Director of Public Prosecutions v Do
[2023] VCC 644
•20 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 21-01221
CR-21-01223
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| QUONG XUAN DO QUOC NGUYEN LAI |
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JUDGE: | Judge Chettle | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2022, 20 – 22 June 2022, 24 June 2022, 27 June 2022, 21 July 2022, 13 April 2023, 14 April 2023, 17 April 2023 | |
DATE OF SENTENCE: | 20 April 2023 | |
CASE MAY BE CITED AS: | DPP v Do & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 644 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW SENTENCE
Catchwords: Sentencing – trafficking in a drug of dependence large commercial quantity, trafficking in a drug of dependence commercial quantity, trafficking in a drug of dependence, possession of a drug of dependence, knowingly deal with proceeds of crime
Legislation Cited: s. 5, s.5B(2)(a), s5(2), Part 2A, s6AAA Sentencing Act
Cases Cited: Brown v The Queen [2020] VSCA 212, Gregory v The Queen VSCA [2017] 151
Sentence: DO – imprisonment, Total Effective Sentence 15 years, non-parole period 10 years. LAI – imprisonment, Total Effective Sentence 12 years and 6 months, non-parole period 9 years and 7 months. Forfeiture and disposal orders.
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Shaw Ms. J. Poole | Ms .O. Ventura, Office of Public Prosecutions |
| For the Accused Do | Mr Chernok | Mr. J. Valos, Ms A. Kouskoulis Valos Black & Associates |
| For the Accused Lai | Mr J. McMahon Mr M. Weinman | Mr. N. Marcevski, Marcevski Lawyers |
HIS HONOUR:
1 Quong Xuan Do, you have pleaded guilty to two charges of trafficking in not less than a large commercial quantity of a drug of dependence and you have pleaded guilty to three charges of trafficking in a drug of dependence.
2
Quoc Nguyen Lai, you have pleaded guilty to one charge of trafficking in not less than a large commercial quantity of a drug of dependence, one charge of trafficking in a commercial quantity of a drug of dependence, and one charge of trafficking in a drug of dependence. Finally, you have pleaded guilty to
one charge of knowingly dealing with the proceeds of crime.
3 You both entered pleas of guilty after a sentence indication hearing was conducted before me. Written and oral submissions were made on behalf of you before you accepted the indication given by the court. The facts of your offending are set out in the amended summary of prosecution opening and in the plea summary filed by the learned prosecutor. Both your counsel indicated that I could treat that document as an agreed statement of fact, and I incorporated into these reasons for sentence.
4 Between 26 May and 15 September 2020, police monitored numerous telephone calls and listening device conversations between you, Do and others that evidence you, Do, selling high quantities of heroin and methylamphetamine. The heroin was often sold in 350-gram size blocks.
5
On 15 September, police arrived at your home at 29 Little Street in Deer Park and they located two 350-gram blocks of heroin, a quantity in excess of
350 grams of methamphetamine, 6.5 grams of cocaine and 304 grams of cannabis. In total, you trafficked a total of 3.64 kilograms of heroin over the nearly four-month period. This is the basis of Charge 1.
6 A large commercial quantity of heroin is 750 grams, ergo that you trafficked over 4.45 times such a quantity. Taking the methylamphetamine located at your home into account, you trafficked 1.61 kilograms of methylamphetamine in the same period. That amount is over twice the size of a large commercial quantity. That is the basis of Charge 2.
7 Charge 5 relates to the 6.5 grams of cocaine located at your home which was in your possession for sale and hence trafficking. Charge 7 relates to 304 grams of cannabis you possessed for sale and Charge 9 relates to your possession of 0.9 grams of methamphetamine.
8 Police attended at your home Lai also on 15 September of 2020 and searched a Honda motor vehicle owned by your partner at your home 11 Botanical Drive, Caroline Springs. In a hidden compartment police located five 350-gram blocks of heroin, 642 grams of methylamphetamine, 278.9 grams of cocaine and $448,600 in cash. The five blocks totalling 1750 grams of heroin and other heroin found in your possession, total 2000.7 grams is the basis of Charge 1, trafficking in a large commercial quantity of heroin.
9 Charge 2 relates to your possession for sale of a commercial quantity of methylamphetamine. Charge 3, relates to your possession of cocaine for sale and Charge 4, knowingly dealing with the proceeds of crime, relates to the 448,600 in cash, located in your apartment.
10 You both admitted prior criminal records.
11 You, Do, have two significant prior matters. On 15 November of 2000, you were convicted of trafficking a drug of dependence and possession of money being proceeds of crime, and you were fined the sum of $2,000. On 9 December of 2015, you were before the Melbourne County Court on a charge of trafficking in a commercial quantity of drug of dependence and possession of drug of dependence and were sentenced to four years and three months with a non-parole period of two years and three months.
12 You, Lai, have one significant prior appearance. On 4 May of 2018 at the Melbourne Magistrates' Court, you were sentenced to a two-year Community Corrections Order, without conviction, for the cultivation of 78 cannabis plants.
13 The value of the drugs you both trafficked is substantial. Depending on how it was sold, you Do, trafficked in between $450,000 to $600,000 of heroin, and you Lai, between $350, 000 and $500,000 of heroin. These figures are necessarily rubbery, because it depends on whether they're sold in larger or smaller lots.
14 Do, turning to your personal circumstances and dealing with you first. You Do are now 42 years of age. As I heard this morning you were born in Vietnam. You came here at 13 years of age in 2004. You have always resided in the Western part of Melbourne being educated for Year 11 level at Maribyrnong Secondary College. Following leaving school, you did a course to enable you to become a registered real estate agent, employment that you followed for a short period of time.
15 You have otherwise been employed in various positions as a restaurant - in a restaurant for some three years and as a labourer, and as an itinerant farming labourer. You only speak basic English and you have been in a long-term relationship, or were in a long-term relationship, which is now it appears disintegrated. You have two children aged 10 and six.
16 You are an Australian citizen. You have a long-term history of heroin use and since 2020 you have been a daily methamphetamine user. You have since being bailed been involved in the drug rehabilitation centre, The Cottage, located in Shepparton. And you have it appears, taken steps to deal with your drug issues, and that is to your credit, and it reflects well on your rehabilitative prospects. I accept that you are remorseful for your offending although your prior history leaves me with some concern, clearly your prospects depend upon you remaining drug free.
17 You, Lai, are an Australian, of Vietnamese background. You were born in a refugee camp in Hong Kong and came to Australia as a child, an infant. Your parents settled in the Footscray area, and you are the eldest of four boys. You attended St Albans High School to Year 12 level and at that school you became involved in drug use and criminal activity. Following the completion of your VCE you commenced a course of property services at Kangan Batman TAFE, and you became a licensed real estate agent as well.
18 You worked for Barry Plant Real Estate for some six years and you concluded that employment in 2015. In 2017, you started your detailing business, which is a car detailing business as I understand it, and you have operated that now for some four years. You have become heavily involved in that business since being released from custody. You have also opened another business called Project Performance employing a number of people, specialising in performance cars.
19 You have been in a long-term stable relationship with your current partner, and you have a child born in June of last year. Your only child. You have had this matter hanging over your head for something like a bit over two years. The delay in having the matter processed is a fact apparently of COVID-19 and the fact that up until recently the matter was progressing to trial.
20 Apart from the prior conviction to which I have referred, there's a subsequent matter. On 21 February last year, you pleaded guilty to cultivation of cannabis and you again Community Corrections Order with unpaid community work. That order's set to expire in 2024, but which was overtaken by your involvement in these offences.
21 The offences of trafficking in a drug of dependence in not less than a large commercial quantity is the highest quantity category in the quantity based statutory hierarchy applicable to traffic in your offences. Put simply, it is the most serious type of trafficking offence under the law of this state. The Court of Appeal has pointed out regularly that when parliament fixed the new maximum penalty of life imprisonment for this offence, it was intended to send the clearest message to would be traffickers and to sentencing courts about how sternly, large-scale drug trafficking was to be punished.
22 By its very nature therefore, any offence of trafficking in not less than the large commercial quantity must be treated as a very serious offence. Parliament has reflected the view by fixing a higher maximum penalty and by making it a standard sentence offence, of which the standard sentence is 16 years, and I will return to that subsequently.
23 Appellate courts have often noted that the quantity of the drug in any given case, is important, but not the only relevant factor in the assessment of the gravity of the offence involved, so whilst the quantity involved must be given due weight in the sentencing calculus, it must not be allowed to swamp other sentencing considerations.
24 I must also have regard to the role you played in the commission of the offending. It is clear in this case that both of you intended to make substantial profits from your drug dealing activities.
25 You are charged Lai with knowingly dealing with proceeds of crime which is also a serious offence in its own right. The amount of cash that you held indicates something of the profits to be made from your illicit drug trafficking.
26 Section 5 of the Sentencing Act, makes clear that the period specified as the standard sentence is the sentence for an offence that taking into account only the objective factors affecting the relevant seriousness of that offence, is the middle of the range of seriousness. Section 5B(2)(a) obliges the court to take the standard sentence into account, as one of the factors relevant to sentence and by way of reinforcement s5(2) in its amended form, states that the standard sentence is a matter to which the sentencing court must have regard when imposing sentence.
27 However, as the Court of Appeal made clear in Brown[1], it is - the standard sentence is to be treated as a legislative guidepost, having the same function as the maximum penalty, it does not affect the intuitive synthesis approach to sentencing and does not require or permit two stage sentencing. It does not otherwise affect the matters which the court must take into account in sentencing.
[1]Brown v The Queen [2020] VSCA 212
28 Finally, I have obviously got to have regard to totality in relation to both of you. For reasons that will become apparent, subsequently there is a statutory presumption accumulation, but the Crown concede that there must be some concurrency in this case to avoid imposing a crushing sentence. However, I must by my sentence deter others from behaving as you did and expressly denunciation of the community for your offending.
29
In Gregory v The Queen[2], the Court of Appeal indicated that sentences well into double figures would be within range for the upper category of commercial quantity of trafficking. And a number of cases were referred to on your
[2]Gregory v The Queen VSCA [2017] 151
sentence - on your plea indication hearing, and I have had regard to, and read all the cases that were in fact referred to.
30 Both of you have issues in relation to being serious drug dealers. So, far as you are concerned Do, Charges 1 and 2 are drug offences for the purposes of the Sentencing Act, and you have previously convicted and been served - and served the terms of imprisonment for a drug offence, to which I referred previously. You are therefore a serious drug offender, and you are a serious drugs offender for the purposes of Part 2A of the Sentencing Act.
31 Charges 1 and 2 against you, are relevant offences for the purposes of that Act. In sentencing you for Charges 1 and 2, I must have regard to protection of the community as the principle sentencing purpose and in order to achieve that purpose, I may impose a disproportionate sentence. The prosecution have conceded that there is no need to impose a disproportionate sentence in this case, as I can adequately protect the community with the sentences otherwise available to the court.
32 As I said before, there is a presumption of cumulation, but the prosecution does not seek for your full cumulation in this case. I am directing that it be entered in the records of the court, that you Do, have been sentenced, on Charges 1 and 2 as a serious offender.
33 And so far as you are concerned Lai, Charges 1 and 2 are drug offences for the purposes of the Act. After you are convicted in relation to Charge 1, you will have been previously convicted and sentenced in relation to a drug offence, and as a result, you become a serious drug offender for the purposes of Charge 2. Similarly issues of disproportionality and protection of the community arise as they do for Do, but again similarly, the prosecution do not seek a disproportionate sentence in your case. Similarly, they do not seek full cumulation in relation to the offences to which you have pleaded guilty. Now, I also make a declaration I think that you have been sentenced as Do, as a serious drug offender in respect of Charge 2 on the indictment.
34 The submissions written and oral on your plea indication adopted by your counsel on this plea, I have had regard to the matters relied on in mitigation. I take into account for both of you your pleas of guilt. Although they were entered at a late stage, those pleas of guilty have significant utilitarian value. You have spared the state a lengthy criminal trial, some weeks would have been taken to run the trial. The value of those pleas, the utilitarian value is increased because of the effect that COVID-19 has had upon the justice system, and your pleas have facilitated that course of justice.
35 You are entitled to and shall receive a reduction in sentence to reflect the pleas of guilty as you have entered. I have taken into account the time you spent into custody was affected by COVID, issues of lockdown and quarantine occurred, and it is likely that your time in custody will be made more difficult for you by COVID in the future. It is still there, and it is still a problem.
36 I take into account the steps that you have taken Mr Do, to rehabilitate yourself. Your involvement with The Cottage as demonstrated by the exhibits tendered to deal with your substance use issues is clearly a mitigating factor. I accept that you had a substance abuse disorder that underlay your offending, and that the prospects of rehabilitation for you and for both of you actually are reasonable provided you remain drug free.
37 Would you please stand up, both of you.
38
On all charges, you are both convicted and in relation to you Mr Do, on
Charge 1, trafficking in a large commercial quantity of heroin, you are sentenced to be in prison for 13 years.
39 On Charge 2, trafficking in a large commercial quantity of methylamphetamine you are sentenced to be in prison for 10 years.
40
On Charge 5, trafficking cocaine you are sentenced to be in prison for
six months.
41
On Charge 7, trafficking cannabis you are sentenced to be in prison for
six months.
42 And on Charge 9, possession of MDMA, you are sentenced to be in prison for seven days.
43 I order that two years of the sentence imposed on Charge 2, be served cumulatively on the sentence imposed on Charge 1. That is an effective term of imprisonment of 15 years, and I order that you serve 10 years of that sentence before being eligible for parole.
44 I declare that a hundred and fifteen days of the sentence I have just imposed has already been served by way of pre-sentence detention.
45
And pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, I would have sentenced you to an effective term of imprisonment of
20 years with a non-parole period of 15.
46 Turning to you Mr Lai. On Charge 1, trafficking in a large commercial quantity of heroin, you are sentenced to prison for 11 years.
47 On Charge 2, trafficking in a commercial quantity of methylamphetamine you are sentenced to be imprisoned for four years.
48 On Charge 3, trafficking cocaine you are sentenced to be in prison for two years.
49 And on Charge 4, dealing with proceeds of crime, the cash, you are sentenced to be in prison for three years.
50 Having regard to the principles of totality and cumulation, I order that one year of the sentence imposed on Charge 2 and six months of the sentence imposed on Charge 4 be served cumulatively on Charge 1 which I declare to be the base sentence.
51 That is an effective term of imprisonment of 12 years and six months and I order that you serve seven years and nine months before being eligible for parole.
52 I declare that 60 days of the sentence just imposed has already been served by way of pre-sentence detention.
53 And I declare pursuant to s6AAA that but for your pleas of guilty the total effective sentence of 17 and a half years with a non-parole period of 12 and a half years, would have been imposed.
54 I make the forfeiture and disposal orders sought by the prosecution.
55 Is there anything else required Mr Shaw?
56 MR SHAW: No, nothing Your Honour thank you.
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