Director of Public Prosecutions v Bui
[2019] VCC 1258
•9 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-01951
CR-17-01948
CR-17-01950
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANG DANG BUI ANH NGUYEN LUC KY PHAN |
---
| JUDGE: | HER HONOUR JUDGE DAWES |
| WHERE HELD: | Melbourne |
| DATE OF HEARING FOR ACCUSED BUI: DATE OF HEARING FOR ACCUSED NGUYEN & PHAN: | 15 February 2019 30 April 2019 |
| DATE OF SENTENCE: | 9 August 2019 |
| CASE MAY BE CITED AS: | DPP v Bui & Ors |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1258 |
REASONS FOR SENTENCE
---Subject: Trafficking in a large commercial quantity of methylamphetamine, Possession of chemicals, glassware and equipment including iodine and hypophosphorous acid, with the intention of using these to traffic in a drug of dependence, Possession of the precursor chemical, pseudoephedrine.
Catchwords:
Legislation Cited:
Cases Cited: Ben Kim v The Queen [2019] VSCA 149
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | John Cain, solicitor for Public Prosecutions |
| For Accused Bui | Ms S. Poulter & Mr I. Polak (For Plea) Mr S. Quan (For Sentence) | Chris McLennan |
| For Accused Nguyen | Mr M. Kozlowski (For Plea) Mr T. Battersby | C. Marshall & Associates |
| For Accused Phan | Mr A. Jackson | Theo Magazis & Associates |
HER HONOUR:
1Luc Ky Phan, Thang Dang Bui and Anh Luong Nguyen, you have pleaded guilty to offences, including trafficking in a large commercial quantity of methylamphetamine. I will give a general summary of the facts and then deal with each of you individually.
2On 8 July 2016, Anh Luong Nguyen rented a house on Duncans Road, Werribee South. On 19 October 2016 the owners of the property and their real estate agent inspected the property. No one else was present. They contacted police immediately. It was apparent to all that the house had been used to establish and operate a clandestine drug manufacturing laboratory.
3The walk through video tendered by the prosecution depicts the size and extent of the drug enterprise. It is undisputed that the laboratory was elaborate, sophisticated and used for the manufacture of methylamphetamine.
4A search of the house revealed that it had been occupied very recently (a candle was burning and a rice cooker was in use) and the quantity of drug that was located was subsequently identified. In total 1.7 kilograms of methylamphetamine at 100 per cent purity was seized. I shall refer to this as the Duncans Road methylamphetamine.
5Also seized was a large quantity of waste or refuse material from the manufacture of methylamphetamine. It was analysed and contained
1.3 kilograms of pseudoephedrine (Charge 3). A large amount of glassware, equipment and chemicals, including 14,049.6 grams of iodine and 12.5 litres of hypophosphorous acid were also located (Charge 2).6Anh Luong Nguyen was arrested and remanded in custody on 19 October 2016. Charge 1 against him relates to his possession of 1.7 kilograms of methylamphetamine at the Duncans Road property.
7Police undertook further investigations, including lawfully intercepting telephone conversations. These investigations disclosed the involvement of other men. On 25 October 2016 Thang Dang Bui was apprehended by police whilst driving his car. Police located 989.7 grams of methylamphetamine, at 85 per cent purity, in his possession. A search at his address at Tudor Road, Sunshine North, revealed 9,986.5 grams of methylamphetamine at 83 per cent purity locked in his bedroom.
8In the intercepted conversations, on 24 October 2016, a transaction relating to 11 kilograms of methylamphetamine had been discussed. The prosecution contend that the total of methylamphetamine that was recovered from Bui's car and room was the subject of that transaction. Thus, Bui was charged with trafficking in a large commercial quantity of methylamphetamine with an aggregate weight of 12.7 kilograms. This was comprised of 1.7 kilograms seized at the Duncans Road address and the proposed 11 kilograms for sale, being the methylamphetamine that weighed just under 10 kilograms, seized from the Tudor Road address and just under 1 kilogram that was seized from Bui himself. The search of Bui's bedroom also revealed 34.5 grams of cocaine at 92 per cent purity and 52.5 grams of pseudoephedrine at 75 per cent purity.
9Thang Dang Bui was remanded in custody on 25 October 2016. Telephone intercepts had demonstrated Bui's involvement in the Duncans Road manufacturing enterprise and also demonstrated the involvement of
co-accused in the Duncans Road methylamphetamine and the Tudor Road methylamphetamine, and the methylamphetamine found in Bui's actual possession. Thus Chong Cao Dau, Luc Phan and Quynh Ta were apprehended and charged with offences relating to the drug enterprise.10The prosecution contend that Quynh Ta occupied a high level role in the enterprise. Cong Cao Dau and Luc Ky Phan were below him, and that Thang Dang Bui was a considerable level below Dau and Phan. Anh Luong Nguyen's role was different to the other accused.
11I shall examine each accused's particular role in more detail in a moment.
12A large commercial quantity of methylamphetamine is 750 grams pure or
1 kilogram mixed. As I have said this was a significant drug manufacturing and distribution enterprise.13The owner of the Duncans Road property has provided a victim impact statement. It was read to the court. He and his family are distressed that their house was used as a clandestine laboratory. The damaged caused by the illegal activity was significant. He fears that the lingering effects of the clandestine laboratory will never be rectified. His plans for his family to live at that house in the future have been all but destroyed. The conduct of each accused has caused his family a great deal of stress and unhappiness. He also believes that his reputation has been tarnished by his ownership of the property used for this criminal enterprise. I have read the victim impact statement and I take into account the relevant portions.
14Drug trafficking is a scourge on our community. As the Court of Appeal have recently stated in Ben Kim v The Queen [2019] VSCA 149, at paragraph 31,
'We wish to make it clear once more that long prison sentences await those who participate in this pernicious trade. Those lengthy sentences are the occupational risk of the drug dealer and with modern policing techniques, that risk becomes greater by the day. Should that risk become reality, the principles of general deterrence and denunciation will normally be accorded particular prominence in the sentencing mix. Those who choose to embark on the business of drug trafficking must understand that they will lose their liberty for an extended period. It is only in this way that the courts can discourage those lured by greed into an enterprise that is so harmful to our community'.
15I will firstly deal with Luc Ky Phan.
16Mr Phan, you have pleaded guilty to three charges:
1)Trafficking in a large commercial quantity of methylamphetamine between 8 July and 25 October 2016 (12.7 kilograms).
2)Possession of chemicals, glassware and equipment including iodine and hypophosphorous acid, with the intention of using these to traffic in a drug of dependence on 19 October 2016.
3)Possession of the precursor chemical, pseudoephedrine, on 19 October 2016.
17The summary of prosecution opening is accepted and Schedule D outlines your involvement in this offending. You admit that you were complicit in the offending of your co-accused, Anh Luong Nguyen, Quynh Ta, Cong Cao Dau and Thang Dang Bui.
18The charge of trafficking in a large commercial quantity of methylamphetamine is an inherently serious one. Your culpability is illustrated by the fact that the quantity here is more than 12 times a large commercial quantity of that drug.
19You have pleaded guilty to the possession of the chemicals and equipment that made up the clandestine laboratory at the Duncans Road property (Charge 2).
20You have also pleaded guilty to the possession of pseudoephedrine that was located at Duncans Road, being part of the refuse from the manufacture of methylamphetamine (Charge 3).
21The specific role that you played is that you assisted in the setting up of the clandestine laboratory in Duncans Road and you were involved in the movement and storage of the methylamphetamine. You had an intimate knowledge of the location of the drugs, cash and the quantities of same. Telephone intercept material reveals that you actively participated in this organisation. Many conversations you had with co-accused were in code.
22It is not alleged that you were the principal offender. You received instructions from Quynh Ta and acted on those instructions. It was clear that you were trusted by Quynh Ta. Your role was such that you reported information back to him and carried out his instructions.
23On 25 October 2016 you called Quynh Ta to advise him that Thang Dang Bui was unable to be contacted. You had frequent contact and a close working relationship with Cong Cao Dau. You also passed on operation directions to Bui when required. The prosecution have described your role as a “lieutenant style” role. By this I take it that you occupied a position of senior management, trusted by your superior and important to the criminal enterprise.
24You referred to Quynh Ta as “uncle” as he was a relative of yours by marriage. He was also your legitimate employer, you having worked at his business in Keilor East for approximately two years prior to your arrest. He also directed your activities in these criminal proceedings.
25At the request of your solicitor, consultant psychologist Ian McKinnon prepared a report for court, dated 19 October 2019. In an interview with him you stated that you did what you were told by Quynh Ta and described yourself as “his employee”. Mr McKinnon is of that opinion that had you not been working for your uncle it is unlikely that you would have become involved in this criminal activity.
26In your discussion with Mr McKinnon you expressed remorse for your involvement in this offending, not only in relation to the effect it has had on your children and family, but indicating you have no intention of coming back to prison. In the opinion of Mr McKinnon your remorse is genuine and your prospects for rehabilitation are good. He writes that the likelihood that you will reoffend in any serious manner is low. I accept his opinion.
27Your plea of guilty, although late, is consistent with that expression of remorse. I will explain this in a moment. I am prepared to moderate your sentence to reflect an element of remorse.
28You have no prior convictions, nor any other matters outstanding. You have never used illicit substances and have only consumed alcohol moderately. You have no history of problem gambling or any other behavioural problems. You are not currently prescribed any medication, nor were you at the time of this offence. These factors bode well for your future when you are released from custody and your prospects for rehabilitation appear to be good. It is accepted that the issue of good character is of limited mitigation in a serious case such as this.
29Your plea of guilty was not entered at an early stage. In your record of interview, whilst you acknowledge that you knew your co-accused, you denied that you were involved in the manufacturing and distribution of methylamphetamine.
30You participated in the contested committal in September 2017, your matter being adjourned for trial to commence on 4 February 2019. Your plea of guilty was entered on 7 February 2019.
31I am told that substantial negotiations took place with the prosecution and that your matter resolved on the basis of a different factual matrix than had previously been outlined or accepted by the prosecution as appropriate. It is for this reason that I am prepared to infer some remorse from the otherwise very late plea of guilty.
32Your plea also has a significant utilitarian benefit. You have saved the court and the community the time and expense of running a lengthy trial. In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.
33There is no indication that you accumulated wealth as a result of your offending. In fact, there is no evidence or indication of any financial benefit you expected or actually received from this offending.
34I am aware that you are currently a permanent resident, but not a citizen of Australia. There has been no indication that your immigration status will change upon your release from custody.
35You were born in South Vietnam in 1987, living with your mother and your two brothers. Your father left to live in Australia prior to your birth and you had little contact with him as a child. You and your brothers were sponsored by your father to move and live in Australia in September 2003. Your mother soon followed, although her relationship with your father had ended. Your mother now resides in Deer Park. You have had little contact with your father for approximately five years.
36Your educational background is limited, leaving school at the beginning of Year 9, the time when you moved to Australia. Whilst living here you have undertaken English language programs, as well as working in various forms of seasonal labouring and other unskilled forms of employment.
37You are now 32 years of age. You are married, having met your wife in approximately 2009. You have two children, aged six years and two years. It was after the birth of your first child that you commenced working for Quynh Ta. Fortunately, you have the support of your wife, your children and other family members and friends, all of whom have visited you whilst you are in custody. You were accompanied in court at the plea hearing by your wife and daughter. Your plans for the future are to find work, support your family and fully support your mother.
38A brief email to the court was tendered from Hung Nguyen, dated
28 April 2019, confirming that you have the opportunity of employment working at a floor sanding business when you are ultimately released.39You were arrested on 16 March 2017 and remanded in custody. It is the first time that you have been incarcerated. During that time you have completed educational certificates in English language and in horticulture. You have engaged in sporting and fitness activities and continued to work, currently in the prison laundry at the Melbourne Custody Centre.
40You have been on remand since 16 March 2017. Whilst there has been a delay of approximately two and a half years between your arrest and sentence, your plea of guilty was not entered until February 2019, almost two years into this period. Nevertheless, I accept that the delay has been a source of anxiety for you. I take this into account in your favour.
41I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment. The community expects that those who elect to engage in serious drug enterprises be punished and denounced for this offending. A substantial term of imprisonment is the only appropriate disposition.
42In my view there is not an additional need for specific deterrence, given the length of the sentence I will impose.
43I take into account the principle of parity when fixing sentence for you and your co-accused. The principle of totality also needs to be considered here.
44I have decided that there needs to be some, but not total cumulation in the sentences I impose. I have taken care not to doubly punish you for the offences.
45I take into account the maximum penalties for each offence and current sentencing practices.
46Mr Phan, could you please stand.
47Balancing these factors as best I can I sentence you as follows:
1)Charge 1, convicted and sentenced to 11 years' imprisonment;
2)Charge 2, convicted and sentenced to two years and six months' imprisonment;
3)Charge 3, convicted and sentenced to two years' imprisonment.
48I direct that Charge 1 be the base sentence and that one year of Charge 2 be cumulative upon that. The sentence imposed on Charge 3 will be fully concurrent with the other sentences. The total effective sentence then is a maximum penalty of 12 years' imprisonment. I fix a non-parole period at 8 years.
49I will enter in the records of the court that 876 days have been served by way of pre-sentence detention.
50I make an order for compensation in the amount of $63,571.
51The declaration that I make under s.6AAA is that had the matter not proceeded as a plea of guilty I would have sentenced you to a maximum period of 14 years, with a minimum of 9 years and 3 months.
52Thank you, have a seat please.
53I will now deal with Mr Bui.
54Thang Dang Bui, you have pleaded guilty to five charges.
1)Trafficking in a large commercial quantity of methylamphetamine between 19 and 25 October 2016 (12.7 kilograms).
2)Possession of chemicals, glassware and equipment, including iodine and hypophosphorous acid, with the intention of using these to traffick in a drug of dependence on 19 October 2016.
3)Possession of the precursor chemical, pseudoephedrine, on 19 October 2016.
4)Possession of cocaine on 25 October 2016.
5)Possession of pseudoephedrine on 25 October 2016.
55The summary of prosecution opening is accepted and Schedule A outlines the specific evidence of your involvement. You admit that you were complicit in the offending of your co-accused at the relevant time. The specific role that you played is that you were a driver and distributor of the drugs, goods and cash, as well as storing them.
56Methylamphetamine (Charge 1) cocaine (Charge 4) and pseudoephedrine (Charge 5) were located in your room and/or in your car. You received direction from both Cong Cao Dau and Luc Ky Phan. You conversed with them in coded language. You were subservient to the other accused.
57You say that you did not have the exclusive possession of the contents of your room and your car. You did, however, arrange for a lock to be put on the door of your room in Tudor Road. You had keys to open the lock. Whilst others may have had access to the drugs, you admit that you exercised custody and control over them. Even if you did not have exclusive possession of the contents of your car and your room, in my view it does not reduce your role in any meaningful way. You were still part of a sophisticated criminal enterprise, in which you played a significant role at the direction of others.
58Telephone intercept materials reveal that your co-accused did not always find you to be reliable or efficient. At times they had difficulty locating you and they were reluctant to leave any drugs at your address. Despite their misgivings, a significant quantity of drugs were stored and located in your possession.
59Notwithstanding that the quantity of methylamphetamine in your case is the same quantity as three of your co-accused, your involvement in this offending is limited to a period of approximately one week. Although you had knowledge of the activities at the Duncans Road property you were not involved in the setup of the laboratory, nor directly in the manufacture of methylamphetamine.
60You have pleaded guilty, however, to the possession of the chemicals and equipment that made up the clandestine laboratory at the Duncans Road property (Charge 2). You have also pleaded guilty to the possession of the pseudoephedrine that was located at Duncans Road, being part of the refuse from the manufacture of the methylamphetamine (Charge 3). I am told that you were paid approximately $300 per day. There were no obvious signs of enrichment as a result of your offending.
61The charge of trafficking in a large commercial quantity of methylamphetamine is an inherently serious one. Your culpability is illustrated by the fact that you possessed more than 12 times a large commercial quantity of that drug.
62Your plea of guilty was not entered at an early stage. You made a no comment record of interview and participated in the contested committal in
September 2017. I am told that discussions were ongoing for at least 12 months, trying to resolve your case before the trial was due to commence on
4 February 2019. Your plea of guilty was entered on 8 February 2019. Your plea has a significant utilitarian benefit. You have saved the court and the community the time and expense of running a lengthy trial. In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that. It is submitted that remorse can be inferred from the ongoing attempts to resolve your case and from your plea of guilty. I am told that you have also expressed a sense of shame to your family for your behaviour. I am prepared to moderate your sentence to reflect a modest element of remorse.63A letter from your father, dated 22 August 2018, has been tendered. Your parents are concerned about your being away from home and in custody. They continue to support you, although they have no seen you for almost five years.
64You were born in Vietnam and are now 24 years of age. You travelled to Australia on a student Visa in 2014. That Visa has now expired and you will be deported after undergoing sentence in this matter. Your criminal conduct has resulted in the loss of opportunity to build a life in Australia. Your parents and younger brother reside in central Vietnam.
65You completed Year 12 and commenced tertiary studies at the Marine University in Hai Phong. Your family encouraged you to study in Australia. Although they are not in a strong financial position, they helped you to save money to pay the fees for a business management course at the Cambridge University College. Their hope was that in coming to Australia you would learn to speak fluent English, study business management and return to Vietnam well equipped to support them and a more prosperous way of life.
66Unfortunately, you were not able to commence your education when you arrived in Melbourne. Your English skills were not at a level that was sufficient to participate in your course. The money that you have saved did not last long as life in Melbourne was more expensive than you had expected. Your student visa permitted you to work 20 hours per work. You managed to find work on farms and also in a grocery shop.
67At the time of these offences you did not have a valid visa, as it had expired on 26 September 2016. You were not able to continue in your employment and you had little or no money. Your family's financial situation was also dire as your father had developed ill health, confirmed in the copy of medical records that you have provided.
68Whilst your mother was working as a cook at the local school and your brother was working part time, your father was unable to work and your family was struggling financially. When the offer of work as a delivery driver in this criminal enterprise was made, you agreed to participate in the hope of alleviating this financial pressure.
69Whilst in custody you have worked in the kitchen and undertaken educational courses, including English language courses. Your English skills have improved, but are still limited.
70You have been on remand since 25 October 2016. Whilst there has been a delay of almost three years between your arrest and sentence, your plea of guilty was not entered until February 2019, more than two years into this period. Nevertheless, I accept that the delay has been a source of anxiety for you. I take this into account in your favour.
71It is the first time you have been incarcerated. Whilst in custody you have had contact with your co-accused, but little contact with other Vietnamese prisoners. Your family and friends reside in Vietnam. The only visitors you have received are your legal representatives. I accept that the isolation from your family, coupled with the difficulty that results from your limited ability to communicate with others means that your time in custody will be more onerous than it would be for other people. This adds to the punishment for your offending.
72At the time of your offending, you were 22 years old. As a youthful offender, the principle of rehabilitation is one that must feature in the sentencing mix.
73You have no prior convictions and no matters outstanding. The issue of good character is of limited mitigation in a serious case such as this.
74You have no history of drug or alcohol use, nor do you have any mental health issues or behavioural problems such as gambling. All these factors augur well when considering your prospects for the future. As I have said, you have completed a secondary education. In all the circumstances I accept that your prospects for rehabilitation appear to be good.
75I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment. The community expects that those who elect to engage in serious drug enterprises be punished for this offending. Denunciation of your conduct must also be given some weight. A substantial term of imprisonment is the only appropriate disposition.
76I doubt there is an additional need for specific deterrence, given the length of the sentence I will impose.
77I take into account the principle of parity when fixing sentence for you and your co-accused. The principle of totality also needs to be considered here.
78I have decided that there needs to be some, but not total accumulation in the sentences I impose. I have taken care not to doubly punish you for the offences. I take into account maximum penalties for each offence and current sentencing practices.
79Mr Bui, would you please stand.
80Balancing these factors as best I can I sentence you as follows:
1)Charge 1, convicted and sentenced to 9 years' imprisonment;
2)Charge 2, convicted and sentenced to 2 years and 6 months' imprisonment;
3)Charge 3, convicted and sentenced to 2 years' imprisonment;
4)Charge 4, convicted and sentenced to 18 months imprisonment;
5)Charge 5, convicted and sentenced to 12 months' imprisonment.
81I direct that Charge 1 be the base sentence and that one year of Charge 2 be cumulative upon that. The sentences imposed on Charges 3 to 5 shall be fully concurrent with those sentences imposed on Charges 1 and 2. The total effective sentence is 10 years' imprisonment. I fix a non-parole period of
six years and six months.82I will enter in the records of the court that 1,018 days have been served by way of pre-sentence detention.
83I declare under s.6AAA that had your matters not proceeded as a plea of guilty, I would have imposed a sentence of 12 years, with a minimum of
8 years.84I make the orders for disposal and forfeiture as requested.
85Mr Quan, do you want to say anything about the application for compensation?
86MR QUAN: No, Your Honour.
87HER HONOUR: I make the order for compensation in the amount of $63,571.
88Thank you, please be seated.
89I will now deal with Mr Nguyen.
90Anh Nguyen, you have pleaded guilty to three charges.
1)Trafficking in a large commercial quantity of methylamphetamine between 8 July and 19 October 2016 (1.7 kilograms).
2)Possession of chemicals, glassware and equipment, including iodine and hypophosphorous acid, with the intention of using these to traffic in a drug of dependence on 19 October 2016.
3)Possession of a precursor chemical, pseudoephedrine, on 19 October 2016.
91The summary of prosecution opening is accepted and Schedule B outlines specific evidence of your involvement. You admit that you were complicit in the offending of your co-accused at the Duncans Road address. The specific role that you played is that you rented the property at 985 Duncans Road in your own name and in your wife's name. When you were arrested, those rental documents and others confirming payment of the rent and connection of the gas were found at your home. After the laboratory had been discovered on 19 October 2016, you left work early, acting on your own and also assisting others to try to avoid detection. On 19 October 2016 you were in communication with Cong Cao Dau and had direct contact with Quynh Ta.
92Your role can be distinguished from co-offenders in that you attended at the Duncans Road premises to collect rent money and money for bills over the relevant period. You were not actively involved in the production of methylamphetamine. Secondly, unlike your co-accused, the large commercial quantity in your case is 1.7 kilograms. I accept that the quantity of drugs is an important factor when considering parity and the appropriate sentence. The purity of those drugs was 100 per cent. This amount of methylamphetamine is in excess of two times a large commercial quantity, illustrating the seriousness of your offending.
93You have pleaded guilty to the possession of the chemicals and equipment that made up the clandestine laboratory at the Duncans Road property (Charge 2). You have also pleaded guilty to possession of the pseudoephedrine that was located at Duncans Road, being part of the refuse from the manufacture of the methylamphetamine (Charge 3).
94You were arrested by police at around 7.30 pm, on 19 October 2016. In your record of interview you endeavoured to minimise your knowledge of the illegal activity at Duncan's Road. You admitted leasing the property, paying the rent, attending the house on one occasion to set up the gas and to mowing the lawn. You denied ever entering the premise. You said that you were paid $5,000 per month for having the lease in your name. You did not give an accurate explanation of the reason you were involved.
95You are now 56 years of age. You are a man with no criminal history and you have no matters pending. Your good character is of limited mitigation in a serious case such as this.
96You were born in Vietnam in 1963. The war commenced in 1969. You witnessed considerable violence as a child as a result of this. You were haunted by the traumas you had experienced for some time, but fortunately I am told those issues resolved many years ago.
97You attended school up until Year 9. In 1982 you left Vietnam in order to avoid conscription to the army. You travelled to Indonesia and then to Canada where you worked as a chef and studied at the same time. You brother, who had travelled with you, moved with you to join your parents in Australia in 1987. You took out permanent residency in 1992 and are now an Australian citizen.
98You have worked consistently since that time, initially opening a Japanese restaurant and then commencing work at the Toyota Motor Corporation in 1995. At the time of your offending you were employed in the factory at Toyota. In a letter dated 28 November 2016 from your supervisor, Sam Spiteri, he stated that you had worked with him for over 10 years. It is clear that are highly regarded by your fellow workers. You were a hardworking, popular and reliable staff member. Your income in October of 2016 was approximately $80,000 per annum. A large portion of that income was used to service loans on two properties owned by you, one in Epping and one in Sunshine North.
99You have previously been married twice and have three children from the second of those marriages: twins, aged 19 years and another child aged 11. You have been in a relationship with your current partner since 2013. You have one child together who is now aged six. Your children all reside in Australia. They and your partner maintain their love and support of you. Fortunately, they visit you regularly now that you are in custody.
100At the time of your arrest you were also an active and highly regarded member of the Buddhist community in West Melton. You attended the temple to pray, you assisted in fund raising and were involved in helping out there whenever assistance was required. You have been on remand in custody since your arrested. You are currently working in the laundry at Marngoneet.
101You have also completed a four week course in an attempt to address your addiction to gambling. Regrettably, you developed a gambling addiction in 2013. At the time of these offences you would gamble on poker machines daily, losing large amounts of money. You now say that you expected to be paid $2,000 per month for your participation in this drug activity. The motivation for your offending is that your gambling had resulted in the loss of a substantial amount of money and so placed you under financial strain. Whatever amount of money you were expecting, you say in fact that you received nothing. There are no obvious signs of enrichment as a result of your offending.
102Your plea of guilty was not entered at an early stage. You participated in the contested committal in September 2017. The trial was due to commence on
4 February 2019 and your plea of guilty was entered on that day. Your plea has a significant utilitarian benefit. You have saved the court and the community the time and expense of running a lengthy trial. In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that.103The matter resolved at the first real opportunity as the case against you was framed in a way that had not been previously accepted by the prosecution as appropriate. Your plea of guilty is also a limited indication of remorse, although you accept that there is no other evidence of that. I make a modest allowance in your favour for this.
104You have received counselling to overcome your problem with gambling whilst in custody. Notwithstanding that this issue has not yet been addressed when you reside in the community, I accept that your prospects for rehabilitation appear to be good. You have the strong support of your family, you have a solid work history, you have pleaded guilty and at the age of 56 you have no prior convictions.
105You have been on remand since 19 October 2016, a period of almost three years. It is the first time that you have been incarcerated. Even though your guilty plea was not entered until 4 February 2019, more than two years after your arrest, I accept that the delay has been a source of anxiety for you. I take this into account in your favour.
106I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment. The community expects that those who elect to engage in serious drug enterprises be punished and denounced for this offending. A substantial term of imprisonment is the only appropriate disposition.
107In my view there is not an additional need for specific deterrence given the length of the sentence I will impose.
108I take into account the principle of parity when fixing sentence for you and your co-accused. The principle of totality also needs to be considered here.
109I have decided that there needs to be some, but not total cumulation in the sentences I impose. I have taken care not to doubly punish you for the offences.
110I take into account the maximum penalties for each offence and current sentencing practices.
111Mr Nguyen, would you please stand.
112Balancing these factors as best I can I sentence you as follows:
1)Charge 1, convicted and sentenced to 7 years' imprisonment;
2)Charge 2, convicted and sentenced to 2 years and 6 months' imprisonment;
3)Charge 3, convicted and sentenced to 2 years' imprisonment.
113I direct that Charge 1 be the base sentence and that one year of Charge 2 be cumulative upon that. The sentence imposed on Charge 3 will be fully concurrent with the sentences imposed on Charges 1 and 2. Total effective sentence of imprisonment is 8 years. I fix a non-parole period of 5 years.
114I enter in the records of the court that you have served 1,024 days by way of pre-sentence detention.
115I make the order for disposal.
116I make an order for compensation in the amount of $63,571.
117Pursuant to s.89DI of the Sentencing Act, I declare that you are a serious drug offender.
118I make a declaration under s.6AAA of the Sentencing Act, had the matter not proceeded as a plea of guilty I would have imposed a sentence of 10 years' imprisonment, with a non-parole period of 6 years and 6 months.
119Please be seated.
120Are there any other orders or is there anything further?
121MR DEVLIN: Thank you, I'm just checking. No, Your Honour. Thank you,
Your Honour.122HER HONOUR: Thank you. Just before the three accused men are excused. I acknowledge that you have waited several months for these sentences. Unfortunately, due to matters that were out of my control, I was unable to work for some time earlier in the year. That is the reason for the delay in imposing sentence and I apologise for that. Thank you, remove the prisoners please.
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