R v Nguyen [2008] VSCA 141

2 I have had the advantage of reading in draft the reasons for judgment of Mandie, AJA, and I agree with his Honour's reasons and in the disposition of the appeal which he proposes.

3 The appellant pleaded guilty to a charge of, between 10 January 2004 and 27 September 2004, trafficking in a quantity of a drug of dependence (heroin) that was not less than the large commercial quantity applicable to that drug, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981, and was convicted on that charge, and sentenced in the County Court at Melbourne on 31 May 2007 to a term of seven years imprisonment and the court directed that he serve a period of four years and six months imprisonment before becoming eligible for parole. The maximum penalty was life imprisonment and a penalty of not more than 5000 penalty units.

4 On 29 February 2008 the appellant was granted leave to appeal against sentence. Ground 1 is that the learned sentencing judge erred in sentencing the appellant as a serious drug offender (pursuant to Part 2A of the Sentencing Act 1991). The Crown accepts that the appellant was so sentenced and that this constituted sentencing error sufficient to re-open the sentencing discretion in this case. It is therefore unnecessary to consider the only other live ground of appeal (that 'the learned sentencing judge erred in employing a "two-tier" process of reasoning'). The other ground of appeal, that the sentence was manifestly excessive, was abandoned. Accordingly, the appellant must be re-sentenced.

5 Tan Van Pham (Pham) was the principal of a syndicate involved in the distribution and sale of large commercial quantities of illicit drugs (including heroin) in Victoria, Queensland and South Australia. The syndicate utilised three vacant premises in Melbourne to store drugs delivered to them by certain other drug syndicates. The appellant was a distributor for Pham's syndicate. He received a number of deliveries of heroin that amounted to a large commercial quantity thereof.[1]

6 On 29 September 2004, police executed a search warrant at the appellant's home address in Nunawading. The appellant was present. During the search they located a number of plastic bags in the bedroom that were found to contain a total of 406 grams of heroin and a quantity of cutting agent known as Manitol. A set of electronic scales was also located in the lounge room. A commercial heroin press, set up and ready for use, was also found. The police found, in a washing basket in the laundry, $81,200 in cash and $20,000 in Crown Casino chips. They found a further $6,000 in cash in a kitchen cupboard. They found a mobile telephone and number of SIM cards - the phone was one of those used by the appellant to contact Pham's syndicate on various numbers that had been intercepted by the police and that provided a good deal of the evidence upon which they subsequently relied.

7 After the search was completed, the appellant was taken to offices of the Australian Crime Commission where a taped record of interview was conducted. The appellant said that some of the powder found at his premises was heroin and that it belonged to him. He provided innocent explanations for the presence of the cash and casino chips. He said that he had never trafficked in heroin and that the heroin found at his premises had been purchased for $20,000 and that it was for his personal use.

8 The appellant was charged on 29 September 2004 and was not released on bail until 20 December 2005. On 6 February 2006 the matter proceeded at a contested committal hearing, by way of a hand-up brief, at the Magistrates' Court at Melbourne. On 8 February 2006, the appellant was committed to stand trial and he reserved his plea. There were a number of case conference hearings during 2006 and in the first half of 2007. On 30 April 2007 the matter was adjourned for a plea hearing that was ultimately heard on 25 May 2007.

9 At the hearing of his plea in the County Court on 25 May 2007, the appellant's counsel said that the appellant was 'perhaps off to one side in relation to ... the more vast quantities of drugs that were being moved around ..' He said that the appellant was 'a distributor of drugs at a different level, if you like, as those being involved in this particular syndicate.' Counsel referred to the 350 grams provided to him for $95,000 and the 403 (sic) grams. The appellant's counsel said that it was suggested that his client, inferentially or circumstantially, could be said to be involved in more than a large commercial quantity of heroin himself and he pleaded guilty to the charge on that basis. He said that the appellant had abandoned his rights to make any argument in respect to the admissibility of those aspects of the evidence that he might have been able to challenge and by his plea had accepted responsibility for the offence as it had been put by the Crown and there was the significant advantage of avoiding a long trial.

10 The appellant's counsel, in the County Court, further said that there was no evidence of enrichment on his part - of any properties or motor vehicles obtained by him and that the Crown accepted that he was a user and a person addicted to heroin and that his motivation for involvement in the offence and the only benefit that he received was drugs for his own use.

11 The sentencing judge was provided with a psychological assessment of the appellant by a forensic psychologist, Ian A Joblin dated 14 May 2007 and a medical report relating to the appellant by Dr Paul Hancock dated 31 May 2007. Copies of these reports were made available to this Court and I have taken their contents into account.

12 The appellant's counsel told the sentencing judge that, on his instructions, the appellant had not resumed his heroin addiction. He said that the appellant was then aged 38 years, but he came from a disadvantaged and impoverished background stemming back to his family's departure from Vietnam. He had lost contact with his father. He had escaped from Vietnam by boat and spent some five years in various places before arriving in Australia in 1988 at the age of 20. When he arrived in Australia he worked at an air-conditioning factory until 1994. Thereafter he found it difficult to find and maintain other employment. He had married in 1992 but during the period that he was unemployed he had developed, through associates, involvement in heroin abuse and the addiction that ultimately led to his present circumstances.

13 The appellant's counsel mentioned to the sentencing judge the appellant's prior convictions, in February 2000, for theft, stating a false address and carrying a regulated weapon (for which he was sentenced to be released on a Community Based Order for a period of six months) and, in July 2000, for trafficking in a drug of dependence, and possession and using of such drug and possession of money being the proceeds of crime (for which he was sentenced to a term of imprisonment for three months, wholly suspended for a period of 12 months). The appellant's counsel said that these offences also stemmed from his heroin addiction.

14 The appellant's counsel told the sentencing judge that the appellant had two daughters, aged eight and five who were currently living with him (his wife having departed the scene some time ago) and the plan was that those children would be cared for by the children's mother's sister.

15 The sentencing judge said that the appellant was one of the Pham syndicate's significant distributors and that he had received a number of deliveries of drugs that amounted to a large commercial quantity of heroin. He noted what had been found at the appellant's residence when the search warrant was executed.

Van Tu Nguyen, would you stand please. You are 38 years of age, having been born on 14 October 1968 and have admitted nine prior offences dealt with in the Magistrates' Court at Ringwood in February, July and September 2000. Significantly, you were convicted of trafficking, possession and use of heroin and possession of $2,000 being the proceeds of crime and sentenced to three months imprisonment wholly suspended for 12 months in July 2000.

You pleaded guilty to the offences of trafficking, possession and use of heroin at that time. Mr Saunders, on behalf of the Crown, did not challenge the assessment of these crimes as an example of low level drug offending in contrast with the much more serious prior drug offence of the prisoner, Ho.

I take into account in mitigation the matters put forward by Mr A. Waters on your behalf. You have pleaded guilty to the offence of trafficking in a large commercial quantity of heroin at the first reasonable opportunity. You did not conduct a contested committal but were committed for trial by way of hand-up brief. There was no evidence found of enrichment on your part as a result of this offending.

It is not disputed that at all relevant times you were a heavy user of heroin and addicted to that substance to the extent of taking one or two grams a day and the only benefits you received from your offending was a supply of drugs for your own use.

You have spent 15 months in custody during which time you have successfully overcome your addiction to heroin and have not been using this drug since your release in December 2006, nor have you breached the originally very strict conditions of your bail, nor has there been any further offending while you have been at liberty.

In January this year you spent one month in Box Hill Hospital with a heart valve infection being treated with intravenous antibiotics. According to the report of Dr Paul Hancock, of 20 May 2007, you also suffer from chronic asthma and chronic hepatitis B and C.

You come from a disadvantaged and impoverished background. At the conclusion of the Vietnam War, your late father's business and property were removed from him by the Communist regime because he had provided assistance to the United States forces. You escaped from Vietnam in 1983 and after a perilous journey by boat arrived in Hong Kong via China, where you spent five years in a refugee camp before being sponsored to migrate to Australia by one of your sisters who had settled here.

You arrived in this country in [1988] at the age of 20 and did hard factory work until 1994 when that job ended. After intermittent employment in a variety of menial positions you obtained a hairdressing salon with your wife and were working in this capacity at the time you were arrested in respect of this matter. You were married in 1992 and have two daughters now aged eight and five years respectively. Your marriage broke down while you were in custody and whilst on bail you had the care of your two children who have now gone to live with your wife's sister.

During the period when you were released on bail you spent nine months in work delivering computers until September 2006. Apart from your plea of guilty you have displayed signs of remorse and rehabilitation in both freeing yourself from your heroin addiction while in custody and not committing any further offences since your release, nor have you attended the Casino.

Your sister attended court at the time of the plea and is supportive of you. There was virtually no dispute between counsel that your role could be ranked approximately at an equal level with the roles of Tran and Bui in these offences, although you were packaging and distributing heroin rather than dealing in bulk quantities.

Principles of protection of the community, general and special deterrence, denunciation and a just punishment would warrant a sentence of nine years imprisonment for this level of offending but because of the stated factors of mitigation, in particular your early plea of guilty, you are hereby sentenced upon Count 1 to seven years' imprisonment. I fix a non parole period of four years and six months. Pursuant to s.18(4) of the Sentencing Act, I declare 446 days to be the period to be reckoned as already served under this sentence and direct that this declaration and its contents be noted in the records of the court. You may be seated.

I indicated in respect of each of you that you have been sentenced as a serious drug offender which means that the court must regard the protection of the community from you as the [principal] purpose for which these sentences have been imposed but it has not been contended on behalf of the Crown, nor do I find in any instance that to achieve such purpose it has been necessary to impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. (Emphasis added)

17 It was submitted that the appellant should be re-sentenced to a lesser sentence having regard to the following matters:

• He had obtained no enrichment from the offending - he was a heroin addict and the only benefit that he received was a supply of drugs for his own use.
• His personal circumstances including his disadvantaged and impoverished background.
• He pleaded guilty at an early stage.
• Community protection ought to be given less weight in relation to the appellant.
• He had exhibited remorse and taken steps towards rehabilitation.

18 Mr Carter, who appeared as counsel for the appellant, emphasised the importance of the facts that (as was common ground before the sentencing judge) the appellant had pleaded guilty at the earliest opportunity and that his offending had been to serve his addiction and not for the purposes of enrichment. Mr Carter also laid emphasis upon the public interest in the rehabilitation of the appellant.

19 The Crown submitted that this was a very serious offence, as demonstrated by the maximum penalty of life imprisonment. The Crown acknowledged that the appellant relied on a number of matters in mitigation. The appellant had pleaded guilty, albeit in the face of a strong prosecution case, and had demonstrated remorse. He had come from a difficult background and suffered from a number of medical conditions. He had demonstrated that he was now motivated to overcome his addiction by his recent abstinence and rehabilitative efforts whilst on bail.

20 The Crown submitted that the appellant had played an integral role in what he knew to be a large scale trafficking enterprise. Reference was made to the considerable quantity of drugs and cash found at the appellant's premises and to the equipment that was also found which indicated a regular activity of packaging and distribution. The sentencing principles of general deterrence, denunciation, protection of the community and just punishment had to play a prominent role in sentencing the appellant. In light of the gravity of the offence and the appellant's prior criminal history, specific deterrence was also relevant.

21 The Crown submitted that, in all the circumstances, the sentence imposed by the sentencing judge was within range notwithstanding that the appellant was not to be treated as a serious drug offender. The fact the Court was now required to give less weight to the protection of the community than did the sentencing judge did not mean that a lesser sentence should now be imposed. However, the Crown acknowledged the various factors indicating that the appellant had a degree of moral culpability less than that which was or would be attributable to an offender profiteering from large commercial quantities of a drug.

22 In my opinion, the Crown submissions are broadly correct. The sentence imposed by the learned sentencing judge was within range notwithstanding that the appellant was incorrectly sentenced as a serious drug offender. In that regard I note that his Honour said that he did not find it necessary, in order to achieve the principal purpose of protecting the community, to impose a sentence longer than that which was appropriate to the gravity of the offence considered in the light of its objective circumstances.

23 Nevertheless, taking into account all of the matters raised both by the appellant and by the Crown, I think that, in all the circumstances, a somewhat lesser sentence is appropriate. The appeal should be allowed, the sentence below set aside and, in my view, it is appropriate that the appellant be re-sentenced to a term of six and a half years' imprisonment with a non-parole period of four years.

[1] For example, on 27 August 2004, Tran (a member of Pham's syndicate) arranged for Orfanos (another member of Pham's syndicate) to deliver a 350 gram block of heroin to the appellant and to collect $95,000 from him as payment.