CDirector of Public Prosecutions v Huynh
[2021] VCC 175
•25 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-01795
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CANG HUYNH |
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| JUDGE: | HIS HONOUR JUDGE LYON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 February 2020 and 11 February 2021 |
| DATE OF SENTENCE: | 25 February 2021 |
| CASE MAY BE CITED AS: | CDPP v Huynh |
| MEDIUM NEUTRAL CITATION: | [2021] VCC 175 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Crimes Act 1914 (Cth)
Cases Cited:Tsang (2011) 35 VR 240; Mill (1988) 166 CLR 59; Todd (1982) 2 NSWLR 517; UE [2016] QCA 58; Alpha [2015] NSWCCA 225; Matthews and others [2014] VSCA 291; Siddiqi [2015] NSWCCA 169; Garzon [2018] VCC 484; Chen [2018] VCC 1348
Sentence:7 years imprisonment – 4 years 8 months non-parole period
S.6AAA Declaration:
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth | Mr S. Moglia | Office of Public Prosecutions |
| For the Accused | Mr N. Brown | Nelson Brown Legal |
HIS HONOUR:
1.Cang Tan Huynh, you have pleaded guilty to one charge of importing a marketable quantity of the border controlled drug, cocaine. The maximum penalty for this offence is 25 years imprisonment and/or 5000 penalty units.
2.You have admitted your prior criminal history. I will have more to say about that in the course of these sentencing remarks.
3.Your plea hearing was heard on 5 February 2020. You were represented by Mr Mortley of counsel at the initial hearing. Before the date on which I proposed to sentence you (about 21 February 2020), you dismissed your lawyers. At the next hearing on 11 February 2021, Mr Antos appeared on your behalf. Mr Antos and the CDPP (Mr Moglia appeared at all hearings for the Commonwealth) agreed on certain matters. I shall say more about those matters after I outline the circumstances of your offending.
Circumstances of Offending
4.The Crown tendered the Amended Summary of Prosecution Opening dated 4 February 2020 as Exhibit A. A summary of your offending is as follows.
5.At the time of your offending, you were living in Perth, whilst your parents lived in Melbourne. The offending period specified in the indictment is 3 February 2017 to 9 February 2017, and is alleged to have occurred between Perth, Sydney and Melbourne.
6.Prior to 3 February 2017 you arranged with a man you called Alberto, who had a Colombian phone number, to send a quantity of cocaine to your parents' address in Mitcham.
7.On 6 February 2017, a DHL consignment of paragliding equipment arrived on a flight from Chile to Sydney. It was addressed to 'Jack Ray' at your parents' address. It listed the telephone number of your partner Thi Hong Nguyen as the contact number for delivery.
8.Through the course of the day on 7 February 2017, Ms Nguyen was contacted by DHL. She told them she did not know anything about the consignment but she would get back to them after she had spoken to you. You contacted Ms Nguyen and admitted to her you had an arrangement with Alberto to import a package. Ms Nguyen contacted Alberto and relayed messages between him and you; you discussed arrangements for receiving delivery of the package and the payment of delivery fees by a prepaid credit card so that it could not be traced.
9.In the meantime, the consignment was X-rayed by Australian Border Force officers. They passed the backpack to the AFP. Within the seat to the paraglider, police found five sponges containing a mixture of cocaine powder weighing a total of 1.7 kilograms. When analysed, the powder was found to be 51 per cent pure cocaine, totalling 875 grams. This represents 437.5 times the marketable quantity of 2 grams. A commercial quantity of the drug is 2 kilograms. The estimated value range of the drug was put at $306,000 (wholesale) to $597,000 retail street value.
10.The paragliding equipment was delivered to your parents' address by way of a controlled delivery on 10 February 2017. The drugs you had imported were previously removed from the consignment by the AFP. You were present in Melbourne at your parents' address and identified yourself as Jack Ray, signed for the consignment and took delivery of the backpack. You notified your partner that the delivery had been made.
11.The evidence reveals that in a series of calls and messages, you discussed: that there was something missing from the backpack, telling Alberto about it, whether you would be blamed for it going missing and whether you would have to pay ‘200,000’ in compensation. In further messages, you and your partner discussed Alberto's demand for ‘100,0005’ by way of deposit for further consignment and that there are 'those behind him and supply him with drugs'.
12.You were arrested on your return to Perth on 17 February 2017. You were interviewed at the airport and denied the importation of the drugs or any knowledge of it. A search of your Perth home found mobile phones used to send messages to your partner and to Alberto, and photos of the foam seat in which the sponges had been located and removed.
13.In these messages and in documents found at your home, there are references to what may be interpreted as other uncharged drug transactions (both potential future, and past matters). I have not taken account of these matters in the sentencing process.
14.You were remanded in custody from the arrest date of 17 February 2017. You were charged with this offending, but the charges were later withdrawn for lack of jurisdiction. You were also charged with trafficking cannabis. You were sentenced in the District Court of Western Australia on 20 December 2018 for trafficking cannabis to a period of imprisonment of two years and three months (backdated to 17 February 2017). You served the whole period of this sentence without release on parole. The sentence expired on 16 May 2019.
15.At the expiration of your sentence in Western Australia, you were rearrested and extradited to Victoria to face the charge for this matter. You initially contested the charge but the matter was resolved at a committal hearing on 5 September 2019. You have now been in custody on this matter for 651 days, excluding today, by way of presentence detention. I shall make an order taking that period into account.
Matters Agreed between Defence the CDPP in February 2021
16.I turn now to matters agreed between the defence and the CDPP in February 2021. When the matter came back before me on 11 February 2021, your counsel and the CDPP agreed to amend the Prosecution Submissions on Sentence dated 3 February 2020 by the deletion of paragraph 10(c) – that is, the CDPP does not submit that you are responsible for payment for the drugs.
17.Further, the CDPP qualified paragraph 10(e) of its submission. That sub-paragraph reads: 'He knew the value of the drugs to be high – he spoke with Ms Nguyen of having to pay compensation for them of about "200,000".' This refers to a telephone conversation which is TI 638 with your partner Michelle sometime after it was discovered that the drugs were not contained in the consignment.
18.The CDPP emphasises that this discussion of about '200,000' occurred after the controlled delivery and after apparent communications between you and Alberto where Alberto discussed the payment of 100,000.
19.Mr Moglia submitted that there is no evidence that you knew either the quantity of drugs to be imported or the actual value of the drugs at the time of importation. Rather, the CDPP relied on this evidence as context – that is, that the intercepted conversation (TI 638) demonstrates that you expressed no surprise at the nature of the importation in your discussions with Ms Nguyen. The CDPP submits that I ought to conclude from all of the circumstances that you understood and appreciated the commerciality of the importation (and by commerciality, I am talking about the nature of the importation, and not its quantity).
20.To be absolutely clear then, the elements of the offence to which you have pleaded guilty are:
· First, that you imported a substance;
· That you intended to import a substance;
· The substance was a border controlled drug;
· You were reckless as to the substance being a border controlled drug; and
· It was a marketable quantity of that border controlled drug.
Objective Gravity and Moral Culpability
21.I turn now to consider the objective gravity of and your moral culpability for the offending. In my view, the Crown correctly identified a number of factors which demonstrate the extent of your involvement and participation in the importation, and which must be taken into account in assessing the objective gravity of your offending and your moral culpability. They are as follows:
(1) you entered an agreement with Alberto to import the drugs;
(2) you directed Alberto where to send the drugs and who should be contacted on arrival;
(3) you organised with Ms Nguyen to clear the drugs through Customs; making a payment with a prepaid credit card in an effort to make the payment untraceable;
(4) you travelled to Melbourne to take personal delivery of the consignment using a false name;
(5) you knew something of the operation at “the other end” and spoke to Ms Nguyen of 'those behind him [that is presumably Alberto] and supply him';
(6) you appreciated the risk of police interception and the possibility of engaging in a “test run to see if the route would be viable”;
(7) And finally, it is apparent the offence was conducted for financial gain and you and Ms Nguyen spoke of this as a business.
22.There was some dispute during the plea hearing on February 2020 as to whether your role could be precisely described. For example, it was submitted that you were not responsible for the distribution of the drug once it was imported into Australia. I readily accept that there is no evidence whatsoever that you had an ongoing role past the point of importation. Furthermore, there is discussion between you and Ms Nguyen, and with Alberto, which indicates that there were others involved in Columbia responsible for the supply of the drug. It is not clear whether you were working as an employee, a profit sharer in a syndicate or as a sole principal in Australia.
23.It is clear, however, that your participation in the importation was hands-on, integral and high level from the outset; before the drugs were sent to Australia and through to the point at which the importation was completed. It was you who completed each key role. It is true that you had some help from Ms Nguyen once the consignment had landed in Australia, but I can only conclude that her role was secondary to you and that she took her instructions from you as to the calls she made and the messages she sent and received.
24.I am satisfied, taking into account all of the circumstances placed before me that you intended this importation as a commercial venture, and did not simply intend to import a quantity of drugs only for personal use.
25.The principles for sentencing cases in importation cases require that:
(a) general deterrence is to be given chief weight on sentence. The offence of importation is mostly difficult to detect. The social consequences that follow the dissemination of such drugs into our community are dire and well known. Accordingly, stern punishment will be warranted in almost every case;
(b) involvement at any level must attract a significant sentence otherwise the interests of deterrence are not served; and,
(c) factors personal to the offender are therefore given less weight than might otherwise be given.
26.This is a serious instance of importation. Your moral culpability is indeed very high. The Commonwealth Crimes Act requires that in all the circumstances of your offending, I impose a sentence of adequate severity. Accordingly, your actions must be met by principles of general deterrence, specific deterrence, denunciation, just punishment and, to an extent, protection of the community.
27.The importation of drugs into Australia is not a victimless crime. Given that crimes involving offending such as yours are often difficult to detect, authorities must devote great resources to the interception of illegally imported drugs. Moreover, the negative social consequences that flow from the distribution of drugs is widespread and well known.
Personal circumstances
28.I turn now to a consideration of your personal circumstances.
29.You are 47 years of age and you were born on 1 January 1973 in Vietnam. You completed schooling to Year 10 in Vietnam. Your sister had earlier migrated to Australia, and in 1991 when you were 18 years of age, you arrived in Australia under the sponsorship scheme. Your transition to Australian life was made more difficult by the fact that you had initially had no English language skills.
30.In 1993, you contracted tuberculosis. You also became an Australian citizen. You had been studying English language intensely at the time of your illness and (although it was conceded by your counsel) incorrectly, you blame your study regime as the cause of you contracting the disease. You continued your education in Australia and completed VCE in 1995. During that time and afterwards you worked diligently in various manual jobs to save money.
31.In 2001, you opened a coffee shop business in Victoria Street, Richmond. At the same time, you became involved in a serious romantic relationship.
32.By 2008, the business was going badly. Although initially you attributed the downturn of the business to the global financial crisis, you later learned that your business partner had been, in effect, stealing from the business.
33.Over the years, you had been, what is benignly referred to as a recreational drug user. However, when you lost your business, your use of drugs became more frequent and intense. In 2009, you appeared before the Magistrates' Court on dishonesty offences and you were fined. In June 2010, you were placed on an undertaking on charges of possession of methylamphetamines and ecstasy, and on failing to answer bail. In 2011, you were imprisoned for 150 days, with another 90 days suspended, on the charge of trafficking in methylamphetamines. You breached that suspended sentence by committing further offences, and you were ordered to serve the balance of that sentence.
34.In 2013, you were again before the Magistrates' Court for possession of drugs, contravention of a suspended sentence and a community order, dealing in suspected proceeds of crime and, significantly, charges of trafficking methylamphetamine and trafficking cocaine. On 24 September 2013, you were ordered to serve 14 months' imprisonment with a non-parole period of six months.
35.Finally in this respect, in April 2014 you were again before the Magistrates' Court and you were fined for possession of a prescription drug and possession of counterfeit money.
36.After this time, you moved to Western Australia in an apparent effort to make a fresh start and rid yourself of drug influences.
37.You met your current partner (and co-accused in this matter) Ms Nguyen in 2015. You were both users of methylamphetamine and heroin. Ms Nguyen fell pregnant in December 2016. As you were both arrested and remanded in February 2017, the baby was born in custody.
38.I was told you have only seen your child briefly on one occasion, some three years ago. Your daughter Serena lives with your partner's parents in Melbourne and is now three and half years old. Again, Mr Antos stated that you feel self‑resentment for missing your daughter's milestones of development.
39.Since you have been in custody, you have completed a number of courses. I was provided with certificates from those courses. In addition, I received a letter from Anthony Giacominato, another prisoner who works as a peer listener. He is impressed by your efforts to improve your vocational prospects and work towards your rehabilitation to overcome your drug addiction. I also received a letter from Caraniche, detailing your efforts to address your drug addiction. Finally in this respect, I received evidence of drug analysis which indicate you have not used drugs whilst in custody.
40.You have reasonable English language skills, and you are able to communicate with other prisoners whilst in custody. Nevertheless, Mr Antos said that you still suffer from some social isolation. You have however done your best to assimilate with other prisoners and to participate in group-related activities. I was told that you are taking care to rid yourself of bad choices and your previous associates and you are embarking on skills and strategies to resist negative influences.
41.Mr Antos pointed to your previous work history has a cleaner, and working in a bakery and takeaway café, at a pillow factory and then setting up your own café which you ran for about eight years until its close. Even when you were in the grip of your addiction, you made some money buying and selling furniture. This venture lasted until sometime in 2016.
42.You consider yourself to still be in a relationship with Ms Nguyen, and you hope that she will return to Victoria to live you and your child once you complete your sentence of imprisonment. Ms Nguyen is currently on parole in Western Australia.
43.Your family have not visited you since you have been in custody in Victoria.
44.Your father passed away whilst you were in custody.
45.Your mother is now 85 years of age and in frail health. Her ill health prevented her from visiting you whilst you were in custody in Western Australia. It appears to have also prevented her visiting you in custody upon your return to Victoria. For much of 2020, visits were restricted to Zoom connections. Although other family members support your mother, Mr Antos told me that you feel grief and self-loathing for your absence from her.
46.Thi Nguyen pleaded guilty to the same offence for which you are before the court today. She was sentenced in the District Court of Western Australia on 16 November 2018. In that case, the sentencing judge was not satisfied that Ms Nguyen was coerced or pressured into becoming involved in the importation, although His Honour concluded that you were the instigator. It is also apparent that you involved Ms Nguyen in the transaction at a point after the drug had landed in Australia. Nevertheless, Troy DCJ concluded that you were both broadly equal participants as opposed to one partner directing the other.
47.Ultimately, your co-offender was sentenced to a period of six years' imprisonment with three years and nine months to serve. The sentence imposed on Ms Nguyen was discounted to reflect her guilty plea. Her non‑parole period was reduced from four years to reflect cooperation with the police although that cooperation lacked practical utility.
48.The principle of parity requires me to have regard to and take into account the sentence imposed on your co-offender. Parity is sometimes referred to as equality in sentencing but it does not mean that I ought or must impose the same sentence upon you as your co-offender received. There are significant differences between your personal circumstances, particularly on the question of your previous significant prior criminal offending. Nevertheless, I will have regard to the principle of parity when I come to sentence you.
49.Further factors I must consider in this case are the principles of delay and totality. Because of the circumstances in which they arise, it is convenient to deal with them together.
50.As I have already outlined, you were arrested at Perth airport on 17 February 2017 and charged with this offence (although the initial charge was withdrawn from lack of jurisdiction in Western Australia) and with the other state offence of trafficking cannabis, for which you were sentenced to a period of two years and three months' imprisonment. On 16 May 2019, the date of your release from prison in Western Australia, you were arrested and extradited to Victoria to face this charge.
51.You have now served over 651 days' pre-sentence detention excluding today in relation to this matter. Mr Mortley, who initially appeared on your behalf, submitted that your circumstances amounted to a delay in the prosecution of this charge.
52.Mr Mortley submitted that I should take into account the fact that you have been continuously imprisoned since 17 February 2017, and were unable to get the benefit of any concurrency on the separate sentences. Furthermore in this respect, although the District Court Judge ordered that you were eligible for parole from the date of sentence on the drug matters in Western Australia (that is 20 December 2018) ,you were never granted parole.
53.Mr Moglia, who has prosecuted this matter on behalf of the Commonwealth through both the first and second hearings, submitted that delay was a minimal factor in this case as you were subjected to court processes which prevented you from realistically being charged with the Commonwealth offence until you were extradited to Victoria at the expiration of your sentence in Western Australia.
54.Rather, Mr Moglia submitted that the real question for my consideration was one of totality. Mr Moglia referred to the case of Tsang (2011) 35 VR 240; which considered and applied the High Court case of Mill (1988) 166 CLR 59. The case of Mill requires me, as the sentencing, to take into account the earlier sentence, and the aggregate term which will result from the sentence passed by me, as relevant matters necessary to be taken into account in determining the head sentence in this matter.
55.The principle of totality in this instance:
Reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. (Mill)
56.I have read the sentencing remarks of Judge Gillan of the District Court of Western Australia dated 20 December 2018. Those remarks disclose that on 4 February 2017 your brother Kevin was arrested and found to be in possession of over 15 kilograms of cannabis. The police found evidence of text messages and telephone calls which implicated you as having an equal role with your brother in that matter.
57.I conclude that the circumstances of your offending in Western Australia, were drug matters, and that they occurred in the very period during which you were conducting the importation of the cocaine in this matter. Referring back to the cases of Mill and Todd (1982) 2 NSWLR 517 (which is referred to in Mill) and having regard to the reasoning in Tsang, I conclude that I must take into account the earlier period of imprisonment served in Western Australia in fixing a sentence for this offending. In other words, I must have regard to the principle of totality.
58.In addition to the matters to which I have already referred, the Commonwealth Crimes Act requires me to have regard to a number of other matters, so far as they are relevant.
59.The first requirement is that I must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Thereafter, I must take into account (relevant to this case) the following factors:
· the nature and circumstances of the offence;
· the degree to which you have shown contrition for your offending;
· the fact of your plea of guilty;
· the degree to which you have cooperated with law enforcement agencies and investigation of the offence or other offences;
· the specific and general deterrent effect of the sentence to be imposed;
· the need for adequate punishment for your offending;
· your character, antecedents, age, means and physical or mental condition;
· your prospects for rehabilitation; and
· the probable effect of the sentence imposed on any of your family or dependents.
60.There is no particular evidence of remorse. It is apparent that you did not particularly cooperate with the authorities upon your arrest. You denied involvement in the importation when you were arrested in February 2017. Mr Mortley submitted that I could find evidence of contrition in the plea of guilty and by the courses you have undertaken whilst in custody. Essentially, Mr Mortley asked, what more could you do from your position in custody? Whilst it is commendable that you have strived to address your drug issues and whilst pleas of guilty in appropriate cases must always be encouraged, there is nothing about either of these matters which necessarily or automatically suggests that you are remorseful for your actions. At best, they may indicate that you are developing some insight into the need to rehabilitate.
61.Nevertheless, I consider the plea of guilty to have utilitarian benefit in this case. The plea of guilty was made in August 2019 without the need for a contested committal. I shall take it into account in mitigating your sentence.
62.The Crown submits significant weight should be placed on specific deterrence in this case. You have relevant prior convictions; you have served periods of imprisonment in the past; there has been no evidence of attempts to address your risk of offending and (the Crown submits) that the future risk of your offending is, by implication, real.
63.It is apparent that your attempts to address your drug use have taken place in the confined environment of prison. That means that your attempts to address your drug offending are recent and are yet to be tested by the open environment of the community outside prison.
64.Whilst I am prepared to find that you still have some prospects for your rehabilitation, those prospects remain guarded. It will take some real determination by you together with the support and monitoring of the parole system (that is, if or when you are granted parole) to truly determine your prospects for rehabilitation.
Comparative cases
65.The Crown provided me with a table of comparative cases. As you heard during the conduct of the plea in 2020, the prosecutor spent time discussing each of the cases within the table in order to provide me with some comparison to your own position.
66.These comparative cases from across different courts throughout Australia are indeed useful in determining the appropriate sentence to impose in this case:
· First, I refer to the case of UE [2016] QCA 58 from Queensland. It was a plea of guilty to importing 629.7 grams of methylamphetamine (that is 314 times the marketable quantity), sentenced on appeal to six years with three years eight months to serve. The appellant's role was described as more than that of a bare courier. Rather, his role was significant and involved a measure of planning. He was sentenced on the basis that he did not know the precise nature of the substance imported but was aware of the risk it might be methylamphetamines. The appellant cooperated extensively, made an early plea of guilty and had no criminal history.
· The case of Alpha [2015] NSWCCA 225 - plea of guilty to importing 684 grams of cocaine (342 times the marketable quantity). The offender was given money to purchase cocaine on behalf of three others. The offender's father sourced the cocaine. It was described as serious example of an importation of drugs where the offender 'brought together a sophisticated, organised overseas criminal enterprise concerned with the exporting of illicit drugs and a sophisticated organised Australian criminal enterprise designed to import such drugs'. With a 25 per cent discount for the early plea of guilty, 5 per cent discount for past assistance and 15 per cent discount for future assistance, the appellant was sentenced to six years with three years and eight months to serve.
· There is the case of Matthews and others [2014] VSCA 291. A plea of guilty to importing 135 grams of ecstasy (270 times the marketable quantity). The importation was part of a well-established business of trafficking drugs. The defendant had no prior convictions. Earliest plea of guilty and indicative of remorse with substantial admissions to the police. Verdins factors were applicable. The appellant was sentenced to four years and three months with two years and six months to serve.
· Then there was the case of Siddiqi [2015] NSWCCA 169 from New South Wales. This was a verdict of guilty after trial to importing 1480 grams of cocaine. That is 740 times the marketable quantity. The offender was sentenced as an active participant in the plan to import the drug. He was 19 years of age and had a Children's Court criminal record. He was sentenced to seven years and six months with three years and nine months to serve.
67.I refer to two further sentencing cases:
· First, Garzon [2018] VCC 484. It was a plea of guilty to importing 870 grams of pure cocaine which was just over half the commercial quantity and 435 times the marketable quantity in a single consignment. The cocaine had a wholesale value of $216,000 and a street value of $579,000. The offender's role was that of a courier or conduit. The offender had no prior convictions, was 23 years of age and a male motivated by financial gain. Character references were tendered. He exhibited remorse. He was an unlawful non-citizen at the time of offending. He faced the certainty of deportation and was a youthful offender. He was sentenced to seven years with five years to serve.
· Then there was the case of Chen [2018] VCC 1348, a sentence of the Victorian County Court. The offender was found guilty after trial of importing 1.1 kilograms of heroin. The offender's role was to recruit consignees for delivery of the five parcels, assist with tracking and delivery of the consignment and communication with the two co-offenders as to the status of the importations. Chen was sentenced to eight years six months with six years to serve.
68.In the end, however, I cannot be unduly influenced by the sentences imposed in other cases. Rather, I must consider the circumstances of your case, taking into account the objective factors and the matters personal to you and then make my own determination according to the sentencing principles.
69.In the end, the sentence I impose upon you, taking account of all of the factors that I have outlined so far, must not lose sight of the fact that you have now been in custody continuously for four years since your arrest on these matters, and that you were sentenced in the District Court of Western Australia in December 2018, and yet you are now only coming up for sentence in this matter today. I say this to emphasise that I have not lost sight of the need to apply the principle of totality in this sentencing exercise. The sentence is as follows.
Sentence
70.On the charge of importation of a marketable quantity of a border controlled drug, you are convicted and sentenced to a period of imprisonment of seven years. That sentence commences today.
71.I order that you serve a non-parole period of four years and eight months.
72.I declare the period of 651 days' pre-sentence detention reckoned as already served.
73.So Mr Huynh, I am obliged to explain the effect of the sentence to you. Although the sentence starts today, it will take into account the fact that you have served 651 days and you will be eligible for parole, taking into account those factors after a minimum serving period of four years and eight months. Whether you get parole or not will be a matter for the authorities and much will depend on your behaviour and attitude whilst in prison.
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