody he has vigorously applied himself to his own rehabilitation and has participated in programs and individual counselling to help him free himself of his dependence on substances. He said, “I’m learning more about my problems and taking an active approach to address them instead of avoiding (them)”.’

42Later, in relation to your current situation, Mr Ball wrote:

'Mr Nguyen explained that he had met some people at the Waltzing Matilda hotel and that they would smoke substances together. He said, “They loaned me money and paid for my ice use. Eventually they turned around and said ‘you owe us’ … they told me that I had to do jobs for them … they pretty much forced me to so these things”. When queried, he said that they were not operating as loan sharks or charging interest on money borrowed.

Mr Nguyen expressed what I assessed to be genuine regret and remorse and said, “Having been incarcerated, I have seen how badly drugs have affected our community and what it’s doing to us. I have met countless people who have been a victim to drugs. I can only say how much regret I have in ever playing a part”.’

43Your partner Nhi Vo wrote a letter which became Exhibit PN6.  Among other things, she wrote:

'Over the last ten years, Peter grew tremendously as an individual from a shy and quiet being to someone who was outgoing, confident and strong-minded. However, 12 months prior to his arrest, I had begun to identify changes in his behaviour. Things that he would often enjoy such as company, physical activity and his general interest in his hobbies such as cars begun to decrease. He was withdrawn, did not speak much and preferred to sleep for longer periods of time. He became distant from his friends, family and avoided speaking to me regarding his change in behaviour. It became apparent to me that he was in a state of depression and anxiety. In Asian cultures, mental illness and financial stress is often taboo and not spoken about openly which restricts the avenues for help. It was in this context that Peter was introduced to the use of drugs and consequently to engage in the conduct that has caused his incarceration.

It bas been approximately 15 months since Peter’s arrest and throughout my regular contact with him over the phone and during visitation periods, I believe Peter is extremely remorseful for his actions and deeply regrets the offence he has committed.’

44Later she wrote:

'I am confident that Peter will be able to reintegrate back into the community with the support of his wide network of family and friends upon release.

I have known Peter as a decent, hardworking and caring person. The behaviour that he has displayed that caused him to be charged with serious drug offences is out of character.’

45Your close friend Sam Hoac also wrote a letter which became Exhibit PN7.  He writes:

'I first met Peter at Wellington Secondary College and have know him for close to 17 years. During the years of knowing Peter I have found him to be a  respectful and responsible individual from a kind and humble family.’

46Towards the latter part of his letter, he also writes:

'I can state that I have visited Peter whilst in custody and often have phone contact with him. I am aware that he is pleading guilty to a serious drug offence. I know from our conversations that he is extremely remorseful for his actions and deeply regrets the offence he has committed. He has embarrassed his parents who are well respected, law abiding members of not only the Vietnamese community but also the general community.

The charges and imprisonment that Peter has subjected himself to will also limit his prospects to future employment as a civil engineer.

Prior to Peter committing this offence, he was comforted with a promising career as a projects manager in the construction industry.

Despite the offence and the situation that Peter has placed himself, I am confident in stating that upon his release he will dedicate himself to his career as an engineer and he will stride to achieve a state where he can once again enter the path of becoming an upstanding, contributing member of our community.’

47In another reference, Exhibit PN7, Bao An Nguyen Vu wrote:

'I’ve never known Peter to have gotten into any kind of trouble, let alone a serious offence of this magnitude. This has really struck me for some time now because of the individual I’ve known Peter to be. This is extremely out of character and there is nothing I can point to, to suggest how such a pure-hearted person would take such a drastic turn.’

48Your previous employer, Aldo Timpanaro wrote in his letter, which became Exhibit PN9:

'As a director of Concorp, I have come across countless employees and Peter Nguyen is one of the few who have stood out as being exceptional. He is a man who showed dedication and commitment to his work and it was apparent to all that he was working beyond his allocated hours.

During his employment he worked tirelessly to manage projects and resolve issues as they arose. His dedication, hardworking nature, and energy as a project manager was felt by all members of Concorp.’

49In the concluding part of his letter, he continues:

'As a Director of Concorp, upon Peters release I will endeavour to support his application for future employment with the company. I say this because of the Peter Nguyen that I got to know whilst an employee and member of Concorp. He impressed upon me not only a dedication to his work and his clients, but a passion and enthusiasm building corporations are in need of in their team of project managers.

I have spoken to a number of Peter’s friends since his incarceration, and it is apparent to them that he regrets his offending and the position that he has placed himself in.

It is clear that he has the support of his family friends and work colleagues and it is hoped that with this support upon his release he will reintegrate into his profession and with the effort and dedication that he has shown in the past he may attain a level where one day he can be respected as a talented engineer and a law abiding member of our community.’

50You also have written a letter, addressed to the sentencing Judge, 'Your Honour', which became Exhibit PN10.  In it, you commence by writing:

'I fully understand and acknowledge the severity of my charges and am pleading guilty. I would like to bring to your attention that I have no prior convictions and this is my first time facing a possible serious conviction.’

51You later indicate your involvement with drugs, saying:

'Subsequently, at 19 years old I was introduced to marijuana which I used as a coping mechanism to handle my social anxiety and depression. Ober the years my mental health issues began to worsen as my tolerance to marijuana grew.

Eventually in 2017 I was introduced to the drug ice, which at the time I thought was great in managing my mental health issues. Little did I know how deadly and dangerous ice was in the long run. Things began to get out of hand and my life started to spiral downwards as my dependence on ice became stronger. During this period of my addiction to ice, my mental state became so bad that I could not think or function without ice. My habit got out of hand a I begin associating with the wrong people to support my habit, which subsequently saw me in debt.

In 2018, I had no choice but to work for a drug dealer as methods of repayment and supporting my deadly habit. During this period I had realized that I was in too deep.’

52Later, you wrote:

'I am so grateful to have been on remand while awaiting my day in court. For the first time ever, I have been drug free and am so glad that this nightmare is finally over. I’ve begin to see thing clearly. I have witnessed first hand the devastating effects ice has had on many other prisoners and their families. I now realize the extent of the damage that ice causes. Although I feel ashamed of my actions, I am glad it happened because it has definitely made me a better person.’

53And in the penultimate paragraph you wrote:

'I have since reconnected with my parents, siblings, friends and partner. I regret that it has taken all this to occur for me to realize that abundance of support that I have from my loves one’s. I want to do the right thing by them and make them proud by contributing and being a valued member of society again.’

54Whilst in custody you have completed a number of courses and you are sufficiently highly regarded in that setting to become a billet.  Exhibit PN4 shows a series of urine assay results between February and March which are negative for any narcotic.  It is plain in this case that you, coming from a good family, were studious and applied your obvious intellect not only to your studies but also to your work.  You were a highly valued employee.  Your downfall, as I have already adverted to, is the dreaded drug ice.

55I am satisfied that you are indeed fully insightful into your offending and genuinely remorseful for it.  This is also reflected in your early pleas of guilty, which I take into account in that regard, but also in terms of the utility of your pleas of guilty, thereby avoiding the trial.  I assess your prospects of rehabilitation as being excellent and this in turn is important in moderating the need for you to be deterred, thus specific deterrence, deterring you from reoffending, is of less moment in this particular case than it would otherwise be.  General deterrence, deterring others is the principal sentencing factor that I must take into account.  It must be made plain that those who engage in trafficking will face stern punishment, as must you.

56I must also take into account the need for just punishment for this offending.  You knew what you were getting yourself into.  Your motivation for getting involved to support your drug habit and pay debts give some explanation, but of course is no excuse whatsoever for what you have done.  Nor is it something that you have put forward as being an excuse.  I must denounce your behaviour in participating in this evil trade.  In reflecting on the appropriate sentences, I have taken into account the need to ensure that the sentences that I impose are in total appropriate.  Taking into account all these matters, I sentence you as follows.  Can you provide the chart please, Ms Jackson, to counsel.  Stand.

57On Charge 1, trafficking in a drug of dependence in a large commercial quantity, I sentence you to be imprisoned for a period of eight years.  On the charges of theft, Charges 2 and 3, I sentence you to be imprisoned for a period of nine months.  I direct that on each of those charges, three months be served cumulatively upon the base sentence of eight years.  On Charge 4, possession of a substance, material, documents or equipment for trafficking a drug of dependence, I sentence you to be imprisoned for a period of eighteen months and I direct that six months of that period be cumulated upon the other sentences.  On Charge 5 of handling stolen goods, I sentence you to be imprisoned for a period of one month and I direct that three months be served cumulatively upon the previous sentences. 

58In relation to the Summary Charges 6, 18, 21 and 24, dealing with property suspected of being proceeds of crime, I sentence you to be imprisoned for an aggregate period of nine months and I direct that three months of that nine months be served cumulatively upon the previous sentences. On the charge of possessing a Schedule 4 poison, Charges 23 and 25, I sentence you to be imprisoned for an aggregate period of three months.  I do not order any period of cumulation in relation to those charges.  On the summary charge of displaying an incorrect numberplate, I sentence you to be fined $400. 

59This produces a total effective sentence of nine and a half years. I direct that you serve a minimum period of five years and six months before being eligible for parole. I state that pursuant to s.6AAA of the Sentencing Act, the sentence I would have imposed, but for your pleas of guilty, would have been a sentence of twelve years and six months, with a non-parole period of eight years and six months. I declare pre-sentence detention to be 439 days, excluding today and I declare under s.89DI of the Sentencing Act 1991, that you are a serious drug offender. I do not intend to effect any of the licences.

60MS WORRELL:  Your Honour, I'm grateful to my friend for raising it to my attention.

61HIS HONOUR:  Take a seat Mr Nguyen.

62MS WORRELL: Section 89(4) of the Sentencing Act says that upon conviction, the court must either, if they have a licence, suspend for a period of time, or cancel the licence and/or put a period of disqualification and if they don't have a licence, disqualify from obtaining a licence for a period of time. So I apologise for my error with that.

63HIS HONOUR:  That's all right.  So what's the end result, I have to ‑ ‑ ‑

64MS WORRELL:  If the accused has a licence, Your Honour can either suspend for a period of time, it doesn't specify.

65HIS HONOUR:  Yes.

66MS WORRELL:  Or can cancel the licence and/or disqualify the accused from obtaining a licence for a period of time.  If the ‑ ‑ ‑

67HIS HONOUR:  Or do nothing?

68MS WORRELL: No, or if the accused doesn't have a licence, the court must disqualify the accused from obtaining a licence for a period of time. That's under s.89(4) and that's upon conviction.

69HIS HONOUR:  What do you say Ms Seoud?

70MS SEOUD:  My reading of that section is a little bit different.  I agree with Your Honour that Your Honour doesn't have to make any order and if Your Honour doesn't make any order, the minimum time will be three months automatically.  So if Your Honour goes to 89(4).

71HIS HONOUR:  Of?

72MS SEOUD: Of the Sentencing Act, it's outlined there.

73HIS HONOUR:  Eighty-nine.

74MS SEOUD:  Sub-s.(4) and what I'm referring to ‑ ‑ ‑

75HIS HONOUR:  Just hold on, hold on.

76MS SEOUD:  Sorry, Your Honour.

77HIS HONOUR:  There's a lot of 89s.

78MS SEOUD:  Yes, Your Honour.

79HIS HONOUR:  Yes.

80MS SEOUD:  So sub-s.(4) outlines the court's powers in relation to whether someone's convicted or found guilty of the relevant offending.  Sub-s.(5) states 'If a period of suspension or disqualification is not specified by the court on making an order, the period is three months'.  So Your Honour ‑ ‑ ‑

81HIS HONOUR:  I might as well make a declaration of three months.

82MS SEOUD:  As Your Honour pleases.

83MS WORRELL:  As Your Honour pleases.

84HIS HONOUR:  Yes well I add all licences are cancelled and you are disqualified from obtaining a licence for a period of three months. 

85MS WORRELL:  Thank you, Your Honour.

86MS SEOUD:  As the court pleases.

87HIS HONOUR:  Which is at variance to the chart that has been provided.  Now I will make the orders for disposal and forfeiture and there are any other matters?

88MS SEOUD:  No, Your Honour.

89MS WORRELL:  No, Your Honour.

90HIS HONOUR:  Just give me a moment.  Yes, you can remove Mr Nguyen please. 

‑ ‑ ‑

Charge	Detail	Incident	Max. Penalty	Sentence	Cumulation	Additional
1	Traffick in a Drug of Dependence – Large Commercial Quantity	On 22 August carried about 4.4kg of methylamphetamine in a backpack while driving a motorbike in the early hours of that morning and possessed about 200g of methylamphetamine in Apartment 2412 at 22-24 Jane Bell Lane, Melbourne.	Life imprisonment	8 years	BASE	8 years
2	Theft	The BMW motorbike owned by Mingtao Liu, stolen from underground car park in West Melbourne	10 years imprisonment	9 months	3 months	3 months
3	Theft	The BMW 3401 sedan, found by police on 23 August 2018 in the car space for Apartment 2412	10 years imprisonment	9 months	3 months	3 months
4	Possession of substance, material, documents or equipment for trafficking in a drug of dependence	24 August 2018 Found in Apartment 2504 at 22-24 Jane Bell Lane by police.	10 years imprisonment	1 year 6 months	6 months	6 months
5	Handle Stolen Goods	Cards dishonestly retained in Apartment 2412	15 years imprisonment	1 years	3 months	3 months
SUMM 6	Dealing with property suspected of being proceeds of crime	22nd of August 2018  $2,905 (on his person at time of charges 1 and 2)	2 years imprisonment	9 months (aggregate with summary charges 18, 21 and 24)	3 months	3 months
SUMM 7	Display incorrect number plates	22nd of August 2018 used a motor vehicle on a highway (BMW S1000 motorcycle) displaying number plates other than the number plates issued for the vehicle (at time of charges 1 and 2)	10 penalty units	$400
SUMM 18	Dealing with property suspected of being proceeds of crime	21 August 2018 $19,950	2 years imprisonment	9 months (aggregate)	-	-
SUMM 21	Dealing with property suspected of being proceeds of crime	21 August 2018 Personal cars in the names of: Lingfeng KONG George ROME James LEE Aihua YUAN Biao HUANG	2 years imprisonment	9 months (aggregate)	-	-
SUMM 23	Possess schedule 4 poison	22 August 2018 Ephedrine (found inside of car – subject of charge 3)	2 years imprisonment	3 months (aggregate with summary charge 25)	-	-
SUMM 24	Dealing with property suspected of being proceeds of crime	22 August $10,750 (at the time of charges 1 and 2)	2 years imprisonment	9 months (aggregate)	-	-
SUMM 25	Possess schedule 4 poison	23 August 2018 Ephedrine	2 years imprisonment	3 months (aggregate)
Total effective sentence: Non-parole period: 6AAA: Pre-sentence Detention: Ancillary orders:				9 years 6 months imprisonment 5 years 6 months 12 years 6 months (8 years 6 months NPP) 439 Disposal order Forfeiture order

On charges 2 and 3 all licences cancelled and disqualified for 3 months.

Declare serious drug offender.