Director of Public Prosecutions v Duong, to Lam
[2012] VCC 1509
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00579
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TO LAM DUONG |
---
JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September | |
DATE OF SENTENCE: | 28 September 2012 | |
CASE MAY BE CITED AS: | DPP v Duong, To Lam | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1509 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr H. Thomas | Office of Public Prosecutions |
| For the Accused | Mr N. Leslie | Haines & Polites |
HER HONOUR:
1 To Lam Duong, you have pleaded guilty before me to two charges of trafficking in a drug of dependence. The maximum penalty for that offence is 15 years imprisonment. You also pleaded guilty to one charge of possessing a drug of dependence, being cannabis L, and one charge of possessing buprenorphine, and I am satisfied that those substances were not in any way connected with the purpose of trafficking. Therefore, the maximum penalty for those offences is not more than 30 penalty units or one year's imprisonment.
2 The facts of the matter were opened by the prosecutor and a summary of the facts was tendered as Exhibit A on the plea. The facts are as follows.
3 You were arrested as a result of an investigation into trafficking heroin and amphetamine in the Braybrook area and surrounding suburbs. The investigation revealed that you were an associate of Bao Quoc Tran and supplied him with heroin. He sold heroin and methylamphetamine during the period of the investigation to a covert operative, CO270, on eight separate occasions.
4
On 21 June 2011, after handing $18,000 to your co-accused, Bao Quoc Tran, who was in a vehicle driven by another co-accused Alan Nguyen, covert operative 270 followed them to your address or just near your address at 28 Euroa Avenue, Sunshine North. Bao Quoc entered your premises and returned 50 minutes later to an address in Furlong Road, Sunshine, where he handed to covert operative 270 21 grams of heroin and 28 grams of methylamphetamine. Bac Quoc Tran and Mr Nguyen were arrested and on that same day, 21 June, a search warrant was executed at your address, amongst other houses. Cash of $330 and $1915 was located in your premises, together with 57.1 grams of methylamphetamine with a purity of
80-90 per cent, and 30 grams of heroin with a purity of 14-16 per cent. They also located 2.9 grams of buprenorphine and 29.4 grams of cannabis.
5 You were arrested and interviewed. You admitted to agreeing to supply Bao Quoc Tran with an ounce of heroin on the following day, and having helped him to get drugs in the past. You stated that the buprenorphine was for your own use. The results of the investigation showed that you were clearly associated with Mr Tran and had assisted him, but it is conceded that you are of a lesser standing in the hierarchy of this syndicate in which Mr Tran operated.
6 You pleaded guilty after a committal hearing and you are entitled to a substantial discount for that early plea, and you will receive one.
7 Following your arrest, you spent 44 days in custody before obtaining bail. You then returned to your home.
8 Your personal circumstances are that you are married with two very young children, aged 14 months and four months respectively. Your wife was in court to support you and is indeed here again today.
9 You are now 45, and I note that this will be the first time you will be sentenced to a term of imprisonment. You were born in Vietnam and escaped to Thailand with a brother. You were later sponsored to this country by an uncle in 1987. Your early life in Australia was promising. You exhibited a will to work almost immediately. You began with fruit picking, then obtained a position at the Toyota factory in Altona. You eventually lost that position due to some dispute between rival groups in the factory workforce. You then obtained employment in a shoe factory and you were extremely hardworking and managed to sponsor both your parents, a sister and a brother to Australia.
10 You then began to work as an ironer for people who worked in the piecework clothing industry and you established your own business in that industry, and involved your family members who had come to this country. However, your business could not sustain the pressure of cheap Chinese imports and it eventually failed.
11 You then developed cancer and other health problems which led you to remaining unemployed. In that period, you began frequenting cafés, and in 2005 you began using heroin.
12 You have had a number of prior court appearances from the 1990s. They cover a range of offences, from possessing cannabis, to dishonesty offences and two appearances for intentionally or recklessly causing injury. Then, in 2005, you were convicted at the Sunshine Magistrates' Court of two charges of trafficking heroin, together with other matters. You were placed on a Community-based Order. You then have a series of appearances for possession and use of drugs, involving heroin, ecstasy, amphetamine, cannabis and prescription drugs. You also had some driving offences and on 5 March 2010, you were dealt with for those various matters, together with some breaches of previous orders, and you received an Intensive Corrections Order.
13 You have, for some years, however, done whatever work became available and have worked mainly as a delivery driver, usually working about 30 hours a week and earning somewhere around $600.
14 You have not offended since your arrest last year, and you have also significantly reduced your drug use. Although I do not have any medical evidence to that effect, you are, as I understand, on a Suboxone program under a doctor in Footscray and you are currently on a dose of 4 mL per day. This is a result of your own efforts at rehabilitation since you were arrested.
15 Your counsel submitted also that you received no substantial financial gain from your involvement in the trafficking, and it was in the context of you being a long term user.
16 As a man of 45, you still have a long life ahead of you and you have two small children dependent on you for some sort of future. It is clear that you have come from a difficult background of immigration, that you have made efforts to build a life here and must now clearly start again with a young family to support when you are released from prison. It is very hopeful for your future that you have worked at your rehabilitation and have done so of your own accord. Hopefully, on your release, you will continue on that path and prioritise the good parts of your life and your family.
17 I also take into account, as I indicated, your plea of guilty and the other mitigating factors put by your counsel on your behalf. I take into account also the other matters which are relevant to the sentence I am to impose on you today. That is, the need to deter other members of the community from engaging in trafficking in drugs. This is very important in any sentencing decision in matters of this nature, as the trafficking of drugs is rife in our community. Others must understand that there are serious consequences which flow from activity such as yours.
18 I must also consider the need to deter you specifically from offending. I note that you have been subject to that severe addiction to heroin and that you are now on the road to recovery. It is to be hoped that the time you must spend in prison will strengthen your resolve and deter you from any further involvement in drug use and trafficking.
19 I am also required to denounce your conduct on behalf of the community and I do so. The community in which you live will not condone, in any way, those who sell drugs into its midst, drugs which go towards destroying the lives of those who succumb to its use and the live of those around them, in particular their families and children. Finally, I am required to impose just punishment in all the circumstances.
20 Having carefully consider all of the matters that I have referred to, I have reached the obvious conclusion that the only appropriate sentence is a term of imprisonment. I have also considered parity - that is, that like offending should receive like punishment - and I have taken into account the sentences imposed on Bao Quoc Tran and Van Hoa Tran, together with their roles in the syndicates and their prior history.
21 On Charge 1, you are convicted and sentenced to 18 months imprisonment.
22 On Charge 2, you are convicted and sentenced to 18 months imprisonment.
23 I order that two months of the sentence imposed in relation to Charge 2 be served cumulatively on the sentence imposed on Charge 1. That, on my estimation, is a total effective sentence of 20 months imprisonment. I order that you serve ten months of that sentence before being eligible for parole.
24 I direct that 45 days pre-sentence detention be deemed time served, and that that be reflected in the records of the court.
25 In relation to Charges 3 and 4, you are convicted and fined an aggregate fine of $350, and you will receive a stay in relation to that.
26
But for your plea of guilty, I declare that I would have sentenced you to
32 months imprisonment with 18 months to serve.
27 I have also been asked to make forfeiture orders. They have been requested by the prosecution and I make them. I was informed yesterday they are by consent. That is, forfeiture of the cash seized.
28 I also make a s.464ZF2 order. That is, that you undergo a forensic procedure for the taking of a scraping from your mouth. I am satisfied in all of those circumstances, that the making of the order is justified, due to the seriousness of the circumstances of the offending, your prior convictions, the order is by consent or not opposed, and the granting of the order is in the public interest. Mr Duong, if at the time of a request for the taking of the sample, you do not give you consent, an authorised member of the police force may use reasonable force to enable that procedure to be conducted.
29 Finally, I have been asked to make disposal orders, and I do so. They are also by consent. I make the disposal orders which have been handed to me, which relate to drugs and items seized pursuant to warrant, as they are listed in the schedule. Thank you.
- - -
0
1
0