Director of Public Prosecutions v Hoang
[2012] VCC 224
•20 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
CR-11-02343
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NHAT HOANG |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 February 2012 | |
DATE OF SENTENCE: | 20 February 2012 | |
CASE MAY BE CITED AS: | DPP v Hoang | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 224 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C.J.C. Parkes | OPP |
| For the Accused | Ms J. Kennedy | Leanne Warren & Associates |
HER HONOUR:
1 Nhat Hoang, you have pleaded guilty to one charge of trafficking in heroin and to one uplifted summary offence of dealing in the proceeds of crime, namely $2,475 cash.
2
On 21 May last year at about 8.40 in the evening you were seen by police doing something to the air filter of a car which was pulled over to the side of
a road in Braybrook.
3 On examination the air filter was seen to contain a parcel containing what turned out to be 199 grams of heroin in rock form. The total weight of the parcel, including its packaging, was 213 grams.
4 The purity of that heroin has not been analysed, but the state it was in, rock form, and the circumstances of its finding, make it likely that it was yet to be pulverised and cut, ready for distribution and street use.
5 You told the police you thought the value of the heroin was $20,000 and knew its weight to be 200 grams. I am told the informant estimates the street value of the heroin at between $64,000 and $85,000.
6 As its purity has not been analysed I am unable to make an affirmative finding about its value, but accept that it is likely to be somewhere between the $20,000 you estimated and the $64,000-85,000 estimated by the police.
7
You were arrested and questioned by the police after the heroin was found.
You readily admitted that you were in possession of it and that you were acting as a courier, although you refused to say who engaged you to act as courier or where you were taking it.
8 You told the police that you were a heroin user and said that you “had to do these things”, namely act as courier in respect of heroin to get the money to pay for your heroin supplies.
9
When arrested you were searched and the cash, the $2,475, was found on you. You told the police that came from your gambling winnings.
Ms Kennedy told me that you maintained that as her instructions. But your failure to adduce any evidence to support that and your plea of guilty to the charge of possession of proceeds of crime make it clear that you acknowledge that to be no more than a lame excuse.
10
You are now 54 years of age, a mature adult, with a long criminal history.
You arrived in Australia at the age of 23, a refugee from Vietnam, at a time when that country was still devastated by the war.
11
Other family members followed you out, so that you now have a mother,
a brother and a sister here with you.
12 Your mother is now in her 80s. She is no longer completely independent, and I am told that you provide considerable assistance to her.
13 The opportunities that this country can offer refugees who come to our shores have sadly not been taken advantage of by you.
14 I am told that you started heroin use at the age of 17, well before you arrived here. It appears to have been a constant feature of your life.
15 In your mid 50s you find yourself living on unemployment benefits, in a rental property, without any history of sustained legitimate employment and it would appear, although you were supported at court by two friends, without any meaningful relationships of your own or any sense of or hope for a future different from the life you are living now.
16
On the material put before me by Ms Kennedy, you have had occasional, brief encounters with drug counselling or addiction treatment over the years.
Your most recent engagement with counselling services was following your arrest on these charges.
17 On the report that was provided to me, you attended four of nine scheduled appointments with Voyage Alcohol and Other Drug Services between July and October of last year.
18 It is clear from that report, and consistently with your history, as explained to me by Ms Kennedy, you show at the moment no signs of desire or commitment to give up heroin or change your life.
19 Whatever maybe the mitigating factors that exist when one looks at a young person coming before the court, whose life is blighted by drug abuse, and although your drug abuse started when you were young and living in difficult circumstances, fleeing your home country, and living with the uncertainty that besets refugees until they are resettled, you are well old enough now to make a serious effort if you want to, to address your heroin abuse.
20 I do not consider your current heroin abuse to be a mitigating factor, so far as the circumstances of the acting as a courier, in respect of this charge, for which I must sentence you.
21
Of your extensive criminal history, nine previous convictions have been for trafficking heroin. There are many others for possession of heroin, amphetamines, cannabis and unnamed drugs, for dealing in proceeds of crime, dishonesty offences and two for possession of weapons. All of those
I see and accept as related to your long history of heroin abuse.
22 You have three convictions for gaming house offences, all of them more than 20 years old.
23 I do not consider them to be relevant for sentencing purposes to the trafficking charge, and having a regard to your plea of guilty to the proceeds of crime charge, and the more than 20 year gap between the gaming house offences and now, I do not consider them to be relevant to sentencing you on the proceeds of crime charge.
24 The most serious of your nine trafficking offences saw you sentenced by this court to a term of imprisonment of five years, with a non parole period of three.
25 That sentence was upheld on appeal in October 1997. On that occasion you had couriered heroin from Sydney and you were found with a block of just under 200 grams, total weight, or just under 140 grams pure.
26 I note that on that occasion the court was told that the wholesale value of the heroin was $50,000. On that occasion, as the reasons of the Court of Appeal make clear, sentencing submissions had been made to the sentencing judge and relied on in support of your appeal about your recent attempts at rehabilitation, that is at addressing your drug addiction.
27 Ms Kennedy, in her frank and helpful submissions today, had no such evidence to rely on.
28 It is clear, therefore, that in sentencing terms, both specific and general deterrence, carry significant weight on this occasion. So does denunciation and just punishment.
29 As you, yourself, should well know the heroin trade is pernicious and it ruins lives. Not just the lives of the users and the couriers, but also of their families and the people around them who are affected by their conduct.
30 So those who contribute to the heroin trade must know that when caught they will be punished, and punished in a way that marks the seriousness of trafficking in heroin, that denounces those who engage in its trade, and seeks to deter those who engage in it.
31 As the prosecution pointed out, the nine previous sentences for trafficking have not deterred you and there is sadly no real history of commitment to addressing your addiction since you were charged on this occasion.
32 That clearly must weigh against or be taken into account in deciding what weight to be given to the advancement of your addiction as the reason for your engagement.
33 At 54 it is time to take stock of your life. If you want to stop going to gaol, if you want to be around to look after your elderly mother and provide her with the support and assistance that you give her, you must, it is up to you, to take steps to deal with your heroin abuse. But more importantly, not to lend yourself to trafficking in it, by acting as a courier or in any other way.
34 You and others who are like minded, that is thinking that they can courier heroin in order to secure their own supplies, have to face up to the fact that it is not an easy way to get your supply.
35 I reduce the sentence that is otherwise appropriate, taking into account your admissions to the police, the full and frank admissions in respect of your role. That reduction is not, in any way, diminished by your understandable refusal to name those above you.
36 I consider the admissions that you made and your early plea of guilty should be given full weight for co-operation and acceptance of responsibility for your part in this.
37 I also take into account in reducing the sentence the fact that it will be difficult for you to live with the fact that you will be unable to provide your mother with the assistance that you are accustomed to providing her and that you carry the burden of that.
38 I do not consider this to be an appropriate case for a lengthy gap, that is lengthier than usual, if there is such a thing as a usual gap, between the head sentence and the non parole period.
39 It cannot be said that your prospects for rehabilitation can be seen as encouraging.
40 Nor, however, do I consider it appropriate to fix a shorter than usual or a very short non parole period. The fixing of a parole period I see to be important as providing encouragement for you in looking towards your release and working towards an attempt to be drug free or at least to take yourself away from trafficking in order to secure your supply.
41 Having regard to those factors I consider the sentencing range put by the prosecution to be too high. Could you now please stand?
Sentence
42 Nhat Hoang, on the charge to which you have pleaded guilty and the uplifted summary charge, you are convicted.
43
On Charge 1, of trafficking in heroin, you are sentenced to be imprisoned for
a period of six years. On the uplifted summary offence of dealing in proceeds of crime, you are sentenced to be imprisoned for a period of six months.
That makes a total effective sentence of six years.
44 I fix a period of four years as the time you must serve before being eligible for parole. I declare that there are no days of pre-sentence detention.
45 Pursuant to s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty I would have sentenced you to a term of imprisonment of eight years for the trafficking and 12 months for the dealing in proceeds of crime. I would, on that total effective sentence of eight years, fixed a non parole period of six years.
46 I will now sign the forfeiture order. Can you please take a seat while I do that? I make the forfeiture order in respect of the $2,425. I have signed that in triplicate, as requested. Are there any further ancillary orders?
47 MS PARKES: No, Your Honour.
48
HER HONOUR: Do the orders that I have pronounced reflect what I said
I intended to do?
49 MS PARKES: Yes, Your Honour.
50 MS KENNEDY: Yes, Your Honour.
51 HER HONOUR: Thank you. Could you remove Mr Hoang please. Adjourn.
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