Nguyen v The Queen
[2017] VSCA 5
•25 January 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0120
| VAN YEN NGUYEN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 January 2017 |
| DATE OF JUDGMENT: | 25 January 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 5 |
| JUDGMENT APPEALED FROM: | DPP v Nguyen (County Court of Victoria, Judge Pullen, 12 April 2016) |
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CRIMINAL LAW — Sentence — Appeal — Trafficking in a commercial quantity of a priority species (abalone) and associated offences — Sentenced to 2 years and 8 months’ imprisonment with non-parole period 16 months — Whether sentence manifestly excessive — Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Edney | Doogue O’Brien George |
| For the Crown | Mr D Trapnell QC | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA:
On 21 March 2016, the appellant pleaded guilty in the County Court to an indictment containing one charge of trafficking in a commercial quantity of a priority species, abalone, contrary to s 111A of the Fisheries Act 1995.[1] He also pleaded guilty to three summary offences.[2]
[1]The maximum penalty is 10 years’ imprisonment.
[2]See Criminal Procedure Act 2009 s 242.
The judge sentenced the appellant on 12 April 2016 to be imprisoned for two years and eight months, with a non-parole period of 16 months, according to the following table:
Charge Offence Sentence Cumulation 1 Trafficking in a commercial quantity of a priority species 2 years and 3 months Base Summary offences 10 Selling fish of a priority species without authorisation[3] 5 months 3 months 11 Selling fish in contravention of the Act[4] 3 months 1 month 15 Dealing with property suspected of being the proceeds of crime[5] 3 months 1 month Total effective sentence 2 years and 8 months’ imprisonment 3 Non-parole period 16 months Pre-sentence detention 22 days Section 6AAA declaration 4 years’ imprisonment with a non-parole period of 2 years and 6 months Other orders Forfeiture order; forensic sample order; ‘prohibited person’ order under s 130 of the Fisheries Act 1995 [3]Fisheries Act 1995 s 40(1). The maximum penalty is 200 penalty units or 12 months’ imprisonment (or both).
[4]Fisheries Act 1995 s 116(1). The maximum penalty is 100 penalty units or 6 months’ imprisonment (or both).
[5]Crimes Act 1958 s 195. The maximum penalty is 2 years’ imprisonment.
On 31 August 2016, I granted the appellant leave to appeal on a single ground — which the respondent conceded was reasonably arguable — as follows:[6]
[6]I refused leave to appeal on the first ground, which was expressed as follows:
1.The sentencing judge impermissibly discounted the utility of the admissions made by the appellant to investigating officials by an over reliance on the lies told by appellant in some parts of the record of interview.
Ground 2 was abandoned at the hearing. It was:
2. The sentencing discretion miscarried because it was not open to find that the appellant’s conduct caused actual, as opposed to potential, environmental damage as alleged in the Summary of Prosecution Opening.
3. The sentence imposed on the charge of trafficking in commercial quantity of abalone was manifestly excessive, taking into account the following particulars:
(a)Plea of guilty;
(b)Significant admissions that went beyond the ‘known’ offending;
(c)Some evidence of remorse;
(d)Significant work history in Australia since arriving as a refugee in 1977;
(e)Uncontested character references of the [appellant] providing ongoing financial and emotional support for his four daughters;
(f)Continued support from his family;
(g)Primary carer of his wife because of her medical ailments;
(h)Poor English;
(i)First term of immediate imprisonment at the age of [54];
(j)Finding that his experience of
hisprison will be more onerous because of separation from his wife(k)Significant ‘gap’ in offending behaviour;
(l)Some delay between offence and ultimate disposition.
For the reasons that follow, however, I would dismiss the appeal.
Summary of the offending
In my reasons granting leave to appeal, I summarised the offending as follows:[7]
Abalone and rock lobster are highly protected as priority species under the Fisheries Act 1995 (‘the Act’). Nobody may take fish from Victorian waters for sale unless they hold a commercial fishery access licence under the Act. Further, recreational fishers are subject to a number of restrictions, and by virtue of ss 36, 40, 111A and 116, are not permitted to take fish for sale or sell their catch. Offences under these sections of the Act are Schedule 1 offences for the purposes of the Confiscation Act 1997, so that dealing with their proceeds is caught by ss 194 and 195 of the Crimes Act 1958.
In very brief (and incomplete) summary,[8] the prosecution’s case was that the [appellant] was part of a group of divers and retailers operating an unlawful syndicate in the business of taking abalone, rock lobster and other molluscs from western Victoria, and selling the catch on the black market. The [appellant] was one of the syndicate’s divers, and was considered the ‘top’ of a ‘pyramid’. Between 1 October 2013 and 14 October 2014, the [appellant] was inspected on the coast by Fisheries Officers (‘FOs’) on 45 occasions, and was covertly observed on 19 occasions. He allegedly harvested a total 544 abalone, 544 litres of other molluscs and 19 rock lobsters.
The syndicate harvested their catch in a manner that had a commercial appearance, and consolidated their catch at one of the divers’ addresses or at the [appellant’s] home address. It seems that the [appellant] would pay for the consolidated catch, sort it, weigh it and package it for sale, then deliver quantities by pre-arranged orders to private homes and retail outlets.
During the execution of a search warrant at the [appellant’s] premises, a quantity of $21,235 cash, suspected of being the proceeds of the [appellant’s] crimes, was located.
[7]Nguyen v The Queen (Unreported, 31 August 2016, VSCA, Priest JA), [7]–[10] (‘Reasons’).
[8]See Summary of Prosecution Opening (Exhibit A); Transcript pp 4–25; and Reasons for Sentence [8]–[45].
Manifest excess
Having heard full argument on the appeal, the appellant has failed to persuade me that the sentence is manifestly excessive.
As I indicated when granting leave[9] — and in the course of argument on the appeal — I have some sympathy with the respondent’s submissions in the written case that the appellant’s offending involved a ‘cynical manipulation’ of fisheries laws ‘in circumstances where the [appellant] knew full well that what he was doing was illegal’, and with the suggestion that the offending was ‘sustained’ and ‘brazen’, ‘carried out right under the noses of [FOs] who, time and time again, stopped the [appellant] and his cohorts but were powerless to bring the syndicate’s operations to a halt’.
[9]Reasons [16].
Furthermore, notwithstanding that they are relatively old, the appellant has relevant prior convictions. On 7 February 2000, the appellant was convicted and fined $1000 on charges of possessing abalone equipment (exceeding the catch limit), taking abalone (more than the catch limit) and failing to retain abalone meat in its shell. He next appeared at Geelong Magistrates’ Court on 30 May 2000 on a charge of failing to cut abalone meat within 20 metres of landing and was convicted and fined $1500. Finally, on 16 March 2001, at Sunshine Magistrates’ Court, the appellant was convicted and sentenced to an aggregate 4 months’ imprisonment, suspended for 12 months, and was fined $3000, on charges of possessing abalone equipment (exceeding the catch limit) and possessing abalone (more than catch limit).
The appellant’s counsel urged a number of mitigating features in the written case and in oral argument. Thus, aged 54 years,[10] the appellant has not previously suffered actual incarceration. Moreover, the appellant pleaded guilty — the judge did not altogether discountenance remorse — and made admissions. He had enjoyed a good work history since arriving in this country as a refugee in 1977. Additionally, he was the primary carer for his wife — she suffered a number of medical ailments — and provides ongoing financial and emotional support for his four daughters. Imprisonment will be difficult for him because of his poor English and the separation from his wife.
[10]The appellant’s date of birth is 27 March 1962.
Against those matters, however, there was a need for a measure of specific deterrence to be reflected in any sentence to be imposed upon the appellant, together with a significant component reflecting the need for general deterrence.[11] Furthermore, the appellant’s offending was, as I have said, sustained and brazen, so that just punishment and denunciation were also of importance.
[11]See R v Degelder [2006] VSCA 249, [9].
As I said when granting leave to appeal, I think it justifiably can be said that the sentence imposed is stern. With the benefit of full oral argument, however, I am not persuaded that the sentence imposed on the appellant is wholly outside the range of those appropriate in the sound exercise of discretion.
Proposed order
The appeal must be dismissed.
SANTAMARIA JA:
I agree.
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