R v Nguyen

[2015] VCC 1772

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01939

THE QUEEN

v

TUAN THANH NGUYEN

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2015
DATE OF SENTENCE:	3 December 2015
CASE MAY BE CITED AS:	R v Nguyen
MEDIUM NEUTRAL CITATION:	[2015] VCC 1772

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms E. Sheales	Commonwealth Director of Public Prosecutions
For the Offender	Mr D. Grace QC	The Office of David Grace QC

HIS HONOUR: 

1Tuan Thanh Nguyen, you have pleaded guilty to one indictable Commonwealth charge of importing Tier 2 goods, Charge 1, as well as one indictable State charge of possession of false documents, Charge 2.  You have also pleaded guilty to two summary charges of possessing prohibited weapons. 

2The prosecutor opened the circumstances of the offending by reading from a written document headed "Prosecution plea summary", which was tendered.  A prosecution document headed "Prosecution sentencing submissions" was also tendered.

3Your counsel tendered a "Defence outline of submissions", along with other documents, all marked as a single exhibit, Exhibit 1. 

4

In short, between 15 October 2012 and 16 April 2014, you imported

16 firearms parts or accessories on five separate occasions. 

5Pursuant to warrant, your home and other premises were searched by police on 9 April 2014.  Police located two New South Wales driver's licences, (Charge 2), and a set of bo-chucks at a property you were renovating, belonging to an uncle.  They also recovered two tasers at your home.  The possession of the bow chucks and tasers are the subject of the summary charges. 

6You are aged 28.  In December 2011, you were released on a 12 month community based order for using cannabis and trafficking methylamphetamine.  You were sentenced to four months' imprisonment, wholly suspended for 12 months.  Because the sentences were invalid, you were re-sentenced in July this year to be released on a 12 month community based order to commence in December 2011, for both the trafficking charges. 

7It was accepted by both parties that fines should be imposed for the state offences.  I agree with this and will do so, paying regard to your modest financial circumstances. 

8On Charge 1, the importation charge, the prosecution submitted that I should impose imprisonment, but it was open to me to order your release forthwith. 

9Your counsel submitted that I should consider releasing you on a community corrections order on Charge 1, however to was conceded that a sentence of imprisonment was open, albeit it should be modest and measured in months, with immediate release on a recognizance. 

10There was no resistance by the prosecution to the submissions concerning the length of any sentence of imprisonment. 

11You made admissions when interviewed by police, telling police you intended to use the firearms' parts as features on motor vehicles.  You claim the false licences had been given to you by a friend as a joke to demonstrate how easy it was to obtain false identification and then used them to test if they could be used.  Your counsel made the point that although the false licences were used to avoid detection, this was inevitable, given your use of your own identity to pay for firearms' parts.  You claim the tasers where for the protection of your partner.  The bo-chucks, you claim, were obtained to use at a fancy-dress party and then retained for use as a tool in your work as a motor mechanic. 

12

The pleas of guilty were not early; they came after discussions with the prosecution.  You must benefit from your pleas of guilty on all charges.  Both parties submitted that it was not necessary for me to rule on the question of whether the utilitarian benefits of your pleas could be given weight on

Charge 1, because the issue was not going to affect the determination of the appropriate penalty on that charge. 

13

The prosecution conceded that your guilty plea on Charge 1 demonstrates a willingness to facilitate the course of justice.  In any event, I propose to err on the side of caution and give significant weight to your plea of guilty on

Charge 1.

14Your background was detailed in written submissions and briefly sketched orally.  I accept you have a background of depravation and disadvantage. 

15After your arrest on the drug charges in 2011, you were assessed for the CISP program.  Those who monitored and assisted you considered you made positive changes during the program, exceeded all requirements and were motivated to continue treatment to deal with your illicit drug use and manage stress, which was seen as a significant contributor to your offending.  No doubt the evidence of your progress on the CISP program contributed to the sentences imposed in the Magistrates' Court in 2011, enabling you to avoid immediate imprisonment. 

16You successfully completed the invalid CBO, although the prosecution noted that the first import of the rolled-up charge of five that I am dealing with, occurred during the currency of the CBO. 

17Material relating to stress caused Alopecia, which you have suffered for years, was included in Exhibit 1. 

18You completed VCE in 2005 and then did a four year motor mechanic apprenticeship.  You then worked as a motor mechanic and it seems your work in this occupation, with a particular employer, placed you under stress, leading to dependency and the drug offending. 

19You have been in a relationship since 2012 and your partner gave birth to you daughter last month.  You live with your mother, sisters, one of whom is disabled, partner and your child. 

20Since March 2014, you have been working on a contract basis for a company on a modest salary, using your skills, including your skills as a motor mechanic to assist international students studying in Australia. 

21I accept that you are committed to doing all you can to provide for your extended family. 

22Concerning Charge 1, I am required to pay regard to the non-exhaustive list of matters in s.16A(2) of the Crimes Act 1914.

23Both parties agreed that it is not open to me to find that you imported the firearms parts for ongoing sale in the weapon's trade.  I accept this.  I also accept that the financial measure of the purchases was modest.  On the other hand, I do not accept your account to police that the parts were all to be used for the nominated purpose of novelty car accessory items.  This proposition is inconsistent with the manner of the importations, particularly the steps to avoid detection, the opinion of Sergeant Dauth and common sense. 

24

There are other matters in your account to police that I consider not credible.  For example, your supposed lack of knowledge that you had imported a silencer, an article that was not suggested by your counsel was intended for decorative purposes.  I think your counsel is correct when he suggested that

I might not be able to reach any clear conclusion concerning their intended purpose.

25I accept that the crime of importing firearms parts is serious and always carries the risk that such items can fall into the wrong hands.  General deterrence is an important factor.  The maximum penalty was increased in 2000 to reflect the seriousness of this crime.  Although the sentences imposed in the Magistrates' Court in 2011 were invalid, at the time of the first importation, you were putatively subject to a suspended sentence and a CBO.

26I accept the prosecution's submission that a term of imprisonment is the only appropriate sentence in all the circumstances. 

27On Charge 1 you will be convicted and sentenced to six months' imprisonment.  The sentence will begin today. 

28I order that you be released forthwith on entering into a recognisance in the sum of $1,000 to be of good behaviour for 12 months. 

29Had you not pleaded guilty, I would have sentenced you to a term of nine months' imprisonment.

30What further order I would have made is too speculative to assess. 

31On Charge 2 you will be convicted and fined $1,000.

32On the summary charges you will be convicted on each charge and fined an aggregate of $500.

33Anything I have left out? 

34MS SHEALES:  As Your Honour pleases.  Your Honour, I'll just fill in the forms.

35MR GRACE:  Just ask for a stay of three months?

36HIS HONOUR:  A stay of three months granted. 

37MR GRACE:  So, Your Honour, in relation to the summary charges, it's an aggregate fine of $500, is it?

38HIS HONOUR:  Yes. 

39MR GRACE:  Thank you. 

40MS SHEALES:  Your Honour, I have three copies of those forms. 

41HIS HONOUR:  What do I need to explain to Mr Nguyen, concerning the order?  The order means that you will not be required to go to prison immediately.  However if you fail to comply with the order, then you can be brought back before the court for sentencing.  Does a breach constitute a separate offence under - - -

42MS SHEALES:  No, it doesn't, Your Honour. 

43HIS HONOUR:  No.  And the order can be discharged or varied under the Crimes Act.  Can I leave that for you to explain to your client, Mr Grace?

44MR GRACE:  Yes, I'll do that.

45HIS HONOUR:  Thank you.  Who signs the document first, is it me or - - -

46MS SHEALES:  You, Your Honour. 

47HIS HONOUR:  Me?

48MS SHEALES:  Yes. 

49HIS HONOUR:  Yes, you can come out of the dock, Mr Nguyen.  You can come out of the dock.  Counsel will help you with the signing of the document.  Just come down to where your barrister is, Mr Nguyen. 

50All right, thanks very much. 

51MR GRACE:  Thank you, Sir.

52MS SHEALES:  Thank you, Your Honour.

53HIS HONOUR:  Thanks for that.

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