Director of Public Prosecutions v Giang

[2017] VCC 1373

IN THE COUNTY COURT OF VICTORIA  Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00114

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIEN GIANG

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 September 2017
CASE MAY BE CITED AS:	DPP v Giang
MEDIUM NEUTRAL CITATION:	[2017] VCC 1373

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Ms G. Morgan

Pages 1 - 7

 

 

HIS HONOUR: 

1Tien Giang, you are to be sentenced for one charge of trafficking the drug of dependence methylamphetamine in a commercial quantity.  The maximum sentence is 25 years' imprisonment. 

2You pleaded guilty in this court on 15 November 2016.  When interviewed by police on 19 November 2014 you mainly exercised your right to silence.  You were charged on summons nine months later on 25 August 2015.  There seems to have been delay in testing the drug seized from you.  There was a contested committal in February 2016.  Issues raised were knowledge of the contents of the package you collected and the quantity of drugs.  The matter was listed for trial in this court on 14 November 2016.  It resolved and you pleaded guilty to this offence.  I note that you had been indicted for the more serious offence of trafficking in a large commercial quantity.

3You receive the benefit of your plea of guilty and the level of cooperation that short history of the proceeding shows.  I bear in mind that you have pleaded guilty to an offence less serious than that originally charged. 

4At you plea hearing, which ran on 6 September, Mr Pickering for the Crown tendered a written Crown opening.  He also provided to me the sentencing reasons of Judge Cannon of this court.  You were sentenced for offences of armed robbery and false imprisonment on 30 March 2011.  Ms Morgan for you tendered documents and certificates related to negative drug screening and rehabilitation programs in remand custody, the neuropsychological report of Martin Jackson dated 1 September 2017 and the forensic psychological report of Dr Aaron Cunningham dated 31 August 2017.  Ms Morgan provided a written outline of submissions on plea.

5The circumstances of your offending are set out in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be short. 

6In July 2014 there commenced a Victoria Police operation into manufacture and trafficking in amphetamines.  You were not a target.  A man named James Yoxon was.  You were recruited by Yoxon to collect a package of drugs for him.  Your offence is confined to activity on 19 November 2014.

7Yoxon and you made contact on that day by mobile phone.  Under police surveillance directed at Yoxon you met at about 6 pm in Chelsea Heights.  You travelled in separate cars, you following him, to the Werribee Plaza shopping centre in Hoppers Crossing.  Whilst Yoxon waited in the car park there you retrieved a package from the Australia Post 24-hour parcel locker system and returned to your car.  The locker required a code assigned to the registered owner; it is not said that you were the owner.  Both vehicles left the area and were intercepted by police in Oakleigh.  Yoxon was charged, but the proceeding against him has been discontinued. 

8The package seized from your car had been sent by post to the locker from the United States.  It contained two bottles marked "vampire blood".  Each bottle contained about half a litre of fluid.  Testing revealed a methylamphetamine of 12 per cent purity in one bottle and 7 per cent in the other.  The total pure weight was 107.63 grams.  By legislation the commercial quantity weight threshold for pure methylamphetamine is 100 grams.  It is not suggested that you were involved in the importation.

9I accept the proposition that the quantity of drug is at the lower end of the commercial quantity range.  Ms Morgan's outline of plea submission puts the circumstances of your culpability in paragraph 5,

"His plea constitutes an acknowledgment that he knew that the box contained an unlawful drug of dependence.  Further, having collected the box, that it weighed enough for him to be aware that it contained a commercial quantity of the drug.  There was no evidence that he had specific knowledge of the contents of the unopened box".

10This has not been challenged.

11You are a 33-year-old man presently awaiting this sentence in remand custody.  Your parents separated when you were in late teenage.  They both remain supportive of you despite your long struggle with drug addiction.  They and other members of your family attended the plea hearing.  A number are here today.  You have an older sister who lives in Queensland with her family.

12You left school in Year 9 and worked for your father at his panel beating business.  You began an apprenticeship in that at 20.  Drug use interrupted it after two years.  You recommenced and completed another year in your mid-20s.  You have been in a long-term relationship with your partner now for over 17 years.  She also supports you and attended court.  You have two children,  aged eight and ten.  You seem to be a good father when not using drugs.  Your partner is not a drug user and I have little doubt that she has been loyal and long-suffering.  You have not always lived together, including at time of this offending.  Ms Morgan stated that you were out of home, had relapsed into drug use and were effectively homeless.

13You began using cannabis at 13 and then heroin at 15.  In the last ten years you have also used methylamphetamine.  It is clear to me that you suffer drug addiction.  Supported by your family you have made several attempts at rehabilitation from that, including a naltrexone implant over two years, periods of detoxification and counselling.  You have taken methadone.  There have been periods of abstinence but clearly also relapse.  In remand custody you have reduced your methadone intake to a low dose of 25 milligrams daily.

14The expert neuropsychological and psychological evidence states some, I would find, mild cognitive deficits related to acquired brain injury, fundamentally normal albeit low-average intelligence and symptoms of depression, anxiety and post-traumatic stress disorder.  You now take antidepressant medication in custody. 

15I agree with Ms Morgan's submission that imprisonment is and will be more difficult for you because of your psychological condition and the risk of its deterioration.  Neuropsychologist Martin Jackson expresses some concern at deterioration of that condition in prison.  The Verdins principles are not otherwise relevant.

16Your criminal history is not lengthy and is also consistent with your history of drug use.  There are three prior court appearances between December 2005, when you were 22, and March 2011.  I would find that they relate directly and indirectly to drug dependence.  In March 2011 Judge Cannon of this court sentenced you to three and a half years with a minimum term of 22 months for armed robbery and false imprisonment.  As stated, I have been provided with her sentencing reasons which state the circumstances of that offending.  In December 2005 you received a community corrections order for offences including trafficking heroin.

17Drug trafficking is a serious and community-damaging offence.  At this quantity, albeit at its lower end, it attracts a high maximum term.  You have a relevant criminal record.  Your drug dependence, which of course explains vulnerability to recruitment by Yoxon, is of limited if any mitigation given the other relevant sentencing purposes and considerations.  Those particularly include general and specific deterrence, your moral culpability and a need to both condemn and proportionately punish your offence.  There must be, as conceded on your behalf, a sentence of imprisonment with a minimum term.

18I take into account moderating factors which should go to reduce that sentence compared to what the objectively viewed seriousness of your offending may otherwise require.  These include the following matters.   (1) Your plea of guilty and cooperation; I find that you are remorseful.  (2) To some extent the circumstances of your involvement and of the offence. (3) Your personal circumstances including your psychological health. (4) I have considered the prospects of your rehabilitation.  Prior to being remanded in November 2016 you appear to have been drug-free for about nine months, again supported by your family.  You worked six days a week at a panel beating business owned by your father's friend.  You did not live with your partner but went to the home each morning and evening to care for the children.  You lived with your father.  Of course a number of times in the past your drug addiction has overcome periods of rehabilitation and prospects for continued rehabilitation into the future cannot be seen as high.  However, I do not discount them.  You are at an age when it is sometimes achieved.  Upon release from prison you will likely have work opportunity.  You will have the support of your family and one hopes the motivation of wishing to be a father to your children.  It all depends upon abstinence from drug use.

19(5) There has been delay now of almost three years since the offence.  There has been the stress and anxiety of that and you have attempted to rehabilitate over part of that time. 

20I have also considered current sentencing practices.  Mr Pickering properly conceded that the recent Court of Appeal judgment in Gregory v The Queen, dealing with that as to commercial quantity, trafficking, is not really aimed at this type of case.  Having considered and weighed what I see to be the relevant matters, I sentence you as follows.

21Stand up, please.

22On one charge of trafficking a drug of dependence in a commercial quantity you are sentenced to three and a half years' imprisonment. I set a minimum term before eligibility for parole of two years. Under s.18 of the Sentencing Act I declare 311 days of pre-sentence detention.  Under s.6AAA I indicate that had you not pleaded guilty I would have imposed a sentence of five years with a minimum term of three and a half years.  What are the other matters that - take a seat, please.

23MR PICKERING:  There was a disposal order, Your Honour, which I understand was being E-lodged, which we ‑ ‑ ‑

24HIS HONOUR:  Have you got the hard copy? 

25MR PICKERING:  I have hard copies of those as well.

26HIS HONOUR:  Thank you.  I'll sign that.

27MS MORGAN:  I've seen that, Your Honour.  There's no opposition to the making of that order.

28HIS HONOUR:  Good, thank you.  What's the situation in relation to any forensic sample?

29MR PICKERING:  I believe he's been profiled previously.

30HIS HONOUR:  Thank you.  The disposal order relates to the consignment note and the box, the other legal contents and mobile phones.  I will sign that.  Yes, is there anything I need to do?

31MR PICKERING:  No, Your Honour.

32HIS HONOUR:  Good, thank you.  Thank you for your assistance the other day and today.  People have come to support Mr Giang, they are in court.  They may speak to him before he gets taken back into custody.  It must be for a short time, though. 

33MR MORGAN:  Yes, Your Honour.

34HIS HONOUR:  I will remain here whilst that happens if you wouldn't mind supervising that.

35MS MORGAN:  Yes, Your Honour.

36HIS HONOUR:  Yes.  You can speak to your son and to your partner about ‑ ‑ ‑

37MS MORGAN:  If I might be permitted to leave the Bar table.

38HIS HONOUR:  Sorry?  Do you wish to speak to your son?  You may speak to him; it's got to be quickly.  All right, Mr Giang must be taken into custody now, thank you.

39MS MORGAN:  Thank you, Your Honour.

40HIS HONOUR:  Yes, you're both excused.  Thank you.  You can leave the Bar table if you wish, Mr Pickering.  I'll wait for the next matter.

41MR PICKERING:  Your Honour.

42HIS HONOUR:  Thank you.

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