Director of Public Prosecutions (Cth) v Dao
[2020] VCC 63
•18 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01706
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| TRONG THUAN DAO |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February 2020 | |
DATE OF SENTENCE: | 18 February 2020 | |
CASE MAY BE CITED AS: | DPP (Cth) v Dao | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 63 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Import a marketable quantity of a border controlled drug - MDMA - possess a marketable quantity of a border controlled drug - GBL - import a prohibited import - tablet press - possess a prohibited import - steroids
Legislation Cited: Criminal Code 1995 (Cth); Customs Act 1901 (Cth); Sentencing Act 1991 (Vic)
Cases Cited:R v Nguyen (2010) 205 A Crim R 106; Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673; Dunning v Tasmania [2018] TASCCA 21; Director of Public Prosecutions v Maxwell [2013] VSCA 50; Matthews v R; Vu v R; Hashmi v R [2014] VSCA 291.
Sentence: Charges 1 and 2: Imprisonment for a period of 4 years and 6 months with a non-parole period of 3 years
Summary Charge 3: Fine of $3,000
Summary Charge 6: Fine of $1,500
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S Pillai | Commonwealth Director of Public Prosecutions |
| For the Defence | Mr R de Kretser | James Dowsley & Associates |
HER HONOUR:
1 Trong Thuan Dao, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, namely 3,4-methylenedioxymethamphetamine (‘MDMA’), contrary to subsection 307.2(1) of the Criminal Code (Cth) and one charge of possess a marketable quantity of a border controlled drug, namely gamma-butyrolactone (‘GBL’), reasonably suspected of having been unlawfully imported contrary to subsection 307.9(1) of the Criminal Code (Cth). The maximum penalty for each of these offences is 25 years’ imprisonment and/or a fine of 5,000 penalty units.
2 You have also consented to the uplifting of, and pleaded guilty to, one charge of import a prohibited import, namely a tablet press, contrary to subsection 233(1)(b) of the Customs Act (Cth) and to one charge of possess prohibited imports, namely trenbolone acetate, testosterone enanthate, trenbolone enanthate and oxandrolone, contrary to subsection 233(1)(d) of the Customs Act (Cth). The maximum penalty for each of these offences is a fine of 1,000 penalty units.
Circumstances of offending
3 The circumstances of your offending are set out in detail in the Summary of Prosecution Opening upon Plea and I sentence you on the basis of the facts set out in that document. I summarise those briefly.
4 The offending the subject of Charge 1 on the indictment, importation of a marketable quantity of MDMA, relates to mail packages intercepted by Australian Border Force (‘ABF’) officers on 15 April 2018, 17 May 2018 and 20 June 2018.
5 On 15 April 2018, ABF officers at Melbourne Airport intercepted a package from the Netherlands addressed to “Thuan T Dao” at your home address (‘the April package’). The declaration described the contents as including a number of sewing items and these were observed when the package was examined. Among the sewing items ABF also identified four silver foil heat-sealed bags containing a number of pink and blue tablets. Subsequent analysis of the tablets identified the pink tablets contained 49.1% MDMA and the blue tablets contained 43.1% MDMA. In total, the April package contained 230.1g of pure MDMA.
6 On 17 May 2018, ABF officers at Melbourne Airport intercepted a further package from the Netherlands also addressed to you at your home address (‘the May package’). The contents of this package were not declared. Examination of the package revealed 123 yellow tables in a silver foil bag. Forensic analysis revealed the tablets contained 43% MDMA. In total, the May package contained 20.77g of MDMA.
7 On 20 June 2018, ABF officers at Sydney Airport intercepted a package from Germany addressed to “Tina Nguyen” at an address in Vermont (‘the June package’). The declaration stated the package contained FIFA world cup trading cards. A foil package was found among the trading cards which contained a brown crystalline substance which forensic analysis revealed contained 77% MDMA. In total, the June package contained 76.5g of MDMA. Although Tina Nguyen is your partner, it is not alleged that she was involved in, or aware of, your offending.
8 Analysis of your personal devices revealed: contacts named ‘MDMA Diana’ and ‘MDMA’; a message exchange with the contact saved as ‘MDMA’ about you purchasing their product; that you used the DHL website to track the June package; and that you visited a website which had a domain name that included ‘buyMDMAforsale’.
9 The marketable quantity of pure MDMA is 0.5g. The combined total of pure MDMA found in the three packages is 327.37g and therefore represents 654 times the marketable quantity.
10 The offending the subject of Summary Charge 3, importation of a prohibited import, relates to pill press found in a wooden crate intercepted and examined by ABF officers at Sydney airport on 30 May 2018. The consignee was marked as ‘Thuan Dao’ of your address (‘the consignment’). The consignment was repacked and released for delivery. The pill press was subsequently seized when ABF executed a warrant at your home.
11 Analysis of your phone also revealed evidence consistent with you researching and ordering the pill press, including: a web search for ‘MDMA pressed’; a screenshot of a website with a pill press; a screenshot of a pill press machine for sale; and a screenshot of an email conversation in which you were advised that the consignment was being held by customs. You did not have authorisation to import a pill press.
12 The offending the subject of Charge 2 on the indictment and Summary Charge 6 relates to items found at your home when ABF officers executed a search warrant on 4 July 2018.
13 Under the bathroom sink, officers located a blue bottle containing 727g of 98.4% purity GBL, equating to a total of 715.3g of pure GBL. As a marketable quantity of GBL is 2.0g, the quantity of GBL found represents an amount 357.7 times the marketable quantity. Analysis of your personal devices revealed that you had visited a website titled ‘Buy GBL Cleaner, Buy GBL, Gamma Butyrolactone For Sale - GBL Source’ and on that basis the prosecution alleges that the GBL can reasonably be suspected to have been unlawfully imported. This conduct is the subject of Charge 2, possession of a marketable quantity of a border controlled drug reasonably suspected to have been unlawfully imported.
14 At your home, ABF officers also located various containers, vials and tablets containing anabolic or androgenic substances, including: the equivalent of 28.05g pure trenbolone acetate in a container marked ‘Tren A 30g’; the equivalent of 5.6g pure trenbolone enanthate in a contained marked ‘Tren E 30g’; and 105.8g of pure testosterone enanthate in a container marked ‘Test E 150g’. Other substances, including oxandrolone, were also identified but the prosecution could not provide a pure net weight. You subsequently admitted to importing steroids from China using the Alibaba website and claimed they were for personal use. You did not have authorisation to import these substances. This conduct is the subject of Summary Charge 6, possession of prohibited imports.
Procedural history
15 You were interviewed at your home on two occasions on 4 July 2018. You admitted to ordering the pill press from China through the Alibaba website and said that it was to be used to make steroid tablets for your own use. At the time, you were injecting 2ml of steroids daily. The other drug paraphernalia was also for use in manufacturing steroids for personal use. You denied importing GBL and MDMA and said the container marked MDMA in your bedroom was given to you by a man called Alex who was going to pay you $500 to hold it for a few days. You said that you did not import the GBL but bought it for $200 at a nightclub from a man called Steve and were using it to help you sleep.
16 Subsequent forensic analysis of your phone and computer tower revealed various contacts, message exchanges, internet searches, photographs, videos, and files related to drugs and steroids. Inquiries did not identify anyone by the name Alex.
17 You were charged on 14 March 2019. On 23 August 2019, the day of the contested committal hearing, you indicated that you would enter pleas of guilty to the charges now on the indictment.
Personal circumstances
18 You were 26 years of age at the time of the offending and are now 28 years old. You have no criminal history.
19 You were born in Vietnam in 1991. Your parents separated when you were six years old and from then you lived with members of your mother’s family. You moved to Australia in 2007 when you were 16 years old and lived with your mother, maternal aunt and her family. You initially attended an English language school and later completed Years 10 to 12 at local secondary schools. You experienced bullying at school. When you were about 16 years old you started working casually as a waiter and as a cleaner at the market on weekends. After leaving school you worked as a car detailer, grocery store assistant, delivery driver, and warehouse assistant.
20 At 18 years of age you started attending gym regularly and developed an obsession with fitness and body image. The connections you made at the gym led you to use and abuse steroids.
21 You became an Australian citizen at the age of 20.
22 When you were about 22 years old you moved out of the family home because of difficulties with your stepfather. Shortly after this you commenced taking ecstasy in social situations, such as parties. Your drug use escalated when you were 25 years old and started using cocaine in addition to ecstasy and GBL.
23 In February 2018, shortly before your offending commenced, you moved back to your mother’s home following a breakdown in her relationship with your stepfather.
24 The offending occurred in the context of your obsession with your own body image and your abuse of drugs, including ecstasy, GBL, and steroids.
25 After your arrest, you started working as a forklift driver in a warehouse in December 2018 but resigned two weeks before the plea hearing due to your belief that you would likely be imprisoned for your offending. You were working eight-hour shifts, five to six days per week. You used the income to support your mother.
Plea
26 You instruct that you have been drug free since you started your employment at that warehouse. You provided five drug screens performed between 20 December 2019 and 31 January 2020, all of which were negative.[1]
[1]The prosecution commented on the creatinine levels but did not provide any evidence in relation to same.
27 You wrote a letter of apology to the court in which you express regret, remorse, embarrassment, disappointment and shame for your offending, which you describe as selfish. At the time of the offences, you say you were experiencing difficulties with your self-image, drug addiction, work, and family. You think about your actions daily and say you have learned from your mistakes. For the last 18 months you have tried to take a different path to a better life. You plan to continue on that path in the future and to surround yourself with positive influences. You say that you will permanently lose your job if you go to jail and will find it difficult to be separated from your family and partner.
28 You were supported in Court by your partner, mother, aunt and cousins, as well as some friends. Your partner is a dental nurse and is shortly to start studying a nursing degree. It was submitted that she will continue to support you and be a positive influence on your life.
29 Your mother, Hien Phan, provided a letter of support in which she blames herself for your offending. She describes suffering physical abuse at the hands of your biological father and feels she burdened you when you became an adult. She says your offending occurred at a time when her second marriage was ending and that this caused you financial and emotional stress. She believes your offending was a ‘one-off’ and says you deeply regret your offending.
30 In relation to the gravity of the offending, it was submitted that the sole purpose of the importation and possession was not for financial gain, as some of the MDMA was for personal use, the steroids and GBL were for personal use, and the pill press was imported for the purpose of manufacturing steroids as the MDMA imported was already in pill form. The other items found in your room were consistent with the manufacture of steroids. In addition, it was submitted that there was no evidence of enrichment.
31 Your counsel submitted that the mode of offending was not complicated as you arranged for the packages to be sent to your own home and the home of your girlfriend; you did not use false identities, re-routing or a post office box; and you were not part of a large drug trafficking operation.
32 Your counsel relied on your plea of guilty prior to any witnesses being called at committal, on your prior good character, your expression of remorse in your letter of apology, on the strong support you have in the community from family and friends, and on the fact that you have been drug free, not offending further, and working responsibly in the community for over 18 months since your arrest. For these reasons, it was submitted that you have good prospects of rehabilitation.
33 Your counsel conceded that you fall to be sentenced to a term of imprisonment with a non-parole period but submitted that given your age and evidence of rehabilitation thus far, there should be a greater than usual gap between the head sentence and the non-parole period.
Prosecution submissions
34 The prosecution submitted that the Court could infer from the evidence concerning your online searching for instructions on how to make MDMA into pills, that the pill press was imported also for the purpose of manufacturing MDMA. It was submitted that there was no evidence before the court of your being addicted to MDMA or GBL, and that your use of the drugs should carry little weight as a mitigating factor. In relation to Charges 1 and 2 it was submitted that your offending was motivated by a desire for financial reward. It was conceded that you acted alone in importing the MDMA. It was submitted that given the quantity of the drugs involved in Charges 1 and 2, the gravity of the offending was such that notwithstanding your relatively young age, absence of prior convictions, and early plea of guilty, the primary sentencing considerations are those of denunciation, just punishment and general deterrence and that the only appropriate sentence was one of the imposition of a term of imprisonment with a non-parole period. It was submitted that there should be some cumulation in respect of the sentences imposed on Charges 1 and 2.
Sentencing principles
35 In sentencing you, I have had regard to the relevant Commonwealth sentencing principles. The Court must impose a sentence that is of a severity appropriate in the all the circumstances,[2] and must specifically take into account all matters listed in section 16A(2) of the Crimes Act 1914 that are relevant and known to the court.
[2]s 16A(1) Crimes Act 1914 (Cth).
36 Importing border controlled drugs, and possessing border controlled drugs which are reasonably suspected of having been unlawfully imported, is considered to be very serious offending, as is indicated by the maximum penalty of 25 years’ imprisonment for each of Charge 1 and 2.
37 In relation to importation, the maximum penalty reflects Parliament’s determination that the importation and distribution of illicit drugs in Australia is often difficult to detect and causes great social harm.[3] Two important indicators of the objective criminality of the offending are the role played by the offender and the scale of the importation/quantity of the drugs possessed, although the quantity involved is not a determinative factor.[4]
[3]R v Nguyen (2010) 205 A Crim R 106, 127 [72(g)] approved and adopted in Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 681–3, [34] (Maxwell P).
[4]Ibid [72].
38 General deterrence is a principal sentencing consideration in relation to Charge 1. The sentence must be such as to deter other would-be drug importers from engaging in importation and to demonstrate that if they do so they face severe punishment.
39 Sentences in relation to possession of GBL may be lower than those in respect of other drugs because they are worth less on the market than other drugs.[5]
[5]Director of Public Prosecutions v Maxwell [2013] VSCA 50; (2013) 228 A Crim R 218.
40 In sentencing offenders, general deterrence and denunciation are to be given considerable weight, and, in the main, must overshadow mitigatory factors and circumstances including a lack of prior convictions.[6] The weight to be given to good character will be less where the absence of prior convictions might have assisted in avoiding the suspicion of authorities, although the prosecution did not allege that this applied to you.
[6]Dunning v Tasmania [2018] TASCCA 21.
41 On the authorities, any perception that the purchase of drugs by post is somehow less serious than traditional forms of importation must be dispelled by sentences which adequately reflect the need for general deterrence.[7]
[7]Matthews v R; Vu v R; Hashmi v R [2014] VSCA 291, [75].
42 In sentencing you overall, I am required to have regard to the sentencing principles of specific deterrence, totality, parsimony, and your prospects of rehabilitation.
Analysis
43 I turn first to Charge 1. Objectively, your offending is serious. The conduct involves three importations over as many months. Whilst not particularly sophisticated, it was successfully planned and executed by you alone, and the quantities involved suggest that the purpose of the offending was principally for profit by you. Although there was evidence from the bar table that you developed an addiction to steroids, there was no evidence before me concerning your addiction to steroids or to other illicit drugs. The total quantity of MDMA imported was very substantial: 327.37 grams of pure MDMA in total, which represents 654 times the marketable quantity and over half the amount comprising a commercial quantity of that drug. On two occasions the imported drugs were concealed in other items declared as children’s sewing items and trading cards. In the first and second importations, the MDMA came in tablet form. In the third importation the MDMA came in the form of a brown crystalline substance. When combined with your online research on how to manufacture MDMA, and your possession of a pill press, the prosecution suggested that I could infer that you intended to take up the manufacture of MDMA. However, this is not expressly part of the offence charged, and in any event, I am not satisfied beyond reasonable doubt that you had that intention. I therefore put that matter aside when assessing the seriousness of your offending.
44 The offending the subject of Charge 2, possession of GBL, is also serious because it involves a quantity of 715g, which is 357.7 times the marketable quantity and the equivalent of two-thirds of a commercial quantity of that drug. On the other hand, there was no evidence provided to me to contradict your claim that the amount of GBL found in your possession was worth $200.
45 In relation to Summary Charges 3 and 6, I accept that you were abusing steroids at the time of offending.
46 You were a relatively young man without prior convictions at the time of offending, which appears to have occurred in the context of your abusing steroids and other drugs. I consider that you are entitled to a significant discount for your relatively early offer to plead guilty. Your plea has utilitarian benefit in sparing the community and the witnesses the expense and inconvenience associated with a trial. It is also evidence of remorse. You have also expressed remorse for your offending in your letter to the Court. I note that you tendered clean urine screens. I accept that since late 2018 you have been drug free, working full-time as a forklift driver, and have not reoffended. Given your relative youthfulness, education, recent work history, and family support, I consider that your prospects of rehabilitation are very good, provided you remain drug free.
47 However, denunciation, general and specific deterrence, and just punishment also loom large in the sentencing process in your case, along with the principles of totality and parsimony.
48 I propose to sentence you as follows:
Sentence
49 Would you please stand.
50 On Charge 1, you are sentenced to three years’ and six months’ imprisonment. That is the base sentence.
51 On Charge 2, you are sentenced to 18 months’ imprisonment. I direct that 12 months of the sentence imposed on Charge 2 be served cumulatively upon the base sentence. The total effective sentence is one of four years’ and six months’ imprisonment with a non-parole period of three years.
52 On Summary Charge 3, you are convicted and fined $3,000.
53 On Summary Charge 6, you are convicted and fined $1,500.
54 I indicate that pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a total effective sentence of seven years’ imprisonment with a non-parole period of five years.
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