Director of Public Prosecutions v Aprianto

[2017] VCC 869

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00864

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL APRIANTO

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 June 2017
CASE MAY BE CITED AS:	DPP v Aprianto
MEDIUM NEUTRAL CITATION:	[2017] VCC 869

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr B. Stougiannos
For the Accused	Ms Mykytowycz

HIS HONOUR:

1I will sign the orders first.

2I make an order for disposal pursuant to s.77(1) of the Confiscation Act in the terms of the order I sign.

3I make an order pursuant to s.151 of the Firearms Act for forfeiture in the terms of the order that I sign.

4I make an order pursuant to s.464ZF(2) of the Crimes Act for the taking of a forensic sample. I am satisfied, considering the seriousness of the circumstances of the forensic sample offence, that the making of the order is justified for the following reasons: the seriousness; the circumstances of the offence warrant the order; it is by consent or not opposed.

5I have just made an order for the taking of a forensic sample.  If when the police come around to take it you decide to resist the taking, police can use reasonable force to enable that procedure to be undertaken or conducted.

6Paul Aprianto, you have pleaded guilty to one charge of traffic in a drug of dependence, namely methylamphetamine. That is on the basis of being involved as a trafficker for manufacture and sale. Charge 2, you have pleaded guilty to a charge of possessing two unregistered general category handguns, and Charge 3, possession of drug of dependence, namely diacetylmorphine, and you have agreed to a summary offence being heard here, to which you pleaded guilty, namely possessing cartridge ammunition whilst not a holder for a licence under the Firearms Act.

7You have no other criminal history.  The facts of the matter are set out in the prosecution summary.  It is not disputed by your counsel.  I will not refer to it in any great detail.  Any reader of these reasons can refer to that exhibit to place the sentences in their proper context.

8Briefly stated, police, pursuant to a search warrant, entered premises at
45 Webster Street, East Malvern.  A clandestine drug laboratory was located in the kitchen of the premises.  Whilst they were there you drove into the driveway of the premises in a Holden vehicle ZZA 315.  Police had observed the vehicle parked in the driveway of that address on several occasions.

9Police located a small loaded handgun in the grab bar of the driver's seat at head height of the vehicle.  A set of keys to the house was found in your possession.  The laboratory was found to be for the manufacture of methylamphetamine.  A quantity of unlicensed ammunition was found on the premises in addition to an unregistered sawn off 22 rifle in Bedroom 3.  Ammunition was found on the premises suitable for both weapons.  An empty ammunition box was found in the same bedroom.

10Drugs were located on the premises as set out in paragraph 12 of the prosecution opening.  Your fingerprints were found on a number of items at the premises, namely a left thumb fingerprint on a broken glass beaker and a left thumb print on the outer surface of a glass funnel.

11It is accepted by the prosecution that you are not the prime mover of this operation.  The premises involved were owned by Paul and Linda Tran, their father, Vin Anh Tran, had privately rented the premises from 24 August 2014 to a person known as Tuan Dat Vienk who has not been able to be identified.

12However, you were a willing and active participant in the operation to the level that is set out in your record of interview.  Your counsel filed written submissions and supplemented them orally.  In mitigation she relied on:

(1)you have no other criminal history;

(2)your plea of guilty, although I note that it was entered after a  contested committal had been booked in on 4 May 2017.  In those circumstances it could not be categorised as an early plea but it is not an unreasonable time to enter a plea and you will be given the appropriate discount as it is an indication of your acceptance of responsibility for your offending and it has saved the community the cost of a jury trial;

(3)she relied on the fact that it is probable you will be deported.  Ms Mykytowycz in paragraph 6 of her written submissions tendered a notice from the Department of Immigration and Border Protection, and letter dated
28 October 2016, in which they were considering cancelling your student visa.  A further letter was sent dated 21 November 2016 inviting there were no grounds to cancel as it had expired on 1 November 2016.  If you do not make an application for a visa in the future you will be deported once you have finished your sentence.  Your hope is to become a resident of Australia.  You have lost the possibility of securing a further visa in the country and as all counsel and myself agree, in the current climate it is unlikely after convictions of this type that you will be able to obtain a visa.  I take that into account as a general matter in that it is something that will prey on your mind whilst in prison, the fact that you have lost your opportunity to become a resident in this country.  However, as I remarked during the course of the plea, that is entirely your own fault;

(4)your counsel drew my attention to your family support. Your mother and sister had come down from Indonesia and another sister was present and they have been visiting you whilst you have been in custody.  On that basis she submitted that you had good prospects of rehabilitation in that you had no other criminal activity, you had family support and;   you have been attending on various courses whilst in custody;

(5)she pointed to your answers in the record of interview in which you said that you agreed to look after the place on the basis that you could stay there.  A male known as Andrew, would drop by sometimes and give you food.  When there were people in the kitchen you tried not to be there.  Andrew's father called now and again, enquiring about the house and giving you instructions to keep it clean.  You were given the use of the car to borrow.  You denied making the handgun but admitted it was yours and you described to police how to unload the homemade handgun.  When asked if you had any idea what they were making in the kitchen you responded with, "Maybe drugs".  I do not accept that answer for one minute.  You are a drug user.  You would have known exactly what was going on in the kitchen.  The arrangement was that if you looked after the place you could stay there.  You cleaned up things.  You made admissions as to the use of ice.  People who came to the house spoke in Vietnamese.  You admitted to the activities that were revealed by your phone;

(6)your counsel submitted that you were at a low level in this operation and she outlined in relation to the selling part - it is on the phone - said it reveals low level sales related to five people about whether you had any drugs and included mainly requests for HB or a half ball of ice.  In the prosecution summary a search of your mobile phone browser history reveals searches for an access to websites containing detailed instructions on how to manufacture methylamphetamine and a search of your mobile phone Facebook Messenger application revealed conversations between you and various other people in relation to the selling of drugs.  Further messages were sent to your phone enquiring about how your cook was going.  It is difficult for me to assess exactly what you were doing in this operation apart from your admissions to the police and what the evidence in respect of your phone reveals, and that is the evidence upon which I will act and I accept the submission that your role was not just to mind the house but that it seemed to be some selling role and you therefore are above the level of someone who had the position of just minding the house.  However, it was at the lower end of that particular operation.

13Taking into account all the submissions made by both counsel, and I have considered the charts from the VSCA that I referred to during the course of the plea, to consider what current sentencing practices are.  I must admit I am surprised by how low they are for this type of offending and it would not surprise me if the Court of Appeal soon makes another incremental increase, but I will operate on what I perceive to be current sentencing practices.

14I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community to seek to ensure that as far as possible offenders are rehabilitated into society.  I express my denunciation of the behaviour.  You are to be sentenced for the quantity of drugs.  The use of drugs in our society, of course, is almost out of control and the evidence here of a methamphetamine laboratory contributes to that.

15The basic purpose for which a court may impose a sentence of punishment are general deterrence, both specific, general rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.

16In particular, I take into account in mitigation your plea, as I have described.  You have no criminal history.  My assessment and categorisation of what you were actually doing, the fact that you have family support, as to an assessment of your prospects of rehabilitation I do not really have much material to do that but to rely on what counsel have put to me.  I find it difficult to make any assessment of it.

17I sentence you as follows:

on Charge 1 I sentence you to a term of imprisonment of two years, six months;

on Charge 2, which is the possession of the handguns, I sentence you to a term of imprisonment of nine months, three months to be cumulative with Charge 1;

on Charge 3, the possession of a drug of dependence, I fine you $500;

on the summary offence I fine you $500.

18It makes a total effective sentence of two years, nine months.  I direct that you serve a period of 21 months before you become eligible for parole.

19I state, pursuant to s.6AAA of the Sentencing Act that if the matter had proceeded to trial and you were convicted, and this is always a guess by me, you would have got a sentence in the order of something like six years with a non-parole period of four. The period of time of PSD - what is that again, to today?

20MS MYKYTOWYCZ:  It is 302.

21MR STOUGIANNOS:  Yes.

22HIS HONOUR:  302?

23MR STOUGIANNOS:  302, Your Honour.

24HIS HONOUR:  A period of 302 days you have already served to be reckoned as part of the term of imprisonment that I have just imposed.  Are there any other matters I need to attend to?

25MR STOUGIANNOS:  No, Your Honour.

26HIS HONOUR:  All right.  You can take the offender out, thank you.

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