Director of Public Prosecutions v Dinh

[2016] VCC 670

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02024

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANH VANH DINH

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 May 2016
CASE MAY BE CITED AS:	DPP v Dinh
MEDIUM NEUTRAL CITATION:	[2016] VCC 670

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Schmitz
For the Accused	Mr D. Grace

Pages 1 - 12

 

 

HIS HONOUR: 

1Thanh Vanh Dinh, you pleaded guilty to one charge of trafficking in a drug of dependence, namely methylamphetamine, in a commercial quantity.  Furthermore, you pleaded guilty to trafficking in a drug of dependence, namely MDMA; also known as ecstasy.  These offences occurred on 23 January 2015.  There are two summary offences that you have also pleaded guilty to, namely, one charge of possessing cartridge ammunition contrary to the Firearms Act; and, one charge of possessing a prohibited weapon contrary to the Control of Weapons Act; namely, pepper spray.

2You admitted prior convictions.  You had previously appeared in this court, on
16 May 2014, and pleaded guilty to two charges of trafficking and one charge of possession of a drug of dependence.  You were sentenced by His Honour Judge Taft to a term of imprisonment for an aggregate period of three months, followed by a two-year community corrections order. It follows that the offences before this court were committed within a relatively short time of having commenced that community corrections order. I will come back to those circumstances in due course. 

3You also previously appeared in the Brisbane Supreme Court, charged in relation to committing a cannabis crop to be grown in premises you owned in Queensland, in 2007.  More recently you had a matter in the Melbourne Magistrates' Court, in 2014, where you were fined in relation to dealing with property suspected to be the proceeds of crime.

4The circumstances of your offending was set out in comprehensive detail in the prosecution opening upon plea which was read to the court and also tendered and marked as Exhibit A.  Those circumstances can be summarised as follows. 

5In April 2014, the Victoria Police commenced an investigation into drug trafficking activities on the part of one Loc Duy Tran and his associates.  The investigation involved various tools, including: telephone intercepts; covert police surveillance; and, the involvement of a police undercover operative who infiltrated Mr Tran's syndicate.  The investigation revealed that there were two arms to the drug trafficking activities, within the syndicate.  Namely, one arm involving trafficking in methylamphetamine, heroin and cocaine in the Melbourne metropolitan area; and, another arm involved in the hydroponic cultivation of cannabis.  The investigation revealed that you were involved in the first aspect of the drug trafficking activity, namely the trafficking of methylamphetamine. In particular, you became involved indirectly in the activities of one Jade Trinh, who was being supplied drugs by Minh Nguyen, who in turn, the evidence revealed, was obtaining methylamphetamine on at least one occasion from you. The evidence revealed that, on 23 January 2015, a transaction occurred between Trinh and Nguyen, whereby he had agreed to supply her with 500 g of methylamphetamine, for the sum of $126,000.  The evidence revealed that Minh communicated with you on the morning in question.  Surveillance evidence and evidence of texting reveals that there were texts exchanged between Minh Nguyen, who was supplying the drugs to Trinh, and you during the morning of 23 January 2015.  In particular, the chronology reveals as follows.  As arranged, Mr Nguyen attended at Ms Trinh's house at about 8.15 am that morning.  Within a short time, he left the house again, in his vehicle.  Within a minute of leaving Trinh's house, he sent a text to you asking whether you were awake.  He drove to his own house where he remained briefly, a matter of some seven minutes, before sending you a text message.  In an exchange of texts, you invited him to "come over to my place for coffee".  You replied, "Yes, bro." Two minutes later, he left his premises in his vehicle in the company of the other drug trafficker, Do.  Within a short time, Nguyen sent a message to Trinh saying, "I will be back in 15 minutes."  Trinh responded, "That person will be here in ten minutes.  Will you have time?"  Ms Trinh had been referring to the undercover operative, the purported buyer of the drugs. He responded "Yes."  She responded, "Okay, the sooner the better."  Rather than going immediately to her house, Nguyen went to your place.  On his way there, he texted you.  You sent Nguyen a message, "Text me when you arrive so I can open the garage."  Within a minute, he texted you in response, "Yes, come out and open the garage for me."  A minute later, he arrived and drove directly into your garage.  Eight minutes later, he left your garage and then drove to Trinh's premises in Diosma Drive, where she was waiting for him to urgently deliver the drugs; the drugs were to be delivered to the undercover operative.  Upon his arrival at her premises, he was arrested.  He was found to be in possession of 41.8 g of methylamphetamine, at 80 per cent purity, which was packed in a plastic snap-lock bag with dark green lining; other drugs were found at the premises, amounting to 451.8 g, at 90 per cent purity.

6The Crown case is that when you put those two amounts together, you arrive at a total quantity of approximately 500 g, which was the amount agreed to be sold to the undercover operative and the amount that Minh agreed to provide to Trinh. 

7The police searched your premises.  Amongst other things, the police found at your premises large quantities of methylamphetamine, some 872.6 g, of 80 to 90 per cent purity, in six plastic bags in the backyard.  Near to the location where the drugs were discovered was a set of drawers containing a quantity of empty resealable snap-lock bags with dark green lining; the bags were of the same appearance of the bag that contained the 41.8 g, found earlier that morning in Mr Nguyen's possession after he had left your premises. 

8The quantity found on Mr Nguyen's person, after he left your premises, namely, 41.8 g of methylamphetamine, with 80 per cent purity, I find, in all of those circumstances, that quantity came from you.  That is, in my view, it is the only reasonable inference to draw from all of the evidence.

9Accordingly, you will be sentenced on the basis that on 23 January 2015, you were involved in the trafficking of a total quantity of 914.4 g; namely, 872.6 g found in your possession for the purpose of sale; and, 41.8 g provided to
Mr Nguyen.  Also at your premises that morning, when the police executed the search warrant, was a much smaller quantity of MDMA, namely, 68.9 g, at a purity of 7 per cent.  Later that day on 23 January, you were interviewed by the police and you denied any knowledge of the drugs found in your possession, that is, at your premises and in the possession of Mr Nguyen upon his arrest. 

10You have remained in custody since 23 January 2015.  A very comprehensive plea mitigation was made on your behalf by Mr Grace of senior counsel, and explains your background.  You were born in Hai Phong in North Vietnam in 1972.  You are the youngest of eight siblings.  Your parents are now both aged in their 90s and still live in Vietnam.  All of your siblings now reside in Vietnam except for one who lives in the United States. You moved to Australia in 1997 on a study visa and completed a one-year English course in Sydney.  You were being supported by your family in that endeavour.  You became a permanent resident and subsequently a citizen. 

11After studying English in Sydney, you moved to Melbourne.  You worked in a chicken shop from 1998.  You met your wife in the year 2000.  She worked in the same shop in Brooklyn.  You were married in 2002.  You both worked long hours.  You rented a house in the Braybrook area.  In 2002, your first child was born, Michelle, and in 2004, your son, Henry, was born.  In 2003, you commenced work as a handyman for a friend who was involved in house repairs and renovations.  Your wife continue to work in the chicken shop.  As a result of your hard work and no doubt savings, in 2006, you were able to establish a Vietnamese restaurant in Footscray.  You operated that business until it failed in 2012.

12In 2004, you purchased a residential investment property in Queensland which you rented out.  You discovered that it was being used for the cultivation of cannabis.  You told the tenants to remove it, according to what your counsel told me, but nevertheless you were charged in relation to that, as I have mentioned earlier, and sentenced by the Supreme Court of Queensland to be imprisoned for 12 months, eight months of which was suspended for three years after you had served four months. 

13Having been released, you returned to Melbourne and you continued to work in the family restaurant with your wife.  At that time, you did not have a drug problem, although, you occasionally smoked cannabis but you were dependent upon alcohol.  That problem worsened over the ensuing years until your wife left you in 2007, taking with her your two children. However, you continued to work with her in the restaurant, but continued to drink heavily.  In 2009, you were introduced to the drug, ice, as Mr Grace put it, "that drug began to consume his life."  You began to mix with what Mr Grace described as "bad company".  As a result of which, in 2010, you were charged with drug trafficking, which led to the sentence that I described earlier and eventually imposed by His Honour Judge Taft in May 2014.  During your short period of imprisonment, in 2014, as a result of Judge Taft's sentence, you stopped using drugs. However, you relapsed soon after being released.  You worked part-time for a friend as a handyman but your drug problem became worse and worse. 

14By the time you had been arrested in relation to these matters and remanded in custody, your drug habit was described by an expert, Mr Quiggly, in his report which was tendered and marked, Mr Quiggly's report dated 14 May 2015, described your drug problems in the following terms briefly:  "Over time, he has experienced uncontrolled toxic intakes of substances, and despite the negative consequences, Mr Dinh is unable to stop.  It is quite clear that Mr Dinh meets the criteria for severe substance use disorder."  Later in his report, Mr Quiggly described your addiction to ice as, "severe addiction", which would require intensive long-term treatment. 

15Up until your remand in custody, in January 2015, you had been caring for your two children because your wife had been sentenced in late 2014 to 15 months' imprisonment for her involvement in the cultivation of cannabis.  Since your arrest on 23 January 2015, your two children had been cared for by an aunt.

16You have now spent more than 15 months in custody.  I am informed and accept for the purpose of sentencing you that you have now withdrawn from all substance abuse, which has involved considerable difficulty for you.  You are now drug free and it can only be hoped that you remain so for the rest of your life, given the shocking problems your drug addiction has caused to you and your children.  You see your children regularly.  Their aunt brings them to visit you on a regular basis.  

17To your credit, your time spent on remand to date has been usefully spent.  Acknowledging your problems with English, you have undertaken education, including a course to improve your English, as well as, other courses.  A bundle of certificates in relation to those courses was tendered and marked as Exhibit 1.  

18Circumstances of your remand have been made additionally burdensome and difficult by reason of the prison riots in June 2015.  The details of the deprivation you have suffered as an indirect result of those riots have been set out in the affidavit that was obtained by the Crown, from Brendan Francis Money, the Acting Deputy Director of Corrections Victoria.  That affidavit, sworn 26 April 2016, was tendered and marked Exhibit D.  I accept for the purposes of sentencing you that as a result of the riots, you have suffered various forms of hardship.  The circumstances of your imprisonment has been unusually restrictive and has involved amongst other things, a long period of time when you were subjected to 23-hour a day lock-down.  I take those circumstances into account in sentencing you. 

19Your counsel relied on the following matters by way of summary.  First, your early pleas of guilty.  You pleaded guilty at an early stage of these proceedings and you are accordingly entitled to a discount by it.  That discount reflects your acceptance of responsibility for your misconduct.  It also reflects your willingness to facilitate the course of justice and I take that into account.  I take into account that your prospects of rehabilitation must be regarded as being reasonable in light of the fact that you are now drug free and are positively engaging in education within the prison system.  I take into account, as I have mentioned, what your counsel described as the significant deprivations that you have suffered as a result of the prison riots occurring during the remand period. 

20In relation to the circumstances of the offending, I sentence you on the basis that you were severely addicted to the highly addictive drug, ice, at the time you offended and, whilst that does not in any way justify or mitigate your offending, it does put it in context and explain it. 

21I accept that you were motivated, not by greed, per se, but by a desperate need to feed your own severe habit in circumstances where you had fallen into company of people such as your co-accused and found yourself involved in the dark underworld of drug dealing. 

22Trafficking in a drug of dependence, in a commercial quantity, is a very serious offence.  It carries a maximum term of imprisonment of 25 years. That is one of the highest sentences of imprisonment for any offence in this state.  As you know from your own personal experience, drugs such as those which you trafficked cause immeasurable devastation to drug users and their families.  The courts have said time and time again that those who become involved in trafficking drugs, for whatever reason, at the commercial level must expect to receive significant severe sentences of imprisonment.  The most significant objective to be achieved by way of the sentence imposed upon you is that of general deterrence.  Others must learn that this sort of conduct will be met with severe sentences.  In your case, you must be deterred from ever being tempted again to fall into drug abuse and, in turn, into drug trafficking to support your own habit or for any other reason.

23You must be punished for being involved in such serious crime and the community must denounce your conduct through this sentence.  That is, the community must make it clear that drug trafficking of this kind is intolerable.  Of course, the sentence that I impose must not be such as to dash your hopes of rehabilitation.  It must not be crushing and it must be structured so as to permit you the opportunity of fulfilling the reasonable prospects you do have of being rehabilitated.

24On charge 3, the charge of trafficking in a drug of dependence in a commercial quantity, you are convicted and sentenced to be imprisoned for four years and six months. 

25On charge 4, the charge of trafficking in a drug of dependence, MDMA, you are convicted and sentenced to 18 months' imprisonment.  I order that six months of the sentence imposed on Charge 4 be served cumulatively upon the sentence on Charge 3. 

26In relation to the summary charges, on each charge, you are sentenced to be imprisoned for one month which will be served wholly concurrently with the sentences already imposed. 

27Accordingly, the total effective sentence is five years and I fix a minimum non-parole period of three years.

28I declare that you have already served four hundred and eighty-two days by way of pre-sentence detention, which will be reckoned as having already been served. 

29I state pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to six and a half years' imprisonment with a minimum of four years.  Are there any orders that I need to make?

30I make the disposal order in relation to the items set out in the schedule which were seized pursuant to the warrant on 23 January 2015.  Thanks. 

31All right.  Is that all that needs to be attended to?

32MS SCHMITZ:  Yes, Your Honour.

33HIS HONOUR:  Can I thank you for your assistance in this matter, Mr Grace and Ms Schmitz.  I adjourn the court till 10 o'clock tomorrow morning. 

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