The Queen v Nguyen

[2019] VCC 1190

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00432

THE QUEEN

v

PHUONG NGUYEN

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2019
DATE OF SENTENCE:	2 August 2019
CASE MAY BE CITED AS:	The Queen v Nguyen
MEDIUM NEUTRAL CITATION:	[2019] VCC 1190

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Attempting to traffick border controlled drug in a traffickable quantity; Early plea of guilty; Unsophisticated offending; Whether Community Correction Order available for Federal offence; Offending too serious for wholly suspended sentence.

Legislation Cited:                   Crimes Act 1914 (Vic); Sentencing Act 1991 (Vic).

Cases Cited:Atanackovic v The Queen 45 VR 179; R v Bukvic [2010] SASC 195; Boulton v R [2014] VSCA 342.

Sentence:Total effective sentence – 10 months imprisonment, released on recognisance release order after serving 3 months to be of good behaviour for a period of 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Sagnelli	Commonwealth Director of Prosecutions
For the Accused	Mr N. Brown	Paul Vale Criminal Law

HIS HONOUR:

1Phuong Tuan Nguyen, you have pleaded guilty to a charge of attempting to traffick a controlled drug, namely cannabis, in a traffickable quantity.  You have also pleaded guilty to a related summary offence which involved using a false identity to travel on a commercial flight. 

2Mr Sagnelli, who appeared on behalf of the Commonwealth Director tendered a summary of prosecution opening on the plea which set out the circumstances of your offending.  In essence that offending involved the following:

3Shortly before 5.40 am on 20 November 2018, you attended at the self-service check-in kiosk in domestic terminal 1 at Tullamarine Airport, Melbourne.  You then left a suitcase at the automatic bag-drop section of the terminal.  Shortly afterwards, Qantas baggage handling staff located an untagged suitcase on the oversized conveyor belt.  The suitcase was locked, and in an attempt to identify the owner, a baggage handler was able to open it, correctly guessing the combination of the lock.  The suitcase contained 19 vacuum sealed bags of green leaf material, containing approximately 0.5 of a kilogram each.  Later, testing of the green leaf material confirmed that it was cannabis with a total net weight of 8.998 grams, or virtually 9 kilograms.

4Subsequent investigations showed that you flew from Melbourne to Perth on flight QF775 at 7.20 am.  Using CCTV footage depicting the public area of the terminal, Australia Federal Police in Melbourne provided your description to AFP officers on duty at Perth airport.  After you landed in Perth you were identified and arrested.  You were found in possession of a boarding pass in the name of Michael David, which is the false identity under which you undertook this trip.  You were interviewed by police later that day, however, you made a no comment record of interview.  You were then remanded in custody until 30 November 2018.  On that day you were granted bail and allowed to return back to Melbourne, where new charges reflecting your offending were laid.

5These matters came on for committal mention in early March 2019, at which time you pleaded guilty to these charges and waived your right to committal.  The prosecution accepted that the entry of your plea of guilty in those circumstances was made at what was effectively the earliest opportunity.  I should indicate to you now that I will take your plea of guilty into account in substantially reducing the sentence that would otherwise have been imposed.  The value of the cannabis seized, if sold at a wholesale level, was in the order of $40,000 to $50,000.  If sold at street level, it could potentially realise a value in the order of just under $180,000.

Personal circumstances

6You were born on 11 June 1989 and are now 30 years of age.  You were 29 at the time of this offending.  You have one prior conviction alleged against you being a charge of driving whilst your motor vehicle licence was suspended.  That matter was dealt with at Sunshine Magistrates' Court on 8 May 2015 when you were convicted and placed on a Community Corrections Order for a period of two months and ordered to perform 20 hours of unpaid community work.  I should say that I do not regard that prior conviction as relevant for the purposes of formulating the sentence that must now be imposed.

7You were born in Vietnam and came to this country in 2013 to study a Master of Business.  You were previously married, but that marriage broke down and at the start of 2018, you formed a relationship with a new partner, Ms Hang Thu.  Unfortunately, you have not been able to complete your studies and I am told that your capacity to work is limited by the restrictions imposed on your visa.  You last worked at a chicken factory in the western suburbs some months before this offending.  You are currently on a bridging visa, pending the outcome of a spousal visa application. 

8Your de facto partner, Ms Thu is an Australian citizen and is sponsoring that application.  Ms Thu gave oral evidence on your plea.  Significantly, she gave birth to your first child, a daughter, on 6 December 2018.  She is now seven months or so old.  Ms Thu has recently opened a café in St Albans and is working long hours in order to establish that business.  You are the primary carer of your infant daughter and you receive some social security assistance.  As to your other family, you have a cousin who lives here in Melbourne but the remainder of your family live in Vietnam. 

9On the strength of the evidence given by Ms Thu, Mr Brown who appeared on your behalf, submitted that you and your partner were experiencing quite severe financial difficulties in the lead-up to the birth of your daughter.  He pointed to the fact that this offending occurred just a couple of weeks before your partner actually gave birth.  Your decision to commit this offence, he submitted, should be seen in that context.  The plea to attempting to traffick cannabis, was based on the fact that you had transported this cannabis, believing that another person intended to sell that controlled drug.  In other words, that you acted as a courier. 

10Mr Brown submitted that you have no drug or relevant criminal history and that there was no other evidence to suggest that this was anything other than an isolated offence, likely to have been motivated by the need to attain some relatively small amount of money to assist your family.

Submissions of Counsel

11It was submitted, having regard to your plea, your evident remorse, the fact that you have no relevant prior convictions, your compliance with your bail conditions since 30 November 2018, the fact that you are a first-time father with the primary responsibility for your child, and the fact that you have already served 11 days in custody, the imposition of a term of imprisonment which was effectively wholly suspended by placing you on a recognisance release order and ordering that you be released forthwith, would be an appropriate sentence.

12For the prosecution, Mr Sagnelli submitted the only appropriate sentence in the circumstances was a term of actual imprisonment but acknowledged that the sentence could allow for your conditional release on a recognisance release order after serving a portion of that sentence. In support of that submission, he referred to the various considerations set out in Part 1B of the Crimes Act 1914 (Cth), and, in particular, the need to emphasise general deterrence in respect of offending of this kind. He pointed to the separate but related offence of travelling using a false identity, the quantity and value of the cannabis and the fact that couriers form an important part of the drug distribution network, as some of the factors I should take into account in support of that submission.

13Indeed, he argued that where people such as you are prepared to act as couriers, significant sentences must be imposed otherwise general deterrence will not be served.  One case in particular was referred to as perhaps providing some comparative assistance, that being the decision of R v Bukvic [2010] SASC 195. I should say that I have concluded that decision does not really assist, in that, unlike you, the offender in that case had a very poor criminal history and had committed a subsequent drug offence.

14I was also referred to a number of District Court of New South Wales and County Court of Victoria decisions.  However, the circumstances of those cases were so different as to provide only minimal guidance.

Analysis

15Analysing these submissions as best I can, I accept that the matters put by Mr Brown significantly reduce the sentence that would have otherwise been imposed.  In particular, your early plea, your lack of relevant criminal history and your new family circumstances are matters which merit substantial weight.  I have also concluded that your prospects for rehabilitation in the light of your partner's impressive efforts, appear to be very good.  It was not suggested that the circumstances relating to your role in caring for your daughter, were so exceptional as to attract mitigation on the basis of third-party hardship.  However, I think it is relevant to consider that any term of actual imprisonment would weigh on you heavily, knowing the difficulties your family will face in your absence.

16Whilst the prospect of deportation was referred to on the plea, I find that there is an insufficient basis to draw any conclusion as to what might happen to your right to remain in this country, save that a sentence of 12 months or more would likely result in your deportation.  I do not think, nor did the Crown submit, that specific deterrence is a sentencing purpose that need be emphasised in your case, particularly because you have already served 11 days in custody.  On the other hand, the need here to deter others from engaging in this kind of conduct is a very important sentencing consideration.

17A good deal of discussion on the plea focused on the principle of parsimony as it is expressed in s 17A of the Crimes Act 1914 (Cth), to the effect that imprisonment is only to be imposed where a court is satisfied that no other penalty is appropriate in the circumstances of the case. In applying that principle, I am bound to take into account the Victoria Court of Appeal's decision in Atanackovic v The Queen 45 VR 179. There, it was determined that the guideline judgement in Boulton v R [2014] VSCA 342 had no application to Part 1B of the Crimes Act 1914 (Cth). The court there stated, and I quote:

'We have reached the same conclusion in relation to s.17A(1) of the Crimes Act 1914 (Cth). Although both this provision and the approach in the guideline judgment broadly reflect "a well-established and normally observed sentencing principle"— that imprisonment should be a last resort — s.17A(1) requires consideration of all other available sentences and all the circumstances of the case rather than focusing exclusively on a comparison between imprisonment and a community correction order. The inconsistencies between the guideline judgment and ss.16A and 17A(1) of the Crimes Act 1914 (Cth) to which we have referred apply with even greater force to s.5(4C) of the Sentencing Act. This is because that section, which has no counterpart in the Crimes Act 1914 (Cth) and which was strongly relied upon in Boulton, gives express pre-eminence to a community correction order over imprisonment in a way that ss 16A and 17A(1) do not'.

18In my view, it follows from the decision in Atanackovic, that the principles in Boulton which emphasise the utility of Community Corrections Orders in the Victorian sphere, have no application in this case.  It also follows that a Community Corrections Order given for Federal offending will not likely have quite the same punitive effect or cater to general deterrence in the same way as would be the case for a Community Corrections Order given for State offending.  Those considerations, having regard to the objective seriousness of your offending, lead me to the view that a Community Corrections Order is not an appropriate disposition in your case.

19As to the submission that you should be released immediately on what would effectively be a wholly suspended sentence, whilst I do accept that a wholly suspended sentence is likely to have some effect in deterring others, the fact is, a partly suspended sentence will have greater effect.  After careful consideration, I have come to the view that I must accept the Crown's submission that there must be a real emphasis on general deterrence and that that can only be achieved by at least some measure of actual imprisonment.

20In carrying out this offence, you made a calculated financial decision to traffick in this drug and no matter how dire the financial circumstances those that might be minded to make similar decisions should well understand that they will go to prison.  It follows that I am not satisfied that you should be released immediately, even taking into account the 11 days in prison you have already served.  That said, the matters put in mitigation on your behalf will significantly moderate the period of imprisonment imposed and the period that you will be required to remain in custody. 

Sentence

21As to the first charge of attempting to traffick a controlled substance, you will be convicted and sentenced to a term of imprisonment of nine months, and I will direct that that sentence is to commence on 1 September 2019.

22On the summary offence of using false information to take a constitutional flight, you will be convicted and sentenced to a term of imprisonment of two months.  It is my intention in sentencing you that one month of the sentence imposed on that summary offence be served cumulatively upon the sentence imposed in respect of Charge 1 on the indictment.  The term of imprisonment on this summary charge is to commence today, 2 August 2019.  That renders a total effective sentence of 10 months' imprisonment. 

23I will further direct that you be released after the service of three months' imprisonment, upon you entering into a recognisance in the sum of $1,000 and that you comply with the condition that for a period of six months you be of good behaviour.

24I will further declare that you have served 11 days' imprisonment by way of pre-sentence detention and I will cause that declaration to be noted in the records of the court.  I will further declare that but for your plea of guilty, I would have sentenced you to a term of imprisonment of two years and fixed a non-parole period of 15 months.

25I should explain to you, Mr Nguyen, that after the service of three months less 11 days, you will be released on the basis that you will today enter into a reconnaissance, that is to make a promise that you will be of good behaviour for six months.  If you breach that promise you can be brought back before me and ordered to pay $1,000 and you would be at risk of having to serve the balance of the term of imprisonment imposed, which would be seven months' imprisonment additional to the three months you must serve.

26Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for the offender's plea of guilty I would have sentenced him to a term of imprisonment of two years and would have conditioned his release on a reconnaissance release order for a period of 15 months.

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