Director of Public Prosecutions v Eric Nguyen

[2020] VCC 952

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CR-19-02143
Indictment No. J11948572.1

Case No. CR-19-02156
Indictment No. K10760081

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC NGUYEN

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JUDGE:	HIS HONOUR JUDGE PARRISH
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	30 April 2020, 24 June 2020 and 9 July 2020
DATE OF SENTENCE:	16 July 2020
CASE MAY BE CITED AS:	Director of Public Prosecutions v Eric Nguyen
MEDIUM NEUTRAL CITATION:	[2020] VCC 952

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence - Indictment No. J11948572.1 – one charge of theft; one charge of trafficking in a drug of dependence – large commercial quantity; two charges of trafficking in a drug of dependence; one charge of possessing an unregistered General Category Handgun; one charge of possession of a drug of dependence; two uplifted summary charges – one charge of possession of a prohibited weapon without an exception (a Taser); and one charge of dealing with property, namely cash, suspected of being the proceeds of crime – pleas of guilty

Sentence - Indictment No. K10760081 – one charge of trafficking in a drug of dependence; two charges of trafficking in a drug of dependence in a quantity that was not less than the commercial quantity applicable to the drug of dependence; two uplifted summary charges – one charge of dealing with property suspected of being the proceeds of crime; one charge of committing an indictable offence whilst on bail – pleas of guilty. 

Legislation Cited:     Crimes Act 1958, s74, s195; Drugs, Poisons and Controlled Substances Act 1981, s71, s71AC, s74 and s71AA; Firearms Act 1996, s7B; Criminal Procedure Act 2009, s145; Control of Weapons Act 1990, s5AA, s8C; Bail Act 1977, s30B; Sentencing Act 1991

Cases Cited:Director of Public Prosecutions v Quay [2019] VCC 1158; Phillips v R [2012] VSCA 140; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Brown [2018] VSC 742; Brown v R [2019] VSCA 286; Trajkovski v R [2011] 32 VR 587; Charles v R (2011) 34 VR 41; Muldrock v R (2011) 244 CLR 120; R v Piercey [1971] VR 647; Moran & Byrnes v R (1987) 31 A Crim R 248; Lugo (A Pseudonym) v R [2020] VSCA 75; Nguyen v R [2020] VSCA 76; Taumoefolau v R [2015] VSCA 221; Cvetanovski v R [2015] VSCA 65; Kapkidis v R [2013] VSCA 35; Thanh Tung Nguyen v R [2011] VSCA 139; Director of Public Prosecutions (DPP) v Bales [2015] VSCA 261

Sentence:                 Total effective sentence over both Indictments of 16 years imprisonment with non-parole period of 10 years; 558 days of pre-sentence detention declared as a period of time already served under this sentence; various ancillary orders; 6AAA declaration – 21 years imprisonment with a non-parole period of 15 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D Porceddu	Solicitor for the Office of Public Prosecutions
For the Offender	Mr M McGrath with Mr W Blake	James Dowsley & Associates

HIS HONOUR:

1       Eric Nguyen, on 30 April 2020, you pleaded guilty to the following offences:

(a)    On Indictment J11948572.1

Charge 1 –

That you, at Caroline Springs in Victoria between 25 September 2017 and 25 July 2018, stole electricity belonging to Powercor Australia Ltd and valued at $36,086.19.

Theft is contrary to s.74 of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.

The Court was informed in relation to this charge that the matter resolved to a plea with a single date – that being 25 July 2018.  However, it was accepted that the theft commenced on some day prior to that date.

Charge 2 –

That you, at Melbourne in Victoria between 30 May 2018 and 25 July 2018, trafficked in a drug of dependence, namely methylamphetamine, in a quantity that was not less than a large commercial quantity applicable to that drug of dependence.

Trafficking in a drug of dependence – large commercial quantity – methylamphetamine – is contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of life imprisonment.

This charge is also subject to the Standard Sentencing Scheme which was introduced by the Sentencing Amendment (Sentencing Standards) Act 2017. That Act introduced standard sentences for fourteen serious offences committed on after 1 February 2018. Trafficking in a large commercial quantity of a drug of dependence – methylamphetamine – is one such offence.

Section 71(2) of the Drugs, Poisons and Controlled Substances Act 1981 provides that the standard sentence of imprisonment for the charge of trafficking in a large commercial quantity of a drug of dependence is sixteen years.

Charge 3 –

That you, at Melbourne in Victoria between 2 June 2018 and 25 July 2018, trafficked in a drug of dependence, namely 3,4-methylenedioxy-N-methylamphetamine (“MDMA”).

Trafficking in a drug of dependence is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 15 years’ imprisonment.

Charge 4 –

That you, at Caroline Springs in Victoria between 21 June 2018 and 25 July 2018, trafficked in a drug of dependence, namely cannabis.

Trafficking in a drug of dependence is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 15 years’ imprisonment.

Charge 5

That you, at Caroline Springs in Victoria on 25 July 2018, possessed an unregistered General Category Handgun.

Possessing an unregistered General Category Handgun is contrary to s.7B of the Firearms Act 1996 and carries a maximum penalty of 600 penalty units or seven years’ imprisonment.

Charge 6 –

That you, at Caroline Springs in Victoria on 25 July 2018, possessed a drug of dependence, namely, 1,4-Butanediol.

Possession of a drug of dependence is contrary to s.73 of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of five years’ imprisonment;

(b)the following summary charges were transferred to this Court pursuant to s.145 of the Criminal Procedure Act 2009. On 30 April 2020, you also pleaded guilty to such summary offences:

Summary Offence 8 –

That you, at Caroline Springs in Victoria on 25 July 2018, did possess a prohibited weapon without an exception under s.88 or an approval under s.8C of the Control of Weapons Act 1990, namely a Taser.

Such offence is contrary to s.5AA of the Control of Weapons Act 1990 and carries a maximum penalty of 240 penalty units or imprisonment up to two years.

Summary Charge 13 –

That you, at Caroline Springs in Victoria on 25 July 2018, did deal with property, namely $11,130 cash, suspected of being the proceeds of crime.

Such offence is contrary to s.195 of the Crimes Act 1958 and carries a maximum penalty of two years’ imprisonment.

(c)on Indictment No. K10760081

Charge 1 –

That you, at Albion in Victoria on 24 March 2019, trafficked in a drug of dependence, namely MDMA.

Trafficking in a drug of dependence is contrary to s.71AC of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 15 years’ imprisonment.

Charge 2 –

That you, at Albion in Victoria on 24 March 2019, trafficked in a drug of dependence, namely methylamphetamine, in a quantity that was not less than the commercial quantity applicable to that drug of dependence.

Trafficking in a drug of dependence in a commercial quantity – methylamphetamine – is contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 25 years’ imprisonment.

Charge 3 –

That you, at Caroline Springs in Victoria on 24 March 2019, trafficked in a drug of dependence, namely methylamphetamine, in a quantity that was not less than the commercial quantity applicable to that drug of dependence.

Trafficking in a drug of dependence in a commercial quantity – methylamphetamine – is contrary to s.71AA of the Drugs, Poisons and Controlled Substances Act 1981 and carries a maximum penalty of 25 years’ imprisonment;

(d)the following summary charges were transferred to this Court pursuant to s.145 of the Criminal Procedure Act 2009. On 30 April, you also pleaded guilty to such summary offences:

Summary Charge 4 –

That you at Albion in Victoria on 24 March 2019, did deal with property, namely $750 suspected of being the proceeds of crime.

Such offence is contrary to s.195 of the Crimes Act 1958 and carries a maximum penalty of two years’ imprisonment.

Summary Charge 6 –

That you, at Albion in Victoria on 24 March 2019, did commit an indictable offence traffic drug of dependence whilst on bail.

Such offence is contrary to s.30B of the Bail Act 1977 and carries a maximum penalty of 30 penalty units or three months’ imprisonment.

The circumstances of the offending

2       

During the plea hearing on 30 April 2020, counsel for the prosecution tendered two documents, both headed “Summary of Prosecution Opening for Plea” – the first document dealing with the six charges contained in Indictment No. J11948572.1 (and the two uplifted summary charges) and the second document dealing with the three charges contained in Indictment

No. K10760081 (and the two uplifted summary charges) (see Exhibits 1 and 4 respectively).

3       I was informed by your counsel that you agree with the contents of those documents.  In particular, I note the following:

·In May 2018, Victoria Police members attached to the Drug Task Force commenced an investigation code-named “Spanners”.  As a result of that investigation, police obtained a telecommunications warrant on 29 May 2018 which revealed you being involved in trafficking cannabis, MDMA and methylamphetamine.

·On 25 July 2018, officers of the Drug Task Force executed a warrant at your premises situated at 20 Streeton Avenue, Caroline Springs (“the premises”).

·Initially, 83 cannabis plants were located in the two rear bedrooms that were being cultivated hydroponically.  Heat lights and fans were in operation at the time the search warrant was executed. (Charge 4, traffic cannabis)

·An illegal bypass had been installed, allowing you to use electricity which bypassed the meter.  The theft of such electricity totalled $36,086,19. (Charge 1, theft)

·A further search of the property was conducted and the following items were seized:

(i)Three plastic zip lock bags containing white crystals located on the top of a workbench in the outside undercover area. (Charge 2 – trafficking in a  large commercial quantity of methylamphetamine);

(ii)Four plastic zip lock bags containing 116 green Ecstasy tablets with “Heineken” stamped on them located in a brown box in the undercover outdoor area. (Charge 3 – trafficking in a drug of dependence, MDMA);

(iii)Cash totalling $10,130 in a brown “Louis Vuitton” bag located on the loungeroom floor. (Summary Charge 13 – dealing with property suspected of being the proceeds of a crime);

(iv)A plastic zip lock bag containing approximately 79 grams of MSM (a common cutting agent for methylamphetamine);

(v)A silver-coloured Taser located on the master bedroom floor. (Summary charge 8 – possessing a prohibited weapon);

(vi)A black coloured “BB” handgun loaded at the time of the seizure, located under a cushion on a couch in the small loungeroom (Charge 5 – possessing an unregistered General Category handgun).  During the course of the plea, a photograph of the “BB” gun was tendered and marked as exhibit 3;

(vii)An “Alcatel” mobile phone located in the same brown “Louis Vuitton” bag on the lounge room floor;

(viii)An Apple iPhone located in the same “Louis Vuitton” brown bag;

(ix)An Apple iPhone 5S located in the left pocket of the jacket worn by you at the time of your arrest;

(x)A Samsung mobile phone, located in the same jacket pocket;

(xi)Cash totalling $1,000 located on the toilet floor (Part of summary charge 13, dealing with property suspected of being the proceeds of crime);

·        Members of the Victoria Police Clandestine Laboratory Unit attended and seized a further 66 items suspected to be used or associated with the manufacturing or refining of methylamphetamine.

·        You were arrested and taken to Melbourne West Police Station where a record of interview was conducted.  During the course of the record of interview, I note:

(i)    You stated that you rented the property and were the sole occupant. You explained to the officers that you had worked as a radiologist for 27 years until you were made redundant following some mental health issues, and this was when you started using cannabis and other drugs;

(ii)   In relation to cultivating cannabis, you stated that you were the user of cannabis and was growing the plants for personal use to help you deal with your depression.  You denied growing cannabis for sale;

(iii)     In relation to the three small zip lock bags of crystals, you stated they contained methylamphetamine and that they belonged to you and were for personal use.  You denied selling methylamphetamine;

(iv)     In relation to the green “Heineken” tablets, you stated that they were Ecstasy tablets and were for personal use.  You denied selling Ecstasy tablets;

(v)   In relation to the Taser, you stated that a friend had brought this around some time ago and had left it there;

(vi)     In relation to the “BB” gun, you stated that you had purchased this online for about $250 and used it to scare away birds in your backyard;

(vii)    In relation to the cash seized, you stated that you had been given a payout over a year ago of between $50,000 and $60,000 from your employer when you ceased working and that the seized cash was the remainder of such payout.  (The prosecution allege that the cash seized was derived from the sale of drugs of dependence);

(viii)   In relation to the liquids, containers and baking trays of crystals, you stated that you cleaned the methylamphetamine that you had purchased prior to using it and that the liquids and containers were part of that cleaning process. You stated that you keep the remnants of this cleaning process and add MSM to the baking trays underneath the television unit because you like the patterns that it makes.

·        Further investigations and analysis were undertaken, which revealed:

(a)         methylamphetamine

The combined weight of the methylamphetamine found at your premises was 1,253.1 grams, which is 1.67 times over the large commercial quantity, which is 750 grams, pursuant to Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981. Based on the statement of Detective Senior Constable Allpress, 1 kilogram of methylamphetamine usually sells between $80,000 to $130,000 (Charge 2);

(b)      MDMA (Charge 3)

Police seized a total of 116 MDMA tablets from your premises weighing 57.3 grams. Intercepted telephone calls also revealed that a further 350 tablets were trafficked by you. The trafficable quantity pursuant to Schedule 11 of the Drugs, Poisons and Controlled Substances Act 1981 is no less than 3 grams;

(c)          cannabis (Charge 4)

The cannabis seized by police from your premises ultimately weighed 4.7 kilograms.  Intercepted phone calls also revealed that between 21 June 2018 and 25 July 2018 you trafficked in cannabis, totalling 12.240 kilograms.

The combined weight of the cannabis totals in excess of 16 kilograms and based on the pricing of cannabis by Detective Senior Constable Allpress, such weight calculated at $2,000 per ounce puts the value of the cannabis at approximately $71,000;

(d)      1,4-Butanediol (Charge 6)

Police located 86.5 grams of 1,4-Butanediol at your premises.

4       You were remanded in custody from 25 July 2018 and then released on bail on 10 October 2018.  The Order concerning bail was tendered and marked as Eexhibit 2.  One of the conditions of the Bail Order was that you accept treatment from Amanda Brown and abide her lawful directions with respect to that treatment.  The period of remand was 78 days inclusive of 10 October 2018.

5       Counsel for the prosecution seek orders for the forfeiture of the cash totalling $11,130.00 (Summary Charge 13) and an order for restitution of $36,086.19, being the theft of the electricity (Charge 1).

6       I now turn to the second Summary of Prosecution Opening for Plea which deals with those matters on Indictment No. K10760081.  I note the following:

·        On Sunday, 24 March 2019, at approximately 1.20 am, you were driving a BMW hatchback when it was pulled over by police officers.

·        Observations of inside your vehicle revealed several mobile telephones, a shoulder bag and a blue container.

·        You were placed under arrest and cautioned and were placed in the divisional van and a search was undertaken in respect of various items in your vehicle:

(a)     a search of the black shoulder bag found the following items:

(i)     $750 in cash (Summary Charge 4, proceeds of a crime);

(ii)     one small zip lock bag that contained approximately 1.2 grams of methylamphetamine;

(b)     in the driver’s-side floor well there was a “Bose” brand black coloured headphone case in which was contained six zip lock bags of methylamphetamine. Such items were photographed and weighed:

(i)     a clear bag with 114 written on the top of the bag containing 113.8 grams of methylamphetamine;

(ii)     a clear bag with 125 written on the top containing 113.8 grams of methylamphetamine;

(iii)    four zip lock bags containing 111.7 grams of methylamphetamine;

(c)     examination of the container with the bright yellow pills contained:

(i)     six zip lock bags containing 295 yellow ecstasy pills labelled “NINTENDO” (147.9 grams);

(d)     a search underneath the driver’s seat nearest to the central console revealed an item which was wrapped in tissues and a rubber band which revealed a glass pipe and straw, together with:

(i)     one zip lock bag with 2.9 grams of methylamphetamine;

(ii)     two zip lock bags containing 5.6 grams of methylamphetamine;

(e)     inside the glovebox of the vehicle was a clear container with several empty zip lock bags, scales and a Ziploc bag containing 4 grams of methylamphetamine;

(f)     a search of the boot of the vehicle revealed an orange bag which contained a red jewellery box containing various items of jewellery along with a zip lock bag containing a further assortment of
gold-like jewellery.

7       You were transferred to the Sunshine Police Station where, at 3.47 pm, you commenced a record of interview, which was terminated shortly thereafter to allow police to make further enquiries.

8       A search warrant was obtained to search your premises, which was executed about 1.28 pm the following day.  Inside the premises, the police found a female named Thi Thanh Danh Bui and also various chemicals in a secure outdoor area, causing police to seek the attendance of the Clandestine Laboratory Squad.  On arrival, members of that squad located:

– 158 grams of liquid methylamphetamine decanted from one metal cup labelled “Kambrook” containing yellow liquid

– 48 grams of liquid methylamphetamine decanted from one metal can labelled “Coconut Milk” containing yellow liquid

– plastic container containing 25.8 grams of methylamphetamine

– plastic container containing 30 grams of methylamphetamine

– plastic container containing 8.6 grams of methylamphetamine

– 1 x porcelain dish containing 18.6 grams of methylamphetamine

– 1 x glass containing liquid and solid liquid decanted as 47 grams of methylamphetamine

– 43.9 grams of liquid containing amphetamine decanted from exhibit 28

– one plastic specimen container labelled “Dorevitch Pathology” containing 24.9 grams of liquid containing methylamphetamine

– 106 grams of liquid decanted from 1 x glass bowl with plastic lid labelled “Pyrex” containing yellow liquid.

9       Further investigation and analysis was undertaken, which revealed:

(a)147.9 grams of MDMA was found in your vehicle (Charge 1, trafficking MDMA);

(b)364 grams of methylamphetamine that was found in your vehicle (Charge 2, trafficking in no less than a commercial quantity);

(c)the total amount of methylamphetamine located at your premises was 305.3 grams (Charge 3, trafficking in no less than a commercial quantity);

Trafficking in no less than 250 grams amounts to trafficking a commercial quantity pursuant to the Drugs, Poisons and Controlled Substances Act 1981 (relevant to Charges 2 and 3).

10      At the time of this offending, you had been on bail which had been granted at the Magistrates’ Court, Melbourne, on 10 October 2018 (Summary Charge 6 – committing an indictable offence, trafficking a drug of dependence – whilst on bail). 

11      When you were interviewed by police, you stated:

(a)that you were asked to deliver the methylamphetamine and MDMA tablets (see Answer 43) and that you expected to receive cash from the sale of the drugs (see Answers 109 and 112);

(b)in respect to the items found at your premises, you stated they are common items which can be purchased from a supermarket and that you did not manufacture drugs (see Answers 194-196).

12      Counsel for the prosecution noted that orders were sought in relation to the disposal of the drugs and the forfeiture of the cash.  Such orders were not opposed. 

13      You were again remanded from 24 March 2019 and such remand has been continuing, and as at the date of the plea you had served 481 days of
pre-sentence detention, made up of the period ranging from 25 July 2018 to 10 October 2018 (78 days inclusive of 10 October 2018) and from 24 March 2019 to 30 April 2020 (being 403 days not including 30 April 2020).

Your educational, employment and social background

14      Your counsel tendered the following material:

(a)a document headed “Outline of Defence Submissions for Plea”, dated 29 April 2020 (Exhibit “A”);

(b)report of the psychologist, Dr Mathew Barth, dated 16 April 2020 (Exhibit “B”);

(c)       the following references:

(i)reference from your daughter, Ms Cindy Ngoc Nguyen, dated
11 March 2020.  Ms Nguyen described herself as your eldest daughter and was well aware of the charges you were confronting and your intention to plead guilty to such charges.  She describes being born and raised in a very loving, caring and supportive family.  In particular, she notes that she views you, her father, as a role model, and someone she could always look up to and who played an active role in the lives of her and her younger brother, Benjamin Nguyen.  She also notes that when you were working very strenuously at the Peter MacCallum Cancer Centre as a cancer radiologist, you also always found time to attend school-related matters and generally mix with the family.  In particular, she describes you as someone who loved to cook, believed in sharing love and celebrating with all your loved ones, and made every single holiday fun and memorable.  She notes that you always encouraged her to give the best version of herself and taught her the difference between right and wrong, and encouraged her and her brother to always do good no matter what the situation.

She notes that you were married for 18 years and during the marriage you and your wife were loving and respectful towards one another and it was rare to see any conflict.  She notes that in 2011, when you separated from your wife due to personal differences, is when your gambling addiction came to light.  She describes that after a series of health problems she began drinking heavily and taking drugs to cope and gain confidence.  In particular, she was abusing cocaine and methylamphetamine in an order to gain confidence and lose weight.  At one stage she also had trouble with her former partner.

She describes how you were there emotionally and supported her at times when she did not even believe in herself.

When her son was born, she describes how you assisted her and your grandchildren.

Your daughter considers that you were very ashamed and regretful of your actions and that is why in the first few months of your incarceration you did not want to communicate with anyone.  In describing events which led to you performing the offending, your daughter describes your mental health when working at the cancer hospital was not good given the amount of stress and pressure that you were under.  Furthermore, she notes that you have had a very serious gambling and drinking problem which, as she describes, was “getting the best of [you] slowly”.  Furthermore, the period between your split from your wife and the ultimate divorce was “messy”.

Ultimately she describes you as very remorseful and now understands the damage and pain that has affected all of us;

(ii)From your two younger brothers, Mr Cuong Nguyen, a pharmacist and Mr TC Nguyen, a surgeon doctor.  They describe the charges that you face to be “extremely out of character for [you] and [you regret your] actions and involvement”.  They proffer the view that your actions stem from your mental health issues of gambling and addiction and the breakdown of your marriage.

In particular, they note that your family came to Australia in 1977 from Vietnam as refugee boat people and at that time you were only 10 years old and must have seen and remembered the horror and struggle of the Vietnam war.  They also describe how your parents see themselves as so fortunate and grateful to be in Australia.  They note that your father was a headmaster at high school and your mother a teacher in Vietnam – when they came to Australia they both worked in factories, often six days a week, until they retired over 32 years later, in order to make ends meet and to provide for you and your siblings.  They record that your mother and father would wake up at 5.00 am every day so they could be at work at 6.00 am, returning not until 5.00 pm.  Because you were the eldest, it was necessary for you to wake up your younger brothers and sister – who was only a baby at the time – feed them, dress them and take them to day care and school, and then to go onto school yourself.

They note that when growing up they were surrounded by bad influences, with a lot of Vietnamese gangs around the neighbourhood in Braybrook, and also they were dealing in drugs.  However, they note you always had an eye out for them and kept them away from those influences, also teaching them that if they associated with “those sorts of people” they would go down the same path.

In particular, they note that your parents treated you as an adult from a very early age, causing you not to have much fun as a child.  They note also when you became a father, you were a good father, taking care of your children the same way as you took care of your younger family when growing up.

They do note that over the past few years they have come to know that you do have a gambling addiction and associated yourself with friends of an unsavoury character with whom you have never associated with before.  They believe that your friendship with these people and the breakdown of your marriage and then divorce led you astray, resulting in mental health issues and becoming drug dependent.  They note that that resulted in a lot of bad debts to a few different people, some of which the family have helped to repay.  Ultimately they note that the family finds your conduct very much out of character, someone who otherwise has always been responsible, hardworking and educated.  They also note that all the family will support your rehabilitation and help you rebuild your life.  In particular, they note you are deeply remorseful and ashamed;

(c)from your parents, Chieu Hoang Nguyen and Thi Cuc Nguyen, who describe that after the arrival of the family in Australia in 1978, they both went to work to support themselves without receiving government benefits.  They confirm what your younger brothers have asserted, that they would leave work at 6.00 am when you were 10 years old and you had the care of your younger siblings – making breakfast, taking them to school and pushing the pram to take the two-year-old to a friend’s house so they could mind her for them.  In the afternoon, you took your siblings back home and took care of them, washed dishes, cooked the rice and waited for them to come home at 7.00 pm and cook some savoury dishes, and you all had dinner together.  They described how you worked hard to obtain the position that you enjoyed before your downfall.

On hearing of your arrest for the subject offences, they described being “stunned”, and they note that you decided not to tell them of the charges as you did not want to upset them as your father was seriously ill.  Ultimately, they describe you as a good person and call upon the Court to show some sympathy.

Such references are admitted and collectively marked as Exhibit “C”.

15      Your counsel also tendered an unsworn affidavit of Ms Jennifer Hosking (see Exhibit “D”.  Such affidavit was admitted without opposition as an exhibit).  In that document, Ms Hosking describes herself as the acting assistant commissioner, sentencing management division, Corrections Victoria, and in that role she describes the various prisons in which you have been incarcerated and the circumstances of such incarceration.

16      When the Case Management Review Committee met you on 3 April 2020, the following matters were noted:

(a)at that time, you had not completed any education courses, but was on the wait list for food, hygiene, health and nutrition, and occupational health and safety courses;

(b)you informed the Committee that you were on medication for anxiety, depression, high blood pressure, a stomach ulcer and arthritis, although your health was improving, and you were otherwise managing well;

(c)at that time, you were having contact with your children and partner, but was not sure whether Skype had been set up;

(d)you were using the gymnasium equipment daily and taking occasional walks in the yard;

(e)you informed the Committee that you worked as a canteen billet or cleaner, and assistant in the prison canteen, which had become busy due to COVID-19 and you had recently been granted status as an essential worker within the prison.  Ms Hosking noted that prisoners who perform essential work, including working in prison kitchens, cleaning, horticulture and manufacturing and who can keep the required social distance, are continuing to work and be out of cells for longer hours than prisoners who are not working.

17      Partly based on various submissions made by your counsel and on the material to which reference has just been made, I note the following:

·You are 51 years old, having been born in Vietnam just south of Saigon, on 13 November 1968.  You are the eldest of four siblings, having two younger brothers (who are referees) and one younger sister.  Your father, who is now 78 and suffering from Diabetes, was the head of education in one of the regions in Vietnam.  Your mother was a primary school teacher in Vietnam.  Since coming to Australia, she has suffered a brain aneurysm a few years ago, which has impacted her memory and speech.

·You commenced your schooling in Vietnam, and you have told others that your parents were strict and you were disciplined with corporal punishment when younger.

·All of your family fled Vietnam in order to escape persecution flowing from your father’s allegiances during the Vietnamese war.  You first arrived in Sydney in 1978 and then moved to Melbourne, where after initial accommodation in a local hotel, you were moved to housing commission accommodation in Braybrook.  You and your family were subject to racial abuse and property damage at the family home.

·On coming to Australia your father worked as a labourer in a sheepskin company and your mother worked as an unskilled labourer in the same company.  Your parents’ qualifications were not recognised in Australia.

·On coming to Australia, you initially attended secondary school in the Braybrook and Sunshine areas, and struggled due to your lack of English proficiency.  Notwithstanding, you completed your Year 12 at Chisholm College, where you excelled academically and later completed a Bachelor of Applied Science (Medical Radiation) at RMIT University.  Because you were the eldest child, you were responsible for dressing and take care of your younger siblings, taking them to school and picking them up, as your parents were working.

·Your undergraduate course took four years to complete and you left the family home at the age of 22.

·After completing your studies, you completed an internship year at Peter MacCallum Hospital (then situated on the site of the current County Court) before moving into full-time employment from 1991 as a radiation therapist.  You later completed a Master of Medical Radiation (Sydney University) via distance education in 2000.  When commencing at the Peter MacCallum Hospital you started as a base-grade radiologist and then was made an acting supervisor, and then in approximately 2000 you were given the role of chief radiation therapist.  Later you moved to East Melbourne when the Peter MacCallum Hospital was transferred to that area.  Later again you worked at Sunshine Hospital which constituted the Peter MacCallum Cancer Centre, and from 2012 was one of twenty-two radiation therapists who moved to Sunshine.  At that time you were in charge of four cancer clinics (including lung cancer and breast cancer) with regard to radiation therapy treatment.

·You married in 1990 at approximately the age of 22 and that marriage ended in divorce in 2008.  The marriage did produce two children – namely Cindy, born in 1997 (one of your referees) and Benjamin, born in 2004.  After your separation, you moved back with your parents in Kealba.  Your daughter, Cindy, now has a child of her own, and both your children and your grandchild reside with their mother.

·Since then you have been involved with Danh Thi Bui (also known as Anna Bui) and was in a relationship with her during the first offences in 2018, although Ms Bui was spending a significant amount of time in Vietnam during this period.  Although Ms Bui visited you for a time when you were remanded at Fulham Prison, she has since ceased to visit.  Your counsel submitted that it was likely that your relationship with Ms Bui has come to an end.

·After a few years at the Sunshine premises of Peter McCallum, you began to experience work difficulties, in that you considered you were being unfairly treated, and as a result became stressed at work.  You were working in an environment where patients were dying and it was often difficult to explain to the families of patients that the treatment was often to provide for a respectful death rather than a cure.

·You became depressed and overwhelmed, causing the quality of your work to suffer, and you commenced using illicit substances before being dismissed in 2018.  You had actually ceased work in 2016 and at the time of your dismissal you had been employed by Peter McCallum for twenty-six years.

·Prior to your cessation of work, you had increasing joint pain, suffered a degree of a breakdown and was placed on a mental health care plan, which involved the prescription of Valium.  You were consulting a psychologist, Catherine Ly, and became addicted to painkillers. 

·After being prescribed Valium, you commenced to use methylamphetamine in 2017.  You had begun to drink heavily from the breakdown of your marriage, but ceased drinking alcohol from around 2015.

·Reports from medical clinics and various psychologists over the period of 2017 to 2018 suggested that you were in a depressed mood, struggling to pay debts, having occasional thoughts of self-harm and also suffering from hypertension and asthma.

Events leading up to your offending

·Your introduction to methylamphetamine in September 2017 was through a mechanic who lived in your area and who suggested that the drug would help you get through the days.  Ultimately, you were introduced to a number of people who began to supply you with methylamphetamine for your personal use.

·You informed Dr Barth that you ran up a significant debt – over $100,000 – and that the interest on the outstanding amount owed was causing such debt to increase significantly over a short period of time.  At that stage you would use methylamphetamine, and then use Valium to help you sleep.

·Over this period of time, you also used cannabis frequently as a “stress release” and also to alleviate your feelings of depression and your sense of feeling overwhelmed by your then employment issues.  You informed Dr Barth that your drug use escalated rapidly and over this time you also abused MDMA – that is ecstasy – and also GHB.  You instructed your counsel that because of threatened violence – including being threatened with a gun – you commenced trafficking drugs to repay the debt.  You alleged that your own safety, and that of your family, was put at risk.

·You trafficked drugs that were supplied by this group and also sourced other drugs from a Vietnamese contact.

·You were released on bail in October 2018, following those events relevant to Indictment J11948572.1.

·After being released on bail, you received some treatment from the psychologist, Ms Amanda Brown.  After such release, you allege you were again approached by a contact of the Syndicate who had previously supplied you with drugs and told to recommence trafficking to repay the debt.  You suggested that you initially refused and again was threatened with violence and so agreed to continue to traffic the drugs, leading up to your further remand. 

·The treatment which Ms Amanda Brown ceased in March 2019, when you were again remanded in custody.  You have remained in custody to this date.

·You informed your psychologist, Dr Barth, that you had not used any drugs since your more recent remand in March 2019.  Furthermore, you informed Dr Barth that you had completed the “Ice and Me” short course and had “used this time to detox and get [your] life in order”.

The evidence of Dr Mathew Barth

18      Dr Barth attended you at the Metropolitan Remand Centre on 19 March 2020 for an extended clinical interview spanning approximately two hours.  During the course of this interview, he carried out a comprehensive evaluation of your mental status, including your mood, your thought processes, your personality function and degree of insight.  Dr Barth notes that particular attention was paid to your mental health, substance abuse history, and personality and behavioural adjustment.  During the course of his interview with you, he performed two psychological tests in assisting him in forming a diagnosis.

19      Dr Barth took a very long history from you in relation to your past life, including family history, marital history and the like.  Reference has been made to much of that material earlier in this sentence.

20      Dr Barth also performed a mental status examination.  Ultimately, he expresses the opinion that a detailed review indicated that you were experiencing a combination of noteworthy depressive symptoms and anxiety, with those symptoms most evident in the physical domain and manifested in changes in energy level and sleep pattern.  Dr Barth was also of the opinion that as you had experienced several periods of intense emotional stress in the past, you are a very psychologically-vulnerable person.  Dr Barth diagnosed you suffering from a diagnosis of a “Major Depressive Disorder – With Anxious Distress – Recurrent Episodes of Moderate Severity” and also expresses the opinion that you remain “at risk” of further deterioration in your moods in the immediate aftermath of sentencing.  Dr Barth stressed that you clearly require ongoing psychological treatment and support.

21      In particular, Dr Barth stated:

“Based on [your] history, it is highly like that [you were] suffering this disorder at the time of the offending, and it is likely that it exerted some influence upon [your] social reasoning and decision making.  The clouding of cognitive processing and the cognitive ‘load’ imposed by depression renders the process of decision making, generating solutions to problems and weighing alternative options considerably more difficult for the sufferer.  There is a tendency to focus on available solutions and to have difficulty instituting needed changes, as well as to have problems developing alternative courses of action to manage problematic situations.  As a result, the person tends to behave without exercising their usual level of judgment and rational consideration.  When considering [your] history of depressive mood disturbance, it is likely that [you were] labouring under the effects of this condition at the time of [your] offending.

While [you were] suffering from the cognitive impacts of [your] depressive symptoms when [you] offended, I do not, however, consider that there is any indication to suggest that this extended to impairing [your] ability to understand the wrongfulness of [your] conduct or that [you were] not capable of appreciating the likely consequences of [your] actions.” (see paragraphs [46]-[47])

22      In relation to substance-related issues, Dr Barth notes that you are currently in

a period of enforced remission from significant addiction.  Dr Barth states, based on a review of the history, that it is clear you have suffered a severe physical addiction to Ice and cannabis.  Again, on his review of the material, Dr Barth was of the opinion that you had experienced such significant drug-related problems to warrant a diagnosis of “Stimulant-Use Disorder” and “Cannabis-Use Disorder” and that both conditions would have been specified at the “Severe” level, provided your current abstinence can be objectively verified, these diagnoses would be specified as “In Early Remission – In a Controlled Environment”. 

23      Although Dr Barth was of the opinion that you were able to develop and demonstrate a developing insight into the issues associated with your substance use, particularly in the context of your attempts to “self-medicate” during periods of emotional distress, he considered that your rehabilitation remains at a very early stage.  In particular, you lack understanding into the development of relapse prevention planning and coping skills during periods of emotional stress remain very underdeveloped.  You also continue to lack insight into your offending and according to Dr Barth have a surprisingly limited understanding of the broader negative impact of drugs on society. 
Dr Barth was of the opinion you require extensive substance-abuse treatment if you are to enhance any rehabilitative prospects in the longer term and containing your drug abuse represents the most prominent criminogenic factor in your case.

Matters relied on by your counsel in mitigation of sentence

24      Your counsel referred to the following matters submitted in mitigation of your offending:

(a)You pleaded guilty to the charges on both indictments at an early time

Such pleas of guilty followed negotiation with those acting for the prosecution and occurred before any committal.  It is submitted that such pleas of guilty have utilitarian value in that the State has been saved the cost and time of a trial and furthermore, it was submitted that such pleas are indicative of remorse;

(b)No criminal record

It was submitted on your behalf that your offending occurred relatively late in life, following a long history of employment and a significant contribution to society in your role at the Peter McCallum clinic.  There is no history of any prior offending, be it for drugs or for any other criminal matter;

(c)       Prospects of rehabilitation

Your counsel submitted that your prospects of rehabilitation were “good”.  In support of such submission, he referred to your lack of criminal history, your early pleas of guilty to the subject offending, your long-term history of employment, family support from both your brothers and sister, your activities in prison where you had been classified as an “excellent prisoner” and perhaps more dramatically, given the number of years you will serve in custody in relation to the subject offending, you will be released at a mature age.

In particular, counsel stressed that you had been employed for
twenty-seven years with one employer – Peter McCallum Hospital, and over time have increased your learning by being involved in a Masters degree to develop your skills and consequently have provided a valuable service to the community;

(d)      Application of Verdins’ principles

Your counsel submitted that the so-called limbs one and four of the well-known decision of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 (“Verdins”) has application.  Verdins held that “impaired mental functioning, whether temporary or permanent” is relevant to sentencing in at least the following six ways – I refer to principle one and four, which read:

“1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility.  Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

…

4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.”

(Footnote omitted.);

It was submitted during oral submissions that the basis of such application it is the opinion of Dr Barth in relation to your state of mind at the time of the offending.  Your counsel made it plain that given the state of the evidence he did not wish to “overstate the Verdins case in this matter”.  By this, he meant the strength of the relationship between any mental functioning and principles one and four in the circumstances of this case were not as strong as in other cases;

(e)The COVID-19 crisis

Your counsel submitted that the COVID-19 Pandemic is a relevant matter to be taken into account as the circumstances of such pandemic, as it applies to you in prison, adds to the burden of any period of imprisonment.  In particular, your counsel referred to these matters:

(i)you are more vulnerable in custody to contracting the COVID-19 virus – you are aged 51 years and have several health problems;

(ii)you suffer anxiety about your time in custody during the

COVID-19 Pandemic;

(iii)you also are anxious about your elderly parents during the COVID-19 Pandemic – both parents suffer various illnesses;

(f)The circumstances of the offending

It was submitted by your counsel that your circumstances leading up to the subject offending are relevant.  As already noted, you had no prior convictions, and a long history of employment providing an invaluable service to the community.  You became addicted to drugs after suffering mental-health issues brought about by multiple causes and accumulated a significant debt to dealers.  It was submitted on your behalf that you were threatened with violence unless money was paid and commenced to traffic drugs to repay debts.  Although, of course, this does not excuse your offending, it puts it into some context.  Your counsel, in oral submissions, accepted that it cannot be said that your drug trafficking was entirely in relation to you seeking to pay off your drug debt;

(g)Relevance of low purity of some of the drugs

On 30 April 2020, it was submitted that the low purity of some of the drugs constituting your offending were relevant to mitigation of your sentence (see Point 7 of Matters Said to be in Mitigation set out in Exhibit “A”).  Counsel for the prosecution only responded briefly to this argument as set out at Exhibit 5.

Your sentence was to be handed down on 24 June 2020 and commenced on that day.  Unfortunately, the sentence could not be completed in the time allotted, and in discussion with counsel the issue arose as to the relevance of low purity of some of the drugs located during the searches by police.

It was agreed that those acting for you could make further submissions on that issue and, of course, the prosecution could also respond to those submissions.

Those acting on your behalf prepared another document headed “Outline of Further Defence Submissions for Plea”, dated 25 June 2020.  I will have that document admitted and marked as Exhibit “E”.  In that document, your counsel submitted:

(i)none of the drugs seized by police relevant to any charge on either indictment were 100 per cent pure;

(ii)in relation to Charge 2 on Indictment J11948572.1, the total amount of methylamphetamine said to be trafficked was 1,253.1 grams, of which 957.5 grams of methylamphetamine was trafficked, based on the intercepted telephone calls and the balance of 295.6 grams of methylamphetamine located at your premises;

(iii)although there could obviously be no determination of the purity of the 957.5 grams of methylamphetamine trafficked, the purity of the 295.6 grams located at your premises was 36.65 per cent pure (a total of 108.36 grams pure);

(iv)in relation to Charge 3 on Indictment J11948572.1, involving the trafficking of MDMA, the amount of the MDMA located at your premises was 57.3 grams and there were a further 350 tablets trafficked between 2 June 2018 and 25 July 2018;

(v)in relation to Charge 2 on Indictment K10760081, trafficking methylamphetamine in a quantity that was not less than the commercial quantity applicable to that drug of dependence – involves 364 grams of methylamphetamine that was found in your vehicle.  The purity of that substance was around 80 per cent;

(vi)in relation to Charge 3 on Indictment K10760081 – involving, again, the trafficking of methylamphetamine in a quantity that was not less than a commercial quantity – the amount of methylamphetamine located at the premises was 305.3 grams of mixed substance, including methylamphetamine, with a purity, on average, of 20.6 per cent – that is, 63.15 grams of pure methylamphetamine;

(vii)in relation to Charge 1 – concerning trafficking MDMA – consists of 47.9 grams of MDMA found in your vehicle, which was approximately 27 per cent pure.

It was submitted on your behalf that there were three different categories of methylamphetamine that were trafficked by you:

(i)trafficking referred to in intercepted telephone calls (the purity of the drugs was unknown);

(ii)trafficking based on methylamphetamine found in a state of higher purity either at the premises in the first search on 25 July 2018 or the methylamphetamine in the search of the car on 24 March 2019 (where the purity is unknown);

(iii)trafficking based on methylamphetamine found in a lower state of purity either at the premises in the first search on 25 July 2018 or in the search of the premises on 24 July 2019 (where the purity is unknown).

It was submitted that there was a difference between drugs which were clearly available for sale (higher purity) and drugs found in mixtures as part of the manufacturing process (lower purity).

The high purity amphetamine (available for sale):

– methylamphetamine located in the trays at the premises during the search on 25 July 2018 (61.5 per cent purity)

– the methylamphetamine found in the packages in the car during the search on 24 March 2019 (80 per cent purity);

The lower-purity amphetamine (found as part of the manufacture process):

– the methylamphetamine located in a number of liquids at the premises during the search on 25 July 2018 (14.2 per cent purity)

– the methylamphetamine located among liquids at the premises during the search on 24 March 2019 (20.6 per cent purity);

Your counsel also submitted that there is some distinction to be made regarding the purity of substances that were clearly ready to be sold (in glass trays at the premises on 25 July 2018 and in the car on 24 March 2019), compared with far lower levels of drugs found in mixtures of liquids that form part of the manufacturing process (some of the liquids located at the premises on 25 July 2018 and the mixtures of substances located at the premises on 24 March 2019).

Your counsel referred to the Victorian Court of Appeal decision of Taumoefolau v R [2015] VSCA 221 and in particular at paragraph [26] whereat the court (consisting of Hansen, Whelan and Beach JJA) stated:

“In Trajkovski v The Queen, this Court had to consider the relevance of the fact that the drug trafficked was of low purity. Weinberg JA said:

However, the judge’s earlier statement that the low purity of the drug in the mixture was not to be given significant weight when assessing the applicant’s culpability was, in my view, incorrect. Obviously, the legislature has chosen to treat any drug that is part of a mixture as though the whole of that mixture constituted the drug of dependence. That is clear from the fact that it is the weight of the mixture that determines whether the offence is to be characterised as involving, for example, a commercial quantity, on the one hand, or a large commercial quantity on the other.

There is no reason, in principle, why the fact that the mixture contains what is plainly only the most miniscule quantity of a drug of dependence, and is therefore unlikely to produce the deleterious effects normally associated with a much larger amount of that particular drug, albeit in a mixture, should not be regarded as a significant factor to be taken into account in assessing the gravity of the offending.

This very point was considered by the Western Australian Court of Criminal Appeal in R v Mahasay. There it was held that the low level of purity of the methylamphetamine in question was a factor of some importance, at least in a case involving trafficking in that drug. In the case of couriers, the purity might be less relevant.

The matter arose again, before this Court, in R v Minh Thanh Do. There, the Court found it unnecessary to determine whether the low level of purity of a drug as a mitigating factor had survived the rejection by this Court in R v Pidoto & O’Dea of a harm-based system of classification of drug offences.

In my opinion, there is nothing in Pidoto which requires the low level of purity of a particular drug in a case such as the present to be given little or no weight. Whether one views such a matter as a mitigating circumstance, or rather as simply reducing the objective culpability of the offending, matters little in the ultimate result.  There is obviously a difference between trafficking in 3.9 kilograms of pure methylamphetamine, and trafficking in 1.9 grams of methylamphetamine in a mixture of 3.9 kilograms.  To treat these two offences as relevantly indistinguishable would be an affront to common sense.”

(Footnotes omitted.)

Your counsel also referred to Cvetanovski v R [2015] VSCA 65, wherein the Court of Appeal (consisting of Weinberg, Priest and Beach JJA) considered whether a drug charge where the quantity of drug in mixture was so low could be an abuse of process. In particular, Priest JA (with whom Weinberg and Beach JJA agreed) stated at paragraphs [68] and [69]:

“68Upon the assumption that charges are not laid for an improper purpose, and subject to the overarching right that an accused person enjoys not to be tried unfairly, it is a matter of prosecutorial discretion as to whether any (and if so, what) charges are pursued, and, if so, against whom.

69.The mixed substance which was the subject of charge 4 exceeded the ‘commercial quantity’ threshold. Thus, in my opinion, the validity of the charge was not affected by the fact that the amount of MDMA might have been ‘low’. Purity might have been relevant to sentence, but it did not impinge upon the viability of the charge. Indeed, defence counsel on the plea submitted that low purity was a matter that went to penalty. The sentencing judge accepted that this was so.”

(Footnotes omitted.)

Counsel for the prosecution initially submitted that “little turns on the purity of the drug” as it is an argument that goes both ways.  The lower purity suggests that it has been cut down, making it more profitable as a more sellable product. 

Subsequent to 24 June 2020 and in response to the submissions made by your counsel, counsel for the prosecution prepared a document headed “Prosecution’s Submissions in Response to Defence Submissions Concerning Purity”.  I will have that document admitted and marked as Exhibit 6.

It was submitted by the prosecution that your counsel in effect submitted that the drugs and modes of trafficking that go up to make up Charge 2 on the first indictment and the two trafficking charges of a commercial quantity on the second indictment ought to be dealt with separately, in effect, as a result of different impurities of those drugs.  It was submitted that this would amount to a flawed approach to the sentencing exercise. 

Although accepting that there are certainly occasions where the purity of the drug may be a relevant factor in the sentencing process, it was submitted by counsel for the prosecution that those cases are restricted to those that do not meet the mixed quantity threshold or fall within a limited group where the purity of drug is so low that it is said to be de minimus.

It was submitted that the circumstances of this matter do not fall into that category.

In particular, counsel for the prosecution highlights that:

(i)the large commercial quantity charge (that is Charge 2 on Indictment 1) is a Giretti trafficking count, incorporating different modes of trafficking into one charge between dates (by agreement with defence);

(ii)the commercial quantity charges (Charges 2 and 3 on Indictment 2) have been separated by modes of trafficking and location in the single charge dates of trafficking (by agreement with defence);

(iii)the large commercial quantity and the commercial quantity charges both rely on the mixed threshold amounts (pursuant to Schedule 11, Part 3, Columns 1B and 2A of the Drugs, Poisons and Controlled Substances Act 1981);

(iv)the pure amounts are not relied upon to reach the respective threshold amounts for the LCQ and CQ charges and are “therefore not relevant in the circumstances of this case”.

It was further submitted that by attempting to distinguish the various drugs that comprise the large commercial quantity and the two commercial quantity charges, and then tying this distinction into “substances found for sale and substances found in liquid”, is attempting to suggest that one form of trafficking is more serious than another.

Counsel for the prosecution also referred to Taumoefolau v R (op cit) at paragraphs [33] and [36] where the court (consisting of Hansen, Whelan and Beach JJA) state:

“33.The authorities we have reviewed make clear the importance of the fact that the legislative scheme governing trafficking does not distinguish between the acts which constitute ‘trafficking’ in such a way as to render less serious acts which do not result in distribution from those which do. The acts which constitute trafficking include preparing a drug of dependence for trafficking, manufacturing a drug of dependence, and selling, exchanging, agreeing to sell, offering for sale or having in possession for sale a drug of dependence. This is made clear in both Holder and in Chandler. The passage in Holder, which we quoted earlier, is, by its own express terms, an analysis of the legislative scheme.

…

36The harm (actual and potential), or in the words of Weinberg JA in Trajkovski the ‘deleterious effects’, of particular conduct is a potentially relevant matter depending upon the circumstances of each individual case. The sentencing judge is entitled to gauge the criminality of the conduct by its potential consequences and by the intentions of the offender notwithstanding what he or she was in fact able to achieve. This is made clear in Spaull. The fact that the conduct of the offender may be such as to render it unlikely, or even impossible, that he or she will achieve the objective is unlikely to mitigate an assessment of the criminality, and it will commonly have very little weight, as was said in Zandi and the cases it cited. In any particular case, actual harm, both its presence and its absence, can be taken into account, as this Court said in Haidari.”

Furthermore, it was submitted in the cases relied on by your counsel, for the proposition that in general a lower purity should be distinguished (namely Trajkovski (op cit) and Svetanofski (op cit))), they must be understood in their own context and do not, in the prosecution’s submissions, stand for the broad application that this seeks to utilise.

Both Trajkovski (op cit) and Cvetanovski (op cit) are cases that dealt with purities that are so low they could be seen to be de minimus.  In Trajkovski (op cit) the purity of the drugs was 0.05 percent and in Cvetanovski (op cit) the purity was so low the analyst could not determine the purity.  It was considered by the Court of Appeal in Kapkidis v R [2013] VSCA 35 at paragraph [25], where the Court concluded:

“In our view, nothing said in Trajkovski and Nguyen detracts from what this Court made clear in Pidoto. There is no place for considering the relative harmfulness of a drug in sentencing an offender for trafficking offences. Where the purity of the amount trafficked is ‘de minimis’ it may be taken into account, but save for such exceptional circumstances, the relative purity of a mixed quantity of a drug of addiction does not bear upon the objective gravity of the offence.”

Counsel for the prosecution also referred to Thanh Tung Nguyen v R [2011] VSCA 139, where the accused had a mixture substance of 24.5 kilograms containing 1.147 kilograms of pure drug. This equated to a purity of 4.68 per cent. In that case, the court said the following:

“… It must be remembered when considering the gravity of any drug trafficking offence, that it is the quantity of the drug that is trafficked that is of greatest reliance. In the present case, the appellant was in possession of a vast number of tablets, but the purity of the drug was extraordinarily low. That had to be borne in mind … .” 

Ultimately, counsel for the prosecution submitted that the purity of drugs trafficked by the accused in this case is not in the range of the exceptionally low de minimus category and therefore the prosecution submit that it is not appropriate to distinguish between the different amounts of drugs trafficked by the accused.

The Court directed that rather than handing down the sentence on 9 July 2020, that there be further submissions on this issue.  The Court was sent an email by the solicitor acting on behalf of the Director, which was also forwarded to your counsel.  It states:

“Out of an abundance of caution, I am writing to clarify our submissions on purity (attached again for your convenience).  In paragraph 12, it says in effect that we should not distinguish between the different amounts trafficked.  It would be more accurate to say we should not distinguish the different amounts trafficked based on purity and/or mode.

Although it is implied we are saying this, given the whole tenor of our submissions, our directed purity, we do not want to leave any room for doubt, as our submissions are that:

1.       The mode of trafficking is essentially irrelevant; and

2.       Purity is irrelevant in this case as it’s not de minimus...”

On 9 July 2020, your counsel accepted that the authorities, insofar as they have a bearing on the purity of the drug, deal with what they refer to as a de minimus amount of pure drug.  In this respect, your counsel stated, appropriately in my view, that the law is appropriately set out in Kapkidis v R (op cit) at paragraph [25] – already referred to.

However, your counsel then went on to submit that the sources of methylamphetamine said to make up Charge 2 on the first indictment – that is, trafficking in methylamphetamine in a large commercial quantity – the mixture of drugs found in liquids, the purity found in such liquids was found to be 14.2 per cent purity.  Although accepting that a purity of 14.2 per cent would not be a de minimus contribution to the weight of drug, counsel submitted it was open to the Court to infer that this part of the drug making up Charge 2 would be reduced in weight once it was in saleable form.

As I understood the submission, the inference would have to be that such drug purity would be reduced to a de minimus amount and the sale of such drug then would give rise to how it should be dealt with given the de minimus contribution.  Of course, there is no evidence in respect to this part of the methylamphetamine making up Charge 2 on the first indictment as to what ultimate purity would have been in such “material”.  I consider that, at best, any attempt to draw any conclusions as to the purity of the “end product” in relation to the liquid form of the methylamphetamine could be no more than speculation.

Accordingly, I put no weight on this matter, as either a mitigatory factor or as a moderation of your criminality;

(h)      Possession of a firearm 

It was submitted that the possession of a BB gun was not capable of causing death or serious injury and that in all the circumstances, an appropriate sentence was a fine rather than a custody disposition;

(i)        The issue of cumulation

Your counsel submitted that the overall offending – that being the charges on both indictments – was over a short period of time and accordingly should only be limited cumulation pursuant to the principle of totality.  Furthermore, it was submitted that there should be almost total concurrency applied to Charges 2 and 3 on Indictment K107600081, given that the offending related to a single day and to one amount of methylamphetamine being found in your car and the other amount being found in your home the next day;

(j)        Offer to assist police

Your counsel submitted that when you were released on bail on 10 October 2018, you were approached by a member of the Victorian Police Force about being of assistance in identifying those you were receiving the drugs from, and other information that you were able to provide.

The position of Victoria Police was that they were able to receive information from you when out of custody, but not able to receive information from when you were on remand due to the risks posed to those in custody of being a police informer.  This was communicated by Detective Acting Senior Sergeant Harry Coghlin to your legal representatives on 6 March 2020;

(k)       Threats to you

As I have recorded, your counsel submitted that you were threatened with violence if you did not start dealing on behalf of your suppliers to satisfy a debt of well over $100,000.  You instructed your counsel that some of that debt was paid out of a payout from your previous employer when your employment was terminated, but you were unable to pay the total outstanding amount.  It was put by your counsel that you commenced trafficking drugs to repay such debt because of the threat in relation to your own safety, but also the safety of your family.

When released on bail in October 2018, your counsel submitted on your instructions that you were again approached by a colleague from the drug syndicate that had previously supplied you with drugs and was told to recommence trafficking to repay the debt.  You had instructed your counsel that initially you refused, but again was threatened with violence, so agreed to continue to traffic the drug.

The response of the Prosecution

25      Counsel for the prosecution, both by way of oral submissions and written submissions, responded to many of the submissions made by your counsel.  In particular, counsel for the prosecution referred to a document he had prepared headed “Standard Sentencing Submissions on Behalf of the Crown” dated 30 April 2020.  Seemingly, that document was not tendered and I will direct that it now be tendered and marked as Exhibit 5.  Counsel for the prosecution submitted the following.

(a)that your pleas of guilty to the subject offending can be characterised as “earlyish”.  After looking at the Schedule of events set out in Exhibit “A” (defence counsel’s submissions), I consider that the pleas can be described as early pleas, albeit not the earliest;

(b)that neither limb one nor four, set out in Verdins, have application to this matter.  In particular,  it was submitted:

(i)there was no causal link between any impaired mental functioning and your offending;

(ii)the highest “it gets” is expressed by Dr Barth at paragraph [46] of his report, wherein he states:  “Based on his history, it is highly likely that [you were] suffering from this disorder at the time of the offending”.  Then, in the same paragraph, Dr Barth goes on to state:  “When considering [your] history of depressive mood disturbance, it is likely that [you were] labouring under the effects of this condition at the time of his offending”;

(iii)it was submitted that the conclusions are “speculative” and drawn on the self-reporting by you;

(iv)it was also submitted that at page 10 of the report, at paragraph [3], Dr Barth states:  [Your] moral reasoning is not impaired and [your] intelligence is estimated to be in the ‘above-average’ range”;

(v)reference was made to the case of Charles v R (2011) 34 VR 41 and in particular at [162], which asserted that there must be cogent evidence before the principles of Verdins are enlivened;

(vi)the opinions of Dr Barth and his conclusions are merely speculative;

(c)no information was received from you and nothing actioned from Victoria Police Drug Task Force.  It was put by counsel for the prosecution that:

(i)you were spoken to another detective from the Drug Task Force at the time of your arrest, but no information was provided to police;

(ii)upon your release on bail, the detective made an attempt to meet with you, but you did not reply or respond;

(iii)when you were then arrested and remanded again, your solicitor asked for contact with that detective.  However, nothing could be done as you were then in custody;

(iv)it is unknown whether you have spoken to some other area of the Victoria Police or an external agency;

(d)there is little in the way of evidence that you were dealing on behalf of others in order to repay a debt.  In particular, it was noted:

(i)you never made reference to this aspect in interviews with police;

(ii)       you later told Dr Barth that you were scared to do so;

(iii)even if it was accepted that you were dealing in drugs to pay off a drug debt, you acknowledged to Dr Barth at paragraph [41] of his report, that “‘[You were] so stupid to go down that path; to use drugs and get involved with bad people’”;

(iv)it was submitted that if this was the case, it may help explain why your offending occurred, but does not mitigate the offending.  Furthermore, dealing in drugs to help fund your own addiction is, equally, not mitigatory;

(v)it was submitted that there was nothing in the intercepted telephone calls, which suggest that you owed a debt or that there was pressure on you to sell drugs on behalf of another person or persons.

And indeed, during the course of the plea, your counsel accepted that there was nothing in the intercepted phone calls to suggest pressure on you to sell drugs;

(e)it was submitted little turns on the purity of the drug as it is an argument that goes both ways.  The lower the purity suggests it has been cut down to make it more profitable as a more sellable product and indeed, I will say no further on that issue as I accept that proposition;

(f)in relation to rehabilitation, it is usually accepted that for a person who has no priors, the prospects of rehabilitation are very good.  However here, you were bailed on the condition that you engage in counselling for your drug habit, and not long thereafter you re-offended, giving rise to the charges on the second indictment;

(g)it was submitted that the prosecution does not accept the “defence argument” that there should be “almost complete concurrency” with the offences on the first indictment with those offences on the second indictment.  In fairness, the written submissions of your counsel submitted that there should be some limited cumulation (noting that the principles of totality apply).  In any event, in support of that submission, counsel for the prosecution asserted:

(i)the offences were committed while on bail for serious drug offences (which you would have understood to mean not to engage in any further offending);

(ii)the offences in relation to the second indictment involve two counts of trafficking in a commercial quantity carrying a maximum penalty of twenty-five years.

Again, I note that your counsel did submit that there should be “almost total concurrency appropriate” between Charges 2 and 3 on the second indictment, which deals with methylamphetamine found in your car and methylamphetamine found in your house on the same day.  In response, counsel for the prosecution, in oral submissions, submitted that he did not quibble with “concurrency between the drugs being found in the car and the house”.

Standard sentencing considerations

26      On 1 February 2018, new sentencing laws came into effect in Victoria.  These have been commonly referred to as the “Standard Sentence Scheme”.  The Standard Sentence Scheme was introduced by the Sentencing Amendment (Sentencing Standards) Act 2017.

27      That Act introduced standard sentences for fourteen serious offences committed on or after 1 February 2018.  Trafficking in a large commercial quantity of a drug of dependence is one such offence.

28 Section 71(2) of the Drugs, Poisons and Controlled Substances Act 1981 provides that the standard sentence of imprisonment for the offence of trafficking in a large commercial quantity of a drug of dependence (such as methylamphetamine) is sixteen years.

29      I refer to s.5A and s.5B of the Sentencing Act 1991, which state relevantly:

“5A(1) If the Act that creates an offence, or prescribes the maximum penalty for an offence, specifies a period as the standard sentence for the offence, then—

(a)       the offence is a standard sentence offence; and

(b) the period specified as the standard sentence for the offence is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness.

(2) …

(3) For the purposes of subsection (1)(b), objective factors affecting the relative seriousness of an offence are to be determined—

(a)without reference to matters personal to a particular offender or class of offenders; and

(b)        wholly by reference to the nature of the offending.

…

5B (1) This section applies in relation to sentencing an offender for a standard sentence offence unless—

(a) the offender was under the age of 18 at the time of the commission of the offence; or

(b)       the offence is heard and determined summarily; or

(c) section 162 makes this section inapplicable because of when the offence is alleged to have been committed.

(2) In sentencing an offender for a standard sentence offence, a court—

(a) must take the standard sentence into account as one of the factors relevant to sentencing; and

(b) despite section 5(2)(b), must only have regard to sentences previously imposed for the offence as a standard sentence offence in relation to the sentencing for which this section applied.

(3)         Subsection (2)—

(a) does not limit the matters that a court is otherwise required or permitted to take into account in determining the appropriate sentence for a standard sentence offence; and

(b) is not intended to affect the approach to sentencing known as instinctive synthesis.

(4) A court that sentences an offender for a standard sentence offence must at the time of doing so state the reasons for—

(a)       imposing that sentence; and

(b) any non-parole period fixed in accordance with section 11 as part of that sentence if that period is shorter than the period specified in section 11A(4)(a), (b) or (c), as the case requires.

(5) As part of its reasons under subsection (4), a court must refer to the standard sentence for the offence and explain how the sentence imposed by it relates to that standard sentence.

30      Although the Standard Sentencing Scheme had been applied by a number of judges in the County Court, it was first dealt with in the Supreme Court by Champion J in R v Brown [2018] VSC 742. That decision was appealed in  Brown v R [2019] VSCA 286, wherein a five-judge Bench of the Court of Appeal (consisting of Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) explained the operation of the new provisions. The Court of Appeal largely upheld the reasoning of Champion J in Brown (op cit) at first instance.  Some assistance is also obtained from the High Court decision of Muldrock v R (2011) 244 CLR 120.

31      I refer to the Court of Appeal decision in Brown (op cit) at paragraphs [4]-[7], wherein the Court of Appeal stated:

“For the most part, the provisions are clear and the approach required is not in dispute. The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must ‘take the standard sentence into account as one of the factors relevant to sentencing’. This requirement:

·is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;

·does not affect the established ‘instinctive synthesis’ approach to sentencing;

·does not require or permit ‘two-stage sentencing’; and

·does not otherwise affect the matters which the court may, or must, take into account in sentencing.

The only area of uncertainty concerns the judge’s assessment of the seriousness of the offence before the court (‘the subject offence’). The ‘standard sentence’ is defined as:

the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness. [see s.5A(1)(b) of the Sentencing Act 1991]

The provisions then specify that those ‘objective factors’ are to be determined:

(a)without reference to matters personal to a particular offender or class of offenders; and

(b) wholly by reference to the nature of the offending. [see s.5A3 of the Sentencing Act 1991]

It is not in doubt that those specifications apply to the identification of the hypothetical ‘middle of the range’ offence.  The question which was explored at the hearing of these appeals was whether the new scheme required (or permitted) the sentencing judge to assess the seriousness of the subject offence ‘taking into account only the objective factors’ as thus defined.

The submission of senior counsel for the Director was that, on their proper construction, the scheme provisions neither required nor permitted such an assessment.  For the reasons set out in Part I, we would uphold that submission.  In our opinion, the standard sentence provisions do not have any bearing on the judge’s obligation to assess the seriousness of the subject offence.  That assessment remains a necessary part of the process of instinctive synthesis and it is not constrained by the legislative definition of ‘objective factors’.  Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence ‘in the middle of the range of seriousness’.”

32      I refer to the matter of Brown (op cit) at first instance, where Champion J stated at paragraphs [96]-[97] and paragraph [99] as follows:

“… Matters personal to a particular offender such as an offender’s age, state of health, family circumstances, employment and general background, are matters that bear little or no explanatory or relevant connection to the assessment of the nature of the offending.

However, matters such as the mental illness of an offender, the motivation for carrying out the offending, provocation, and aspects of duress, are examples of factors that can have a relevant causal connection to the offending, such that they are fundamental qualities of the offence. Such matters, by their fundamental nature, in my opinion can be relevant the assessment of the objective seriousness of the offence.

(Footnotes omitted.)

58      When coming to assess the seriousness of the various offences, I am of the view that the three indictable offences in relation to Indictment No. K10760081 occurred in aggravating circumstances in that, at the time of such offending, you were on bail.  As the Court has already noted, it was only within five months or so from being released on bail after your first period on remand that you were apprehended for the subsequent offending which was of a very similar nature – that is to say the trafficking of drugs at a serious level. 

59 I also note s.16 of the Sentencing Act 1991 that provides that every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment imposed on that person, whether before or at the same time as that term. However, s.16(1A) of that Act provides that sub-s.(1) does not apply to a term of imprisonment imposed on any person for any offence committed while released on bail in relation to another offence. I also refer to s.6(3C) of that Act, which provides that every term of imprisonment imposed on a person for an offence committed while released on bail in relation to any other offence or offences, must, unless otherwise provided by the Court, be served cumulatively on any uncompleted sentence or sentence of imprisonment imposed on that offence, whether before or at the same time as that term.

60      In part, for those reasons I consider there should be some reasonable degree of cumulation of the total effective sentence in relation to the offending which occurred in March 2019 (that is to say, the offences contained in Indictment No. K10760081) and the offending which occurred in 2018 (that is to say, the offences contained in Indictment No. J11948572.1).

61      However, I am of the view that there should be only limited cumulation in relation to Charges 2 and 3 on the second indictment.  Both those charges involved the offence of trafficking methylamphetamine in no less than a commercial quantity.  The first offence involved the methylamphetamine found in your motor vehicle and the second offence involved the methylamphetamine found when they searched your premises the next day after you were arrested.  Considering the principle of totality, I consider there should only be limited cumulation between such sentences for those offences.

62      In mitigation of your offending, I take account of the following:

(a)as I have already indicated, I consider that your pleas of guilty were early, although not perhaps at the earliest possible time.  I do accept that your pleas of guilty have the effect of saving the Court the time and cost of a trial, as is made clear by Phillips v R [2012] VSCA 140 at paragraph [36].

It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see again Phillips v R (op cit) at paragraph [96]).  I do accept that your pleas of guilty do demonstrate to some extent your willingness to facilitate the course of justice and acceptance of responsibility;

(b)you have no prior convictions for any offending and in particular no prior convictions for drug offending.  Indeed, as I have already pointed out in these Reasons for Sentence, your adult life up until your late forties was blameless and spent assisting people who had been diagnosed with cancer.  Again, your references describe you, among other things, as someone who was involved with your family, both your children and extended family.  Furthermore, you had an excellent history of employment up until the time you were terminated by Peter McCallum Hospital.

(c)your counsel submitted that your prospects of rehabilitation were “good”, given your lack of criminal history, history of employment, strong family support and no particular issues in prison.

However, I again refer to the report of Dr Barth, and in particular, at paragraph [54], where he states:

“Mr Nguyen was able to demonstrate a developing insight into the issues associated with his substance use, particularly in the context of his attempts to ‘self-medicate’ during periods of emotional distress. Notwithstanding this, his rehabilitation remains at a very early stage. Mr Nguyen lacks understanding into the development of relapse prevention planning and his coping skills during periods of emotional distress remain very underdeveloped. Mr Nguyen also continues to lack insight into his offending and has a surprisingly limited understanding of the broader negative impacts of drugs on society. He requires extensive substance abuse treatment if he is to enhance his rehabilitative prospects in the long-term. Containing Mr Nguyen’s drug abuse represents the most prominent criminogenic factor in his case.”

Although I accept that you do have a supportive family (such is made clear by the reference from your brothers), I consider that your prospects of rehabilitation are “guarded”, given what Dr Barth has stated, and your quick return to re-offending in a substantial way after you were initially bailed on 10 October 2018;

(d)I note that submissions were subsequently made by both counsel with respect to the impact of the COVID-19 Pandemic.  I do accept that the COVID-19 Pandemic has relevance to your sentence.

To date, the Court of Appeal has been hesitant to express a general statement of principle in relation to sentencing practice.  I refer to Brown v R (aka Davis) VSCA 60, a decision of Priest and Weinberg JJA on 23 March 2020; Sazimanoska v R [2020] VSCA 66, again a decision of Weinberg and Priest JJA, on 26 March 2020, and Nguyen v R [2020] VSCA 76, a decision of Niall JA and Croucher AJA, dated 1 April 2020. In particular, the court in Brown (op cit), at paragraph [58] stated:

“With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.”

(Footnote omitted.)

As noted by the Court of Appeal, it is difficult to make a statement of principle, as information continues to evolve when it cannot be deemed how precisely Corrections will react to that changing situation.  Of course, one must not speculate, but in general terms I do take account of the following:

(i)you are presently aged fifty-one, and have health problems, which include the bronchial condition of asthma;

(ii)your time in custody will be more onerous given the COVID-19 virus and the need to maintain social distancing which, of course, is far more difficult in a prison;

(iii)you are understandably anxious about your time in custody, given the COVID-19 Pandemic;

(iv)based on the evidence of Ms Hosking (the acting assistant commissioner, Sentencing Management Division, Corrections Victoria), there are limitations as to contact with visitors and limitations on the use of Skype;

(v)there is also the prospect of extended lockdowns during the course of your incarceration as a result of the virus;

(e)in all the circumstances, I consider that the hardship you will experience as a result of the COVID-19 Pandemic if imprisoned, is a factor to be taken into account in mitigation of your sentence.

Your sentence

63      

I intend to convict you of each of the offences and order various periods of imprisonment in relation to each of the offences.  In particular, I consider that general deterrence, just punishment, denunciation of the crimes and protection of the community are relevant sentencing considerations.  I also consider that specific deterrence is also relevant, given your history of

re-offending when on bail.

64      In relation to Charge 2 on Indictment No. J11948572.1 – that is, trafficking in methylamphetamine in a quantity that was not less than a large commercial quantity applicable to that drug of dependence, I have taken account of the following matters in coming to an appropriate sentence, bearing in mind that that offence is a standard sentencing offence.

65      I direct myself as to applying the appropriate process as set out in the Court of Appeal decision of Brown v R [2019] VSCA 286.

66      In particular:

(a)the sentence of trafficking in a large commercial quantity is subject to the Standard Sentence Scheme which specifies the standard sentence for such offence to be 16 years.  This period takes into account only the objective factors affecting the relative seriousness of that offence and is in the middle of the range of seriousness;

(b)the Sentencing Act 1991 requires me to have regard to a number of specified matters in sentencing you, including the standard sentence (see s.5(2)(ab) of the Sentencing Act 1991). In this respect, I am to take into account the standard sentence, one of the factors relevant to your sentencing;

(c)the standard sentence is to be treated as a legislative guidepost, having the same function as the maximum penalty, but does not affect the established instinctive synthesis approach in sentencing and does not require or permit two-stage sentencing or affect the matters which the Court may, or must, take into account in sentencing;

(d)the Court also concluded that the new scheme did not require or permit a sentencing judge to assess the seriousness of the subject offence, taking into account only the objective factors as defined in s.5AA(3) of the Sentencing Act 1991. Rather, a sentencing judge is obliged to assess the seriousness of the offence before him and that assessment remains a necessary part of the instinctive synthesis and is not constrained by the legislative definition of objective fact.

67      I take account of the following matters:

(a)      the maximum penalty for this offence;

(b)      the standard sentence;

(c)       the nature and gravity of this offence, and in particular:

– the subject offence occurred over a period of approximately eight weeks

– the weight of the methylamphetamine trafficked was 1253.1 grams, which is 1.67 times over the large commercial quantity, which is 750 grams

– the offending was not an isolated incident, but over a period of time, involving continuous transactions

– the value of the drug which was trafficked had a retail value which was relatively high

– I also take into account your previous character, which was free of any criminal behaviour, working in an area which gave great comfort and assistance to others who were suffering various cancer conditions.

– I also take account of your relatively early plea of guilty, some degree of remorse, the hardship which you would experience in prison as a result of COVID-19 and, indeed, as I have already indicated, give some very limited weight to your assertion that you were under some duress carrying out the subject offending.

68      Ultimately, after perusing all the relevant authorities, I have come to the view that your offending constituted by Charge 2 on Indictment J11948572.1 – that is, trafficking a drug of dependence of a large commercial quantity – methylamphetamine – although serious, falls below what would be regarded as middle of the range of seriousness when considering the objective seriousness of the offence and of that having a causal connection with the offending.  In such circumstances, I consider that a period of 10 years is appropriate.

69 I also refer to Part 2A of the Sentencing Act 1991, which deals with “serious offenders” and, in particular, a “serious drug offender”. A “serious drug offender” is defined in s.6B, to mean an offender, other than a young offender, who has been convicted of a drug offence for which he has been sentenced to a term of imprisonment. When you are convicted on Charge 2 to on the Indictment No. J11948572.1, you are defined to be a “serious drug offender”.

70 Any subsequent sentences for a “drug offence” must involve you being sentenced as a “serious drug offender”. Section 6B(1) of the Sentencing Act 1991 defines “drug offences” to mean an offence to which Clause 4 of Schedule 1 of the Sentencing Act 1991 applies.

71      This means that having been convicted and sentenced in relation to Charge 2 on Indictment No. J11948572.1, you will be sentenced as a “serious drug offender” in relation to Charges 3 and 4 on Indictment No. J11948572.1 and Charges 1, 2 and 3 on Indictment No. K10760081.

72 Section 6D of the Sentencing Act 1991 provides that in sentencing any serious offender for a relevant offence, the Court in determining the sentence, must regard the protection of the community as the principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than which is proportionate to the gravity of the offence, considered in the light of its objective circumstances.

73      Counsel for the prosecution did not seek disproportionate sentencing and, indeed, in all the circumstances, I do not propose to order a disproportionate sentence.

74 Section 6E of the Sentencing Act 1991, contains a presumption of cumulation between charges when sentencing “serious drug offenders”. As you fall into that category, I must consider the presumption when formulating your sentence. Any orders of cumulation must, however, be moderated to the extent necessary to give effect to the principle of totality (see Director of Public Prosecutions (DPP) v Bales [2015] VSCA 261 at paragraphs [42]-[44]. Totality requires me to ensure that your sentence remains “just and appropriate for the whole of your offending”.

75 Section 6F of the Sentencing Act 1991, directs that a court sentences a serious offender for a relevant offence must, at the time of doing so, cause to be in the records of the court in respect of that offence, the fact that the offender was sentenced for it as a serious offender.

Sentence

76      Please be upstanding.  I sentence you as follows.

77      In relation to Charges 1, 2, 3, 4, 5 and 6 on Indictment No. J11948572.1, together with uplifted Summary Charge 8 and uplifted Summary Charge 13, you are convicted of each of those offences. 

78      I sentence you as follows:

(a)      in relation to Charge 1, I sentence you to six months’ imprisonment;

(b)in relation to Charge 2, I sentence you to 10 years’ imprisonment.  This is the base sentence.

(c)       in relation to Charge 3, I sentence you to three years’ imprisonment;

(d)      in relation to Charge 4, I sentence you to three years’ imprisonment;

(e)      in relation to Charge 5, I sentence you to six months’ imprisonment;

(f)       in relation to Charge 6, I sentence you to six months’ imprisonment;

(g)in relation to uplifted Summary Charge 8, I sentence you to six months’ imprisonment;

(h)in relation to uplifted Summary Charge 13, I sentence you to four months’ imprisonment.

79      I direct that three months of the sentence in relation to Charge 1, one year of the sentence in relation to Charge 3, one year of the sentence in relation to Charge 4, two months of the sentence in relation to Charge 5, two months of the sentence in relation to Charge 6, three months of the sentence in relation to the uplifted Summary Charge 8 and two months of the uplifted Summary Charge 13, be cumulated with each other and with the sentence in relation to Charge 2.

80      The total effective sentence is 13 years.

81      In relation to Charges 1, 2 and 3 on Indictment No. K10760081 and uplifted Summary Charge 4 and uplifted Summary Charge 6, you are convicted of each of those offences. 

82      I sentence you as follows:

(a)      in relation to Charge 1, I sentence you to two years’ imprisonment;

(b)in relation to Charge 2, I sentence you to 3 years 6 months imprisonment.  This is the base sentence;

(c)       in relation to Charge 3, I sentence you to 3 years 6 months    imprisonment;

(d)in relation to Summary Charge 4, I sentence you to one month’s imprisonment to be wholly concurrently served with other sentences imposed on you;

(e)in relation to Summary Charge 6, I sentence you to one month’s imprisonment, to be wholly concurrently served with other sentences imposed on you.

83      I direct that one year of Charge 1 and four months of the sentence in relation to Charge 3 be served cumulatively with each other and with the sentence in relation to Charge 2.

84      The total effective sentence is four years and 10 months.

85      

I order that three years of the total effective sentence on Indictment

No. K10760081 be cumulated with the total effective sentence on Indictment No. J11948572.1.

86      The new total effective sentence is 16 years’ imprisonment and I further order that there be a non-parole period of 10 years.

87      I declare that you have served up to, but not including this day, 558 days in pre-sentence detention, and that such period should be administratively deducted from the sentence ordered against you.

88      I grant the application for orders for disposal and forfeiture and have signed appropriate orders.

89      Pursuant to s.6AAA, I declare that save for your plea of guilty, I would have sentenced you to a sentence of 21 years, with a non-parole period of 15 years.

90      I also declare that you have been convicted and sentenced as a serious drug offender pursuant to the provisions of the Sentencing Act 1991 in relation to Charges 3 and 4 on Indictment No. J11948572.1 and on Charges 1, 2 and 3 in relation to Indictment No. K10760081.

91      I have checked the cumulation a hundred times.  I think I am right, any problems with it?

92      MR PORCEDDU:  I have not had a look at it yet, Your Honour, I have noted them.

93      MR McGRATH:  If I can just have one moment, Your Honour.  I am missing a month, Your Honour, on the first indictment.  I just had the cumulation.

94      HIS HONOUR:  Wait, I will go back to that.  As much as you do these things, sometimes you reinforce when you read it, but I will just go back to it.

95      MR McGRATH:  Just concentrating on the cumulation, Your Honour, in relation to the - - -

96      HIS HONOUR:  This is the first indictment.

97      MR McGRATH:  First indictment, the base sentence is 10 years and I had cumulation of three months on Charge 1.

98      HIS HONOUR:  I will read what I have got here.  Three months on Charge 1, one year in relation to Charge 3.

99      MR McGRATH:  Yes.

100     HIS HONOUR:  One year in relation to Charge 4, two months in relation to Charge 5, two months in relation to Charge 6.

101     MR McGRATH:  Yes.

102     HIS HONOUR:  Three months in relation to uplifted Charge 8.

103     MR McGRATH:  Yes, that is my error, Your Honour, that is the only thing I missed.

104     HIS HONOUR:  And two months.

105     MR McGRATH:  Yes.

106     HIS HONOUR:  That is right?

107     MR McGRATH:  That is right now with that adjustment, Your Honour.  In relation to the cumulation on the second indictment.

108     HIS HONOUR:  Yes.  Maybe I will read it back to you then it might be the best way of doing it.

109     MR McGRATH:  Yes, thank you.

110     HIS HONOUR:  On the second indictment, I direct that one year of Charge 1 and four months of the sentence in relation to Charge 3 be served cumulatively with each other and the sentence in relation to Charge 2.  So that becomes four years, 10 months.  The base sentence was three and a half.  Extra year from Charge 1, four and a half, and four months to bring it up to four years, 10 months.

111     MR McGRATH:  Yes, so the sentence for Charge 3 on the second indictment was three years, is that right, Your Honour?  Three and a half, sorry, my fault.

112     HIS HONOUR:  Three and a half and as I indicated, I gave some very partial cumulation for the reasons I expressed.

113     MR McGRATH:  Yes, I follow, Your Honour.

114     HIS HONOUR:  Then there's the cumulation between the two indictments and I have taken three years of the second indictment cumulate that with the original 13 years.

115     MR McGRATH:  Yes, Your Honour, yes.

116 HIS HONOUR: So 16 years and 10 years. I did not state this in the sentence, gentlemen, but I think you will find 10 years works out to be about 62 per cent and it complies with s.16 or 17, whatever it is, of the Sentencing Act.

117     MR McGRATH:  Yes, Your Honour.

118     HIS HONOUR:  Anything more?

119     MR McGRATH:  No, Your Honour.

120     HIS HONOUR:  Yes.

121     MR McGRATH:  I will not speak to Mr Nguyen now.  I will speak to him on the - I will organise a video link in the near future and have a chat with him.

122     HIS HONOUR:  Yes, I think that is appropriate.

123     Gentlemen, thank you very much for your assistance.  It is always helpful when I have knowledgeable counsel, I can assure you.  Thank you, anything else to be said?

124     COUNSEL:  No, Your Honour.

125     HIS HONOUR:  No.  Thank you.

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