Director of Public Prosecutions v Chung

[2016] VCC 1830

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02026
CR 15-02024
CR 15-02084

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHI CHUNG
VASILIOS MAIKANTIS
LOC TRAN

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 November 2016
CASE MAY BE CITED AS:	DPP v Chung
MEDIUM NEUTRAL CITATION:	[2016] VCC 1830

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
Department of Public Prosecutions	Ms D. Karamicov
Accused Chung Accused Maikantis   Accused Tran	Mr D. McKenna with Mr M McGrath Mr J Saunders Ms U. Ebsworth

1HIS HONOUR:  Loc Duy Tran, you pleaded guilty to one charge of trafficking in a drug of dependence, namely, cannabis, in a quantity that was not less than a large commercial quantity.  You also pleaded guilty to trafficking in a drug of dependence, namely, heroin, in a quantity that was not less than a commercial quantity.  You pleaded guilty to two charges of making, using, and supplying identification documents for the purpose of committing an indictable offence; namely, the renting of premises for the purpose of trafficking in a drug of dependence.

2Vassilios Maikantis, you pleaded guilty to one charge of cultivation of narcotic plants in not less than a commercial quantity.  You also pleaded guilty to trafficking in a drug of dependence; namely, cannabis L.  You have also pleaded guilty to breaching a suspended sentence that was imposed on 30 September 2013, by Her Honour Judge Nicholson.  You pleaded guilty to breaching a Community Corrections Order that was imposed upon you in the Magistrates' Court at Heidelberg, on 14 February 2014. Further, you admitted prior criminal convictions, some of them going back many years, to the 1970s.  During the 1970s and 80s, you were convicted of a large number of offences relating to gambling; including, but not limited to, being found in a common gaming house; using premises for gaming; playing an unlawful game, and the like.  Those priors provide a powerful foundation for the findings made by Mr Newton, in a psychological report. Your counsel made the submission, in relation to your chronic and serious gambling addiction, that it formed part of the explanation for your involvement in these drug offences.  I note that your previous offences, although numerous, did not involve any drugs.  They either involved gambling or offenses of dishonesty; which I infer, were committed for the purpose of funding your shocking gambling addiction.

3Mr Chi Chung, you pleaded guilty to one charge of cultivation of narcotic plants in a commercial quantity.  You have no prior convictions, whatsoever. 

4You may sit down, gentlemen, and I will proceed to my lengthy sentencing remarks.

5In relation to the charges concerning the cultivation of cannabis, for which each of you have pleaded guilty to, it can be said, by way of introduction, that between July 2014 and January 2015 the three of you, together with others, were engaged in what can be described as a business of cultivating and trafficking cannabis on a very large scale.  There is no actual evidence before me of trafficking, per se; although, you, Mr Tran, have pleaded guilty to a charge of trafficking, as I understand it, on the basis that the cultivation in which you were involved was for the purpose of trafficking.  This cannabis was cultivated as part of a joint criminal enterprise, in which each of you had separate and distinct roles.  The joint criminal enterprise included the following activities:

i.the procuring of rental properties for the purpose of cultivating cannabis;

ii.arranging for the inspection of those properties to determine their suitability for that purpose;

iii.the payment of rent and bonds;

iv.the setting up of the properties with hydroponic equipment;

v.illegal electrical bypasses;

vi.planting cannabis plants in those properties;

vii.the arranging of crop sitters, as well as, the arranging for managers;

viii.dealing with crop sitters;

ix.the arranging for the removal of the cannabis plants, that is, for their harvesting in preparation for sale; and,

x.the arrangement for the properties to be rehabilitated and cleaned prior to being returned to their lawful owners at the end of the lease terms. 

I emphasise that not each of you three men were involved in all of those activities.  However, I find that you, Mr Tran, were involved in all of those activities, directly or indirectly, in one way or another. 

6In relation to your particular roles, the case is that you, Mr Tran, were engaged in this business on a large scale, from July 2014.  Mr Chung and Mr Maikantis, you became involved at a later stage, sometime in August 2014.  The three of you were involved in procuring rental properties; however, you, Mr Tran, in particular, were also involved in the setting up of the hydroponic cannabis cultivations, and engaging and making arrangements with crop sitters and managers of the respective properties. As your counsel conceded, whatever noun is used to describe your role, whether it be principal, or not, you were involved at a very high level, in a most significant role.  Whilst you may not have been the only principal, according to the instructions you gave to your counsel, you are not the instigator, you are not the architect, but you had been co‑opted to do what you did.  I find that you were one of the principals; although, you may not have been the only person in the same, or similar, position.

7Mr Maikantis, your main role was in procuring the rental properties.  Mr Chung, your main role was procuring, I believe, at least one property; and, generally inspecting properties to confirm that they were suitable for the purpose of cultivating cannabis.  There were various managers and crop sitters engaged by you, Mr Tran, as I've said, and with whom you, Mr Maikantis, had some involvement.  Three of the known managers have already been sentenced by me; namely, Xuan Phuc Ha, Kien Nguyen, and Hang Cao.  Each of them are presently serving a sentence of imprisonment. As far as the rental properties were concerned, each of you had pleaded guilty on the basis that you were, each of you separately, directly involved in 12 properties.  It should be noted that those are not the same 12 properties in each case.  There is a certain amount of overlap.  No one has actually calculated how many properties, all together, are involved between the three of you. 

8Police eventually searched each of the rental properties in question. The police found, either, hydroponic cannabis cultivations underway; or, evidence that the property in question had previously been used for such purposes.  Each of the properties exhibited limited signs of habitation and, in each of them, all or at least most of the rooms in the buildings had been set up for highly sophisticated hydroponic cultivation.  Each property in question included storage facilities for hydroponic equipment and supplies, and the like.  This was clearly a carefully planned and managed, sophisticated hydroponic cultivation business. Investigations eventually revealed that each of the properties had been leased for this purpose, for periods ranging between six and 12 months.  Nearly all of the properties were residential properties throughout the suburbs of Melbourne.  In the 12 properties, to which you have pleaded guilty to being involved with, Mr Tran, the total number of cannabis plants was 1,255, which had a total weight of 272.41 kilograms.  An additional 26.8 kilograms of loose, or dried, cannabis was located at those properties, Mr Tran, resulting in a total weight of cannabis of just under 300 kilograms, constituting what the law calls a large commercial quantity. In the properties to which you have pleaded guilty to being involved with, Mr Chung, a search of those properties revealed 967 cannabis plants, weighing 251.49 kilograms.  In relation to your activity, a review of the telephone intercept material, conducted by the investigators, demonstrated that your main role was to inspect those properties to determine their suitability for large scale hydroponic cannabis cultivation.  Mr Maikantis, in relation to the 12 properties in which you were involved, the police seized 901 cannabis plants weighing a total of just under 294 kilograms.

9‘The summary of prosecution opening’, which was tendered and marked Exhibit A, sets out in comprehensive detail the particular role each of you played and the details of the evidence gleaned by investigation; particularly, the analysis of the relevant telephone intercept material.  There is no need for me to repeat any of that detail here.  Exhibits C, D and E, respectively, were synopses in relation to the involvement or the particular role that each of you carried out in this business.  Exhibit C, in relation to you, Mr Tran, makes it clear that the Crown allege that you were involved, at a high level, in all of those activities which I summarised earlier, directly or indirectly, in relation to the procurement of the properties, the payment of moneys, bond and rent, the set-up of the hydroponic equipment, electrical by-passes, planting of the cannabis seedlings, the engagement of crop sitters and managers, dealing with them throughout the period of the operation, and the like.

10In relation to Charge 2 on your indictment, Mr Tran, you also pleaded guilty to trafficking in heroin in a commercial quantity.  The evidence reveals that, in relation to heroin, you became involved as part of a joint criminal enterprise with Jade Trinh, with the assistance of Quang Duc Dong, to traffic in a commercial quantity of that drug.  Between September 2014 and November 2014 you arranged, or attempted to arrange, the supply of heroin to the undercover police operative who was referred to in the material as CO282.  That heroin was sold to that undercover police operative by Jade Trinh, after you supplied heroin to her, which had been delivered to you by Dong. The first arranged supply of six ounces was cancelled.  It had been planned to take place around 18 September 2014. However, the transaction was cancelled after you were unable to obtain the supply from your supplier.  Subsequently, you arranged to supply Trinh with heroin to sell to CO282 on two distinct occasions.  On 20 October 2014, six ounces or 166.6 grams of heroin, at 60 per cent purity, which you had arranged, was sold to the undercover operative for $60,000.  On 20 November 2014, 12.5 ounces, or just under 350 grams of heroin at, 70 per cent purity, was sold.  The total amount of heroin sold was 515.5 grams, which constitutes a large commercial quantity of that drug; although, it must be conceded that it was very much at the lower end of the range in relation to large commercial quantity, which is defined as being in excess of 500 grams.

11In relation to Charges 3 and 4 on your indictment, Mr Tran, these charges concerned a purported proposal to set up a hydroponic cannabis cultivation factory in Bayswater. This was discussed with CO262 and another undercover operative.  You offered to supply him with two false Victorian drivers licences, that he could use as proof of identification, in order to lease premises for the purpose of cultivating cannabis.  That undercover police operative paid you $4,000 for two false licences, which you eventually supplied to him in the names of ‘Cummins’ and ‘Lewis’.  The maximum penalty for that offence is five years.

12In relation to your role, Mr Maikantis, Exhibit D confirms that the Crown case against you is that your main role was as the procurer of the rental properties, which Mr Tran sought for the purpose of growing cannabis.  You were named on the rental agreements for each of these properties.  The telephone intercept evidence reveals that you were involved in collecting the rent for some of those properties and in the clean-up of the properties before they were returned to the landlords.  The Crown conceded, as they were bound to do, that your involvement means that you are significantly less culpable than Mr Tran.

13In relation to Charge 2 on your indictment, Mr Maikantis, this involved an agreement you made to sell 20 pounds of dried cannabis to Mr Fortakis for $2,450 per pound.  The telephone intercept evidence revealed that Xuan Phuc Ha was to supply you with dried cannabis for $2,400 a pound.  You were to make a very minor profit from this proposed arrangement; further evidence of your desperation to obtain money to gamble.  As it turned out there is no evidence that your arrangement was ever concluded, or that the sale ever took place.  You pleaded guilty to trafficking on the basis that you agreed to sell those drugs to Mr Fortakis.

14Mr Chung, Exhibit C, the synopsis in relation to your involvement again confirms that your main role was as assessor of the rental properties and their suitability for hydroponic cultivation, on behalf of Mr Tran.  You also had some involvement in procuring at least one of those properties, and in the clean-up of properties, prior to their being returned to their owners.  There is no evidence, whatsoever, to suggest that you were involved in setting up the properties for hydroponic cultivation; that is, that you were involved in the equipment or the plants in any way.  The Crown conceded that your role was, quote, "much lower than that of Mr Tran."

15As far as the arrests and chronology of the proceedings are concerned, as I understand it, Mr Maikantis, you were the first of the three offenders to be arrested.  On 8 January 2015, the police executed a search warrant at your home in Wheelers Hill.  It must have been a most distressing experience for your wife and your mother.  They also searched your car and various items were seized.  They searched other premises that were significant in your life; the Sports Bar in Clayton, where you spent your day’s playing cards and gambling; and, the offices of City Wide Real Estate, through which the premises had been rented and the gambling records from Crown Casino were obtained. These records revealed that, in the year 2014 alone, apart from any money that you wasted at the Sports Bar in Clayton, you lost $210,331 at the casino. You were interviewed by the police later that day, on 8 January 2015, after you had been arrested.  To your credit, you made significant admissions throughout the course of that interview and expressed remorse.  You were totally cooperative with the police.  Amongst other things, you admitted renting all of the houses.  You admitted that they had been rented, or re-rented, in connection with Mr Tran and Mr Chung.  You claim that you were initially unaware that they were going to be used for cultivating cannabis, but admitted that you became aware of that and continued to remain involved.  You admitted organising and paying for the clean-up of properties and paying the rent for houses.  You said to the police that your motive for being involved in this way was, quote, "…to make a bit of money."  You told them that you received somewhere between $800 and $2,000 a month for what you did.  You admitted that you had, quote, "…done the wrong thing", and explained that you were, quote, "…desperate for money because I'm a gambler." Having been charged on 8 January you were committed for trial later that year on 23 November 2015.  After various mentions and directions hearings, your matter was finally resolved as a plea of guilty in August 2016.  You have been in custody now since 8 January 2015, a total of 669 days, which as you will see, will be reckoned as having been already served pursuant to the sentence I will impose.

16Mr Tran, you were subsequently arrested on 23 January 2015, at the Highpoint Shopping Centre, Maribyrnong.  You were in possession of a satchel bag and the police seized various documents from that bag.  You were taken to your home address in Braybrook, which was searched under warrant and, again, various items including computers, records and other matter were seized pursuant to the warrant.  The police also executed a search warrant at your business premises, the Royal Palm Day Spa, in Braybrook, where some items were seized. You were arrested and taken to the St Kilda Road Police Station, where you were interviewed.  As far as I can glean, during the course of the interview you made no admissions.  You told the police, amongst other things, that you were a qualified real estate agent, as you were at the time, trading under the name Golden Link Consulting, which was true.  As I understand it, you did not make any other admissions but made certain denials. That, of course, is not to be held against you in any way. Forensic analysis was conducted, although, in my view, it did not produce particularly strong evidence.  However, it did reveal cash deposits during the course of six months from June 2014 to January 2015, totalling just under $150,000 of which about $40,000 was unsourced. 

17Mr Tran, the most important thing that can be said in your favour, it is a significant matter, is that you offered to plead guilty at a very early stage in the proceedings; in my view, at the earliest practical stage the offer could have been made, just prior to the committal proceedings in November 2015.  You were subsequently arraigned in this court in January 2016 and confirmed your plea of guilty. By reason of what I found to be an obvious misunderstanding and a level of confusion between your lawyers and the Office of Public Prosecutions, in April 2016, I granted you leave to change your plea.  I encouraged the parties to go back to the table, to talk sensibly and to resolve the matter again, which to their credit, they did.  The matter was finally resolved again as a plea, in August 2015.  The Crown have conceded that, quote, "in all the circumstances, in view of the complexity of the matters involved Loc Tran, that your plea is to be treated as an early plea.”  I will come back to the significance of that in due course, because it is not only early but a very significant plea, in the context of what was potentially two long and complex trials, in your case.  You have no prior convictions and I take that into account.

18Mr Chung, you were arrested on 2 February 2015, when the police executed a search warrant at your home.  A search warrant was later executed at your business premises, at LJ Hooker in St Albans.  You were arrested and charged on that day, 2 February.  I have no information as to what happened in relation to your interview.  You were committed for trial on 23 November 2015 and the Crown have conceded that throughout there was, quote, “…continuing discussion between the parties and prospects of resolving the matter.” The matter was eventually resolved in August 2015, but I take into account, in your credit, that your plea of guilty is consistent with endeavours made on your instructions, from the outset, to achieve a sensible resolution of this matter from your legal advisers' point of view.  That was finally achieved.  Accordingly, although your plea was not technically at an early stage, I give you full credit for that plea of guilty, given your attitude of wanting to plead guilty from the outset.

19Each of you had comprehensive pleas in mitigation made on your behalf.  In your case, Mr Tran, Mr Gwynn put before the court careful written submissions and careful oral submissions.  He conceded, sensibly, from the outset that there was no question but that your offending was most serious and called for the imposition of a significant term of imprisonment, bearing in mind the importance of general deterrence in a case of this kind. He, on your behalf, contritely conceded that you were motivated by nothing more than a desire to improve your financial position and to improve your status in circumstances where you perceived that your businesses were failing and you were under significant financial pressure.  Bearing in mind, your extremely early statement of your intention to plead guilty, your absence of priors and everything else I have read and heard about you, I accept your counsel's submission that you deeply regret having fallen into temptation, as Mr Gwynn put it, in becoming involved in this offending.  I accept that you have spent your time on remand ruminating over that shocking decision you made; which has now caused your life to change, forever.

20Your counsel submitted, Mr Tran, that you should be sentenced on the basis that you have very good prospects of rehabilitation, in light of the following matters; your plea of guilty, effectively, at the earliest opportunity, which is consistent with general remorse on your part; and, it is a significant plea, in all the circumstances.  Mr Gwynn submitted that you had a viable defence, despite that, you instructed that you wanted to plead guilty at an early stage. Your plea has resulted in the public utility of sparing the community two expensive long trials. He relied on the fact that you had previously been a person of good character with a good family, you are well educated and have worked hard.  He informed me that you had recently recommitted yourself to your Buddhist faith and that was now guiding your life and view of your future. I was informed that you have the ongoing support of your grandparents, and that since in custody you have used your time productively, participating in employment and numerous courses.  A bundle of certificates was tendered to bear that out. You relied on the fact that since you have been in custody you have endured unusual hardship, by virtue of significant periods of lockdown and restricted conditions at the MRC. This occurred as a result of the riots that took place there last year. 

21Your counsel has provided me with detail of your personal history, Mr Tran, which may be briefly summarised as follows.  You are 39, having been born in Ho Chi Minh City in Vietnam.  Your father died when you were only two.  Your mother relinquished your care to your grandparents; your grandparents raised you.  Your mother remarried and you have two stepbrothers in Vietnam. You came to Australia when you were aged 13, with your grandparents.  Your grandfather is now aged 84 and in ill health, your grandmother is 85.  Your grandfather was an army officer and your grandmother had been an army nurse.  They are decent people.  They made sure that you had a good education.  They sent you to St Anne's Catholic School in Seaford. Afterwards, you attended Mazenod College, a secondary school in Mulgrave. You completed school to VCE level.  You were obviously an intelligent and gifted student.  You attended RMIT and obtained a real estate certificate; you were first employed in real estate when you were aged 18.  You also completed a Bachelor of Business at Latrobe University, majoring in accounting and marketing.  You obtained your real estate agent's licence in 2003.  You met your wife when you were still very young, in 2003, when you were both studying at Latrobe University.  You have two children.

22Your marriage was already under great stress prior to your arrest, no doubt by reason of the financial difficulties you were experiencing, and the criminal conduct in which you were then engaging.  When you were charged, your wife left you and moved to Brisbane with your two children.  Your wife was unaware of the offending and felt devastated by the shame that your conduct had brought upon her and her family.  To her credit, she has allowed you to maintain contact with your two children.  You are in regular contact with them by telephone.

23I accept your counsel's submission, on your instructions, that you are strongly motivated by your desire to repair the damage that you have done and your deep hope that you will be able to reunify your family, upon your release.  Over the years your business grew.  In 2007, you took over an LJ Hooker franchise in Delahey and, in 2008, another franchise in Footscray.  Mr Gwynn told me that from his analysis you obviously overcapitalised and found yourself struggling financially and, in the end, had to sell all three of these franchises.

24You returned to Vietnam and became involved in a business there; you were involved as a business consultant in infrastructure projects.  Your wife was not happy in Vietnam and she returned to Australia with your child.  You returned the following year and were reunified with your family; around this time, your wife gave birth to your second child.  You renewed your real estate agent's licence and opened the business ‘New Horizon Real Estate’ in North Melbourne.  That business failed after 12 months. You then opened ‘Gold Link Consulting’, another real estate business, in Braybrook, in 2013. During 2014 the business was experiencing difficulties. You established the day spa business, ‘Royal Palm Day Spa’, in Braybrook.  That was not a success, either.  Your financial hardship and the pressure you were under gives some explanation to your criminal conduct, but in no way excuses it.

25Your counsel’s final submission was that, in light of the absence of any prior history, your explanation for becoming involved in this unprecedented criminal conduct, your previous good character, good education, good family, hard work, and of your remorse and early plea of guilty, I should conclude that your prospects of rehabilitation are extremely sound. It was submitted that you should be subject to a relatively early date upon which you will be eligible for parole. I accept that submission.

26Mr Maikantis, Mr Saunders prepared characteristically comprehensive and helpful submissions, which were tendered as Exhibit VM3. Mr Saunders spoke to those submissions at length.  He also conceded, as he was bound to do, that there was no option but to order you to serve a sentence of imprisonment.  Mr Saunders eventual submission was that the non-parole period should approximate the presentence detention that you have already served; in other words, to facilitate your release virtually immediately. As I made clear during the course of his submissions, my inclination was to reject that submission.  Having now carefully considered all the material, I do reject that submission.  You will be required to serve some more time in gaol before you will be eligible for parole.

27In relation to your prior convictions, I accept Mr Saunders' submission that they must be seen in the context of dishonesty and gaming. It is noted that you have no prior convictions in relation to drug offending and that your prospects of rehabilitation, in relation to any offending, are of course dependent upon you finally, at this late stage of your life, curing your gambling addiction. 

28Mr Saunders conceded that your offending was serious, in light of the fact it took place over approximately six months and involved a large quantity of cannabis.  He conceded that sentencing principals of general deterrence, just punishment, and denunciation were important factors which resulted in an inevitable sentence of imprisonment. 

29Mr Saunders referred to the psychological report of Mr Newton, which was tendered and marked as VM1.  I have considered that report carefully and I accept, on the whole, Mr Newton's findings and observations. Mr Newton found, upon testing you carefully, as he always does, that you are experiencing what he describes as "noteworthy anxiety", and that you also reported, "noteworthy depressive symptoms”. Mr Newton reported that these symptoms were significantly worse by September 2016, than when he had previously seen you in May 2015.  As I understand it, it would seem that your symptoms of anxiety and depression are situational.  I must say, for a man of your background, your health problems, and your family circumstances, to find yourself where you are, it is no surprise at all that you are extremely anxious and depressed; so would I be.  I do not mean to play down the severity of those symptoms by saying that.  I acknowledge that they are serious. Not surprisingly, Mr Newton also found that you have a, “history of uncontrolled gambling behaviour, dating from the early 1970s". Mr Newton referred to your medical problems, your physical illnesses, which I will refer to in a moment, and your psychological difficulties and said:

"Mr Maikantis' chronic medical problems and psychological difficulties which he suffers are of such severity that they have already resulted in significant difficulties coping with the custodial environment… The rigors of a custodial penalty would continue to weigh upon Mr Maikantis in a particularly onerous fashion, and would continue to cause him considerable distress over and above the usual hardship that would be experienced by an individual in custody."

I accept and take into account Mr Newton's findings.

30Mr Saunders relied upon the medical report of your general practitioner, Dr Kounnas.  Dr Kounnas says that your medical problems include type 2 diabetes, otherwise known as myelitis, which has been difficult to control. Dr Kounnas had referred you to an endocrinologist for specialist treatment.  Dr Kounnas says that your other major problem is that of rheumatoid arthritis; arthritis which is zero positive, and which requires various forms of medication to control.  This medication has an adverse effect on the control of your diabetes.  Finally, your general practitioner describes you as suffering from recurrent infections in your legs and right leg ulcer. By way of summary, your general practitioner, who knows not you only but your wife and your mother, and has treated you for 35 years, stated the following:

"The stress of being in a prison setting would exacerbate both his type 2 diabetes, as well as his rheumatoid arthritis.  It would also make his complication of diabetes, such as neuropathy, and the neuropathy more unstable because of the stress factors involved in him being in a hospital system."

I believe what is meant by ‘hospital system’ is ‘prison system’.  I also received the medical evidence of your 93‑year‑old mother's serious health difficulties. 

31Mr Saunders informed me of your personal history, of which I will summarise. You are now 69 years of age; you will turn 70 in April. You were born in rural Greece.  You grew up on a small farm in circumstances of poverty.  You had limited education, leaving school at grade 5 because you needed to help your parents on the family farm.  Mr Newton has described your level of literacy as rudimentary literacy in Greek, and basic arithmetic skills.  Your family emigrated from Greece to Australia in 1965, when you were aged 18.  Having obtained basic English language skills, you obtained employment originally in an automobile factory where you remained for some years. Afterwards, you undertook various forms of factory work.  Until most recently, you were engaged as a delivery driver.  You retired about six years ago and have since then been on the pension.  You were married in 1968.  This period of incarceration represents the first time you and your wife have been separated.  You have two adult children.  As I understand it, your elderly 93‑year‑old mother had been living with you and your wife, and you were significantly involved in her care and management.

32Mr Maikantis, your counsel asked me to take into account the following matters by way of mitigation.  First, your plea of guilty, I accept that it has substantial weight in the circumstances of this case.  It has avoided a lengthy and expensive trial.  I regard it as being an early plea.  I accept that it is evidence of general remorse on your part, an acceptance of responsibility, as well as, your willingness to facilitate the course of justice. I take into account what the authorities say about the sentencing of elderly prisoners, particularly where they suffer ill health.  I accept, as was indicated in the case of Gordon, that, in particular, those circumstances justify a more substantial gap between the non-parole period and the head sentence that I might have otherwise imposed in the objective circumstances of this case.[1]

[1]R v Gordon [2012] QCA 334 at [40]

33I accept, consistent with the principles at paragraph 20 in Markovic, that whilst the circumstances of your family are not exceptional, imprisonment will weigh more hardly upon you; that is, it will be an additional burden for you to sit in gaol, knowing that your wife and your elderly mother struggle in your absence, without you being there to assist them in the way that you normally do.[2]

[2]Markovic v R [2010] VSCA 105; 30 VR 589; 200 A Crim R 510

34I accept that you have excellent prospects of rehabilitation, in relation to being involved in further drug offending.  Having served what will be a lengthy prison sentence for someone of your age, I am satisfied, in relation to the principle of specific deterrence, that you will be deterred from engaging in this sort of conduct again.  I can only hope, however, that your prospects of avoiding crime altogether will be minimised by you putting an end to your gambling addiction. 

35Mr Chung, I must say, the plea that was put on your behalf in writing and orally by Mr Mahon, engenders a great deal of sympathy on my part in your circumstances.  You have destroyed what was otherwise a life that was destined to be successful and happy.  I have watched you throughout these proceedings, and I see a man who is racked with shame and guilt.  You were born in Vietnam.  Your father left and made way for your family to come to New Zealand in 1981, when you were three years old.  Your family initially established themselves successfully in New Zealand and moved to Australia in 1992, to be closer to relatives.  You too were provided, by your family, with an excellent education. You were educated to Year 12 level, also at Mazenod College, in Mulgrave.  You commenced a computing degree at Latrobe University, in 1997.  You continued that until you switched to a commerce degree at Monash in 1999.  I infer that you were doing very well at Latrobe in order to successfully make that change.  You graduated in 2002 with a commerce degree.  Your parents must have been very optimistic about your future prospects. 

36You worked to support yourself for some years as a crowd controller at Crown Casino; you did this whilst studying at University.  You have never been in receipt of any benefits.  While you were still an undergraduate, you obtained employment as a real estate agent, like your co-accused, Mr Tran, who you knew from school.  You bought into an LJ Hooker franchise, at St Albans, as a very young man.  You eventually bought out the owners of that business.  You married your wife, Helen, in 2008, and twin girls were born to you in 2012, who are now about four and a half.  After your children were born, understandably, your wife stopped working, understandably; you were working hard, building up your business and supporting your young family.  At one stage, you were employing approximately 12 employees, at the LJ Hooker franchise, in St Albans.  For some reason, that I do not understand, your business contracted and took a turn for the worst; the number of employees was reduced to four.  Debt started to mount and you took out loans from non-bank sources, who were charging very high rates of interest.  It was in those desperate financial circumstances that someone recognised that you were vulnerable, and you were approached to become involved in this criminal conduct; I can see that you engaged in this criminal conduct as a way of getting some more money to help support your business and your family.  To use the words Mr Gwynn used in relation to your co-accused, you also succumbed to temptation.  You were paid what was, relatively speaking, a paltry amount, given what was at stake, for your ongoing involvement in this criminal activity; that is, inspecting the properties to confirm their suitability.  I was told that you were paid somewhere between $500-700, per house, per month.  All up, you would have made about $35,000 out of this conduct.

37As a result of all of this, since you have been remanded in custody, your business has collapsed, at a loss that has been estimated of some $100,000-150,000 to you.  Your family home has been sold by the bank, due to the fact your wife has been unable to maintain the mortgage payments.  You have been sitting in gaol now since 2 February 2015. 

38To your credit, you have engaged in every activity you could whilst in gaol.  You have engaged in some courses, although most of them are not of much assistance to you because you have your own university education.  You have never had any drug problems or mental health issues.  You never needed to engage in those sorts of courses. What you have done, I have been told and I accept, is you have attended education courses as a translator for Vietnamese and Chinese-speaking inmates.  I should have mentioned, your father was of Chinese heritage, and you speak both languages.  You have done so voluntarily, to help others.  You have also acted as a translator for medical appointments on behalf of other inmates.  

39You, like your co-accused, were subject to lockdown conditions at the MRC, following the 2015 riots. I accept that you were not involved.  In addition to that, I am told and I have accepted, that you have witnessed serious violence in prison; including, a very harrowing stabbing that took place nearby.  You have been attacked, yourself, whilst in custody.  You have been struck from behind and suffered injuries.  You have been stood over by other prisoners.  I accept that prison for you is, and will continue to be, a form of hell; but you are making the best of it.  You are employed full-time within the prison system, at a rate of $8.95 a day, as a storeman.  You try to keep yourself active and healthy by involving yourself with the gym.  You are very fortunate that your wife, despite everything, has stood by you.  She continues to visit you with your children and your parents and your sister.   

40I accept that the greatest stress for you is not being in gaol and enduring the deprivations I have just described, but the greatest stress for you is being separated from your wife and young children, and the knowledge that you are unable to assist them, emotionally and practically, in the ways you should be, as their husband and father.  

41I have got no doubt that you have excellent prospects of rehabilitation.  Those prospects of rehabilitation are borne out, in addition to the matters I have just described, by your plea of guilty, in the context of you always wanting to plead guilty; as well as, the absence of any prior convictions, and the ongoing strong support of your family.  I take into account, amongst other things, that you have lost your career.  The years of study and the years of hard work that you have put in. Your efforts in establishing yourself as a real estate agent in this state had been dashed; they are gone forever.  When you are released, you will have to start again.  The law acknowledges that that in itself is a form of punishment. I accept your counsel's submission, consistent with the submission made by other counsel, that in all the circumstances, a lower non-parole period is justified than I would have otherwise imposed in the objective circumstances of this case. 

42Would you stand up, please, gentlemen.

43Mr Tran, on the first charge of trafficking in a large commercial quantity of cannabis, you are convicted and sentenced to be imprisoned for seven years.  On Charge 2, the charge of trafficking in a commercial quantity of heroin, you are convicted and sentenced to be imprisoned for three years.  On Charges 3 and 4, you are convicted to an aggregate sentence on those two charges of six months.  I order that one year of the sentence on Charge 2 be served cumulatively, and three months of the aggregate sentence on Charges 3 and 4 be served cumulatively. 

44That results in a total effective sentence, on this indictment, of eight years and three months, and I fix the minimum non-parole period of five years. I declare, pursuant to section 6AAA of the Sentencing Act, that but for your plea of guilty I would have sentenced you to 11 years imprisonment, with a minimum non-parole period of eight years.  You may sit down, Mr Tran.

45Mr Maikantis, on the charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to four and a half years imprisonment.  On the charge of trafficking in a drug of dependence, you are convicted and sentenced to one year.  I order that three months of the sentence on Charge 2 be served cumulatively.

46That results in a total effective sentence, on this indictment, of four years and nine months. 

47On the charge of breaching the suspended sentence, I order that the sentence of 12 months, imposed by Her Honour Judge Nicholson, be restored.  I order that three months of that sentence be served cumulatively upon the sentence imposed on the indictment.  On the charge of breaching the Community Corrections order, I find the breach proven, and I resentence you to three months imprisonment on those charges of deception.  In light of the fact you had completed all the requirements of that order, but for breaching it by this offending, I order that the sentence imposed on the breach be wholly concurrent. 

48Accordingly, between the indictment and the cumulative portion of the restored sentence, you will serve a total of five years imprisonment, and I fix a minimum non-parole period of two and a half years.  Mr Maikantis, but for your plea of guilty I would have sentenced you to six and a half years imprisonment, with a minimum non-parole period of three and a half years. You may sit down, Mr Maikantis.

49Mr Chung, on the charge of cultivating a commercial quantity of cannabis, you are convicted and sentenced to four years imprisonment, and I fix a minimum non-parole period of two years. Pursuant to section 6AAA of the Sentencing Act, I declare that, but for your plea of guilty, you would have been sentenced to five and a half years imprisonment, with a minimum non-parole period of three years.  You may sit down, Mr Chung.

50I will declare the following periods of pre-sentence detention as having been served in relation to the sentences I've just imposed. 

51In relation to Mr Tran, I declare that he has already served 654 days, by way of pre-sentence detention.

52In relation to Mr Maikantis, I will declare that he has already served 669 days, by way of presentence detention.

53In relation to Mr Chung, I will declare that he has already served 644 days, by way of pre-sentence detention.

54MS KARAMICOV:  There are some orders, Your Honour.

55HIS HONOUR:  Are any of those orders opposed?

56MR SAUNDERS:  No.

57MS KARAMICOV:  No, Your Honour.

58Mr Tran, I am making an order pursuant to section 464ZF of the Crimes Act for the taking of a scraping from your mouth of a sufficient sample of saliva to place on the database; that is, the DNA in the database.  I have made that order given the seriousness of the circumstances of the offending and in light of the fact that it was not opposed.  I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping, the police may use reasonable force to obtain a blood sample.

59I make the disposal order in relation to Mr Maikantis in the terms sought; in relation to the properties set out in the schedule, which are the drug manufacturing or cultivation accoutrements. 

60I will make the disposal order in relation to Mr Chung in the terms sought; again, in relation to the various items seized. Further, I make an order, Mr Chung, that you pay compensation in the sum of $1,130 to Allianz Insurance.

61MR McGRATH:  Your Honour, in relation to the compensation order, could I seek a stay of six months?

62HIS HONOUR:  Yes, I grant a stay of six months in relation to the payment of that sum.  Six months, and note that on the court order, thanks.

63I thank all of counsel for their assistance in this matter.  It has been extremely helpful.  Again, I credit everyone with having resolved the matters the way they have been resolved. Thank you.

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