Director of Public Prosecutions v Chamroeun

[2018] VCC 810

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00297

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMNEANG CHAMROEUN

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2018
DATE OF SENTENCE:	4 June 2018
CASE MAY BE CITED AS:	DPP v Chamroeun
MEDIUM NEUTRAL CITATION:	[2018] VCC 810

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Traffick commercial quantity of heroin; Deal with property suspected proceeds of crime; subsidiary role of offender; low range offending; specific deterrence

Legislation Cited:                   Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic);

Sentence:Total Effective Sentence of three years and nine months’ imprisonment, non-parole period of 21 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Manova	Office of Public Prosecutions
For the Accused	Mr M. Kelly	Melasecca Kelly & Zayler

HIS HONOUR:

1Samneang Chamroeun, you have pleaded guilty to one charge that between
1 January 2017 and 26 April 2017, you trafficked in heroin in a quantity that was not less than the commercial quantity as defined by the Drugs, Poisons and Controlled Substances Act.  You have also pleaded guilty to a related summary offence that between 15 April 2017 and 26 April 2017, you dealt with a total of $33,175 in cash, suspected of being the proceeds of crime.

2The circumstances of your offending were set out in the summary of prosecution opening tendered as Exhibit A on the plea.  In summary, you commenced a de facto relationship with Jenny Di Blasio in around April 2015.  You were both heroin addicts.  At the relevant time, you lived with Ms Di Blasio at 15/660 Blackburn Road in Notting Hill.

3On 9 March 2017, police attended at that address in relation to a report of an aggravated burglary.  You and Ms Di Blasio alleged that two masked men forced entry into your flat and brandished a shotgun and stole money.

4On 14 April 2017, police again attended in the vicinity of your apartment in respect of a homicide that had occurred nearby.  Whilst making enquiries about that matter, investigators discovered a CCTV monitor in your lounge room, which was linked to a camera positioned to film activity on the balcony/porch area.  The CCTV footage was seized because it was thought that it might be of assistance in the homicide investigation.

5A review of files which had been deleted from the device revealed that on multiple occasions, unknown persons attended the balcony of your unit.  They could be seen to walk to the side of the landing area, and then briefly exchange small items with either yourself or Ms Di Blasio.  Having done so, they would leave immediately.

6A search warrant was executed on 15 April 2017 at the Notting Hill unit.  Police located and seized a number of items, including plastic bags containing an off-white rock substance, digital scales, resealable deal bags, $31,535 in cash, and various other items consistent with the premises being used as a place of business for the trafficking of drugs. 

7You were arrested and made a no-comment record of interview with police.  However, after the interview you provided a sworn statement to investigators indicating that you had been involved in trafficking in heroin from your home address.  You described the trafficking as "small time", to support your addiction.

8Nine days later, you were again arrested with Ms Di Blasio at the home of an associate in Springvale South, where you had been living temporarily.  In the room occupied by you and Ms Di Blasio police located, among other things: digital scales; foils; cash to the value of $1,640, and a 2017 diary labelled "Jenz and Nangerz No.8416". 

9The diary contained daily records of drug transactions in the period 1 January 2017 to 26 April 2017.  When you were interviewed about the diary, you admitted that your nickname was Nangerz, however, you indicated that you could not recall writing in the diary, and made no comment as to the allegation that the diary contained drug transactions.  Ms Di Blasio was also interviewed at this time and apparently admitted that she was the owner of the diary, but made no comment with respect to its contents.

10On 11 May 2017, you were arrested at the Notting Hill unit and remanded in custody.  At that time you made some limited admissions, but made no comment as to the substance of the allegations. 

11Analysis of the drugs showed that 94.8 grams of substances seized contained heroin, with the purity varying between 16-80 per cent.  14.1 grams of substances containing methylamphetamine at a purity ranging from 74-82 per cent was also seized.

12The prosecution case against you and Ms Di Blasio is put on the basis that you were engaged in trafficking heroin, as disclosed in the seized diary.  Both of you were depicted as trafficking in the CCTV footage.  The total amount trafficked by both accused, as documented in the diary, is as follows:

(1) For January 2017, 712 grams at a total of $116,744.

(2) February 2017, 620 grams at $84,000.

(3) In March 2017, 669 grams at $90,000, and;

(4) In April 2017, 357 grams at $46,499.

Making a total of 2,360 grams, involving $337,602.

13The related summary charge comprises cash seized from the premises at both Notting Hill and Springvale South in the total amount of $33,175, which was suspected of being the proceeds of crime.

14Your plea of guilty accepts that you were trafficking in no less than a commercial quantity of heroin (that is, 500 grams of pure and mixed substance), during the relevant period.  As I understand the prosecution case, whilst you engaged in this trafficking jointly with Ms Di Blasio, the Crown accept that your role was subsidiary.  Phone calls made by Ms Di Blasio once she had been placed in custody show her directing you to provide her mother with money derived from the business.  The summary of prosecution opening states:

"This demonstrates the role of Chamroeun as second-in-charge, and not the lead organiser."

15Ms Di Blasio apparently also maintained the diary, which evidenced the transactions relied upon.  It was therefore accepted that Ms Di Blasio was the principal operator of the business, and that something in the order of two thirds of the transactions involved were attributable to her.  I am told she is pleading not guilty to these charges, and her matter has been listed for trial.

16Mr Trood, who appeared on your behalf, sought to further contextualise your offending by pointing out that the nature of this business was to sell in relatively small quantities at street level in support of your entrenched drug addiction.

17Accordingly, it was submitted that whilst this offending reached the commercial quantity threshold specified in the legislation, it could properly be characterised as falling within the lower range of that category.  I accept that the offending and your role in that offending should be characterised in that way.  However, in so doing, I cannot lose sight of the fact that the trafficking of heroin, particularly with this frequency over this duration, is regarded by the legislature and the community as a very serious offence, punishable with 25 years' imprisonment.  The turnover of this business, of which you were a part, was in the range of hundreds of thousands of dollars, and it was capable of causing immeasurable harm.

Personal circumstances

18You were born in Cambodia on 31 October 1984, and are now 33 years of age.  Your family fled that country as refugees when you were about ten months old.  You had three elder brothers and a younger sister.

19When your family came to this country, your parents initially worked in factories, however, after a period of time your father opened a jewellery business, which became reasonably successful.  Both of your parents, however, were deeply affected by their experiences in Cambodia.  They have now separated, and for reasons I will shortly explain, your relationship with them became distant.

20There were also financial difficulties apparently caused by your father's gambling problems.  Your family had high expectations of you, which you struggled to meet.

21A reference was provided by your elder brother, Khada Chamroeun, of 24 May 2018, which describes you when you were growing up as a "popular and bright kid" who excelled in sport and also academically.  However, during high school you were introduced to drugs, initially cannabis, and by the age of 16 or 17, heroin. 

22At that point, your grades and your relationship with your family deteriorated noticeably.  Your teachers would often comment about your promise and your potential, but unfortunately that was never realised.  You left school and worked in a number of sales jobs, but you were not able to sustain long-term employment due to drug abuse.

23I note that you have had two previous appearances before the courts.  First in February 2010 when you were 25 and involved some burglaries and thefts from shops, that resulted in you being placed on a community-based order for a period of 12 months with treatment conditions.  You completed that order without breach.

24The second appearance was in September 2015 in respect of driving and theft charges, for which you were convicted and fined.  Your criminal history is therefore not as extensive as one might expect, given your longstanding addiction to heroin.  Your brother, Kada, explained in his reference that you have consistently sought treatment over many years, and your failure to overcome your addiction has not been through want of trying. 

25This is your first time in prison, and the last 13 months or so has apparently caused you to reflect on the impact your drug abuse and offending has had on your family and friends.  Your brother states that your family have noticed a positive shift in your attitude, which they attribute to you not using drugs during that time. 

26During your time in custody, you have been placed on a methadone program, and I am told that you remain compliant with that program.  You have been subject to random drug urinalysis on two occasions, which have returned negative results.  You have successfully participated in three rehabilitative programs to address your addiction.

27You have also undertaken adult education courses in workplace safety, cleaning and general education.  Those achievements tend to support your brother's assessment that you have adopted a much more positive outlook.

28I also take into account the fact that unlike your co-accused, you have pleaded guilty, and that you have done so at what should be regarded as a reasonably early stage in the proceedings.  Your plea facilitates the course of justice, marks your acceptance of responsibility for your offending, and taken together with your efforts of rehabilitation in custody, is supportive of the submission that you are genuinely motivated to deal with your addiction and your offending.

29Ms Manova, who appeared on behalf of the Crown, submitted that despite those positive factors, your prospects for rehabilitation should be nevertheless regarded as guarded.  I accept that that is so.  It is one thing to do well in custody, it is quite another to do well once back out in the community.

30Mr Trood on your behalf was alive to this consideration.  He argued that you would benefit greatly from the supervision offered under parole, and that a lengthy period on parole would enhance your rehabilitative potential.  In my view, that submission has considerable force in your circumstances, subject as it must be, to the need to give appropriate emphasis to both general and specific deterrence.

31In respect of the summary charge of dealing with money in the amount of $33,175 suspected of being proceeds of crime, Mr Trood submitted that it was appropriate that a totally concurrent sentence be imposed with respect to that offence, because the proceeds were derived from the trafficking the subject of the first charge, and thus encompassed by that offence.  The Crown, as I understood it, took no issue with that submission. 

32Mr Chamrouen, on the charge of trafficking in heroin in a quantity not less than the commercial quantity applicable to that drug of dependence, you will be convicted and sentenced to three years and nine months' imprisonment.

33On the summary offence of dealing with money suspected of being the proceeds of crime, you will be convicted and sentenced to three months' imprisonment.  I will not make any orders for cumulation.

34The total effective sentence will therefore be three years and nine months' imprisonment, and I will fix a non-parole period of 21 months. I will order that the period of 388 days be reckoned as already served by way of presentence detention. I will further order that pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have imposed a total effective sentence of five years, with a non-parole period of three years. 

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