Director of Public Prosecutions v Duong
[2019] VCC 791
•31 May 2019
jun
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-18-01308
Indictment No: J10152561.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON DUONG |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2019 | |
DATE OF SENTENCE: | 31 May 2019 | |
CASE MAY BE CITED AS: | DPP v Duong | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 791 | |
REASONS FOR SENTENCE
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Subject: trafficking in commercial quantity of ephedrine, possess cannabis. Related summary matter (knuckle dusters and baton).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Pillai Ms L. Spence | Office of Public Prosecutions |
| (For Sentence) | ||
| For the Accused | Mr C. Farrington Ms T. Milides | Milides Lawyers |
HIS HONOUR:
1 Jason Duong, you have pleaded guilty to one charge of trafficking in a commercial quantity of ephedrine and one charge of possession of cannabis. You have also pleaded guilty to a related summary offence of possession of prohibited weapons. The maximum penalties are correctly set out in the agreed prosecution summary. Your counsel accepts that given the plant number involved here, the higher maximum penalty applies for the possession of cannabis charge and that concession is undoubtedly correct.
2 You were born in October 1990. You are 28 years old and have admitted a quite short criminal history.
3 The matter was opened to me on Tuesday of this week by Ms Pillai who appeared on behalf of the Director of Public Prosecutions of this State. She opened in accordance with a written opening dated 27 May 2019 which was tendered on the plea and marked as Exhibit A. There were also some photographs that were marked as Exhibit B. Mr Farrington made it clear that this was an agreed factual statement (see 1.2 of written outline).
4 I see no utility in setting out the full factual basis of sentencing in my reasons as it is contained in that agreed document and I will not stray beyond the agreed facts. The summary discloses that you were arrested in a rental truck that had a connection to an obvious crop house situated in Mill Park. A warrant was obtained to search your residential address in Epping. The ephedrine was found in three bags within a larger bag under the television unit in your bedroom. The 38 cannabis plants were found out in the garage. The ephedrine was in a mixed weight of 654 grams. 455 grams of that was pure. The commercial quantity for that drug is 100 grams pure. It follows that you had over 4 times the commercial quantity and there is material in the summary dealing with its valuation. Now some of those figures deal with what it could be turned into by way of manufacture and I put those figures aside. You possessed the ephedrine for sale and I do not want to start speculating about what it may have become. The cannabis plants had obviously recently been moved. Obviously enough, and as is conceded by Mr Farrington, they had been moved from the Mill Park crop house.
5 You made a no-comment interview as was your right. You conducted a contested committal. Again that was your right. You were committed to stand trial and the trial was listed on Monday of last week being the 20 May. You were arraigned last week before me when I took the matter out of the reserve list on 21 May. You pleaded not guilty to these two charges as well as to the alternative charge of possession of ephedrine which existed as an alternative on the trial indictment. Application was made to exclude the evidence of the search. Four prosecution witnesses were called on that application. I ruled against you on Thursday of last week and adjourned the case for trial and jury empanelment to Monday of this week being 27 May. I came onto the Bench on Monday and was told that the matter had settled and so it was the plea indictment was filed over and you were arraigned. It is a very late plea though but I suppose occasionally some are even later still.
6 I have only very briefly summarised the factual statement. I sentence in accordance with the full agreed factual statement.
In Mitigation
7 Your counsel, Mr Farrington had prepared some written submissions on the plea which were marked as Exhibit 1. He retreated from the submission that he made as to parity of sentence in relation to your cousin.
8 He took me to your background. He tendered some course certificates relating to completed prison courses, a copy of your degree, written references from your mother and other relatives as well as from your partner. There were some clean drug screens and also a document setting out your prison work contract.
9 He made submissions as to the objective seriousness of the offending and your role. In addition he relied upon:
· Your guilty plea;
· Your age and the absence of any particularly relevant serious criminal history and the fact that you had spent already a sizeable period in prison and to good effect;
· He argued that you had good or strong prospects of rehabilitation.
10 Mr Farrington conceded the inevitability of a prison sentence and one requiring the fixing of a non-parole period.
Prosecution
11 Ms Pillai who appeared on behalf of the Director of Public Prosecutions made some brief submissions. She took me to some matters of principle arguing that there was a high level of objective seriousness here with no version other than your account offered up by way of instructions to Mr Farrington. There was nothing to suggest you were operating at a low or menial level or for small reward. She argued that you were caught red handed with the drugs and it was significantly over the commercial quantity threshold. Quantity was an important consideration in what was after all a quantitative-based regime. She argued that there was the need to pay strong regard to general deterrence, punishment and denunciation. She took me to some of the utterances of the Court of Appeal in the case of Gregory. The Director of Public Prosecution through Ms Pillai called for an immediate term with a non-parole period, something which of course was conceded to be inevitable by your own counsel.
Background
12 I want to turn briefly to your background. Your background was more than adequately set out in the written outline and in the oral submissions made by your counsel and again I think there is little use in me restating it all now. You know what your own background is and I have no reason not to accept the background placed before me and I do accept it. You are 28 years of age born in Melbourne in October 1990. Your parents separated when you were three and you and your sister were raised by your mother. Your father had serious issues with alcohol, violence and gambling and you had very little to do with him. You very briefly reconnected with him when he returned to this country from the United States when you were a young teenager but he then died of cancer very soon after that arrival back into this country. So there was a pretty large gap in your life both before and after his death with no meaningful relationship with your father. It seems clear though that you have a loving mother and a strong supportive extended family. You finished Year 12 and then completed a Bachelor of Business at RMIT in 2012. You worked in an administrative capacity at Overseas and Air Cargo Services for a couple of years and then for your uncle in a commercial laundry for three years. You have had serious issues with drugs; cannabis then cocaine, ice and ecstasy. That is not relied upon in any mitigatory fashion in this case.
13 You had incurred some sizeable and unwise debts involving an expensive car amongst other things. You were not working at the time of the offences and the family had been grappling since 2016 with your mother’s breast cancer diagnosis and then treatment for that illness.
You have been in custody now for 501 days.
14 You have done courses in prison and you have worked there as well. You are currently employed in prison. You have remained drug free, it would seem, whilst in custody. It seems to me at least sitting up here that you have probably done as much as you can to improve your position in the time that you have been held in custody.
15 You have a criminal history of no real significance to my task. Though undoubtedly the affray must have been a serious event, it is an altogether different type of crime and so too the assault and injury charges. The offence of trafficking in a commercial quantity of drugs represents a very large escalation in offending.
Guilty plea
16 I turn then to some of the other matters raised in mitigation. You have pleaded guilty and I take that into account. It is a very late plea. Still, you have facilitated the course of justice and have at last taken responsibility for your crimes. The community has been saved some of the time, cost and effort associated with a full-blown trial. There is a utilitarian benefit in pleading guilty even as late as you have pleaded but obviously the benefits are not as large as they would have been had you, for instance, pleaded guilty at the earliest stage. That stance would not have produced a committal or the calling of witnesses in the Magistrates' Court or even up in this Court. Still there have been at least some savings brought about by your guilty plea. So, I take into account your guilty plea in the ways urged upon me by your counsel.
Remorse
17 Often enough a guilty plea is indicative of some remorse. That is not always the position and Mr Farrington sensibly did not rely upon the suggestions of remorse as contained in the written references. It is impossible to suggest any great remorse here. You had after all pleaded not guilty last week. You sought to exclude all of the evidence in support of the prosecution levelled against you. That application failed and you then pleaded guilty no doubt in recognition of the significant practical difficulties in running the matter to trial given the strength of the evidence. In the circumstances I do not detect any remorse here. Nor does your counsel suggest there is any. He made plain that he was not relying upon the existence of any remorse in this case.
Rehabilitation
18 As to your prospects of rehabilitation, Mr Farrington suggested they were good or strong. He used each word interchangeably. You are still quite a young man with a limited criminal history and a decent enough employment record behind you. A job awaits you with your uncle. You must be intelligent enough given your level of education. You have very strong family support and you have been doing what you can in custody to improve yourself and keep yourself occupied as well. You have been held in custody now for over 500 days and doing everything you can really to improve yourself there, with the courses and work. Your involvement in this serious crime is still something of a mystery to me. I am sure you had the desire to make some significant financial gain. I am satisfied of that beyond reasonable doubt. But why? Why such a departure? Maybe there was some lack of stability and maybe even some financial strain in the home setting. It is impossible for me to know. It is hard to know what prompted the decision to commit a crime as serious as the first charge on the indictment but the fact is you chose to commit it. You also chose to commit the crime involving the cannabis plants and that is no minor crime, I can tell you. You have had over 500 days to reflect on these very bad choices. That time in custody will surely have served at least some deterrent effect already. So too the sentence that I will soon impose.
19 I do find then that you have good or strong prospects of rehabilitation. It will obviously be conditional upon your desisting from any future use of illegal drugs. From your progress in custody and the existence of strong family supports and employment upon your release, it seems likely to me you will be able to so desist in drug use and it is for those reasons really that I hold these favourable views as to your rehabilitation in the future.
The Offences
20 As to the offences themselves, your counsel conceded that this was serious offending especially the trafficking. You have made the choice to offend and the commercial quantity is well and truly exceeded here. He placed before me your instructions that you were just holding the drugs for someone else for a small or modest reward. I questioned him as to the evidentiary basis for that submission. Of course there was none. I conveyed then, as I thought it was my duty to, my provisional view as to my non acceptance of your instructions and I enquired of him but he told me that you would not be called on the issue. It follows them that your account is entirely untested. It also by the way just flies in the face of common sense. You were no silly teenager. You were a highly educated man of some real intelligence committing what you must have known to be an unmistakably serious crime.
21 I do not accept your account in the circumstances. I am just not satisfied on the balance of probabilities that your role was as described to me. There is no reason for me to think you were involved in such a limited fashion at all or for such a small reward. I will say a little about the ramifications of the rejection of your instructions in a short moment.
Purposes
22 I have to consider a number of purposes of sentencing and they are not limited only to considering your prospects of rehabilitation. I do pay regard to your prospects as rehabilitation is after all one of the purposes of sentencing that I am duty bound to consider, one that is often enough overlooked in the popular media. However as positive as your prospects are, and I think they are, that is only one of the purposes I have to consider.
23 There are other sentencing purposes which I clearly must give weight to. I am required to punish you and to do that justly and proportionately. Well, of course that is an important sentencing purpose here for this style of crime. I must also denounce your conduct. Again that is plainly an important matter.
24 I must pay due weight to deterrence. There is the need for this court to seek to deter you, but not just you, also others from offending in the future. I must give the principle of specific deterrence, that is deterring you, at least some weight in my sentencing task, given the very serious nature of the crime. That is so despite the limited criminal history. I must obviously also give some weight to community protection. However I believe I can moderate the weight to be given to specific deterrence and community protection owing to my favourable views as to your future prospects. There has already been to some extent a level of specific deterrence achieved and I sense that you do have good prospects upon your release and hence a relatively low likelihood of ever offending in this way again. It stands to reason then that I should moderate those two purposes. Specific deterrence and community protection would obviously be given far greater weight if you had a serious relevant criminal history or less favourable rehabilitative prospects into the future. But that is not the situation that I am dealing with at all.
25 General deterrence though stands in a very different position. It is a very important purpose of sentencing in this sort of case as your counsel correctly concedes.
26 Illegal drugs have had a devastating impact on our community. They cause untold misery to the many who use them and to the families of those who use them. They destroy lives. Those who make the decision to traffick in drugs as you did really should expect little by way of leniency. People who take that step are almost always taking a calculated risk as you undoubtedly were. They hope that the potential rewards will justify that risk and of course they hope not to be caught. The Courts must convey the message through the sentences imposed that the risk should not be taken on. Take that step at your peril for if you do and are caught, you will likely be subjected to a life-altering sentence. The seriousness with which Parliament regards drug trafficking can be gleaned from the massive maximum penalties in play in this area. We, as Judges, must strive to deter future likeminded offenders from committing these very serious offences.
27 I must pay regard to current sentencing practices though it is not a single controlling factor. It never has been actually.
28 I have looked at the relevant portions of the Judicial College of Victoria sentencing manual (see Judicial College of Victoria overview and summaries dealing with this offence, 33.13.3.1&2).
29 The case of Gregory [2017] VSCA 151, I have also looked at, and that was mentioned by the prosecutor. It refers to a large number of other sentences passed for commercial trafficking. It also refers to many matters of principle and they are far more important actually. There was also the Sentencing Advisory Council snapshot No.219 of 2018 dealing with this offence, disclosing, amongst other things, that the most common prison sentence in the period covered by that data was between four to less than five years. Mr Farrington took me to the average period of imprisonment disclosed in that material being for a lesser duration. Of course that is true.
30 In that case of Gregory, the Court of Appeal in this State concluded that the current sentencing practices for serious examples of commercial quantity trafficking were inadequate. Immediately then, there has to be some caution in looking at sentences imposed prior to the decision in Gregory or data contained in the statistics. Plainly, it can be gleaned from Gregory and other cases, that the quantity is always a matter of real significance.
31 The Court of Appeal in that case of Gregory identified features which would lead to the expectation of sentences advancing well into double figures. See paragraph 98. One factor was if the quantity was close to the large commercial quantity. Another was a finding that a person had a senior role, or role in charge, or lengthy duration of offending, or a person having relevant prior convictions or, for that matter, running a trial and being found guilty. There were a variety of matters which the Court of Appeal said would lead to far greater sentences being imposed in the future in serious examples of the crime. Now they were focussing on upper category offences and there have been enough decisions since in that same Court questioning the worth or value of breaking down offences into categories and subcategories. What is far more important is to actually examine the conduct. The eight-and-a-half-year term imposed upon Gregory for commercial quantity trafficking was not disturbed. The Court of Appeal went on to say that had they not been constrained as they then incorrectly thought they were by current sentencing practice, a sentence of 13 to 15 years would have been in the range on a guilty plea in that case. They were very high numbers indeed and signalled clearly a very different range into the future for some commercial quantity traffickers when being sentenced.
32 At the end of the day though, I am exercising a sentencing discretion. I am not here to sentence by numbers or by statistical pattern. I am sentencing you for your crimes and that is not a mathematical task. So the reference to the statistics be it average or median sentences or most common sentences, well they are statistical terms. They do not actually inform my task in the sense that they do not provide the appropriate sentence in this case. That is your case. Nor do other sentences imposed upon other offenders operate in some manner as precedents.
Offence gravity and role
33 As I have said, there has been from time to time some criticism of the practice of applying adjectives to describe where the particular offending sits on the spectrum of offence seriousness. See for instance Weybury.
34 However I do, as a Judge, have to make a judgement as to the gravity of your offending. Now, here, the weight of the drug is a fixed matter. It is undoubtedly an important consideration but by no means the only or even the most important matter. I do not let the quantity of drugs swamp other considerations but plainly it is important here. The fact is you had over four times the commercial quantity. 455 grams pure with a pure large commercial quantity threshold fixed at 750 grams. So you are right up there in quantity and this is a quantitative-based regime. I am not concerned or to be concerned with the harmfulness of given drugs. It is a quantitative-based regime. Duration is what it is; on that day, on the 16th January 2018, you were trafficking in a commercial quantity of this drug as you were on that day in possession for sale. It is clear that you do not stand to be sentenced for events before that date. If there had been earlier transactions embraced by a between dates charge that would probably be a feature of some aggravation but it is not mitigatory that you are in possession for sale on the day of arrest. You stand to be sentenced for the trafficking on that date. That is very often the case when a drug is seized. Now, sometimes there is a duration of offending alleged. In some cases, there can be material that may cast some light on an offender's role. There might for instance be material by way of physical or electronic surveillance or telephone intercepts or listening devices. There might be a documentary trail or even evidence from an insider spelling out the extent of the role, or maybe even a covert purchase by a police undercover operative. Or even an account as to role offered by an accused to the police, or to a psychologist or to the court through instructions to counsel or by way of sworn evidence given before the Court. Well, here, what I have is silence. Silence broken only by your untested instructions provided to your counsel. An account which I queried at the time and which your counsel elected not to place before me by way of sworn evidence led from you.
35 As I have said already, I am not satisfied on the balance of probabilities of your account. Of holding the drugs for an unnamed person for some undisclosed small reward. So just holding the drugs for another. I reject that account. Even if true by the way, it would not make it a minor crime by a minor player. People higher up in a hierarchy have a way of safeguarding their own position by using loyal underlings who would insulate the superior from detection and prosecution. But I am not satisfied on the balance of probabilities that your account is the true position at all. I reject your account. I have no reason at all to accept your account of being some minor player holding the drugs for another for a modest or small reward. As I say, I entirely reject that account. Financial gain undoubtedly was the driving force here. It always is.
36 A court always endeavours to understand the role of an accused, but sometimes the court is simply not able to identify the precise role. That is actually quite common in drug prosecutions and it is the end position here for me.
37 But my inability to reach a view as to your role does not then somehow compel me to accept on the balance of probabilities your counsel’s submissions as to your role. As I have said, I am not satisfied on the balance of probabilities of your instructions. I reject your account. But in rejecting your account, I am not then going to imagine and then assemble around you some structure and hierarchy such as disclosed in Gregory and then place you at the top of the tree. That would be no more than pure speculation. As is often enough the position in this sort of case, I will never know the full details of your involvement. Quite simply, you will not tell me and there is no material as there sometimes is filling in any of the gaps here. What I do know is that on the day in question you and you alone possessed these drugs for sale. There is no evidence before me disclosing the involvement of any other person at all.
38 There is certainly no great reduction in your culpability here. You knew what you were doing. You may have been in debt, it seems clear that you were, but many people are and they do not turn to commit serious crime, thank heavens. You have no particularly relevant prior matters and you have pleaded guilty although at a very late stage. You are still quite young, you have family support and I believe you have favourable prospects into the future.
39 My judgement is that notwithstanding the high quantity of drug in this case, you are a very long way removed from the level of offence seriousness spoken of in Gregory where the court was dealing with a between dates charge with evidence of significant past trafficking, enrichment, high profit, a highly organised business structure with intimidation, violence and interstate movement of drugs.
40 Make no mistake, given the amount of ephedrine well exceeding the commercial quantity, your offending was still serious indeed with a 25 year maximum penalty in play. The possession of cannabis, I have scarcely mentioned and that is because it is overshadowed by the trafficking. It is obviously far less serious but it is still serious enough. You possessed 38 plants in your garage. Again I just do not accept your account by way of instructions and again I will never have a true understanding of your role, or for that matter, the role of others, of how and why you came to be in possession of the plants. It seems pretty plain that there was a need to shift plants out of the crop house in Apsley Court given the police interest. Those premises had been rented by your cousin. You and your cousin were in the hire truck hired by your mother. I cannot speculate as to your having any role in the crop house or even in the cultivation of those plants. The fact is you possessed the plants in your garage and plainly you fall into the higher penalty provision given the number and size of those plants. It is conceded by your counsel that you cannot satisfy the Court on the balance of probabilities that the possession was not committed for any purpose related to trafficking. What I cannot do then is flip that around and then say of those plants that therefore you possessed them for sale, for if I did that, I would be sentencing you for trafficking, not for possession. I simply find that, as is conceded, the lower penalty provision does not apply, the higher one does and I go no further in terms of any finding of a feature of aggravation in relation to purpose. See the cases of R v Wylie [1989] VR 21, Morgan [2016] VSCA 143, paragraph [48], and also Doble [2007] VSCA 47.
Parity submission abandoned
41 Your mother was discharged at committal. Perhaps fortunately so given her hiring of the truck and the end destination of the plants. Your cousin who was arrested in the truck was dealt with for attempting to cultivate cannabis at the Apsley Court, Mill Park address so he was only sentenced for that attempt and the four small seedlings found in the truck. He also may have been fortunate for, it seems to me, as attempted cultivations go, it was pretty successful!
42 I was told of the disposition in his case but that disposition, a community corrections order, really says nothing at all about the sentence required on Charge 2 in your case. There is no true or real issue of parity here at all as your counsel conceded. You have different charges for a start, covering different factual settings. You admit and fall to be sentenced for your possession of those 38 plants. He did not.
43 As to the weapons, well, they were scarcely mentioned at all and of course they are the least of your problems which would explain why they were not. They pale into insignificance when measured against the gravity of the trafficking offence.
44 I take into account all of the submissions made by your counsel. I also take into account all of the written material tendered on the plea. I have read again all of the written material including the personal references. I take them into account. I do not see the need to descend further into those impressive personal references from your various family members, aunties and your sister and partner and mother and uncle. I have already spoken of the importance of family support and my favourable views as to your rehabilitation. Those references obviously have a role to play in that positive finding. They also convince me, having read them, that you have a number of qualities and you are obviously far more than just the person who has committed these serious crimes.
45 Prison is always a disposition of last resort. Your counsel conceded the inevitability of a prison sentence and one of a dimension requiring the fixing of a non-parole period. He was quite right to make that concession. It was obvious. As to the non-parole period, I have to proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the possibility of release on parole, even though of course I am required by law in this case to fix a non-parole period. The Adult Parole Board will make that decision as to whether you can be released. It has nothing to do with me. It will be between you and them.
Totality
46 I take into account the principle of totality of sentence.
47 I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Your overall criminality here was very high. I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you.
48 I believe that there can be very substantial concurrency in this case given the timing of the offending. It all occurred really on that single day.
Ancillary orders 464 ZF and Disposal
49 There are a couple of orders and I will deal with the ancillary orders now.
Disposal
50 The first of these is a disposal order. There is no issue taken with either of these ancillary orders. I am satisfied it is appropriate to make the disposal order under the provisions of s.78 of the Confiscation Act. I am satisfied that you, upon conviction for the offence of trafficking and the other offences before me, I am satisfied that the property referred to is appropriate to be the subject of this order. I order pursuant to s.78(1) of the Confiscation Act the forfeiture to the State of the property and is to be dealt with in the manner contemplated by the order.
464ZF
51 The second order is a 464ZF application for a forensic procedure to obtain a forensic sample. It is to get your DNA. There is no opposition to the making of that order. I am satisfied it should be made. I order that pursuant to the provisions of s.464ZF(2) of the Crimes Act, you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database.
52 I regard it as appropriate to make this order. I am satisfied it is appropriate to do so owing to the seriousness of the offending, the existence of the prior convictions or appearances, the fact that the order is unopposed and that I judge it to be in the public interest.
53 Now, what I am dealing with here, Mr Duong, the authorities will approach you to run a mouth swab, a swab around the inside of your mouth. It is not an invasive process. They can be use reasonable force to do that. I have to tell you that. But it should not be an issue and what I have not done is I have not authorised a blood sample. I have crossed that out. I only authorise the least invasive procedure which is the mouth swab.
54 Obviously, if that presented any difficulties, the authorities will be back before me applying for a blood sample but there is no reason to expect that there would be any problem. You will be run the swab around your mouth, you will have that sample taken. It will not be a difficult business.
55 Having made those orders, I will have you stand up now and I will then pronounce sentence upon you.
Sentence
56 On Charge 1, that is trafficking in a commercial quantity of ephedrine, I convict and sentence you to 4 ½ years' imprisonment.
57 On Charge 2, possession of cannabis, you are convicted and sentenced to 10 months imprisonment.
Summary offence
58 On the related summary offence of possession of a prohibited weapon, I convict and sentence you to 1 day's imprisonment.
59 The 54 months sentence, that is 4 ½ years' imprisonment on Charge 1, is the base sentence.
Cumulation
60 I direct then that 2 months of the sentence imposed on Charge 2 is to be served cumulatively, that is on top of that base sentence. The other prison term will be served concurrently upon the base and part concurrent sentence.
TES
61 So what that produces is a total effective sentence of 56 months or 4 years and 8 months' imprisonment
Non-parole period
62 I fix a period of 2 years and 4 months during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
63 You have already served 501 days by way of pre-sentence detention and of course you will get credit for that. You have already served that portion of the sentence and that declaration is to be entered into the records of the court.
Section 6AAA
64 I have taken into account your guilty plea. If you had pleaded not guilty and been found guilty of these offences by a jury, I would have sentenced you to 6 years' imprisonment and I would have fixed a non-parole period of 4 years in those circumstances. So that is also to be entered into the records of the court.
65 Just have a seat then for a moment and I will see if there is anything else I need to do. Are there any other matters I need to deal with?
66 MS SPENCE: No, Your Honour.
67 HIS HONOUR: No?
68 MS MILIDES: No, Your Honour. Thank you.
69 HIS HONOUR: All right. And, well, there is no - I would not have thought that there is any need for me to be making any sort of custody management directions. Your client has been tucked away for a significant period of time and is doing well in custody, Ms Milides.
70 MS MILIDES: Yes, Your Honour. Thank you.
71 HIS HONOUR: You will go down and see him downstairs, will you?
72 MS MILIDES: Yes, immediately. Thank you, Your Honour.
73 HIS HONOUR: Yes. All right. All right. All right, well, look, Mr Duong, I have passed that sentence. I have made allowance for a very decent gap between the head sentence and the non-parole period. It will be for you to make application for parole of course and up to the Adult Parole Board as to whether they grant your parole, but I will make available to the Adult Parole Board my reasons which will spell out why I have done what I have done and, in those reasons, of course the Adult Parole Board will see the judgments that I have made about your favourable prospects of rehabilitation.
74 So, in any event, that is as far as we need to go at this stage. I have concluded the task and I will have you removed in a moment. Ms Milides is going to come downstairs and have a chat with you, all right?
75 OFFENDER: Yes, Your Honour.
76 HIS HONOUR: Yes, all right. So, Mr Duong can be removed. Thank you.
77 MS MILIDES: As Your Honour pleases.
78 HIS HONOUR: All right. I will sign those formal orders in chambers. I have got some appeals listed at 10.30. I will stand down and come back on the Bench at 10.30. Thank you.
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