Nguyen v The Queen
[2010] VSCA 236
•13 September 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0626
| TAN HAI NGUYEN | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NETTLE and HARPER JJA and FORREST AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 13 September 2010 | |
DATE OF JUDGMENT: | 13 September 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 236 | |
JUDGMENT APPEALED FROM: | DPP v Nguyen (Unreported, County Court of Victoria, Judge Jenkins, 1 May 2009) | |
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CRIMINAL LAW – Sentence – Trafficking in a drug of dependence – Plea of guilty – Offender sentenced to a three years and six months’ imprisonment – Non-parole period of two years – Whether judge erred in findings about level of trafficking throughout relevant period – Whether sentence manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C B Boyce | Slades & Parsons |
| For the Crown | Mr S Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
I invite Harper JA to deliver the first judgment.
HARPER JA:
On 8 June 2006, police armed with a search warrant were given access by the appellant to residential premise at 5 Babbajia Court, Coburg. The premises were searched, as were two vehicles parked in the driveway. A total of 209.8 grams of powder containing heroin were found. Of that total, 36.7 grams of the powder also contained morphine. On a mattress, on which the appellant had been sleeping immediately before the police arrived, were plastic bags containing powder that was 60 percent pure heroin. The remainder of the powder, found elsewhere in the house and in the vehicles, contained no more than one percent of heroin. This included 0.2 grams of powder found inside the appellant's wallet. Much paraphernalia associated with drug dealing was also found.
The appellant's arrest followed an investigation of the activities not only of the appellant, but also of the woman with whom, at the beginning of the investigation, he had been living. During the course of that investigation, telephone calls made to and from a telephone used by the couple were intercepted. The warrant giving permission for these intercepts allowed them to take place for 60 days beginning on or shortly before 9 November 2005.
In fact the intercepts were discontinued on the following 17 December. It was, according to the evidence called on behalf of the prosecution, a decision dictated by scarcity of resources. Be that as it may, the intercepts effected between 12 November and 17 December demonstrated that the appellant and his co-accused made and received numerous calls, almost on a daily basis, in the course of an active and commercial drug dealing enterprise.
On 3 March 2009, the appellant was arraigned and pleaded guilty to one count of trafficking in a drug of dependence, namely diacetylmorphine, also known as heroin, for the period of seven months between 9 November 2005 and 6 June 2006. The maximum sentence for that offence is 15 years' imprisonment.
The plea was heard in the County Court over three days in March 2009. On 2 April 2009, the appellant was sentenced to be imprisoned for three years and six months. He was ordered to serve two years' imprisonment before becoming eligible for parole.
Leave to appeal was granted by this Court on 27 November. There are two grounds. First, that the judge erred in relying upon s 5 of the Drugs, Poisons and Controlled Substances Act 1981; and secondly that the sentence is manifestly excessive.
The first ground was abandoned when the appeal came on for hearing. On the other hand, counsel for the appellant sought leave by oral application to add a new ground, the effect of which was that the judge erred in approaching the sentencing task on the basis that the appellant maintained throughout the specified seven month period the same relatively high level of street scale trafficking.
The Court allowed counsel for the appellant to advance his arguments in support of the proposed new ground, while reserving its decision on whether or not leave should be granted. The Crown did not oppose that course.
In my opinion, the leave sought should be granted. It relied on no evidence that was not before the judge on the plea, and no adverse consequences flowed to the Crown by reason of the late notice.
The appellant admits that the heroin found on the mattress on 8 June 2006 was his. He also admits to ownership of the 0.2 grams of powder found in his wallet. He claims to know nothing about the balance of the powder found by the police when a search warrant was executed on 8 June.
The house at 5 Babbajia Court, Coburg was then the place of residence of the co-accused, Hong Em Nguyen, and two boys – each being a son of one co-accused, but neither with any parent in common. The Crown alleges that the appellant also lived at the Babbajia Court address throughout the period the subject of the charge.
The appellant denies that this is so. He admits that he was, in 2005, trafficking drugs in conjunction with his co-accused, but says that this happened to cease on the very day that the telephone intercepts were discontinued: 17 December 2005. In his evidence on the plea, the appellant answered 'Yes' when asked whether on 17 December that year there was a total stop in his drug trafficking activities.
An allied aspect of the case put by the appellant on the plea was that he ceased to live at the Babbajia Court address early in 2006. While he slept overnight there on occasions thereafter, and although the school aged son to whom he was and is devoted remained in residence at that address, he (the appellant) spent most nights sleeping in unidentified motels or like accommodation. As he would have it, the evening of 7 to 8 June 2006 was therefore one of the by now atypical evenings which he spent at Babbajia Court and at which the police happened to find him.
Although the telephone intercepts were discontinued after 17 December 2005, the appellant remained under intermittent police observation thereafter. The effect of the evidence of the police informant was that she visited the address on 28 occasions between 1 September 2005 and the date of the appellant's arrest, and on 16 of those occasions there were either positives observations of the appellant himself at the premises, or his car was seen in the driveway, or both. On eight of those occasions the time of sighting was at a time consistent with the appellant being present overnight. This position remained a consistent aspect of the observations into 2006 - after the appellant swore that he no longer used Babbajia Court as his principle place of residence. Thus 16 of the total of 28 visits to the premises were made in 2006. On 13 of those 16 occasions, there were sightings of the appellant or signs of his presence. Six of them were at times which were consistent with an overnight stay.
The judge was entitled to disbelieve the appellant's evidence that he had moved out of the Coburg address. The judge was in my opinion likewise entitled, not only to disbelieve the appellant's evidence that his trafficking ended on 17 December 2005, but to be satisfied beyond reasonable doubt that that activity continued at more or less its 2005 levels throughout the first five months of 2006 and up to the date of his arrest. That was the evidence given on the plea by his co-accused.
Although the judge was justifiably unimpressed by both the appellant and the co-accused as witnesses, she was, in my opinion, justified in accepting the co-accused on this point. The appellant's assertion that he ceased to traffic on 17 December is totally lacking in credibility. The intercepts show that trafficking took place on that day. As the police observations demonstrate, there was no discernable change in the appellant's relationship with the co-accused thereafter, although there were after the beginning of 2006 no sightings of any activity which was consistent with drug dealing.
On the other hand, there were of course the findings of the police after they executed the warrant on 8 June. They were entirely consistent with a continuation of the drug dealing association between the appellant and the co-accused. There can be no doubt, in my opinion, that that association was in existence as at the date of the appellant's arrest.
Much was made on behalf of the appellant on the appeal this morning of the point that, apart from the matters to which I have already referred, there was very little evidence of the appellant's involvement in drug trafficking between January 2006 and the date of his arrest. Nevertheless, it seems to me for the reasons I have already given that the judge was justified in finding beyond reasonable doubt that the appellant continued with his drug trafficking activities during that period.
In addition to the matters I have already mentioned, there was the discovery in the appellant's car on 8 June of the sum of $5,000 in cash. The appellant's explanation for his having that amount in his possession at that time was disbelieved by her Honour. In my opinion her Honour was entirely justified in discounting the
appellant's explanation. It was that he had received that money from his mother, then in Vietnam, to assist him to overcome what he called his 'smoking' problem but which in fact, as he accepted, was his addiction to heroin. But he produced no credible documentary evidence of this transaction. He said that $3,000 of that money was given to his co-accused, hence the balance of $5,000 being found in his car. The account however, as I have indicated, is an incredible one and her Honour was justified in accepting that the money was in fact the proceeds of drug dealing.
This, together with there being no reason to doubt that the relationship between the appellant and the co-accused continued uninterrupted from the beginning of 2006 until the date of his arrest, and there being no reason to disassociate this Court from the finding of her Honour that on this point the co-accused evidence was to be believed, in my opinion the first ground must fail.
The second ground of appeal was that the sentence was manifestly excessive. That ground was not strenuously argued during the course of the appeal and in my opinion there was good reason why that was so. The sentence of three years and six months' imprisonment was in my opinion one that could not be described as manifestly excessive. Indeed, it was entirely within the range of sentences which in my opinion was open to her Honour. For those reasons, in my opinion, the second ground must also fail.
NETTLE JA:
I agree. I would simply add in relation to the proposed added ground of appeal, that whatever doubts one might have about the reliability or credibility of the witness Hong Em, it is apparent that the trial judge had the unique advantage of seeing and hearing that witness give evidence. Relative to us, that placed her Honour in a position far better to assess the quality of the evidence, and in my view left it open to her to conclude, as she did, that it was established beyond reasonable doubt that the accused continued to traffic throughout the relevant period.
FORREST AJA:
I agree.
NETTLE JA:
The order of the Court is that the appeal is dismissed.
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