Director of Public Prosecutions (Cth) v Thong
[2025] VCC 189
•28 February 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01038.1
| THE DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| CHANNARA LY THONG |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 October and 16 December 2024 | |
DATE OF SENTENCE: | 28 February 2025 | |
CASE MAY BE CITED AS: | DPP (Cth) v Thong | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 189 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Attempt to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported – Traffick in a commercial quantity of a drug of dependence – Low level involvement in the criminal hierarchy – Examples of mid-range and upper low-range offending conduct – Plea of guilty following sentence indication hearing – Forensically early pleas of guilty – Socially disadvantaged background – History of substance abuse – No criminal history – Reasonably good prospects of rehabilitation – Non-Australian citizen – Social isolation in custody a mitigating circumstance – Parity
Legislation Cited: Sentencing Act 1991
Cases Cited:R v Cooper (1998) 103 A Crim R 51 – Bugmy v The Queen (2013) 249 CLR 571 – Marrah v The Queen [2014] VSCA 119 – Sabbatucci v The Queen [2021] VSCA 340 – DPP v Herrmann [2021] VSCA 160
Sentence: Total effective sentence of 13 years’ imprisonment with a non-parole period of 7 years and 10 months
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APPEARANCES: | Counsel | Solicitors | |
| For the DPP | Mr A Sprague |
| |
| For the Accused | Ms L Cornwell (9 October 2024 and 16 December 2024) Ms A Murrell | Stary Norton Halphen Lawyers |
HIS HONOUR:
1Channara Ly Thong, you have pleaded guilty to an indictment containing one charge of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported (Charge 1)[1] and two charges of trafficking in a commercial quantity of a drug of dependence (Charge 2 and Charge 3).[2]
[1] Contrary to s 11.1(1) and s 307.8(1) of the Criminal Code (Cth).
[2] Contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (‘DPCSA’).
2The maximum penalty for attempt to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported is life imprisonment.[3] The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years’ imprisonment.[4]
[3] Pursuant to s 11.1(1) and s 307.8(1) of the Criminal Code (Cth).
[4] Pursuant to DPCSA s 71AA(1).
The facts
3The prosecution filed a summary of prosecution opening for plea dated 21 November 2024,[5] which I am told by your counsel I can treat as a statement of agreed facts for the purposes of sentencing you.
Overview
[5] Exhibit (‘Ex’) P1.
4You and your co-accused Hung Nguyen, Hien Pham, Justin Barnett and Benjamin Wilson were involved with a consignment containing a commercial quantity of methamphetamine. The consignment was unlawfully imported into Australia by Barnett and Wilson and was intercepted and substituted by police before it came into your possession.
5The prosecutor summarised your role to include assisting in the handling and recording of the consignment and leaving the storage unit where it was stored with one jug of liquid obtained from the consignment, before returning later that evening. (Charge 1)
6An extensive array of material and equipment for the processing and trafficking of drugs was later found at Nguyen’s house, where you were staying, along with a large quantity of cocaine and of methamphetamine. (Charges 2 and 3)
Background – events prior to your involvement
7On 17 December 2022, International Cargo Express, a logistics provider, received a submission relating to a new importation described as a consignment of ‘Canola Oil’ to be shipped from Vancouver to Melbourne.
8In Vancouver on 20 January 2023, the Canadian Border Services Agency intercepted the consignment, which was in a shipping container with 18 pallets of ‘Sunfrie Canola Oil’. Each pallet contained 60 17.3 litre jugs. Presumptive testing identified the jugs in three of the pallets (180 jugs in total) contained liquid methamphetamine weighing approximately 2,907kg. The remaining 15 pallets contained canola oil.
9The methamphetamine was seized in Canada and the Royal Canadian Mounted Police reconstructed the entire consignment with legitimate canola oil, before shipping the consignment to Melbourne.
10Australian authorities later analysed the seized liquid to confirm the presence of methamphetamine. The minimum net weight of liquid present was 2743.6kg, with a calculated minimum purity of 22.9%. The minimum total pure weight of methamphetamine in the three relevant pallets was 629kg.
11On 26 February 2023, Barnett and Wilson arranged to ‘start operations’ the next day.
12On 1 March 2023, the substituted consignment arrived in Melbourne. On 2 March 2023, the Australian Federal Police (AFP) reconstructed the consignment a second time, placing an inert substance in the jugs of the three relevant pallets, with the remaining still containing canola oil.
13Between 2 March and 10 March 2023, Barnett and Wilson facilitated the delivery of the consignment from Port Melbourne to Norman Carriers, a freight storage facility in Laverton. Between 13 March and 6 April 2023, Barnett and Wilson arranged the on-delivery of the substituted consignment. As a result, the consignment was relocated from Norman Carriers to Bayside Storage, a facility in Moorabbin, on 16 March 2023.
Your initial involvement
14At 3:28pm on 18 May 2023, Barnett arranged for the 16 pallets at Bayside Storage to be transported to AP Trading in Sunshine.
15On 22 May 2023 at 10:00am, police observed the consignment being loaded onto a truck driven by a man named Dharni. It was taken to StoreLocal, a storage facility in Sunshine, where it arrived at 11:30am.
16At 11:19am, you, Nguyen and another man named Huang attended the StoreLocal in a Nissan Navara, from which you unloaded a pallet jack, a wheeled device used to lift and move pallets.
17At 11:26am, Pham arrived and attended the StoreLocal office to request forklift assistance to move the consignment.
18At 11:28am, Pham and Nguyen exchanged the following messages:
Nguyen: ‘the other two guys already there brros / they at our storage unitn [sic].’
Pham: ‘easy / we inside / waiting on the people for forky / you want to give them a call / actually they’ll probably know / am I supposed to put the pin even tho there’s people in office.’
The prosecution’s case is ‘the other two guys’ were you and Huang, who had previously arrived in the Nissan with Nguyen.
Unloading of consignment at StoreLocal
19At 11:30am, a truck arrived at the StoreLocal.
20At 11:36am, Pham and Nguyen exchanged the following messages:
Pham: ‘we opened it.’
Nguyen: ‘meet up with the other two boys.’
Pham then said he could see Unit 720 but not ‘the boys’.
21At 11:43am, Pham and Dharni opened the side curtains of the truck’s trailer and commenced unloading the consignment. One of the pallets collapsed, causing boxes from the consignment to fall to the ground.
22At 11:49am, Pham opened the roller door to the loading dock where he met you and Huang. StoreLocal staff provided you all with a second pallet jack.
23From 11:57am to 1:10pm, you, Pham and Huang unloaded the pallets into Unit 720.
24At 12:33pm, Nguyen attended StoreLocal to meet with you. He left at 12:43pm, leaving the three of you to unload the remainder of the consignment.
25At 1:02pm, CCTV recorded you raising your hands whilst looking into Unit 720. The prosecution’s case is that you were capturing images of the unit’s interior on your mobile telephone.
26At 1:18pm, the truck departed StoreLocal.
27At 1:28pm, CCTV recorded Nguyen returning to StoreLocal in the Nissan and entering Unit 720 carrying a set of scales, before exiting at 1:55pm.
28At 2:16pm, Nguyen attended the StoreLocal’s loading dock. You then exited Unit 720 and walked to the loading dock, where Nguyen gave you a jute shopping bag. You re-entered Unit 720 and closed the door. Nguyen then departed.
Weighing and recording the consignment
29Between about 1:10pm and 3:38pm, you and Huang were primarily located in Unit 720. From 2:21pm to 3:38pm, you both marked the boxes with their individual weights. The boxes marked were those that had been substituted; the boxes containing untampered canola oil were not marked.
30At 3:40pm, you left Unit 720 carrying one jug from the consignment, accompanied by Huang. You both waited in the StoreLocal loading dock until you were picked up by Nguyen.
31At 8:26pm, you, Pham and Huang returned to StoreLocal.
32At 3:05pm on 5 June 2023, you, Nguyen and Huang were observed returning to Nguyen’s house after attending several locations. You retrieved numerous plastic and paper bags from the rear of the vehicle.
Search warrants and arrests
33At 5am on 14 June 2023, police executed a series of search warrants. You and Nguyen were located at Nguyen’s residence in Sunshine North and were arrested. Police discovered a clandestine laboratory in the garage, in which elevated volatile organic compound levels were detected.
34Police seized approximately 67 items from the residence that were all consistent with the operation of a laboratory and would be sufficient for the recrystallisation of methamphetamine. The items included glassware, plastic containers filled with acids or other decanted liquids and solids, filter paper, gas stoves and burners, pH test strips, fans and dehumidifiers.
35The seized items also included an insulated vessel labelled ‘Nespresso’ which contained liquid and solid components. The decanted liquid component was found to contain methamphetamine and water.
36After processing the clandestine laboratory, police seized additional drugs and other items, including glassware, believed to be used in drug manufacture. Substances later tested were found to be 9.717kg of pure cocaine (Charge 2) and 287.6g of pure methamphetamine (Charge 3).
37Forensic analysis identified your fingerprints on a clip seal bag containing 563.1g of cocaine, an acetone can, and various pots, containers, beakers and funnels.
38You were taken to AFP headquarters and subsequently interviewed. You admitted your status as a foreign national and your phone number, but otherwise made no comment.
Search of Unit 720 at StoreLocal
39The remainder of the consignment — 120 containers of substituted material, less the one removed by Pham on 27 May 2023 — was located at StoreLocal and seized, along with other pallets containing canola oil.
40The quantity of drugs which you attempted to possess was 419kg of pure methamphetamine in approximately 1829kg of liquid. This represents two-thirds of the total quantity contained in the original consignment (629kg pure in the 180 containers on three pallets) (Charge 1).
Offence seriousness
41Attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported and trafficking in a commercial quantity of drugs of dependence are very serious criminal offences, as indicated by their respective maximum penalties of life imprisonment and 25 years’ imprisonment. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed in Charges 1, 2 and 3.
42The Victorian Court of Appeal has reiterated that the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of the offences, it will always be of importance.[6] All things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[7] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[8]
[6] See eg DPP (Cth) v KMD [2015] VSCA 255 [36] (‘KMD’), [64](Maxwell P, Weinberg and Beach JJA); DPP v Fatho and Ors [2019] VSCA 311 [70] (Maxwell P, Priest and Beach JJA) (‘Fatho’); Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1, 7–8 [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’).
[7] Fatho [70]. See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); KMD 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143.
[8] Gregory 8 [24].
43It is also relevant for me to consider the harm that is inflicted on the community by offences involving trafficking in drugs of dependence such as methamphetamine and cocaine.[9]
[9] R v Pidoto and O’Dea (2006) 14 VR 269, [45] (Maxwell P, Buchanan, Vincent and Eames JJA); Wong v The Queen (2001) 207 CLR 584, 609 [70] (Gaudron, Gummow and Jayne JJ); R v D’Aloia [2006] VSCA 237, [56] (Nettle JA).
44So far as Charge 1 is concerned, you attempted to possess a very large quantity of methamphetamine. The consignment contained 419kg of pure methamphetamine, which is 558 times the commercial quantity threshold for that drug of 0.75kg. As demonstrated by the prosecution submissions for sentence indication dated 7 October 2024,[10] this quantity is estimated to be worth between $75 million at wholesale level, to approximately $149 million at street value.
[10] Ex P4.
45So far as Charge 2 is concerned, once again, a very large quantity of cocaine was seized, 9.717kg pure, which is 38.8 times the commercial quantity threshold for that drug of 250g pure. Whilst I recognise you have been charged with a single date offence, this quantity supports the prosecutor’s submission I can draw the inference you were motivated by financial gain. However, there is no evidence you acquired significant wealth from your drug related offending conduct or were living a grandiose lifestyle as a result.
46So far as Charge 3 is concerned, while not of the same order as the other charges you have pleaded guilty to, 287.6g pure weight is not an inconsequential amount of methamphetamine to traffick; being over five times the commercial quantity threshold of 50g pure.
47In relation to your role in committing Charge 1, the prosecutor did not allege you were involved in the process of importation, but instead you played an important and trusted role in the chain from importation to end-user distribution. In my view you were an enthusiastic and able ‘foot soldier’ whose role was greater than that of a mere courier.
48As I have previously summarised, your direct involvement with the consignment was to assist in its unloading and recording on a single day for period of about 4 hours and 20 minutes. At the end of this period you left the storage area and removed a single container from the consignment. You returned to the storage area later that day for a short time.
49Although there is no evidence before me regarding your precise place in the criminal hierarchy, I accept the prosecutor’s submission your participation extended to knowledge of and some involvement in the operation of the clandestine laboratory; since your fingerprints were found on an acetone can and on various pots, containers, beakers and funnels. The precise nature of your involvement is unknown; however, your counsel did not dispute the prosecution’s characterisation of your role, but submitted your co-accused Nguyen clearly played a much greater managerial role. I accept this is so.
50So far as your involvement in Charges 2 and 3 is concerned, your pleas were entered in each case on the basis you were trafficking by way of possession for sale. There was, however, no evidence you were involved in any actual sales or that you gained any financial reward over and above the supply to you of relatively small quantities of the drugs to support your own habit.
51I consider your offending conduct in relation to Charges 1 and 2 falls in the mid-range of offence seriousness, mainly on account of the very large quantities involved balanced against your subordinate but not inconsequential role. So far as Charge 3 is concerned, I consider your offending conduct falls in the upper lower range of offences of that kind. Overall, I consider your moral culpability is moderately high. Clearly, denunciation, general deterrence and just punishment must be given significant weight in sentencing you.
Personal circumstances
52You were assessed on 8 November 2024 by Matilda Hallam, a psychologist engaged by your legal representatives. Ms Hallam prepared a Confidential Psychological Report dated 10 November 2024, which summarises your personal circumstances.[11]
[11] Ex D2.
53You were born in October 1997 in the United States of America. You are 27 years old and were 25 at the time of the offending. You are the third eldest, with four siblings and five half-siblings.
54Your parents immigrated to the USA from Cambodia, but separated when you were very young. You were predominantly raised by your mother, but you reported to Ms Hallam that you remained in contact with your father, seeing him once a year during school holidays. Your mother and father have both re-partnered, with your mother giving birth to twin girls while you have been in custody in Australia. You were living with your mother in the USA prior to your visit to Australia. Ms Hallam writes you remain very close to your family in the USA, including extended family members such as your cousins.
55At the time of your offending, you were visiting Australia from the USA, having entered the country on some form of temporary visa a short time before commencing to commit these offences.
Education and employment history
56You attended both primary and secondary school, telling Ms Hallam you ‘only just managed to pass’ owing to your lack of interest and focus. You admitted you regret not trying harder at school, but you were ‘too busy with other problems’ and making ‘bad decisions’. However, you were reluctant to explain to Ms Hallam what those other problems or bad decisions were. You were suspended from school ‘once or twice for fighting’.
57At 20 years of age you attempted tertiary study at a Community College. Community Colleges in the USA are primarily two-year public institutions of tertiary education which offer undergraduate education in the form of an associate degree. You explained to Ms Hallam you enrolled in ‘general studies’ because you knew you ‘wanted a career in something’, but were uncertain about your specific areas of interest. You disclosed to Ms Hallam your current desire to return to school and obtain a ‘better job’ upon your release from custody.
58Your employment history is rather spasmodic as you apparently prefer not to ‘get comfortable’ in one job. You have previously worked in the fast food industry, at a warehouse and as a limousine driver. Your longest period of employment in the one job was 18 months.
Relationship history
59Ms Hallam reported you having had a number of ‘semi-serious’ relationships, with your longest relationship lasting for just under two years. You expressed having some difficulty maintaining long-term relationships owing to an inability to commit. Prior to your present time in custody, you were in a relationship of 18 months. This ended because of your imprisonment in Australia.
60In respect of non-intimate relationships, you described having ‘a lot of friends’, including prosocial acquaintances. However, you did outline a history of involvement in antisocial behaviour, such as gang violence, gang activity and substance abuse, with friends. Ms Hallam writes you have had several friends killed by violent acts, such as stabbing, drug overdose and gunshot wounds, the first of which you said occurred when you were 17 years old.
61Ms Hallam hypothesises:
[As] a result of his parent’s separation and limited contact with his father, Mr Thong may have had an unmet need to belong and sought comfort and connection in his association with group-affiliated individuals…The social and psychological needs that are satisfied due to affiliation with gang-like members can include factors such as power, status, and respect which may also serve as the motivation for Mr Thong’s offending behaviour.
62In respect of your time in Australia, Ms Hallam infers you sought comfort and connection by associating and using substances with, potentially group-affiliated individuals, in Australia, as you were holidaying alone in a foreign country. Ms Hallam opines this involvement may have satisfied your social and psychological needs, while also rendering you vulnerable to their influence and criminal and antisocial behaviour.
Mental health and medical history
63In your assessment with Ms Hallam you denied any history or diagnosis of any mental health conditions and said you have never sought support from any mental health professionals because of financial barriers. Although, you did report some historical suicidal ideation in your early 20s related to self-doubt.
64Whilst on remand, you describe feeling irritable and having difficulties with anger management. You admit to having a ‘very quick temper’ and a tendency to ‘get mad at other inmates’, although you did not report involvement in any physical altercations.
65You have been prescribed the antidepressant Mirtazapine (Avanza) for sleep and depressive symptoms whilst in custody and you have been taking this medication regularly for 12 months.
66You reported no significant medical history.
67Ms Hallam administered the Generalised Anxiety Disorder Assessment (GAD-7), a brief measure of symptoms of anxiety that required you to evaluate your level of symptoms over a two-week period. The GAD-7 can be used as a screening tool and further evaluation is recommended when the score is 10 or greater. You scored 16, which Ms Hallam opines is indicative of severe anxiety symptoms in the preceding fortnight.
68You undertook the Patient Health Questionnaire (PHQ-9), a tool used to assist in diagnosing depression through an assessment of symptoms over the past two weeks. You scored 15 out of 27, which Ms Hallam suggests you endorsed moderately-severe depressive symptoms in the fortnight before the assessment.
69You completed the International Trauma Questionnaire (ITQ) during your assessment with Ms Hallam, which is an 18-item self-report measure that assists with a diagnosis of Post-Traumatic Stress Disorder (‘PTSD’). Through the ITQ you were asked to assess symptoms over the past month. PTSD symptoms assessed included re-experiencing, avoidance and sense of threat. Ms Hallam reports your results on the ITQ indicate you meet the clinical threshold for a diagnosis of PTSD.
70Although Ms Hallam recognises there is an absence of sufficient information, in her report she queries whether you may have untreated Attention Deficit Hyperactivity Disorder because of your history of attention and behavioural difficulties throughout school, regular changes to employment and the likelihood you used alcohol and drugs to self-medicate.
71The testing performed by Ms Hallan involved the use of screening tests which are designed to highlight the possible presence of mental disorders which then require further and more rigorous testing before a definitive diagnosis can be made. Moreover, these measures have limitations, as self-reporting increases the risk of bias and inaccuracy, particularly if someone is incarcerated for the first time.
72Accordingly, I do not accept the testing performed by Ms Hallam was of a type sufficient to form the basis of any definitive diagnosis of a mental disorder or disability in your case. In this context, it is noteworthy that your counsel accepted no Verdins principles[12] are engaged in your case.
[12] See R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Alcohol and substance use
73You began using marijuana and consuming alcohol when you were aged 14, and described using marijuana in particular ‘every day’ during secondary school. From the age of 17, you commenced using cocaine occasionally. When you were aged 18, you started using methamphetamine because ‘it was cheaper’ and your friend had easy access to the drug.
74Since finishing college and before you came to Australia you reported a pattern of being ‘on and off’ drugs. You endeavoured to keep busy and exercise regularly to distract yourself, however, you told Ms Hallam you would always end up ‘meeting a different crowd and getting hooked’. You would choose to stay with friends for weeks at a time and use large quantities of drugs.
75Ms Hallam reports your longest period of abstinence has been three or four years while you were at college. You have never engaging in AOD counselling or attended rehabilitation. Your mother remains a significant motivating factor for you to abstain from using drugs as you would not do so while living with her.
76Ms Hallam opines you meet the criteria for Stimulant (Amphetamine-Type) Use Disorder not only during the period of offending but for a period of approximately the past five to ten years, and your daily substance use during the offending period magnified your risk of engaging in impulsive and reckless behaviour.
Risk assessment
77Ms Hallam conducted a risk-assessment and concluded your risk of reoffending to be ‘low-moderate’, with your level of risk being elevated by your substance abuse, antisocial peer association and pervasive mental health problems. Protective factors that may mitigate your risk of reoffending include your family support, desire to abstain from substances and the absence of a criminal history.
Mitigating circumstances
78You pleaded guilty to the present charges on 22 October 2024 following a sentence indication hearing held on 9 October 2024.
79Your plea of guilty to Charge 1 has come at a late stage in the proceedings; however, I consider your pleas of guilty to Charges 2 and 3 are forensically early pleas in light of the fact you were committed for trial on the more serious charge of trafficking in a large commercial quantity of cocaine.[13] Negotiations which ultimately led to the prosecution accepting a sentence indication on the lesser charge of trafficking in a commercial quantity of cocaine, and the prosecution dropping a charge of possessing equipment for the purposes of trafficking in a drug of dependence,[14] meant your forensic choices in relation to Charges 2 and 3 were somewhat restricted.[15]
[13] Contrary to DPCSA s 71.
[14] Contrary to DPCSA s 71A.
[15] See Atholwood v The Queen (1999) 109 A Crim 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).
80Moreover, your pleas of guilty have significant utilitarian benefit and indicate an acceptance by you of responsibility for your offending conduct. It also indicates a willingness to facilitate the course of justice, by saving the time and expense of the matter running as a trial and avoiding the need for witnesses to attend to give evidence.
81I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you. However, I must decide whether you demonstrate true contrition and remorse for your offending conduct.
82As Winneke P observed in R v Cooper:[16]
[a] distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds [himself].[17]
[16] (1998) 103 A Crim R 51 (‘Cooper’).
[17] Cooper 55 (Tadgell JA agreeing). See also Raptis v The Queen (1988) 36 A Crim R 362, 366 (Young CJ , O'Bryan & Tadgell JJ).
83True remorse is a question of fact and is determined on the balance of probabilities.[18] An offender must satisfy the court there is ‘genuine penitence and contrition and a desire to atone’.[19] In many cases the most compelling evidence of remorse comes from the offender’s testimony.[20]
[18] Cooper 55; R v Gillick [2000] VSCA 127 [20] (Callaway JA, Chernov JA agreeing) .
[19] Barbaro v The Queen (2012) 226 A Crim R 354, 365 [38] (Maxwell P, Harper JA and T Forrest AJA) (‘Barbaro’).
[20] Barbaro 365–66 [38], [40]; Bonacci v The Queen (2012) 224 A Crim R 194, 202 [44] (Neave, Mandie and Harper JJA).
84As I said at the plea hearing, which your counsel did not disagree with, you lack insight into the reasons for your offending conduct and I cannot make a determination that you are genuinely remorseful.
Rehabilitation
85You have used your time whilst on remand profitably. Not only do you work as a kitchen billet, but your counsel also provided me with a bundle of certificates that attest to your successful completion of:
(a) Nine modules of the ATLAS remand program; and
(b) Two modules run by Uniting Care, namely:
(i)Module 1: Considering Change Harm Reduction Program; and
(ii)Module 2: Safer Use Harm Reduction Program.
86Although Ms Hallam reported you demonstrate minimal insight into the reasons for your offending conduct, I consider your lack of any criminal history and the encouraging approach you have adopted to the time you have spent in custody, augers well for your future prospects of rehabilitation. On balance, I assess your prospects of rehabilitation as being reasonably good, but somewhat guarded. Much will depend on your ability to remain drug-free upon your release from custody.
Time in custody as a foreign national
87You are not an Australian citizen or permanent resident. You were temporarily in the country on a visit from the USA, where you permanently reside, for a short period prior to commencing your offending. Your counsel appropriately conceded the risk of deportation is not a mitigating factor in your case as you had no desire to remain in Australia and build a life here.
88However, I accept the burden of custody will weigh more heavily on you because you are isolated in Australia from your support network, who all live overseas, and you only have very limited virtual contact with your family.
Application of Bugmy principles
89Your counsel did not wholeheartedly embrace the general principles adumbrated by the High Court of Australia in Bugmy v The Queen[21] as being engaged in your case. However, I consider the fact you suffered a degree of childhood trauma and deprivation means those principles have some limited relevance in your case.
[21] (2013) 249 CLR 571 (‘Bugmy’).
90In Marrah v The Queen (‘Marrah’),[22] Redlich and Tate JJA affirmed the relevance of a disadvantaged background when their Honours observed:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. … Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.[23]
[22] [2014] VSCA 119 (‘Marrah’).
[23] Marrah [16] (Redlich and Tate JJA) citing Bugmy 586–89 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
91Importantly, their Honours observed that when sentencing an offender the court should not consider an ‘offender’s social disadvantage has the same mitigatory relevance for all of the purposes of punishment’.[24] Social disadvantage does not ‘diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending’.[25]
[24] Ibid.
[25] Ibid.
92In Sabbatucci v The Queen,[26] the Victorian Court of Appeal explained the principles in Bugmy as follows:
Whether, and to what extent, social disadvantage warrants a reduction in moral culpability in a particular case falls to be assessed by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered and whether the effects of the disadvantage can be seen to be in any way explanatory of the offending.[27]
[26] [2021] VSCA 340 (‘Sabbatucci’).
[27] Ibid [6] (Maxwell P and Emerton JA). See also Newton (a pseudonym) v The King [2023] VSCA 22 [36]–[38] (Beach and Macaulay JJA).
93In DPP v Herrmann,[28] that Court further observed:
The significance of the ‘general’ approach enunciated in Bugmy is that the relevance of deprivation to sentencing does not depend on proof of such a nexus. ... ‘the impact of disadvantage is complex, multilayered, non-linear and not easily “diagnosed” or measured’. The High Court’s recognition that serious childhood deprivation is likely to make an offender less morally culpable than ‘an offender whose formative years were not marred in that way’ reflects the principle of equal justice.[29]
[28] [2021] VSCA 160.
[29] Ibid [45] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA). See also Jawahiri v The Queen [2021] VSCA 287 [73(s)] (Priest and T Forrest JJA).
94In applying Bugmy principles in this case I do not need to find the disadvantage you suffered as a child was ‘profound’. In Sabbatucci, the Court also said the sentencer must evaluate whether the disadvantage warrants the offender being viewed as ‘less morally blameworthy’ than someone who commits the same offence but does not have the same disadvantaged or deprived background.[30] Coming to this conclusion does not depend on the Court being satisfied the circumstances establish ‘profound disadvantage’ or ‘profound deprivation’ because in every case, ‘it will be a question of fact and degree’.[31]
[30] Sabbatucci [22].
[31] Ibid.
95Your counsel did not submit your childhood deprivation is causative of the present offending, thereby reducing your moral culpability. Nonetheless, these complex factors mean I must moderate to a minor extent the weight I would otherwise have given to general deterrence, denunciation and the punitive aspects of the sentences I impose on you. They also inform the weight I give to specific deterrence and protection of the community in your case, the latter principle being subject to the serious offender provisions of the Sentencing Act 1991 (Vic) (‘SA’) discussed later in these reasons.
Application of sentencing principles
96I have had regard to current sentencing practice in relation to these offences as informed by the decisions of the High Court of Australia in R v Kilic[32] and DPP (Vic) v Dalgliesh (a Pseudonym)[33] and the Victorian Court of Appeal decisions in DPP v Zhuang[34] and DPP (Cth) v Thomas.[35] Specifically, I have considered the so-called ‘comparable cases’ I was referred to by the prosecutor.[36]
[32] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[33] (2017) 262 CLR 428, 444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).
[34] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).
[35] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).
[36] See Ex P5 on sentence indication hearing.
97While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[37]
[37] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
98Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.
99The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
100In sentencing you for these crimes I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society, albeit not this society.
101As I observed earlier, I assess your prospects for rehabilitation as being reasonably good, if somewhat guarded. I consider I do not need to give great weight to specific deterrence in sentencing you for these offences. No doubt your arrest and incarceration will have the effect of deterring you from further offending. In any event, you will almost certainly be deported to the USA at the end of your sentence and no longer pose a threat to this community.
102Parity is an important sentencing consideration in this case.[38] I have had regard to the sentence imposed on your co-offender in Charge 1, Hein Pham, who was sentenced by His Honour Judge Bayles on 24 September 2024 to six years’ imprisonment with a non-parole of three years on one charge of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported.[39] These were the same drugs in the same quantity as relate to your offending in Charge 1.
[38] See eg Collins v The Queen [2015] VSCA 106 [23] (Whelan, Santamaria and Beach JJA).
[39] DPP (Cth) v Hein Pham (unreported, Judge Bayles, 24 September 2024) CR-24-01037.
103Pham was charged with one charge of attempt to possess a commercial quantity of an unlawfully imported border-controlled drug, particularised as being between 22 and 27 May 2023 at Sunshine and other places in Victoria. Pham indicated he would plead guilty at a very early stage in the proceedings at an initial directions hearing held on 23 July 2024.
104The objective seriousness of your offending conduct in relation to Charge 1 is similar to that of Pham’s, however there are notable differences in your personal circumstances. Pham was aged 19 at the time of the offending and fell to be sentenced as a young offender. A large number of personal references were provided to the Court that included observations regarding his level of remorse and his desire to take responsibility for the offending conduct and to positively change his future behaviour. Judge Bayles sentenced Pham as a young offender with no prior convictions, who had demonstrated some contrition and remorse and had positive prospects of rehabilitation.
105Another distinguishing feature is your respective roles. Judge Bayles summarised Pham’s participation as extending to the collection and transportation of the consignment to StoreLocal and assisting in handling the consignment and retrieving certain parts of it for further testing.
106When making submissions on parity, the prosecutor in this case explained the case against Pham was put on the basis he was an impressionable young man who at all times was acting under the malign influence of Nguyen, a man whom Pham had known for some time and considered to be a father figure.
107Despite the differences between Pham’s personal circumstances and yours, I will have regard to the sentence Pham received, when sentencing you on Charge 1.
108Trafficking in a commercial quantity of a drug of dependence (Charges 2 and 3) is a category 2 offence under the SA.[40] This means, some irrelevant exceptions aside, sentences of immediate imprisonment must be imposed for these offences.[41] As your counsel accepted, it is beyond argument the only appropriate sentences on all charges must be sentences of imprisonment with a non-parole period being fixed on the total effective sentence.
[40] Sentencing Act 1991 (‘SA’) s 3 definition of ‘category 2 offence’ paragraph (g).
[41] SA s 5(2H).
109Once you are sentenced to a term of imprisonment on Charge 1, you fall to be sentenced on Charges 2 and 3 as a ‘serious drug offender’. When sentencing you as a serious drug offender, I must regard the protection of the community from you as the principal purpose for which those sentences are imposed. However, the prosecutor did not submit I should impose a sentence on either of those charges longer than that which is proportionate to the objective gravity of the relevant offence.[42]
[42] See SA s 6D.
110Moreover, section 6E of the SA provides:
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.
In this case, I will otherwise direct and allow for a measure of concurrency between sentences.
111As your counsel accepted, it is beyond argument that the only appropriate sentences on all charges must be sentences of imprisonment with a non-parole period being fixed on the total effective sentence. For completeness, I note none of these offences are standard sentence offences.[43]
[43] See SA s 3 definition of ‘standard sentence offence’ and s 5A.
Mr Thong
On the charge of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported (Charge 1) you are convicted and sentenced to imprisonment for eight years. That sentence is to commence from five years after the commencement of the sentence imposed on Charge 2.
I fix a period of two years and ten months be served on Charge 1 before you become eligible for parole on that charge.
On the charge of trafficking in a commercial quantity of a drug of dependence (namely cocaine) (Charge 2) you are convicted and sentenced to imprisonment for six years.
On the charge of trafficking in a commercial quantity of a drug of dependence (namely methamphetamine) (Charge 3) you are convicted and sentenced to imprisonment for three years.
It is my intention by my orders that you receive an overall sentence with the effect that there be a total effective sentence on all charges of 13 years’ imprisonment and that there be, in effect, an overall non-parole period of seven years and ten months. If the orders I have pronounced do not in law have that effect, then I reserve liberty to both parties to apply for order to amend the sentence to reflect my stated intention.
I declare 625 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
I declare that on Charges 2 and 3 you have been sentenced as a serious offender and I direct that declaration be entered in the records of the court.
Pursuant to s 6AAA of the SA, l declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of 15 years’ imprisonment with a non-parole period of 10 years.
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