R v Nguyen, Nguyen & Pham [2007] VSCA 165

Court of Appeal (Vic)|2007-08-23|Before: BUCHANAN, ASHLEY and NEAVE JJA

Criminal Law - Sentencing - Trafficking in a drug of dependence (heroin) in a commercial quantity or a large commercial quantity - Sentences of between seven and nine years' imprisonment - Whether sentences manifestly excessive when regard had to mitigating factors including nature of dealing, youth, addiction, admissions and early guilty pleas - Whether a specific error with respect to forfeiture of vehicle - Parity - Appeal allowed - Appellants re-sentenced to periods of imprisonment ranging from five years to six years two months.

**3 The applicants, together with Yen Van Nguyen, sold heroin to users in Richmond and the northern suburbs of Melbourne in 2004 and early 2005. After a police operation involving under-cover agents, surveillance and telephone intercepts, they were charged with various offences.

4 Xuan Pham and Tam Van Nguyen pleaded guilty to trafficking in a drug of dependence (heroin) of not less than a large commercial quantity. Tam Van Nguyen also pleaded guilty to handling stolen goods. Trung Van Nguyen pleaded guilty to trafficking in a drug of dependence (heroin) of not less than a commercial quantity. On 27 June 2006, the applicants were sentenced to terms of imprisonment ranging from seven to nine years.[1] Each applicant now seeks leave to appeal against the sentence imposed on him.

5 The youngest of the Nguyen brothers, Yen Van Nguyen, aged 20 at the time of the offence, also pleaded guilty to trafficking in a commercial quantity of a drug of dependence (heroin). He was sentenced to a term of five years' imprisonment.[2] He does not seek leave to appeal against that sentence.

6 The circumstances in which these offences were committed and the sentences imposed on each applicant are set out below.[3]

7 The three Nguyen brothers became addicted to heroin in their early teens. Xuan Pham later became addicted to heroin and the four began using heroin together. As their use of heroin increased, the four of them began selling heroin, which they bought from an unknown supplier, to support their addiction and, in the case of the Nguyen brothers, to provide an income for themselves.[4] The group usually purchased 14 grams of heroin a day and prepared seven grams for resale, reserving the remainder for their own use. Initially heroin was offered to street users and Tam Van Nguyen's phone number was distributed to potential buyers. By working together the four men built up a clientele and eventually sold heroin to approximately 60 users.

8 Orders for heroin were taken and meetings with buyers were arranged by mobile phone using aliases. The majority of the calls were taken by the Nguyen brothers, although any one of the four men could respond to a customer's call, regardless of which alias was requested. When an order was taken, heroin was cut from a larger block and weighed and packaged into smaller amounts. Packages usually weighed one gram or a half a gram, but were occasionally up to seven grams in weight. Packages cost anywhere from $50 to $2000, depending on the weight.

9 The Nguyen brothers generally sold heroin to users in the northern suburbs in the morning and early afternoon. In the afternoon they would drive to Richmond to meet Xuan Pham. Thereafter the four men would sell heroin in Richmond and inner Melbourne. On days when Yen and Trung Van Nguyen worked at a mushroom farm, Tam would sell heroin by himself in the northern suburbs before meeting up with Xuam Pham and his brothers later on.

10 The group occasionally sold to users who approached them on the street. They also recruited other drug users including Oswald Shaw, David Lu and Quang Pham to assist them to sell the heroin.[5]

11 In late 2004 a police operation was set up to target the group. Between 15 November 2004 and 10 February 2005, police used undercover agents to make nine separate purchases of heroin from the group, totalling 20.5 grams. Not all of the applicants were present at all of the purchases. In addition to police purchases, approximately 9000 telephone calls were intercepted in a six week period between 6 January 2005 and 15 February 2005, surveillance was conducted and police observed the applicants selling drugs. The police also obtained statements from customers indicating the amounts of heroin they had purchased from the applicants.

12 When they were interviewed by the police Xuan Pham and Tam Van Nguyen admitted to trafficking in drugs but Trung Van Nguyen gave a no comment interview.

13 During his police interview Xuan Pham admitted that he had began trafficking in early 2004 (before the police investigation commenced) and made admissions about the amounts of heroin which he had traded. On the basis of his admissions it was calculated that he had sold approximately 2010 grams over a 10 month period. He was charged with trafficking in a large commercial quantity between 1 January 2004 and 15 February 2005 and pleaded guilty to that offence. He was sentenced to seven years' imprisonment with a non-parole period of four years six months.

14 Tam Van Nguyen admitted to selling heroin for eight months to a year. For about three months before August 2004 he said he worked alone, as his brothers were in jail. It was calculated that he had sold approximately 1368 grams. He was charged with trafficking in a large commercial quantity between 4 May 2004 and 15 February 2005 and pleaded guilty to that offence. The judge below accepted that the amount trafficked was at the lower end of the range for a large commercial quantity. He also pleaded guilty to handling stolen goods. He was sentenced by the judge below to a total effective sentence of nine years' imprisonment with a non-parole period of six and a half years.

15 As I have said, Trung Van Nguyen made no admissions to the police. Be that as it may, 626 grams of heroin were sold during the six weeks of telephone interception and a number of users gave statements to the police regarding the amount they had purchased from Trung. As the exact amount was difficult to calculate, it was agreed by the parties that more than 626 grams but less than a large commercial quantity (1000 grams) had been sold by him during the relevant period. Trung Van Nguyen pleaded guilty to trafficking in a commercial quantity of heroin between 4 August 2004 and 15 February 2005 and was sentenced to eight years' imprisonment with a non-parole period of five years.**

**16 The applicants' grounds of appeal were broadly similar. Xuan Pham asserted that the sentence was manifestly excessive having regard to specified mitigating factors. Trung Van Nguyen and Tam Van Nguyen appealed on the ground of manifest excess but also alleged specific errors, namely the failure to give sufficient weight to specified mitigating factors.

17 All the applicants relied on the following mitigating factors in support of their applications:**

youth;
their early plea of guilty;
the fact that they trafficked in heroin to feed their own addiction; and
their prospects of rehabilitation.

18 There was an additional ground of appeal which applied to Xuan Pham only. I deal with this ground below.

**19 Mr Pham was sentenced to seven years' imprisonment, with a non-parole period of four and half years. In para 24 below I conclude that his Honour made a specific sentencing error in sentencing Mr Pham. I should say at the outset, that even if this had not been the case, I would have been inclined to find that his sentence was manifestly excessive. His Honour mentioned the applicant's youth, drug addiction, lack of prior convictions for drug offences, good prospects of rehabilitation and the fact that his conviction for trafficking in a large commercial quantity was based largely on his admissions. But in my view, the sentence of seven years' imprisonment imposed on the applicant did not adequately reflect these factors and therefore suggests that his Honour must have erred in the exercise of his discretion. It is, however, unnecessary to determine this issue, because his Honour made a specific sentencing error.

20 The specific sentencing error related to the treatment of a car owned by Mr Pham, a 1995 Nissan Skyline valued at $15,000, which was confiscated as the result of his trafficking conviction. In his police interview Mr Pham admitted to using it in the course of his trafficking about 10 times.

21 In sentencing Yen Van Nguyen (who was not an applicant in these proceedings) his Honour said that his counsel "had accepted the confiscation of [his] vehicle valued at $15,000" and had submitted that this should be taken into account in sentencing Yen Van Nguyen. After the four offenders were sentenced the following exchange occurred between his Honour and counsel for the DPP:**

"MR GIBSON: I think Your Honour actually in the sentencing remarks concerning Yen Nguyen mentioned the car, whereas if Your Honour has taken it into account in sentencing Xuan Pham, that is taken into account the conceded forfeiture of the car, then perhaps your Honour should just mention that fact and say that 'if this is the case in sentencing Xuan Pham you have taken into account his agreed forfeiture of the motor car.'

HIS HONOUR: Yes, I will make that comment. I have taken into account the forfeiture of the motor car in respect to Xuan Pham in setting the appropriate sentence.

MR GIBSON: Thank you, Your Honour. I'm not sure if Your Honour did or didn't take it into account in terms of Yen Nguyen. Clearly it shouldn't be taken into account in his case because he had nothing to do with the car, that is Yen Nguyen had nothing to do with the Nissan motor car.

HIS HONOUR: Yes, that won't affect the sentence that I have imposed on him."

**22 Subject to the limitations imposed by Sentencing Act 1991 s 5(2A), an order confiscating property is relevant to the exercise of the sentencing discretion, because it is part of the punishment imposed for the crime.[6] However, the weight to be given to a confiscation order will depend on the circumstances of the case.[7]

23 The learned judge said that he had taken account of the confiscation of the car in sentencing Xuan Pham, but he said this when he had already determined how Xuan Pham was to be sentenced. Counsel for the Crown submitted that this was a mere slip and that his Honour must have taken the confiscation into account. He further submitted that the s 5(2A) simply conferred a discretion on the judge to take account of the confiscation and did not require that it be considered in the exercise of the sentencing discretion.

24 Although s 5(2A) confers a discretion to take account of the confiscation, in this case his Honour clearly erred. His Honour did not explain why the sentence imposed on Mr Pham remained the same, even after having regard to the confiscation of his car. Nor did he say that he considered the confiscation of Mr Pham's car to be irrelevant in sentencing him. The car had been given to Mr Pham by his mother prior to his involvement in these offences and it was his only significant asset. In these circumstances, its confiscation was an important element in his punishment and was not irrelevant to the sentence imposed on him. In my view this amounts to a specific sentencing error, so that Mr Pham must be re-sentenced.

25 In re-sentencing Mr Pham, a number of matters must be taken into account. The maximum penalty for the offence of trafficking in a drug of dependence of a large commercial quantity is life imprisonment. This penalty reflects the very serious harm caused by large scale drug trafficking. The sentence imposed must therefore give weight to denunciation and general and specific deterrence.

26 On the other hand, this crime was at the lower end of the range for this offence. The applicant, like his co-accused, was essentially an addicted street dealer who dealt in relatively small amounts of heroin. He was charged with trafficking in a large commercial quantity because of the extended period covered by the presentment. Without detracting from the seriousness of the offence, none of the authorities relied on by the Crown to support the length of the sentences imposed on the applicants were directly comparable with Mr Pham's circumstances.[8]

27 Further, Mr Pham was aged between 19 and 20 at the time of his offending. Because he was a youthful offender, rehabilitation is an important consideration in his sentencing. In R v Mills[9] Batt J accepted the following principles relating to the sentencing of youthful offenders:**

"(i) Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

(ii) In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)

(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s. 5(4) of the Sentencing Act.)"[10]

**28 There was evidence that Xuan Pham is "beginning to appreciate the effect of his past criminality" and Ms Hooker, the Youth Development Officer from Port Phillip Prison, reported that Mr Pham is "making a genuine effort to reform".[11] The judge below commented that Mr Pham had impressed those providing reports with "the sincerity of his desire to reform."

29 There are a number of other factors suggesting that Xuan Pham's rehabilitation should be regarded as a primary consideration in his sentencing. As I have said, he has no prior drug convictions. He has four findings of guilt from two appearances in the Children's Court, but none of these were for serious offences. Mr Pham became addicted to heroin 13 to 14 months before he became involved in trafficking. He told Mr Jeffrey Cummins, whose psychological assessment was considered by the judge below, that he began using drugs when his mother was diagnosed with breast cancer.

30 The fact that Xuan Pham has only ever smoked heroin and has not used it intravenously, that he did not use drugs while on remand, that he has been addicted for a shorter period than his co-offenders and that he is supported by his family indicate that his prospects of rehabilitation are good. Whilst on remand he completed a number of education programs and was selected as a prisoner mentor. Mr Pham told Mr Cummins that he enjoyed his involvement in this program so much that he was considering doing a course in welfare studies or social work. Mr Cummins reported that Mr Pham "presents as being very motivated to improve his situation in life."

31 In sentencing Xuan we must also consider his moral culpability and criminality. His involvement in the scheme was more limited than that of the members of the group.[12] In addition, as in the case of his co-offenders, his offending was motivated by the need to acquire drugs to feed his addiction. In R v Bouchard,[13] Callaway JA said:**

"It may be conceded that it is a relevant and sometimes very significant factor in sentencing that an offender engaged in trafficking, especially at "street level", in order to gain the wherewithal to satisfy his own craving, rather than as a non-user acting purely for reasons of greed and in callous disregard of the grave harm that offence does to its victims."[14]

**32 The judge below accepted that the only reward he received from trafficking was to obtain a supply of heroin to feed his habit. In these circumstances, his addiction is a significant factor in the re-exercise of the sentencing discretion.

33 The sentence imposed on Xuan Pham must also be discounted to take account of his admissions, which resulted in him being charged with trafficking in a large commercial quantity of drugs, rather than with trafficking in a commercial quantity. It is significant that Trung Van Nguyen, who did not make similar admissions, was charged with the offence of trafficking in a commercial quantity, which attracts the lower maximum sentence of 25 years. For that reason I reject the submission made by counsel for the Crown that Xuan Pham could have been charged with trafficking in a large commercial quantity of heroin on the basis of other evidence collected by the police. The principle that:**

"...a considerable element of leniency should be extended to those who voluntarily come forward and voluntarily disclose their guilt in order to encourage guilty persons who come forward and disclose their offences"[15]

**34 Xuan Pham is also entitled to a discount for pleading guilty and saving the public the expense of a jury trial. Although s 5(2A) of the Sentencing Act 1991 provides that the court "may" have regard to a forfeiture, in my view it is appropriate to do so in the circumstances of this case. As I set out above, the car which was given to Mr Pham by his mother was his only significant asset. Its forfeiture is likely to deter him from committing further drug offences and may also contribute to general deterrence.

35 Finally we must take account of the applicant's personal circumstances. Xuan Pham's parents were Vietnamese refugees who were relocated from Hong Kong to Belgium. His father was a violent alcoholic. When the applicant was 10 years old his mother and siblings escaped their father by coming to Australia. The psychological assessment Mr Jeffrey Cummins provided to the judge below suggests that Mr Pham has an adjustment disorder as a consequence of his traumatic and violent past.

36 In my opinion Mr Pham should be re-sentenced to a period of imprisonment of five years, with a non-parole period of three years.

37 Mr Tam Van Nguyen was sentenced to nine years' imprisonment, with a non-parole period of six and a half years. Tam Van Nguyen's grounds of appeal alleged that his Honour erred by giving insufficient weight to the factors mentioned in para 17 above. They also alleged that his Honour failed to accord sufficient weight to his admissions and gave too much weight to deterrence. Finally, it was argued that the sentence of nine years imposed on him was disproportionately high compared with the other offenders, particularly the sentence of seven years imposed on Xuan Pham.

38 In R v Sibic & Sibic[16] it was held that where the Court found it necessary to reopen a sentencing discretion in relation to one offender, the Court must also reconsider the sentence imposed on other offenders, for reasons of parity.[17] Because the re-sentencing of Mr Pham requires us to consider the exercise of our re-sentencing discretion in the case of Tam Van Nguyen and Trung Van Nguyen, it is unnecessary to examine their grounds of appeal, other than the matters relevant to the exercise of this discretion.

39 In re-sentencing, Tam Van Nguyen, like Mr Pham, must be accorded some leniency because of his admissions to police, which resulted in him being charged with trafficking in a large commercial quantity of heroin. As in the case of Mr Pham, his guilty plea is indicative of remorse and requires an sentencing discount.

40 Tam Van Nguyen was aged between 21 and 22 at the time of his offending. As in the case of the other offenders, his trafficking was primarily motivated by addiction, rather than commercial gain. Unfortunately he began using heroin when he was only 14, so that his addiction is entrenched. His parents sent him to Vietnam to help him overcome his addiction, but this was not successful.

41 Mr Tam Van Nguyen has participated in a number of educational programs while he has been in Port Phillip Prison and seems genuine in his wish to rehabilitate himself. Ms Pamela Matthews, a forensic psychologist who provided an assessment of this applicant said that:**

"...this young man currently presents as highly motivated to change and has realistic plans for the future, but perhaps lacks the rehabilitative support systems to do so. Merely spending a year in Vietnam did not work in the past."

**42 Although some weight must be given to Mr Tam Van Nguyen's youth, in my opinion his greater role in the drug selling enterprise and his prior criminal history requires greater emphasis to be placed on general and specific deterrence than in the case of Xuan Pham. In the previous seven years, Mr Tam Van Nguyen has been convicted or found guilty of drug-related offences on 15 prior occasions, including six counts of trafficking in a drug of dependence.[18]

"The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important."[19]

**44 Having regard to the principle of parity I would re-sentence Tam Van Nguyen to 6 years' imprisonment on the count of trafficking in a large commercial quantity of heroin. The count of dishonestly handling stolen goods relates to a number of mobile phones which were discovered when his house was searched. I would sentence him to 6 months' imprisonment on that count, 2 months of which should be served cumulatively on the sentence imposed on the other count. The total effective sentence is therefore six years and two months. I would impose a non-parole period of four years.

45 Mr Trung Van Nguyen was sentenced to eight years' imprisonment with a non-parole period of five years. Trung Van Nguyen's grounds of appeal alleged manifest excess, that the judge below failed to give sufficient weight to similar factors to those applicable to Tam Van Nguyen and that his Honour had failed to apply the principle of parity between offenders, particularly with respect to the original sentences imposed on Yen Van Nguyen and Xuan Pham. For the reasons set out in para 38 it is not necessary to discuss these grounds. Instead I discuss the factors relevant to the exercise of the re-sentencing discretion, having regard to the principle of parity applicable because of the re-sentencing of Xuan Pham and Tam Van Nguyen. I must also take account of the fact that the applicant spent 154 days in detention which cannot be taken into account as pre-sentence detention under Sentencing Act 1991 [20]s 18.20

46 Trung Van Nguyen was older than the other two Nguyen brothers, being aged 24 and 25 at the time of his offending. In total, he had 13 prior convictions or findings of guilt for drug related offences, including five for trafficking in a drug of dependence and one of attempting to do so.[21] He began the trafficking covered by this offence only 15 days after receiving a totally suspended sentence for two earlier trafficking offences. Because he is older than the other offenders and has a significant history of drug offending I would give lesser weight to his rehabilitation and place more emphasis on general and special deterrence. However, the fact that his offending was motivated by his drug addiction, which began when he was 15, means that he is less morally culpable than an offender involved in trafficking solely to make a profit.

47 Although Trung Van Nguyen was convicted of an offence attracting a lower maximum term of imprisonment than Tam Van Nguyen, both were involved in the same enterprise and their level of moral culpability was in other respects similar. The count to which Trung Van Nguyen pleaded guilty covered offences committed over a shorter period than in the case of Tam Van Nguyen. He was in prison during part of that period and the difference in the amounts traded by these two applicants was not great. In his reasons the sentencing judge said that:**

"...[the] commercial quantity of heroin can be categorised for the purpose of sentencing as mid to upper level of commercial trafficking. I am informed that it is accepted on your behalf that the amount trafficked was more than the 626 grams sold during the six week telephone intercept period, but is something less than the thousand gram figure which would be the quantity for a large commercial quantity of heroin."

**48 Unlike Xuan Pham and Tam Van Nguyen, Trung Van Nguyen is not entitled to the "considerable amount of leniency" accorded to an offender who makes admissions, which assist their prosecution. He is, however, entitled to some discount for his guilty plea.

49 Counsel for Trung Van Nguyen submitted that he had been placed in the Youth Unit at Port Phillip Prison because of his positive influence on his younger brothers. His Honour commented that Trung Van Nguyen had exhibited concern for his brothers and stated:**

"You were apparently disqualified from being a mentor because of a third party's attempt to provide you with heroin while you were in custody. I accept that you had no involvement in that , so I do not take that into account."

During his time in jail Trung Van Nguyen completed an Odyssey House Rehabilitation Program.

**50 In applying the principle of parity between Trung Van Nguyen and his co-offenders I must take account of the re-sentencing of Tam Van Nguyen to six years and two months imprisonment with a non-parole period of four years and the re-sentencing of Xuan Pham to five years' imprisonment with a non-parole period of three years, having regard to the fact that both these offenders were convicted of a more serious offence than Trung Van Nguyen. I must also take account of the sentence of five years' imprisonment with a non-parole period of three years that his Honour imposed on Yen Van Nguyen. It is relevant to note that Yen Van Nguyen is younger, made voluntary admissions to the police and that he had fewer drug convictions than Trung Van Nguyen, though he and Trung were both convicted of the offence of trafficking in a commercial quantity over the same period.

51 I would re-sentence Mr Trung Van Nguyen to five years and eight months imprisonment, with a non-parole period of three years and seven months. In doing so I have had regard to the fact that Trung Van Nguyen has served 154 days as a sentenced prisoner for other drug related offences and to the need to have regard to the general principle of totality in sentencing.**

[1] The non-parole periods ranged from four and a half years to six and half years.

[2] With a non-parole period of three years.

[3] These facts were taken primarily from the statement of agreed facts prepared for the plea hearing on 22 June 2006.

[4] The agreed statement of statement of facts says that "the four accused would purchase... heroin". However, it was submitted at the plea and on appeal that Xuam Pham was not involved in the purchase of the drugs and that his only reward for his participation in the group were the drugs he received for his own personal use. This characterisation of Xuan Pham's role as less than that of the Nguyen brothers was supported by the Crown in their submissions.

[5] These men were charged and convicted of lesser drug related and ancillary offences in separate proceedings. David Lu pleaded guilty in the Magistrates court to four charges of trafficking heroin as well as using heroin and theft; Oswald Shaw pleaded guilty to trafficking heroin and using heroin; and Quang Pham was convicted after a summary contest in the Melbourne Magistrates Court of trafficking heroin, using heroin, possessing cannabis and using cannabis. David Lu and Oswald Shaw were sentenced to 6 months intensive corrections orders as well as fines; Quang Pham was sentenced to 3 months' imprisonment wholly suspended for two years as well as a fine.

[6] R v McDermott (1990) 49 A Crim R 105, 120 (Foster J); R v Tsolacos (1995) 81 A Crim R 434, 438 (Winneke P); R v Tilev [1998] 2 VR 149, 155 (Batt JA), 155 (Tadgell JA).

[7] R v Allen (1989) 41 A Crim R 51, 57-58.

[8] The Crown conceded that in this respect, there were no directly comparable cases. The Crown authorities included R v Sibic & Sibic [2006] VSCA 296 (a highly sophisticated hydroponic set-up growing over 2100 marijuana plants at any given time); R v Duncan [2006] VSCA 239 and R v D'Aloia [2006] VSCA 237 (a number of ecstasy transactions involving between 1000 and 5000 tablets at a time); R v Miechel [2006] VSC 359 (police officer part of the major drug squad stole numerous drugs from premises under surveillance); R v Pham & Nguyen [2006] VSCA 68 (major heroin trafficking enterprise between NSW and Victoria). The terms of imprisonment imposed in these cases were referred to in the written submissions in support of the sentence imposed on Tam Van Nguyen.

[10] [1998] 4 VR 235, 241; see also R v Schneider [2007] VSCA 103, [15].

[11] Mr Jeffrey Cummins, Clinical and Forensic Psychologist; Ms Anne Hooker, Youth Development Officer, Port Phillip Prison.

[14] R v Bouchard (1996) 84 A Crim R 499, 501. See also R v Nagy [1992] VicRp 45; [1992] VR 637, 640 (McGarvie J) and R v Bernath [1997] 1 VR 271, 276-277 (Callaway JA).

[15] R v Marcus [2004] VSCA 155, [2] (Winneke P). See also R v Ellis [1986] NSWLR 603, 604 (Street J); Ryan v R (2001) CLR 206 CLR 267, 295; R v Brazel [2005] VSCA 56; (2005) 153 A Crim R 152; R v Doran [2005] VSCA 271; and R v Benning [2005] VSCA 240.

[17] [2006] VSCA 296, [50]; see also R v Guthrie and Nuttall [2006] VSCA 192, [87].

[18] Including non drug-related offences, Tam Van Nguyen had 9 findings of guilt and 12 prior convictions from 9 appearances in the Children's and Magistrates' Courts.

[20] It appears that the 154 days related partly to time served as a result of a breach of a partially suspended sentence imposed on 20 July 2004 for a charge of trafficking in a drug of dependence and partly to a sentence imposed by the Magistrates' court on 26 September 2005 for what was described on the plea as "street trafficking". It could not be declared as pre-sentence detention within the meaning of s 18 of the Sentencing Act 1991, because it was not served in relation to the current offences. However, in applying the principle of totality the court is to have regard to the total criminality involved and is required to consider the total sentence that would have been imposed had all the offences fallen for consideration on the same occasion: R v Mill (1998) 166 CLR 59, 66 and R v Beck [2005] VSCA 11, [22] (Nettle JA).

[21] Including non drug-related offences, Trung Van Nguyen had nine prior findings of guilt and 16 prior convictions from eight appearances in the Children's and Magistrates' Courts.

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