Director of Public Prosecutions v Dong

[2016] VCC 937

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01973
CR-15-01791
CR-15-01981

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUANG DONG
JADE TRINH
NGUYEN DUC

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 June 2016
CASE MAY BE CITED AS:	DPP v Dong
MEDIUM NEUTRAL CITATION:	[2016] VCC 937

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	Mr Y. Hardjadibrata
For Accused Dong	Mr C. Hooper
For Accused Trinh	Ms L. Torres
For Accused Duc	Mr C. Chiodo

Pages 1 - 30

 

 

HIS HONOUR: 

1Jade Trinh, you pleaded guilty to two charges of trafficking in a drug of dependence in a commercial quantity, namely methylamphetamine and heroin respectively; and, one charge of trafficking in a drug of dependence, namely cocaine.  That offending occurred between September 2014 and 23 January 2015.

2Mr Nguyen, you pleaded guilty to one charge of trafficking in a drug of dependence in a commercial quantity, namely methylamphetamine; and, one charge of trafficking in cocaine.  Similarly, your offending occurred between 12 September 2014 and 23 January 2015; that is, over a period of more than four months.  As I understand the evidence against you, those charges cover five or six separate transactions over that period.

3Finally, Mr Dong, you pleaded guilty to two charges of trafficking in a drug of dependence.  Each of those charges related to the drug heroin. The offending was committed on two separate occasions over a one month period, on 20 October and 20 November 2014.  It is to be noted that your offending not only involved fewer separate instances of offending, as well as, occurring over a shorter period of time. It should also be noted that you pleaded guilty to two charges of trafficking simpliciter, and accordingly, the maximum sentence applicable in relation to each of those two charges is significantly less than that applicable to the charge of commercial quantity, to which your co-offenders have pleaded guilty.

4Jade Trinh, you have admitted your prior convictions and appearances before the Magistrates' Court, between the year 2000 and 2009.  In the year 2000, you were convicted and fined in relation to the possession of heroin.  I was informed by your counsel that offending involved you being asked to take a small quantity of heroin to gaol, when visiting your boyfriend, at the time. Later in 2009, you were convicted of one charge of trafficking heroin and sentenced to three months' imprisonment which was wholly suspended.

5At the time you, Ms Trinh, were married to Huong, who I will refer to later.  That was a difficult marriage which involved irrational violent behaviour on his part; you were not a victim of that violence directly.  In circumstances of personal difficulty, you succumbed to an offer to sell a small amount of heroin in order to make some money, which you believed you needed at the time. 

6Neither Mr Nguyen nor Mr Dong have any prior criminal history.  Both Mr Nguyen and Mr Dong came here to this country relatively recently as students on short term visas. Both, Mr Nguyen and Mr Dong, outstayed those visas and became involved eventually in this criminal enterprise.  I will describe that in more detail in a moment.  Mr Nguyen and Mr Dong, it has been conceded by the prosecution that you were effectively engaged as couriers to transport quantities of drugs from one party to another; and, in your case, Mr Dong, to collect money and return it to the first party. 

7The circumstances of each of your offending are set out in comprehensive detail in the prosecution opening upon plea, which was tendered and marked as Exhibit A.  It is a comprehensive document.  It refers to extensive investigative material including extracts from telephone intercepts.  The investigation in this matter, in relation to which the principle target was one Loc Dui Tran, involved not only telephone intercepts and covert police surveillance but the deep involvement of a police operating undercover. The undercover officer infiltrated Mr Tran's syndicate and purported to engage in these drug transactions with you, Ms Trinh.

8The circumstances of your offending, Ms Trinh, has been conveniently summarised in a synopsis prepared by the learned prosecutor, which has been tendered and marked as Exhibit B in each case.  The prosecution has alleged that you, Ms Trinh, trafficked to the undercover police officer significant quantities of three different types of drugs; this involved eight transactions over a four-month period between 12 September 2014 and 23 January 2015.  During that period, Ms Trinh, you trafficked in:

i.Methylamphetamine, involving a total quantity over some four or five transactions of 1.0288 kilograms; also;

ii.heroin involving two transactions totalling 515 grams; and,

iii.a much smaller but not insignificant quantity of cocaine, totalling 28.1 grams involving two transactions although the first of those involved the provision of a sample only.

9It was alleged by the prosecution and I find, having reviewed the material carefully, that you were effectively engaged by the principals of this syndicate, Mr Tran in particular, to act as a salesperson.  It is clear from the material that you performed that task at times with some gusto, if I can put it that way.  You did not only deliver drugs or discuss terms of sales but actively sought to promote the product.  You truly were a salesperson. The drugs that you agreed to sell to the undercover operative were delivered to you by several couriers, including your co-accused, Mr Nguyen, in relation to the amphetamines and cocaine; and, Mr Dong, in relation to the heroin.  It is not clear on the evidence who was the source of the drugs on each of those occasions when you, Nguyen, and you, Dong, were couriering the products; although, it is clear that Mr Tran and Mr Mu Lay Lai provided the heroin.

10A summary of the individual transactions is as follows.  On 12 September 2014, Ms Trinh sold the undercover officer 27.9 grams of methylamphetamine at 80 per cent purity, for the sum of $8,000.  These drugs had been delivered to you, Ms Trinh, by Mr Nguyen at your house in Diosma Avenue, Sunshine West.  On 18 September 2014, at the premises of your partner's employment, Ms Trinh, you provided the undercover officer with a sample of 1.1 grams of cocaine, at 60 per cent purity.  That cocaine had been delivered to you, Ms Trinh, by Mr Nguyen. On 24 September 2014, Ms Trinh met with the undercover officer at the accused’s premises in Diosma Avenue and sold him 248.3 grams of methylamphetamine at 90 per cent purity, together with 27 grams of cocaine, at 60 per cent purity, for a total sum of $73,000.  Mr Nguyen, you had delivered those drugs to Ms Trinh for that transaction.  That transaction, in itself, Ms Trinh, demonstrates that you were involved in drug trafficking at a very serious level; that is, you were selling large quantities of drugs at a very high level of purity for large sums of money on behalf of Mr Tran and others.

11On 7 October 2014, Ms Trinh, sold the undercover operative another large quantity of methylamphetamines, totalling 252.2 grams, at a purity of 80 per cent, for the sum of $63,000.  Mr Nguyen had delivered this large quantity of methylamphetamine to Ms Trinh.  On 20 October 2014, the first of the two heroin transactions occurred when you, Ms Trinh, sold the undercover officer 166.6 grams of heroin at 60 percent, for the sum of $63,000.  This heroin had been delivered to Ms Trinh by the co-accused, Mr Dong. After the money had been provided to Ms Trinh by the undercover officer, Mr Dong took it and delivered it to Mr Tran in Braybrook.  A month later on 20 November 2014, the second heroin transactions occurred when Ms Trinh sold a much larger quantity 348.9 grams of heroin at 70 per cent purity to the undercover officer for $131,000.  On this occasion, Mr Dong had collected the heroin from Mr Lai and, in turn, delivered it to Trinh, and then delivered $95,000 of the heroin money back to Lai.  It is unclear where the balance of the funds went.  They may well have gone to Tran.  The final transaction took place on 23 January 2013.  The day before that, on the 22nd, Ms Trinh had offered to sell the undercover operative 500 grams of methylamphetamine for $126,000; your brother-in-law having provided the undercover officer with a small sample.

12On 23 January, Mr Nguyen attended at Ms Trinh's house after having visited a co-offender, Thanh Van Dinh.  When you arrived there, you were arrested outside the property and found to be in possession of 41.8 grams of methylamphetamine at 80 per cent purity.  Furthermore, it is noted that an additional 458.1 grams of methylamphetamine, at 90 percent, was found in the garden bed, at Ms Trinh’s house. This is relevant to the summary of Ms Trinh, not Mr Nguyen.

13Further material was filed by the Crown in your case, Ms Trinh, which included an affidavit of Roderick John Wise, the Acting Commissioner of Corrections Victoria.  The purpose of this affidavit was to provide evidence to the Court of the circumstances under which you had been held and served your time whilst on remand.  The most significant event that had occurred whilst you were on remand was that you had given birth to your child Kyle whilst in custody.  This affidavit confirms that you were received at the Dame Phyllis Frost Centre on 28 January 2015 and you have been there since then; although, it is noted by Mr Wise that Tarrengower, a small minimum security prison farm, should be available to you nearer the end of your sentence provided you have demonstrated good behaviour and are assessed as being at low risk.  Near the conclusion of the affidavit, it is stated that you have been compliant and polite at all times.  There is no suggestion in this material that you do present a risk. The material confirms that Kyle was born after you had been taken to the Sunshine Hospital, whilst still in custody, on 1 June 2015.  You informed the Mother and Child support worker that you had previously suffered post-natal depression with the birth of your previous children, particularly after the birth of your second child.  It was an initial assessment that reported there were no obvious signs of post-natal depression on this occasion.  However, you were subsequently seen by a psychiatric nurse and a consultant psychiatrist and commenced on antidepressant medication in June 2015.

14In relation to the circumstances under which you are managing your infant child in custody, Mr Wise sets out in his affidavit material the following information:

i.Fortunately, there are four prisoners who act as internal prison carers for Kyle in order to provide you with respite and assistance when you need it;

ii.there are a number of external carers that is external family who support you from within the community; finally,

iii.you have been receiving visitors. You have received regular visits from your three other children, of whom are currently under the care of your mother.

It is noted that it you and your family continue to have a strong bond. The bond between you and your other children continues to be strong, also. When your son, Kyle, is older, your mother will be permitted to take him to kindergarten three times per week.  You have a support worker within the prison system.  The support worker offered to facilitate contact with the Perinatal Anxiety and Depression Australia service which is a telephone counselling service.  I accept that you have not found that to be particularly helpful and have not persisted with that.  You have the support of a multicultural liaison officer. 

15Since you have been in custody, to your credit, according to Mr Wise, you have undertaken voluntary psycho-education work in relation to domestic abuse and violence issues for women.  You completed that program between March and May 2015.  You have attended sessions with Good Shepherd Financial Counselling to assist you to learn to manage your funds upon your release from gaol.  You have undertaken a large number of courses and certificates were tendered to demonstrate that.  You have enrolled in further courses such as a certificate in information technology and a first aid course, and as I have mentioned you have been regularly visited.  It has been noted that since January 2016, out of the 34 possible occasions on which you could have received visits, you received 30 visits. This material was tendered by the Crown but it supports your case significantly in my view.  It demonstrates that there are ongoing difficulties that you suffer with your mental health and in the managing of your child despite all of the support you are receiving, which is good.  It demonstrates that you are of good behaviour and doing your best.  It demonstrates that you are strongly supported by family and community supports who are regularly visiting you.  It demonstrates that you are committed to the care of your children.  All of these elements suggest that you have good prospects of rehabilitation and I give significant weight to those matters.

16A characteristically carefully prepared plea was delivered on your behalf by Ms Torres of counsel.  Ms Torres conceded at the outset that you had agreed to take part in these transactions out of a misguided sense of some sort of responsibility for debts that were owed to Mr Tran by your aunt and a friend, and also to some extent to receive some money yourself.  She conceded, consistent with your admission in the record of interview, that from time to time you received money which you used to support your children's needs, such as school fees; you had stated to the police, "Otherwise I got nothing". According to the instructions you have provided Ms Torres, you may have received $500 on four or five occasions, totalling something in the vicinity of about $2,000.  That of course does not excuse your conduct in any way.  You subsequently told the psychologist for Forensicare that you were swept up into this activity by reason of the friendship you had developed with Mr Tran by whom you were employed.  At the time your life was in a mess and you needed money and you felt responsible for these debts.

17Ms Torres pointed out from the outset that you had admitted your involvement in the drug trafficking during your record of interview, that is, you had been full and frank with the police.  I take that into account. Ms Torres emphasised that you had offered to plead guilty to these charges at a very early stage in the proceedings, at the committal mention.  I give you the full benefit of that early plea.  It demonstrates your remorse, your acceptance of responsibility and your willingness to facilitate the course of justice. You are 40 years old.  You are a single parent.  You have four children aged between 1 year, Kyle, who is with you in gaol, and 17 years.  Your oldest three children live with your mother.  The relationship with Kyle's father broke down as a result of your incarceration.  You have now been in custody since 23 January 2015.  Ms Torres initially submitted that you had limited access to healthcare and limited access to psychological or psychiatric support.  As I understand it, in light of more recent developments and in light of the matters set out in the Forensicare report, she now concedes that you are receiving appropriate mental health attention.

18During the initial hearing, a psychological report by Carla Lechner dated 24 February 2016 was tendered as Exhibit 1.  That report set out your personal history.  I will say more about that in a moment.  Ms Lechner was of the opinion that you suffered chronic depression and, at the time she saw you, you were suffering severe or extreme depression. Ms Lechner said that this was partly reactive to your current situation, that is being in gaol; and, your child having at that stage just been born; and, what you perceived then to be the lack of support available to you in custody. 

19A more recent assessment has been performed by the Forensicare psychiatrist, Dr Kirsten Clayer, under the supervision of Dr Kevin Ong.  The report from Forensicare is extremely comprehensive and helpful.  It conveniently sets out a brief summary of your personal circumstances and background.  The report set out the following:

i.you are 40 years of age;

ii.you were born in Haiphong in Vietnam;

iii.your father lives in Vietnam. Your father suffered a stroke some years ago and you have little to do with him;

iv.you came here with your mother when you were still an infant child.

It is not clear to me whether your stepfather Fook Hwang came with you or whether they married here; however, it is not a substantial issue. I accept, consistent with what you have told both the psychologist and the psychiatrist, that there was a great deal of domestic violence within your home when you were a small child and as you grew up.  So much so that when you were in Grade 6, your older sister left home as a result of her inability to put up with that violence.  You had a younger brother.  You stayed to protect him.

20You told the psychiatrist that on one occasion your mother attempted to commit suicide as a result of the domestic violence she had suffered at the hands of your stepfather.  After being initially placed in the Maribyrnong Detention Centre upon your arrival here, with your mother and siblings, you subsequently attended the North Melbourne Primary School from prep all the way through to Grade 6, and then the Footscray Girls' High School and the Braybrook High School. As a result of the difficulties at home, as well as, your mother's inability to cope with them, you were made a ward of the state at the age of 12 or 13.  You remained in the care of your mother and, to your credit, you completed Year 12.  I gather that you were a reasonably bright student because you had hoped to qualify for admission to a law degree course. However, it was your perception that the family could not have afforded that anyway. You went into employment as a law clerk, later as a dental nurse and as a beauty technician. It was whilst you were working as a beauty technician in the beauty spa operated by Mr Tran that you became involved in the activity, the subject of the offence. 

21Like your mother, you have had at least one difficult relationship.  For ten years you were in a relationship with Huong Dinh.  You have described that relationship as being ‘emotionally draining’.  He was an alcoholic with an uncontrollable temper who frequently smashed and damaged property, although he did not physically hurt you.  You started drinking in order to cope with the stress that you were suffering during the course of that relationship. You have had a tendency to resort to alcohol when suffering stress in the past.  You have also suffered migraines intermittently over the years.

22You commenced a relationship with Mr Ding in 2014.  That was initially a very happy relationship, although you have explained to the psychiatrist you were still dealing with issues concerning your past and your previous relationship.  It was while you were in that relationship with Mr Dinh that you fell pregnant and became involved in the offending.  As I have mentioned, since you have been incarcerated, your relationship with Mr Dinh, Kyle's father, has come to an end.

23You have a history of post-natal depression.  Prior to your incarceration, you had been prescribed antidepressant medication by a general practitioner; however, you had never previously received any psychological or psychiatric treatment.  Up until the time of your offending, you were drinking wine regularly up to a bottle a day, although, you have no history of illicit drug use.  Fortunately, you neither have any history of problem gambling.

24You told the Forensicare psychiatrist that you had met Mr Tran about a year before the offending occurred at your sister's restaurant.  You understood he was involved in real estate property investment.  You thought that he was a nice man, he appeared to be wealthy.  He lent sums of money to your aunt and to your friend.  These people never repaid the debt.  He owned a beauty spa; he offered you employment there.  You accepted that offer and began doing that work.

25You noted people coming and going and you developed the belief that they were dealing in drugs.  In a way that you have not been able to fully explain, you got wound up in that yourself in the way that I have described.  You told the psychologist that you regretted your actions.  You have told your lawyer and the psychiatrist that you regretted what had occurred; you had told them that you have learnt a lesson and that no such thing could occur again.  I accept that having suffered now this first period of imprisonment involving additional hardship as well as, being separated from your family, you have a very strong, powerful motive to stay away from any future crime.

26Dr Clayer, Forensicare Psychiatrist, has diagnosed you, Ms Trinh, as suffering a major depressive disorder of moderate severity.  Dr Clayer notes that currently you have been prescribed antidepressant medication and you are now receiving weekly contact by the psychiatric clinician within the prison system.  Importantly, expresses the opinion that imprisonment is having a significant adverse effect on her mental health and treatment of depression. In her report, Ms Clayer notes that you have had a very difficult life:

"…with an early childhood spent in a refugee camp followed by domestic violence perpetrated by her mother's partner, periods of neglect by her mother and stepfather and a lack of stability in housing and schooling.  Ms Trinh's intimate relationships have also been deficient with emotional abuse. In the context of this early developmental trauma, she has displayed some borderline personality traits, including impulsivity, self-harming by cutting, intense anger and effective instability.”

Despite these matters, the psychiatrist expresses the opinion that she does not believe that you are suffering a borderline personality disorder that requires any treatment, nor does she believe that at the time of the offending your conduct was affected by major depressive disorder.

27In submissions made earlier this week, Ms Torres clarified some matters that had arisen during the initial plea. It is conceded by defence counsel that, at the time of the offending, it was not submitted that you were affected by your mental health, in a way that could mitigate your behaviour or moral culpability.  She said that whilst you were still suffering persistent depression as has been diagnosed by Forensicare, you were seeing a psychiatrist from time to time, a psychiatric nurse. Ms Torres emphasised that the main causes of your ongoing distress and anxiety are managing your child in custody, and your concern and anxiety about your three other children, of whom are currently in your mothers care.  I accept that you are worried about those children and how your mother was coping with them.  In particular, you are especially concerned about your 17-year-old daughter, who has become rebellious in your mother's care and difficult and has dropped out of school and has ceased visiting you.  That would be a cause of deep concern for any mother.

28You are also concerned about both your five-year-old and seven-year-old who are experiencing eating difficulties and problems at school.  Your youngest child, the five-year-old, becomes very distressed and emotional when he visits you.  I accept that these matters are an additional cause of hardship for you in the sense described in the case of Markovic at paragraph [20][1], that is the anxiety you suffer knowing that your mother is attempting to deal with your three children in your absence is an additional burden for you and an additional punishment.

[1][2010] VSCA 105; 30 VR 589; 200 A Crim R 510, at [20]; see also, R v Williams [2004] VSC 429, [16].

29But on the other hand, it also suggests that you have good prospects of rehabilitation and that the need for specific deterrence is reduced because as I have already said, that factor reduces the risk of your reoffending.

30I was informed that the house, of which you owned jointly with your previous partner in Sunshine, and your motor vehicle have both been forfeited to the State.  It was agreed between the prosecution and your counsel that you have lost at least $64,000 as a result of that forfeiture.  That is a 25 per cent share in the equity, and that your vehicle which has been forfeited was worth at least $15,000.  That is a sum in excess of $80,000 that has effectively been an additional penalty imposed upon you by virtue of the confiscation of your assets.

31In summary, I take into account the following matters: 

i.you made admissions to the police and were cooperative with them from the outset;

ii.you offered to plead guilty to these charges at the earliest practical stage of the proceedings;

iii.I take into account what the psychiatrist described as your difficult and problematic background and personal circumstances leading up to the offending and at the time of the offending;

iv.I take into account that this is your first time in custody.  You have been in custody now since January 2015, more than 18 months; the burden of imprisonment during that period has and will continue to be difficult, by reason of the facts that you have a child with you who was born in custody; and,

v.that you are suffering depression and anxiety for which you are being treated and medicated; and,

vi.that you separated from your older children and extremely anxious about how they are coping in your absence in the care of your mother;

vii.I take into account that your share in the equity of your home and your car have been forfeited to the state; finally,

viii.I sentence you on the basis that in my view you have good prospects of rehabilitation and that by reason of the matters I have already described, the need for specific deterrence in this case is reduced.

32However, as I have said in these cases previously, trafficking in large quantities of illicit drugs of this kind is extremely serious criminal conduct.  Trafficking in a commercial quantity of these drugs carries a maximum sentence of imprisonment of 25 years.  That reflects the serious gravity of the offending; by reason of that, Parliament has made it clear that it expects serious sentences to be imposed and the Court of Appeal has emphasised time and time again that people who become involved in trafficking in drugs of this kind, at a serious level as you did, must expect to be punished by way of a serious sentence of imprisonment.  That cannot be avoided.  A severe sentence of imprisonment is necessary primarily in order to deter others from becoming involved in trading drugs, dealing in death and destruction which is what it often results in.  The sentence I impose is still a sentence that you will find difficult.  That is unavoidable.

33On Charge 1, the sentence of trafficking in a commercial quantity of methylamphetamine, you are sentenced to be imprisoned for five years.

34On Charge 2, the charge of trafficking cocaine, you are sentenced to be imprisoned for six months.

35On Charge 3, the charge of trafficking in a commercial quantity of heroin, you are sentenced to be imprisoned to two years and six months.

36I order that one year of the sentence on Charge 3 be served cumulatively. 

37That results in a total effective sentence of six years and three months, and I fix a minimum non-parole period of four years.

38It is noted on the Court record that, in relation to Charge 3, you are sentenced as a serious drug offender.

39You can sit down now.

40I declare that you have already served 524 days by way of pre-sentence detention.

41I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to eight years imprisonment with a minimum of five and a half years.

Duc Nguyen

42Mr Nguyen, you have pleaded guilty to one charge of trafficking in a drug of dependence, in a commercial quantity, namely methylamphetamine; in addition, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely cocaine.  You also pleaded guilty to the related summary offence of possession of a prohibited weapon, namely a samurai sword, upon your arrest on 23 January 2015.  That sword was found somewhere at your premises by police.  You have no prior criminal history.

43The Crown have provided a summary of your offending, as follows. You delivered methylamphetamine to Jade Trinh on four separate occasions.  The total amount was 570.2 grams. You delivered cocaine on two occasions. The total amount was 28.1 grams.  As I have mentioned, on the first of those occasions what you delivered was a sample of just over 1 gram. Your offending occurred over a lengthy period of time of about four and a half months between 12 September 2014 and 23 January 2015. On 12 September 2014, you delivered 27.9 grams of methylamphetamine to Ms Trinh at her home in Sunshine West.  On 17 September 2014, you delivered the sample of 1.1 gram of cocaine to Ms Trinh. On 24 September 2014, you delivered 248 grams of methylamphetamine at 90 per cent purity and 27 grams of cocaine at 60 per cent purity to Ms Trinh.  You later met her following that sale.  On 7 October 2014, you delivered 252 grams of methylamphetamine at 80 per cent purity to Ms Trinh.  She met you later and handed you an envelope containing the money that had been given by the undercover officer.  I infer that you in turn delivered that money to the person who provided the methylamphetamine to you for delivery. Finally, on 23 January 2015 you delivered or were in the course of delivering 41.8 grams of methylamphetamine at 80 per cent purity to Ms Trinh at her address when you were apprehended by the police at about 9 am and found in possession of those drugs. 

44A plea in mitigation was made on your behalf, Mr Nguyen.  At the outset of that plea, I was told that the circumstances of your incarceration, since you were admitted to the Metropolitan Remand Centre, involved additional hardship by virtue of the fact that you had spent significant periods in lockdown as a result of the prison riots that occurred there at the end of June 2015. There is no suggestion that you were involved in any way in those riots.  You, like many other innocent detainees, were caused to be moved to Barwon Prison and subjected to great restriction beyond the normal remand prisoner as a result of additional security that was imposed following that riot. An email was tendered by the Crown, Exhibit E, by Tom McMara dated 27 June 2016.  It confirms that for a significant period of time you were subjected to 23-hour lockdown at least up until 18 August 2015, when you eventually moved to the mainstream unit.  From then, you have been subjected to restricted liberty in that you were only permitted to leave your cell between the hours of 8 am and 4 pm.  One day per week you were permitted extended out of cell hours from 8 am until 8 pm.  The email also confirms that you have undertaken an English language course since you have been in custody and you have received numerous visits. 

45In support of your plea, a letter from you was tendered.  In that letter, you expressed your remorse and you described the "very violent and horrible circumstances" under which you have been detained, whilst awaiting sentence.  Exhibit B was a letter from your mother in Vietnam.  She confirms that, from her knowledge at the time of your offending, you were living under quite difficult family circumstances and struggling financially to survive.  She confirms that whilst you were here in Australia, she learned that you had come to Australia as a result of divorce and that you have a six-year-old son whose mother has now remarried and who is now in the care of your parents and that you wished to return to Vietnam to take care of your son.

46A bundle of certificates was tendered, Exhibit C, which confirms the large number of courses that you have undertaken since you have been in custody.  Those matters reflect well in terms of your prospects of rehabilitation.

47You are 32 years of age.  You were born in Hai Phong, in Vietnam.  Your father was engaged in the construction industry and has now retired and your mother had home duties.  You are the youngest of six children.  All of your siblings and your parents remain in Vietnam.  They are all gainfully employed and have children of their own.  You successfully completed your secondary education in Vietnam and then went into employment in your father's business working in construction.  You yourself were involved amongst other things in concreting and labouring.  You did that until you came to Australia on a visitor's visa in May 2012.  Prior to coming to Australia, you had married in 2010 and within two years had become divorced.  You have a young child who is now aged seven.  You came to Australia in order to clear your mind and make a fresh start, after the dissolution of your marriage.  When you came to Australia you only had one contact in Melbourne and you went to live with them in St Albans.  You obtained employment as a handyman. 

48After some time, you learned that your former partner in Vietnam had remarried and that your son was now in the care of your parents in accordance with Vietnamese custom. You remarried in Australia, in June 2014.  Your wife was a sales assistant.  However, since being remanded in custody in January 2015, your relationship with your wife has ceased and she is no longer visiting you.  You have had no further contact with her at all.  It is inevitable that when you conclude the service of your sentence, you will be deported.  The Crown have conceded that deportation is inevitable.

49Your counsel asked me to take into account this is your period in custody.  You have no prior convictions.  He asked me to take into account that during a period of at least six weeks, you were subjected to 23-hour lockdown which had a significant effect upon you.  I accept that.  I accept that it has not only had a deterrent effect upon you but has caused additional hardship to you whilst in gaol. 

50I accept that your prospects of rehabilitation, which must be regarded as good given your background and family support in Vietnam, are enhanced by the fact that you have undertaken numerous courses whilst in custody and engaged yourself by working in industry in the prison factory.

51Your counsel explained the circumstances by which you became involved in the offending.  You had overstayed your visa.  You were not able to get proper work.  You were not permitted to be employed in Australia; however, you obtained some part time piecemeal work via other members of the Vietnamese community, of whom paid small sums, cash-in-hand.  You met Jade Trinh socially and eventually you were approached and offered money to act as a courier.  You performed that role on approximately six occasions.

52The Crown concedes that you should be sentenced as a courier.  There is no suggestion on the evidence that you were the source of the drugs or directly involved in the planning of these transactions.  Accordingly, it has been conceded by the Crown that your moral culpability is significantly less than that of Ms Trinh. Nevertheless, as I have already commented, this is very serious criminal conduct.  People like you even, involved at the relatively low level at which you were involved, must know that this conduct is so serious that the community demands the imposition of serious sentences of imprisonment.

53I take into account the following matters in mitigation: 

i.your early plea of guilty.  As I understand it, you offered to plead guilty to these charges at an early stage in the proceedings thus accepting responsibility for your misconduct, demonstrating your remorse and your willingness to facilitate the course of justice.  Your letter plainly describes the depth of your remorse and I accept it as genuine; 

ii.you have no prior convictions; 

iii.you have a good background. 

iv.you have strong family support in Vietnam; 

v.you have a young son in Vietnam;

vi.you have a strong incentive, once you get home, to stay out of trouble.  I accept that you will be deported when you have served the sentence; finally, 

vii.as I have said, I accept that you have done, and will continue to do, your prison time hard if I can put it that way.

54You have applied yourself positively whilst in custody, undertaking courses and engaging in employment.  Having weighed all of these matters in the balance, I have decided that I cannot accede to your counsel's suggestion that I impose a straight sentence.  The law is clear.  I must impose an appropriate sentence unaffected by any future administrative decisions that may be taken by other responsible authorities, unaffected by any determination the Parole Board may make; and, unaffected by any determination that the Department of Immigration may make.  They are matters of administration. I must impose an appropriate sentence notwithstanding the fact that it is likely if not inevitable that you will be deported.  What course the Parole Board may choose to take in light of that fact is a matter for the Parole Board.

55On the charge of trafficking in a commercial quantity of methylamphetamine, you are convicted and sentenced to be imprisoned for two years and three months.

56On the charge of trafficking in cocaine, you are convicted and sentenced to six months.

57I order that three months of the sentence on the second charge be served cumulatively. 

58Furthermore, in relation to the summary charge, you are convicted and sentenced to 1 month imprisonment, to be wholly concurrent.

59The total effective sentence is two years and six months. I fix a minimum non-parole period of 20 months.

60I declare 524 days pre-sentence detention reckoned as served and will be administratively deducted..

61I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to be imprisoned for three and a half years with a minimum of two years and four months.

Quang Duc Dong

62Quang Duc Dong, you pleaded guilty to two charges of trafficking in a drug of dependence, namely heroin, on 20 October and 20 November 2014 respectively.

63As I have already made clear, the case against you is that on 20 October 2014, you delivered 166.6 grams of heroin to Ms Trinh for her to sell to the undercover operative.  You then waited and delivered the money that Ms Trinh gave you which she had received from the undercover operative back to the principal offender, Loc Tran, at his premises, business premises in Braybrook. Similarly on 20 November 2014, you delivered 348.9 grams of heroin to Ms Tran.  On this occasion, the heroin had been given to you by Mu Lay Lai.  Following Ms Tran's transaction with the undercover operative, you took $95,000 of the moneys received by her from the undercover operative back to Mr Lai.

64As must be obvious, your case accordingly is one of less culpability than both Trinh for obvious reasons, and Nguyen.  Your offending occurred over a period of approximately four weeks as opposed to four and a half months when compared to Mr Nguyen.  Your offending involved two transactions as opposed to six when compared to Mr Nguyen.  You are charged with trafficking simpliciter as opposed to trafficking in a commercial quantity, as opposed to Mr Nguyen.  The maximum sentence for trafficking is 15 years, as opposed to 25 years, in the case of Mr Nguyen.  These matters mean that the sentence to be imposed upon you is less than the sentence that I have already imposed upon Mr Nguyen, that is, these distinctions between your case and that of his justify not insignificant disparity between the sentence imposed upon him and the sentence that I will now impose upon you.

65In your case, references were tendered including one from your mother in Vietnam.  She spoke about your awareness of fault and your remorse, as well as, the family's commitment upon your return to Vietnam which is inevitable upon your release to arrange employment for you and to provide you support generally. 

66Exhibit QD3 was a long letter from your girlfriend, Tu Thao.  It sets out a number of things including a brief synopsis of your background.  You were born into a family of high standing within the Vietnamese community, your father having been a member of the police force in Vietnam.  You were very well-educated.  At the age of 18, you obtained a scholarship to study information technology in India.  You completed that course and then returned to Vietnam where you worked for another year after having graduated. You decided that you needed to improve your skills and qualifications and you obtained admission to Western Sydney University to undertake a Master's degree in information technology.  Your family provided the full funding, the tuition fees which amounted to $30,000 a year for that course.  Halfway through that Master's degree, you fell out with your family as a result of an argument that you had with your father.  Your father stopped providing you with financial support here in Australia.  You dropped out of school, you stopped contacting your family in Vietnam and you started working in a bakery at Sydney.

67You eventually made your way to Melbourne.  According to Ms Thao, in Melbourne you were very lonely.  You got work as a handyman when you could but you became involved in gambling.  She says that you would gamble all of the money that you would earn, to the extent that one day you could not even afford to buy a packet of cigarettes for yourself and descended to picking up cigarette butts in order to make a smoke.

68You met Ms Thao.  As she says she knew nothing of your world, she knew nothing of the world of an illegal worker in Australia, someone who was engaged in gambling and who could not get work.  She was a pharmacy student at university.  Your relationship flowered and you have now been in a relationship as I understand it for some time.  She is now qualified as a pharmacist and working as an intern in Mildura.  She is in daily contact with you by telephone and visits you regularly.  She says that until Mr Loc Tran came into your life, your life together was peaceful and stable.  From her perspective, everything went astray after you were involved in working as a labourer on the building site where he was constructing the spa in Braybrook.  He befriended you. He offered to help you.  He constantly made promises which he would not keep.  Afterwards, you started working then in another friend's mechanic or workshop.  She said that was a change in your life, you were working long days, 7 am to 7 pm, working - earning $100 a day.  But you were still involved with Tran and somehow or other, you became involved in delivering these drugs for him.

69Ms Thao says your time in prison has really taught you a lesson, that you are determined to be a good person as she puts it.  She says you are a good person at heart.  Your family in Vietnam have been waiting for you to come home for seven years.  She effectively asked for mercy on your behalf so that you can go home to your family and start to rebuild your life.

70Your counsel submitted that I should take into account amongst other things that you offered to plead guilty to these charges at the committal mention stage.  That is the earliest practical stage in the proceedings at which you could have offered to plead.  That your role in these two charges was that of a courier, which is conceded by the Crown.  There is no suggestion that you were in any way involved in any planning or stood to profit other from the few hundred dollars that Mr Tran had offered to pay you. He relied on the fact that in the five and a half years that you had spent in Australia before being charged or before committing these offences, you had not committed any criminal offence; although, you had suffered as a result of financial difficulties and falling into gambling.  He emphasised that you will be returned to Vietnam upon completion of your sentence here and you have excellent prospects of rehabilitation there given the solid, strong family support that you will have and given the deep relationship that you have now developed with Ms Thao; who also is able to provide ongoing strong support to you. 

71Your counsel submitted that in all the circumstances, an appropriate sentence would be what he describes as a straight sentence, commensurate with the degree of involvement.  I have decided to accede to his submission although not altogether.  On the two charges of trafficking in a drug of dependence which were part of a course of conduct involving the same parties and the same drugs and the same circumstances on two separate dates, it is appropriate to sentence you in my view to an aggregate sentence.

72You are convicted and sentenced to an aggregate term of 23 months.

73I declare that you have already served five hundred and twenty-four days by way of pre-sentence detention which will be reckoned as having been served.

74Pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to be imprisoned for two years and nine months with a minimum non-parole period of two years.

75Now I will sign the other orders.

76Thank you for your assistance.

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