Director of Public Prosecutions v Hoang
[2022] VCC 1455
•1 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01422
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NHAT HOANG |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 August 2022 | |
DATE OF SENTENCE: | 1 September 2022 | |
CASE MAY BE CITED AS: | DPP v HOANG | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1455 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Trafficking in a drug of dependence (commercial quantity) – negligently dealing with proceeds of crime – possession of a drug of dependence – prohibited person possessing a firearm – early plea of guilty – COVID-19 pandemic – Worboyes – bleak prospects of rehabilitation.
Legislation Cited: Firearms Act 1996 (Vic) s 3(1); Sentencing Act 1991 (Vic) ss 5(2H), 6AAA, 18.
Cases Cited:Fernando v The Queen [2017] VSCA 208; Gregory (a pseudonym) v The Queen [2017] VSCA 151; Gregory (a pseudonym) v The Queen [2021] VSCA 211; Hoang v The Queen [2013] VSCA 287; Worboyes v The Queen [2021] VSCA 169.
Sentence: Five years and four months’ imprisonment with a non-parole period of three years and five month’s imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | M. Fisher | The Office of Public Prosecutions |
| For the Accused | R. Backwell | Ajak & Associates |
HER HONOUR:
1Nhat Hoang (also Nhan Trong Trinh) you have pleaded guilty to the following charges:
a) One charge of trafficking in a drug of dependence (aggregate commercial quantity) (Charge 1);
b) One charge of negligently dealing with proceeds of crime (Charge 2);
c) Three charges of possession of a drug of dependence (Charges 3, 4 and 5); and
d) One charge of prohibited person possessing a firearm (Charge 6).
2You have also agreed to and pleaded to summary charge, possess ammunition without a licence.
3The maximum sentences for the charges are as follows:
a) Trafficking in a drug of dependence (aggregate commercial quantity) – 25 years’ imprisonment or 3000 penalty units.
b) Negligently dealing with proceeds of crime – 5 years’ imprisonment or 600 penalty units.
c) Possession of a drug of dependence:
(i)Five penalty units (not more than small quantity of cannabis);
(ii)30 penalty units or 1 year imprisonment or both (in relation to the Alprazolam and Buprenorphine if not committed for the purposes of trafficking).
d) Prohibited person possess firearm – 1,200 penalty units or 10 years’ imprisonment.
e) Possess ammunition without a licence – 40 penalty units.
Circumstances of the offending
4The full circumstances of your offending are set out in the agreed prosecution opening, dated 31 August 2022 and marked as Exhibit A.
5By way of background, during 2020 an investigation was conducted by police attached to the Altona North Divisional Response Unit. It was known as Operation Raptor and its purpose was to investigate the illegal possession of firearms and the trafficking of drugs in the western suburbs of Melbourne. At one point, it turned to your activities.
6At the time of the alleged offending, you were 62 years old and you lived in Hancock Crescent, Braybrook.
7On 22 September 2020, police saw you leave your address. You were driving a grey 2014 Ford Kuga (registration 1LJ1MV). A short time later you were intercepted by police on Duke Street, Braybrook. In the front seat of the car was Mr Minh Truong. You were arrested for trafficking a drug of dependence.
8Police searched you and discovered three small foil packages in your front right pocket. When asked what was in the foil packages, you stated that it was heroin (Charge 1 – part).
9Police seized the packages and arrested you for the possession of heroin. They also located on you a black Samsung mobile telephone and a total of $950 cash that was seized by police (Charge 2 - part). You were taken to the Sunshine Police Station.
10A short time later, two search warrants were issued under the Drugs Poisons and Controlled Substances Act 1981 (Vic) and the Firearms Act1996 (Vic). That afternoon the warrants were executed by police at your address. Upon conducting a search of the house, police discovered a number of items, including:
a) A small jar located in the main bedroom in a locked box containing a white crystal substance (methylamphetamine) and a small jar containing a brown powder substance (heroin) (Charge 1 – part);
b) A pill bottle labelled Alprazolam located in the main bedroom on a steel trolley (Charge 4);
c) Mobile telephones and hard drives;
d) A snap lock bag located on a desk in the main bedroom containing approximately one gram of a white crystal substance (methylamphetamine) (Charge 1 – part); and
e) The following items located in the walk-in robe of the main bedroom, included:
(i)three snap lock bags that contained approximately 25 grams of a white crystal substance (methylamphetamine) and another snap lock bag that contained approximately 12 grams of brown powder (heroin) (Charge 1 – part);
(ii)a snap lock bag that contained approximately one gram of cannabis (Charge 3);
(iii)a snap lock bag that contained further snap lock bags with approximately 30 grams of white crystals (methylamphetamine) (Charge 1 – part);
(iv)a snap lock bag that contained approximately 26 grams of brown powder (heroin) and a further snap lock bag that contained approximately 35 grams of brown discs (heroin) (Charge 1 – part).
(v)A packet labelled Suboxone (Buprenorphine) (Charge 5);
f) forty $100 notes and twenty $50 notes (total of $5,000) located in a black bag behind the oven in the kitchen (Charge 2 - part); and
g) Four snap lock bags located in a black bag behind the oven that weighed approximately 177 grams and contained white crystals (methylamphetamine) (Charge 1 – part).
11On Charge 1, the Crown case is that you possessed 228 grams of methylamphetamine (175 grams pure) and 68.2 grams of heroin (a purity level of less than 50 grams). As the threshold for trafficking a commercial quantity of heroin based on purity is 50 grams, the heroin found is more than 22 times the traffickable quantity for heroin. The threshold for trafficking a commercial quantity of methylamphetamine based on purity is 50 grams. Here, you possessed 3.5 times more that amount.
12As outlined in the prosecution opening, using the formula detailed in the Act, when the fractions of the methylamphetamine and the heroin are aggregated, the total is 1.184. As such, it is greater than 1 and it is an aggregate quantity that establishes that a commercial quantity was trafficked.
13When police searched the lounge room, they discovered a homemade loaded firearm and a shot gun shell underneath the coffee table. The firearm and shell were seized. Subsequent analysis of the firearm confirmed it was capable of being shot and that it satisfies the definition of a firearm pursuant to s 3(1) of the Firearms Act 1996 (Vic) (Charge 6).
14Your case proceeded as a sentence indication on 18 August 2022. On the basis of the indication, you entered a plea of guilty and were arraigned on 23 August 2022. At today’s plea hearing, both Counsel relied upon the submissions they had made at the earlier indication hearing. In sentencing you I have therefore taken into account the submissions and materials referred to, and relied upon, at both hearings.
Gravity of your offending
15The seriousness of your offending on Charge 1 is reflected by the maximum penalty set by Parliament. The principles of general deterrence and denunciation assume substantial prominence in a case such as yours.
16I also note that for the charge of trafficking in a commercial quantity, Charge 1, s 5(2H) of the Sentencing Act 1991 (Vic) applies and requires that a term of imprisonment be imposed, not being part of a combination sentence, unless the offender falls within certain exceptions. No submission was made on your behalf that any exceptions apply or that a term of imprisonment is not warranted.
17The sentencing regime for trafficking offences is quantity-based. That is, the legislature has fixed the maximum penalties by reference to specified quantitative thresholds[1]. It follows therefore that quantity is a highly relevant consideration in sentencing for trafficking offences. There are also other important indicators of offence seriousness, such as, your role in the trafficking, the duration of the offending and the motivation for your involvement.
[1] Gregory (a pseudonym) v The Queen [2021] VSCA 211.
18As the Court of Appeal stated in Gregory (a pseudonym) v The Queen[2]:
“as with any other category of offending, there is wide variation in the seriousness of commercial quantity trafficking offences, and in the culpability of the trafficker(s). Likewise, there is a great variation in the role played by the offender, ranging from a controlling role to the role of courier or driver. And, of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range.”
[2] Ibid.
19In your case, the offending on the trafficking charge is serious and involves an aggregate quantity of two drugs. However, I accept that in all the circumstances, including the amounts of methamphetamine and heroin found in your possession, it falls towards the lower to mid-range for this kind of offending. I take into account that the trafficking charge on the indictment relates to trafficking on one day and your possession of the drugs for sale, as outlined in the prosecution opening.
20I accept the submission on your behalf that you were involved in the offending as a means of supporting your drug addiction. It is not suggested that you were financially enriched yourself as a consequence of your offending. Your addiction provides context to your offending however, in your case, it’s not a mitigating factor. As the Court of Appeal in 2013 stated, when dealing with you for similar offending, given the continued opportunities of reform you’ve been given, you can’t reasonably expect a reduction in sentence on account of your addiction.[3]
[3] Hoang v The Queen [2013] VSCA 287.
21I accept that your offending does not involve other circumstances which make trafficking more serious, such as any resort to violence or intimidation.
22The proceeds of crime charge, in the circumstances, supports and is related to the trafficking. I regard the charge of possessing a loaded homemade firearm as a prohibited person as particularly serious. As Mr Fischer on behalf of the prosecution submitted, it was concealed, loaded and in close proximity to numerous drugs. The unlawful possession of firearms is also generally recognised as a grave source of danger to society. I do note that you have no prior history for firearm offences.
Plea of guilty
23You entered a plea of guilty following the sentencing indication on 23 August 2022. I consider that this entitles you to a substantial discount.
24I accept that a plea of guilty represents an acceptance of responsibility on your part and a willingness to facilitate the course of justice. I recognise the significant utilitarian benefit of your plea and accept that given it is entered at a stage where the courts are still suffering the backlogs caused by the pandemic, it warrants a significant sentencing discount.[4]
[4] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
25Your personal circumstances were outlined by your counsel Mr Backwell and were also canvassed in Dr Aaron Cunningham’s report of 16 August 2022.
26You are 64 years of age and you were born in Vietnam. You have three brothers and five sisters. You left home at the age of 17 to source employment to support the family. At the age of 21 you escaped Vietnam by boat to Japan. You spent 18 months in a refugee camp before coming to Australia.
27Your father passed away in 2008. You were very close to him and describe him as your “hero”.
28In Vietnam you completed up to Year 11 when the communist takeover interrupted your education. You then worked as a farmer. In Australia, you have previously worked for Holden for just over one year. When living in South Australia, you worked for a farming company and then for a battery factory. You have also worked with your brother in Victoria as a cabinet maker for several years. You have not had any significant employment since this time.
29You were previously in a ten year intimate relationship. You are currently single and you have no children.
30You have struggled with a heroin addiction now for decades. As your Counsel submitted, heroin has decimated your life and in many ways it’s amazing you’re still alive. You started using when you first came to Australia. Initially you smoked the drug and then used it intravenously and by the early 1990s you were addicted. You told Dr Cunningham that you felt pressure from life and depression at not being able to achieve for your family. You used daily and started to traffick in drugs to support your addiction. You have previously completed several drug detoxes at Footscray Hospital. When you relapse into drug use this causes you shame and embarrassment and you to distance yourself from pro-social friends and supports.
31Your mother is unwell. Before your remand on this matter you were her carer and in receipt of the carer’s pension. Upon your release you intend to return to her home in Braybrook. You continue to have family support.
32You have been diagnosed with a Persistent Depressive Disorder that stems from your childhood instability. Dr Cunningham states:
“…in my opinion, Mr Hoang presents with a Persistent Depressive Disorder. In my opinion, Mr Hoang’s Persistent Depressive Disorder stems from his history of childhood instability. Mr Hoang was exposed to war-related trauma and suffered a disruption in his schooling and employment. He escaped Vietnam and relocated to Australia as a refugee. After arriving in Australia, Mr Hoang began to use drugs with negative peers. He formed a dependence to heroin that has persisted to the present time ... Mr Hoang’s heroin dependence is the main contributor to his offence behaviour. In my opinion, Mr Hoang’s drug abuse and related psychosocial instability has resulted in a chronic depressive illness. He has feelings of worthlessness and shame related to his inability to provide for his family and be a positive role model.”
33While it’s not suggested that any Verdins principles are enlivened in your case, I take into account in sentencing you your background and the opinions expressed by Dr Cunningham.
Prior criminal history
34You have admitted a lengthy and relevant criminal record commencing in the early nineties. In part, your prior history reflects your long term and chronic drug use. It includes at least ten convictions for trafficking heroin, three for trafficking cannabis and numerous possession charges. You have been sentenced to community based dispositions, suspended sentences and terms of imprisonment. The most significant sentences were imposed for trafficking heroin on 28 April 1997 and on 20 February 2012. Both sentences were upheld on appeal.
35The prosecution submit that your current offending represents an escalation given the nature of Charge 1 and the applicable maximum sentence. I accept this submission and I accept that your prior history bears upon some of the factors put in mitigation on your part and on an assessment of your prospects of rehabilitation and the need for specific deterrence. However, I remind myself that your antecedents cannot be given such weight as to lead to a penalty that, in all the circumstances, is disproportionate to your offending. Your history is obviously relevant but it cannot be used in aggravation to increase a sentence.[5]
Factors in mitigation
[5] Galuak v The Queen [2015] VSCA 300.
Time in custody
36You have been in custody since your arrest on 22 September 2020. You have therefore been on remand during the pandemic and have been subjected to a more restrictive regime during this period. You also contracted COVID-19 and were required to isolate in custody. I take into account that prison has been more burdensome as a result of these conditions.
37To your credit you are currently working as a billet for urine analysis and I was told that you remain clean and clear of drugs in custody.
38I accept that you are anxious about your mother. You were her formal carer in the community prior to your remand. I note that your father passed away years earlier when you were incarcerated and you don’t want this to happen with your mother.
Prospects of rehabilitation
39I have formed the view that your prospects for rehabilitation are bleak. I accept that your rehabilitation is entirely dependent on your ability to rid yourself of drugs and address your chronic long term drug addiction.
40Dr Cunningham opines that you would benefit from a disposition that facilitates your rehabilitation, and that includes drug and alcohol rehabilitation in the community. Ceasing drug abuse would be the main factor in decreasing your risk of reoffending and also in improving your depression. Your history of drug use is chronic and entrenched. You have made attempts to stop using in the past and ultimately these have failed. If you wish to retain any hope of living a worthwhile life in the community you need to stop using and to get some help.
Sentencing principles
41Sentencing in a case such as this requires the court to impose a sentence which reflects just punishment, deterrence, both general and specific, (specific deterrence is particularly important in your case) and denunciation. In sentencing you, I must have regard to a range of factors, including the seriousness of your offending, your culpability, your prior history and your personal circumstances.
42There was no issue on the plea that the only appropriate disposition here requires the imposition of a substantial term of imprisonment, with a non-parole period. I agree that this is the only just and appropriate sentence in your case.
43I am also required to take into account current sentencing practices in fixing your sentence. I have considered the statistics and the current practices, mindful that each case must be considered in light of its own particular circumstances[6] . When considering current sentencing practices and the sentences imposed in other cases, the principal factors of comparison are your role, the period of offending, that you have pleaded guilty, and the weight of the drugs involved by ratio to the commercial quantity threshold. The cases provide useful guidance and pronunciation of general principles but many of the cases are distinguishable from your case, as indeed they are from one another.
[6] Such as Gregory (a pseudonym) v The Queen [2017] VSCA 151; Fernando v The Queen [2017] VSCA 208.
44In sentencing you I take into account the principles of totality and proportionality. I will impose a sentence that is proportionate to the aggregate criminality involved in all of your offending and a sentence that also allows for the promotion of your rehabilitation.
Sentence
45You are convicted and sentenced as follows -
46Charge 1, trafficking in a drug of dependence, aggregate commercial quantity, you are convicted and sentenced to four years and ten months’ imprisonment.
47Charge 2, negligently deal with proceeds of crime, you are convicted and sentenced to six months’ imprisonment.
48Charge 3, possess drug of dependence, namely small quantity of cannabis, you are convicted and discharged.
49Charge 4, possess drug of dependence, alprazolam, you are convicted and sentenced to three months’ imprisonment.
50Charge 5, possess drug of dependence, buprenorphine, you are convicted and sentenced to three months’ imprisonment.
51Charge 6, prohibited person possess firearm, you are convicted and sentenced to 16 months’ imprisonment.
52On the summary charge of possess ammunition, you are convicted and fined $100.
53The orders for cumulation are as follows: Charge 1 is the base sentence; one month on Charge 2 and five months on Charge 6 are to be served cumulatively on each other and on the base sentence.
54That should result in a total effective sentence of five years and four months’ imprisonment.
55Taking into account all relevant factors, I fix a non-parole period of three years and five months’ imprisonment.
56Pursuant to s 18 I declare that you have served a total of 709 days in pre-sentence detention.
57Pursuant to 6AAA I declare that but for your plea of guilty I would have sentenced you to a total effective sentence of some eight years with a non-parole period of five and a half years.
58I make the forfeiture order in the terms sought. Does that deal with all matters, Mr Fisher?
59MR FISHER: Yes, it does, thank you, Your Honour.
60HER HONOUR: Mr Backwell, anything else?
61MR BACKWELL: No, Your Honour.
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