Director of Public Prosecutions v Ha

[2016] VCC 811

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00569

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH HA

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2016
DATE OF SENTENCE:	15 June 2016
CASE MAY BE CITED AS:	DPP v Ha
MEDIUM NEUTRAL CITATION:	[2016] VCC 811

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle	Office of Public Prosecutions
For the Accused	Mr Georgiou SC	Lewenberg & Lewenberg Solicitors

HIS HONOUR: 

1Minh Ha, on Indictment No.F13459105.1, you have pleaded to the following charges in this court today: 

2Charge 1, traffic in not less than a commercial quantity of a drug of dependence. The drug was methylamphetamine. The maximum penalty is 25 years' imprisonment. 

3Charge 2, traffic in a drug of dependence. The drug was heroin.  The maximum penalty for this charge is 15 years' imprisonment. 

4Charge 3, possess a drug of dependence. The drug was ephedrine sulphate.  The maximum penalty for that charge is five years' imprisonment. 

5Charge 4, you are a prohibited person in possession of a firearm.  This has a maximum penalty of ten years' imprisonment. 

6Charge 5, traffic in a drug of dependence. The drug in this case was cocaine.  The maximum penalty is 15 years' imprisonment. 

7Charge 6, possession of a drug of dependence. The drug is adrenaline.  The maximum penalty is five years' imprisonment.

8You have also pleaded guilty to three related summary offences which were transferred to this court, pursuant to s.145 of the Criminal Procedure Act. 

9Related summary charge 9, which is deal with the proceeds of crime.  It was a total of $80,160.  This has a maximum penalty of two years' imprisonment. 

10Related summary charge 11, possess a prohibited weapon. The weapon was an extendable baton.  This has a maximum penalty of two years' imprisonment. 

11Related summary charge 13, possession of ammunition.  This has a maximum penalty of 40 penalty units.

12The circumstances of the offences. 

13On the day of the search, that is 9 October 2015, you were at home in St Albans, where you live with your mother, father and sister.  At approximately 12.30 pm, police attended and executed a search warrant.  You were at home at that time with your mother and your father.  You then identified your bedroom to the police and stated that you had a small amount of drugs and cash in your bedroom as well as a firearm.  Police conducted a full search of your bedroom.  During the search police located and seized a number of items.

14In respect of Charge 1, the police seized a number of quantities of crystal substance.  The crystal substance was analysed and a total of 846.4 grams of methylamphetamine at 80 per cent purity was the result of that analysis.

15In respect of Charge 2, a substance was seized and analysed and found to be 68.3 grams of heroin at 12 per cent purity.

16In respect of Charge 5, a substance was seized and analysed and found to be 24.5 grams of cocaine at 64 per cent purity.

17In respect of Charge 3, three ephedrine sulphate injection vials were located in your bedroom.

18In respect of Charge 6, a Louis Vuitton box containing one vial of adrenaline was located in your bedroom.

19The prosecution case of trafficking is that you had the drugs in your possession for sale.  The drugs of ephedrine sulphate and adrenaline are prescription medications for which you did not have a prescription.  The other charges relate to weapons, money and ammunition. 

20In respect to Charge 5, you were in possession of Webley Scott Rebel air rifle and a quantity of air pellets.  Further enquiries were made by the police in relation to the firearm found in your bedroom.  The Webley Scott Rebel air rifle, serial No.A2148794, was stolen on 30 July 2015 from a residential burglary where ten other firearms had also been stolen.  This firearm was lodged by a First Constable at the Forensic Services Department Ballistics Unit on
4 November 2015.  The firearm was test fired and it was assessed as being in working condition.

21Police also located two boxes of Winchester centre fire cartridges for a .32 automatic firearm during the search warrant.  You did not hold a valid firearm's licence and were a prohibited person, as per the Firearms Act 1996, as you were the subject of a 12 month community corrections order imposed on
30 July 2014.  You remain a prohibited person for a period of five years after the expiry of that order.

22Related summary charge 9 is the result of the seizure of $80,160 found in your bedroom as being suspected of being the proceeds of crime.

23Related summary charge 11 is the result of the extendable baton also located in your bedroom.

24Related summary charge 13 is the result of police finding the two boxes of Winchester centre fire cartridges for a .32 calibre automatic firearm in your bedroom.  A gun fitting that ammunition was not found in the search.

25The police also found assorted items of glassware, numerous phones and laptop computers that do not form the basis of any of the charges.

26In summary, the police search on this day found the lethal combination of trafficable quantities of drugs, money and weapons in your bedroom. 

27Upon arrest and after receiving legal advice you exercised your right to make essentially a "no comment" record of interview.  You did admit the items found in your bedroom were yours, save and except for the money. 

28You have been in custody since your arrest on 9 October 2015.  You have served 251 days of pre-sentence detention.

29On 11 April 2016, you entered pleas of guilty to the charges on the indictment and the related summary matters before this court.  I consider this to be an early plea.

PERSONAL CIRCUMSTANCES

30At the time of the offending you were 25 years old.  You are now 26.  In 2001 you migrated to Australia with your father, mother and older sister.  At the time of these offences you were living with your family.  Your father is a self-employed carpenter and effectively runs his own building operations.  Your mother is engaged in home duties.  Your older sister is studying early childhood development and childcare.  You have had the advantage of a close and good relationship with your family. 

31Your early education was in Vietnam.  You completed primary education at Keilor Downs Primary School.  You then attended St Albans Secondary College.  You completed Year 12 on a VCAL or VET course.  The subjects included English, Mathematics, Vietnamese and Certificate 2 in Building and Construction.  At the time of your arrest you were studying part time at Victoria University doing Certificate 4 in Building and Construction.  Exhibit 2 was your work book from that course.  The work book was a clear indication of your abilities and your potential.

32After you left school you worked in computer related work at, amongst other places, Coles and IBM.  You also worked for you father in building work and were a trainee carpenter.  Your ambition is to return to work for your father upon your releases from custody and go into the building industry in general.

33When aged 20, you had a relationship with a Ms Nguyen.  Ms Nguyen was a Monash University student studying accountancy and her family did not approve of you due to your lack of tertiary qualifications and education in general.  The relationship lasted for some 12 months.  After the collapse of the relationship you increased your use of ice and ecstasy.  In 2011 you moved out of your parents' home.  By 2013, your use of ice was a daily occurrence and your life was spiralling into criminality.

34You have two prior court appearances. The first was on 30 July 2014, where you were dealt with for using and trafficking methylamphetamine and dealing in property suspected of being the proceeds of crime.  On that occasion, without conviction, you were placed on a 12 month community corrections order with conditions, one of which included drug rehabilitation.  The next day at the same court you were dealt with for the possession of a prohibited weapon charge and on a non-conviction basis you were fined $500.  Both sets of these prior court appearances are directly relevant to the charges before the court.

35The reason given for your offending is that you sold drugs and other items to repay debt and to support your own drug use.  This time in custody is your first time in custody.

36For the purposes of this plea hearing, you have been assessed by Mr Patrick Newton, forensic psychologist.  Mr Newton prepared a report, dated 8 June 2016.  It was Exhibit 4 on the plea.  Mr Newton reports on a history of drug use since 2009.  Your drug use escalated after the breakdown of your relationship with Ms Nguyen.  You have increased your drug taking despite the imposition of a CCO in July 2014. 

37The CCO had, as I said before, a condition to assist you with your drug addiction.  You told Mr Newton that you did not participate much in the drug-related counselling or education.  You also told Mr Newton that you were ambivalent about participating in drug treatment whilst in custody.  Rehabilitation from drug addiction can only successfully take place if the drug addicted person, in this case you, is motivated to seek the treatment.  In your case you have not shown a genuine desire to rehabilitate from drug addiction at this stage.

38Mr Newton diagnosed you as having the symptoms of adjustment disorder with anxiety.  Mr Newton also diagnosed you as suffering from severe methylamphetamine use disorder.  Mr Newton reported that your anxiety and depression is a response to your incarceration and the uncertainty of your future liberty. 

39Whilst in custody, you have been subject to random urine sampling.  You had negative tests to drug testing on four occasions.  The test results are Exhibit 3 on the plea.  This is a positive indicator for rehabilitation from drug addiction for you.

40Your father and uncle gave evidence in the course of your plea hearing.  Your father gave evidence that when you were young he was not close to you and that was his mistake.  In effect he was blaming himself for your predicament now before the courts.

41I accept that in your case that there may have been a cross cultural gap between your parents' values and culture from Vietnam and your growing up in a Western culture here in Australia.  It is not your parents' fault that you have offended.  It is your doing and you have brought great shame and disgrace to your parents.  Their pain at your current position is plain to any casual observer. 

42Your uncle, Mr Bui, your mother's brother, gave evidence that he loves you and will support you upon release from prison.  He, together with your father and mother and other uncles have visited you and supported you whilst you are in prison.  It would be a painful journey for each of them to see you locked up and come away from prison knowing that your life could have been much better, more productive and positive.  You cause them that pain.  I assess that you understand the shame and pain you have caused your family and that is the beginning of your path of rehabilitation.

SENTENCING CONSIDERATIONS

43The basic purpose for which a court may impose a sentence of imprisonment is just punishment, deterrence both general and specific, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offences, your culpability for them and your personal circumstances. 

44I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, offenders such as yourself are rehabilitated and reintegrated into society.  I am also required to take into account current sentencing practices when fixing a sentence for your offending.  Your case is different in its own factors from the factors of other cases as they are all different from one another. 

45The plea of guilty by you for these charges has a utilitarian value to the community.  The cost of a trial has been spared.  Your plea of guilty has given certainty of outcome in respect of your guilt for these charges.  A plea of guilty is evidence of your remorse.  Your plea of guilty is at the earliest stage and I accept that you are remorseful for the disruption and the effect that you have had on your family.

46I accept that your pleas of guilty are a clear display of your willingness to facilitate the course of justice in the community.  Your plea of guilty also displays an acceptance by you of your responsibility for your criminal actions.

47You have prior criminal history for trafficking in drugs and dealing in the proceeds of crime.  You have prior court appearances for drug use and possessing a prohibited weapon.  These charges are direct criminal offending related to the charges you are to be sentenced for in this hearing.  That is an aggravating feature of these offences.  Trafficking in drugs is a serious offence.  The only appropriate sentence is a term of imprisonment. General and specific deterrence require imprisonment for these offences.

48You are a relatively young man and this is your first time in custody.  You have strong family support and prospects of work with your father as a carpenter upon your release from prison.  If you can control your drug addiction, I assess your chances of rehabilitation as being reasonably good once you are released from prison.

49In this case there are a number of charges relating to drug trafficking and possession of a firearm whilst being a prohibited person.  The court has to be mindful of the principles of totality so as not to impose a sentence that is crushing upon you. 

50I will impose a level of cumulation that fairly represents the totality of your criminal offending.  I have fixed a non-parole period which allows for a lengthy and appropriate supervision and assistance under the control of the Parole Board.

51On Charge 1, you are convicted and sentenced to three years and three months' imprisonment.  That is the base sentence.

52On Charge 2, you are convicted and sentenced to one year imprisonment.

53On Charge 3, you are convicted and sentenced to three months' imprisonment.

54On Charge 4, you are convicted and sentenced to one year imprisonment.

55On Charge 5, you are convicted and sentenced to nine months' imprisonment.

56On Charge 6, you are convicted and sentenced to three months' imprisonment.

57On summary Charge 9, which is the proceeds of crime charge, you are convicted and sentenced to six months' imprisonment.

58On summary Charge 11, you are convicted and sentenced to one month imprisonment.

59On summary Charge 13, you are convicted and fined $500.

60In respect to cumulation, as I said, Charge 1 is the base sentence.  Three months of the sentence in Charge 2; one month of the sentence in Charge 3; five months of the sentence in Charge 4; two months of the sentence in
Charge 5; and one month in the sentence of Charge 6; and three months of the sentence in summary Charge 9 are to be served cumulatively upon the sentence in Charge 1 and on one another.

61That is a total effective sentence of four years and six months.

62I fix a non-parole period of two years and six months.

63I declare that you have served 251 days pre-sentence detention and that time is to be deducted from your sentence.

64Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty, I would have sentenced you to six years with a minimum non-parole period of four years' imprisonment.

65I have signed the forfeiture orders sought, the disposal orders sought and the s.464ZF, which is a forensic sample order and I will just explain to you what the last of those means, Mr Ha.

66The authorities, that is the prison authorities will seek to take from you a swab from the inside of your mouth.  They are authorised to use reasonable force if you do not comply with that.  Do you understand that?  Thank you.

67COUNSEL:  If Your Honour pleases.

68HIS HONOUR:  Is there anything else I need to deal with?

69MR DOYLE:  Your Honour, I should just clarify one matter that I said, that I expressed clumsily.

70HIS HONOUR:  Yes.

71MR DOYLE:  In respect of the methylamphetamine, the point that I added was that it was less 750 pure which is the large commercial, so when you looked at the - the percentage purity was less than 750, I did not mean - I know I expressed it poorly and I did not mean to say it was 750, it was in fact 690.

72HIS HONOUR:  All right.

73MR DOYLE:  Sorry, Your Honour.

74HIS HONOUR:  That is all right.  I will just revise that to read 690 grams.

75MR DOYLE:  Yes.

76HIS HONOUR:  Of it was at 80 per cent purity.  Is that right?

77MR DOYLE:  No, no, 690 was the total pure.

78HIS HONOUR:  Right.

79MR DOYLE:  The point I was making was - the point the certificate made was that when you looked at the pure amount it was less than - it never got to the 750 pure, that was the point that the certificate made that I expressed poorly.

80HIS HONOUR:  Fine.

81MR DOYLE:  It was in fact 690 or thereabouts.

82HIS HONOUR:  All right.  I will amend my sentencing remarks to read as follows.

83MR DOYLE:  Yes, yes.

84HIS HONOUR:  The crystal substance was analysed and a total of 846.4 grams of methylamphetamine at 80 per cent purity was the result of that analysis.

85MR DOYLE:  Yes.  Thank you, Your Honour.

86HIS HONOUR:  Mr Ha, you have got a bit of time inside in front of you.  Do not look in and mix with forever more those that you are with, look outside the prison to your family.

87Thanks.  Sorry, if you would remove prisoner, thanks.  Thank you.

88(Forfeiture order signed and acknowledged.)

89(Disposal order signed and acknowledged.)

90(Section 464ZF order signed and acknowledged.)

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