DPP v Nguyen [2021] VCC 262

The total amount of cocaine located in the premises was 488.7 g mixed and 358 g pure.
The total amount of cash located was $120,770 in Australian currency. Of that total, $56,470 is money suspected of being the proceeds of crime.
You were interviewed by police with the assistance of a Vietnamese interpreter. You denied the offending and told the police that you did not know there were drugs at the premises. When asked about the drugs in your car, you answered, 'no comment'. You told police you were employed in the printing business.
You were remanded in custody.
You pleaded guilty at the third committal mention on 23 November 2020. This is an early plea which has spared the community the cost of a trial, and its utilitarian benefit is of heightened value in the present situation of extreme stress upon the administration of criminal justice in this State caused by the COVID-19 pandemic. I will discuss the issue of your remorse later in these reasons.
I turn now to your personal circumstances.
You were born on 6 February 1991 and you are presently 30 years old. You were born in Hanoi. Your parents separated when you were in your teens. After your parents' separation, you lived with your mother and your father moved away. You have had no contact with your father since this time.
Your mother is now in her seventies and is retired. She is aware of your situation and you have her continued support.
You came to Australia on a student visa when you were only 15 years old. You lived with your aunt in Braybrook and you attended Braybrook Secondary College, where you obtained your VCE. You moved out of your aunt's home when you were 17 years old to live with your brother, who had also come to Australia to study.
After completing your VCE, you undertook a variety of vocational courses in hairdressing, business, and IT, but you did not complete any of these courses.
You do not seem to have had any paid employment of any real note since arriving in Australia. You receive money from your mother regularly, and you gamble in an attempt to generate an income.
You also support yourself by your drug trafficking. You told Jeffrey Cummins, clinical and forensic psychologist, with whom you spoke on 2 February 2021 and who prepared a report which was tendered at your plea, that you sold cocaine to support your own cocaine and ice habit. You said, 'For several years I was just living the lifestyle of being a drug user and then spending time gambling at Crown Casino'.
You have both an entrenched drug and a gambling addiction. You have been using drugs since the age of 18, beginning with cannabis. At the time of your offending you were polysubstance dependent, using both cocaine and methamphetamine. You have gambled regularly since the age of 20, frequenting Crown Casino. Your drug use and your gambling have continued despite the protestations of your wife.
You married your wife in Melbourne in November 2019. You had been in a relationship for three years prior to your marriage. Your wife is also Vietnamese.
You have been in Australia on a variety of visas but you are not a permanent resident. You face the inevitable reality that you will be deported to Vietnam after the completion of a custodial sentence. This will weigh heavily upon you. You told Mr Cummins you do not know how you will cope returning to Vietnam. When you spoke with Mr Cummins, you were particularly distressed about the impact on your marriage. You told him that you loved your wife and did not want your marriage to end, but if your marriage is to endure, given the consequences that will flow from your offending, your wife will have to return to Vietnam with you. I was told at your plea that you have the continued support of your wife and she will return to Vietnam with you. A consequence of your offending is therefore that you have not only destroyed your own future in Australia, but that of your wife. I take this into account in sentencing you.
I also take into account the additional hardship that the prospect of deportation will cause you in custody. I also take into account the additional hardship of the restricted conditions in prisons necessitated by the COVID-19 pandemic.
You have been in custody since your arrest. You have used your time productively and you have undertaken study and courses to address your drug and gambling addictions.
You have the support of your family, including your wife, your brother, and your aunt with whom you lived when you arrived in Australia. You also have the support of the wider Vietnamese community, and a number of character references were tendered on your behalf. I do note however that a number of these references describe you as reliable and hardworking, which is at odds with what you told Mr Cummins about your lifestyle of drug taking and gambling.
I find your prospects of rehabilitation difficult to assess. You have made good efforts in custody, but you have a significant and entrenched drug and gambling addiction which in my view will require significant interventions if you are to rehabilitate.
Mr Cummins found it difficult to assess your insight into your offending, given that your presentation was guarded and that you only gave information in response to direct questioning. I am not persuaded that you have positive prospects of rehabilitation.
It is also difficult to assess whether you are remorseful. Your counsel relies upon your plea of guilty. You told Mr Cummins that you had 'learnt your lesson', but this statement is as close as you have come to any expression of remorse. I take into account that you are as Mr Cummins described you, a man of few words, but even so, I find no evidence that you have demonstrated full and insightful remorse.
I turn now to assess the objective gravity of your offending and your moral culpability.
The maximum penalty for the offence of trafficking a commercial quantity of a drug of dependence is 25 years' imprisonment. This reflects the seriousness with which Parliament regards the offence.
The statutory sentencing regime for all drug offences in Victoria is quantitative rather than qualitative; that is, it is based on the quantity of the drug trafficked rather than any subjective assessment of the harmful properties of the drug trafficked.
The total of the cocaine located at the premises was 488.7 g mixed and 358 g pure. The purity is 1.4 times the relevant threshold for a commercial quantity of cocaine. The quantity is therefore at the lower end of a commercial quantity, but it still represents a significant amount of cocaine.
While the quantity of the cocaine is an important consideration in assessing the gravity of your offending, there are other relevant considerations; in particular, an assessment of the role you played in the drug trafficking operation.
It was submitted on your behalf that you were a 'low-level functionary' who merely stored drugs at your house for others to sell. I reject that submission. There are multiple pieces of evidence which in my view indicate precisely the opposite.
First, your DNA links you to multiple items of drug production and trafficking in the house. Secondly, you told Mr Cummins that you were selling drugs. Thirdly, there was cocaine packaged in resealable deal bags and over $1000 in cash found in your car - in my view, clear and indisputable evidence that your trafficking activities involved selling. Finally, the large amount of unaccounted-for cash found at the premises and the subject of the summary charge - I am satisfied this is related to your drug trafficking. I am satisfied that the evidence demonstrates that this was your own drug dealing enterprise, or you were at the least a largely autonomous operator within a larger syndicate. I am also satisfied that your drug trafficking generated profits beyond the money you needed to support your own drug taking.
Your drug and gambling addictions may to some extent explain your offending, but your addictions do not reduce your moral culpability, which in my view is high.
I turn now to the sentencing submissions of the parties. The prosecution submitted that, given the gravity of your offending and general deterrence being the dominant sentencing purpose in this case, as in all cases of drug trafficking, a sentence of imprisonment consisting of a head sentence and a non-parole period was the only sentence available to me.
The prosecution accepted that the sentence on charge 2 could be wholly concurrent with the sentence on charge 1, given the charges are based on the same facts and circumstances.
Defence accepted that a sentence of imprisonment was required, but submitted that a straight sentence of time served could give effect to all of the various sentencing considerations.
I now turn to the relevant sentencing principles. In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are: just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
General deterrence - that is, the need to deter others from behaving as you did - just punishment, denunciation and community protection are all important sentencing principles in cases of drug trafficking. Drug trafficking is harmful to the health and wellbeing of the community. Those who seek to profit from the sale and production of drugs without regard for the harm they cause must expect stern punishment.
I also consider that the principle of specific deterrence is engaged, given your offending cannot be characterised as a single one-off incident, but that you operated a drug trafficking business of some standing.
Weighing all the various sentencing considerations as best I can, I intend to sentence you as follows.
You are convicted on all charges.
On charge 1, traffick in a commercial quantity, you are sentenced to a term of imprisonment of three years and six months.
On charge 2, you are sentenced to a term of imprisonment of 18 months.
On charge 3, as I stated, you are convicted and discharged.
On the summary charge, you are convicted and sentenced to a term of imprisonment of six months.
I order that three months of the sentence on the summary charge be served cumulatively to the sentence on charge 1.
This makes a total effective sentence of three years and nine months. I am directing that you must serve a period of two years and three months before you are eligible for parole.
Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served 431 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.
Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I direct that had you not pleaded guilty, I would have sentenced you to a sentence of six years with a non-parole period of four years.
I make the forfeiture and disposal orders sought by the prosecution. These orders were unopposed.

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