Director of Public Prosecutions v Dang
[2022] VCC 2315
•15 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 22-00649
CR 22-00532
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BONG DANG DUC CONG PHAM |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 December 2022 | |
DATE OF SENTENCE: | 15 December 2022 | |
CASE MAY BE CITED AS: | DPP v Dang & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2315 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: plea of guilty- co-accused-trafficking in a drug of dependence-possession of drug of dependence- possess a general category handgun- cultivate narcotic plant- related summary charges- no prior criminal history- demonstrated remorse- expectation of deportation;
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981, Sentencing Act 1991, Crimes Act 1958, Firearms Act 1996;
Cases Cited:Guden v The Queen [2010] VSCA 196, Na Lima da Costa [2016] VSCA 49, R v Verdins (2007) 16 VR 269, Markovic v The Queen (2010) 30 VR 589, R v Beck [2005] VSCA 11, Nguyen v The Queen [2017] VSCA 286, Worboyes v The Queen [2021] VSCA 169;
Sentence:Dang: 63 days imprisonment in combination with a Community Correction Order for a period of 2 years;
Pham: Total effective sentence 5 years and 2 months imprisonment with a non-parole period of 3 years and 4 months. Fine of $500.00.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
| For Accused (Dang) For Accused (Pham) | Ms. N Grumwald Mr P. Dunn KC & | Giorgianni & Liang Lawyers Stephen Andrianakis & Associates |
HER HONOUR:
Duc Cong PHAM, you have pleaded guilty on indictment M11592535, to a number of charges contrary to the Drugs, Poisons and Controlled Substances Act 1981 (the Act), namely:
·Trafficking in a drug of dependence, namely methylamphetamine between 8 April 2021 and 19 July 2021, contrary to section 71AC(1) of the Act, which attracts a maximum penalty of 15 years imprisonment (charge 1);
·On 29 July 2021:
oTrafficking in a drug of dependence, namely Cannabis L in not less than the commercial quantity applicable contrary to section 71AA (1) of the Act, which attracts a maximum penalty of 25 years imprisonment (charge 2). This charge is a Category 2 offence pursuant to s 5(2H) Sentencing Act 1991, which means that a term of imprisonment must be imposed unless there is a special reason or exceptional circumstances, as set out under that provision. I note that there is no submission here that you fall within any of these exceptions;
oTrafficking in a drug of dependence namely Ketamine contrary to section 71AC(1) of the Act, which carries a maximum penalty of 15 years imprisonment (charge 4)
oTwo charges of possess a drug of dependence, namely Psilocin, contrary to section 73(1) of the Act which attracts a maximum penalty of 1 year imprisonment or 30 penalty units (charge 5); and cocaine, which carries a maximum penalty of 5 years imprisonment (charge 6)
You have also pleaded guilty to offences contrary to the Firearms Act 1996, namely:
oPossess a general category handgun that was not registered, contrary to section 7B of the Firearms Act, which attracts a maximum penalty of 7 years imprisonment or 600 penalty units (charge 3); and
oStoring a firearm in an insecure manner whilst unlicenced contrary to section 129A of the Firearms Act, which carries a maximum penalty of 4 years imprisonment or 240 penalty units (charge 7).
oBoth of these offences occurred on 29 July 2021, following the execution of a search warrant in which the firearms, drugs and other items were seized by investigators.
You have also pleaded guilty to 3 summary charges and consented to those matters being heard before this court namely;
oPossess cartridge ammunition contrary to section 124 (1) of the Firearms Act 1996 (summary charge 16) which carries a maximum penalty of 40 penalty units; and
oDealing with property suspected to be proceeds of crime namely $80,003.25 cash, contrary to section 195 Crimes Act 1958 (summary charge 17), which attracts a maximum penalty of two years imprisonment will; and
oFailing to comply with direction for PIN contrary to section 465AAA Crimes Act 1958 (summary charge 21). The maximum penalty for this offence is two years imprisonment.
Bong Thi DANG you have pleaded guilty on indictment M11592546 to:
oOne charge of trafficking in a drug of dependence namely cannabis on 29 July 2021, contrary to section 71AC(1) of the Act which carries a maximum penalty of 15 years imprisonment; and
oOne charge of cultivate a narcotic plant namely cannabis L on 29 July 2021 contrary to section 72B of the Act, which attracts a maximum penalty of 15 years imprisonment.
Additionally you have also pleaded guilty to one summary charge of dealing with property suspected of being proceeds of crime, namely $80,003.25, contrary to section 195 of the Crimes Act 1958 (summary charge 8). The maximum penalty for this offence is two years imprisonment.
Circumstances of Offending
The circumstances of the offending are set out in a Summary of Prosecution Opening tendered as Exhibit A. In 2020, Victoria Police commenced an investigation into the drug trafficking activities of an individual, Si Ro Vo called Operation Achilles. During the operation, police identified you Mr Pham as being in regular contact with Vo, in which you purchased drugs of dependence from Vo for sale to others or alternatively you sold drugs to Mr Vo.
Telephone communications between you and Vo were lawfully intercepted which revealed that during the period between 8 April and 19 July 2021 you were involved in the sale and purchase of methylamphetamine. Exhibit A sets out in detail some of the conversations relied on by the prosecution. These include:
oAn agreement for delivery of 28 g of methylamphetamine from you to Vo (8 April)
oYou, Pham offered to lend $40,000 to Vo (10 April)
oThe sale of 84 g of methylamphetamine by Vo to you (17 April)
oVo called you asking if he could borrow $20,000 (26 April)
oYou ordered 125g of methylamphetamine from Vo which was delivered to your address by an associate of Vo (28 April)
oDiscussed the purchase of methylamphetamine (“three bags of cold”) on 29 April, and the following day Vo offered to buy the three bags from you, and you agreed to sell to him. You told Vo that you charged $6000 for the three bags. Later the same day you ordered 28g of methylamphetamine from Vo along with 14 g of heroin, followed by an order of 4 to 5 ounces (pieces) of methylamphetamine from Vo. Vo then instructed an associate to deliver 28 g of heroin to you.
oVo delivered 168 g of methylamphetamine to an associate of yours known as Chau, on 1 May, and the following day, 2 ounces of methylamphetamine were returned to Vo and he discussed with you the return and issues as to the quality of the drugs.
oYou asked Vo to deliver three pieces (84 g) of methylamphetamine and Vo agreed. You later asked Vo whether he had any methylamphetamine left and you discussed 10 pieces (ounces) being 280g (3 May)
oVo asked you to supply him with methylamphetamine on 6 May 2021 and the two of you discussed the purchase of 3 ounces of this drug and another drug. You indicated it was to be collected by a person in Springvale. You also told Vo a person had brought ketamine over (charge 4)
oYou ordered 5 to 6 ounces of methylamphetamine and Vo agreed to deliver it on 7 May. This was followed by a call in which you asked if there was any left to which Vo indicated he had two or 3 ounces which he agreed to deliver to you.
oOn 8 May you ordered methylamphetamine from Vo which he sourced from a third party supplier, but as he did not have sufficient money to pay, you offered to provide him the cash for the purchase. Vo offered to bring methylamphetamine to you later that day. The next day you ordered an ounce of methylamphetamine and ounce of heroin from Vo which he agreed to deliver to you. The following day you asked Vo if he had any methylamphetamine and ordered 3 ounces (84 g) from him.
oOn 14 May, you and Vo discussed payment for the drugs. You had been paid $35,000 for 13 ounces of methylamphetamine and other drugs.
oOn 16 May, you discussed money and you asked Vo to bring over 2 ounces of methylamphetamine. The following day you asked him for 4 ounces of methylamphetamine.
oOn 21 May, Vo told you he had methylamphetamine for $3200 and you said you still had stock unsold. The following day you ordered 3 ounces (84 g) of methylamphetamine from Vo but then cancelled the order as the purchaser was no longer coming.
oOn 21 May 2021, a person called Summer contacted Vo to buy methylamphetamine having been given the contact details by you.
The telephone communications also reveal discussions between you and Vo regarding the supply of other drugs including heroin, cocaine and cannabis. Trafficking in these drugs are not the subject of any charges for this period and accordingly, you do not fall to be sentenced in relation to these transactions. However, the prosecution relies upon these communications to show the nature of the relationship between you and Vo in the drug trade.
On 29 July 2021, a search warrant was executed at two properties associated with you being 11 Lincoln Drive, Derrimut and 35 O’ Connor Road Deer Park. You and Ms. Dang were said to be residing at the Deer Park address.
At 11 Lincoln Drive, police found that only one bedroom in the house had a bed and the other two bedrooms were used as cannabis growing rooms. There was an electrical bypass and hydroponic equipment found in one of the bedrooms. Another of the bedrooms contained 8 plants weighing 1.32 kg, and another with 2 small plants Police also located bags of dried cannabis with a combined weight of 13.20 kg (charge 2).
An unregistered handgun with magazine was found on the bed in the first bedroom and police also located loose ammunition (Pham: related summary offence 16), psilocybin weighing 19.1 g (charge 5), a Ziplock bag of Ketamine weighing 83.3grams (charge 4), and Ziploc bags with methamphetamine and weighing 4.8 g, 0.5 g and 0.3 g respectively (charge 1).
There were also exercise books containing notes of drug transactions and a cash counter. Documentation also indicated contact with a person called Nathan, said to be a customer for the sale of cannabis. The phone number for Nathan was contacted by you 400 times between 25 April and 28 July 2021. You have only been charged in relation to trafficking on the date that the warrant was executed, namely 29 July but the frequency of these communications is said to illustrate the prolific nature of your trafficking activities.
Police also attended at 35 O’Connor Road Deer Park. At the time both you, Mr Pham and you, Ms Dang were present and you both attempted to run from the rear yard. You, Ms Dang were seen to throw a black Adidas sports bag over the fence into a neighbouring garden before you were arrested. You, Mr Pham ran in the opposite direction but you were apprehended by police.
The black Adidas bag was found to contain a wallet with identity documents in Mr Pham’s name, a Ziploc bag containing 0.5 g of cocaine (charge 6) and $60,393.25. Further cash was found inside the premises and the total quantity of cash, suspected to be the proceeds of crime, was $84,003.25 (Pham: related summary offence 17 –, Dang: related summary offence 8)
Inside the premises, police located electrical bypasses and rooms containing cannabis plants and seedlings. Specifically, 9 cannabis plants weighing 22.86 kg, 11 cannabis plants weighing 356.9 grams, 9 plants weighing 3.05 kg and 30 seedlings weighing 19.3g. (Dang charge 1)
Also located, were 3 plastic bags containing 51 smaller bags of cannabis with a total weight of 22.35kg, 6 plastic bags with cannabis weighing 1.2kg, 3 plastic bags with 28 bags of cannabis with total weight of 12.64kg. (Pham: charge 2, Dang: charge 2)
In a Mazda sedan parked in the driveway registered to your daughter, Ms. Dang, but driven by you, police located a bag with 14 plastic bags of cannabis with total weight 6.18kg (Dang: charge 2). In another vehicle, registered to you Mr. Pham, a Toyota Camry, police located 5 bags with 1.1kg of cannabis (Pham: charge 2)
Each of you were trafficking in the cannabis that Ms Dang was cultivating at the Deer Park premises.
You were each arrested and taken to Sunshine Police Station where you both participated in a record of interview, but made no admissions to the offending other than knowing each other, and in your case Ms. Dang, confirming your address at Deer Park.
Police demanded that you Mr. Pham provide the PIN for your mobile phone and you refused to do so (summary charge 21)
Procedural History
You were both remanded in custody on 29 July 2021 after your arrest. Mr. Pham, you were bailed on 26 August 2021 and have spent 32 days in custody. Ms Dang, you were bailed on 29 September 2021 and have spent 63 days in custody. I note that in each case your time on remand was during the COVID-19 pandemic, which means you would have been subject to mandatory isolation periods and frequent lockdowns.
In your case Mr Pham, your matter resolved at committal on 4 April 2022, thus there was no need for a contested committal. Ms Dang your matter resolved on 27 April 2022 following a series of committal mentions.
Prior Criminal History
Neither of you have any prior criminal history.
Personal Circumstances- Pham
Turning to your personal matters, Mr Pham, you were born in April 1990 in Nghe An, Vietnam. You are now 32 years of age. You came to Australia to study at the age of 23, in 2013. Your upbringing in Vietnam was very strict although unremarkable. Your father is self-employed as a building contractor, your mother manages a guest house, and you have a younger sister who lives in Vietnam and is now aged 29 years. Your parents are now in their 50s. You attended high school until year 9, and at the age of 15 you moved out of home to another town for the purpose of attending a specialist selective school called Vinh University until year 12. You then went on to complete a Bachelor of Business and Technology at the Hanoi Business and Technology University.
After working as a store manager for a number of years, you moved to Australia in August 2013 on a student visa where you undertook a number of courses at the Southern Cross Institute. However you were unable to complete your diploma in business as a result of your poor English language skills. You then began working full-time in various restaurants and also as a labourer. Meanwhile your parents were under the impression that you had been successful in your studies and you did not want to disappoint them. Rather than return to Vietnam, you chose to remain in Australia despite no longer being on a student visa.
Although you did your best to find work, as a consequence of the COVID-19 pandemic in 2020 you were unable to continue steady employment, nor could you obtain any government benefits due to your visa status. At the same time your partner, Thuy Duong Dinh Truong, with whom you had commenced a relationship in 2017, was stood down from her employment with Orange Electricity. Ms. Truong had two young children from another relationship when you first met her. Those children are now aged five and six years respectively.
You have raised each of those children as though they were your own and they refer to you as ‘dad’. The four of you have been residing together in Sunshine West. The loss of employment for you and your partner placed you both under financial strain which was exacerbated with the need for Ms Truong to support her elderly mother. Your mental health reportedly declined and you turned to your peers for support, increasingly spending time at a local coffee shop.
Towards the end of 2020 you were introduced to illicit drugs; first cannabis and then ice, to which you quickly became addicted, and began using daily until your arrest in July 2021. Your counsel, Mr Dunn and Ms Seoud submit that with no financial resources and no assets, you took the short step from being a drug user to a drug dealer. You met those in the drug trade when you were working as a labourer. You had been given the opportunity to buy drugs on credit and on sell them. You were often paid both money and in drugs. You began staying outside of the family home when you were using drugs and your relationship with Ms. Truong suffered as a result. You and your partner have resumed your relationship although it is no longer the same and is somewhat strained given your legal proceedings.
As a consequence of your drug addiction you have been diagnosed with stimulant use disorder (in early remission). Mr Matthew Staios, clinical neuropsychologist, has also diagnosed you with previous symptoms of adjustment disorder in the context of the pandemic. Since your release from custody you have undertaken extensive treatment with drug counsellor Amanda Brown of Lamberti and Associates. This has involved weekly counselling and supervised urine screens on a twice weekly basis. Ms Brown describes your substance misuse as being in a stage of early remission. She considers that given various positive aspects to your presentation, these matters all augur well for lasting rehabilitation. Since your release from custody you have been working full-time as a labourer, laying floorboards.
It is inevitable that as a consequence of the term of imprisonment to be imposed in this case, your bridging visa will be cancelled and you will be deported to Vietnam. Regrettably, it seems that your family relationship will break down as a result. Your partner cannot leave Australia as she cares for her elderly mother, and so you will be separated from the children who have known you as their stepfather for their whole lives. This is a very sad situation for all of you, but as you no doubt now well appreciate, it is entirely of your own making.
I accept that the uncertainty, but expectation, of you being deported increases the burden of imprisonment for you as compared with another prisoner who faces no such risk. You will have lost the opportunity to reside in Australia where you have established a life yourself over the past 10 years. As noted, you have been on a Bridging Visa. Furthermore there is an additional hardship to your incarceration given the social and linguistic isolation that you are likely to experience, given your limited English.[1]
[1]Guden v The Queen [2010] VSCA 196, Na Lima da Costa [2016] VSCA 49.
Mr. Staios considers that you have previously had symptoms of adjustment disorder, which were present at the time of the offending. Your counsel submits that this mental state provides some context for your offending behaviour. Mr. Staios, in his report opines that given your psychosocial history, in combination with your poor adjustment issues, incarceration will have a negative impact on your mental health and functioning, leading to a significant deterioration. To that end, your counsel submits the sixth principle in R vVerdins[2] in enlivened; specifically that there is a serious risk of imprisonment having a significant effect on your mental health.
[2](2007) 16 VR 269.
Given your previous adjustment disorder, coupled with your understanding as to what lies ahead in terms of deportation and separation from your family, I am prepared to accept that there is a serious risk your adjustment disorder will have this effect on your mental health and give it some weight. The prosecution agrees that to a limited extent this limb of Verdins applies, but Mr. Pickering submits that in considering this, I also need to look at the extent to which you may be reacting to your circumstances and the inability to be with and care for your family.
In any event, I also accept that your time in custody will be more difficult knowing that not only will you be unable to care for your partner and stepchildren, but that you will inevitably be separated from them, should they be unable to move to Vietnam, which seems unlikely.[3]
[3]Markovic v The Queen (2010) 30 VR 589.
I accept that you are remorseful for your offending. This is reflected in your plea of guilty. You have also expressed your remorse to Mr. Staios, who has formed the view that you appreciate the impact of your poor decision making. Tendered on the plea were a number of character references from family and friends who also refer to your expressions of remorse. You are clearly a much loved partner, son and friend.
This is the first and only time you have been charged with criminal offending. Since being bailed you have taken steps to address your drug addiction issues, and to gain insight into your own behaviour. You have been employed full time whilst on struct bail conditions. You also have the support of your family, albeit that it seems that you will be separated from them upon your ultimate release from custody. In light of these matters I consider that you have very good prospects of rehabilitation.
Given that you fall to be sentenced for multiple offences, I must have regard to the principle of totality and the need to impose a sentence that is just and appropriate. Your counsel has urged me not to impose a sentence that would be crushing, a notion that was considered by Nettle JA in R v Beck.[4] I have had regard to this.
[4] [2005] VSCA 11.
Personal Circumstances- Dang
I now turn to your personal circumstances Ms Dang. You were born in Qui Nhan, a small fishing village in Vietnam in December 1972. You are now 50 years of age.
You are the middle child in a sibship of five. Your father died when you were 6 years old and as a result your mother struggled to bring up five children on her own. Although your family was very poor, you had a happy and loving childhood and remained close to your mother until she passed away in 2018. You were educated to the equivalent of year 9 before leaving school to look for work.
In 1989 you and your brother fled Vietnam by boat to Hong Kong where you were placed in a refugee camp. You remained there for four years but were ultimately refused refugee status. Whilst there, you met your now ex-husband and together you had a daughter. The three of you returned to Vietnam before eventually settling in Melbourne in 1999. You now have three children and as they grew up, you were their primary carer.
In 2011, following separation from your husband, you and two of your children relocated to Perth so that you could work as a farm hand. The work was difficult and rigorous and when you became afflicted by deteriorating health, your son travelled to Perth to assist you. Ultimately however, you were unable to save the farm that you had purchased through the government. This meant you owed $200,000 to the Western Australian government, which you had to repay, along with other debts accrued including to your husband. Although there was a brief period of reconciliation as your husband you ultimately separated in 2018 and you moved back to Melbourne with your two youngest children. Since then you have had various periods of employment in cafés and restaurants.
At present, you reside with your three adult children in Aintree in a private rental. Since being released on bail you have worked part-time in a Vietnamese bakery in Derrimut, but this employment has since ceased due to your stress. Whilst you have previously been in receipt of benefits, you have recently commenced work as a pick packer in Footscray. You have also been financially supported by your children, all of whom attended court for your plea hearing. Tendered on the plea were a number of character references from your children, your niece and a long-time friend. You are described as having been a hardworking and devoted mother, a person who cares for others, and for whom this offending is out of character.
You were introduced to Mr Pham through mutual acquaintances. During a period of unemployment, an acquaintance suggested to you that you could be permitted to use her house to cultivate cannabis. You understood that you were to receive payment for this and were under the misapprehension that you would not get caught. Shortly before the crop was set up, Mr Pham moved into the property. In the weeks leading up to the offending, you began using cannabis at the suggestion of friends who told you it would help you with sleep. You were using cannabis once or twice a week in the evening.
You have a heart condition which is currently being monitored and you are also receiving treatment for a tumour in your thyroid; you have Graves disease and gastrointestinal bleeding.
A psychological report from Warren Simmons was tendered on the plea. You are said to suffer from low mood, have difficulty sleeping and you are often teary and withdrawn. Mr Simmons is of the opinion that you present with symptoms of depression which have been present for some time, however it is unclear to what extent your thyroid condition has affected your mental state. No reliance is placed on Verdins principles.
The time you spent in custody was during Melbourne’s sixth lockdown. During this time you were required to undergo 14 days quarantine and there was additional stress placed on you given the environment at the time, and as a consequence, educational courses and personal visits were suspended. I take this into account, as I do for each of you.
Ms. Dang, I accept that you are remorseful for this offending. This is reflected in your plea of guilty and you have expressed your remorse to your family. Your aunt has described you as an otherwise responsible person and given your lack of prior criminal history, I accept that this behaviour seems out of character. Given this, and the fact that you have considerable family supports, stable long-term accommodation and that you have been compliant with your bail for over a year, I am of the view that your prospects of rehabilitation are very good. In reaching that conclusion I have also taken into account the opinion of Mr Simmons that you present as a very low risk of committing further offending. Corrections have assessed you as low risk. I note that the prosecution have submitted that supervision may be a suitable condition of any community correction order. It appears that you may be vulnerable to others who may wish to take advantage of you; however, I can consider that there is suitable and appropriate family supports this risk is minimised.
Nature and Gravity of Offending
Trafficking in drugs of dependence is by its very nature serious. This is reflected in the applicable maximum penalty. In particular, the maximum penalty for trafficking in a commercial quantity of a drug of dependence illustrates the seriousness with which this offending is considered by Parliament.
It is often said that drugs are a scourge on society, and one that it is inflicted by people such as yourselves, who traffick in illicit drugs. Every day people become addicted, turn to crime to fund their habits and sadly, many people die as a consequence of the grip that addiction has on them. The social evil caused by drugs, in turn places a burden on the police force, legal system and prison system.
In your case Mr Pham you trafficked in methylamphetamine over a period of months. During that time you both purchased methylamphetamine and supplied it to Vo and others. It appears that you had money at your disposal to both purchase drugs and also to fund the sale of drugs by Vo. Over the period between 12 April and 31 May 2021 you trafficked in considerable quantities of this drug- as is illustrated by your communications with Vo. For instance, the conversation with Vo on 14 May indicates that you received a considerable amount of money ($35,000) for 13 ounces of methylamphetamine. This alone is not an insubstantial amount.
Your role could not be described as a small one and clearly you did so for profit. The prosecution makes the point that your trafficking activities during this period were prolific. I must sentence you for the charge of trafficking simpliciter but in doing so, I take into account the considerable volume of methylamphetamine and which you trafficked. This places your offending at the higher end of seriousness insofar as both the quantity is concerned and the prolific nature of your trafficking activity.
Your counsel submits that despite the frequency of drug trafficked and the amounts of money involved, you have very little to show for your actions. Indeed it is submitted all you have is the Toyota Camry which you had prior to this offending and so it seems that your engagement in this enterprise was for nothing. The finding of a considerable quantity of cash reasonably suspected to be the proceeds of crime, suggests that in each your involvement in the drug trade attracting the exchange of very large quantities of money. Over $60,000 was located in the black Adidas bag. Further cash was found at the Deer Park premises. Ms Dang is also charged in relation to some of that money. Accordingly, I cannot say that the total money found was derived specifically from your activities on Charge 1, Mr Pham, but I take into account the fact that you were found in possession of a considerable quantity of money.
Although Charge 2 is by its very nature the more serious of the charges that you face by virtue of the applicable maximum penalty, your offending with respect to trafficking in a commercial quantity of cannabis is confined to a single day only. The cannabis trafficked, which is the subject of this charge, is also largely the subject of charge 2 against you Ms Dang. Whilst you Ms Dang have been charged with trafficking simpliciter, Mr. Pham you by your plea accept that it was your intention to traffick in a commercial quantity of cannabis. In any event the quantity of packaged or dried cannabis found inside the Deer Park home, coupled with that found at Lincoln Road is over the applicable commercial quantity as defined under the Act.
Whilst I take into account the seriousness of the offending, in your case Mr Pham the quantity involved is toward the lower end of commercial quantity.
Mr Pham the finding of a handgun is also serious. It reflects your role in the drug trade and in and of itself poses a danger to the community should a weapon of this nature fall into the wrong hands.
I also regard your failure to provide the PIN to your mobile phone as serious. I intend to add some cumulation to your sentence for this offending as there is a need to deter others in a similar position from attempting to avoid providing information to access electronic communications, in a bid to avoid police locating evidence relevant to activities.
Ms Dang, you alone have been charged with respect to the cultivation of the cannabis found at Deer Park. This reflects the fact that you were residing at the premises and that you expected to be paid for having the cannabis at your home. It is not entirely clear to what extent you tended to or nurtured this crop. However it is not suggested in any way that you were responsible for the hydroponic setup or the electrical bypass. Whilst you were not the architect of this enterprise, your role was an important and valuable one. Without people like yourself being prepared to effectively ‘crop sit,’ those responsible for these illegal setups would find such enterprises a lot more difficult. For you to be residing in the premises suggest that you were placed in a position of significant trust by those higher up.[5]
[5]Nguyen v The Queen [2017] VSCA 286.
Plea of Guilty
You both entered a plea of guilty at an early opportunity. In your case Ms Dang, your plea was entered at an earlier stage in proceedings. Mr. Pham, although your plea occurred at committal, the matter ultimately resolved and proceeded by way of hand up brief. In each case, your pleas of guilty are of significant utilitarian value. You have spared the community the significant expense of a trial and further, your plea demonstrates a willingness to facilitate the course of justice. It is also evidence of remorse.
Your plea of guilty has an additional value given that it was entered during the COVID-19 pandemic, where the court has faced a substantial backlog of trials resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[6] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not afflicted by the pandemic’s effects. Your plea of guilty should result in a perceptible amelioration of sentence. You are entitled to a substantial discount in sentence both for your plea of guilty itself and taking into account that this plea of guilty has occurred during the COVID-19 pandemic.
[6] [2021] VSCA 169.
Relevant Sentencing Factors
The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. These include the seriousness of the offences, your culpability for them, and your personal circumstances.
61.The sentence I pass must balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society. I am to have regard to principles of parsimony, and I do so.
General and Specific Deterrence
62.General deterrence is an important sentencing consideration in sentencing you for these offences. Those who might be inclined to engage in the drug trade, and who do so for profit, particularly in considerable quantities, must understand that that such serious criminal offending will attract significant punishment.
63.In each of your cases, specific deterrence has less of a role to play, but is not entirely irrelevant. Just punishment and denunciation must also be given primary consideration.
64.Although this is but one of the factors for consideration, I am required, and have taken into account, current sentencing practices.
Sentence: Dang
Ms Dang, your Counsel submits that having regard to the 63 days that you have spent in custody, that a combination sentence involving a community correction order would be open. The prosecution do not take issue with a combination sentence being open. To that end I have had you assessed for a community correction order and you are considered suitable. A report relating to your mental health was also prepared following an assessment by registered nurse Gregory Lane. Corrections do not recommend mental health treatment as part of any CCO, but the MHARS assessment makes some recommendation for this. The question for me is whether, having regard to the seriousness of the offending a further period of imprisonment is warranted.
In this case, I have taken into account your personal circumstances, the fact that you have no prior criminal history in your 50 years, your early plea of guilty, and your very good prospects of rehabilitation, and I have come to the conclusion that sentencing objectives can be met without the need for you to serve any further time in custody.
Therefore on charges 1, 2 and 3, you will be convicted and sentenced to an aggregate 63 days in custody to be followed by a community correction order for a period of two years. There will be two special conditions of that order: Firstly, you will be that you perform 200 hours on unpaid community work over the next two years.
Secondly, you must undergoing treatment for mental health as directed. I will order that up to 80 hours of this rehabilitation can be credited towards your unpaid community work.
In addition, there are a number of core conditions attached to any CCO.
oyou must not commit any other offence punishable by imprisonment during the 2 year period;
oyou must comply with any and all obligations or requirements;
oyou must report to and receive visits from Corrections;
oyou must report to your local community corrections centre, which I believe is in Melton, within two clear working days from today;
oyou must let a community corrections officer know within two working days of a change of address or job; and
oyou must not leave Victoria without first getting permission; and
oyou must obey all lawful instructions from Corrections.
70.They are the mandatory core conditions that attach to any Community Correction Order.
Pre-sentence Detention (Dang)
71.Pursuant to s18 of the Sentencing Act 1991, I declare 63 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
S 6AAA
But for your plea of guilty I would have sentenced you to a term of imprisonment for 12 months.
Sentence: Pham
73.Mr Pham, your counsel accepts on your behalf that I must impose an immediate custodial sentence with respect to charge 2, having regard to the mandatory provisions of the Sentencing Act. Furthermore that your offending, in particular on charge 1 is serious enough as to warrant a term of imprisonment.
74.I have had regard to the seriousness of the offending, in particular in relation to charge 1 as well as the seriousness of the other offending including trafficking in a commercial quantity of cannabis, possession of other drugs of dependence, possession of the general category handgun and the offence of dealing with property reasonably suspected to be proceeds of crime. I have also had regard to your personal circumstances including that you will likely be deported at the conclusion of your non-parole period, which will mean that you will be parted from your family, your early plea of guilty and remorse, your prospects of rehabilitation and lack of prior criminal history. It is my intention to impose a longer period on parole having regard to these matters.
75.Taking all of the matters into account, I sentence you as follows:
| Offence | Maximum Penalty | Sentence | Cumulation | |
| 1 | Trafficking in a drug dependence, namely methylamphetamine between 8 April 2021 and 19 July 2021, | 15 years | 4 years | Base |
| 2 | Trafficking in a drug of dependence, namely Cannabis L (CQ) | 25 years | 2 years | 6 months |
| 3 | Possess unregistered handgun | 7 years | 1 year | 4 months |
| 4 | Trafficking in a drug of dependence namely Ketamine | 15 years | 6 months | 1 month |
| 5 | Possess drug dependence, namely psilocybin | 1 year | 2 months | Concurrent |
| 6 | Possess drug dependence, namely cocaine | 5 years | 2 months | Concurrent |
| 7 | Store gun insecure manner | 4 years | 6 months | 1 month |
| SC 16 | Possess cartridge ammunition | 40 penalty units | $500 | - |
| SC 17 | Dealing with property suspected to be proceeds of crime namely $80,003.25 | 2 years | 3 months | 1 month |
| SC 21 | Failing to comply with direction for PIN | 2 years | 3 months | 1 month |
| Total Effective Sentence: 5 years 2 months Non Parole Period: 3 years 4 months | ||||
This equates to a Total Effective Sentence of 5 years and 2 months. I fix a non-parole period of 3 years and 4 months
Pre-sentence Detention
77.Pursuant to s18 of the Sentencing Act 1991, I declare 32 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
S 6AAA
78.But for your plea of guilty I would have sentenced you to a total effective sentence of 8 and a half years with a non-parole period of 5 and a half years.
79.I make the orders for forfeiture and disposal in the terms sought by the prosecution.
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