DPP v Nguyen & Ors [2021] VCC 1160 (17 August 2021)

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION	Revised Not Restricted Suitable for Publication
GENERAL LIST

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIN HENRY NGUYEN	Accused

THANH HOAI PHAM	Accused

JENNY VO	Accused

JUDGE:	HIS HONOUR JUDGE BROOKES
WHERE HELD:	Melbourne
DATE OF HEARING:	2 and 3 August 2021
DATE OF SENTENCE:	17 August 2021
CASE MAY BE CITED AS:	DPP v Nguyen; DPP v Pham; DPP v Vo
MEDIUM NEUTRAL CITATION:	[2021] VCC 1160

Catchwords: Trafficking in a drug of dependence – large commercial quantity – trafficking in a drug of dependence – commercial quantity – dealing with proceeds of crime, knowingly and negligently – standard sentence

Sentences: Nguyen: Convicted and sentenced to a total effective sentence of ten years’ imprisonment with a non-parole period of six years. Section 6AAA declaration: Fifteen years’ imprisonment, with a non-parole period of ten years.

Pham: Convicted and sentenced to a total effective sentence of six years’ imprisonment with a non-parole period of four years. Section 6AAA declaration: Nine years’ imprisonment, with a non-parole period of six years

Vo: Convicted and sentenced to a total effective sentence of 306 days’ imprisonment reckoned as time served. Section 6AAA declaration: Two years’ imprisonment with a fifteen-month non-parole period.

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Albert	Solicitor for the Office of Public Prosecutions

For Accused Nguyen	Ms E Clark	James Dowsley & Associates

For Accused Pham	Mr S Pica	Pica Criminal Lawyers

For Accused Vo	Ms K Ballard	Galbally & O’Brien

1 Tin Henry Nguyen, you have pleaded guilty to one charge of trafficking in a drug of dependence in a large commercial quantity contrary to s71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (“the Act”) (Charge 1); one charge of trafficking in a drug of dependence, namely heroin, contrary to s71AC of the Act (Charge 2); one charge of trafficking in a drug of dependence, namely cocaine, contrary to s71AC of the Act (Charge 3); one charge of trafficking in a drug of dependence, namely ecstasy, contrary to s71AC of the Act (Charge 4); one charge of knowingly dealing and concealing the proceeds of crime contrary to s194(1) of the Crimes Act 1914 (Cth) (Charge 5), and one charge of negligently dealing with property being the proceeds of crime (Charge 6). You have pleaded guilty to all six charges.

2 Thanh Hoai Pham, you have pleaded guilty to one charge of trafficking in a drug of dependence, commercial quantity, being methamphetamine and heroin (Charge 1). You have pleaded guilty to one charge with respect to ecstasy (Charge 2), one charge with respect to cocaine, trafficking in a drug of dependence (Charge 3), and then, fourthly, you have pleaded guilty to knowingly dealing with the proceeds of crime (Charge 4).

3 Jenny Vo, you have pleaded guilty before me to one charge of knowingly dealing with the proceeds of crime (Charge 1) and one charge of trafficking a drug of dependence, heroin (Charge 2).

4 The circumstances of the offending are set out in a well-articulated Summary of Prosecution Opening on the plea and the facts contained therein are admitted. They can be summarised as follows.

5 Thanh Pham, you were born on 4 June 1984. During the relevant time, you resided between the apartment of your partner, Jenny Vo, and your parents’ home. You stayed at Vo’s apartment three to four days per week and at the time, you were unemployed. In your police interview, you said that you delivered money for drugs and collected drugs and you stored same at the apartment of Ms Vo. You were an associate of Tin Henry Nguyen, who the latter sold drugs on the internet and delivered them by post. You attended Vo’s apartment regularly, and Pham, you were involved in the drugs Nguyen sent by post on 11 July 2019 immediately after attending Vo’s apartment.

6 When police searched Vo’s apartment on 12 July 2019, they found a commercial quantity of drugs and proceeds of crime, being $132,195 and designer label shoes, wallets, handbags, sunglasses and bracelets, all valued putatively by the prosecution at $300,000, but in a separate ruling, I have ruled that that amount be speculative and that what I can find beyond reasonable doubt is that you were in receipt of the proceeds of crime of high-end valuable wallets and handbags of a particular ilk.

7 Ms Vo, you were born on 13 June 1987. You resided at the apartment that you owned at the Bank Building in Southbank. You worked three to four days per week. It is alleged that you assisted Pham in his drug trafficking activities, including with Nguyen in your apartment. However, it is not alleged that you actively participated in, or were aware of specific instances of Pham sourcing, preparing, offering or supplying drugs. You were in joint possession at your apartment with Pham of proceeds of crime, being the designer label shoes, wallets, handbags, sunglasses and bracelets.

8 Tin Henry Nguyen, you were born on 21 June 1991 and at the relevant time, you resided with your mother at 22 Ragland Street in Port Melbourne. You were also unemployed, other than you were in the business of trafficking a large commercial quantity of drugs over the internet. You delivered the drugs to purchasers by Australia Post. You attended at Vo’s apartment regularly and on 11 July 2019, immediately before posting the drugs to customers, you were in attendance. You were involved with Pham in the drugs that the police found at Vo’s apartment on 12 July 2019 and you were found in possession of $159,505, which is agreed to be the proceeds of crime.

9 The Australian Postal Corporation Act 1989 (Cth), in terms and conditions authorised by that Act, for items sent by mail, provides for the interception and examination of parcels that are reasonably suspected of containing prohibited, deleterious or dangerous substances, and their seizure when they are reasonably suspected to be evidence of criminal offence.

10 Staff of Australia Post, police, and officers of the Australian Border Force have been appointed under the Act for those purposes. Police identified suspect postal articles that were found to contain drugs. Evidence gathered established Nguyen was supplying drugs to customers in this way.

11 Nguyen’s drug retailing business was described as follows. First, drugs were ordered over a website called “HDNDRGN”, that was on the “dark web”. That is, websites that are only accessible via special software, so users and website operators remain anonymous or untraceable. Police seized Nguyen’s laptop computer and hard drive at his residence. Deleted data on the hard drive was recovered. It evidenced more than 300 online drug sales made by HDNDRGN on an online dark web marketplace.

12 Secondly, payment for the drugs was by Bitcoin, on a dark web marketplace, and after that site was shut down, payment arrangements were made with HDNDRGN directly via encrypted email to make payment. Transactions in cryptocurrency are difficult to identify and trace. Thirdly, drugs were delivered by post in an express post envelope. The envelopes had a printed name and address label. Inside the envelope was a folded white A4 paper containing a silver heat-sealed foil packet. In the foil packet was a snap-lock bag containing the drug ordered.

13 In the investigation, envelopes posted at three mailboxes on four occasions were seized. Each of the envelopes was an express post envelope and had a printed name and address label attached. It contained white A4 paper and silver heat-sealed foil packets. In the foil packet was a snap-lock bag containing the drugs. The largest quantity of drugs found in one envelope was 16 grams. The average amount of drugs in envelopes seized was about 1.75 grams. Some envelopes had fictitious names and addresses of sender, and others had no sender details.

14 Surveillance DCT footage and carparking records evidence a regular pattern in Nguyen’s movements. First, at around 2.30 to 3.00pm on weekdays, Nguyen drove from his residence to the Crown Casino carpark. Secondly, between 4.30 to 5.00pm, Nguyen would leave the Crown Casino carpark. Thirdly, he parked at the South Melbourne Central shopping complex at 100 Market Street, South Melbourne, and fourthly, Nguyen posted express post envelopes at an express post mailbox.

15 At 9.00am on 12 July 2019, police executed a search warrant at Nguyen’s residence. He was present and he was arrested. Items found and seized included a backpack which contained hardcopy pages of a spreadsheet that recorded details of recipients’ addresses, drug, weight and the express post ‘sender to keep’ tracking number sticker attached next to each recipient.

16 There were 504 individual postings of drugs recorded. The tracking numbers of the express post mail articles seized by police were all recorded, sales were recorded in hardcopy spreadsheet, additional to the drugs seized. A spreadsheet on a USB recorded further drug sales. It recorded the drugs were posted on thirteen occasions between 27 May 2019 and 12 June 2019. Also located was $35,205 in cash. Thirdly, there was a ledger containing a Bitcoin cryptocurrency hardware wallet. Fourthly, documents relating to the leasing of a safe deposit box at Fortis Vaults in Collins Street, Melbourne. The safe deposit box was leased in the names of Nguyen and Lan Nguyen. On 12 July 2019, police seized the safe deposit box pursuant to a search warrant. It contained $124,300.

17 The drugs found in Vo’s apartment are drugs that were in Nguyen and Pham’s joint possession for sale. Nguyen made a “no comment” interview. Upon a search of Vo’s apartment at 9.30am on 12 July 2019, police executed a search warrant. Both Vo and Pham were present and they were arrested. Police found items and seized drugs that Pham and Nguyen were involved in, consisting of 138.1 grams of methamphetamine, 241.6 grams of heroin, 79.1 grams of cocaine and 139.3 grams of ecstasy.

18 Also found were express post envelopes and satchels in a large box, a label printer and blank labels. The labels were similar in appearance to those affixed to seized express post envelopes. There also were three laptop computers and two Apple iPads. Proceeds of crime found at the scene were as follows:

(b) 87 pairs of designer shoes, 55 designer label handbags and 39 designer label purses or wallets;

19 In his police interview, Pham selectively answered questions. He said that he had previously worked as a packer in a warehouse and concreting, but he had not worked for about one-and-a-half years. It all started because he was struggling; he got a bit too greedy; he wanted to set himself up. It started from knowing someone who was in it, and what he did was “work for people”. He would introduce people and get a cut of payments. Sometimes he would make $100 in a week; sometimes $1,000; sometimes $2,000. He would take that from the cash payments and give the rest back. As to his motivation, he said he just wanted to make money for a better future for his kids; although he did not have any at the moment, he was planning to.

20 Further, the people he worked for communicated with him by calling him and they changed their names often. The money at the apartment was not his. He had to pay it to someone. He repaid the money when he was called; it could be in a week or two. They last called him a month previously, but it is not the same person that speaks to him. He is told where to drop the money off.

21 Suburbs that he recalled making deliveries to were Richmond, St Albans and Sunshine. After he dropped off the money, he would get called to pick up drugs the same way. He did not know who he made deliveries to and could not describe them, other than that they were Asians. The drugs were heroin, cocaine, methylamphetamine and ecstasy. He did not use the drugs at all. He stored “stuff at the apartment”, as he had nowhere else. He did not store stuff anywhere else because he did not want to get other people involved.

22 He alleged that Vo was not involved with what he does. She did not want him to do it, but she could not stop him from doing it. All the “stuff” at the apartment was his. Vo was not involved. Vo was at work when he packaged the drugs for sale and he spent his money on buying clothing, and he helped Vo to pay the bills for the apartment. He stated that Vo liked expensive bags and shoes and the expensive handbags were for Vo. He purchased about 70 to 80 per cent of them. Vo purchased the rest.

23 In her police interview, Vo said that she owned the apartment and had lived there for about three to four years and that her partner, Pham, lived with her, and she had been going with him for a couple of years. She denied that either of them took drugs. She said that Pham stayed mostly with his parents in Thomastown and he would stay with her a couple of days each week and had a key to the apartment. He would play computer games and watch Netflix at the apartment and he never said anything to her about drugs in the apartment or selling drugs.

24 With respect to Pham’s friend, Nguyen, Vo stated he would come to the apartment when she was at work, two to three times a week, and he did not have a key to the apartment. He would leave when she came home. She did not know anything about Nguyen and she did not know what Pham and Nguyen did in the apartment. She was not with them there all the time.

25 She stated that Pham takes her shopping and gives her money to gamble. She does not ask where he gets it from. Sometimes he gives her $1,000 or $2,000 per week. Sometimes he gave her nothing. He paid for the shoes at the apartment. They were worth a couple of thousand dollars. She received some of the bags at the apartment as birthday presents. They were worth about $20,000. She stated she likes to collect to them, but does not ask where the money comes from to pay for them. Vo stated that Chanel purses were worth a couple of thousand dollars and she did not know what Pham did for work or if he received unemployment benefits. He never told her where he got his money from and she did not ask him.

26 The maximum penalties for trafficking in a large commercial quantity of drugs is life imprisonment. Trafficking in a commercial quantity of drugs of dependence is 25 years’ imprisonment. Trafficking in a drug of dependence is 15 years’ imprisonment. Dealing with the proceeds of crime knowingly is 15 years’ imprisonment, and dealing with the proceeds of crime negligently is five years’ imprisonment.

27 Pursuant to s5(2G) and s5(2H) of the Sentencing Act 1991 (Vic), a custodial sentence must be imposed other than a custodial sentence combined with a community correction order, for the offences of one trafficking of a large commercial quantity, which is a Category 1 offence. This relates to Mr Nguyen, Charge 1. And secondly, trafficking in a commercial quantity, Category 2 offence, unless, inter alia, there are substantial and compelling circumstances that justify not making a custodial order. This relates to Mr Nguyen, Charge 2, and Pham, Charge 1. It is not alleged, in this proceeding, that there are substantial and compelling circumstances.

28 Further, with respect to Mr Nguyen, the offence of trafficking a large commercial quantity and the offence of trafficking in a commercial quantity are each described as a “drug offence” by the Sentencing Act 1991. An offender becomes a “serious drug offender” if sentenced to a term of imprisonment for a drug offence. Mr Nguyen becomes a serious drug offender on being sentenced to imprisonment on Charge 1. He is then to be sentenced on Charge 2 as a serious drug offender in accordance with s6DD(E)(F) [Judge, should this be s6D, E and F?] of the Act. However, the prosecution does not seek a sentence disproportionate to the gravity of the offence.

“Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.”

30 It is common ground that this sub-section reserves for the Court a discretion, with respect to the question of accumulation.

“A court that sentences a serious offender for a relevant offence must, at the time of doing so, cause to be entered in the records of the court in respect of that offence the fact that the offender was sentenced for it as a serious offender.”

32 Further, Charge 1, with respect to Mr Nguyen, invokes the standard sentence provisions. Trafficking in a large commercial quantity is a standard sentencing offence and the standard sentence is 16 years. Sections 5A, 5B and 11A of the Sentencing Act apply, in addition to the sentencing guidelines and the applicable common-law principles to the sentence to be passed.

“the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.”

“For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—

(a) without reference to matters personal to a particular offender or class of offenders; and

35 Counsel for the prosecution submits that the objective factors affecting the relative seriousness of the offending are as follows.

36 Mr Nguyen trafficked through a sophisticated retailing business structure, designed to avoid identification. It paralleled modern web retailing, modified to avoid detection. Further, he was advertising to a wide _____ [word/s missing?] on the web and utilising the website for drug sales. It is submitted the website on the dark net is to avoid identification and payment by cryptocurrency via a dark web marketplace, making it difficult to identify and trace.

37 After the marketplace was shut down, payment arrangements were made via the website through encrypted mail. A legitimate delivery service was used to deliver the drugs sold through Australia Post and there were 504 envelopes/articles posted in the offence period of 46 days. Mr Nguyen had a record for his business of sales and despatch of drugs by post.

“15. Although he was the primary offender, the offending lacks particular sophistication given no real attempts were made to conceal the offending and the meticulous record keeping of transactions.

16. Further, his role in the overall drug trade must be viewed as lower level given was essentially selling at street level but using post as the method of distribution.

17. Mr Nguyen acknowledges that his offending was completely unacceptable. He accepts responsibility for his conduct and is remorseful for it. He is disappointed with himself for the choices he made and has sought to address his issues in custody.”

39 Clearly, the matters in paragraph 17 are more attributable to matters personal to Mr Nguyen and cannot be taken into account in a standard sentencing. Nonetheless, the amount that was the subject of this charge is slightly over the minimum quantity for the particular charge, and I can accept that being an amount base regime, that he falls to be sentenced at the lower end.

40 The trafficking of large quantities of drugs or just trafficking a large commercial quantity of drugs or trafficking in a commercial quantity of drugs has been recently considered by the Court of Appeal in the decision of Director of Public Prosecutions v Kumas.^[1] The Court stated as follows:

“... this court in Gregory,^[2] [found] that Parliament must be taken to have intended sentences ‘well into double figures’ for instances of commercial quantity trafficking (‘CQ trafficking’) where the offence had one or more of several specified features. Relevantly for the present purposes, the Court said that a ‘double figures’ sentence would have been intended if the quantity trafficked ‘approached the LCQ threshold’. In the present case, senior counsel noted, the quantity trafficked exceeded the LCQ threshold and yet the sentence was only 6 years and 6 months.”

“Counsel drew specific attention to the statement in Gregory, that ‘sentences for LCQ trafficking will also need to increase, substantially, in order to maintain appropriate sentencing relativities’. Recently, in Quah, the Court elaborated on this notion of ‘appropriate relativities’, as follows:

‘Other things being equal, an offence of LCQ trafficking is more serious than an offence of CQ trafficking, because it falls into the highest quantitative category and carries the highest maximum. Other things being equal, an offence of LCQ trafficking which involves — as the applicant’s offence did — a quantity representing multiples of the LCQ threshold is more serious than an offence of CQ trafficking which involves a quantity representing multiples of the CQ threshold.

This differential in offence gravity needs to be reflected in sentencing for LCQ trafficking, if Parliament’s clear intention is to be effectuated. As was stated in the second reading speech, the new maximum of life imprisonment was intended to send the clearest message to would-be traffickers — and to sentencing courts — about how sternly large-scale drug trafficking was to be punished.’

“In Quah, the quantity trafficked was almost four times the LCQ threshold. The accused there was sentenced to a term of 15 years for the trafficking offence. In the present case, the quantity was almost twice the threshold. Accepting – as the prosecutor did on the plea – that this was at the lower end of the quantitative range for LCQ trafficking, it was nevertheless clearly over the threshold and what was said in Gregory about the need for increased sentences for LCQ trafficking was directly applicable.”^[3]

42 I interpose here that the LCQ threshold in the case before me was slightly over the threshold of one kilogram, as compared to 1.9 kilograms in the case of Kumas. Further, at paragraph 42 of Kumas, the Court stated:

“The seriousness of the offence of LCQ trafficking was made clear by this Court recently in Rahmani:

‘[T]he maximum penalty of life imprisonment sends a message to the community, and to sentencing courts, that this is an offence of the utmost seriousness. As is well recognised, the sentencing regime for drug trafficking offences is quantity-based. The maximum of life imprisonment for LCQ trafficking is to be compared with the maximum of 25 years’ imprisonment for commercial quantity (CQ) trafficking.

“Although the High Court decision in Barbaro v The Queen^[4] prevents judges from seeking, and prosecutors from providing, a submission on sentencing range, the Court in that case reaffirmed the duty of prosecutors to assist sentencing judges by providing relevant sentencing information. The plurality said that the ‘role and duty’ of the prosecution was:

‘to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases.^[5]

Given the complexities associated with the structured, quantity-based hierarchy of trafficking offences, and with giving effect to what was said in Gregory, assistance of that kind was particularly important in a case like the present.

Before us the Director referred to a series of cases concerning LCQ trafficking decided after the enactment of the standard sentence regime. Consideration of those cases revealed that the sentences imposed ranged from 8 years to 15 years.^[6] All those cases were decided after Gregory, but before Rahmani.”

44 The learned prosecutor in the present case also provided the Court with a snapshot of similar cases, which also had the range of eight years to fifteen years.

45 The other factor that the Court turned its mind to, was the structure of the standard sentence regime, and they stated as follows:

“Quite correctly the Judge said that you must take the standard sentence into account, ‘as a guidepost to the appropriate sentencing range in cases of this kind’.”^[7]

46 As discussed in Brown v The Queen,^[8] the standard sentences referable to a hypothetical middle of the range offence, classified on the basis of objective factors only.

“What this means, the Court in Brown said, is that the judge must keep in mind the notion of an offence ‘in the middle of the range of seriousness’.^[9] As T Forrest JA pointed out in argument, however, the difficult task of giving content to that notion is made all the more difficult in a case such as the present, where the offence in question has a quantitative threshold and the quantitative trafficked is of central importance to the assessment of offence gravity.”

48 That being the case, the Court reminds itself that the quantities involved in this charge were lower than those in Kumas, as already stated. At this point, I note that in providing the snapshot of comparable cases, although the case of Kumas was not provided, I find that it is of considerable assistance in assessing the gravity in this particular case.

49 In the case of Kumas, the relevant accused had prior convictions for drug and firearm offences and was also involved in a sophisticated business. The Court of Appeal considered that because of the firearm offences, the total effective sentence should be fourteen years, although I note that in the trafficking of a large commercial quantity, the base sentence of ten years was ordered.

51 First, Mr Nguyen is now aged thirty years, having been born on 21 June 1991. Prior to his remand, he was living with his mother and sister and he would see his grandmother frequently. He is single and has no children. He is the only child to his parents’ relationship and they separated when Mr Nguyen was aged around three years. He did, however, have an ongoing relationship with his father and last saw him a couple of months prior to his remand, and his father then passed away in early 2020.

52 His mother re-partnered twice and his sister was born to one of those relationships. One of Mr Nguyen’s step-fathers was violent to him when he was very young and his mother ultimately left that relationship. His mother came to Australia from Vietnam when she was in her 20s. She has always worked to support her children, primarily in restaurants. Mr Nguyen has a close bond with her. He is currently concerned, as her health has deteriorated since his remand.

53 Mr Nguyen has had some difficulties at school, both socially and academically; however, he did complete VCE. He went onto commence an engineering diploma at TAFE, however, did not complete that course. He has some work history in hospitality as a call centre operator and in sales. Prior to his remand, he had not worked for some time.

54 Counsel on behalf of Mr Nguyen submitted that the offending occurred in the context of use of cocaine from his early 20s, connecting him to people with the drug trade and being unable to secure meaningful ongoing employment. He accepts that he was motivated by money. And it is further conceded that the offending is serious, particularly having regard to the maximum penalty. The gravity has already been addressed earlier.

55 As to good character, it is submitted Mr Nguyen has no prior convictions or findings of guilt and this is his first time in custody. Character references have been provided by both family and friends in support of Mr Nguyen and they are quite glowing as to his antecedent character.

56 I accept counsel’s submission that the volume of character references provided, speak of a responsible, kind, generous and trustworthy young man, who is sorry for his actions. It is further submitted that his previous good character, and both the lack of prior convictions and the positive good character attested to in the character references is relevant to both the need for specific deterrence and his prospects of rehabilitation. I accept this submission.

57 It is further submitted that Mr Nguyen’s pleas of guilty are of significant utilitarian benefit. This is particularly so, given that the pleas were entered at an early stage. I also note that our Court of Appeal recently in the case Worboyes v The Queen,^[10] considered that under the present COVID regime, the early pleas of guilty are to be given special effect, and a considerable discount ought to be entertained.

58 The reason provided by the Court is that the pleas of guilty assist with the easing of the trial backlog in the Court and they provide some incentive to others in the similar position to plead guilty, adding benefit to a system under pressure.^[11] It is further submitted that the pleas of guilty are also indicative of remorse for his conduct and the remorse is further demonstrated by his letter to the Court and in the character reference material.

59 In the letter to the Court, I consider that I should accept it at face value, in that it attests to the remorse and the need for rehabilitation and the regret for the pain that has been caused. Fairly, counsel places no reliance on the principles in Verdins.^[12] As to the impact of imprisonment, counsel submits that the outbreak of COVID will continue to impact Mr Nguyen in several ways. He has concern for his own health, should the virus spread in the prison. He has concern for the health of his loved ones in the community, particularly against the backdrop of his father’s early death whilst he was in custody; the lack of face-to-face visits for a currently undefined period of time, and also reduced access to programs, education, exercise and employment at various times, together with lockdown regimes.

60 Mr Nguyen has maintained telephone contact with his family throughout his remand and he has irregular access to contact visits due to COVID restrictions and did not see his mother in person for twelve months. All these matters I have taken into account in my instinctive synthesis.

61 With respect to prospects of rehabilitation, Mr Nguyen has spent the majority of his remand present at the Melbourne Remand Centre. He was recently appointed as an essential working prisoner. This is a reflection of his conduct as a model prisoner and affording greater privileges in terms of wage and visits when allowed. He has engaged in one-on-one drug counselling to address his drug use, having completed thirteen sessions as at March 2021. He has also completed numerous educational programs, been involved in artistic activities and taken up every opportunity offered to him.

62 Counsel submits that his prospects of rehabilitation can be properly categorised as excellent, having regard to the following:

64 Counsel also submits, with respect to sentencing principles, that s5(3) of the Sentencing Act reflects the common-law principle of parsimony and provides that a court must not impose a more severe sentence than that which is necessary to achieve the sentencing purposes, and having regard to the nature of the offending, denunciation and general deterrence, are clearly relevant considerations, and I accept this submission.

65 Counsel further submits that specific deterrence is capable of moderation on account of his lack of prior convictions, remorse and insight. I accept the submission. Although Mr Nguyen falls to be sentenced as a serious drug offender, it is noticed that the prosecution does not seek a disproportionate sentence in this case.

66 Counsel finally submits that the totality principle has application in this case, particularly having regard to the overlap and circumstances of each of the charges. I accept this submission, and I have exercised my discretion referred to earlier in the partial cumulation with respect to the charges after Charge 1.

67 With respect to how my sentence must relate to the standard sentencing regime and the requirement for me to explain how it is effected, I take note of the way in which the matter was approached in the case of Kumas^[13] and I accept the submission by counsel as follows:

“Having regard to the quantum and the lack of sophistication in terms of concealment of the offending, it is submitted that the offending falls below the mid-range for trafficking in a large commercial quantity.”

69 Mr Pham is a man of thirty-seven years, having been born on 4 June 1984. At the time of offending, in between June and July of 2019, he was aged thirty-five years. He has no prior convictions. He was born into a law-abiding and hardworking Buddhist family in Ho Chi Minh City, Vietnam. He is the youngest of five children, with three older sisters and one older brother.

70 In Vietnam, his father was a fisherman and his mother was a street food vendor. While home life was close and nurturing, the family was materially poor.
Mr Pham’s father came to Australia from Vietnam in 1984 by himself and lived with relatives. He found work in a factory and was on constant work and made preparations for the arrival of his family. Back in Vietnam, Mr Pham’s mother worked seven days per week as a street food vendor, while the older siblings and other family members looked after him in the home. In 1991, the family was reunited, as the rest of the family were able to join the father in Melbourne.

71 For the first few years after their arrival, the family lived with relatives in Mill Park, before they purchased their own home in Thomastown, where Mr Pham’s parents continue to reside. In Australia, Mr Pham’s mother found work in a chicken factory, while Mr Pham’s father continued fulltime in a metal factory.

72 It is submitted that the family home in Thomastown was a peaceful and caring environment, free from any notable conflict or disturbance. With each parent in constant work, Mr Pham was cared for much of the time by his older siblings and the family remains close-knit.

73 As to his education, Mr Pham spoke no English when he arrived in Australia in 1991. However, he completed Year 10, having quickly learnt English and attaining basic literacy and numeracy skills; however, he found the academic aspects of schooling difficult and he was a shy student, but otherwise, did not have any behavioural issues.

74 It is submitted that Mr Pham has a strong and stable employment history. Upon leaving school in Year 11, he commenced labouring work in concreting through his brother-in-law. At about the age of eighteen, he successfully completed a spray painting certificate course at TAFE and worked in this industry for some time, before returning to labouring and the construction industry.

75 In his 20s, he obtained employment at The Age print centre in Tullamarine, where he remained for a period of five years, before it was shut down in 2013. Thereafter, he obtained employment as a picker and packer at the Toll Distribution Centre in Somerton. He remained in that position for five years. Throughout his adult life, even whilst working at The Age and Toll, he engaged in extra labouring work in the construction industry.

76 In the period leading up to and during the offending, Mr Pham discontinued his employment. This was in the context of him becoming overwhelmed by gambling addiction and gambling debt and eventually becoming involved in drug trafficking. Mr Pham has only had one significant relationship in his adult life, with Ms Vo, his co-accused in this matter.

77 Mr Pham and Ms Vo commenced their relationship some ten years ago when Mr Pham was in his late 20s. They remained in this relationship up until their custodial separation. Mr Pham has a history of chronic and severe gambling addiction. He commenced gambling approximately seven years ago at the age of about thirty. He always gambled at Crown Casino. At first, he attended on a weekly basis, however, over time, the addiction became more severe and once entrenched, he would attend the Casino to gamble about three to four times per week, for about four hours on each occasion.

78 In the periods when the addiction was at its worst, he would spend approximately $3,000 each week on baccarat and the pokies. The amount he spent and lost at gambling varied according to his level of income and his debts, which were accumulating. The gambling addiction and the consequent descent into heavy debt, set Mr Pham on a course which led to his drug trafficking offending. Nonetheless, since his remand in custody, Mr Pham has undertaken “psychoeducation workshops and counselling” in order to address his gambling addiction. See the report of Ms Julie Jensen, therapeutic counsellor, dated 22 January 2021. His engagement in that counselling has been very positive and productive. Leaving aside his gambling addiction, Mr Pham has no history of mental ill health and has never consulted a doctor or other clinician in relation to poor mental health and no Verdins principles are alleged in this matter.

79 It is submitted that Mr Pham has a limited history of illicit drug use, having used cocaine on an occasional basis in his mid-20s at parties. In his adult life, he has consumed alcohol on an occasional basis, but never at excessive or problematic levels. Whilst in custody, Mr Pham has been abstinent from drug and alcohol abuse, as reported by Ms Jensen, and he has also completed a course of drug counselling in relation to his past use of cocaine. See the report of Ms Renai Perota, clinician, dated 17 April 2020. Also see the urine sample results dated 12 June 2020 and 11 September 2020. He is reported to have participated very well, with the AOD clinician stating that he had a “high level of engagement” in that program. See the report of Ms Renai Perota at page 2.

80 It is submitted that although the imprisonment has been intimidating and frightening experience, Mr Pham has been a model prisoner. He has maintained full-time employment in the prison shop at the Melbourne Remand Centre, a position he obtained some two months into his time on remand. The position of employment in the prison shop, which is like an internal supermarket for the prison population, is a privileged, trusted and an onerous one. In particular, only four prisoners among the larger population are employed in that shop and the work involves the management of a large amount of stock.

81 In order to be considered for the position, a prisoner must not have any incidents of bad behaviour against their name and must have clear urine screen tests. Prisoners working in the shop are considered “essential workers” and have maintained their work, even throughout the changes and restrictions within the prison regime, in the context of COVID-19.

82 Counsel has always submitted that Mr Pham has re-engaged with his religion of Buddhism, the religion of his family and his upbringing. He has been attending prayer sessions in the prison when they have been made available, noting that they have been limited because of COVID. Finally, he has maintained close contact with his family, mainly through regular phone calls with his brother and long-time friend, Mr Pham Huon, a stable family man who has no history of any criminality, illicit drug use or gambling. It is submitted by his counsel that Mr Pham “is firmly on the pathway to rehabilitation”. See paragraph 39 of the Outline of Plea Submissions.

83 The context of the offending, as already stated, is the gambling addiction, followed by falling into debt and then borrowing monies from strangers, including persons who approached him at the Casino. They lent him large sums of money and at a vulnerable point in time, these people invited him to become involved in drug trafficking as a means of repaying his debt.

84 Counsel submits, with respect to the gravity of offending, that “there is a wide variation in the seriousness of CQ trafficking offences and in the culpability of the traffickers”.^[14]

85 Counsel further submits, as the authorities make clear, the relevant “indicators of offence of seriousness” in relation to drug trafficking include:

(vii) whether aggravating features are present, such as the use of firearms, violence or intimidation.^[15]

86 Clearly, the matters set out in sub-paragraphs (v), (vi), (vii), are in the favour of Mr Pham.

87 It is further submitted that Mr Pham did not play a controlling role in the trafficking enterprise, nor was he in charge of the business. He did not manage or give directions to other traffickers. His role was confined as alleged by the prosecution, that he delivered money for drugs and collected drugs in unquantifiable amounts between 12 June 2019 and 12 July 2019. He was involved on one occasion, on 11 July 2019, in the drugs that Mr Nguyen had sent by post, after Mr Nguyen attended Ms Vo’s apartment and, thirdly, he stored drugs at Ms Vo’s apartment, being the drugs seized on 12 July 2019.

88 Further, it is submitted his role should be viewed in the context that he “worked for people”,^[16] and the other matters referred to in the Prosecution opening above.

89 As to the quantity of drugs trafficked, it is submitted that the quantity is “relatively low”. In particular, in relation to Charge 1, the quantities of the drugs in question are far from approaching the LCQ threshold.

90 It is submitted that the duration of the trafficking was relatively short, being one month, and as quoted in Osman v The Queen,^[17] the Court of Appeal held, at paragraph 101, that a longer period of trafficking of six weeks, was itself a “relatively confined period”.

91 Consistent with the submissions for Mr Nguyen, the offender’s good character and prospects of rehabilitation and remorse are clearly present in this case. I further note that the pleas of guilty as stated above, merit special consideration in accordance with the principles laid out in Worboyes referred to above.

92 Finally, counsel submits that the totality principle requires the Court sentencing an offender for multiple offences to ensure that the overall sentence imposed is a just, appropriate, and proportionate measure of the total criminality involved.^[18]

94 Ms Vo is a thirty-four-year-old woman, having been born on 13 June 1987, with no criminal history. She is presently on bail, but has served 306 days by way of pre-sentence detention. Before her remand, she had never experienced a prison environment and has found the confinement proved to be a salutary experience. She has not been in trouble since her release. She has lived with her parents and younger sister since she was released on bail in May of 2020.

95 Counsel for Ms Vo concedes that drug trafficking is inherently a serious offence, however, the offending for which Ms Vo falls to be sentenced is objectively far less serious than that committed by Mr Nguyen and Mr Pham. This is so because she is pleading guilty to a different and less serious charge than each of her co-accused, but also because of her very limited involvement in criminal activity, as compared to her co-accused and as is conceded by the prosecution.

96 Ms Vo has pleaded guilty to trafficking in a drug of dependence, heroin, on a single date and no specific quantity is alleged against her and, of course, it relates to the fact that the drug was on her premises. It is submitted that I must view her offending for one day only. She was complicit in drug trafficking by allowing her apartment to be used as a place where drug-related activity occurred and her assistance was passive, peripheral and isolated in time.

97 It is further submitted she did not have any active involvement in trafficking and it is not alleged to have provided any direct assistance to Mr Nguyen and his business. It is submitted that Ms Vo’s moral culpability for trafficking is far lower than both Mr Nguyen and Mr Pham. I accept the submissions.

98 It is further submitted that the circumstances of this case, in particular, the connection with the co-accused, meant that Ms Vo’s matter has proceeded through the indictable stream and to the County Court, whereas in different circumstances, it could have been dealt with in the Magistrates’ Court. Counsel on behalf of the client, does not accept the values – with the valuations proffered in the spreadsheet, and I have deal with this above.

99 As to matters personal, Ms Vo’s father and mother came to Australia from Vietnam in 1979. They were refugees and they learned English and worked hard to build a future for themselves in this country. Once settled, they had two children: Ms Vo and her younger sister, Vivian. Ms Vo was born in Footscray and raised in St Albans. Both her parents still work. Her father is a panel beater and her mother works in a textile factory sewing clothes. Neither has ever been in trouble with the police. Ms Vo has always enjoyed a good relationship with her parents and she is conscious of the sacrifices they made to build a good life for her and her sister.

100 Her sister, Vivian, lives at home for the moment, although is engaged to be married, and remains close to her sister. In her reference to the Court, Vivian describes a positive, loving childhood. Ms Vo attended primary school at St Bernard in Sunshine and completed high school up to Year 12 at Marian College in Sunshine West. From the time that she finished school, Ms Vo’s focus was to obtain employment in the public service. She was attracted to the security and stability that it could offer.

101 After completing VCE, she undertook a Certificate III in Business Administration and during that time, she actively searched for employment and she secured a job at Births, Deaths and Marriages. Ms Vo stayed with that government body continuously for approximately eleven to twelve years, up until the time of her arrest. She worked in a customer service role. She resigned from the position when she was on remand. She found this very hard to do and regrets that through her own behaviour, she sacrificed a part of her life that was very important to her.

102 She purchased her own apartment in her early 20s, saved for the apartment herself and bought the property off the plan. It took some seven years to be built and she lived at home while she waited for construction to be completed. She moved into her home in her late 20s. This is the home she was living in at the time of her arrest.

103 Ms Vo has had three romantic relationships in her life, the most recent and most of significance, is her relationship with Mr Pham. The pair met through friends many years ago and were in a relationship for approximately ten years until the time of their arrest.

104 At the time of the offending, Ms Vo was gambling to a problematic degree. She and Mr Pham regularly attended Crown Casino. She received some gambling counselling in custody and has not returned to gambling since she was released on bail. Although currently prescribed anti-anxiety medication, she also suffers arthritis as an ongoing issue, particularly in times of stress. Her mental and physical health are managed through her general practitioner.

105 Ms Vo was bailed to live at home with her family in May 2020 and is currently in receipt of Centrelink payments. She is continuing her search for employment, but has run into some difficulties due to her outstanding charges and pending criminal matter. In particular, I refer to the support letter of Leanne Digby, at Workways, dated 27 July 2021. Once again, Ms Vo must obtain the advantage of an early plea of guilty as described above and its utilitarian value, and I accept that Ms Vo has no criminal history and is entitled to call on her previous good character in mitigation. I also consider that the delay and stress caused there are a factor which I can take into account in my instinctive synthesis.

106 Prospects for rehabilitation are set out in paragraph 40 of counsel’s submission and I accept that the prospects outlined therein can be regarded as very promising.

107 In balancing the moral culpability, and the various responsibilities of the three accused, I have tried to take into account parity and principles of totality in arriving at a final disposition. In particular, I gained considerable assistance from the case of Kumas as cited above.

108 Because we are doing this sentence remotely, I will not require the accused to stand.

109 Mr Nguyen, on the charge of trafficking in a drug of dependence of a large commercial quantity, you are convicted and sentenced to eight (8) years’ imprisonment.

110 On trafficking in a drug of dependence of a commercial quantity, you are convicted and sentenced to five (5) years’ imprisonment, with one year cumulative on the base sentence.

111 On a third charge of trafficking in a drug of dependence , you are sentenced to three (3) years’ imprisonment, with one year cumulative on the base sentence.

112 On the fourth charge of trafficking in a drug of dependence, you are sentenced to two (2) years’ imprisonment, concurrent with the base sentence.

113 With the fifth charge of knowingly dealing with the proceeds of crime, you are convicted and sentenced to one (1) year’s imprisonment, concurrent with the base sentence.

114 On the sixth charge of negligently dealing with the proceeds of crime, you are convicted and sentenced to one (1) year’s imprisonment, concurrent with the base sentence.

115 The total effective sentence is ten (10) years’ imprisonment, with six (6) years non-parole. I declare that there is a pre-sentence detention of 767 days.

116 Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a total effective sentence of fifteen years imprisonment, with a non-parole period of ten years. I note that on Charge 2, that you are to be sentenced as a serious drug offender.

117 Mr Pham, on Charge 1 of trafficking in a drug of dependence of a commercial quantity, you are convicted and sentenced to five (5) years’ imprisonment and this is the base sentence.

118 On the second charge of trafficking in a drug of dependence, you are sentenced to three (3) years’ imprisonment, with one year to be cumulative on the base sentence.

119 On the third charge of trafficking in a drug of dependence, you are sentenced to three (3) years’ imprisonment, concurrent with the base sentence.

120 On the fourth charge of knowingly dealing with the proceeds of crime, you are sentenced to one (1) year’s imprisonment, concurrent with the base sentence.

121 The total effective sentence is therefore six (6) years’ imprisonment, with a non-parole period of four (4) years. I declare the pre-sentence detention is 767 days.

122 Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have ordered a total effective sentence of nine years’ imprisonment, with a non-parole period of six years

123 Ms Vo, with respect to the first charge of knowingly dealing with the proceeds of crime, you are convicted and sentenced to 90 days’ imprisonment, with 26 days being cumulative on Charge 2.

124 On Charge 2, you are convicted and sentenced to 280 days’ imprisonment, which is the base sentence. The total effective sentence is 306 days. The pre-sentence detention is 306 days (time served).

125 Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, I would have ordered a total effective sentence of two years’ imprisonment, with a 15-month non-parole period. As I understand it, there is no opposition to the ancillary orders as sought by the prosecution, which will also be made.

132 MR ALBERT: Yes, Your Honour. The sentence for traffic commercial quantity for Mr Nguyen, that will be entered in the records as a serious drug offence ‑ ‑ ‑

135 HIS HONOUR: Sorry, did you say the commercial quantity not the large commercial quantity?

^[3] See also Rahmani v The Queen [2021] VSCA 51 at paragraphs [25]-[32] (per Maxwell P and Niall JA); Quah v The Queen [2021] VSCA 164 at paragraphs [48]-[58] (per Maxwell P and Beach JA)

County Court of Victoria

DPP v Nguyen & Ors [2021] VCC 1160 (17 August 2021)