Director of Public Prosecutions v Dang; Director of Public Prosecutions v Vo; Director of Public Prosecutions v Vu
[2021] VCC 1917
•24 November 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case no. CR-21-00234
Indictment no. K11035404
Case no. CR-21-00248
Indictment no. K11023400
Case no. CR-21-00229
Indictment no. K11023692.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUY VU QUANG VO THANH DANG |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 31 August 2021, 1 September 2021, 2 September 2021, 3 September 2021, 6 September 2021 | |
DATE OF SENTENCE: | 24 November 2021 | |
CASE MAY BE CITED AS: | DPP v Dang; DPP v Vo; DPP v Vu | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1917 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Guilty pleas – Eleven co-offenders – organised crime syndicate trafficking in mostly methylamphetamine – large commercial quantities – standard sentencing regime – Covid-19
Legislation Cited: Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991; Confiscation Act 1997
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Gregory (a Pseudonym) v The Queen [2017] VSCA 151; Kumas v The Queen [2021] VSCA 215; Rahmani v The Queen [2021] VSCA 51;
Sentence: H Vu: 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months
Q Vo: 8years and 1 month imprisonment with a non-parole period of 5 years
T Dang: 9 years and 10 months imprisonment with a non-parole period of 6 years and 2 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | B Sonnet | Solicitor for the Office of Public Prosecutions |
| For the Accused Vu | B Nibbs | Melasecca Kelly & Zayler Barristers and Solicitors |
| For the Accused Vo | R Avis | Sarah Tricarico Lawyers |
| For the Accused Dang | E Harold | Melasecca Kelly & Zayler Barristers and Solicitors |
HIS HONOUR:
1Operation Polaroid commenced in September 2018. It was an operation by a Victoria Police Drug Taskforce into an organised crime syndicate, operating a drug trafficking business. From 31 November 2018 until 22 April 2019, the syndicate's customer buy phones were intercepted by police via multiple telephone interception warrants and stored communication warrants which captured text messages relating to trafficking. Listening devices were installed in the two syndicate vehicles and in syndicate safe houses in Sunshine and Maribyrnong. An optical surveillance device was also used in the investigation.
2The syndicate was a highly organised prolific systematic and large-scale distributor of illegal drugs mainly methylamphetamine. The syndicate dealt in different quantities of drugs ranging from .5 of a gram to 1 kilogram. During the investigation, over 200 customers were identified, the majority of whom were drug traffickers on-selling the drugs to their own customers. The quantifiable amount of drugs sold by the syndicate during the investigation was approximately 46 kilograms. The syndicate operations are described in the Prosecution Opening which was tendered as Exhibit A on the plea.
3The syndicate's drug business was run with four phone holders who each took turns holding a ‘customer buy’ phone. Customers would contact this number and place orders for various drugs of dependence. The syndicate supplied methylamphetamine, heroin and cocaine. Most of the business was in methylamphetamine. The system used by the syndicate was that when a customer placed an order the phone holder would call the syndicate's drug delivery drivers on the low-cost phones connected in false names. These phones were changed on a weekly basis. The phone holder would then direct the driver to package and deliver the ordered drugs.
4The business regularly employed up to six delivery drivers, who like the phone holders took turns doing shifts for the business. Occasionally, syndicate members would change roles to suit the needs of the business. The following people have pleaded guilty before me to charges arising from Operation Polaroid. Minh Nguyen, Raymond Tran, William Wu, Thanh Dang, David Vu, Thanh Truong, Huy Vu, Quang Vo, Larry Vu and James Van. Syndicate members had different tasks in the distribution of the syndicate's drug supply. As I have said some manned the phones and others worked as delivery drivers. The delivery drivers were paid at the rate of $66 per hour. Phone holders were paid at some higher rate that is not disclosed in the evidence.
5The prosecution case is that phone holders occupied a position above delivery drivers in the hierarchy of the syndicate. Throughout the investigation four storage locations were identified where the syndicate stored its drugs for sale and used those locations for the preparation of drugs. These locations are commonly referred to in the evidence of safe houses. These dwellings were unoccupied and were used entirely for the management of the syndicate's drug supply.
6When an order was received the delivery driver would go the safe house, prepare the drugs for sale by weighing out the specific amount of drugs to be sold, then place the drugs into separate zip lock bags, label them with the amount and the location where the drug deal was to be done. The delivery driver would then attend various locations and conduct transactions generally through the driver's side window of one of the syndicate's delivery vehicles.
7The phone holders and delivery drivers conducted start of shift and end of shift reconciliations of drugs and cash and kept detailed handwritten ledgers of the amount of drugs being sold and profits from the drug sales. These ledgers were in lined notebooks. Almost every day the phone holders would meet up to exchange the syndicate buy phone and the handwritten ledgers, with the syndicate member who was working with the next shift so as to facilitate the ongoing operations of the syndicate. The syndicate worked daily from 12.00pm to 2.00am. Occasionally the business hours varied and occasionally the syndicate would be closed for business. If that was so, the customer base was advised.
8The syndicate used a pool of potential workers available to replace current workers should they be arrested or become unable to perform their duties for some other reason. All syndicate members had links to one another, either as family members or as long-time friends.
9The operations of the syndicate represent drug trafficking at the high end. The syndicate as I have said, was professional, systematic and organised and introduced very large quantities of destructive drugs of dependence into the community, mainly supplying other drug dealers operating closer to street level than the syndicate.
10You, Huy Vu, Quang Vo, and Thanh Dang have all pleaded guilty to trafficking in a large commercial quantity, as a result of your work for the syndicate. You have also pleaded guilty to various other charges which I will set out later in these remarks.
11The charge of trafficking in a large commercial quantity, carries a maximum penalty of life imprisonment and is also subject to a standard sentence of 16 years' imprisonment. It is also a Category 1 offence and therefore s 5(2G) of the Sentencing Act applies, which means that a sentence of imprisonment must be imposed in the absence of the stipulated statutory criteria. In this case there is no issue that prison sentences must be imposed for this offence for each of you.
12I am going to deal firstly with the matters of general application so as not to repeat these matters in each individual sentence.
Gravity
13The sentencing regime for serious drug trafficking is quantity based; and each of you trafficked in amounts well above the large commercial quantity threshold. The quantum of drugs is obviously not the only factor for me to consider in assessing the seriousness of this offence, but it is an extremely important factor. The threshold quantum for a large commercial quantity in this matter is 750 grams being a mixed amount threshold.
14Consideration of general deterrence, denunciation and just punishment are important sentencing principles in commercial drug trafficking at this level. In particular, the sentencing authorities have emphasised the importance of general deterrence and denunciation. The principles in the case of Gregory (a pseudonym) v The Queen [2017] VSCA 151 relating to trafficking in commercial quantities dictate a consequent increase in sentences for trafficking in large commercial quantities to maintain appropriate relativities between trafficking in a commercial quantity and trafficking in a large commercial quantity. Mr Sonnet took me to the recent case of the DPP v Kumas [2021] VSCA 215, where the Court of Appeal confirmed that this is so. See also the decision of the Rahmani v The Queen [2021] VSCA 51.
15It is clear from the appellant authorities that offenders who traffick drugs in large commercial quantities must understand that a lengthy sentence of imprisonment will follow if they are detected and then convicted. There is no doubt that a proper application of the sentencing principles dictates a substantial period of imprisonment for all the offenders in this case and general deterrence is the primary sentencing purpose.
16A further guidepost towards substantial sentences of imprisonment for trafficking a large commercial quantity is the standard sentence. The standard sentence for this charge is 16 years' imprisonment. The standard sentence operates as a yardstick only and is applicable to an offence in the mid-range of seriousness, having regard only to its objective features. A standard sentence is not a mandatory sentence, nor is it the primary sentencing consideration or the starting point from which to add or subtract time. It is just one of the many matters to be considered by a court in the instinctive synthesis of all matters relevant to sentencing. The law requires me to identify fully the facts, matters and circumstances which bear upon my decision as to the appropriate sentence.
17In the remarks that follow, I have endeavoured to do that in some detail. The sentence which I will impose for each of you for the charge of trafficking in a large commercial quantity is less than the standard sentence. In arriving at the sentence in this case, I had taken into account all the matters I am required to consider under the Sentencing Act including the standard sentence and I have considered the mitigating factors which apply in this case which I will deal with in some detail. The Sentencing Act provides that in sentencing for a standard sentence offence, I must fix a non-parole period which is at least 60 per cent of the head sentence, if the sentence is less than 20 years' imprisonment, unless a lower head sentence is in the interests of justice.
Current sentencing practices
18Current sentencing practices remain a relevant factor, but in sentencing for a standard sentence offence I am constrained only to consider sentences passed after the introduction of the standard sentencing scheme. I have read and had regard to the cases referred to in the prosecution submissions, and the table of cases in the Opening, as well as the Court of Appeal decisions relating to large commercial quantities since the introduction of the standard sentencing regime, including the decisions of Quah v The Queen [2021] VSCA, Al Janabe v The Queen [2019] VCC 1313 and Kumas v The Queen [2021] VSCA 215.
19There are of course relevant differences between the offending in each of your cases and the offending in the cases referred to by the prosecution. One such matter is the role each of you played. It is not put against the three of you that you were principles in the syndicate. In each case, your role has been characterised as that of a delivery driver and all that entailed in this syndicate. Delivery drivers were at the bottom end of the syndicate hierarchy but were essential to its operations. Mr Sonnet accepted on the plea that in relation to the roles you played as employees in this syndicate, there were no factually similar cases in the comparative cases. I will deal further with the details of your roles in the individual sentencing remarks. Current sentence practices are of course a guide or a yardstick, but not a controlling factor, in the formulation of a sentence.
20Pursuant to s 89DI of the Sentencing Act, on conviction for a charge of trafficking in a large commercial quantity, I must declare each of you to be a serious drug offender. That declaration will be entered into the records of the court.
Guilty plea
21Any trials in this case would have been long and complex. The utilitarian value of the pleas of guilty in each case is substantial. Although the pleas were indicated or entered at a contested committal, the brief in this case was very large and it was unsurprising that this matter proceeded to a contested committal and resolved in the way that it did. The issues subject to resolution were complex. In the circumstances, I regard each of your pleas as early pleas.
22Additionally, you have all pleaded guilty at a time when the court faces a very substantial backlog of trials resulting from the suspension of jury trials during the pandemic. This increased utilitarian value of a guilty plea was recognised in the recent decision of Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’) at paragraph 35 where the court said:
'Given the unhappy state of the courts lists, the courts must in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of a sentence.'
23For each of you, I am satisfied that your plea indicates a level of remorse and a willingness to facilitate the course of justice. You are all entitled to a significant sentencing discount, because you have pleaded guilty. You were each remanded in custody in 2019, around April. It has taken over two years and eight months for this matter to be finalised. Given the scale of the investigation and the number of people charged, it was always likely to take some time for this matter to proceed through the Magistrates' Court and then to be finalised in this court. The disruption to court proceedings meant that the contested committal was not listed until, as I understand it, February of this year.
24In all the circumstances, whilst I do not regard the delay as inordinate, I have taken into account the uncertainty about your future each of you has experienced over a lengthy period on remand. All of you have been on remand during the Covid-19 pandemic, and I have taken into account also the restrictions in prison conditions that have prevailed during that time as increasing the burden of your imprisonment. I will deal a little more with that matter in the individual sentencing remarks.
HUY VU
25Turning firstly to you, Huy Vu, you have pleaded guilty on Indictment K11035405 to the charge of trafficking in a large commercial quantity of a drug of dependence. You have also pleaded guilty to a charge of negligently dealing with the proceeds of crime, for which the maximum penalty is five years' imprisonment; and possession of a drug of dependence for which the maximum penalty is five years' or one year if the possession is not for a trafficking purpose, that's Charge 3. Additionally, you pleaded guilty to the related summary offences of committing an indictable offence whilst on bail, that's a maximum of three months' imprisonment and possession of prohibited weapons, two years' imprisonment.
26The facts of your offending were described in the Prosecution Opening which was tendered as an exhibit. You did not dispute those facts.
Circumstances of the offending
27You were a delivery driver for the syndicate. You were 22 years old at the time of the offences. You worked four shifts for the syndicate until you were arrested by investigating police on 23 December 2018. You were then granted bail to reside at a drug rehabilitation facility.
28The particulars of your offending are as follows:
29On 6 December 2018 into the early hours of 7 December, you were observed working as a delivery driver. You drove a red Toyota Aurion, registered WGU 876, and conducted drug transactions. You also went to the syndicate safehouse in Sunshine. On this shift you carried out 20 drug transactions in methylamphetamine at a total of 183.85 grams.
30On 9 December, into the early hours of 10 December, you again drove the Red Aurion to various locations performing drug transactions. You also went to the safehouse. You carried out 19 drug transactions in methylamphetamine totalling 431.8 grams. On 12 December, you went to the safehouse for approximately 18 minutes but did not sell any drugs on that day.
31On 20 December into the early hours of 21 December again, working as a delivery driver you conducted 26 transactions in methylamphetamine totalling 330.4 grams. On 22 December into the early hours of 23 December you conducted 20 drug transactions in methylamphetamine totalling 336.6 grams. On 23 December 2018, a customer ordered half a bag, being 14 grams. The transaction was to take place at the customer's mother's house in Lalor. It is unknown whether that transaction took place. The police attempted to intercept your vehicle, but you accelerated away. Police followed you and did intercept you. When police confirmed your identity, they saw a large quantity of cash in your wallet and white powder residue on the dashboard.
32Police searched the vehicle and located $6,225 cash in your wallet, two Optus phones, an Apple iPhone, two zip lock bags containing a crystal white substance, one zip lock bag with six smaller snap lock bags containing a crystal white substance and a small zip lock bag containing white powder. The quantity of methylamphetamine you sold was 1,282.65 grams from 85 transactions across your four shifts. The quantity of drugs seized from the bags in your car was 276 - 267.2 grams of methylamphetamine. A search warrant was executed at your house where police found cash, a ninja throwing star, and a taser disguised as a mobile phone.
33GPS data from the vehicle you were driving matched the locations of arranged drug deals and the phone in your possession had details of street addresses, drug amounts, sale amounts and customer names. You were remanded in custody on 23 December until you were granted bail to a residential rehabilitation facility on 20 February 2019.
34One bail condition was not to use drugs of dependence. On 12 April 2019 at approximately 6.23 pm, whilst on bail to the drug rehabilitation facility you went to the syndicate safehouse in Mitchell Street, Maribyrnong. Your attendance was captured on a listening device. You obtained cocaine from Raymond Tran to use at a wedding you were going to on the weekend. You said to Raymond Tran, 'From now on, like what happened for me, if you keep less than 250 on you, it's not commercial'. This is a reference to the commercial quantity threshold under the legislation. Your girlfriend who was also present offered the advice not to keep a phone, money and drugs in the same place. You were arrested in respect of this offending, breaching your bail conditions, and remanded in custody. You have been in custody since then.
Gravity
35Your role, which involved four shifts was very serious offending. The quantity of the transactions you conducted on your shifts was well above the large commercial quantity for methylamphetamine of 750 grams mixed; over double. The quantity of methylamphetamine you had in the car was plainly ready for imminent distribution. As I have said, trafficking in a large commercial quantity is a very serious offence reflected by the maximum penalty and the standard sentence of 16 years. As I said, the quantity covered, 1,549 grams, is just over double the large commercial quantity.
36You are not a principal in the syndicate, and it is not put that you stood to share in the profits of the enterprise. However, the enterprise in the case continued and flourished because you and your co-offenders provided your services to the syndicate, by selling very large amounts of drugs for the syndicate, thereby introducing these drugs and the associated misery into the community. Presumably this kept the principals, whoever they were, away from the risk of detection. Although the amounts of drugs varied, this was not street level dealing as the Prosecution Opening makes clear.
37Your role and the extent of your participation is clear and the case against you is that you were a delivery driver who prepared drugs for sale and then supplied the drugs to the customers. You were paid a relatively small amount for the magnitude of the risk you were taking. The Prosecution Opening specified delivery drivers as being at the bottom of the syndicate hierarchy. In respect of the hierarchy of offenders who have pleaded guilty before me, the prosecution submitted you were only above Larry Wu, who was charged with trafficking in a commercial quantity which has a lower maximum penalty and no standard sentence and the quantity was about half the quantity covered by your charge here.
38Having regard to the number of shifts you worked, and the quantum of drugs covered by Charge 1 and your role as a delivery driver I accept the prosecution's submission as to your place in the hierarchy of offenders in this case. However, although you played a lesser role than most of the other offenders in this case your participation was halted by police intervention rather than in any decision you made and you were an active participant until that happened. The comments you made to Mr Tran on 12 April 2019 demonstrate an awareness of the commercial quantity threshold for methylamphetamine and the desirability of possessing lower amounts to avoid more serious consequences.
39You were on bail at that time. You had not distanced yourself from drug use and the syndicate. These matters are relevant to your moral culpability. It is apparent you understood the gravity of what you were doing and the serious consequences that might follow from such offending. That said your role as a paid employee, the extent of your participation and the absence of prior convictions allow for a reduction in the assessment of your moral culpability and the assessment of the objective gravity of your offending.
40Charge 2, of negligently dealing with the proceeds of crime does relate to a significant amount of money. The charge carries a maximum of five years. It seems to me your possession of the money is linked to the drug trafficking milieu that you moved in.
41Charge 3, the possession of cocaine charge is aggravated by the fact that you were on bail for Charge 1. It was an extraordinary decision by you to purchase cocaine from the syndicate whilst on bail for this serious drug trafficking charge. You clearly had no remorse at that point for your involvement in the syndicate indicated by what you said when you acquired the cocaine and your disregard of the bail conditions. That said, is not suggested the acquisition of the cocaine was for trafficking, rather it was for personal use, so I apply the lower maximum penalty.
42The fact that you were on bail is also represented by Summary Charge 4, the possession of prohibited weapons charge in relation to a taser and ninja throwing stars on 23 December, which also seems to me consistent with your involvement in the syndicate and the drug trafficking milieu generally. I have dealt with the objective utilitarian value of your plea and that you must receive a significant discount for that plea.
Personal circumstances
43I turn to your personal circumstances. You were born in August 1996. You are now 25 years of age. At the age of just 22, you were still a relatively young man when you committed these offences. Your parents came to Australia as refugees who left Vietnam by boat after the war. Your parents had qualifications in teaching and accountancy, but those qualifications were not recognised in Australia, so they have worked in factory positions since arriving in this country. You are the middle child of three children. Your older brother Thai Vu, aged 28, has work involved in Covid-19 statistics. Your younger sister aged 19, is studying nursing.
44Your parents were determined that you and your siblings receive a good education and this was a focus in your family. You had extra tuition and you took extra classes in the year above you to help you obtain a scholarship to a selective secondary school. But you did not get a scholarship and by Year 9 you began to rebel using cannabis with your peer group at that time.
45A psychological report from Mr Luke Armstrong was tendered on the plea. You told him that your use of cannabis increased, following a fatal car accident in which two of your friends were killed and you were a passenger. This incident occurred about four years before the offending in this case. You blamed yourself for their deaths as you had introduced your friends to the driver. This event is described by Mr Armstrong as a catalyst for your mental health deteriorating after which you started using methylamphetamine heavily. Around the time of this offending, you were binge drinking, using cannabis and methylamphetamine.
46I do not have any difficulty accepting there is a relationship between your drug use and your involvement with the syndicate, but it does not serve as a full explanation in your involvement in the wholly professional activities of this syndicate.
47You are a qualified registered refrigeration mechanic, but your unreliability from using drugs, led you to losing your employment about a month prior to your arrest. I accept your time on remand has been difficult, particularly because of the suspension of visits and limitation on courses during the pandemic. I accept that since you have been in custody you have been able to detoxify and gain some insight into the serious consequences of your actions on the users - for instance on the users of the drugs that you distributed. I accept you have also come to understand the damage you have caused to your family.
48Tendered on the plea were a bundle of certificates for courses you have completed in custody, including courses on drug and alcohol use, a certificate in warehousing and of course in Covid-19 cleaning. You have also worked as a leading hand in the kitchen at Port Philip and you now do most of the cooking at your unit at Marngoneet. You have also assisted prison services by acting as an interpreter for Vietnamese inmates. You have undertaken some study focused on reasons for people becoming involved in crime. While in custody you have not used drugs, as shown by the drug screen results tendered on the plea.
49You have no prior convictions. Your age and prior good character are relevant to the weight to be given to specific deterrence and support a favourable assessment on your prospects of rehabilitation. Age and good character also serve to reduce your moral culpability to an extent for this serious offending.
50When you are released from prison, you are considering completing an electrical apprenticeship, as many of the units you did to become a refrigeration mechanic are transferrable to that apprenticeship.
Character references
51A total of 21 character references including a letter from Catholic Care were tendered as an exhibit on the plea. In the letter tendered from your previous employer Mr Brad French you are described as reliable, trustworthy, motivated and well-liked. AOD clinician, Ms Barua, says you have demonstrated motivation for change through engagement in counselling sessions.
52Your mother Phuong Tran describes you as a kind and caring person growing up. She says, she will continue to support you and is committed to helping you not re-offend.
53Your father speaks of your compassionate nature. He said that you used the skills you learnt during your electrical apprenticeship to help your friends, family and the community, such as by installing air conditioners without charge. The steps you have taken to improve your mental health through counselling is in his view a sign of your remorse.
54Your eldest brother speaks highly of you as a positive member of the community and says you are eager to help people in need and likely to continue to do so when you are released. Your younger sister, Vy Vu also attests your community spirit and says you have always encouraged her to help others. She has memories of you protecting her at school.
55Your strong support network is further evidenced by the number of references provided by your friends, Andrew Le, David Nguyen, Henry Lam, Roselle Benedicto, Sean Reynolds, Tia Tan, Vy Tran, Thomas Nguyen, Isabelle Cahoy, Tai Truong, Kim Van, Kelvin Ye, Khanh-Ly Tran and Anh My Tran. Many of those people have been your friend since high school. They say you are intelligent, driven and that you are kind hearted, selfless and an honourable person who has displayed regret and remorse for your offending.
56I have taken these matters into account in assessing your level of remorse, and as relevant to your prospects of rehabilitation. Mr Nibbs submitted that having regard to the nature and extent of your participation in the syndicate activities and the absence of prior convictions I should be satisfied that you have good prospects of rehabilitation. The prosecution submitted that if you were able to stop using drugs, your prospects of rehabilitation are good.
57Notwithstanding the seriousness of the offending and that you went and bought cocaine when you were on bail for trafficking in a large commercial quantity, you are still a relatively young man with an employment history and a trade qualification. You have now been in prison since you were aged 22. In my opinion, you have the capacity to cease using drugs. You are not a person with a long-entrenched drug problem who has been given many chances by the courts. To the contrary this is your first experience of the criminal justice system. I am of the view you do have good prospects of rehabilitation.
58The totality principle requires that the overall sentence for all charges remain just and proportionate. Substantial periods of concurrency are required to comply with this principle. Charge 2 seems to me to arise from your syndicate activities. Charge 3 is a separate offence committed when you were on bail. I have had regard to the fact that you were on bail in assessing the gravity of Charge 3, so I must avoid double punishment in sentencing you for Summary Charge 4. The possession of weapon offence, Summary Charge 5, also seems to me related to the trafficking milieu in which you were moving at that time.
59The purposes for which a court may impose sentence are just punishment, deterrence, both specific and general, rehabilitation, and denunciation of your actions and of course protection of the community. In this case general deterrence is the primary sentencing purpose.
60Having regard to your age, your prospects of rehabilitation and the absence of prior convictions I have reduced the weight to be given to specific deterrence. I must also seek to ensure as far as is possible that you as an offender are rehabilitated and reintegrated into society. To that end given my assessment of your prospects of rehabilitation and your previous good character, I will allow for a significant period of supervision, should the parole board release you at the end of the non-parole period.
61Just before I come to sentence you, Mr Sonnet can I just check the amount in Charge 2, the negligent proceeds of crime, was it $13,000?
62MR SONNET: Your Honour I will check that. I'll just call it - - -
63HIS HONOUR: Yes, just - that was in the overall summary, but it didn't tally with - yes $13,000 cash, see it says $6,000 located in the vehicle and $795, so is the $13,000 correct?
64MR SONNET: Your Honour, I'm just checking it now.
65HIS HONOUR: Yes. There's a second amount of $6,000 I'm – sorry, Mr Sonnet, On the forfeiture order there's a second amount of $6,000. So, there was $6,000 in the wallet, $6,000 in the vehicle and $795 in the house. All right, that covers it I think, Mr Sonnet.
66MR SONNET: Yes, I just found it, yes. It's $6,225 wallet, $6,065 vehicle and $795 house.
67HIS HONOUR: Yes. I think in the summary, yes, so I should have added into the summary, I will correct this on a revision that there was $6,225 located in the wallet.
68All right, in relation to sentencing Mr Vu, Mr Vu can you just confirm you can hear me?
69OFFENDER VU: Yes, Your Honour.
70HIS HONOUR: All right.
Sentence
71On Charge 1, of trafficking in a large commercial quantity of a drug of dependence you are convicted and sentenced to a period of 7 years and 4 months' imprisonment.
72On Charge 2, of negligently dealing with proceeds of crime, you are convicted and sentenced to a period of 6 months' imprisonment.
73On Charge 3, possession of cocaine, you are convicted and sentenced to 4 months' imprisonment.
74In relation to Summary Charge 4, of committing an offence on bail, you are convicted and discharged because I have had regard to that matter as an aggravating feature of Charge 3.
75In relation to the possession of a prohibited weapon, you are convicted and sentenced to 2 months' imprisonment.
76One month of the sentence of Charge 2, and one month of the sentence on Charge 3, are cumulative on the sentence for Charge 1 and on each other, which makes a total effective sentence of 7 years and 6 months.
77I fix a minimum non-parole period of 4 years and 6 months.
78I declare 1,005 days of pre-sentence detention to be deducted from the sentence that I have imposed pursuant to s 18 of the Sentencing Act.
79Pursuant to s6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have sentenced you to a period of 11 years and 4 months with a minimum of 8 years. All right, now is that clear Mr Sonnet. I'll just check that before we move on.
80MR SONNET: Yes, the mathematics all adds up.
81HIS HONOUR: Yes, all right. Mr Vu can stay on the link if he wants to, or if he doesn't want to the link can be terminated. Mr Vu did you want to remain?
82OFFENDER VU: Yes, please, Your Honour.
83HIS HONOUR: All right.
QUANG VO
84Quang Vo, on Indictment K11023400, you pleaded guilty to trafficking in a large commercial quantity; again, the maximum penalty is life imprisonment. You have also pleaded guilty to trafficking, being Charge 2, for which the maximum penalty is 15 years' imprisonment; and negligently dealing in the proceeds of crime, where the maximum is five years' imprisonment.
85You were born in April 1993 and therefore you were aged 25 years at the time of the offending. You were living in Sunshine North.
Circumstances of the offending
86The Prosecution Opening characterises your role in the syndicate as being a delivery driver and that you worked in company with Thanh Truong. On the plea your counsel, Ms Avis submitted that on all occasions bar one, you were in fact a passenger with Mr Truong doing the driving. Mr Sonnet accepted this was correct. It is undisputed that by your participation, you were criminally involved in trafficking 2,946.45 grams of methylamphetamine between 27 December 2018 and 20 April 2019. You also trafficked in cocaine in the amount of 22 grams, and when you were arrested you were in possession of $9,750 which is the basis of Charge 3.
87You worked nine shifts for the syndicate. On 27 December 2018, over into the early hours of 28 December with Mr Truong you conducted 27 transactions in methylamphetamine amounting to 1,020.45 grams. On 29 December, over into the early hours of 30 December, with Mr Truong, you conducted 20 transactions in methylamphetamine totalling 362.5 grams. On 30 December into the hours of 31 December, you conducted 11 transactions in methylamphetamine totalling 730.95 grams; that was with Mr Truong. On 31 December 2018, again with Mr Truong, you conducted seven transactions totalling 213.85 grams of methylamphetamine and also 8 grams of cocaine.
88On 9 January, with Mr Truong you were captured on CCTV entering the car park of an apartment complex where a methylamphetamine transaction of 112 grams took place. On 10 January over into 11 January with Mr Truong, you attended at the safehouse in Sunshine after finishing deliveries for the night. On that shift, the two of you conducted 19 transactions totalling 214.1 grams.
89On 25 January, the syndicate vehicle was searched and found to contain large quantities of methylamphetamine, heroin and firearms. You had been seen accessing this vehicle back on 31 December 2019 with Phi Van. The prosecution simply relies on this to demonstrate the scope of the syndicate's activities.
90On 29 March, after surveillance devices had been installed, those devices captured you and other syndicate members handling cash, drugs and firearms. On that date and into the early hours of 30 March, you were with Mr Truong, using vehicle WRL 892 from the Maribyrnong safehouse. You conducted 11 transactions totalling 102.7 grams of methylamphetamine and 14 grams of cocaine.
91You and your co-offender were heard and seen preparing drugs for sale and counting cash at the safehouse that night. On 19 April with Mr Truong, you conducted four transactions in methylamphetamine totalling 175.5 grams. He picked you up from his house at 4.34pm and the two of you could be heard disposing of mouldy cannabis and preparing methylamphetamine for future sale.
92You were arrested and remanded in custody on 22 April 2019. Police searched your address and located $9,750 of cash which is the basis of Charge 3. You were interviewed by police. You gave a no comment record of interview.
Gravity
93The comments that I made in relation to Mr Huy Vu about the gravity of the offending apply in your case. You were a paid employee, a delivery driver. The seriousness of your offending is underpinned by the quantity involved which was just under four times the large commercial quantity for methylamphetamine. The extent and duration of your participation, nine shifts between December 2018 and April 2019, is also significant.
94Ms Avis argued that despite your presence in the car as a passenger, you were not essential to the success of the transactions on the shifts you worked; that you were present but not contributing much. She submitted you did not perform a trusted role. She argued that your role was less significant than those who were the actual drivers of the vehicles. In my opinion there is some validity to this submission, although it seems to me that it must have been advantageous to the smooth operations of the syndicate to have two people working the vehicles rather than one. The presence of two people facilitates a more secure environment, in an inherently perilous endeavour of selling drugs in substantial quantities. In my view, it makes it easier to successfully complete transactions.
95Clearly though, you did perform a lesser role than Thanh Truong with whom you seemed to be paired and who was the allocated driver in your trafficking incidents. Your role is properly assessed as near the bottom end of those who have pleaded guilty before me. I do find that in assessing the various roles, yours falls below those who drove the vehicles alone. This is one factor to consider. The quantum of drugs sold remains important.
96I also consider your participation was sporadic over the four months covered by Charge 1. Your role does serve to moderate the assessment of your moral culpability and the objective gravity of this very serious offending of trafficking in an amount of methylamphetamine well over the large commercial quantity threshold. In my view having regard to the number of shifts you worked, the number of transactions you conducted and the quantity of drugs you sold, you are above Huy Vu in the hierarchy of offenders who have pleaded guilty before me, to trafficking large commercial quantities.
97In assessing your role in moral culpability, I have taken the view that there is some difference between you and those who drove the vehicles alone. That said, you were also involved in drug preparation and the handling of cash at the safehouse. Your role was not insignificant. You were a willing worker of the syndicate over a number of months. You must have understood the gravity of what you were involved in, selling large amounts well above street level.
98Charge 2, of trafficking in cocaine, was really part of your role with the syndicate and adds little to the overall criminality in the case. The prosecution described this as a low-level offence.
99Charge 3, of negligently dealing in the proceeds of crime involved a relatively significant amount, however it seems to have arisen from your involvement in that drug trafficking earlier.
100I have dealt with your plea of guilty, but one distinction in your case is that the informant was cross-examined at the committal. However, the case ultimately resolved as I understand it, on a basis that was different to the case at committal. The pre-committal issues surrounding the scope of your participation were still being finalised shortly prior to the plea in this matter.
101In the circumstances, I regard your plea as an early one. I do not see that there is any material difference in the stage at which you entered the plea compared to the co-offenders. Given the favourable alteration in the substance in the prosecution case, I accept your plea is indicative of some remorse and the willingness to facilitate the course of justice and as I have earlier indicated the principles of Worboyes are to be applied.
Personal circumstances
102You are now 28 years old. You were 26 at the time of the offences. You were born in Vietnam. You moved with your parents to Australia when you were around the age of five years. Your grandparents were already living here. You are the youngest of four boys. Your family life growing up was not easy. Your father was violent to your mother at times. One of your brothers developed schizophrenia when you were aged about 18. You left home due to that. Your father is now suffering from lung cancer and other serious health conditions. You worry about your father's health and the impact of your situation on your family. Your last in person visit with your family was in 2019 and video links with your parents have been rare as a result of their inexperience with the technology.
103Your family remain supportive of you and when you are released you will be able to return home to live with them, including two of your brothers.
104I am told you were a good student. You completed VCE before commencing a Bachelor of Electrical Engineering at Victoria University. You received an award in the first year and transferred to a Bachelor of Civil Engineering in your second year. You later transferred to an Advanced Diploma of Building Surveying which you finished in 2014. You then started the degree, but you did not finish. You still have your final year to do.
105During your second year you began smoking cannabis and you started using cocaine on the weekends and methamphetamine occasionally. You have a prior conviction in 2014 for an assault which I am told arose from a road rage incident. You received a community correction order. The court was then seeking to punish you, but also to promote your rehabilitation in imposing that sentence. Although the prior conviction was for a very different offence, you do not have the benefit of an unblemished record. The fact that you have offended before and previously been the subject of a court order has some relevance to the assessment of your prospects of rehabilitation.
106A psychological report from Ms Carla Ferrari dated 16 August 2021 was tendered. Based on what you told her, she described a deterioration in your mood after leaving home which led to substantial cannabis use to mask your anxiety. Your academic performance declined and as you described you changed courses in this period. Ms Ferrari had assessed you as suffering from a major depressive disorder which commenced after you left home. She said of your drug abuse at paragraph 82;
'There is a clear nexus between the decline in his mental state, use of substances to cope and his involvement in criminal behaviour which is a marked departure from his usual character.'
107Ms Avis sensibly in my view did not submit that there was a sufficient connection between your psychological issues and the offending for Verdins principles in relation to lowered moral culpability and reduced general deterrence to apply. Neither of these factors really explain your involvement in this offending. Such matters are relevant as matters personal to you that provide the background of some explanation of your involvement with the syndicate and this large scale trafficking.
108You are a person who had a difficult upbringing and engaged in significant drug use whilst battling some mental health issues. This is the context in which you became involved in this serious commercial drug offending. It bears some relationship to your moral culpability. Since you have been in custody, you have not used drugs. Negative drug screens were tendered on the plea. You have also completed multiple courses for which certificates were tendered. According to Ms Ferrari, you have developed insight to your mental health, drug abuse and the connection of those conditions to your current offending. You told her that you recognised the detrimental impact on your life of drug use.
109Ms Ferrari offered the view that imprisonment would weigh more heavily on you than a person without your psychological issues. She noted that for a person with a depressive disorder there is potential for mood fluctuation and the volatile nature of prison could exacerbate your condition. She made various
110recommendations which revolve around the need for supervision and addressing your mental health and substance abuse.
111Based on Ms Ferrari's report, Ms Avis submitted that principles 5 and 6 of Verdins are engaged, meaning that imprisonment may weigh more heavily on you than someone without your mental health condition and principle 6 – that there is a serious risk that a term of imprisonment will have a significant detrimental impact on your mental health.
112Mr Sonnet submitted that principle 5 was applicable but principle 6 of Verdins did not apply because the evidence did not establish a serious risk of significant detrimental effect on your mental health. In my view, the evidence does fall short of establishing a serious risk of a significant detrimental effect. But I take into account principle 5 as a mitigating factor in this case.
113The restrictions of Covid-19 that have prevailed in the prisons during your time on remand are a relevant mitigating factor. As I said, you have had very limited access to visits with your parents during your time on remand. Adding to the burden of your imprisonment, your father's currently suffering from several serious health issues and this has weighed heavily on you, whilst you have been in custody. So, I take those matters into account in assessing the burden of your imprisonment.
Character references
114Various character references were tendered on your behalf from the following people; Mr Nham Vo, Tran Nguyen, Nguyen Pham, Carnation Tran, David Phan, Denny Voung and Henry Pham. These people are your friends and family. All have known you for a long time. These references refer to your positive qualities and describe you as, amongst other things, responsible, generous and dependable. Many refer to your remorse for this offending. Mr Nguyen Pham is prepared to offer you work training to be an electrician.
115I have also had regard to the many certificates for courses that you have done whilst you have been on remand. It is clear from the number of courses you have started to work on your rehabilitation during the last few years.
116It was submitted that your prospects of rehabilitation are excellent and that your risk of reoffending is low. Based on Ms Ferrari's report it was submitted you have insight into the relationship between your mental health and drug abuse and the relationship of these conditions to the offending. Further you do not have a significant criminal record. You are still a relatively young man in your 20s. You have support in the community. You have done well within the prison system staying away from drugs and completing multiple educational and training courses. I also take into account in assessing your prospects of rehabilitation the character references submitted.
117Balanced against these matters of course, is the gravity of the offending, a well- entrenched pattern of drug abuse and that a prior supervisory court order did not turn you away from criminal conduct. However, having regard to all of the matters, in my opinion you do have good prospects of rehabilitation.
118I have taken into account the totality principle in making orders for cumulation and that there is overlapping criminality between the offences. I have taken into account the purposes of sentencing being just punishment, specific and general deterrence, denunciation, protection of the community, as well as having regard to your prospects of rehabilitation. The absence of a like criminal history and my assessment of your good prospects of rehabilitation, has led me to reduce the extent of the weight to be given to the specific deterrence. In my view, it is appropriate to allow for a significant period of supervision on parole in this matter. In this case, I have attempted to balance the mitigating factors that apply against the gravity of the offending.
Sentence
119Mr Vo, you are sentenced as follows:
120In relation to Charge 1, of a trafficking in a large commercial quantity, you are sentenced to 8 years' imprisonment.
121For Charge 2, trafficking in a drug of dependence, 6 months’ imprisonment.
122On Charge 3, of negligently dealing in the proceeds of crime, 4 months’ imprisonment.
123I order that 1 month of the sentence on Charge 3 be cumulative on the sentence for Charge 1, which means a total effective sentence of 8 years and 1 month. I fix a minimum non-parole period of 5 years.
124I declare that you have served 947 days of pre-sentence detention to be deduced from the sentence in this case.
125Pursuant to s 6AAA, I indicate that the sentence I would have imposed but for your plea of guilty is 12 years and 5 months' with a non-parole period of 8 years and 8 months. So, any clarification required of those orders?
126MS AVIS: As Your Honour pleases.
127HIS HONOUR: Yes, all right. Mr Sonnet that all follows?
128MR SONNET: Mathematics all works out, yes, Your Honour.
THANH DANG
129HIS HONOUR: Finally, Mr Dang on Indictment, K1103692.1, you also pleaded guilty to trafficking a large commercial quantity of methylamphetamine. And in addition, Charge 2, to cultivating a commercial quantity of cannabis carrying a maximum penalty of 25 years.
130You were born in March 1993, you were therefore aged 25, turning 26 throughout the period of this offending. You were living with your partner and your children at the time of the offences.
131Your role in the syndicate was that of a delivery driver. You were also involved in the preparation of drugs for sale to customers. You worked eight shifts on behalf of the syndicate, before suffering a medical seizure on 18 January 2019. Your offending involved trafficking a total of 4,096 grams of methylamphetamine over a one-month period. This is five times the large commercial quantity threshold. That's the basis of Charge 1.
132On 22 April 2021, when police executed warrants in this matter, they found at your address a hydroponic set up of 107 cannabis plants weighing approximately 32 kilograms. An electrical bypass was in place. The commercial quantity for cannabis is 100 plants or 25 kilograms. This is the basis of Charge 2.
Circumstances of the offending
133Turning to the details of your offending. You were first captured working for the syndicate on 21 December 2018. Overall, you worked a total of eight shifts. Your shifts regularly commenced in the afternoon and went into the early hours of the following morning. Your last shift started on 17 January 2019 and on that date you had a seizure while delivering drugs to a customer in the early hours of 18 January 2019.
134The vehicle you used was a blue Toyota Aurion vehicle in your role as a delivery driver, the registration of that vehicle was XHX 838. On 21 December 2018 into the early hours of 22 December, working as the delivery driver on your own, you conducted 20 transactions in methylamphetamine, totalling 500.4 grams. On 26 December, into the early hours of 27 December, as the delivery driver, you attended a car park in West Road, Maribyrnong, to conduct a pre-arranged drug deal. During that shift, you conducted 18 transactions totalling 539.2 grams.
135On 28 December 2018, over into the early hours of 29 December, as the delivery driver in the blue Toyota, you were captured on surveillance devices at the Sunshine safehouse, coming and going from the house in the vehicle. On that shift, you conducted 18 transactions in methylamphetamine, totalling 333 grams.
136On 3 January 2019 into the early hours of 4 January, as the delivery driver you were caught on the optical surveillance device, attending the safehouse in the blue Toyota. You were captured on that day at the car park in West Road, Maribyrnong, and conducting a drug deal with a customer. During that shift you conducted 24 transactions in methylamphetamine, totalling 687.15 grams.
137On 8 January over into 9 January, you again were captured on CCTV at West Road, Maribyrnong conducting a transaction. On that shift you conducted22 transactions in methylamphetamine, totalling 432.6 grams. One of the transactions was of unknown quantity.
138On 11 January 2019, into the early hours of 12 January, you were the delivery driver. You were seen meeting with Phi Van and Thanh Truong. During that shift you conducted nine transactions in methylamphetamine totalling 250.95 grams.
139On 12 January, over into 13 January, again, you attended at the West Road, Maribyrnong location and you conducted a drug transaction. During that shift you conducted 13 transactions, totalling 331.3 grams.
140On 17 January, over into the early hours of 18 January, you were performing deliveries, including a deal involving 500 grams, and you attended at a safehouse in St Albans. You conducted 22 transactions on that day, totalling 1,021.4 grams. Whilst you were conducting the last transaction, you suffered a seizure and the customer contacted the syndicate buy phone and said, 'Your man is having a fit, he's convulsing, frothing from the mouth.' The customer said she was going to call an ambulance and the phone holder told the customer to hide the stuff. Minh Nguyen arranged for Phi Van to conduct the last transaction on that day.
141After that incident, you did not act as a delivery driver again but you were seen attending the safehouse on 28 February 2019 and also meeting other syndicate members at the Flower Drum restaurant.
142As I said earlier, when police executed the search warrant on 22 April 2019, they located the cannabis set up at your house. When you were interviewed on that day, you made no comment in relation to trafficking methylamphetamine, but you admitted cultivating plants at your house.
143In relation to your guilty plea, I have already indicated that it's of significant weight and I accept it shows some remorse and a willingness to facilitate the course of justice. For the reasons I have previously set out you are entitled to a significant sentencing discount.
Personal circumstances
144Turning to your personal circumstances. They were set out in the submissions of your counsel Ms Harold, and the psychological report which was tendered from Mr Luke Armstrong. You are now 28 years old. You came to Australia from Vietnam when you were aged three months. Your parents separated when you were in Grade 6 and you were 11 years old. You then lived at your father's house, your grandmother's house and your mother's house.
145You went to a primary school in Heidelberg up until Grade 2, before moving to a primary school in Hawthorn West. You were a good student, up until your parents' separation. You have five younger siblings, two of whom are full siblings and three are half siblings. Those latter three, their father is your mother's current partner. Your father was a long-term heroin addict. You say he used heroin throughout your childhood.
146You witnessed violence against your mother, both by your father and your mother's new partner, who apparently become addicted to methylamphetamine. As a result of your upbringing, you saw yourself as a primary carer for your sisters and both of your parents. You were apparently able to cook, clean and perform general domestic duties from around the age of 10. Mr Armstrong describes this process as one of 'parentification' in his report.
147From Year 7 to Year 10, you went to Christian Brothers College in St Kilda. Then you completed Year 11 at RMIT. You did not finish Year 12. You have a prior conviction in 2013 for affray and recklessly causing injury, for which you received a fine of $2,500. You were aged 20 at that time.
148You first used cannabis at the age of 14 and ecstasy from the age of 15. You were a regular user of both substances by the age of 16. From the age of 16 you were going clubbing with friends, almost every week and substance use was common.
149From the age of 17, you worked in the family restaurant T'relek in Richmond. This business ultimately closed in 2020, due to the pandemic. From the age of 18, you became a regular cocaine user. You first started using cocaine at a friend's birthday party in 2011, and you have continued using it since then. Apparently your cocaine use increased following the loss of some close friends in a motor vehicle accident in 2014.
150Your partner is Melissa Bragg. You met her when you were both 19 years old and you have children with her; Jayden aged six and Nathan aged four. Ms Bragg works in early childcare and is currently studying to become a primary school teacher. She remains supportive of you and is committed to the relationship. You continued to use cocaine after the birth of your children, and your use persisted throughout the offending period for Charge 1.
151You suffered the drug-induced seizure on 18 January 2019. You did not seek medical attention but described it as a 'wake up call'. You decided to reduce your cocaine consumption. You say you started using cannabis to help cut down your use of cocaine, which is said to be the context for the cultivation of the cannabis crop found in your house at the time of your arrest in 2019.
152You are grieving the loss of your father who passed away on 18 August 2021. In recent years your father had begun to reform himself and had ceased drug use. You hoped to reunite with him when released.
Gravity
153Turning now to the gravity of your offending. The factors that I have referred to in respect of Mr Vu and Mr Vo are also relevant in your case. You were also a delivery driver. You were not a principal in the syndicate. You were a paid employee. Your status as an employee in the syndicate, receiving a relatively modest wage for the risk you were taking, is relevant to a reduction in the assessment of the objective gravity of the offending and of your moral culpability. That said, the seriousness of the offending in respect of Charge 1 is underpinned by the quantity involved, which was approximately five times the large commercial quantity of methylamphetamine. The extent and the duration of your participation, eight shifts in approximately a month, is also relevant.
154You did not work as many shifts as Quang Vo and you were not involved for as long as Mr Vo, but the quantity of drugs involved was larger. You also operated as a delivery driver on your own. Your involvement as an active employee was ended by your seizure rather than a decision that what you were doing was wrong. Delivery drivers were an essential cog in the operations of the syndicate without whom the syndicate could have continued operations. I accept the prosecution's submission that your offending places you above Quang Vo in the hierarchy of the offenders I am sentencing.
155Charge 2 is a serious offence in its own right. This was a commercial quantity of cannabis, on both the number of plants and the weight of the plants, albeit in both categories, the quantity is at the lower end. This was a sophisticated hydroponic set up which must have involved considerable effort and expenditure to establish. The appellant authorities for such offences are very clear on the need for general deterrence and for substantial prison sentences. The offending seems to me unrelated to syndicate activities and therefore justifies significant cumulation. Given the size of the crop, the inference that you cultivated this crop for sale, is well open beyond reasonable doubt.
156A psychological report from Mr Luke Armstrong was tendered. In his report he says, your personality profile exhibits features of a borderline personality disorder, as a result largely of your traumatic upbringing. He describes drug use as normalised within the family setting. He says your narrative was consistent with a significant stimulant and cannabis use disorder. You told Mr Armstrong you offended to assist your mother in her financial difficulties related to the restaurant and to support your own drug use. Mr Armstrong described you as now comprehending the gravity of the offending.
157No submissions were made that anything in the psychological report gives rise to reduced moral culpability or a reduction in general deterrence or specific deterrence. Nonetheless, your difficult upbringing leading to drug use is a significant matter personal to you, which explains the trajectory of your life and provides the context to your participation in the offending and is relevant in the assessment of your moral culpability.
158I take into account the Covid-19 restrictions whilst you have been in custody, including the suspension of visits and the limitation on access to rehabilitative programs. You are also grieving the loss of your father who passed away on 18 August 2021 and you had hoped to reunite with him. Of course, he died whilst you were on remand and you were unable to attend his funeral, but rather watched it online from prison. It seems that's an impact of the pandemic as well. All of these things have accentuated the hardship you have experienced in custody and I take this matter into account as a mitigating factor.
Character references
159Your partner Melissa Bragg, her sister Michelle Papasergio and your brother Dung Dang provided references for you. They described your remorse for the offending. It is clear from Ms Bragg's reference, she remains supportive of you, and she will be there for you when you are released. Your brother refers to the difficulties in your upbringing and describes you as an honourable son and a compassionate brother. I have taken into account the references as indicating
160remorse, corroborating aspects of your background raised in the psychological report, and as providing evidence of on-going support favourable to your prospects of rehabilitation, which I now turn to.
161You have committed very serious offences and you do not have an unblemished record. The cultivation offence was committed after your involvement in the syndicate had ceased. However, you do not have a significant criminal history. Your prior convictions resulted in a financial penalty and they were different types of offences. In my opinion, with support after a long period in prison there is good reason to be optimistic you will be able to stay away from drugs and the related social networks that led you to offend in this way. In my opinion, you have reasonably good prospects of rehabilitation.
162In addition to the earlier declaration that you are a serious drug offender under s89DI, both Charges 1 and 2 are drug offences under the Sentencing Act, therefore s6D and 6E apply in relation to sentencing for Charge 2. Under those sections, community protection is the primary sentencing purpose and sentences are to be cumulative unless otherwise ordered.
163I do not impose a disproportionate sentence and note the prosecution did not seek one in this case. The available punishment is more than sufficient. I have had regard to the need to ensure your overall sentence remains just and proportionate. The totality principle in sentencing for Charge 2, is modified but not excluded by the operation of s6E of the Sentencing Act. I have also had regard to the fact that the cultivation offence was a serious offence, unrelated to syndicate activities.
164As I said in relation to Mr Vu and Mr Vo, the purposes for which a court may impose a sentence are just punishment, deterrence specific and general, denunciation, community protection and rehabilitation. Of course, for Charge 1 general deterrence is the primary sentencing purpose.
165Having regard to your prospects of rehabilitation and the absence of a history for similar offending, I have reduced to an extent the weight to be given to specific deterrence. I must also seek to ensure as far as possible, that you as an offender, are rehabilitated and reintegrated to society. To that end, given my assessment of your prospects of rehabilitation, I will allow for a significant period of supervision at the end of the non-parole period.
166Mr Dang, you are sentenced as follows:
167On Charge 1, trafficking in a large commercial quantity of a drug of dependence, you are sentenced to 8 years and 10 months' imprisonment.
168On Charge 2, for cultivation of a commercial quantity of cannabis you are sentenced to 2 years and 2 months' imprisonment.
169I order that 12 months of the sentence on Charge 2 is cumulative on the sentence for Charge 1, which means the total effective sentence is 9 years and 10 months. I fix a minimum non-parole period of 6 years and 2 months.
170I order that 947 days are to be deducted as pre-sentence detention pursuant to s 18 of the Sentencing Act.
171And pursuant to s 6AAA I indicate that but for your plea of guilty I would have imposed a sentence of 15 years with a minimum of 10 years and 6 months.
172Can I just check something for a moment? So that's 9 years, 10 months, Mr Sonnet and 6 years and 2 months as a minimum non-parole. That’s meant to be around the 60 per cent mark - just a bit above. I have checked that a number of times. Could you just check that again for me, before we conclude?
173MR SONNET: Yes, I will, Your Honour.
174HIS HONOUR: Now, I take it there are no objections to the various disposal and forfeiture orders sought from anyone?
175MR KELLY: No objection Your Honour.
176MS TRICARICO: No, Your Honour.
177HIS HONOUR: All right, thank you. All right, Mr Kelly any clarification required for either of your two clients?
178MR KELLY: No, Your Honour.
179HIS HONOUR: Ms Tricarico any clarification needed?
180MS TRICARICO: No, Your Honour.
181HIS HONOUR: All right. And Mr Sonnet thank you for your assistance.
182MR SONNET: Just from the Crown's perspective Your Honour, just to ensure that the s89DI declaration you made in respect of all offenders. That's the first matter.
183HIS HONOUR: Yes. I have make that declaration in relation to all offenders. I said that at the commencement, that will be entered into the record.
184MR SONNET: Yes, I can see that. Your Honour, the second matter is the application for s464ZDF orders in respect of Vo and Dang.
185HIS HONOUR: All right. Are there any objections to those orders?
186MS TRICARICO: No, Your Honour.
187MR KELLY: No, Your Honour.
188HIS HONOUR: Having regard to the gravity of the offences in this case, I would make the orders sought for forensic samples. So, they were not on the database obviously, so what are you seeking, saliva sample Mr Sonnet?
189MR SONNET: Yes, Your Honour, yes.
190HIS HONOUR: All right. Look I should say to both, it's Mr Vo and Mr Dang was it?
191MR SONNET: Yes.
192HIS HONOUR: I should say to both of you, the prosecution have sought forensic sample orders. I imagine that will be organised within the prison and I intend to make those orders. Reasonable force can be used to take those samples in the event that you didn't cooperate, so I give you that. I will make those orders.
193MR SONNET: Thank you, Your Honour.
194HIS HONOUR: All right, thank you, I'll adjourn. I'll sign those orders for disposal and forfeiture.
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