Director of Public Prosecutions v Cao
[2021] VCC 1044
•27 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01561
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEN CAO |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 June 2021; 15 July 2021 |
DATE OF SENTENCE: | 27 July 2021 |
CASE MAY BE CITED AS: | DPP v Cao |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1044 |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Traffick in a drug of dependence; Possess 2 or more firearms – traffickable quantity; Possess a drug of dependence
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence:4 years and 2 months imprisonment; non-parole period of 2 years and 4 months; fines amounting to $3,250.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Lenthall (for Plea) | Office of Public Prosecutions |
For the Offender | Mr R. Melasecca | Melasecca Kelly Zayler |
HER HONOUR:
1Ben Cao, you have pleaded guilty on indictment to two charges of traffick in a drug of dependence, one charge of possess two or more firearms in a traffickable quantity, and one charge of possess a drug of dependence. In addition, you pleaded guilty to summary offences of dealing with property suspected of being the proceeds of crime, possess cartridge ammunition and possess prohibited weapon.
2In sentencing you for your crimes, I am required to have regard to the maximum penalty for each of the offences to which you have pleaded guilty. The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment. Possessing a traffickable quantity of firearms carries a maximum penalty of 10 years imprisonment and possessing a drug of dependence, in your particular instance, carries one year imprisonment. Dealing with property suspected of being the proceeds of crime and possess prohibited weapon each carry a maximum penalty of two years imprisonment. The charge of possess cartridge ammunition carries a maximum of 40 penalty units. These maximum penalties reflect the seriousness with which Parliament regards these offences.
The offending
3The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening for Plea', dated 1 June 2021. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
4Whilst I have had recourse to the entire document, in short compass, on 12 November 2019, you were riding a motorcycle in Pound Road, Narre Warren at around 11.47 pm when intercepted by police officers, as the motorcycle was unregistered. Once identified, you were arrested in relation to outstanding driving charges.
5Police searched a grey and black satchel in your possession and inside located the following: six Ziploc bags containing methylamphetamine and each weighing approximately 27 grams, two bundles of Australian currency totalling $9,466.55 - which is the subject of the summary charge of deal with property suspected to be the proceeds of crime - and three mobile phones.
6At 9 am on the following morning, being 13 November 2019, police then executed a search warrant at your residence. I note that you agreed to be present during the search and to assist police in locating various items, which you then did.
7During their search, police members located five unregistered firearms under the bed, which included a .45 automatic Colt pistol, semi-automatic, a 7.62 x 25-millimetre calibre semiautomatic pistol, a .357 Magnum six shot revolver, a .308 Winchester pump action rifle, a .22 pump action and a 12 gauge homemade shotgun - that item was in pieces. Three of these guns had their serial numbers erased. These weapons are the subject of Charge 2, possess a traffickable quantity of firearms.
8Police also located various firearm parts and a handgun holster.
9They located numerous rounds of ammunition, forming the basis for the summary charge of possess cartridge ammunition.
10They located a pair of knuckledusters, forming the basis for the summary charge of possess prohibited weapon.
11Twenty-seven point seven grams of heroin was located in a Ziploc bag in your dresser, forming the basis for Charge 3, trafficking in a drug of dependence, namely heroin.
12A small amount of methylamphetamine, .5 grams, was located in your dresser, forming the basis for Charge 4, possess drug of dependence, and with your assistance, a further 28 grams of methylamphetamine was located by police in the garage. Together with the methylamphetamine found on your person the day prior, this forms the basis for Charge 1 on the indictment, traffick in a drug of dependence, namely methylamphetamine.
13On formal interview by police, you answered their questions with “no comment” as is your right.
14The total methylamphetamine located was 192.5 grams, of which approximately 139 grams was pure methylamphetamine. A commercial quantity of methylamphetamine is 50 grams pure, or 250 grams mixed. Whilst the quantity found in your possession clearly exceeds the commercial quantity threshold, the Crown case is put on the basis that it could not be proved beyond reasonable doubt that you intended to traffick a commercial quantity. You will be sentenced accordingly.
Gravity of offending
15I accept that the small amount of methylamphetamine found in your dresser was likely to be for your own personal use.
16Otherwise, it is trite to say that this is extremely serious offending.
17In terms of the traffic in methylamphetamine charge, it is relevant to the sentencing exercise that you did have a significant quantity of that drug, albeit for a single date. There were six almost ounce packages on your person, obviously on their way to or from somewhere, with a further 28 grams or ounce waiting at your home. The identified purity was high.
18The trafficking in heroin charge is also for a single date. A traffickable quantity of heroin is three grams mixed. You therefore had some nine times a traffickable quantity.
19In the circumstances of your case, and under a quantity based sentencing regime, the quantity of drugs is a significant indicator of the seriousness of the drug offence.
20I accept that, apart from the quantities in your possession and their packaging in effectively ounce lots, there was no evidence of an ongoing business; no text messages, no tick lists, no recorded communications. The case is put on the basis of your possession of these drugs for the purposes of their sale. Still, it would appear that you were able to access not insignificant amounts of methylamphetamine (particularly) and also heroin in one ounce bundles. I accept that this is indicative of an intention to traffick drugs at a level which far exceeds street or low-level dealing. The amount, purity and packaging would support that finding.
21The fact that you had two serious drugs of addiction would also indicate that you intended to be a resource or supplier for more than one drug.
22Whilst not provided with any information as to the valuation of the methylamphetamine or heroin found with you, I accept in general terms that each is a profitable drug, which simply must have formed part of your motivation, if not your primary one, according to your own instructions.
23For your own needs you were prepared to be involved in the pernicious trade of drug trafficking. It is a lucrative business with enormous negative and devastating impact on the community through the offending that results from drug addiction, the physical and mental health impacts and the behaviours drugs then produce. You would have been aware of this from your own experience as a user.
24General deterrence, denunciation and community protection are important parts of the sentencing mix and the message needs to be clear to those who may be tempted to engage in such activities that stern punishment will result.
25The same principles have application to your other offending.
26I am genuinely concerned about the guns found in your possession, given the number and the nature of the particular weapons, the majority of which were high powered.
27The purposes of the legislation, as it relates to firearms, is based on the community interest in maintaining proper systems for licensing and regulation of their possession, use, disposal and registration. It is designed to protect against the risk that attends the accumulation of weapons illegally and the difficulty then in the detection of those who chose to do so. Recent history would indicate that bad things tend to happen.
28The guns found in your possession were all bundled together under your bed. At a later stage I will refer in more detail to a psychological assessment of you, undertaken by psychologist Luke Armstrong, during which you explained to him that this collection of guns was because of your fascination with them, rather than any more sinister purpose. As sceptical as I may be about that explanation, there is no evidence to the contrary, apart from the collection and the nature of the particular guns themselves. There was no evidence they were used in the commission of any offence or associated with your offending. You will be sentenced accordingly.
29Whilst the summary offences pale in comparison to those on the indictment, possession of knuckledusters and indeed, multiple forms of ammunition when also in possession of firearms, is of obvious concern. I am of course restricted by the available maximum penalties, but your offending needs to be seen in its overall context.
30On my assessment, your moral culpability for all of your offending would appear to be high.
Plea of guilty
31You have, however, taken responsibility for your offending through your pleas of guilty.
32The Sentencing Act obliges me to take into account the stage at which you entered your plea. You indicated your willingness to plead guilty to the charges on this indictment, following participation in the case conferencing process, as part of the County Court's response to the COVID-19 pandemic.
33Case conferences are designed to discuss pathways to resolution where possible, or to narrow the issues prior to any listing of a trial. Your decision to resolve and plead guilty in the context of the COVID-19 pandemic has additional utilitarian value, as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed.
34In the recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph 39, the Court of Appeal said:
'For these reasons, we consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time...'
35You were committed for trial on a more serious charge. You had at an earlier stage indicated a willingness to plead guilty to all but the trafficking in heroin. The resolution which ultimately unfolded therefore in effect represented your first opportunity to plead guilty. In that sense, it remains a plea at an early stage and this fact is recognised by the Crown.
36Your plea also has utilitarian value in saving the court the time and expense of contested proceedings and the witnesses the need to attend court and give evidence. Based on other material before me, I do accept your plea is born of remorse.
37These factors will all be taken into account in your favour.
Personal circumstances
38In terms of your personal circumstances, you are now aged 32 years.
39Your counsel submits that you have had a myriad of problems of a significant nature and this would appear to be an accurate description.
40Your parents were factory workers and would work six to seven days per week. They had emigrated from China, but you were born in Australia. You have an older sister, Donna, who is your mother's child. She is older than you by some 11 years.
41Your father was described as an abusive alcoholic prone to angry and violent outbursts and other irrational behaviour. He ceased work in the year 2000, after a workplace incident, when you were aged 11 years. You don't recall time with him when he was sober.
42You tried to protect your mother from your father but describe her as someone that was incapable of showing affection towards you.
43You grew up in Dandenong and obtained a Year 9 education. You did not enjoy schooling. It was an environment in which you were subject to bullying. In response, you taught yourself martial arts and began to collect related weaponry.
44In 2007, you were referred for neurosurgery after identification of a tumour on the brain.
45You left school to commence full time work in plastering and carpentry until you suffered a workplace injury in 2011. That injury was to your back. By this stage, you were already gambling and had also began using the drug Ice, as well as cannabis. Since then, you have also experimented with cocaine and heroin.
46On 10 October 2012, you appeared at the Melbourne Magistrates' Court on a single charge of intentionally causing injury and were placed on a community corrections order for a period of nine months without a conviction being recorded. This is the only matter on your criminal record and has little relevance for the sentencing exercise, other than you were compliant with the corrections order imposed upon you.
47You obviously have no recorded history with guns or drug trafficking.
48You do, however, have a longstanding association with drug use, as has already been partially outlined. You have been hospitalised on a number of occasions directly related to drug use and overdose, including a heart attack in 2014, linked to alcohol and cocaine abuse.
49In 2016, your father suffered three heart attacks whilst holidaying in China and there were concerns that he would not recover. You travelled to China to assist and your father was fortunate to regain his health. He also regained his drinking habits.
50In 2018, you were ultimately compensated for your back injury from 2011, but it was an arduous process to reach this stage and you found the $45,000 you received after the deductions of legal expenses to be paltry. Stem cell surgery you undertook on your back in Taiwan around the same time did not assist you with your pain levels.
51You were on WorkCover as a result between the ages of 22 and 29 years.
52You do not appear to have formed any intimate relationships.
53Approximately seven years ago, you started your own business, Prosperity Developments, bringing in decorative items from China. This business was successful until you met a man by the name of Alex Tvarovski. You instruct that he convinced you and other family members to invest in an elaborate loan scheme. You used properties owned by yourself and family members to participate. You say Mr Tvarovski absconded with the monies, leaving you with substantial debt and feelings of obligation and regret to the family members whom you had encouraged to invest. This included your sister and parents. In total, you instruct that in excess of $900,000 was lent and lost.
54Your resort to criminal behaviour the subject of the indictment was primarily an effort to recoup moneys lost to Mr Tvarovski and regain your financial position, although I note you were also using drugs at the same time.
55You are fortunate that your sister Donna is very supportive of you, but she does have significant problems of her own.
56A psychological report dated 9 June 2021, authored by Mr Luke Armstrong, discloses sexual abuse of your sister by two family members. Your sister ran away from home in her teens as a result of your father's violence and alcohol use. Given she is 11 years older than you, this left you on your own with your mother and father when you would have been quite young. Donna has had four suicide attempts, one more recently. She has also separated from her husband of some 19 years and has the care of one of their four children, that child being autistic.
57A psychiatric report authored by Dr Sangeeta Raghav dated 8 May 2021, confirms that Donna has a history of self-harm and presents with borderline personality disorder. Donna has recently been stabilised on medication and in terms of her treatment.
58Your sister gave evidence at your initial plea on 29 June 2021, describing how difficult things have been for her in your absence. She was trying to provide support for your mother, her stepmother, but found this difficult with your father at home, because of his continued use of alcohol and her history of being a victim of his domestic violence. She refused to enter the house if your father was present, which made it very difficult for her to care for your mother.
59Donna was also trying to stabilise her own mental health, whilst trying to care for her daughter and deal with the breakdown of her marriage.
60I accept the concern for both your sister and mother in that context would weigh upon you whilst on remand and I was certainly prepared to take into account those circumstances in a general sense after your initial plea hearing.
61You have also suffered a range of minor medical problems over the years and your medical records were tendered and have been taken into account by me.
62The only condition affecting you at present and whilst in the custodial setting is your continued back injury and the associated pain. You cannot access strong painkillers and in fact created a string and rope system to hang your personal belongings to reduce your need to bend and lift. This was seen as a safety risk and was confiscated and you were punished.
63Two psychological assessments of you dated 19 December 2019 and 24 June 2021 respectively, authored by Luke Armstrong, psychologist, have been tendered on your behalf. I referred to those at an earlier stage.
64Mr Armstrong does set out much of your personal history in those reports.
65In his first report dated 19 December 2019, you had been in custody for a matter of weeks. You told Mr Armstrong that in the context of losing money to Mr Tvarovski, you designed a moneymaking scheme by the selling of drugs. You were bingeing on alcohol and drugs at the time.
66As part of his assessment, Mr Armstrong found that it was your use of the drug Ice and the criminal associations which you then made that exposed you to firearms. You became curious and began to collect them, as they made you feel, as he said, “cool and powerful.” Later, they gave you a sense of self-protection. Mr Armstrong assessed your interest in firearms as both childlike and immature and one which enhanced your “self-adequacy.” I remain concerned about the potential risks associated with a user of methylamphetamine with some perceived need for self-protection, who also has access to high powered weapons and ammunition. I accept that this risk was obviously not realised, nor was it a risk that Mr Armstrong saw as a live one.
67You were diagnosed by Mr Armstrong as having stimulant use disorder and gambling use disorder. He was concerned that there were also presenting features of borderline personality disorder.
68Otherwise, you were assessed at that time as presenting with a low risk of future violent offending with a firearm and treatment was recommended for you to undertake drug rehabilitation.
69Mr Armstrong's most recent report dated 24 June 2021 was extremely positive. He saw your presentation as improved since his last assessment some 18 months prior. He saw any personality disorder as being in remission. Similarly, your drug use and gambling use disorder also appear to be in remission, although I note that would have some relationship to the simple fact that you have been remanded in custody.
70He saw your transformation, or reformation, as he described it, as being obvious. Mr Armstrong views this change as firmly linked to your newly discovered faith in God and your reliance on the Bible and its teaching. This has been a motivator for you to embrace education, find positive peer relationships and a desire to reintegrate into society. He sees this as the foundation for a positive assessment of your present prospects for rehabilitation.
71I note that Mr Armstrong was also called to give evidence at your plea hearing on 29 June 2021. He gave evidence that your adherence to religion was genuine and was a reforming influence. I take the contents of his report and his evidence into account.
72It would appear from his evidence overall that there is little impediment to your rehabilitation if you can access drug treatment and perhaps some psychological assistance.
Prospects of rehabilitation
73In terms of your prospects of rehabilitation, they initially presented as somewhat difficult to assess in the context of your longstanding use of drugs, your trauma history and your return to drug use after periods of abstinence when life becomes more challenging for you.
74However, this is your first period of time in custody in the context of a very limited criminal history. There is likely to already be some sanction from the 624 days you have served to date, as well as a deterrent effect.
75Your remand has also occurred, at least for a substantial period, during the Corrections response to the COVID-19 pandemic.
76At various stages, this has included no physical visits from friends or family, limited access to exercise, limited access to rehabilitative and training programs and in these circumstances, the impact of the COVID-19 pandemic has been raised on your behalf. I have had recourse to recent decisions of the Court of Appeal in terms of this pandemic and its relevance to sentencing.
77I accept in your case this has at least meant less access to personal visits when your family has been through a particularly difficult period. I understand you have been unable to see your mother and probably not your sister either. You do not appear, given materials tendered, to have had less access to courses and programs. You have been fortunate to attain a billet's position, so you have had some greater movement than other prisoners. I accept, however, that the Corrections' response to the pandemic has meant some additional stress, which can make the custodial setting more difficult than that when the prison system is not having to respond to the pandemic. You have experienced both phases during your remand to date.
78You are also beginning to appreciate how your actions affect others besides yourself. A property you owned with your parents has been restrained as a direct result of your offending behaviour. Family circumstances as already outlined have highlighted for you their respective difficulties in your absence, albeit an absence brought about by your own actions. I also accept that you are well supported by your mother and sister, both of whom attended at your plea hearing. I also accept that you are a source of support for them, and these relationships are a positive motivator for you.
79You have used your time wisely in the prison setting and have undertaken an extensive range of rehabilitative and educational courses. Many certificates were tendered. These have included drug rehabilitation programs, literacy programs, education in business planning, use of technology, budgeting and workplace safety. I accept that you are doing your utmost within the custodial setting to put yourself in the best position for your eventual release into the community.
80Probably the event for you which allows for the greatest optimism for positive change is your recourse to religious faith.
81A letter from Crossroads Prison Ministries dated 31 May 2021 confirms that you enrolled in your first course with them in August of last year and after 12 sessions, completed that course, before enrolling in another. You are described as showing good effort and this forms very much part of your daily life whilst in the prison system.
82In addition, you have written your own letter to the court, in which you express your shame, guilt and remorse for your offending. Whilst I tend to find such letters to be self-serving, you refer to using your time on remand to reassess your goals and your desire for reform. I encourage you to maintain those insights and desires.
83Your prospects for rehabilitation would have to be good at this time, considering the many factors raised on your behalf in detailed written and oral submissions. This includes your limited history, the impact of your remand and available supports, such that in my view, less weight need attach to specific deterrence and to protecting the community from you at this time.
Sentencing submissions
84At your initial plea hearing on 29 June 2021, your counsel submitted that all the relevant sentencing considerations could be properly reflected in the imposition of a combination sentence - that is, a term of imprisonment in combination with a community corrections order. I was asked to take into account hardship to your family, given the evidence given by your sister and the materials tendered as to her mental health.
85Section 44 of the Sentencing Act allows the court to make a community corrections order in addition to imposing a sentence of imprisonment, only if the sum of all the terms of imprisonment to be served after the deduction of any period of custody to be reckoned as served is one year or less. You had 595 days available by way of presentence detention at that time.
86The Crown submitted that your offending was too serious and that a head sentence with a non-parole period should be imposed. I indicated at that time that I did not accept that a combination sentence was available, in proper consideration of all matters raised. This included the gravity of your offending and the need for general deterrence and denunciation.
87Your matter was listed for sentence on 15 July 2021.
88In the meantime, there was a significant development in the family context. Your father died in his sleep on 4 July 2021.
89A further plea hearing was instead held on 15 July 2021.
90A letter from your mother's doctor, Dr Ngai, was tendered, which explained that your mother was suffering from a grief reaction, which included anxiety, depression and insomnia. She was in need of supervision.
91References were also tendered from family members Tony and Peter Zhao, explaining that your mother and sister were affected by your father's death and their concern that this event, and its impact on your family in your absence, was also affecting you.
92Evidence was again called from your sister Donna, who explained that your mother was very grief-stricken, as your father's death was unexpected. She gave evidence that your mother needed constant supervision, supervision she could not offer, given her need to look after her own mental health and her autistic child. She had, however, made arrangements to stay with your mother at weekends.
Hardship
93Further submissions were filed on your behalf, addressing the hardship now faced by your mother and sister in the absence of your father and whilst you were on remand in what would be a difficult time for most families in such a situation.
94Courts in the past have made clear that hardship to a third party, such as family members, can be relevant in mitigation where the circumstances are highly exceptional. In order to rely on family hardship, or the need for mercy as a mitigating circumstance, it needs to be demonstrated that there are exceptional circumstances. This is a high threshold. It is almost inevitable that imprisoning a person will have an adverse effect on a person's dependence and loved ones, although I appreciate one event in particular has occurred during your remand time.
95Whilst the situation has changed from your initial plea in June in terms of the hardship for your mother and sister in your father's presence, to the unexpected difficulty imposed by his untimely death, both situations reflected personal difficulty faced by close family members whilst you were in custody and the benefit to them in you being available and part of the community.
96I do accept that your distress at the loss of your father and inability to assist your family at this time can be taken into account in mitigation of sentence in a general sense. I am not satisfied, however, that it reaches the stage of hardship, such that it should have a significant impact on the sentence to be otherwise imposed.
Sentencing
97I turn now to sentencing.
98I make the ancillary orders as sought for forfeiture of the guns, ammunition and the $9,466.55 in cash located by police. A disposal order is made in relation to the drugs located.
99The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your level of culpability for it, as well as your personal circumstances.
100I must also balance the interests of the community in denouncing criminal conduct, with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are safely reintegrated into society.
101I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act, where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the important principles of both totality and proportionality.
102I sentence as follows.
103For the summary offence of deal property suspected to be the proceeds of crime, you are convicted and fined the amount of $1,500.
104For the summary offence of possessing a prohibited weapon, knuckledusters, you have convicted and fined the amount of $750.
105For the summary offence of possessing cartridge ammunition, you are convicted and fined $1,000.
106In terms of the indictment, on Charge 1, traffick in a drug of dependence, methylamphetamine, you are convicted and sentenced to three years and six months imprisonment.
107On Charge 2, possess two or more firearms in a traffickable quantity, you are convicted and sentenced to two years imprisonment.
108On Charge 3, traffick in a drug of dependence, heroin, you are convicted and sentenced to 18 months imprisonment.
109For Charge 4, possess drug - which I accept was for your own use - that charge is proven and dismissed.
110Four months of Charge 2 and four months of Charge 3 are cumulative on each other and the sentence imposed on Charge 1.
111Your total effective sentence is therefore one of four years and two months imprisonment.
112In my view, there is considerable merit in an extended period of supported transition, on your return to the community, given my assessment of your prospects for rehabilitation. With that in mind, you are to serve two years and four months, before being eligible for parole and 624 days are reckoned as having already been served in accordance with that sentence.
113Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, you would have been sentenced to a total of five years and six months imprisonment, with a minimum of four years imprisonment, before being eligible for parole. Ms Piccone, anything I've missed from your end.
114MS PICCONE: Nothing further from me, Your Honour.
115HER HONOUR: Mr Melasecca?
116MR MELASECCA: No, Your Honour, thank you.
117HER HONOUR: Thank you, Mr Melasecca, I'll leave you to speak privately with your client.
118MR MELASECCA: Thank you. Thank you very much, Your Honour.
119HER HONOUR: And I'll close the court until 10 o'clock tomorrow morning.
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