Director of Public Prosecutions v Ha
[2014] VCC 764
•21 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-10-00460
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEN HA |
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| JUDGE: | HIS HONOUR JUDGE MAIDMENT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 May 2014 |
| DATE OF SENTENCE: | 21 May 2014 |
| CASE MAY BE CITED AS: | DPP v Ha |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 764 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr. W. Dwyer | |
| For the Commonwealth | Ms. L. Skoblar | |
| For the Accused | Mr. P. Morrissey SC |
HIS HONOUR:
1You can remain seated for the time being. Ken Ha, you pleaded guilty to an indictment charging you with three offences of trafficking in a drug of dependence. The first offence alleges that you trafficked between 22 April 2008 and 25 September 2008 in methylamphetamine; Charge 2 concerns trafficking in the same drug on the one day, the day of your arrest, 25 September 2008, and Charge 3 concerns trafficking in MDMA on the same date. Both of those two latter two offences arise from quantities of each of the drugs found in your home at the time police executed a search warrant. Charge 4 alleges that on the same date, 25 September 2008, you dealt with proceeds of crime, namely, $45,865 in cash, handbags, wallets, sunglasses, shoes, watches, jewellery, alcohol, computers and equipment, televisions, washer, dryer, mobile phones, knowing they were the proceeds of crime.
2You have also admitted prior court appearances and convictions. The most significant was your conviction on an offence of importing a prohibited import into Australia for which on 16 November 2001 you received a sentence in this court of 15 years and three months' imprisonment with a non-parole period of 11 years and three months. That offence involved your importation along with your co-offender's of a quantity of about three kilograms of heroin.
3You were released from that sentence on parole, I am told, in January of 2007. You commenced this offending conduct about one year and three months after you were released on parole.
4The prosecution has tendered and relied upon a summary of prosecution opening dated 19 May of this year, and that is Exhibit A on the plea. It was read this morning, I am not going to read it again, but it details what you have admitted, namely that for the period covered by Charge 1 you were running a business of trafficking in methylamphetamine. In the main you were trafficking in amounts of an ounce or 28 grams or less, and with some exceptions, where you were dealing in large amounts. This was a business which was conducted from home where you used your own car; you used a number of different mobile phones, it seems, and sought by that means to reduce risks of detection. It seems you provided phones to others with the same intent. It is apparent that you conducted this business for profit, motivated substantially by greed. The money in cash and other items that were found at your home address when the police executed a search warrant would suggest that you were reasonably successful in the conduct of that business and had accumulated not just the cash but a number of other items of luxury goods which could only have been financed by the conduct of the trafficking business.
5Trafficking in methylamphetamine is a very serious offence. It carries a maximum term of imprisonment of 15 years. There is no doubt that it is prevalent in our community, although perhaps more prevalent now than it was in 2008 when this offending conduct occurred. Nevertheless, I think it is plain that this offending conduct was a substantial trafficking operation on your part. Although it was not highly sophisticated and carrying a degree of risk, you conducting the business from your home address and were clearly running the risk that police would execute a search warrant on your home address at some stage. It was a serious course of criminal conduct on your part. It is made more serious of course by the fact that you committed it whilst you were on parole from the sentence that you received in 2001 for the importation of heroin.
6Turning to matters personal to you, your counsel, Mr Morrissey QC, provided me with an outline of submissions, which is Exhibit 1, in which he sets out very succinctly a number of mitigating factors. He also accepts, as I think reality dictates, that an immediate term of imprisonment is inevitable, and he acknowledges that the offending conduct the subject of Charge 1 was conducted over a sustained period of months, featured considerable quantities of methylamphetamine and he acknowledges that the offending occurred whilst on parole.
7By way of mitigation in relation to the offending conduct he points out that the trafficking involved quantities of an ounce or less per sale, and it was a step above simple street dealing - I might fairly say I think that it is quite a decent sized step above mere street dealing - and he points out, as I have already indicated, that the packaging and preparation occurred at your own home and you used the family vehicle. You had direct contact with your local customers, and he points out sales occurred to users, and the larger sales, in particular that to Mr Zegas, were limited to ounces, I think in his case a total of six ounces.
8He points out of course that you have pleaded guilty and invites me to give you credit for the utilitarian value of that plea, which of course involves the saving to the State of the cost of a trial, and the saving of inconvenience to the witnesses who might otherwise have been required to come to court and give evidence. He invites me to take into account a degree of remorse. I do not think he goes so far as to suggest that there is real genuine and deep contrition for your offending conduct, or offending conduct of this kind, rather he submits that the realisation that you have put your family life once again in jeopardy, have deprived your young daughter of her father for a sustained period of time, has led you to a point where you are remorseful. I accept that submission, and I take that into account.
9He submits that I should also take into account what he describes in the written outline as a chaotic refugee background. He expanded on that during the course of the plea, and gave me a good deal of detail about your life up to the point when you arrived in Australia in 1979, which undoubtedly does show a pattern of displacement, a childhood and early adulthood which was significantly disrupted by war and by ethnic conflict within the Vietnamese community which your family had adopted. It is not surprising in those circumstances that you might have difficulty in later life in finding clearly defined boundaries for your conduct and your ability to resist temptation to take shortcuts and to break the law in order to improve your circumstances.
10He submits that I should take into account that you had very little education; you left school at 11 and only had a very short period of education after you arrived in Australia when you sought to improve your English language skills. Nonetheless you ended up still with poor English language skills which have only in recent years been developed to a point where you can function as an English speaker albeit that your English is that of a person whose English is a second language.
11He submits that I should accept that your IQ is moderate at best. I am not sure there is any evidence before me of that, but nonetheless I am inclined to that view having regard to an appraisal of your work history and the history of your life generally.
12The plea of guilty of course was not made at the earliest reasonable opportunity. The plea was made in early 2012, and as I understand it occurred after some perhaps protracted negotiation between those representing you and the prosecution, though it is not unusual, and I do not think that it deprives the plea of a discount that is appropriate to the utilitarian value to which I have already referred, and it is, as Mr Morrissey points out, also a reflection of your acceptance of the course of justice.
13It is not to your credit of course that not long after your plea of guilty and before the sentencing hearing which was scheduled I think in July of 2012 you fled the jurisdiction. You ignored your family responsibilities and you led the life of a fugitive apparently in New South Wales. Ultimately you were arrested in New South Wales, and the fact that you were wanted on warrant in Victoria for failure to appear in this court came to light. Ultimately you were extradited to Victoria and as a result appear before me today.
14In the intervening period, it seems that between your arrest in September of 2008 and your pleading guilty before this court to these offences, you stayed out of trouble, and you made reasonably good progress, at times at any rate, and sought to take your responsibilities as a husband and father, or as a partner and father, seriously, and to recognise and appreciate your family and your family responsibilities and your place in it.
15It is a little obscure as to exactly what occurred and to what extent you had contact with your family during the period when you were a fugitive in New South Wales, but it is unfortunate that you did not maintain that course of conduct to which I have just referred. Nevertheless, I accept that there has been very significant delay in this case; there was a very significant period between your arrest for this offending and when you pleaded guilty and went on the run.
16And the matter has been hanging over your head for a considerable period, even up to that time, some three and a half years. It has been hanging over your head, of course, for a considerably longer period now, although as your counsel rightly concedes, the period between your leaving Victoria in 2012, and your arrest in New South Wales in 2013, is not to be taken into account in your favour in terms of the effect of delay.
17You are apparently somewhat over 50 years of age, even though the documents suggest you are 50. I am told that you were born in 1960 which would put you at 53 or 54, and have no reason to doubt that that is correct and I approach sentencing you on that basis. It is suggested on your behalf by Mr Morrissey that you are now recognising the value of family support and that you have a late blooming maturity which suggests that your prospects of rehabilitation, staying out of trouble, getting beyond this offending conduct and contact with the criminal justice system may be possible, and that you may be motivated now to focus more on your family responsibilities than on pursuing the shiny things of life, which I think is the way Mr Morrissey put it, which he suggested were, at least emotionally, symptoms of the somewhat disrupted early life that you had essentially the gypsy mentality.
18In a subtle way, Mr Morrissey, through providing the history that he did, painted a picture which suggests that I should, to some extent, take into account all of your personal history in moderating the evaluation of your culpability in this case. That has to be balanced, of course, against the fact that you ought to have learnt a very stern lesson from the lengthy sentence you received in 2011, yet re-offended. But it seems to me that it is relevant and that it does form part of what we Judges refer to as the process of instinctive synthesis of the facts and the legal principles which have to be brought to bear on arriving at a just sentence in all the circumstances.
19Your situation, I think, is to some extent, to be compared with, if not contrasted, with that of a person who had better opportunities in early life and had a more "normal" upbringing with solid foundations upon which you could draw in times of difficulty in later life, and the kind of pillars that might have been there, the touchstones that might have been there for a person with better opportunities in life, I think were conspicuously absent in your life. You had been married. That marriage came to an end when you went to prison in 1995/96 and all of that history too, I think, is in part, relevant to the context in which this offending conduct occurred.
20The length of time that you were in custody, I think it was something in the order of 11 years or thereabouts, perhaps with interruptions whilst you were on bail between trials, would have not equipped you very well to deal with the outside world, once you were released in January of 2007. Whilst I do not see that that is an excuse for your offending conduct in 2008, I think it is part of the context, and it is likely that you were, to some extent, I think, institutionalised.
21It may be that Ms Li will be your salvation and your daughter Sylvia will be your salvation or at least give you some incentive to knuckle down when eventually you are released. So, all of that I mention, because it seems to me that although objectively your prospects of rehabilitation do not sound all that good, and there clearly is still a need for me to impose a sentence that has the capacity to deter you from offending like this again, your prospects of rehabilitation are not hopeless. The community I think is, as Mr Morrissey urges upon me, served by doing what the court can to facilitate your rehabilitation and that does seem to me to be an important consideration in determining the structure of the overall sentences that I propose to impose.
22Mr Morrissey indeed accepts that specific deterrence, that is, deterring you, having regard to your prior criminal history, in particular the last matter involving the heroin, is relevant and needs to be given proper effect. He accepts that I have to pass a sentence that properly expresses the denunciation of this court of trafficking in methyl amphetamine and the other offences to which you have pleaded guilty, and also, and very importantly, has the capacity to send a message to others, to deter others from committing offences of this kind.
23Community protection as Mr Morrissey says, does go hand in hand with rehabilitation and it is submitted that you are to be seen as a broken and sad man in his early 50's, and that community protection can best perhaps be achieved by promoting your rehabilitation.
24Probably the most difficult part of this exercise that I have to perform in arriving at a suitable sentence is the application of what is known as the totality principle, ensuring that the overall sentences that I impose are appropriate having regard to all of your offending conduct, and taking into account the fact that the sentence that I must impose for the offences on this indictment, will result in your parole from the Federal sentence that was imposed in 2001 automatically being revoked. There are 1504 days of that sentence which are still unserved, having regard to the fact that your parole will be revoked by virtue of the sentence that I will be imposing.
25The result of that gives rise to a seemingly complicated analysis of various provisions of the Commonwealth Crimes Act. But in order to navigate through those, the Commonwealth Director of Public Prosecutions has provided me with a submission, which is Exhibit C1, which the concept of which, I think, is accepted by both the prosecution and by Mr Morrissey as being accurate, and which provides me with a map to navigate my way through those issues.
26So it is necessary for me to issue a warrant under s.19(A)(S) of the Commonwealth Crimes Act, the effect of which is to commit you to prison for a period of 1504 days being the outstanding period of the sentence. Because that period is more than three years, and it is over four years indeed, I am also required to set a new non-parole period for that Federal Sentence. I propose to do that, having regard to the fact, that a deal of the period during which, between January 2007 when you were released, and when your parole was officially revoked, which I think was in 2011, you were on parole, and that is to be taken into account in the sentencing process, and in the application of the totality principle.
27So too, is the way in which the sentences that I must impose for the offences on the indictment to which you pleaded guilty, are to be married up with the Federal sentence. And again, Mr Morrissey has quite rightly drawn my attention to the need to apply the totality principle to that process and I shall endeavour to do that appropriately. He has also, quite rightly, drawn my attention to the fact that not only have you been in custody in relation to these matters, that is, the matters on the indictment, in circumstances which require me to declare those periods of pre-sentence detention as periods already served on the sentence that I must impose, but also you were in custody for 173 days in New South Wales in relation to offences which were ultimately not proceeded with, and I am invited to make a deduction from the sentence that I would otherwise have imposed, to reflect that 173 days. The authorities suggest that that is not necessarily a pro-rata or precise calculation that needs to be applied, but nevertheless, Mr Morrissey says in this case, one can do a fairly precise calculation and make an appropriate deduction based on that 173 days. I am inclined to adopt that approach and I will indicate to you in due course the sort of sentence that I would have imposed, had it not been for the period in custody and you can readily compare that with the sentence which I ultimately do impose.
28I think that it is significant, also, to your prospects of rehabilitation, that you do have family around you and supporting you, and it is reflected in those who have attended court today. Your father, of course, is here. Your mother is deceased in 2009, but it seems to me to be clear that you do have significant family support, and every reason to stay out of trouble in the future, once you are ultimately released.
29The prosecution submits that these are serious offences. As they rightly point out, the seriousness of the offending is aggravated by the fact that the offences were committed whilst you were on parole, one year and three months after you were released on a previous sentence, and the prosecution submits that there should be a degree of cumulation between the period that you will still have to serve on the Federal sentence, and the sentences that I am about to impose. I accept that submission. I am now ready to impose sentence upon you, so would you stand please.
30Ken Ha, for the offence of trafficking, the subject of Charge 1, I sentence you to imprisonment for a period of five years and six months, and convict you.
31On Charge 2 of trafficking in methyl amphetamine, I sentence you to imprisonment for two years and six months and convict you.
32On Charge 3 of trafficking in MDMA, I convict you and sentence you to imprisonment for a period of 12 months.
33On Charge 4 of dealing with the proceeds of crime, I convict you and sentence you to imprisonment for a period of 12 months. I make it clear that all of those sentences run concurrently and I indicated that, in my view, the offending conduct is best reflected in the Charge, the subject of Charge 1, and that in my opinion, all in all, a sentence a five years and six months is appropriate having regard to the totality principle applied to those sentences alone. I might say, had it not been for the period of 173 days in custody in New South Wales, the sentence that I would have had a mind to impose would have been one of six years imprisonment. I order that you serve a period of three years on the State offences, before you become eligible for parole.
34Acknowledging, as I do, that the outstanding sentence, that is the term used in the Commonwealth Crimes Act, imposed in 2001, for the offence of being knowingly concerned in the importation of heroin, of 1504 days, will have to be served, and I will issue the warrant that I have indicated that I will issue, and I set in relation to that sentence, a new non-parole period for the Federal sentence of two years and six months. I order that the sentences totalling five years and six months, that I have imposed for the offences on the indictment, commence on 21 May 2015. That means that the State offences, the five years and six months, will commence in 12 months' time, so that the total overall effective sentence will be six years and six months imprisonment. I order that, if I need to make that order, that the total non-parole period that I seek to achieve by the orders that I've made, for the overall sentence is one of four years imprisonment.
35That is, you would have to serve a period of four years before you become eligible for parole in total, taking into account both the State offences and the non-parole period still to be served for the Commonwealth offence.
36I declare 183 days of pre-sentence detention as time served on the sentence that I have imposed. That will be deducted administratively from the time you will actually have to serve. That is a period of about six months and I order that fact be noted in the records of the court.
37But for your pleas of guilty to the offences on the indictment, I would have sentenced you to a total of 8 years imprisonment, with a non-parole period of five years and six months.
38The warrant, as I have indicated, is to be issued under s.19(A)(S)(1)(c) of the Commonwealth Crimes Act and it authorises you to be detained in prison to undergo imprisonment for the unserved part of the outstanding Commonwealth sentence.
39I make the orders for retention of forensic sample and forfeiture of cash and other property in the terms of the draft. Now, gentlemen, have you further discussed the application to Pecuniary Penalty Order.
40MR MORRISSEY: There's no objection to that.
41MR DWYER: Yes, we have, Your Honour. I have a copy of that to hand up to the court.
42HIS HONOUR: So there's no objection to that order being made.
43MR MORRISSEY: No, Your Honour.
44HIS HONOUR: I make the Pecuniary Penalty Order in the terms of the draft, in the sum of $39,000. All right, you can take a seat now, for the moment. Now ladies and gentlemen, would you give some consideration to what I have just said, and see if I have got it right. It is always a bit of a minefield and I could have made a mistake.
45MR MORRISSEY: Your Honour, to my analysis that is consistent with the submissions made by the Crown, which we also invited Your Honour to adopt.
46HIS HONOUR: Yes, thank you. Yes. Those orders are all now signed. You may take him down. Thank you.
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