Director of Public Prosecutions v Dinh

[2016] VCC 2067

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01107

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOAN DINH

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JUDGE:	HIS HONOUR JUDGE BOURKE M.P.
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2016
CASE MAY BE CITED AS:	DPP v Dinh
MEDIUM NEUTRAL CITATION:	[2016] VCC 2067

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

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Holding
For the Accused	Mr Hartnett

HIS HONOUR: 

1Remain seated for now.  I am going to state my reasons for sentencing you.  I think,  given you have waited this long,  I should tell what I am going to impose.  I am going to impose of sentence of seven and a half years, but with a minimum term of three and a half years.  Now I have told you that so that you do not have to wait any longer.  I would be grateful if you would listen courteously to my reasons for sentencing you.

2Doan Dinh you are to be sentenced for 1 charge of attempting to possess a border control drug in a commercial quantity.  That is an offence pursuant to s.11.1.1 of the Commonwealth Criminal Code.  The maximum sentence is life imprisonment. 

3You pleaded guilty before me on 6 October.  When interviewed by police on 29 October 2015 you made some admissions, but also falsely denied aspects of your involvement.  You stated that you did not know what was inside the package imported.  You pleaded guilty at the end of a short committal.  It is accepted that your plea was made early. 

4You receive the benefit of your plea of guilty and the level of cooperation that short history of the proceedings shows.  You have facilitated the interests  of justice.  The cost and difficulty of a trial has been avoided and you have accepted responsibility for your offending.  Your plea expresses remorse.

5At your plea hearing also on 6 October Mr Holding for the Crown tendered a written summary of  the prosecution opening, and also provided to me a chart of what might be termed comparative sentencing cases.  Mr Hartnett for you tendered your mother’s letter dated 10 August 2016, documents from Vietnam related to her poor health, and your Vietnamese High School Diploma.

6The circumstances of your offending are comprehensively described in the tendered Crown opening which is Exhibit A.  My own summary may therefore be shorter. 

7On 27 October 2015 the Department of Immigration discovered an anomaly in a consignment held at TNT Express, Melbourne Airport, Tullamarine.  The consignment was labelled as from the Czech Republic.  The consignee was stated as at an address in Braybrook.  Further investigation of the consignment revealed within an hydraulic cylinder 6341.2 grams of white crystalline material.  It contained methylamphetamine at a pure weight of 4990.1 grams.  The commercial quantity threshold is 750 grams.

8There began surveillance including of the Braybrook premises and of TNT Express.  You and a co-accused Hai Huong Ngo attempted to collect the consignment at TNT Express on 28 October.  On 29 October there was a control delivery to the Braybrook address.  You accepted the parcel at about 3.30 pm.

9In the following period there was surveillance of several vehicles at, or near the address.   At about 6.30 police raided the premises.  Ngo was arrested, seated in the vehicle parked opposite.  You and another unidentified male were seen to flee the house.  You were arrested about 45 minutes later in the backyard of a nearby premises.  The other man got away.  Inside the Braybrook house a radio frequency detector was located near the control delivery parcel.  The parcel appeared not to have been opened.   Subsequent investigation revealed you and Ngo as having leased the Braybrook property from mid March.  A nearby vehicle was also leased by you. 

10The Crown summary goes on to state that on 10 March 2016 police searched a storage unit in Geelong Road, Brooklyn.  They found glass ware and laboratory equipment consistent with methamphetamine manufacture and hydraulic cylinders similar to that or those in the drug consignment.  Some contained crystalline substance.   The unit was rented in Ngo’s name with you as “alterate contact person.”  The lease was signed on 1 September 2015.  I agree with Mr Hartnett’s submission that I should approach with care the evidence of your connection with the storage unit searched by police some 4 months after the offence.  You have been charged and will be sentenced (and as the indictment states) for your activity on 28 and 29 October 2015 related to the consignment found on 27 October to have carried the drug methylamphetamine.

11I find that your role was collection of that consignment  and holding it at the premises you had leased with Ngo for others involved in the enterprise.  I was told that your co-offender Ngo faces trial.

12You are now 20 years of age and have no criminal history.  You turned 20 a very short time before your offence.  You have been in remand custody since arrest about 12 months ago.  You came to Australia from Vietnam in early 2014 on a 5 year Student Visa to study English.  That Visa has been cancelled and it is likely, probably certain that you will be deported upon release from prison.  This is not a case in which that is of significant relevance, or mitigation.  You should receive an appropriate head sentence, and a minimum term.

13You are an only child.  Your mother is by herself, your father having left her.  She suffers epilepsy and long term mental illness.  Mr Hartnett stated that you look toward release,  return to Vietnam, and to helping care for her. 

14You come from a rural part of that country.  You came to Australia it seems not long after graduation from high school.  You had some hope of remaining here as stated because of this offending that will not be.    Your study here fell away particularly after your parents separated.  Under Visa conditions you were only able to work up to 20 hours a week.  You were also sending money to your ill mother.  This was the context for your involvement in this offending.  You were recruited when attending video game stores; and I was told were promised $2,000 for your role.   Mr Hartnett stated that you knew the consignment contained drugs, but did not know the quantity. 

15Remand custody has been more difficult for you than for others;  that will in important ways continue after sentence.  You have experienced 22 hour lockdown conditions arising out of MRC – that is Melbourne Remand Centre riots – in late June to early July this year.  There has been isolation in terms of language and culture.

16I stop to say, were the riots at the MRC this year, or last year?

17MR HOLDING:  Last year I think.

18HIS HONOUR:  Yes, well I will go back.  You have experienced 22 hour lockdown conditions arising out of Melbourne Remand Centre riots in late June to early July 2015.  There has been isolation.  I am just stopping again.  But he was arrested in 2015.  It must be this year, must it not?

19MR HOLDING:  It must be this year.

20HIS HONOUR:  I am sorry, I just need to restate, but that must be ‑ ‑ ‑

21MR HARTNETT:  I think it was in June ‑ ‑ ‑

22HIS HONOUR:  June/July of 2016.

23MR HARTNETT:  Yes I understand.

24HIS HONOUR:  (Indistinct) Mr Hartnett, are they?

25MR HARTNETT:  Yes.  I cannot seem to find it.

26MR HOLDING:  It may not matter, because lockdown has continued on, has it not?

27MR HOLDING:  Yes, my instructor’s recollection was that the difficulty was from the time he was arrested, and that may have been because of the riots that occurred.

28HIS HONOUR:  Yes, yes.  Well I have heard so much about lockdown conditions; but it seems to have been a part of plea material for years but ‑ ‑ ‑

29MR HOLDING:  It took a long time to sort it out.

30HIS HONOUR:  Yes, yes.  I am often told that the lockdown condition continued on.  So I will say that again.  You have experienced 22 hour lockdown conditions arising out of MRC riots in late June to early July ‑ ‑ ‑

31MR HARTNETT:  I think I said 7 months ‑ ‑ ‑

32HIS HONOUR:  Yes that is all right.  I am going to say 2015.  There has been enough discussion I think.

33MR HARTNETT:  Yes Your Honour, yes.

34HIS HONOUR:  There has been isolation in terms of language and culture.  You feel keenly the prospect of long separation from your mother about whom you worry  because of her health. 

35Self evidently this was  very serious offending,  reflected in the high maximum sentence.   I would find your role was not senior in the entrepreneurial, hierarchy,  exemplified by your exposure to risk  and,  I would also find,  your age.  However, it was necessary and therefore important.  You and Ngo were trusted agents.   The quantity of drug was approximately six to 7 times  the commercial quantity threshold. 

36Such circumstances make important sentencing purposes and considerations of deterrence, particularly general deterrence, moral culpability, condemnation of your crime and the need for proportionate of punishment.  The introduction of such drugs into Australia, and therefore trading them here,  is seen to be a serious community problem.

37There must be a substantial period of imprisonment beyond,  as Mr Hartnett conceded,  what could be imposed by youth justice detention.  Both at time of offending,  when you pleaded before me  and at the time of  plea hearing  you were eligible for that.

38There are significant moderating factors in your case.  They include the following matters.

391.     Your early plea of guilty and cooperation. 

402.    You are young.  That is relevant to the circumstance of your involvement, and to what should be seen as genuine prospects for rehabilitation.  At your age that rehabilitation should where possible be assisted and encouraged.

413.     Related to that is your lack of criminal history.  Mr Hartnett stated that you also have no prior convictions in Vietnam. 

424.     Your personal circumstances.   That particularly includes your situation in an Australian prison.  In that regard it is relevant that you did not come to Australia for the purpose of the offending.  Your mother’s hardship,  seen objectively in the circumstances of her single situation and health  but also stated in her letter to the court,  is not so exceptional to enable in such direct sense, a reduction in sentence.  However, I accept that your imprisonment will be harder in your realisation of her hardship and concern about when you will see her again.

43These matters should reduce your sentence compared to what the objectively viewed circumstances of offending, and those adverse sentencing in considerations identified,  would require.  I am  persuaded in your case to have particular regular to them in setting your minimum term.

44I have attempted to have regard to current sentencing practice.  Mr Holding, with my encouragement, provided charts of so called comparable cases.  There are brief summaries of circumstances.  These cases have a wide range.  There are sentences of four and a half, five and 6 years and sentences of 12 and 14 years.  I have also had regard to recent Victorian Court of Appeal judgment in R v Thomas and R v Wu and the aim of consistency in federal sentencing.  The R v Thomas and Wu has annexed brief summaries of a number of drug importation cases.  Again there seems a relatively wide range.

45I recognise the high importance of general deterrence.  However, I also see in your case a particular significance to your youth.  It made you in, your situation and immaturity,  vulnerable to recruitment.  Your imprisonment will be harder for it.  In my view is it legitimate to feel sympathy for your situation.  I see justification for a sentence applying some mercy.

46I have found this a difficult sentence, there are important competing factors.  Doing the best I can to consider and weigh those,  I sentence you as follows.

47Stand up please, Mr Dinh.  On 1 charge of attempting to possess a commercial quantity of a border control drug you are sentenced to imprisonment of seven and a half years.  I set a minimum term of three and a half years before eligibility for parole.  I need to declare pre-sentence detention, but I have omitted to update that for myself, can someone help me.

48He has been in custody since – is it 29 October?

49MR HOLDING:  Yes, I think we put the PSD in the opening Your Honour, but I do not have a copy of that particular opening ‑ ‑ ‑

50HIS HONOUR:  Well it will not be hard to work out, because what is today’s date?

51MR HOLDING:  It is an extra 20 days to what that is in the opening.

52HIS HONOUR:  Well it is almost exactly a year.  What is today’s date?

53MR HOLDING:  It is the 26th.

54HIS HONOUR:  It is not a leap – no, it is a leap year, is it not, when the Olympic Games were on?  I am sorry, Mr Dinh.  I make it to be therefore 363 days.

55MR HOLDING:  Just pardon me for one moment, Your Honour. 

56HIS HONOUR:  Whilst that is happening – perhaps your instructor could work it out.  It is simply done.  He was arrested on 29 October.

57MR HOLDING:  Yes.

58HIS HONOUR:  So it is 366 less 3 days.

59MR HOLDING:  Yes Your Honour.

60HIS HONOUR:  So I am declaring 363 days.  If I am wrong about that there is provision now to correct it, but it will not be very far out.

61MR HARTNETT:  I think it is right, Your Honour.

62HIS HONOUR:  All right.  Now what are the other matters I need to deal with?  While you are considering that I will state the s.6AAA indication which applies to Federal sentencing.

63Had you not pleaded guilty I would have imposed a sentence of 10 and a half years with a minimum term of seven and a half years. 

64MR HOLDING:  There is no other orders required, Your Honour.

65HIS HONOUR:  There is no forensic sample?

66MR HOLDING:  No.

67HIS HONOUR:  All right.  Now Mr Dinh could be taken into custody now.

68(Prisoner removed.)

69HIS HONOUR:  Thank you Mr Holding for your assistance and you too, Mr Hartnett.

70MR HARTNETT:  Thank you, Your Honour.

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