Regina v Thanh Dung Nguyen

[2007] NSWDC 330

CITATION:	Regina v Thanh Dung Nguyen [2007] NSWDC 330
HEARING DATE(S):	9/3/07 and 22/3/07.
JUDGMENT DATE:	20 April 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Sentence of imprisonment for nine years and six months with a non-parole period of six years.
CATCHWORDS:	Criminal law - Sentence after plea of guilty - Supply large commerical quantity of a prohibited drug - Heroin - Drug courier - No previous convictions - Gambling addiction - Remorse
LEGISLATION CITED:	s25(2) Drug Misuse and Trafficking 1985 ss 44, 47, 54B Crimes (Sentencing Procedure) Act 1999
CASES CITED:	CTC v Regina [2006] NSWCCA 236 Regina v Cassar [1999] NSWCCA 152 Regina v Chan [1999] NSWCCA 103 Regina v Misiepo [2005] NSWCCA 405 Veen v The Queen (No.2) (1988) 164 CLR 465 Vu v Regina [2006] NSWCCA 188
PARTIES:	Regina Thanh Dung Nguyen
FILE NUMBER(S):	06/21/3289
COUNSEL:	Mr Bellanto QC for the offender
SOLICITORS:	Ms Morkaya for the NSW DPP

JUDGMENT

1. Thanh Dung Nguyen has pleaded guilty to supplying a prohibited drug. It was 2.1123 kilograms of heroin. This is more than twice the large commercial quantity for heroin. The offence was against s25(2) of the Drug Misuse and Trafficking Act 1985. Because it is more than a large commercial quantity, it carries a sentence of life imprisonment pursuant to s33(3)(a) of the same Act. Two backup offences have been transferred to me: possessing a prohibited drug, 2.1123 kilograms of heroin and goods in custody, the amount of $10,000.

2. The offender was committed for sentence on 6 December 2006 from the Liverpool Local Court. The Crown acknowledges that his plea of guilty was entered at the first available opportunity.

3. The facts of the offences are set out in a document which is part of Exhibit A. On 20 August 2006, police received information about a possible interstate transportation of a large amount of illegal drugs. The information included the name of the offender and a car registration number. Police conducted surveillance on certain premises in Fairfield East and on the offender in his car. Police later approached the offender in the car and told him of their suspicions. The offender denied that he was carrying any drugs. When the police searched the car, the offender admitted there were drugs and told the police where to look. They found white packaging underneath where the spare tyre is held. The packaging was stored through the rims of the tyre and clearly depicted in a series of photographs taken at the scene. The packaging comprised seven blocks neatly and securely packaged by heavy duty tape and cushioned with carpet inserts. The packaging had clearly been carefully secured so as to avoid detection otherwise than by a thorough search.

4. The offender was arrested and cautioned. He admitted he was on his way to Melbourne to meet a friend to deliver the drugs. He said that he had packed the blocks in the tyre himself earlier that morning. He was taken to Liverpool Police Station where he participated in an electronic recorded interview.

5. During the course of the interview, the offender admitted storing the drugs in the hiding place and told the police that he would be receiving $10,000 for the delivery to Melbourne. In addition, he admitted that it was the second time he had done such a delivery. When asked why, he replied “Oh I just need the money”. He told the police that a man whom he could not identify had delivered the drugs to his place earlier that morning. Questioned about the earlier delivery of drugs he told the police that he had delivered the drugs to an Asian male whose name de did not know and was paid $10,000. That occurred about two weeks before his arrest. He said that there were on that occasion, six bags of drugs of the same size, but overall a smaller amount of the drugs. Asked how he found out about making money from the delivery of drugs, he said that he had attended a nightclub in Cabravale. He told a man that he needed money and the man told him how he could do it. That conversation occurred some six months before his arrest but the first contact was made only a couple of weeks before. The offender acknowledged that the packaging and storage of the drugs in the spare wheel was his idea. He also acknowledged that he knew that what he was delivering were drugs but that he did not know what kind of drugs. Asked why he needed the money, the offender replied “Because I got big mortgage”. He and his wife were both employed.

6. The offender was born on 11 March 1965 so that he has just turned forty-two years old. He was arrested on the day of the offence, 20 August 2006 and has been in custody only on this matter since that date. He has no previous convictions nor was the offence committed while he was on any form of conditional liberty. Evidently there were eight bags of drugs. They were analysed by an analyst at the Division of Analytical Laboratories of the Institute of Clinical Pathology and Medical Research. The total weight of the items was 2.1123 kilograms.

7. There was tendered in evidence a pre-sentence report dated 8 March 2007 by Jendy Ellen, a Probation and Parole officer. Some items of history in that report were corrected from the bar table and accepted by the parties. The offender was born in Vietnam and came to Australia in 1985. He still has siblings in Vietnam. He described a troubled childhood with his family being caught up in difficult times in Vietnam. He has two children from a previous marriage. They are presently aged twenty-three and twenty-one. He has been in his current relationship for some eight years and has two children, one of them is two and the other is six months. He was described by his partner as a very supportive and caring father and partner. He told the officer that his wife’s parents came to live with them two years ago and that a year ago they all moved in with his wife’s aunt and uncle. He reported financial difficulties stemming from this arrangement. He left school at the age of eleven and has worked in a variety of areas and has been employed for the last eight years by Woolworths working in a warehouse. There was in evidence a letter from his employer noting that he had abandoned his employment and terminating that employment. He has taken advantage of education programmes in custody. He does not report any alcohol or drug problem but claims to have commenced gambling since the move to his wife’s relatives. He reported to the officer that “He needed to obtain money to cover debts relating to the mortgage on their house” and “that he was responsible for supporting the family unit and was struggling to meet his financial commitments”. He was reported as appearing regretful and acknowledging the seriousness of his actions. The officer described his “presenting issue as gambling”. He was prepared to address this by way of counselling.

8. The offender did not give evidence before me. His son, Thanh Hieu Nguyen, gave evidence. He was born in 1985 and is the offender’s younger son. He works part time in two jobs, one of them with Fairfield Council as a youth worker and the other as a packer. His elder brother is also in employment. He told me that the offender’s extended family were in Court including his first and second wives and other relatives. He related that his father had always supported him until he was sixteen and that he regularly had time with his father in various activities and stayed with him. No-one in his family has been in any sort of trouble before. He said that his father’s wife’s parents were sponsored to Australia by the offender who paid for their trip and provided for them. He thought there was a $200,000 mortgage on the family home which was serviced at the rate of about $500 a week. Together with other expenses the weekly domestic debt was some $1,000. His father and his father’s wife brought home just over $1,100. He has visited his father regularly in prison.

9. Mr Nguyen junior reported that his father was very ashamed, very angry at himself and very sorry for all the stress which he had caused. He knew that he had to be punished and would never do it again. He appreciated the impact his actions had on others and was confused and stressed by his financial burdens. Asked why his father hade committed the offence, Mr Nguyen junior ventured that his father’s intentions had been good because he had wanted to help his families and that there is no chance that this would be repeated. He reported that his father is undertaking various courses in custody including English. He is determined to continue on such rehabilitation courses until he is released. Mr Nguyen junior said that the offence was definitely out of character. He did no think that his father “had it in him”. His father neither drinks nor smokes nor takes drugs. His father has asked him to be a good role model for his other children.

10. I heard submissions on sentence on 22 March 2007 from Mr Bellanto QC for the offender and Ms Morkaya for the Crown.

11. Mr Bellanto, in dealing with the objective gravity of the offence, pointed out that the offender’s was a low level involvement. That was conceded by Ms Morkaya and I accept that the offender was no more than a courier. In addition, Mr Bellanto urged me to find that his client had been approached by a relative stranger and prevailed upon to undertake this crime. I do not accept that submission. It is quite apparent from the answers given by the offender to a series of questions commencing at Q177 in his ERISP that he initiated the arrangements. He repeatedly asserted that “I ask them” adding “I need money to do something”. There was an interval of some six months after the initial contact and then he was approached at that stage but there is no evidence that he was “prevailed upon”. The opportunity he had sought out to relieve his financial burdens was now being offered to him. Mr Bellanto pointed out, and I accept, that the offender earned a flat fee of $10,000 and not a percentage of the profits. He also urged me to take into account that the drugs were not disseminated into the community. I accept the following passage from the judgment of the Court of Criminal Appeal in R v Chan [1999] NSWCCA 103, referred to me by both legal representatives as stating the appropriate approach to such a situation:

“ In assessing the sentence to be imposed it is relevant to take into account that the prohibited drugs supplied to the undercover agents will not be disseminated into the community. Of itself this is usually unlikely to lead to other than a very minor diminution of culpability. The offender had the intention to supply and in supplying knew and believed that the drugs would be likely to find their way into the community. The fact that they did not do so was not due to the offender. ”

Mr Nguyen’s role was clearly that of a courier responding to instructions from those higher up the chain without any knowledge of the larger picture. However whilst I accept as appropriately conceded by the Crown that the offender’s was a low level involvement, I also accept Ms Morkaya’s submission that there was a degree of planning and preparation. That was obvious from the offender’s admission that it was his idea to secrete the drugs in the spare wheel. But I further accept, as Ms Morkaya pointed out, that the planning was limited to the execution of the delivery he was instructed to do.

12. Mr Bellanto drew my attention to his client’s motivation. His response in the ERISP was “because I got big mortgage...and my family...life so, yeah, I tried to...pay mortgage”. Whilst I accept that there was no evidence of greed or the offender living the high life there is some evidence, contained in the Probation and Parole Report, of gambling although it appears to be a recent development and one aimed, like this offence, at raising money for the mortgage. Mr Bellanto urged me to mitigate any sentence because the motivation was related to necessity and hardship. I do not accept that submission. Whilst I acknowledge and take into account that he was not driven by greed, he was in a similar position to thousands of families within the community. There was a mortgage and two incomes coming into the house and this required management. In his case, the offender decided to manage this by committing an extraordinarily serious crime.

13. Next Mr Bellanto turned to the offender’s personal circumstances. He referred to his age, his strong work record and work ethic and strong family values. I accept and take all those factors into account. I also accept that the offender’s character was not affected by any previous criminal record and that until his involvement in this kind of activity he was a person of good character. Both parties drew my attention to the decision of the High Court in Veen v The Queen (No2) (1988) 164 CLR 465 which had been referred to by the Court of Criminal Appeal in R v Cassar [1999] NSWCCA 152 at [25]. McInerney AJ said, by reference to that case, that

“ it is important to understand that in considering a past criminal record, the antecedent criminal history is relevant to show whether the instant offence is an uncharacteristic aberration, or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law ”.

I do not accept that this crime was an uncharacteristic aberration because the offender admitted to having couriered drugs to Melbourne on one previous occasion. This was not a one-off offence. However, as I have indicated, I do accept that until he became involved in this activity, he was a person of good character.

14. Mr Bellanto urged me to find express evidence of contrition. I find that the offender’s plea of guilty is some evidence of contrition. I also find that there is some evidence of contrition through Mr Nguyen junior’s evidence of his father’s reaction to his detection and arrest. He also evidently told the Probation and Parole officer that he was “regretful and acknowledged the seriousness of his actions”. This evidence has some value but it is limited and not as strong as it would have been if it had come from the offender himself in evidence.

15. Mr Bellanto urged me, in fixing sentence which he correctly acknowledged must be a custodial sentence, to find, in accordance with s 44(2) of the Crimes (Sentencing Procedure) Act 1999 that there are special circumstances for reducing the non-parole period below three-quartes of the term of the sentence. He listed those factors as his client’s prospects of rehabilitation, the fact that it was his first time in prison, his good character and the motivation for the offence, his work record and the indication by the Probation and Parole office that there might be a need to address gambling. Ms Morkaya conceded, correctly in my view, that it was open for me to find special circumstances in this case. I propose to make that finding and will return to that question towards the end of these remarks.

16. Mr Bellanto helpfully provided me with a bundle of relevant authorities. He emphasised two in particular. One was CTC v Regina [2006] NSWCCA 236 which, Mr Bellanto urged, would provide a rough guide to a range for the current offence. That case involved a plea of guilty to the supply of a large commercial quantity of heroin, being just over 2 kilograms. The offender’s appeal from the sentence of eight years and six months with a non-parole period of five years and six months was dismissed by the Court of Criminal Appeal. The offender in that case was an active distributor of drugs for a group of people. In addition, he had previously served two lengthy prison sentences for supplying prohibited drugs. The offender’s plea was late but he had been prepared to plead guilty earlier to a less serious offence. He had provided assistance to the authorities at a significant level. The sentencing Judge had allowed a combined discount for the plea of guilty and the assistance of forty percent.

17. The other decision emphasised by Mr Bellanto was Vu v Regina [2006] NSWCCA 188. He said that he drew comfort from Vu. In that case the offender had pleaded guilty to three discreet offences (one being on a Form 1). One was for the supply of a large commercial quantity of heroin and the other two were supplies of commercial quantities. The offender received a maximum discount of twenty-five percent. His overall sentence was fourteen years. That was not reduced on appeal but his non-parole period of eleven years was reduced to nine years on appeal. The offender in that case was readily able to obtain large quantities of heroin and was in a position to negotiate price. He was able to hold quality batches of heroin for persons who wanted to obtain it. It was part of an ongoing criminal activity and the offender derived a substantial degree of profit. Vu and CTC, submitted Mr Bellanto, provided a pattern of sentence in respect of this offence.

18. By reference to a passage in Chan, Mr Bellanto urged me to accept that this was not a case of supply for profit. I do accept that the offender did not partake in any percentage of the overall profits from the distribution of drugs but he was clearly going to profit immensely for his return trip to Melbourne. I have taken into account the other cases to which Mr Bellanto referred in his submissions.

19. In addressing the standard non-parole period provided for this offence (fifteen years pursuant to s 54B of the Crimes (Sentencing Procedure) Act and the table to Division 1A of Part 4 of that Act), Mr Bellanto correctly reminded me that the standard non-parole periods “are to be taken as having been intended for a middle-range case where the offender was convicted after trial”: see Vu at [29] per Hall J with whom James and Buddin agreed. As his Honour went on to say “[i]n sentencing after a plea, the standard non-parole period...though not obligatory still takes its place as a reference point” and that, “[a]ccordingly, in the case of a plea of guilty, it is appropriate for a sentencing judge to consider where the particular offence lies on the range of objective seriousness”. It has also been described, by reference to sentencing after a plea, “as a benchmark, reference point, sounding board or guidepost”: see Regina v Misiepo [2005] NSWCCA 405 at [43] per Simpson, J. Mr Bellanto submitted that this case was well below the middle of the range of objective seriousness. After taking into account the objective and subjective factors, he says I could impose a non-parole period as low as five years and reflect general deterrence by the length of the head sentence.

20. Ms Morkaya conceded that the plea had been entered at the earliest opportunity and should therefore attract the maximum utilitarian discount of 25%. That was an appropriate concession which I accept. The sentence should be backdated to 20 August 2006, which I propose to do. Ms Morkaya pointed out, so far as objective seriousness was concerned, that the quantity was more than twice the minimum amount for a large commercial quantity. I regard this as relevant and significant. I also regard as relevant and significant the fact that Parliament has affixed a maximum of life imprisonment to the crime which was committed by the offender. I also take into account Ms Morkaya’s submission that although the offender was a low level participant, the distribution of illegal drugs within the community cannot work effectively without such participants. Ms Morkaya conceded that the offender was contrite and had volunteered, by way of admission, that his involvement in a previous trip to Melbourne to deliver drugs. Ms Morkaya also acknowledged his efforts at rehabilitation. She correctly reminded me that the standard non-parole period was a reference point not a starting point and was specifically intended for a sentence following a trial. Objectively speaking, she submitted that I should take into account the quantity of the drug in this case, the financial benefit, the intended dissemination within the community, the planned execution of the trip and the fact that this was not the first time on which the offender had undertaken such an exercise. This should all be seen in the context of his role as a courier.

21. Finally, Mr Bellanto urged me to be careful in looking at the earlier trip to Melbourne admitted to by the offender. He acknowledged that his client admitted that he was delivering narcotics but whether or not they were in fact drugs was an open question. In response, Ms Morkaya drew my attention to the statement of facts contained in Exhibit A, admitted into evidence by consent, which recorded that during the course of his interview, the offender “made admissions that he had previously done a single `drug run’ to Melbourne” and “that he was paid $10,000 for conveying 6 blocks (packaged in a similar way to that located by police) to Melbourne.” I note that in answer to Q146 of his ERISP the offender refers to “the drug”. Ms Morkaya drew my attention to the similar packaging and the payment of $10,000 and concluded that there was a high probability that the previous supply was of drugs. I would go further than that. Given the offender’s admissions, the similar packaging and the fact that he was paid $10,000 on the previous occasion, I am satisfied beyond reasonable doubt that on that previous occasion he delivered illegal drugs to Melbourne.

22. I turn now to determine the appropriate sentence to impose upon the offender. Appreciating that the standard non-parole period is a reference point or guidepost for sentencing after trial, I do not regard this case as being in the middle of the range of objective seriousness. That is because the offender was a courier acting on instructions. (I should add that I can see how such a finding was open in the case of Vu. The offender in that case was readily able to obtain large quantities of heroin and was in a position to negotiate price with respective purchasers. He was also able to hold quality batches of heroin for persons who wanted to obtain similar quality. He was trafficking in hard drugs for a substantial degree of profit.)

23. On the other hand, in this case the offender initiated the contact with those who could help him make a substantial amount of money by this means. He intended to facilitate the distribution within the community of twice the large commercial quantity of heroin. He went to some trouble to ensure that his part in the process would go undetected. This was not a spontaneous or opportunistic crime.

24. Although not an uncharacteristic aberration, the offender had led an exemplary life up until he decided to become involved in this activity. He has pleaded guilty at the earliest opportunity and there is limited evidence of his contrition.

25. I do not regard this case as being as serious as Vu. The sentence imposed by his Honour Judge Williams in that case had to take into account the criminality involved not only in the supply of a large commercial quantity of heroin (as in this case) but two offences of supplying a commercial quantity of the same drug. In addition, his Honour found that the offences were within the middle of the range of objective seriousness. CTC is more comparable to this case. It was a plea of guilty to a large commercial quantity of two kilograms of heroin. It was more serious in that the offender had two previous convictions for supplying drugs for which he received custodial sentences. But on the other hand, CTC benefited from a 40% discount which took into account both the plea and what his Honour Judge Berman SC regarded as assistance to authorities “quite clearly of a significant level” (at [17]).

26. Taking all these factors into account, I regard an appropriate head sentence as nine and a half years. I regard the offender’s prospects of rehabilitation, the fact that it his first time in prison, his good character and the motivation for the offence as well as his work record and the possibility of needing to address gambling as amounting to special circumstances for the balance of the term of the sentence exceeding one third of the non-parole period. Accordingly I have determined in accordance with s 44(1) of the Crimes (Sentencing Procedure) Act, to set a non-parole period for the sentence of six years. The balance of the term of the sentence is to be three and a half years. To express this in another way, the offender will be sentenced to an overall sentence of nine and a half years with a non-parole period of six years.

27. In accordance with s 47(2)(a) the Crimes (Sentencing Procedure) Act, I direct that the sentence of imprisonment is taken to have commenced on 20 August 2006 which is the date from which the offender has been held in custody in relation to this offence. In accordance with s48(1) of that Act, I specify the day on which the sentence is taken to have commenced as 20 August 2006 and the earliest day on which it appears that the offender will become eligible to be released on parole as 19 August 2012.

28. So Mr Vu, your overall sentence is nine and a half years, and the non-parole period is six years, and it appears that you will become eligible to be released on parole on 19 August 2012.

oOo