R v Binh Trong Nguyen

[2011] NSWDC 120

District Court

New South Wales

Medium Neutral Citation:	R v Binh Trong NGUYEN [2011] NSWDC 120
Decision date:	19 August 2011
Jurisdiction:	Criminal
Before:	Cogswell SC DCJ
Decision:	Non-parole period of 4 years. Balance of the term of 2 years.
Catchwords:	CRIMINAL LAW - sentence - import marketable quantity of heroin - internal concealment of heroin - plea of guilty at first reasonable opportunity - prior criminal history including drug offences - refugee from Vietnam - drug addict - role as courier significant
Legislation Cited:	Criminal Code Act 1995 s 307.2(1)
Category:	Sentence
Parties:	Regina Binh Trong Nguyen
Representation:	Mr S Siva for the offender Ms H Armstrong for the Commonwealth Director of Public Prosecutions
File Number(s):	2009/319500

SeNTENCE

1. I am sentencing Binh Trong Nguyen for importing heroin into Australia. He has been charged with the crime called importing a marketable quantity of a border controlled drug, namely heroin. That is a crime against s 307.2(1) of the Criminal Code of the Commonwealth . It carries a maximum penalty of twenty-five years imprisonment.

2. Mr Nguyen pleaded guilty to the crime when he was charged and he pleaded guilty at the first reasonable opportunity.

3. It is important for a judge to set out briefly what happened to cause a person to be charged with a crime that they are being sentenced for. In this case Mr Nguyen arrived at Sydney Airport on 25 September 2010. He was interviewed by Customs who obviously suspected he was concealing drugs. He was sent to St George Hospital where a CT scan showed that he was concealing some objects in his rectum or lower bowel. He passed these objects later in the day. There was a large cylinder shaped pellet and two smaller ones. The pellets contained heroin. The heroin weighed just under ninety grams and had a purity of just over sixty-six grams and a street value of between $66,000-$77,000.

4. Mr Nguyen was interviewed by the Federal Police and admitted making arrangements to contact the suppliers of the heroin in Vietnam. He was a heroin addict and agreed to traffic the largest of the pellets so that the two smaller pellets would be for his own use. He also acknowledged that he had a debt of some $5000.

5. Mr Nguyen already had a criminal record in New South Wales. It included driving offences, but more importantly crimes of possessing and supplying prohibited drugs. He was given a gaol sentence for supplying a prohibited drug. It was a suspended sentence but he breached the bond and went to gaol. He also had a conviction for malicious wounding.

6. There is a pre-sentence report about Mr Nguyen prepared by the Probation and Parole Service. He was born in Vietnam and raised by his mother because his father died in the war over there in the 1970s. He came to Australia in 1993 and has been a citizen since 1997. His wife and three-year-old child live in Vietnam. He has had limited education and has been using the time in custody to attend educational courses. But his English is limited. He has been a heroin addict for many years. Sometimes he has stopped but he has started again. He has never done a formal course to help with this but he has been off drugs whilst he has been in custody.

7. There is a report from a psychologist, Mr Anthony Diment, which was tendered by Mr S Siva of counsel who appeared for Mr Nguyen. The report concludes that he appears to have a major depression and post traumatic stress disorder from his background of an escape to Thailand as a refugee on a boat when many of the people on the boat died.

8. His long term outcome depends upon his treatment and management of his depression and post traumatic stress disorder. He told the psychologist he regretted his involvement in the importation of drugs. He acknowledged in his interview, I should have said, that he was aware that he was trafficking in heroin.

9. Mr Siva pointed to his client's personal background which he said I could accept. He pointed to his client's cooperation in being interviewed and to material contained at tab 8 in exhibit A. His client has hepatitis C because of his drug use. He argued that his client was no more than a courier. He argued that his client should receive a discount for his plea of guilty and for the other material which I have referred to. He argued that his client was at a crossroads at this stage of his life and that his ability to participate in courses was limited because of his English.

10. Ms H Armstrong who appeared for the Commonwealth Director of Public Prosecutions argued that Mr Nguyen obviously knew how much heroin he was importing because it was internally concealed. I accept that argument. She questioned the reliance I could place on the personal background because it was not verified by any sworn evidence in Court. In that regard I accept Mr Siva's argument that they are matters which are known to the Court.

11. I take into account, as Ms Armstrong has argued, that his mental condition has been diagnosed following one relatively recent consultation and I would not regard there being much benefit in treating Mr Nguyen as a person with a mental disability.

12. It is clear from the statistics published by the Judicial Commission that full-time gaol is the only sentence which can be imposed. I have been assisted by Ms Armstrong providing some examples of sentences imposed in New South Wales for these kinds of cases.

13. It seems to me that an appropriate sentence would be eight years gaol but Mr Nguyen has pleaded guilty and I take into account the other material. The assessment regarding the other material is limited. I regard an overall discount for those two matters as twenty-five per cent as appropriate.

14. I regard his role in importing drugs into Australia as significant. He is not being sentenced as a principal in a large drug importing syndicate but, as Ms Armstrong pointed out, his role was obviously an important one in bringing the drugs into Australia.

15. He does not get the benefit of having no criminal convictions and I take into account the need for him to be stopped from dealing with prohibited drugs, either by supplying or importing them.

16. I regard an appropriate sentence after the discount as being six years imprisonment. Having regard to the authorities that Ms Armstrong has referred me to in exhibit A I think an appropriate non-parole period is four years imprisonment.

HIS HONOUR: Now Mr Hazelton I just need your assistance here. The sentence is going to be six years with a minimum of four years. I just don't have the Commonwealth legislation in front of me. I Ms Armstrong, let me address this, so it's more than three years so I fix a non-parole period or make a recognisance release order. Do you want to be heard on which option I will ask both of you?

HAZELTON: As stated in the submissions your Honour we consider a non-parole period is appropriate.

HIS HONOUR: Okay a non-parole period, Mr Siva do you have anything to say on that?

SIVA: No your Honour.

17. The sentence will be six years with a non-parole period of four years. The sentence will commence when Mr Nguyen was arrested on 25 September 2010. So the sentence of six years will commence on 25 September 2010 and expire on 24 September 2016. The non-parole period of four years will commence on 25 September 2010 and expire on 24 September 2014.

HIS HONOUR: Now Mr Hazelton, Mr Siva I will explain that to Mr Nguyen in a moment, although it is fairly straightforward. Are there any other orders I need to make apart from imposing that sentence? Am I right in thinking that his release depends upon the Parole Authority for Commonwealth matters, the State Parole Authority or not?

SIVA: I think so your Honour.

HIS HONOUR: Are there any other orders that I need to make?

HAZELTON: No your Honour.

HIS HONOUR: Mr Siva?

SIVA: Just in relation to tab 8 if that could be placed in a sealed envelope.

HIS HONOUR: Yes.

18. I remove from exhibit A the document behind tab 8 including the tab bar. It is to be placed in a sealed envelope which I will endorse " Binh Trong Nguyen " and I am putting not to be opened except by order of a judge of the District Court of New South Wales or a judge of a higher jurisdiction and that will go on the Court file.

19. Mr Nguyen you have a six year gaol term. It started when you were arrested on 25 September 2010. It will expire on 24 September 2016. There is a non-parole period - for which you must stay in gaol - of four years. That also commenced on 25 September 2010 and that will expire on 24 September 2014 and you will then be considered whether or not you will be eligible for parole.

20. I formally officially convict Mr Nguyen of the crime.

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Decision last updated: 06 September 2011