Director of Public Prosecutions v Do

[2015] VCC 1957

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION Revised
Not Restricted
Suitable for Publication

CR-15-00861

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUANG XUAN DO

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JUDGE:	JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2015
DATE OF SENTENCE:	9 December 2015
CASE MAY BE CITED AS:	DPP v Do
MEDIUM NEUTRAL CITATION:	[2015] VCC 1957

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence - trafficking cocaine in a quantity that was not less than the commercial quantity applicable to that drug of dependence -

Legislation Cited:     Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991.

Cases Cited:Mustica v The Queen [2011] VSCA 79; Dawid v Director of Public Prosecutions [2013] VSCA 64; Kumova v The Queen [2012] VSCA 212; The Queen v Tabone [2006] VSCA 238; Tezer v The Queen [2007] VSCA 123; Boulton v R [2014] VSCA 342

Sentence:Total effective sentence of 4 years’ and 3 months imprisonment with a minimum non-parole period of 2 years and 3 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Bruce Nibbs	Solicitor for the Office of Public Prosecutions
For the Accused	Barnaby Johnston	Balmer and Associates

HIS HONOUR:

1Quang Xuan Do you have been charged with two offences on indictment.

2On 13 November 2014 you trafficked in cocaine in a quantity that was not less than the commercial quantity applicable to that drug of dependence contrary to s71AA of the Drugs, Poisons and Controlled Substances Act 1981. This offence carries a maximum term of imprisonment of 25 years.

3On 13 November 2014 you had in your possession a drug of dependence, namely, heroin contrary to s73 of the Act. This offence carries a maximum term of imprisonment of five years.

4The prosecution opening summarises the circumstances of your offending. You have agreed that it is a fair summary.

5I propose to set out some of the facts of your offending so that my sentencing remarks can be properly understood.

6A joint organised crime task force was established to investigate the importation and distribution of cocaine into Australia. A target of that investigation was Matthew James Murphy. As a result of the investigation into Murphy’s activities there were others, including yourself, who were also investigated.

7Murphy developed a relationship with drug traffickers in Colombia. Murphy used his mobile telephone to contact a Colombian. The telecommunication intercepts demonstrate that Murphy was the principal of a cocaine trafficking operation.

8A system was developed by Murphy and a man named Uribe Velez to organise the introduction of persons to Murphy no doubt to do as much as was possible to conceal his drug trafficking operation. Part of that system involved code words being used to identify quantities of cocaine, for example, one and a half motorbikes meant 1.5 kilograms of cocaine. Additionally, other names were used to identify persons who were part of the chain of delivery from Murphy, as the principal, and you as the wholesaler or middleman, and Cong Phuong Van who was the street dealer.

9On 13 November 2014, and at 11:04pm, you made a call using a mobile phone to Murphy, which is referred to in paragraph 16 of the prosecution opening. It is clear from the content of the conversation you had with Murphy that a transaction had been set up for the purpose of Murphy supplying cocaine to you. It was arranged that the transaction would take place on 14 November 2004 at 10.00am at Murphy’s house.

10On 13 November 2014, there were four SMS messages that were intercepted between yourself and Van arranging for him to be supplied with a quantity of cocaine by you, which you were to obtain from Murphy. What is also clear from the messages, is that Van intended to engage in street dealing once he had the cocaine in his possession.

11Following the message exchange between you and Van, you engaged in a similar SMS message exchange with Murphy in which you informed him of the quantity of cocaine which you wanted.

12On 14 November 2014 and at approximately 9:54am you were observed:

·Arriving at Murphy’s house in a white Lexus IS250 car. You met Murphy at the front gate of his house and then walked out of sight;

·You emerged from his house at 10:02am. You went to your Lexus and retrieved a small package containing a white plastic bag. You handed it over the front fence to Murphy;

·At approximately 10:05am, you crossed the street outside Murphy’s house and waved to Van. He was standing some distance to the south of Murphy’s house;

·You then drove away in your Lexus, and Van drove away in a BMW 120i.

·At approximately 10:09am you and Van were intercepted by police. You were immediately arrested.

13A search of your Lexus resulted in police locating a brown satchel bag containing a wallet containing $1,050 in cash; a plastic bag containing 399.3 grams of cocaine of 72.7% purity, which yielded a total net weight of 290.2 grams of pure cocaine; a small bag containing 2.6 grams of heroin of 72.2% purity, yielding a total net weight of 1.88 grams pure heroin, and two mobile phones. One of the mobile phone numbers matched a phone used to contact Murphy and Van.

14A search of Van’s BMW resulted in police locating $10,000 in cash, and two mobile phones. One of the mobile phone numbers matched a phone used by him to contact you.

15Murphy was arrested by police. A search of his house resulted in police locating $60,000 in cash; 18.5 grams of cocaine of 69.5% purity; 24 grams of cannabis, and a mobile phone. The mobile phone number matched a phone used by Murphy in the contact he had with you.

16Velez was arrested by police. A search of his house resulted in police locating $87,200 in cash; 22.6 grams of cannabis, and three mobile phones.

17There was no issue that Murphy was the principal, or a principal, in a cocaine trafficking operation. There was no issue that you were a wholesaler or middleman, and there was no issue that Van was the street dealer. There was also no issue regarding the nature of the operation involving Murphy and yourself, nor what the police found when you and the others were arrested.

18I accept that you were the wholesaler or middleman. What you did in the context of the whole drug trafficking operation is to be distinguished from Murphy’s involvement as the principal in the operation. For example, that distinction was made tolerably clear in Mustica v The Queen [2011] VSCA 79 and also in Dawid v Director of Public Prosecutions [2013] VSCA 64.

19In the course of the plea hearing I interpreted your counsel’s description of your involvement in the operation as being something of a conduit between Murphy and a street dealer like Van, but on reflection what is clear, is that there was an established trafficking hierarchy of which you were a necessary part.

20In Kumova v The Queen [2012] VSCA 212 drug trafficking was described as offending of the most obnoxious and antisocial kind, loathsome, and when consistent with a commercial quantity, intolerable.

21The view taken of drug trafficking has been the subject of numerous observations by the Court of Appeal regarding the place of immediate imprisonment as a just sentence. In The Queen v Tabone [2006] VSCA 238 the Court of Appeal observed that in cases of commercial cultivation and trafficking, an immediate imprisonment will be imposed unless exceptional circumstances can be shown. Dawid involved trafficking a large commercial quality of a drug of dependence. The Court of Appeal observed that in cases of that kind a lengthy term of imprisonment is appropriate.

22I must make it plain at this point that the trafficking of a large commercial quantity carries a maximum term of life imprisonment, so the observations made by the Court of Appeal in cases like that need to be put into their proper context; however, I think the essence of the considerations which led the Court of Appeal to make those observations have some application to drug trafficking at the next tier down where you find yourself.

23You were born in Vietnam on 12 September 1981. Your parents divorced in 1983. You fled Vietnam with your mother in 1987 by boat, and arrived in Hong Kong after a month at sea. You were resident in Hong Kong for five years. You then moved to the Philippines where you were resident for about 10 months.

24One of your aunt’s arrived in Australia as a refugee. It would appear that her presence in Australia assisted you in arriving here as a refugee with your mother when you were 13 years of age. You became an Australian citizen in 2005 when you were 25 years of age.

25Between the ages of 7 and 13 years you resided in refugee camps. You received very little education. On arrival in Australia you undertook an English course, and subsequently you enrolled at the Maribyrnong Secondary College in year 7. You were bullied to some extent at school because of your difficulty with the English language. You showed an aptitude for maths, and continued with your schooling until year 11, when your mother asked you to leave school to assist her in working in a family restaurant.

26Your counsel submitted that you have a very good working history. You have never been on Centrelink payments of any kind. You have worked in a number of Asian restaurants as a waiter and as a kitchen hand. You also worked as a builder’s labourer and in a nail boutique.

27You are married. You have one child who is three years of age. Your wife, Ly, is pregnant. She is expecting your second child sometime in June 2016.

28Your counsel submitted that you have been a heroin user since you were 23 years of age. You were using between one and three times per day up until you were remanded in custody on 13 November 2014. That broke the cycle of your heroin use. You were released on bail on 20 March 2015.

29You were referred to Ms Denise Abadee, alcohol and drug assessor, by your solicitor. She provided a report dated 25 November 2015, which is Exhibit 2. She conducted an alcohol and drug assessment on you while you were in custody. She referred you to Dr Michael Aufgang, general practitioner, who has undertaken urine and drug screening of you from 27 March 2015 to 10 November 2015. The actual assessments were tendered on the plea. They demonstrate that you have abstained from the use of any illicit drugs during that period.

30There is no direct evidence to support your counsel’s submission that you were a functioning heroin user from the age of 23 years, however, you were found with 2.6 grams of heroin when the police searched your Lexus. I accept Murphy was a trafficker of cocaine, and not heroin, and that would appear to be so because when his house was searched, the only drugs which were found were cocaine and cannabis. You may have been in possession of that amount of heroin for your own use.

31Despite your use of heroin, you were able to function to the extent that you worked in a restaurant which you and your wife owned. It was sold about two months before you were arrested by the police.

32Since your release on bail, you have worked as a baker at the Hung Phat Bakery in Wyndham Vale. Your counsel submitted that you work from 11.00pm to 6.00pm 6 to 7 days per week. You earn about $700 net per week. The owner of the bakery, Mr Nguyen, provided a reference dated 8 November 2015. He describes you as a diligent and dependable worker over the eight months you have been employed by him.

33You, your wife and your three-year-old daughter live in rental accommodation at present. They were in court to support you were as were many members of your family.

34Ms Aberdee gave evidence and provided a report dated 25 November 2015. She spoke about you in glowing terms. You have seen her weekly without fail for one hour counselling sessions. You have engaged with her “wonderfully” and have evidenced a significant commitment to undergoing counselling. You have personally paid $75 per session to have the urine screening undertaken. The thrust of Ms Aberdee’s evidence is that you are no longer a heroin user, and have essentially reformed from your involvement in drug use.

35Ms Aberdee referred you to Ms Raponi-Saunders, psychologist, who initially saw you on 11 April 2015, and has seen you on two further occasions in May and once in June. The reason why her sessions with you ceased is because she relocated her practice. Much of her report is devoted to historical details of your background, which I have already set out above. She considered that you were making genuine statements of remorse, and that you had goals to remain abstinent from substance abuse, which she considered was no longer likely to be a problem for you.

36Your counsel submitted that I should sentence you to time served and release you on a Community Correction Order with a number of conditions. The prosecutor submitted that your involvement as the wholesaler or middleman puts you at the higher level of criminal culpability and as the facilitator of the trafficking. He submitted that you should be sentenced to an immediate term of imprisonment with an appropriate parole period.

37Your counsel referred me Tezer v The Queen [2007] VSCA 123 and a relevant sentencing snapshot. Whilst Tezer represents an example of the intuitive synthesis in sentencing someone who was not the principal in a drug trafficking operation, it does not give me much assistance in fixing a just sentence relevant to you and you’re offending. Similarly, the sentencing snapshot is instructive to a point, but it suffers from significant limitations.

38Lastly, your counsel submitted that what financial reward you were to receive for being the wholesaler or middleman was to be used by you to fund your heroin habit. He submitted that the cost of the habit you had developed would have been high. That distinguishes you from someone who has engaged in drug trafficking based upon greed and the desire to derive significant profits from such an operation.

39Your Counsel referred me to Boulton v R [2014] VSCA 342, and in particular, the observations of the Court of Appeal that the availability of a Community Correction Order as a viable sentencing option in the light of s5(4C) of the Sentencing Act 1991, which places an obligation on a sentencing judge not to impose a sentence that involves imprisonment, unless the purpose or purposes for which the sentence is imposed cannot be achieved by a Community Correction Order.

40However, the foregoing cannot mean that section 5 has a significantly reduced application and that other sentencing principles are less relevant, particularly where the offending is serious. It cannot mean that the instinctive synthesis involved in the process of arriving at a just sentence is no longer part of the reasoning in determining a just sentence.

41I have paid due regard to the observations made by the Court of Appeal regarding the gravity of the offence of drug trafficking. Those statements demonstrate to me that the purpose for which a sentence is imposed cannot, therefore, be achieved by a Community Correction Order. I think that purpose can only be achieved by the imposition of an immediate sentence of imprisonment.

42The quantity of pure cocaine is without question significant. It was 290.2 grams of pure cocaine. It brings you into the second tier of drug trafficking for which a very significant sentence of imprisonment is available of 25 years. That of itself demonstrates how serious your offending is to be taken to be.

43You were a part of a drug trafficking operation. Your part was important to the distribution from Murphy to the street trafficker, and that is made very obvious by the actual steps you took on 13 November 2014 to set up the acquisition of the cocaine, and what occurred on 14 November 2014 when it was actually acquired from Murphy for the purpose of being supplied to Van.

44You are to be sentenced by your role being distinguished from that of a principal, and also because you were apparently engaged in that conduct for the purpose of supporting your own drug habit.

45I have paid due regard to all of the aspect of the plea made on your behalf by your counsel, and to the evidence of Ms Aberdee and the other evidence which was tendered by your counsel.

46I have no doubt that you will find imprisonment onerous; however, that is an unavoidable consequence that will occur when anyone is imprisoned. I have no doubt that you will find it all the more onerous because you will be separated from your wife, your daughter, and in particular, your wife at a time as she nears the birth of your second child. Again, that is an unavoidable consequence that will occur when anyone is imprisoned who has domestic circumstances like yours.

47Whilst I take all of the matters put to me on your plea into account, it is important that it be recognised that your personal circumstances must not mask the gravity of your offending, and I repeat it is of serious kind.

48The sentencing considerations which must be taken into account are specific deterrence, general deterrence, denunciation and protection of the community.

49You must be specifically deterred from engaging in this conduct. It has not passed my attention that you have a prior conviction for drug trafficking. You were dealt with in the Magistrates’ Court on 15 November 2000 for that offence. You were convicted and fined $2,000, and at the same time you were convicted of a second count of possessing money being the proceeds of crime and you were fined $2,000 for that offence.

50A fine of that order in the year 2000 was undoubtedly a significant fine. It demonstrates that you were involved in a level of drug trafficking of significance probably a shade below warranting imprisonment. Although, it occurred in 2000 it nonetheless shows that you are no stranger to possession of illicit drugs, and in particular, the trafficking of illicit drugs.

51The sentence must contain a stern statement of general deterrence. I simply repeat statements of the Court of Appeal regarding drug trafficking of the level in which you engaged which I referred to earlier. The sentence I impose on you must send a message to like-minded individuals that engaging in drug trafficking at this level will attract a significant immediate sentence of imprisonment.

52Your conduct is to be denounced. The community is plagued by the influx of drugs. It is a scourge which is destructive to individuals in our community. People like you who engage in it must have their conduct denounced in the sternest terms.

53Lastly, the community needs to be protected from people like yourself. Drugs trafficked in our community are not only a scourge, but their presence results in untold damage to users and imposes an unacceptably huge cost to the community.

54You have made efforts to rid yourself of the use of drugs. The efforts you have made are commendable. It demonstrates that you have good prospects of rehabilitation, and are less likely to engage in this sort of conduct again.

55The sentence I now impose on you is proportionate to the gravity of the offences of drug trafficking and possession in the light of the objective circumstances of their occurrence.

56PLEASE STAND - on the count of drug trafficking you are sentenced to 4 years and 3 months imprisonment with a minimum term of 2 years and 3 months before you will become eligible for parole.

57On the count of possession of a drug of dependence you are sentenced to a term of imprisonment of one month, which will be made wholly concurrent with the other sentence.

58The time you have served in presentence detention of 128 days is to be reckoned as part of the service of the sentence of imprisonment. That will be noted in the records of the court.

59If you had not pleaded guilty to the charges before the Court I would have sentenced you to 6 years imprisonment with a minimum term of 4 years before you would become eligible for parole.

60I will now make what other orders are sought.

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