Director of Public Prosecutions v Dang
[2020] VCC 1876
•25 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-20-00999
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUNG DANG |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 25 November 2020 | |
CASE MAY BE CITED AS: | DPP v Dang | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1876 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr L. Harrison | |
| For the Accused | Mr Hartnett |
HER HONOUR:
1 Hung Dang, you have pleaded guilty before me to one charge of trafficking in a commercial quantity of a drug of dependence, two charges of trafficking in a drug of dependence, one charge of cultivating (audio malfunction) one charge of possessing a Schedule 4 poison which is summary offence 10, one charge of dealing with the suspected proceeds of crime, that being Charge 11 summary offence and a summary charge possession of an imitation firearm without an exemption. The maximum penalty for trafficking in a commercial quantity of a drug of dependence is 25 years imprisonment. The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment. The maximum penalty for cultivating cannabis is 1 years' imprisonment and the maximum penalty for possession of cannabis where it is less than 50 grams and for personal use, is a penalty unit penalty only.
2
The facts underlying your offending are as follows. I annex as an exhibit the very detailed prosecution opening to my sentencing remarks, but in short compass, in 2019, as a side effect of a police investigation into a drugs and firearm trafficking business not related to you, Mr Dang, police raided your home at Heath Street in Pascoe Vale. This was on the morning of
24 March 2020. On searching the premises the seized a large number of items which underly the charges, including a total of 625.6 grams of a mixed substance containing heroin, that being, 1.25 times the commercial quantity for this offence and this also comprised 456.72 pure grams. This underlies
Charge 1.
3 Three items of ice - and when I say 'three items' of ice, there were small amounts and larger amounts - were found hidden around your premises. There was a total weight of 41.1 grams mixed, 36.64 grams pure, being 11.54 times the trafficable quantity and this possession of these drugs underlies Charge 3.
4 In relation to Charge 2, police found cocaine in two items totalling 163.4 grams with a pure weight of 120.86 grams, being 40.28 times the trafficable quantity applicable to cocaine. Your possession of these drugs underlies Charge 2.
5 Police found four cannabis plants growing under lights and they found a lose amount of dried cannabis totalling two grams. That underlies Charge 5. Seventy-four Valium tablets were located, underlying summary Charge 10.
6 Many of these drugs that I have outlined were hidden in various secret places around the house. They also located a total of $80,000 in cash, much of it hidden. This underlies summary Charge 11. Police also located an imitation firearm in your possession which underlies Charge 12.
7 They conducted a record of interview. You gave some no comment answers but essentially admitted ownership of the drugs. You told police that you bought and stored drugs for others, as that way you were able to buy those drugs cheaper and that this was in support of your own drug addiction. An examination of your mobile phone revealed texting and material consistent with you trafficking to about six other people. You told police that some of the drugs, those found in smaller quantities, were for your own use. You said you smoked both methamphetamine and heroin, going through about 24 grams in four days. You said the cash was from your father's nail salon which you managed. You said you were not getting a wage but you were taking what you needed and hanging onto the cash in order to avoid tax. You said you also received cash for another job you held in handywork. You said you had prescription for Valium but admitted that those found by police were not your prescription tablets.
8 Charge 1 is a category 2 offence, whereby, a sentence of imprisonment must be ordered by a court, unless the court is satisfied that one of the sub-sections of s.52H if the Sentencing Act are in existence, that is, one of the exceptions.
9 I now turn to your personal circumstances. Your history is a fairly straightforward one but it does contain its own measure of tragedy. You are now 31 years of age; you were 31 when you committed this offending. I should add that you pleaded guilty to these offences at a committal mention stage on August 17, 2020 and is accepted by the prosecution that this is a plea made at the earliest opportunity. Your parents came to Australia as refugees from Vietnam in the early 1980s and you are the second of their four children. You suffered what your counsel termed a tormented relationship with your father until essentially you were an adult. He was a seasonal worker, often absent for long periods of time in Queensland and then, when at home, was an alcoholic who was emotionally abusive to you and made you feel he was ashamed of you. Your father would drink with friends and they would subject you to violence and humiliation.
10 At the age of five or six your father made you take off your clothes and told other men to fondle your genitals whilst he laughed. This obviously traumatic experience you told no-one about. You managed to complete year 12, although the problems in relation to your family went on. When you were about 12 your parents separated after it was discovered your father had been having an affair. He then moved to Queensland and had little to do with his children for many years. You began using cannabis at the age of 14 and then ecstasy at the age of 15, mostly being introduced to these drugs by your older brother. At the age of 16 he introduced you to ice and you then engaged in heavy use of this drug until you were 18. However, when you were 19, he introduced you to heroin, in the aftermath of the break-up of a serious relationship. You have essentially remained drug addicted ever since, except for a period between the ages of about 21 and 23 when you were able to give up drugs, but then resumed use when running into old acquaintances.
11 You completed year 12, as I said, at Nazareth College and then you started to compile some sort of work history. You worked for five years as a custom service officer, then as a specialist technical administration systems advisor for Dodo. At the age of 23 you spent several weeks in Queensland with your father, who by that stage, had begun his own farming business and who had remarried. Your relationship repaired and I understand you have a reasonable relationship with him to this day. However, by this stage, although you had managed to give up drugs for two years prior to that, you relapsed, as I said, into drug use and have remained drug addicted ever since. This is very much seen in your prior criminal history which has involved periods in gaol but which is essentially a history of drug use and drug trafficking.
12 In 2013 you received 62 days imprisonment together with a 12-month community corrections order with drug treatment conditions for charges of trafficking ice, trafficking heroin, possessing ice, possessing heroin, using heroin, dealing with the proceeds of crime and driving whilst disqualified. Then in April 2014 you received a seven-month suspended sentence for trafficking heroin, dealing with the proceedings of crime and unlicenced driving. In May 2015 in the County Court you received a major sentence comprising of four years and six months with a minimum term of three years for trafficking a drug of dependence, dealing with the proceeds of crime and possessing a cartridge without ammunition and later that year, your suspended sentence was breached for charges of possessing heroin and other drug related offending for which you received four months.
13 You were released from custody in about March of 2018 in relation to that sentence and you actually completed your parole and the conditions attached to it for about a 12-month period. In that time, your father purchased a nail salon. He set you up as a manager there and it was there that you met your girlfriend Kim with whom you remain in a relationship. She is a law-abiding person who does not use drugs. However, once parole ceased, you ran into old acquaintances and you promptly relapsed back into drug use - and the court often sees this - after a period of abstinence, often heavy users of drugs will return to drug use in what could almost be termed a royal fashion. I accept that you had an extremely heavy drug habit that went on unabated until your arrest in March of this year and I also accept that your offending came about in the context of the support of your own habit.
14 Given your prior criminal history, given the seriousness of the offending, the question of whether or not there is a causal link between your offending and any psychological condition that you may have so that you fall within he exception that is contained in s.52H of the Sentencing Act almost seems to be an intellectual exercise. It is clear that you must receive a term of imprisonment of years, your counsel conceded that, and that unfortunately that term must exceed the term that you received on the last occasion when you appeared before the County Court. Your counsel did submit that I should deal with you by way of a minimum term which was lesser than might otherwise be the case.
15
I do accept, and I note, that you were found by psychologist Gina Cidoni to be suffering - and this is in October of this year - with a persistent depressive disorder, post traumatic stress disorder, generalised anxiety disorder arising from untreated trauma, and chronic stress from your childhood. It was
Ms Cidoni's opinion that you use drugs to medicative, essentially for anxiety and depression. Some might argue how can that make its way into a causation argument, but fortunately for you, Mr Dang, your counsel Mr Hartnett referred me to an authority and a particular passage by His Honour Mr Justice Vincent, which in my view, was entirely on point in this regard. It is the case of
R v McKee [2003] VSCA 16 at paragraphs 20 to 22. I am quoting it at some length because, in my view, His Honour - and I am sure he would be pleased to hear me say this - expresses it better than I could.
16 The way in which His Honour Mr Justice Vincent put it was this. He was talking about two accused in front of him who had both developed an addition to drugs. His Honour went on to say:
'Each did so at a relatively early age and each almost certainly became so enmeshed in consequence of the deprivation, abuse or disadvantage to which she had been subjected as a young person. I accept that such experiences and drug addiction itself are capable of producing serious corrosive effects that may continue to influence the conduct of the person concerned well into adulthood and from which, in some circumstances, they may never completely escape. That possibility is one which, in my opinion, must be seriously taken into account for a variety of sentencing purposes. These would include the assessment of the moral culpability of an offender with respect to the commission of a specific offence and therefore could assume relevance when considering the significance to be attributed to the notion of retribution for wrongdoing as a sentencing consideration. Of course, it does not follow that individuals who come before the court with the type of history to which I have referred do not make choices or that they cannot be held fully accountable for conduct in which they voluntarily engage or which may be the ultimate product of deliberate lifestyle choices made by them. However, and obviously, in the determination of an appropriate sentence in an individual case, regard must be had to the particular circumstances of the offender concerned. As Buchanan, J.A. has pointed out, the background against which an offence was committed could also possess relevance when a sentencing judge came to consider the offender’s prospects of rehabilitation. It may indicate the presence of a need to endeavour, through the sentencing process, to protect the public and affect the weight given to specific deterrence in the determination of an appropriate sentence.'
17 Now, in a way, this has probably more application to a Verdins argument in so far as moral culpability and causation is concerned. I do accept that you had an extremely traumatic childhood. I accept that, as a result of that, you developed the various psychological conditions referred to by Ms Cidoni and as a result of which you readily turned to drugs which you have sought on occasion, with some success, to escape from but which ultimately you have never been able to eliminate from your life.
18 The offending you have engaged in, as I have said and I read it out in some detail, is almost entirely related to drug use and/or drug trafficking, if you like, in what would clearly seem to be a pursuit of support of your own habit. You have not gone on to develop involvement in violent offending, you have remarkably not gone on to develop a history of fraudulent behaviour as it is often sometimes attached to persons who are drug addicted who will involve themselves in theft and use of other people's credit cards and so forth in order to support their habit. You basically have a straight history of supporting your habit by trafficking drugs.
19 Now, on the one hand, this is a problem because the maximum penalty, particularly when you are talking about a commercial quantity, for trafficking is a very heavy one and there is always the terrible baggage that goes with this, that is, that you are supporting others in their own life ruining additions. Nevertheless, it is perfectly clear in so far as I am concerned that you have taken drugs as a result of the psychological conditions you developed in the face of your own traumatic family history and you have gone on to support that addiction by selling drugs and that, essentially, is a description of your prior criminal history.
20 Now, as to your prospects of rehabilitation, they are central and rely totally upon your capacity to give up drugs. The problem for you, Mr Dang, is one that the court sees time and time again; when the appropriate structure is around you, you can do it. When that structure is taken away you cannot. The problem for you is, however, and it is very concerning, that a four-year sentence with a minimum term of three was not sufficient deterrence for you. If you keep this up you are going to spend increasingly longer and longer periods in gaol and that is going to be your life and somehow, that has to be worked into your psyche. I am not quite sure how it is done. Hopefully, you will join Narcotics Anonymous in gaol while you are undergoing sentence. In my view, that is a fundamental step for drug users in gaol to use, because it means that it is there for them when they get out. But you are going to have to work very hard to give up this addiction.
21
You are still at the stage where your barrister can come along, Mr Hartnett can come along and say look, there is a direct link between the trauma of your childhood and this offending. But after a while, no-one is going to care,
Mr Dang, if you keep doing this because all the courts are going to be interested in is protection of the community. The fact that you have developed a drug addiction is extremely sad. The fact that as a child you had to endure the trauma that you did is extremely sad. However, as a result of that addiction, you are engaging in serious offending, you are continuing to do it and whatever plea material you have in relation to that early history, is becoming of less and less weight. Do you understand what I am saying, sir?
22 ACCUSED: Ah, yes, Your Honour.
23 HER HONOUR: All right. Ultimately, if you keep going in this way, as I have said, all a court is going to be concerned about is the fact that you do keep offending and that you present a danger to the community which a court is bound to protect that community from. And that will be the major factor any court will look at in the future. '
24
However, I am prepared still to accept that you have outstanding difficulties which led you directly to use drugs in the way you have for the period of time that you have. I am prepared to accept that there is a lesser moral culpability attached to that offending. As a result, I am prepared to attach a lesser minimum term than would otherwise be the case and because you have other positive factors still attending you. You are still a relatively young man, you are well educated, you are capable, it is clear, of fairly good work, you could probably go on to study further if you wished. You have the support of a
law-abiding, hard-working young woman, to whom it appears you are very much attached. You continue to enjoy the support of your mother and father. I do note that only one member of your sib-ship has managed to escape drug addiction. Your older brother and your younger sister both have drug addiction problems and that tells a story in itself, in my view.
25 However, as I have said, all of that is going to count for nothing unless you take control of what happens to you next, Mr Dang, and it is all about giving up drugs. And no-one is saying that is easy and unfortunately, you are a user of both heroin and methamphetamine. I also note the results of a number of clear urine screens tendered, as was an impressive reference from your girlfriend Kim. So if you can manage to get off drugs, to put it frankly, Mr Dang, it seems to me you will be a young man with a fairly good future.
26 Again, you have not got yourself involved, so far as your priors tell, in the sort of habitual dishonesty behaviour that can still be a problem even after a person gives up drugs. You simply involve yourself - and I do not mean simply because it is serious offending - in selling drugs to support your habit. If you can kick the drugs, Mr Dang, it seems to me you will have a positive future. But again, I can only be guarded in any assessment of that because, so far, you have not managed to do it, but there have been creditable attempts.
27 In sentencing you, I take into account your very early plea of guilty, I take into account the letter that you wrote this court which I regard as genuine and not self-serving, I take into account the positive aspects that I have already outlined. I find that there is lesser moral culpability attached to your offending. However, it is clear that the only way I can deal with you is by way of a term of imprisonment to be immediately served and one which exceeds your last term of imprisonment because you have simply gone on to do more of the same. I therefore sentence you as follows.
28 On Charge 1 you are sentenced to four years and six months imprisonment.
29 On Charge 2 you are sentenced to three years imprisonment.
30 On Charge 3 you are sentenced to three years imprisonment.
31 On Charge 4 you are sentenced to four months imprisonment.
32 On Charge 5 you are fined $200.
33 On summary Charge 10 you are sentenced to three months imprisonment. Summary Charge 11 you are sentenced to nine months imprisonment. Summary Charge 12 you are sentenced to six months imprisonment. The base sentence will be the sentence imposed on Charge 1, that is four years and six months.
34 I order that 12 months of each of the sentences imposed on Charges 2 and 3, two months of the sentence imposed on Charge 4, one months of the sentence imposed on summary Charge 10, six months of the sentence imposed on summary Charge 11, and three months of the sentence imposed on summary Charge 12 be served cumulatively to the sentence imposed on Charge 1 and to each other. This gives a total effective sentence of seven years and six months imprisonment and I order that you serve a minimum term of four years before becoming eligible for parole. I declare that - what is the PSD please, Mr Prosecutor?
MR HARRISON: 246 days not including today at my estimate, Your Honour.
HER HONOUR: Thank you. I declare that 246 are to be served by way of
pre-sentence detention. Pursuant to s.6AAA I declare that, had you not pleaded guilty, I would have sentenced you to a maximum term of eight years and six months imprisonment and ordered that you serve a minimum term of five years.
HER HONOUR: Thank you. Is there anything else I need to attend to?
MR HARRISON: Yes, Your Honour. I believe there were ordains for disposal and forfeiture.
HER HONOUR: Yes. No, we'll attend to those and return them to you, all right?
MR HARRISON: Your Honour.
HER HONOUR: Thank you very much.
MR HARRISON: Thank you, Your Honour.
HER HONOUR: Yes, thank you, we will stand down. Good luck, Mr Dang, and we will stand down. I thank counsel for their assistance. We will stand down until 2pm, thank you.
MR HARRISON: Thank you, Your Honour.
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