Director of Public Prosecutions v Duong
[2016] VCC 1965
•14 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01964
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDY DUONG |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 August 2016 |
| DATE OF SENTENCE: | 14 December 2016 |
| CASE MAY BE CITED AS: | DPP v Duong |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1965 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – traffick in a drug of dependence (heroin)
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:R v Pidoto & O’Dea [2006] VSCA 185; R v Giretti and Giretti (1986) 24 Crim R 112; R v Hasan [2010] VSCA 352; R v Lacey, [2007] VSCA 196; R v Koumis & Ors [2008] VSCA 84; Boulton & Ors v R [2014] VSCA 342; DPP v Borg [2016] VSCA 53; McGrath v R [2015] VSCA 176; Hutchinson v R [2015] VSCA 115
Sentence:Convicted and sentenced to 3 years’ and 2 months’ imprisonment with a non-parole period of 2 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms G. Coghlan | Solicitor for the Office of Public Prosecutions |
| For Accused DUONG | Mr C. Nikakis | Haines & Polites |
HIS HONOUR:
1Mr Duong, you can stay seated. What I am about to do is pronounce the reasons for your sentence. You do not have any issue with understanding English, is that right?
2OFFENDER: Yes, Your Honour.
3HIS HONOUR: Very well. The reasons for that is, firstly, it is important for you to understand why I have sentenced you and what the reasons are and my comments in regard to the submission made on your behalf by Mr Nikakis. But importantly, as our system of justice is, it is to record the reasons so that that matter is recorded publicly, and should there be any need in the future for either any other Court, or any other person to look at the sentence, it is available. And most importantly, it is available for you, all right?
4So when I come to the end of the sentence, which will be slightly truncated because of Ms Nguyen not appearing, but not much, I will ask you to stand and I will then pronounce the sentence. All right?
5OFFENDER: Yes, Your Honour.
6HIS HONOUR: So today has just been tendered insofar as
Mr Duong's matter, Exhibit D, which is the community corrections report received subsequent to the last hearing day, prepared by Allie Menzani and dated 4 August 2016. Such report being a positive report.7In addition, as already been indicated, and in support of the positive assessment, is a further document tendered by Mr Nikakis today on behalf of Mr Duong, which is the certificate of completion related to Mr Duong of the Alcohol and Other Drug Stress Management Program through the Carianiche Program conducted in prison (Exhibit D5).
8It has also been confirmed today that the PSD involved insofar as Mr Duong is concerned is 153 days. In this Indictment, Mr Duong, together with his co-accused pleaded guilty to two charges of traffic in a drug of dependence in Indictment C1510083.
9Mr Duong is 28, was born on 28 December 1988, works in his mother's restaurant, and is currently on remand. He was represented by Mr Nikakis, his co-accused Ms Nguyen by Ms Kaddeche and the Director was represented by Ms Coghlan.
10As I say, each of the parties pleaded guilty to two charges of traffic in a drug of dependence. The first charge on the Indictment concerned that of heroin, and was a between dates offence, that is between December 2014 and February 2015.
11It is an offence against s.71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic). The amount of heroin found, it being understood that the trafficable amount is recorded as three grams as set out in the schedule that I handed to counsel this morning, to which there has been agreement. It might well be appropriate to make that schedule Exhibit E.
12Insofar as the heroin therefore is concerned, it is a hundred times the trafficable amount. However, it is three-fifths of the next level on the R v Pidoto & O’Dea [2006] VSCA 185 quantity based sentencing regime that we have in this State. That is, you would need 500 grams mixed to take you into the commercial traffic level.
13There is also a further discrimination within the amounts found, as to the heroin itself. Of that heroin, there was a difference in purity, 105 grams of the 303 grams were 72 per cent purity and the balance, which were essentially bags prepared for street level sales, were somewhere between 14 and 15 per cent purity. The street value as ascribed by the prosecution, insofar as the heroin was concerned, was $90,900.
14In regard to Charge 2, Mr Duong and his co-accused pleaded guilty to the trafficking in a drug of dependence in this instance, methamphetamine. It was a traffic on one day only, being 13 February 2015, which was the day the warrant was issued. The amount involved was 44.9 grams. The amount therefore was some fourteen times the prescribed amount for a trafficable amount, insofar as a charge under s.71AC, and one-eighth of the amount which takes you into the commercial level, being 500 grams.
15In addition, each of the co-accused pleaded guilty to three summary charges. The first of the summary charges was possession a prohibited weapon. In this instance being a stun gun and a baton. The maximum penalty prescribed for that being 240 penalty units, and/or two years gaol.
16The second summary charge is possess controlled weapon, in this instance a knife. The penalty prescribed being 120 penalty units and/or one year's gaol. And the final summary matter to which there was a plea of guilty is the proceeds charge, of being found in possession of proceeds of crime. In this instance, the sum of $23,000 for which the maximum penalty prescribed is two years.
17The heinousness of the two charges in the Indictment, that is the criminality committed by both of these accused, but in this case, as I am sentencing
Mr Duong, by Mr Duong, is demonstrated by the maximum penalty imposed by Parliament, which is 15 years gaol.18Exhibit A was the prosecution summary and both counsel accepted the facts as set out in that summary, as the facts upon which I am to sentence their clients. In this case, most particularly, Mr Nikakis accepted such.
19Insofar as the trafficking, in regard to Charge 1 is concerned, the proposition put by the prosecution was based on traffic on a Giretti basis (See R v Giretti and Giretti (1986) 24 Crim R 112), as recorded in paragraph 9 of such opening, in the sense that the traffic heroin Charge 1, is put on the basis that the two accused trafficked heroin from 30 December 2014 until the time of the search on 13 February 2015.
20It includes the heroin found during the search. It also includes evidence from a buyer of heroin, that he had been buying heroin from the premises since Christmas, and a CCTV of the Commercial Road apartment which shows significant numbers of people coming and going from the premises between 13 January and 13 February 2015.
21The second exhibit, Exhibit B, tendered by the prosecution were the photos which related to the proceeds being the money, and the third exhibit tendered was Exhibit C, being the certificate of analysis dated 17 September 2015.
22As to the trafficking of the heroin in Charge 1, in addition to the period over which such was undertaken, reference was made to the finding of the accoutrements, such as the press described on the warrant, and as set out in particular, in paragraph 5 of the summary. The cash that I have already referred to and the weapons that make up the summary offences. As I have already indicated, the drugs seized were valued, by way of street value at the respective rates that I have already indicated.
23Mr Duong has priors, not as serious as his co-accused. He had two matters which occurred in the Children's Court in 2007 and 2008, and they related to one charge of possess heroin and one charge of possess a controlled weapon. As I have said, the priors are certainly not as significant as that of Ms Nguyen. The pre-sentence detention served to date is 153 days by Mr Duong. Mr Nikakis made his submissions on behalf of Mr Duong and tendered written submissions to the Court and spoke to those. Those written submissions are set out in Exhibit D4. He also supplied as part of that submission, a chronology in regard to his client.
24Mr Nikakis took me through the personal circumstances that are relevant to his client as set out from pp.2 through to 4, his education and work history and in particular, his drug history, which demonstrated that he had begun using methamphetamine, that is ice, at approximately 18 years of age. That his heroin use began when he returned to Melbourne in 2014 and apparently, initially related, so Mr Nikakis was instructed, as to having something to do with a breakdown in relationships.
25The use of drugs was governing his life, as he was addicted grossly to these substances. He was bailed to the CISP Program on 5 March 2015 and Exhibit D1 was tendered, being a report by Mr Raul Sorto, made on
28 May 2001, and that includes within it, a further report under that program dated 24 July 2015.26In that latter summary, date 24 July, it noted in the summary on p.4, that Mr Duong had attended nine of the fifteen of his CISP case management appointments. It was the opinion that Mr Duong had unfortunately prioritised work commitments over treatment, but that his work and family commitments have been a positive influence, allowing him to abstain from illicit substances.
27Exhibit D2 was the psychological report tendered on his behalf, prepared by
Dr Marcus Squirrell. It was dated 24 September 2015 and it was a positive report. In that report, as of September, he had attended five sessions. The focus of such sessions were to assist in him abstaining from drugs.28It was certainly the view of Dr Squirrell, who in his observation, had no reason to believe that the prisoner was continuing in any way to use substances. He noted issues as to depression and confirmed that overall, Mr Duong was engaging well in his treatment. It could be seen, as referred to by Mr Nikakis, that such report was positive.
29In addition was tendered Exhibit D3, which is a report from the counsellor Denise Abadee. The prisoner attended for assessment on 30 March 2016 and a further counselling assessment took place in April 2016, he and his partner apparently failed to attend subsequent appointments. He gave a history as to background that I have already referred to and it is noted that on p.2, the counsellor took the view that he met the DSM criteria for drug abuse.
30Two paragraphs down, the Counsellor said:
"When completing the Severity of Dependence Scale, examining his drug consumption at the time of the alleged offences, Mr Duong scored 14 out of a possible total of 15 on this scale, indicating a Very High Degree of Psychological Dependence on Drugs.
Through Mr Duong's self-report, and administering the Severity of Dependence Scale and assessing the DSM-V Criteria he is best classified, as at the time of the offences before the Court as being highly dependent on heroin."
31Mr Nikakis submitted that I should take this into account when assessing the culpability on the day. That is, his dependency, and the understanding of his actions on that day, being to service such a dependency. Mr Nikakis also submitted that the encouraging actions since that time as to rehabilitation, were very important.
32Mr Nikakis further submitted that the fact of no priors, but for the minor matters that I spoke of, was particularly important, particularly here as he has been essentially on his own since the age of 15, and lacked appropriate family support.
33It was submitted that the prisoner is still basically a young man, that I should take into account the relatively limited period over which this trafficking had taken place, his plea of guilty and the acknowledgement that that plea recognises, the appropriate discount that he is entitled to by way of that plea, which I accept, and in particular, the steps taken since that time by way of rehabilitation. Essentially, the submission made by Mr Nikakis was that despite the seriousness of these charges, and the circumstances, that it was a case where I would consider a sentence which involved both gaol and a community corrections order.
34In response, the prosecutor submitted that while she was not necessarily saying such was not an appropriate consideration for the Court, it was submitted the Court must give close consideration to whether a community correction order, in such circumstances, was appropriate given the restrictions imposed by s.44. As I say, in support of such a submission of Mr Nikakis, a CCO report was called for and tendered today, which as I have remarked, found the prisoner to be suitable.
35It was strongly submitted by Mr Nikakis that I should accept that Mr Duong's motivation is strong, that he has shown given the steps he has taken, in particular with Exhibit D5 tendered today, that his intention and motivation is strong to give up the drugs.
36I accept all of those positive steps and positive matters that were put by Mr Nikakis in regard to his client. In regard to the sentences imposed for these matters generally, it must be, as I have already referred to noted, that this is a quantity based regime imposed by Parliament and it is necessary to recall that where Parliament prescribes a maximum penalty of this type, such shows unambiguously how seriously the community, through Parliament, views this particular crime.
37Indeed, it is irrelevant as set out in Pidoto, what particular drug is involved. The system essentially is quantity based and we have in regard to the criminal provisions in our State, a quantity base sentencing regime.
38I should of course point out, that quantity as such has no arithmetical relationship to a sentence, but of course, is a very significant matter in sentencing in regard to these crimes.
39As I have said, such regime was fully detailed by the Court of Appeal in Pidoto, in particular at [34] where four of the Court of Appeal Justices noted that by such structure, Parliament has adopted a hierarchy of seriousness defined by, and only by, the quantity of the drug of dependence that has been trafficked.
40Further in Pidoto at [62], the Court indicated the ultimate question for a sentencing Court to consider, given such structure, is not whether trafficking is one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind, the maximum penalty which may be imposed for the drug involved.
41As I have said, the heroin here is three-fifths of the quantity required to take one in to the more serious level, and one-eighth of the quantity in regard to the methamphetamine.
42At the same time, the amount of heroin is a hundred times what is the qualifying weight for a simpliciter trafficking charge, and some fourteen times the minimum weight for a simpliciter trafficking in methamphetamine.
43The sentencing statistics were referred to in regard to this charge. They were statistics as at June 2016 and showed that - by way of a combination sentence, the sentences varied from one month through to seven and a half years. The median total effective sentences for crimes of this type was two years and eight months, the non-parole period was one year and six months.
44It is of course important, when trying to assess current sentencing practice, to remember that snapshots are, as the Court of Appeal has said just that, a snapshot. Such issue as to snapshots and how a Court takes such on board in its synthesis, was considered by the Court of Appeal in R v Hasan [2010] VSCA 352, in particular [44] to [54], under the topic of “Consistency of Sentencing,” and those paragraphs, there are a series of matters which are detailed, which a Judge needs to consider in seeking to ascertain the appropriate sentence in a particular case and by way of assessing the objective gravity of a particular offence. At [54] in Hasan the Court said the following:
"The principles to which a Sentencing Judge must have regard include those laid down by the relevant legislation. In Victoria, the most important repository of sentencing principles is the Sentencing Act 1991 (Vic). Section 5(2) of that Act prescribes the matters which a Court must have regard when sentencing an offender. First among these is the maximum penalty prescribed for the offence. The second is current sentencing practice".
45I accept that Mr Duong was addicted to drugs and that such was the motivating factor for him being involved in these crimes. That is, that these crimes fed Mr Duong's own habit, albeit the size of the cash found at the premises.
46Clearly, I was going to refer to Ms Nguyen's life being far more blighted by such addiction, however, from the submission of Nikakis as I have referred to, and the history given by Mr Duong, he only became addicted to heroin upon returning to Melbourne in 2014 and meeting up with Ms Nguyen, and thereafter, re-introduced himself to the participation in ice, which he had earlier used as a younger boy.
47Insofar as such addiction is concerned, the principles expanded in R v Lacey, [2007] VSCA 196 at [16] and [17] and R v Koumis & Ors [2008] VSCA 84, in particular at [53] to [59] are applicable, and I take those into account in assessing the moral culpability, and the issues or rehabilitation relevant to this sentence.
48However, it also has to be stressed Mr Duong that albeit, your drug addiction provides the explanation for your serious offending, it does not provide any justification insofar as this offending is concerned. As already detailed, denunciation and general deterrence is of particular importance in regard to these crimes.
49As submitted by your counsel and accepted by this Court, rehabilitation especially involving a relatively young man such as you, is an important consideration. The situation as to your rehabilitation seems from the exhibits that I have referred to, being D1 through to now D5, certainly more favourable than your co-accused. However, these are, as far as I am concerned, and based upon experience, early days. But I accept that the steps you have taken are encouraging.
50Provided you can overcome that addiction in the future, given your relatively law abiding past, then one should be positive. However, it should not be misunderstood, how hard it is to overcome addictions of the type that you had, especially given the degree to which your addiction is classified.
51There is, however, one other factor which must be taken into account, and that is the particular role played in this trafficking. Although I am sure there are persons much higher up the chain, you Mr Duong, were not dealing on the street yourself. You set up a rendezvous where many persons were able to visit, to purchase drugs and clearly, you were concerned with preparation of street quantities prepared from more larger purer amounts that you had, as the certificate analysis shows and to which I have already referred, as set out in Exhibit C.
52Also, the prosecutor spoke in her submission to the Court of the dimension of this operation, the amount and value, the accoutrements held at the premises and the number of persons frequenting. It was in that light that she submitted that although on the principles of Boulton & Ors v R [2014] VSCA 342 and the sentencing legislation, especially s.5(4C) of the Sentencing Act 1991 (Vic), allowed for a combined order of the type sought by Mr Nikakis in both your case and your co-accused, that immediate imprisonment was essential and further, that the Court would need to consider, given the dimension of the offending, as I have just indicated, whether it was appropriate for a combined order, by way of a sentence of immediate imprisonment and a community corrections order, to be imposed, given the necessity as prescribed by s.44(1) of the Sentencing Act 1991 (Vic) for the immediate gaol to be restricted to a period of two years.
53Boulton was recently canvassed by the Court of Appeal in DPP v Borg [2016] VSCA 53. At [110] of Borg in understanding the new landscape, as regularly referred to at the Bar table in these cases, the Court said that it is against the background, that is that, the CCOs were brought in when suspended sentences had ceased, that Boulton must be understood:
“It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.”
54Further at [106] in Borg the Court said:
"At the same time the Court made clear that, whatever the conditions attached to a CCO, its punitive effect could never be equated to that of imprisonment, which is uniquely punitive because of that feature which distinguishes it from all other forms of sanction, namely, the complete loss of liberty.”
55At [108] in Borg, quoted from McGrath v R [2015] VSCA 176, when in regard to Boulton, the following was said:
"Nothing said in Boulton altered the principle of parsimony, which has always been a fundamental sentencing principle under the Sentencing Act 1991 … A Sentencing Judge has always been obliged to impose the least severe sentence necessary to achieve the purposes of sentencing".
56Further in such quotation:
"The Judge's obligation is, as it has always been, to give adequate consideration to whether a sentencing option other than a substantial immediate custodial term of imprisonment will be appropriate".
57At [109] in Borg, the Court further quoted from Hutchinson v R [2015] VSCA 115, where Priest JA, with the concurrence of Ashley JA said:
“Acknowledging that a CCO might be appropriate ‘even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment’, it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. One of the purposes for which a sentence may be imposed is, of course, ‘to punish the offender to an extent and in a manner which is just in all of the circumstances’. There will be cases — indeed, many cases — where, having regard to the seriousness of the offending, a CCO will be insufficiently punitive to satisfy the need to punish the offender in a manner which, in all of the circumstances, is just.”
58Despite the strong plea in this regard by Mr Nikakis, and despite the positive report received in regard to a CCO, I have concluded Mr Duong, after close consideration of the circumstances of your case, that a CCO is not appropriate in regard to your sentence.
59On Charge 1 you will be sentenced to a period of imprisonment of two years and four months. On Charge 2, a period of imprisonment of one year and nine months. I order that eight months of the period of imprisonment imposed in regard to Charge 2 be cumulated upon the period of imprisonment imposed in Charge 1, making a total effective sentence of imprisonment of three years.
60I order that the period that you must serve before being eligible for parole is a period of two years. I declare pursuant to s.18 of the Sentencing Act 1991 (Vic), that the 153 days that you have served by way of pre-sentence detention is to be deemed as part of this sentence, and such declaration is to be recorded in the records of this Court.
61In regard to the summary matters, I sentence you in Summary Charge 5 to a period of imprisonment of four months. In Summary Charge 7 to a period of imprisonment of three months and Summary Charge 8, to a period of imprisonment of six months. That makes a total of six months imprisonment. I will not cumulate any of that.
62However, I do intend that two months of those sentences in relation to the summary charges be served cumulatively upon the sentence that I have imposed upon you in regard to the Indictment. So that you will be sentenced to a period of three years, with a minimum period before being eligible for parole of two years for the two Indictable charges, to which an additional two months will be added that has to be served for the summary charges.
63Insofar as the declaration required under s.6AAA of the Sentencing Act 1991 (Vic), it is important for me to indicate to you Mr Duong, that had you not pleaded guilty in this matter, I would have sentenced you to a period of imprisonment of four years, with a minimum period of three years.
64Hence, the result of you pleading guilty, means that you did not receive a sentence of four years with a minimum of three, but you have received a sentence of three years with a minimum of two. It is important for you to understand the worth of that plea. Yes I do not think there are any other matters. If you take a seat Mr Duong for the moment. Do either counsel have any comments in either of the matters?
65MS COGHLAN: Your Honour, can I just clarify in relation to the two months cumulation?
66HIS HONOUR: Yes.
67MS COGHLAN: Is that to attach to the non-parole period? So that it would be a total effective sentence of three years.
68HIS HONOUR: Three years with two and cumulated on top of that, another two months.
69MS COGHLAN: So ‑ ‑ ‑
70MR NIKAKIS: It's effectively three years ‑ ‑ ‑
71MS COGHLAN: And two months.
72MR NIKAKIS: ‑ ‑ ‑ with a ‑ ‑ ‑
73HIS HONOUR: Three years and two months.
74MS COGHLAN: And on parole period ‑ ‑ ‑
75MR NIKAKIS: As a non - but the non-parole period remains at two.
76HIS HONOUR: I have not altered the non-parole period.
77MR NIKAKIS: So that ‑ ‑ ‑
78MS COGHLAN: As Your Honour pleases.
79MR NIKAKIS: As Your Honour pleases.
80HIS HONOUR: Yes.
81MR NIKAKIS: I think it might be appropriate - because we both made the same mistake.
82MS COGHLAN: Yes.
83MR NIKAKIS: It is not clear that the two months cumulative goes to the head sentence rather ‑ ‑ ‑
84HIS HONOUR: All right.
85MR NIKAKIS: ‑ ‑ ‑ than the minimum.
86HIS HONOUR: I'll make it clear. That two months is to be added to the period by way of head sentence imposed in the Indictment, making total period of imprisonment, by way of head sentence, three years and two months.
87MR NIKAKIS: Thank you, Your Honour.
88HIS HONOUR: I will not interfere in regard to the non-parole period that I imposed in regard to the indictable matter.
89MS COGHLAN: As Your Honour pleases.
90MR NIKAKIS: As Your Honour pleases.
91HIS HONOUR: Nothing else?
92MS COGHLAN: No, Your Honour.
93MR NIKAKIS: No, Your Honour, thank you.
94HIS HONOUR: Yes, Mr Duong well good luck and I know it is not easy when you have just been sentenced to a considerable period of imprisonment to accept that from the Bench, but I hope that you do effect your rehabilitation because you obviously cannot be involved in drugs. It is no good for you. Yes, you can take the prisoner away.
95Mr Nikakis will no doubt talk to you and explain these matters.
96MR NIKAKIS: Yes. Thank you, Your Honour.
97HIS HONOUR: Thank you Madam Prosecutor for your assistance. No doubt we will come together in regard to this matter again ‑ ‑ ‑
98MS COGHLAN: Yes, Your Honour.
99HIS HONOUR: ‑ ‑ ‑ when - well one presumes.
100MS COGHLAN: Yes, Your Honour. I should also have just asked Your Honour whether the orders had been made in a form of a disposal order and forfeiture order?
101HIS HONOUR: I think I have signed them haven't I?
102ASSOCIATE: Yes you have.
103HIS HONOUR: Yes. So ‑ ‑ ‑
104MS COGHLAN: Thank you, Your Honour.
105HIS HONOUR: ‑ ‑ ‑ we'll keep this Madam Associate for future reference. Yes thank you both for your assistance.
106MR NIKAKIS: Thank you, Your Honour.
107MS COGHLAN: Thank you, Your Honour.
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