Director of Public Prosecutions v Dinh

[2013] VCC 2188

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.  CR-13-01414

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAI HUU DINH

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JUDGE:	His Honour Judge Wischusen
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2013
DATE OF SENTENCE:	1 November 2013
CASE MAY BE CITED AS:	DPP v Dinh
MEDIUM NEUTRAL CITATION:	[2013] VCC 2188

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms M. Brown	Director of Public Prosecutions
For the Accused	Mr R Van de Wiel

HIS HONOUR:

1       Hai Hui Dinh, you have pleaded guilty to one charge of trafficking in a commercial quantity of a controlled drug, methamphetamine, and to one charge of dealing with money that was, and that you believed to be, the proceeds of crime worth more than $100,000.

2       The maximum penalty for trafficking in a commercial quantity of a controlled drug is life imprisonment.  The maximum penalty for dealing in proceeds of crime worth more than $100,000 believing the money is proceeds of crime is 20 years imprisonment.

3       The circumstances in which these offences occurred are set out in the Agreed Summary of Facts[1], the accuracy of which you accepted through your counsel.

[1] Exhibit 1

4       Shortly stated, a search warrant was executed on 7 March 2013 at an apartment in the Docklands area of Melbourne.  When the warrant was executed you were the sole occupant of the apartment.   You ordinarily reside at Hillston Park in New South Wales.

5       Your fingerprints were located throughout the apartment and upon a Sunbeam vacuum sealer found on the floor of your bedroom.

6       A search of your person revealed two ANZ Bank deposit slips recording the deposit of two sums of money; $7,000 and $6,000.  A search of the premises found the following to be present in the apartment:

·     $575,850 in a suitcase and a further $645 in cash in one of the bedrooms;

·     a carry bag with 12 bags containing a white crystal substance;

·     a collection of financial documents and invoices;

·     a plastic container containing a white crystal substance;

·     four mobile phones and four SIM cards;

·     a man’s wallet containing $305 cash and various identification cards in your name including a New South Wales driver’s licence in your name;

·     a New South Wales driver’s licence in the name of Vu Dinh Lee which bore a photograph of you.

7       On the day of the search you were arrested by the Federal Police and made a “no comment” record of interview.

8       Analysis of the white crystal substances found revealed a gross weight of 6.76 kilograms containing methamphetamine at purities ranging from 77.7 to 79.9 per cent and they were analysed to contain a pure weight of methamphetamine of 5,353.4 grams (a commercial quantity is 750 grams). 

9       The financial documents revealed deposit slips from various banks made between 25 February and 7 March.  The amounts deposited totalled over $100,000 and the deposits were made in Sydney on 25 and 26 February and in Melbourne between 4 and 7 March of this year.  The recipients of some of the deposits were identified.

10      A money transfer to a Vietnamese account in the name of Vu Dinh Lee, which is the name on the false New South Wales driver’s licence, showed that $4,000 was remitted on 22 February this year.

11      You were born on 11 December 1989 and are now aged 23 years.  You have no prior convictions.  You pleaded guilty on presentment of the hand-up brief on 29 July 2013 and you have been in custody since your arrest.

12      Hai Huu Dinh, I have taken into account the following matters in mitigation of sentence.

13      Your plea of guilty.  By your plea, you have saved the community the time and costs of a trial and you are entitled to have this matter taken into account in mitigation of sentence, and I do so.  I take your plea also to be some evidence of your remorse.

14      I have taken into account the fact that you have no prior convictions of any sort. 

15      I have taken into account your personal circumstances and background.  They are set out in some detail of the report of Pamela Matthews, clinical and forensic psychologist.[2]

[2] Exhibit 2

16      At the age of 23 years you are still relatively youthful.  You were born in North Vietnam.  You grew up with two siblings.  Your parents separated for a period when you were nine and reunited when you were about 15.  During the separation you did not see your father.  This period of separation caused feelings of depression and was traumatic for you.

17      Your father was a heavy drinker and a strict parent who used regular physical discipline.  In Vietnam you attended school between the ages of six and 17, and at the age of 17 you were sent to Australia in 2007 to continue your schooling and you enrolled in Year 11 here.

18      You did not persist with your studies and after leaving school found work in a chicken factory.  You married in 2008 and soon after you were laid off work.  Arguments with your wife about debts arising from living expenses and gambling on the pokies led to the failure of the marriage in 2011.

19      Attempts to get out of debt by further gambling failed and the debt increased.  You became depressed after the separation and moved to Melbourne where attendances at the casino led to even greater debt through loans.

20      In Melbourne you began using methamphetamine, occasionally at first and later up to half a gram a month.

21      On the history you gave to Ms Matthews, you returned to Sydney and your Melbourne lenders contacted you with a proposition that you rent the apartment where this offending took place, and they provided you with a false licence to effect this arrangement.

22      I have taken into account the extent of your involvement in the trafficking, although, as observed in the cases to which I was referred, this is difficult to ascertain with any certainty.

23      It was put on the plea, and conceded by the prosecution, that you are not to be sentenced as a principal in this trafficking operation and that you were not in control of the amount of money and drugs involved; although it seems clear that whatever your role was, it was such that you were entrusted with possession of a very large sum of money and a very large quantity of drugs, and that you made at least two of the deposits and, at least to the extent of $4,000 transmitted to Vietnam and a living allowance, you had profited from your involvement in the enterprise. You also told Ms Matthews that you thought your offending was settling your gambling debt and funding your own methamphetamine use.

24      I have taken into account the fact that you are isolated in Australia with no local friends or relations and that you will be isolated in prison.  Not speaking English will not help in that regard.  Your time in custody will be more burdensome for you.

25      I was informed you are now an Australian citizen and so do not face the prospect of deportation upon your eventual release.  I have taken into account the report of Pamela Matthews,[3] clinical and forensic psychologist.

[3] Exhibit 2

26      Ms Matthews was present in court but counsel for the Crown did not seek to cross-examine her upon her conclusions.  In her report, Ms Matthews concluded that in the period in 2009 to 2013 you suffered from a stress related adjustment disorder with behavioural symptoms that included depression, gambling and methamphetamine use and that your mental state had a significant impact on your behaviour in turn leading to your involvement in crime.  She felt you were coping in custody but were isolated there and that your depression persisted and warranted treatment.

27      As to your mental state, in the course of plea, counsel conceded that reliance on Verdin’s[4] principles not play a great part in the sentencing exercise, beyond the proposition that the depression from which you presently suffer would make prison more burdensome for you.

[4]R v Verdins (2007) 16 VR 269

28      I have also taken into account the evidence that your girlfriend in Vietnam is suffering from depression and your concerns about her will weigh heavily upon you during your incarceration.

29      In the course of submissions, counsel referred me to and I have regard to Majeed,[5]   Nguyen[6] and to Nguyen.[7]

[5]Majeed v R [2003] VSCA 40

[6]Nguyen v R [2001] VCCA 32

[7]R v Nguyen [22010] NSWCCA 238

30      The differences between the offending considered in those cases and some of the examples given, and the circumstances of these offences were pointed out in the course of submissions. 

31      It was conceded properly that by reference to section 17A that no other sentence than imprisonment was appropriate here.  Both counsel made submissions as to the range of sentences that was appropriate and I have had regard to current sentencing practices to the extent that they can be ascertained from tables in the Sentencing Manual and set out in the cases I was referred to.

32      As to the cases to which I was referred, and many of the cases cited in them make plain, for offending such as this general deterrence must be given great significance in the sentencing exercise.

33      Balanced against the matters put in mitigation must be the fact that this is very serious offending as the maximum prescribed penalties show.  Trafficking in methamphetamine does great damage to our community, particularly to its young.  The quantity of methamphetamine found was seven times a commercial quantity.

34      The amount of money involved was more than five times the threshold for an offence under section 400.4(1), and it was not for a moment suggested that you were not aware that this was a criminal enterprise or that you did not profit from your involvement in it; although counsel maintained, and I accept, that I should find that you are at the lower end of the hierarchy.

35      Mr Dinh, would you please stand.

36      Hai Hui Dinh, I have taken into account all relevant sentencing principles in arriving at the sentence I am about to impose upon you.

37      On Charge 1, trafficking in a commercial quantity of methamphetamine, you are convicted and sentenced to a term of imprisonment of seven years.

38      On Charge 2, dealing with the proceeds of crime in a sum in excess of $100,000, you are sentenced to a term of imprisonment of five years.

39      I direct that the sentence imposed upon Charge 2 commence today and that the sentence imposed upon Charge 1 commence on 1 November 2014, making a total effective sentence of eight years imprisonment.

40      The non-parole period is the minimum term that justice requires you to serve having regard to all the circumstances that exist and for this reason it is not fixed automatically and all relevant factors and sentencing principles have been taken into account.

41      I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.

42      In accordance with section 19AB(1)(d), I fix a single non-parole period of five years and six months.

43      I declare that you have spent 239 days in pre-sentence detention in respect of these offences and direct that that fact be noted in the records of the court.

Are there any other matters?

MR DOYLE:  No, Your Honour.

HIS HONOUR:  Would you remove the prisoner?

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