Director of Public Prosecutions v Ha

IN THE COUNTY COURT OF VICTORIA

Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR-14-02194

DIRECTOR OF PUBLIC PROSECUTIONS

TUAN HA

---

JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 May 2015
CASE MAY BE CITED AS:	DPP v Ha
MEDIUM NEUTRAL CITATION:	[2015] VCC 445

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

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. B. Nankin	Office of Public Prosecutions
For the Accused	Ms. C. Dwyer

HIS HONOUR:

Mr Ha, you pleaded guilty to one count of trafficking amphetamines, and two counts of possessing drugs of dependence. You have further consented to this court dealing with two summary offences pursuant to s.145 of the Criminal Procedure Act. You have heard the learned prosecutor tell this court that the maximum sentence that can be imposed for each of these offences are the following:
The trafficking count attracts, taking into account the quantity of drugs, 15 years imprisonment. Each of the two possession charges of drugs of dependence, each charge attracts a maximum of five years. The two summary offences, the first one being possess proceeds of crime or deal with the proceeds of crime as a maximum, attracts one year's imprisonment and possessing a prohibited weapon as a maximum attracts two years imprisonment as a maximum.
Mr Ha you have pleaded guilty to these offences. For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed. In other words, you receive a discounted sentence for having pleaded guilty.
Mr Ha, it was on Friday 13 June 2014 that police officers executed a search warrant at your home. You were present as the police, with the assistance of a passive detection dog, searched the premises. I am now quoting directly from the prosecution opening. It was said in that opening:
"Underneath a wound-up hose, in the rear sunroom of the house, the police officers located seven zip-lock bags containing 163.8 grams of crystals. Under the bed in your bedroom police located a zip-lock bag containing 1.8 grams of crystals. The total weight of these crystals was 165.6 grams. They were examined and found to contain methyl amphetamine. The approximate purity of the methyl amphetamine was 90 per cent. The total quantity of methyl amphetamine in the crystals was 149 grams. Also located in the sunroom, were digital scales and a notebook containing names and phone numbers. DNA was later recovered from the seal of the seven bags. There was extremely strong support for the proposition that the DNA on the bags was yours. On the workbench in the sunroom police located a zip-lock bag with sandpaper rolled around it. That bag contained 265.8 grams of crystals. Those crystals were examined and found to contain methylone. The approximate purity of the methylone was 60 per cent. The total quantity of methylone in the crystals then equates to 159 grams. DNA was later recovered from the seal of the bag. There was strong support for the proposition, that the DNA on the bags was yours. In a cup above a table in the sunroom, was a zip-lock bag containing 33 tablets, four tablet portions and point 08 grams of powder. The tablets and powder were analysed and found to contain MDA, commonly known as Ecstasy – “eccie pills”. The total weight of the tablets and powders was 7.5 grams. As to the two summary offences, behind your bed and in your bedside drawer was a total of $21,075 in cash. Located in a hardware container above the workbench in the sunroom, was a conductive energy device; in more common language, known to many as a Taser. That device was charged and operational."
Mr Ha, you were arrested on this day and taken to the Footscray Police Station where you were interviewed. Whilst you admitted that the drugs were found in your house, you made no admissions as to trafficking in amphetamines. Again, you admitted purchasing the Ecstasy tablets. You denied handling the bags containing the methylone or the methamphetamine and the DNA that I mentioned earlier, taken from the bags most certainly implicated you in handling that material.
As to the Taser weapon, you insisted that a friend from overseas gifted you this weapon; that that gift was some years earlier; that is, prior to the police officers attending your house on this day.
Mr Ha, you committed these offences whilst on bail for other offending. As I mentioned earlier, you have been in custody since you were arrested on 13 June 2014. I do note that you have served a prison sentence in relation to what you were on bail for, and I speak about this again, you served a prison sentence for those offences from 27 June 2014 until 26 December 2014. I will come back to that in a moment.
In respect of these offences for which I must sentence you today, you have served 150 days of imprisonment. That does not include today.
Mr Ha, you are now aged 51, having been born in Vietnam on 1 July 1963. You completed the equivalent of Year 12 in Vietnam. Your mother and father were hardworking folk. Your father was in the South Vietnamese Army. Both of your parents are now deceased. Unhappily your father dies whilst in a Vietnamese prison, no doubt to do with the unhappiness of what was occurring back in the 1990s. Your mother passed away about five years ago.
On the passing of your mother, you returned home to Vietnam to assist in finalising your late mother's affairs. It was after your mother's passing that you descended into using and abusing drugs: unusual for your age, but there you are. You indeed have increased your drug use during the past five years. You became addicted to ice, using in excess of 1 gram per day. Not surprisingly, this drug use and your addiction has brought much unhappiness to your home; to your business and to your loved ones.
Your wife has written to the court. This letter adequately spells out the devastation you have brought upon your family and loved ones, having become entrapped in drug use. I quote directly from your wife's letter, as it is written:
"When he was caught, we were disappointed. We were angry with all the thing he has done. Something happened when we had a Vietnamese coffee shop in St Albans. He met new people. He lost interest in the business. I blamed him about everything. The business was lost. I had to work long hour and had no time to take care my two teenagers. His parents' passed away around this time as well. Our relationship became worse. I did not recognise his depression, leading him to a drug user. He lost nearly 10 kilograms; his appetite changed, his sleep routine changed, and also his behaviour. He became anxious and paranoid when he consumed drugs. He believed in his willpower to overcome his addiction. He needs proper help."
I am not being flippant, but I do agree with that observation made by your wife. You need help. Your wife also informs me in this letter:
"He had financial problem. People came to collect his debt to upset my daughter so much."
I am sure I understand what she means by that; by those debt collectors turning up, it upset your daughter.
Not only have you caused significant anguish to your wife and children, you have lost your business and it is all down to your drug addiction. Your counsel, Ms Turnbull, in her plea on your behalf, has indicated you feel great shame and embarrassment, particularly in letting your two children down, one of whom is here today.
I am told your son is studying mechanical engineering. He also pursues part time work in the central business district. Your daughter, who is also studying: her choice of studies are psychology at the Monash University out in Clayton where she is excelling. Your daughter also, like your son, has a part time position with McDonalds. I am further told, because of your daughter's capacity and good results, she is shortly to journey to the United States of America to further her educational opportunities. Your counsel Ms Turnbull says on your behalf, that you are extremely remorseful. You further feel that you have let your children down by this offending. As Ms Turnbull says, you are justifiably proud of the achievements of both your son and your daughter.
Mr Ha, in addition to your plea of guilty that is an indication of your remorse. Together with what Ms Turnbull has said, I accept that you are genuinely remorseful for your actions in becoming involved in this wretched drug culture, particularly at your age.
Turning to your rehabilitation, your nephew who was here five or six days ago and again today, he demonstrates further familial support for you, as does your son. Your nephew, this young man Phong Than, indicates that you have work available in his restaurant once you are released from custody. In his letter to me, he indicates that you are a capable chef, and you are welcome to work in his business when released.
Up until all of this criminal activity, you have had an excellent work ethic. You were an industrious man and have been so since coming to Australia. You first worked as a packer in a factory, before then becoming self-employed sewing in the clothing industry, where you worked at that business for approximately seven years, before then running the takeaway business in Footscray from 2000 to 2014 and your wife has mentioned that in that letter that I read to the transcript of this court.
Whilst in custody, you have completed a Kangan Institute course. That is apparently also to do with the clothing and sewing industry. You further produced documents indicating that whilst in custody you have produced negative substance abuse testing results.
Mr Ha you accept that you need counselling and support to rehabilitate, particularly with respect to your drug addiction. I will pause there for a moment. Every day you pick up the newspaper, see it all in there again today. It is an extremely addictive drug - methylamphetamine - and you need a lot of support to escape its' clutches. Your counsel, Ms Turnbull, in her plea, raises the principles of totality in sentencing, and those principles that this court must address itself to, to arrive at an appropriate sentence in your present circumstances. Before I just mention that, I said I'd return to the difficulties you have encountered, I again mention the aggravating feature that you are burdened with, is that this offending was perpetrated whilst you were on bail, and those offences for which you were on bail, have a similar content or flavour.
I again return to, and I hope this is adequately explained; since being arrested for this current set of offences, and since being arrested for these matters, you hved been sentenced now for the matters for which you were on bail and I mentioned that you were in prison and I quoted the dates in relation to those matters you were in prison from a date in June to a date in December.
Obviously that sentence has been completed and you are entitled to credits for the other days, that is, the days before that sentence was imposed, and since that sentence ceased, until today and that is how both the barrister representing the prosecution and yourself agree, that that credit is 150 days, as you see you have been in prison in relation to other matters, and that is what draws the attraction for the totality principles.
Briefly, in the case of R v Piacento 15 VR 506 507, Eames J quoted McHugh J from the High Court case of Postiglione. Among other things McHugh J said:
"Totality requires an evaluation that the overall criminality involved in all the offences with which the prisoner is charged; that it extends to the total criminality involved, not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence."
Of course, in your instance, that sentence was completed and that is why I mentioned it specifically a few moments ago. Again, as I said, you have completed the sentence for those other offences. You are now simply being held in relation to these current charges.
I assure you Mr Ha that I have taken into account the time you have spent in custody since your arrest for these current offences and the sentence served in respect of those other matters. I also take into account, as I have already said, everything that was said by Ms Turnbull in your plea, it was an early plea, and your prospect of rehabilitation and I have mentioned your good work ethic and the fact that the family remain supportive and a job is available on your release. Could you stand up please:
Your wife spoke of the financial difficulties and devastation wrought upon your entire family unit, perhaps relating to your ill-health in terms of depression and things of that nature; the loss of your parents, particularly your mother recently, but I must also recognise that despite your personal financial difficulties referred to by your wife, also properly raised by Ms Turnbull in her eloquent plea, you had excess of $20,000 in cash hidden in your home in the proximity of your bed or bedroom. This sum indicates at least, a very active cash business in drug trafficking, one infers that that substantial sum of cash money came into your possession because of this awful, wretched criminality within the drug scene.
On Count 1 which is the trafficking count, you are convicted and sentenced to two years' imprisonment.
On each of Counts 2 and 3, them having a direct relationship to Count 1, on each offence the prisoner is convicted and sentenced to 9 months imprisonment, each of those terms of imprisonment are to be served concurrently with a sentence imposed on Count 1.
On the first summary offence, I will just call it that without numbering it, but identified as the proceeds of crime, that is the cash, and again that relates directly to the trafficking and the possession, to be sentenced to 14 days imprisonment. That sentence also to be served concurrently with the sentence imposed on Count 1.
The second summary offence, that is the possession of the Taser, convicted and sentenced to 14 days imprisonment. That 14 days is cumulative to the sentence imposed on Count 1.
In respect of the two years and 14 days imprisonment, I fix a minimum non-parole period of 15 months. Pursuant to s.18 of the Sentencing Act, the prisoner is ordered to be given credit for already having served 150 days of imprisonment. Pursuant to s.6AAA, I always find this difficult, but I believe in the circumstances, I would have imposed at least a prison term of three years with a minimum of two years, and just for the record, it is hardly necessary but I will say it again - on the previous date that we came together, forfeiture orders and disposal orders were made.
- - -

[2015] VCC 445

11 May 2015