Director of Public Prosecutions v Duong
[2020] VCC 1379
•1 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-00368
CR-20-00367
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINH DUONG HUU PHUOC LE |
---
| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 August 2020 |
| DATE OF SENTENCE: | 1 September 2020 |
| CASE MAY BE CITED AS: | DPP v Duong |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1379 |
REASONS FOR SENTENCE
---Subject: traffick a commercial quantity of a heroin and a marketable quantity of methamphetamine contrary to the Criminal Code (Cth)
Catchwords: guilty plea – high utilitarian value – below mid-range offending – lesser role – Verdins limbs 5 & 6 engaged (Le) - risk of deportation (Duong)
Legislation Cited:
Cases Cited:
Sentence: 10 years and 9 months imprisonment, non-parole release period 6 years and 9 months (Duong) – 8 years and 6 months imprisonment, non-parole release period of 5 years and 3 months (Le)---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Holmes | |
| For Accused Duong | Ms C Lynch (plea) Mr A. Cini (sentence) | |
| For Accused Le | Ms K Blair (plea) Ms T. Di Paola (sentence) |
HIS HONOUR:
Minh Duong
1Minh Duong and Huu Phuoc Le, you have each pleaded guilty to one charge of:
·trafficking a commercial quantity of a control drug, methamphetamine, contrary to the Criminal Code (Cth) (Duong - Charge 1, Le - Charge 3)
·one charge of trafficking a marketable quantity of a controlled drug, heroin, contrary to the Criminal Code (Cth) (Duong - Charge 2, Le - Charge 4))
·and one charge of failing to comply with an order to provide passcodes to mobile telephones, contrary federal legislation (Duong - Charge 8, Le - Charge 7)
Huu Phuoc Le
2Huu Phuoc Le, you have also pleaded guilty to possessing a drug of dependence, 1,4-butanediol, contrary to the Drugs, Poisons and Controlled Substances Act (Vic) (Charge 5) and, possessing a general category handgun without a licence contrary to the Firearms Act (Vic) (Charge 6).
Circumstances of offending
3The circumstances of your offending are set out in the prosecution opening for plea, which was Exhibit A. They are agreed facts.
4Between 24 April 2019 and 4 June 2019, in the course of an organised commercial activity, you trafficked in methamphetamine, in a commercial quantity, and heroin, in a marketable quantity.
Trafficking in a commercial quantity of methamphetamine (Duong – Charge 1, Le – Charge 3)
5In 18 transactions you sold 1109 grams gross weight of methamphetamine and, on 4 June 2019, you were in possession of 2747.2 grams pure methamphetamine for sale.
6A commercial quantity of methamphetamine under the federal legislation is
750 grams pure weight.7The estimated wholesale value of the 2.7 kilograms pure methamphetamine is between $356,250 and $570,000. The estimated street value is between $855,414 and $1,900,920.
Trafficking a marketable quantity of heroin (Duong – Charge 2, Le – Charge 4)
8In six transactions, you sold 171.5 grams gross heroin and, on 4 June 2019, you were in possession of 324.1 grams of pure heroin for sale.
9A marketable quantity of heroin is 250 grams pure weight.
10A commercial quantity of heroin is 1.5 kilograms pure weight.
11The estimated wholesale value of the 324.1 grams of pure heroin is between $84,150 and $145,350. The estimated street value is between $259,280 and $518,560.
12Police detected your offending through communications intercepted from phones you used.
13Between you, you:
·sold methamphetamine and heroin to several dealers who on sold to others; and you also
·sold smaller quantities of drugs to customers for their personal use;
·you kept drugs for sale at Le’s apartment and used his apartment, and a share house, where you, Duong, sometimes stayed, as meeting places to sell drugs to your customers.
14In relation to the 18 identified methamphetamine sales, in one transaction you sold half a kilo of the drug for $4,400 to 'Daniel'. In other transactions you sold amounts of 1, 1.5, 2 (twice), 3 (4 times) and 4-ounce deals, as well as one quarter ounce (3 times) deals and one one-half ounce deals.
15For one of the 1-ounce sales you charged the customer $3,000.
16In relation to the six identified heroin transactions, you sold heroin in 1 (twice) and 2 (twice) ounce lots and one 1/8-ounce lots.
17In addition to discussion between you as to those methamphetamine and heroin sales, there were regular communications between the two of you about purchasing drugs and collecting them and delivering them to customers and collecting money from them.
18In early May and again in mid-May you, Duong travelled to Sydney to source drugs for sale.
19Between the two of you, you purchased:
·on 25 April 2019, an unknown quantity of heroin for $106,000
·on 30 April 2019, an unknown quantity of an unspecified drug for around $81,000
·on 6 May 2019, an unknown quantity of an unspecified drug for around $227,000
·on 7 May 2019, 1.5 kilograms of methamphetamine for $108,000
·on 10 May 2019, 1 kilogram of heroin for $80,000; and
·on 14 May 2019, another kilogram of methamphetamine for $81,000.
Role
Duong
20You, Mr Duong,
·controlled the operation
oyou sourced the drugs for sale
oyou communicated with potential purchasers and arranged sales
oyou gave instructions to Le:
§to meet purchasers
§and you have him instructions as to quantities and prices for drug sales
§and in addition you travelled to Sydney to meet potential suppliers.
Le
21You, Mr Le,
·sold drugs to customers
·collected payment from them
·collected drugs and tested them for sale
·stored drugs for sale and
·'washed' methamphetamine into crystalline form for sale
Arrest
22Police arrested the two of you on 4 June 2019. When questioned, each of you exercised your right to remain silent.
23In your apartment, Mr Le, they found:
·$318,170 in cash and
·drug trafficking paraphernalia including a notebook of drug sales, a cash counting machine, scales, clip seal bags, a vacuum sealing machine and a container of acetone, which is a washing agent.
24They also found:
·the 2.7472 kilograms of pure methamphetamine and
·the 324.1 grams pure heroin.
which were in the possession of the two of you for sale.
25In the apartment they also found:
·six bottles of 1,4-butanediol, which weighed 2543.8 grams – (Le, Charge 5); and
·and a loaded Beretta pistol with ammunition (Le, Charge 6)
26From your share house, Mr Duong, police seized:
·parts of a press
·clip seal bags containing traces of heroin, cocaine and methamphetamine; and
·two sets of scales, one of which had traces of methamphetamine on it.
27From your home, Mr Duong, police seized a clear plastic bag containing a small quantity of methamphetamine and a set of scales which had traces of heroin, monoacetylmorphine and codeine on it.
Criminal Record
Duong
28You each have admitted criminal records.
29Mr Duong, you have admitted criminal convictions from appearances in the Magistrates' Court and the County Court between 1 March 2004 and 12 September 2016.
30Relevantly, on 4 December 2013 at Sunshine Magistrates' Court, for trafficking and possessing methylamphetamine, firearms and driving offences you were sentenced to 15 months' imprisonment, seven months of which was to be served and eight months suspended.
31You have been sentenced to additional prison terms.
32On 11 September 2014, on an appeal, the County Court sentenced you for violent offences and possess amphetamine, to an aggregate term of 18 months; six months of the term was suspended. One month of the aggregate term was imposed for the offence of possess of methamphetamine.
33On 12 May 2015, in the County Court, you were sentenced to a total effective sentence of three years' imprisonment with a non-parole period of
18 months, again for violent offences and possess a drug of dependence. You were sentenced to six months' imprisonment as part of that total effective sentence for possession of a drug of dependence.34On 12 September 2016 at Melbourne Magistrates' Court you were sentenced to seven days' imprisonment for possession of a prohibited weapon.
Le
35Mr Le, you have admitted a criminal convictions from court appearances between 26 June 2001 and 20 March 2015.
36Relevantly, on 16 August 2006 at the County Court you were sentenced to five years imprisonment with a non-parole period of three years for trafficking in a commercial quantity of a drug of dependence and trafficking in a drug of dependence.
37You have been sentenced to other prison terms.
38On 5 February 2014 at Sunshine Magistrates' Court you were sentenced to
six months' imprisonment, which was wholly suspended, for possessing an explosive substance and possessing cannabis.39On 20 March 2015 at Melbourne County Court you were sentenced to 199 days' imprisonment for theft.
Duong
40In oral submissions, Ms Lynch, who appeared for you, Mr Duong, relied on the following documents:
1.her written submissions
2.a chronology
3.a certificate and letter confirming your participation in a 'managing cravings' program
4.four urine drug screens
5.a letter from your sister, Kelly
6.a letter from your former partner and mother of your child, Natarsha Barry
7.a letter from her father, Carl Barry
8.and a letter from your stepfather Van Le.
41At the commencement of her submissions she said you accept you had greater responsibility in the trafficking business than Mr Le. You have been friends with him for a long time and are aware of his personal struggles. You regret not only your own offending but also Mr Le’s involvement in it.
Personal Circumstances
42You were born on 29 October 1984 in Vietnam. You were 34 years old when you offended and you are now aged 35 years.
43When you were very young your family fled from internal conflict to Malaysia and then to Australian as refugees. You were six years old when you arrived here with your parents and two younger sisters. You lived in public housing Collingwood. Your father drank heavily and was violent. You home life was unhappy and your parents separated when you were 14 years old. Shortly after, you dropped out of school. In the context of a dysfunctional and violent upbringing you started to use drugs. By the age of 22 you were heavily addicted to methamphetamine and Xanax.
44On 3 June 2013, when you were 28 years old, you were remanded in custody and spent the next four and a half years in prison. You served all of the three-year sentence imposed on 12 May 2015. When you were released, on 3 December 2017, you laboured for your stepfather who operates a veranda construction business but you fell back into drug use and started selling drugs to support your habit. Your trafficking escalated during the period of your offending. The profits funded your drug use and gambling.
45You were remanded in custody on 4 June 2019 when police arrested you. In prison you have undertaken the programs made available to you and you have work as a billet. Clean drug screens show you are in enforced remission from your substance abuse.
46Your sister, Kelly, in her letter to the court, recounted your disadvantaged home life. According to her, your father 'had anger and gambling issues' and the three children hid together in fear when he abused your mother. When your father left, your mother worked full-time to support the family while you looked after your younger sisters. She is now a single mother of three young sons. She described you as 'a lovable caring uncle'. She has kept contact with you while you have been in custody. Poignantly, she wrote 'It was because of his struggles with drugs that my brother ended up in prison'.
47You were in a relationship with Natarsha Barry for four years. She is the mother of your child. She has also kept contact with you while you have been in prison. She wrote you are 'a loving caring person (who) has the kindest heart but unfortunately has… chosen the wrong path in life'. She wrote she will stick by you.
48Her father, Carl Barry, also wrote a letter to the court. He works in the criminal justice system. He has known you for nine years. He wrote that you have always been respectful to his daughter and his family and you have maintained contact with your son. He is aware of your crimes and does not support your actions but believes you need a chance to redeem yourself after you have served your sentence. As the grandfather of your child, he will continue to support you.
49You lost contact with your father but kept a good relationship with your mother. Your stepfather, Van Le, confirmed he has employed you in his business. He described you as a good worker. He has also maintained contact with you whilst you have been in custody. He wrote you are remorseful and embarrassed for your offending and optimistic about living a better life when you are released from prison.
50Ms Lynch acknowledged your offending is serious but distinguished it from more serious instances which involved longer periods of trafficking and larger quantities of drugs trafficked. She submitted, as a 'relatively flat (two-person) business structure', the operation was not highly sophisticated.
51She submitted, considering:
·your offending occurred over weeks rather than months
·that you trafficked in small multiples of a commercial quantity and a marketable quantity and
·the relative lack of sophistication of your business
I should find your offending was a low range example of this type of crime.
52She relied on the following factors in mitigation of penalty:
1.Firstly, your early guilty plea. Before a committal hearing you provided instructions which settled the factual basis for your plea to the charges on the indictment. She submitted your guilty plea has very high utilitarian value, for its facilitation of the course of justice, generally, and during the pandemic disruption to the courts, additionally.
2.Secondly, the risk of your deportation. You are a permanent resident of Australia but not a citizen. In 2016, after you completed your three-year prison sentence you successfully appealed the cancellation of your visa. Although you have not yet been served with a deportation notice you are pessimistic about your prospects of remaining in Australia after you have served your sentence. It weighs heavily upon you because you because you have grown up in Australia and your mother, sisters and son are all Australian citizens and intend to remain in Australia. Ms Lynch submitted, serving your sentence with an uncertain future will make prison more onerous for you.
3.Thirdly, she relied on the additional burden of prison isolation and “lockdown” conditions during the public health emergency.
4.And fourthly, your prospects of rehabilitation. You acknowledge they are dependent on your ability to remain drug free when you are released in the community.
Ms Lynch submitted, considering
a.the positive steps you have taken to advance your rehabilitation whilst in remand custody;
b.your skills for useful employment
c.your strong family support and
d.your desire to be a good father for your son.
your rehabilitation remains 'attainable'.
53Ultimately, she acknowledged I must impose a lengthy term of imprisonment but submitted, considering the rehabilitative potential of parole, I should impose a shorter than usual non-parole period.
Le
54I turn now to you, Mr Le.
55In oral submissions, Ms Blair, who appeared on your behalf, relied on:
1.her written submissions
2.the report of Dr Pandurangi, a consultant psychiatrist
3.Judge Campton’s reasons for sentencing you in respect of the theft charge in 2015
4.adult parole board correspondence
5.community corrections correspondence
6.your sentence remand history and
7.Judge Nixon’s reasons for sentencing you on the drug trafficking charges in 2006.
56You were born on 10 September 1983 in Sydney and are now aged 36 years. You are the second of four children. Your father was a property developer and your mother, a jeweller. You described your father as a good man and both your parents as busy and strict. In Melbourne you went to a local primary school and then Christian Brothers College, at St Kilda, until Year 9, and then
Taylor’s College, for Year 10. You said your parents were not happy with you when you left school to start a chef’s apprenticeship.57They disapproved of your subsequent life choices. You had little contact with them after your arrest in 2005 and eventually all contact with them ceased.
58In early 2005, you were using party drugs and met your only serious girlfriend, Charlene (Huynh) at a nightclub.
59She knew an ecstasy supplier and the two of you become involved in trafficking ecstasy with a third person, Huy Tran, whom you also met at nightclubs and, with him, you traffic large amounts of heroin and eventually were caught.
60On 16 August 2006 Judge Nixon sentenced you to five years imprisonment with a non-parole period of three years for trafficking in a commercial quantity of heroin and trafficking ecstasy. I have had the advantage of reading His Honour’s reasons.
61On 22 February 2009 you were released on parole which you successfully completed on 22 February 2011. During that time you were required to attend for supervision and to undergo alcohol and drug treatment with DasWest through Australian Community Support Organisation (ACSO)
62Not long after you completed your parole, you relapsed into drug use. Your decline in mental health is helpfully summarised in Dr Pandurangi’s report.
63In early 2013 you saw your general practitioner who commenced you on antidepressant medication for depression and anxiety. In early 2014, when you reported persecutory beliefs and hallucinations to a psychologist, he referred you for psychiatric assessment. You continued to see a psychologist and a general practitioner, during 2016 and 2017, when you were prescribed olanzapine which is an antipsychotic medication. In September 2017, when you saw a psychiatrist, for increasing persecutory beliefs and referential ideas, your antipsychotic medication dosage was increased. And by January 2019, when you had stopped taking your medications and drifted back to methamphetamine use, a local mental health service assessed you as suffering from a 'relapse' of schizophrenic illness in the context of illicit drug use. When you were prescribed a higher dose of olanzapine your mental state seemed to improve.
64You were fairly stable when you were remanded in custody in June 2019. However, weeks into your incarceration your mental state deteriorated into 'frank psychosis'. With changes to your medications you gradually improved and, in March 2020, you were relatively well.
65Dr Pandurangi interviewed you on 27 May 2020. In his opinion you suffer from a schizophrenic illness and substance misuse disorder.
66He does not believe your offending is causally related to your illness but it may have contributed to your inability to exercise proper judgement when you did offend.
67He does believe your illness is likely to make prison harder for you than other prisoners who do not suffer from such an illness and he believes there is a risk your mental health will deteriorate in custody.
68In his view your prospects of rehabilitation are reasonable if your mental state stabilises and you stop using illicit drugs.
69I accept his opinions, which were not challenged.
70Ms Blair acknowledged, while Mr Duong ran the business, you were an active and necessary participant. She submitted, although you trafficked significant quantities of drugs, considering the quantity based analysis of commercial quantity importations undertaken in DPP (Cth) v De La Rosa [2010] NSWCCA 238, which was followed in Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA32, the quantities of drugs you trafficked are below the midrange when compared with similar cases.
71She did not dispute the prosecution submission you had the handgun and the 1,4-butanediol at your apartment in connection with the drug trafficking business.
72She submitted, having regard to the totality principle, I should order a significant degree of concurrency between sentences for your individual crimes.
73In mitigation of penalty, Ms Blair relied on the following factors:
1.your early guilty plea
a.for its high utilitarian value
b.acceptance of responsibility and
c.evidence of some remorse
2.your mental health which left you socially isolated. You had no family contact, no work and no friends, apart from Minh Duong. When you offended you were self-medicating with methamphetamine and your initial motivation was to support your habit.
3.the additional hardship in custody as a result of the COVID-19 pandemic, which has led to,
a.regular daily lockdowns, and
b.suspension of programs and prison visits.
4.the application of limbs 5 and 6 of Verdins principles.
5.your prospects of rehabilitation,
a.noting that you had successfully completed your parole between February 2009 and February 2011, and
b.and during the six-year period prior to your offending, and after the completion of your parole, you have demonstrated a willingness to seek assistance from mental health clinicians for your mental health problems.
The Prosecution Submissions
74 Ms Holmes, who appeared for the Crown, in written and oral submissions, contended the only appropriate sentencing option is a period of immediate imprisonment that involves the imposition of a substantial head sentence.
75She submitted, because each charge comprises some aspect of separate misconduct,
·in respect of both of you, there should be a degree of cumulation between the sentences imposed on each of the three Commonwealth offences; and
·in respect of you, Mr Le, there should also be a degree of cumulation between the federal and state sentences imposed.
76She submitted your offending was committed over a significant period of time, involving both methamphetamine and heroin, in significant quantities.
77She submitted the gravity of your offending was 'around mid-range' compared with similar crimes.
78She characterised you, Mr Duong, as the principal of the drug trafficking business, who directed the operation and you, Mr Le, as a dealer, who acted at Duong’s direction and was entrusted to store substantial amounts of drugs and money and your home.
79She submitted between the two of you,
·your use of several properties to conduct the business
·your use of codes to avoid detection of your transactions, and
·Mr Duong’s additional:
ointerstate travel to source drugs and
ousing Mr Lee to store the drugs and deliver them to clients
show a sophistication to your enterprise.
80She submitted the substantial weight of the drugs you trafficked is relevant to determine the seriousness of your offending.
81She submitted the value of the drug is relevant to the assessment of the commerciality of your offending, your motivation to offend and the temptation for others to offend in a similar way.
82She submitted, in the absence of specific evidence to the contrary, given the considerable value of the drugs trafficked, I should conclude your offending was motivated by profit.
83She submitted, because the two business of trafficking charges involve multiple instances of trafficking, the criminality involved is greater than a charge which involves a single episode of trafficking.
84She submitted, because of the difficulty of detecting offending of this type and the great social consequences that flow from the distribution of drugs within Australia, general deterrence and denunciation are prime sentencing considerations.
85She also submitted, because each of you has relevant prior conviction for drug trafficking, specific deterrence is also a relevant consideration and, additionally your prospects of rehabilitation are guarded.
86She acknowledged:
·your guilty plea, made early, has high utilitarian value; and
·the public health emergency will make imprisonment harder due to lockdown conditions, no family visits and reduced access to programs.
87In your case, Mr Le, she conceded, because of your mental illness, Verdins considerations 5 and 6 are engaged.
88In your case, Mr Duong, she conceded, because of the prospect of your deportation, prison will be additionally burdensome for you.
89Ms Holmes provided me with a table of comparable cases to assist as a yardstick to measure your sentences.
Analysis
90On the federal charges of trafficking a controlled drug and failing to comply with an order to produce phone passcodes, the two of you are to be sentenced in accordance with part 1B of the Crimes Act 1914 (Cth) which requires me to impose a sentence of severity appropriate in all the circumstances.
Sub-section 16A(2) sets out a non-exhaustive list of sentencing factors for consideration.91Mr Le, you are to be sentenced also for state offences of possessing a drug of dependence and possessing a handgun. Section 5 of the Sentencing Act 1991 (Vic) requires me to impose a sentence no more severe than that which is necessary to achieve the purposes for which the sentence is imposed.
92I have relied on the Court of Appeal’s guidance in DPP (Vic) and DPP (Cth) v Ryan Swingler [2017] VSCA 305 to structure the state and federal sentences I will impose.
93The principles applicable to drug trafficking offences are well-established.
94In Suky Lieu [2016] VSCA 277, Beach and Kaye JA, with Redlich JA agreeing, said at [41],
'essentially, the determination of the seriousness of the offending is informed by a range of factors, including the role of the offender, the position of the offender in the drug trafficking hierarchy, the nature and extent of the offender’s involvement in the enterprise, the sophistication of the enterprise and the amount of drugs involved…'
95The maximum penalty for commercial quantity drug trafficking is life imprisonment. Self-evidently, the objective gravity of your offending is very serious.
96In Vladimir Djordjic [2018] VSCA 227, which concerned state large commercial quantity drug trafficking offences, Their Honours, this time with Whelan JA agreeing, said at [83],
'(there is a) requirement that sentences imposed… be sufficient to constitute a clear and unambiguous message by the courts that those who wish to reap large profits from the egregious trade of drug trafficking, must, if detected, expect to lose their liberty for a long period of time'.
97Clearly, general deterrence and denunciation are important sentencing factors. So, too, is specific deterrence, considering each of you has previously been convicted and imprisoned for drug trafficking.
98There is no estimate of the value of the drugs you sold but those you had stored for sale had an estimated value in the order of half a $1m wholesale and more than $1m if sold on the streets. The substantial sums show the commerciality of your business.
99The sentencing regime for trafficking offences is essentially 'quantity based' (see Gregory [2017] VSC 8151, at [23]).
100Under federal law, the prescribed quantities refer to the pure amount of the drug. The purity of the methamphetamine and heroin you sold is not known.
101The methamphetamine you had stored for sale at Le’s apartment was 3.65 times the commercial quantity and the heroin, 1.29 times a marketable quantity.
102You, Duong, travelled to Sydney to source drug supplies and occupied the senior position in your two-person business. You, Le, played an integral role in collecting drugs, washing them for resale and delivering them to customers.
103The observations Court in Djordjic, at [71], are apposite to you:
'selling drugs to support your habits explains why you became involved in the milieu of heavy drug consumption and trafficking. However it does not provide proper explanation, let alone mitigation, for your involvement in the commercial activity' (Djordjic at [71])
104The only 'common sense' inference to be drawn from the number of substantial drug sales you made and large quantities of drugs and cash seized, is that profit was your primary motive. (see Nguyen v The Queen; Phommalysak v The Queen (2011) 31 VR 673 at 695 – 6, per Maxwell P)
105While the business had several significant customers and used three premises for your operations I also accept, as a two-person business, it was relatively less sophisticated than other many other commercial-scale drug syndicates.
106Considering the quantities of drugs trafficked, the duration of your offending, which was weeks rather than months or years, and your relatively unsophisticated business model, I accept your offending falls below mid-range for crimes of the type.
107I accept the prosecution's submission, which was unchallenged, your refusal to give police the passcodes to access your phones was a deliberate attempt to frustrate their investigation.
108And, in your case, Mr Le, you did not challenge the prosecution submission your possession of the 1,4-butanediol and the handgun was connected with the drug trafficking business. You fall to be sentenced for your possession of them on the day police executed a search warrant. Other than that they were found at your apartment, and you have not contended the drug was for your personal use, there is no material before me as to anything you had done, or intended to do, with either item.
109In the case of each of you, I accept your guilty plea has very high utilitarian value. Drug trafficking charges are notoriously difficult and expensive to prosecute. Trials are often lengthy and, occupy the time of the courts and law enforcement officers, and can be a substantial burden on the community.
110You are entitled to a demonstrable sentencing benefit for your guilty plea (see Lieu at [56]).
111I accept you are both remorseful and I accept, because of the anxiety of the risk of a COVID-19 prison outbreak and the additional related restrictions in gaol, conditions of imprisonment are more onerous than usual.
112In your case, Mr Duong, because you have lived virtually all your life in Australia and all your family are here, I accept the risk of your deportation will make imprisonment additionally harder for you.
113In your case, Mr Le, because of your mental illness, I accept prison will weigh more heavily on you than on a person in normal health and, as well, prison could significantly adversely impact your mental health.
114I have taken these factors into account to moderate the sentences of imprisonment and the non-parole period I will impose.
115In the case of both of you, I must view your prospects of rehabilitation with caution. Whether or not you reoffend will depend substantially on whether you can remain drug abstinent, after a period of enforced remission in prison. To encourage your rehabilitation I will impose a shorter than usual non-parole period to allow for your reintegration into the community under supervision.
116As you are to be sentenced for more than one offence, and because there is an overlap in your offending conduct between all charges, I have also moderated the individual sentences, and made orders for partial cumulation, to achieve a sentence which properly reflects your total criminality.
117Making appropriate adjustment for differences in offending and the personal circumstances of the offender, I have had regard to the sentences for the federal offence of trafficking in a commercial quantity of a drug referred to in the prosecution table and as well the Victorian Court of Appeal decision in
Suky Lieu.118I have also considered a number of Victorian Court of Appeal decisions for the comparable crime of trafficking in a large commercial quantity of a drug of dependence contrary to the Victorian legislation, including the cases of Djordjic, John McKenzie [2018] VSCA 34, Kha Luan Nguyen [2019] VSCA 184 and Dorry Dawid [2013] VSCA 64.
119The cases have guided me in the identification and application of the relevant sentencing principles and reveal sentencing practices and sentencing range which, with the relevant maximum penalties, I have used as a yardstick to measure your sentence. However as the High Court mentioned in
DPP v Dalgleish [2017] HCA 41, at [5] – [9], current sentencing practices are but one of a number of factors that must be taken into account in determining the sentence I should impose. (See also Djordjic, at [74]).120The trafficking of different drugs deserve separate recognition in the sentencing process.
121You are to be sentenced for engaging in a substantial trafficking business, involving two different drugs, over a six-week period. Overlapping criminality between trafficking offences and ancillary offences does not prohibit cumulation. I will make orders for cumulation but temper them to reflect the commonality of the offences and ensure that the totality principle is not infringed.
122By the sentence I impose, I must denounce your conduct, punish you and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
123Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to both of you:
Duong
124Mr Duong, in your case, on the charge of trafficking in a commercial quantity of methamphetamine (Charge 1), you are sentenced to eight years and six months' imprisonment, which is to commence today.
125On the charge of trafficking in a marketable quantity of heroin (Charge 2), you are sentenced to four years imprisonment, which is to commence two years before the expiry of the sentence on Charge 1.
126And on the charge of failing to comply with an order to disclose phone passcodes (Charge 8), you are sentenced to 12 months' imprisonment, which is to commence nine months before the expiry of the sentence on Charge 2.
127Your total effective sentence, Mr Duong is 10 years and nine months' imprisonment, and I fix a minimum non-parole period of six years and nine months before you will be eligible for parole release.
128I declare you have served 455 days by way of pre-sentence detention.
129And I declare but for your plea of guilty I would have sentenced you to a total effective sentence of 13 years and six months' imprisonment and fixed a non-parole period of nine years' imprisonment.
Le
130Mr Le, on Charge 5, possess 1,4-butanediol you are sentenced to nine months' imprisonment.
131And on Charge 6, possess general category handgun, you are sentenced to nine months' imprisonment.
132Under state law both those sentences commence today. Unless I order otherwise they are to be served concurrently, and I do not. Your total effective state sentence is nine months.
133In relation to the federal sentences, Mr Le, on charge 3, trafficking a commercial quantity of methamphetamine, you are sentenced to seven years' imprisonment, which is to commence today.
134On Charge 4, trafficking a marketable quantity of heroin, you are sentenced to three years' imprisonment and I direct that that sentence commence 18 months before the expiry of the sentence imposed on Charge 3.
135On Charge 7, failing to comply with an order to disclose phone passcodes, you are sentenced to 12 months' imprisonment, which is to commence nine months before the expiry of the sentence imposed on charge 4.
136Your total effective federal sentence is eight years and nine months, and I fix a non-parole period of five years and three months.
137By operation of the Sentencing Act (Vic), the total effective sentence for the State and Commonwealth offences combined is eight years and nine months.
138I declare you have served 455 days by way of pre-sentence detention.
139I declare but for your plea of guilty I would have imposed a total effective sentence for the state and Commonwealth offences combined of 11 years' imprisonment and fixed a non-parole period of seven years and six months.
140
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