Director of Public Prosecutions v Dang
[2015] VCC 1437
•21 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01268 & CR-15-01432
Indictment No. C1-09875
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUNG QUOC DANG |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October 2015 | |
DATE OF SENTENCE: | 21 October 2015 | |
CASE MAY BE CITED AS: | DPP v Dang | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1437 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - Sentencing
Catchwords: Trafficking a drug of dependence, heroin; relevant prior criminal history – imposition of jail term to be immediately served.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Bhai (Plea) Ms M Pearson (Sentence) | Vaille Anscombe, Acting Solicitor for Public Prosecutions |
| For the Accused | Ms K Paull | Victoria Legal Aid |
HER HONOUR:
1 Hung Dang, you have pleaded guilty on Indictment to two charges of trafficking a drug of dependence.
2 Charge 1 relates to trafficking at Melbourne between 11 August 2014 and 12 August 2014 and the drug of dependence is heroin.
3 Charge 3 relates to trafficking at Melbourne between 11 August 2014 and 12 August 2014 and the drug of dependence is methylamphetamine.
4 In addition, matters were transferred from the Magistrates’ Court pursuant to s145 of the Criminal Procedure Act 2009. You have entered pleas of guilty to Charge 10, deal property suspected proceeds of crime, in that when you were arrested and following a search of your bedroom police found a total $145,485 cash suspected of being proceeds of crime, and Charge 12, possess cartridge ammunition without licence or permit, relates to some cartridges found when your home was searched.
5 The offences are serious. The maximum penalties are:
· trafficking a drug of dependence, 15 years’ imprisonment;
· dealing with property suspected of being proceeds of crime, two years’ imprisonment;
· possess cartridge ammunition without licence or permit, 40 penalty units.
6 In addition, you have admitted your prior criminal history. There are six court appearances that span a period from 9 June 2006 until 17 April 2014. You have a number of court appearances for offences against a person, offences relating to theft of motor vehicle and driving offences, including driving whilst disqualified.
7 You have relevant drug-related convictions.
8 On 4 December 2013 you were convicted of trafficking heroin and methylamphetamine, possessing heroin and methylamphetamine, using heroin and deal with property suspected of being proceeds of crime. On 26 November 2013, police intercepted a Honda Civic driven by you travelling along Wellington Road. When questioned by police, they found in your possession, approximately 22 grams of heroin (powder and cake form), five grams of Ice, $5,365 in cash and $5,300 Crown Casino chips.
9 You were imprisoned for an aggregate sentence of 62 days to be followed by a Community Correction Order for 12 months with conditions relating to supervision, assessment and treatment for drug abuse and dependency, mental health assessments and other program conditions.
10 Thereafter, you were dealt at Dandenong Magistrates’ Court on 20 December 2013 for contravening the Community Correction Order by re-offending. You were charged and convicted of driving whilst disqualified. The Community Correction Order breach was found proved, the order was cancelled and no further order was made.
11 On 17 April 2014, at Dandenong Magistrates’ Court, you were convicted of trafficking heroin, deal proceeds of crime and unlicensed driving. These offences occurred on 21 January 2013. Police intercepted you whilst you were riding a motorcycle and found heroin in your possession and $7,127 cash suspected to be the proceeds of crime.
12 You received an aggregate term of imprisonment of seven months wholly suspended under s27 of the Sentencing Act 1991. The operational period was 12 months. In addition, you were fined without conviction for the unlicensed driving.
13 By your conviction in relation to the matters the subject of the Indictment and related summary charges, you have breached the wholly suspended sentence. The breach proceedings will be dealt with after this Sentence is imposed.
14 The fact that you committed the fresh offending whilst you were the subject of a court order for similar offending during the operational period of the wholly suspended sentence, is an aggravating feature of your current offending and reflects an ongoing disregard for the order made by the Court.
15 I shall proceed to sentence you on the basis of the summary of the prosecution opening. Ms Bhai outlined in detail the circumstances of your offending and the summary is marked as Exhibit 1 and Exhibit 1.1 respectively.
16 Briefly, on 11 August 2014 at about 8.30pm, you were observed by police seated in a Honda Civic motor vehicle parked in the carpark of the 7-Eleven petrol station on Heatherton Road, Noble Park. You were with another person, Anna Hong. She too has been charged but her matters have yet to be dealt with by the courts. You were driving and she was seated in the passenger seat. Police approached you and asked you to provide your driver’s licence. You did so but appeared nervous. Following further requests to get out of the car you became argumentative. At that time, police observed Ms Hong attempting to hide a number of bags within the car. You were removed from the car and the passenger was asked to get out of the car, which she did, holding four bags.
17 One of the bags held personal items and details of her identification. Inside two of the other bags were small plastic bags containing methylamphetamine. There were five plastic bags containing a total of 26.3 grams of methylamphetamine with approximate purity at 80 per cent. One of the bags contained a number of small plastic bags containing a total of 208.5 grams of heroin, the purity of which varied between 12 and 20 per cent. Also located in those two bags were two sets of scales, various zip-lock bags and a glass pipe. The passenger, Ms Hong, told police that the bags containing drugs belonged to you. You were both arrested and searched. Police found $960 cash in your wallet and also seized a set of keys.
18 The following day, 12 August 2014, police executed a search warrant of a storage unit operated by you at Kennard Storage Facilities in Springvale using one of the keys that had been seized from you. On opening your storage unit, they located a plastic bag with 2.2 grams of white powder containing methylamphetamine and heroin. In the storage room were:
· two press frames;
· three press plates;
· glass cutter and a letter addressed to you.
19 That same day, police also executed a search warrant at the address where you were then living in Springvale. Located in your bedroom were various plastic bags and containers and glassware containing:
· 33.46 grams of methylamphetamine;
· 46.1 grams of heroin.
20 In a safe in your bedroom police located:
· 82.6 grams of methylamphetamine (with a purity of 80 per cent);
· 27.8 grams of heroin (with a purity of 80 per cent);
· $144,115 cash.
21 In addition, they located:
· five sets of digital scales;
· money counter;
· two notebooks containing debtors’ ledgers;
· various zip-lock bags;
· glass beakers and containers;
· two 12 gauge cartridges.
22 In total, you had 144.6 grams of methylamphetamine and 284.5 grams of heroin, $145,485 in cash and two 12 gauge cartridges – those items are the subject of the offending on the indictment and related summary charges.
23 When interviewed by police, you made no comment.
24 You were committed for plea hearing at committal mention on 27 July 2015. You pleaded guilty and the matter proceeded by way of straight hand-up brief. The prosecution acknowledges that the plea of guilty was entered at the first available opportunity.
25 Mr Dang, I consider that each charge of trafficking simpliciter is a serious example of this offence of trafficking. I have had regard to the objective features of your offending. You had significant stock in trade. I have had regard to the amount of methylamphetamine and heroin found upon your arrest and following the search of your storage unit and home, together with the other indicia of drug trafficking that were found by the police when they executed their search warrants, namely, the digital scales, money counter, notebooks containing debtor’s ledgers, various zip-lock bags, glass beakers and containers, glass cutters, press plates and frames. Furthermore you admitted that the cash that was found in your possession, namely, the $145,485, was the proceeds of crime.
26 This is higher than street level trafficking. You were in the business of drug trafficking. I am satisfied that you trafficked drugs for purposes other than just to meet the needs of your own drug addiction.
27 Ms Paull on your behalf relied on a number of matters in mitigation. She acknowledged that this was a serious example of a serious charge.
28 She highlighted the fact that you pleaded guilty at the first opportunity at committal mention and that you have accepted the wrongfulness of your actions. I accept that there is real utility in your plea entered at the earliest opportunity. You have saved the community the cost and inconvenience of a trial and you have thereby facilitated justice. Your sentence will be discounted accordingly.
29 Further, I accept that the plea of guilty is indicative of you accepting responsibility and demonstrates a willingness to facilitate justice and is some evidence of remorse.
30 Ms Paull emphasised that you are still relatively youthful and have significant supports through your family and your doctor. You are motivated to change your lifestyle and you want to be a contributing member to the community.
31 By way of background, you are 25. You are of Vietnamese background. You were born in Australia and have lived with your mother all your life. You have two brothers, one older and one younger. You grew up in the Dandenong/Springvale area. Your parents separated when you were about 12. Your father left Victoria and went to live in Queensland where he worked as a farmer.
32 You completed Year 12 at Nazareth College and obtained employment at Dodo’s, where you started initially as a customer service officer, working your way up to a specialist technical administration systems adviser. You had an involvement in your father’s business in Queensland but that ceased as a consequence of the destruction of the farm wrought by a bad flood.
33 You commenced using heroin at age 19 and then began using Ice between the ages of 21 and 23. Your drug use escalated in the context of not working, losing the farming business and the end of a long-term relationship.
34 Over the period from age 23, you have attempted to get some help with your drug addiction. You have been in receipt of treatment from a general practitioner for opiate withdrawal and have had Methadone and Suboxone prescribed at times for your opiate dependence.
35 Dr Churchman, your general practitioner, confirms that he has treated you since 27 February 2012 and that your adherence to the programs have been intermittent. He highlighted that that is not uncommon as the disease of addiction is characterised by chronicity and propensity to relapse and to substitute one drug for another.
36 With the support of your brother, you made an attempt at detoxification. In February 2014 you attended Dahav in Ferntree Gully, but you were only able to last three days out of a 10 day program.
37 After your arrest for these offences, you were released on bail on 12 August, 2014. On 8 September 2014 you were arrested on other matters and remanded in custody and have remained in custody since that date. An application to revoke bail was granted on 30 September 2014 for the Indictable and related summary matters.
38 The subsequent matters involve two informants. With regard to informant Cox, you face charges of possess heroin, use heroin, commit indictable offence whilst on bail. With regard to informant Fraser, you face charges of exceed speed, fail to display P plates, and breach alcohol interlock conditions. These matters have yet to be dealt with by the courts.
39 Since you have been in custody you have found it challenging. You have been held on remand at Melbourne Remand Centre except for a period of three weeks following the July riots. You were taken to Barwon Prison for three weeks and then returned to the Melbourne Remand Centre on 23 July 2015 where you have been subjected to 23 hour lockdown (in a 24 hour period).
40 I accept that you have utilised your time in custody well. You have completed a Harm Reduction Program, a Remand Release Program and a furniture making course.
41 Through your counsel you state that you have now developed a different mindset, that you are drug-free, and that you have developed a passion for cabinet making and express the desire that you want to pursue that further in the future.
42 Your mother, father and brother were present at the plea hearing, remain supportive of you and are regular visitors. Upon your eventual release, it is intended that you will return to live with your mother and brother.
43 I have read the reference from your mother dated 30 September 2015 and I have noted the background material that she's provided in terms of your history and your escalating criminal behaviour as a consequence of your addiction to the drug ice. She states since she has been visiting you she has seen you return, that is her old son, and she states you're very remorseful for what did you and you're very sorry for what you have done not only to your family, but also to the community, and that you have promised her that you are committed to rehabilitation for addiction treatment in the future.
44 She is willing to support and assist you unconditionally to ensure your health and wellbeing in order that you get back on track and be a worthy person to society.
45 I note this is the longest time you have spent in a custodial setting and I have also noted the difficult circumstances that you have been in whilst in custody that are completely out of your control and I have taken that all into account. I accept that you now want to make a more positive contribution to the community.
46 Overall, I am cautiously optimistic about your prospects of rehabilitation. Although I acknowledge that you have made some effort to address your underlying offending behaviour whilst in prison.
47 Your real challenge is in remaining drug-free and to not relapse upon your eventual release from custody.
48 In formulating the appropriate sentence I must have regard to the gravity of the offending, your prospects of rehabilitation, deterrence and denunciation.
49 Ms Paull submitted that time served to be followed by a Community Correction Order was appropriate. I do not consider that this is an appropriate case where a Community Correction Order, in combination with a jail term, is appropriate having regard to the particular features of your offending.
50 Ms Bhai, on behalf of the Director of Public Prosecutions, submitted that a jail term to be immediately served was appropriate punishment in all the circumstances. She emphasised the seriousness of the offending having regard to the objective features that have been highlighted in these reasons. The fact that this serious offending occurred whilst you were on conditional release was also emphasised.
51 Recently in Hutchison v R (2015) VSCA 115, his Honour Priest JA, stated, "A Community Corrections Order might be appropriate, even in a case of relatively serious offences which might previously have attracted a medium term of imprisonment".
52 But he went on to say, “It should not be thought that Boulton offers a ‘get out of gaol free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is to punish the offender to an extent and in a manner which is just in all of the circumstances. There will be cases, indeed many cases where, having regard to the seriousness of the offending, a community corrections order will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just.”
53 His Honour Priest JA emphasised that, "Each case depends on its own facts, including the circumstances of the offending and the offender and the circumstances of aggravation and mitigation."
54 Having considered all the circumstances of your offending, your antecedents and the relevant sentencing principles, I consider that a further term of imprisonment to be immediately served is the only appropriate penalty.
55 You are a person who has struggled for some years with your dependency on drugs and you are well-aware of the harm that can be caused by them. Notwithstanding that, you were involved in trafficking drugs on a commercial basis. This is not isolated offending.
56 In sentencing you, there is a real need to emphasise general and specific deterrence, to provide for the protection of the community, and to provide just punishment. On behalf of the community, I must formally denounce your behaviour.
57 I propose to impose an aggregate sentence in respect to the matters that subject of the Indictment that reflects the totality of your offending.
58 The formal court orders will be as follows.
Indictment
Charge 1, traffic drug of dependence (heroin), and Charge 3, traffic drug of dependence (methylamphetamine), you will be convicted and I impose an aggregate sentence of four years’ imprisonment.
Summary charges:
59 Charge 10, deal with property suspected to be the proceeds of crime, you are convicted and sentenced to 12 months’ imprisonment.
60 Charge 13, possess cartridge ammunition, you are convicted and fined $250.
61 I order 6 months of the sentence imposed on the summary charge 10 be cumulative on the sentence imposed on the Indictment, making a total effective sentence of four years and six months. I fix a non-parole period of three years.
Ancillary orders
62 I make the order for the taking of a forensic sample having regard to the seriousness of the offending. I note that the order is not opposed and I consider it is in the best interests of the community.
63 I make the following declaration pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a sentence of six years’ imprisonment with a non-parole period of four years.
64 I make the following declaration of pre-sentence detention. I declare that 388 days be reckoned as already served and direct that that be entered into the records of the court.
65 The forfeiture order sought is granted.
66 The only other thing I have to inform you, Mr Dang, is in relation to the taking of the forensic sample, I have to advise you that that involves a taking of a scraping of the mouth under supervision of an authorised member of the Police Force and provided you cooperate, that should be fine, but in the event that you don't, they may use reasonable force to enable that forensic procedure to be conducted. Do you understand that?
67 OFFENDER: Yes, Your Honour.
68 HER HONOUR: Okay, Those orders have been signed. Please adjourn.
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