Director of Public Prosecutions v Hoang

[2022] VCC 1138

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-00991

DIRECTOR OF PUBLIC PROSECUTIONS

V

Van Diep HOANG

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JUDGE:	HER HONOUR JUDGE KARAPANAGIOTIDIS
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2022
DATE OF SENTENCE:	15 July 2022
CASE MAY BE CITED AS:	DPP v HOANG
MEDIUM NEUTRAL CITATION:	[2022] VCC 1138

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentencing

Catchwords:             Plea of guilty – Trafficking in a drug of dependence – Possession of a drug of dependence – Good prospects of rehabilitation – COVID-19 pandemic – Worboyes.

Legislation Cited: ss 5; 6AAA, 18 Sentencing Act 1991 (Vic).

Cases Cited:R v Shrestha [1991] HCA 26; Worboyes v R [2021] VSCA 169.

Sentence:410 days’ imprisonment..

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APPEARANCES:	Counsel	Solicitors
For the DPP	F. Holmes	The Office of Public Prosecutions
For the Accused	A. Liang	Giorgianna and Liang Lawyers

HER HONOUR: 

1Van Diep Hoang you have pleaded guilty to two charges of trafficking in a drug of dependence and one charge of possession of a drug of dependence. 

2The maximum sentence for trafficking drugs is 15 years imprisonment.

Circumstances of the offending

3The full circumstances of your offending are set out in the summary of prosecution opening dated 9 July 2022. 

4In brief, Operation DTF-ACHILLES-2020 was an investigation undertaken by Victoria Police Drug Task Force, focused on the trafficking activities of Si Ro Vo.  Mr Vo trafficked methylamphetamine and heroin with the assistance of a number of co-accused, including yourself.  The prosecution case is that you were working for Mr Vo.  On 5 December 2020 you text messaged Vo, ‘[h]ey brother, can you allow me to take a day off today, okay brother.’

5Together with co-accused Pham, Nguyen and yourself, Vo utilised three residential addresses to prepare, store and distribute methylamphetamine and heroin: namely, 609/20 Shamrock Street, Abbotsford; 30 Goldsmith Avenue, Delahey, and 3/46 Disraeli Street, St Albans. 

6In Charge 1, you admit to trafficking heroin between the 5 December 2020 and 25 May 2021. A number of text messages, commencing on 7 December 2020, are reproduced in the prosecution opening which indicate that you were conducting drug transactions and collecting money on behalf of Vo. The messages also suggest that you were involved in dealing with methamphetamine on behalf of Vo, though I note that you are not charged for this conduct.

7The messages commence from December 2020 and include the following: on 31 December 2020 Mr Vo instructs you not to sell drugs to an unknown female unless she had money to pay.  On 3 January 2021 Mr Vo instructs you to sell one ounce (28 grams) and on 7 January 2021 he instructs you to deliver 14 grams of methylamphetamine. On 23 April messages between Vo and co-accused Pham reveal that you, referred to as ‘Diep’ in their conversations, had packaged ‘the one’ that was less than 14 grams. 

8Further, messages between Vo and Nguyen and Pham, as outlined at paragraphs [35] to [39] of the prosecution opening, discussed the quality of the methylamphetamine and indicated that you and David were at the Goldsmith Avenue address and were commenting on the quality of the drug. An intercepted call between Pham and Vo on 14 May 2021 suggests that Pham had purchased 13 ounces of methylamphetamine, one ounce of heroin and one ounce of cocaine from Vo, paid $35,000 and handed over $20,000 to you. 

9On 28 May 2021 simultaneous search warrants were executed on the three addresses.  You occupied the Goldsmith Avenue address at the time, along with Vo and Nguyen, and the three of you were arrested by police.  The premises was identified as being used for refining methamphetamine using acetone. 

10The scene was processed and a number of items located, as outlined in the prosecution opening, including: methylamphetamine in various stages of purification located in the kitchen, analysis of which indicated 225 grams. A further 318.5 grams of methylamphetamine and 7.3 grams of heroin were located in the house.  The two cars on the premises were also searched and amongst the drugs located in them was a total of over 55 grams of methylamphetamine. The methylamphetamine located at the house and in the cars, as outlined in paragraphs [46] and [47] of the prosecution opening is the basis of Charge 2, trafficking, that is possessing the drugs for the purpose of sale.  Also located at the house was a small quantity of cannabis, which is the basis of Charge 3. 

11You were arrested and interviewed by the police.  In your interview you stated that you knew Vo from Fulham prison.  You had moved in at the Goldsmith Avenue address two months prior to the execution of the warrant and Vo let you stay there.  Nguyen and David also resided at the address.  You gave police your mobile numbers.  You also admitted to being a user of methamphetamine and that Vo was providing you with the drug. 

12You were remanded and have remained in custody.  As of today there is a total of 413 days of pre-sentence detention. 

Gravity of the offending

13The seriousness of your offending is reflected in the maximum sentences set by Parliament for the trafficking charges. You were involved in drug activities that were clearly organised, planned and involved substantial quantities of drugs. Based on the prosecution opening, you conducted numerous drug transactions on behalf of Vo, including selling drugs, delivering them and collecting money for him.  I regard Charge 1 as the more serious offence as it involves actively trafficking heroin for several months, between 5 December 2020 and 25 May 2021 and overall I regard your offending to sit within the mid-range for this type of offending.  

14In assessing the gravity of your offending and your moral culpability, I also take into account that you were working for Vo and you did not yourself issue instructions or directions.  Further, I accept that you were paid in the form of accommodation and drugs to use.  There is otherwise no evidence of financial enrichment. I also note and accept your Counsel’s submission that from around January to April 2021 your involvement in drug trafficking is limited, with no specific activity raised against you for this period.

15In relation to Charge 2, the amount of methylamphetamine is substantial.  However, you are charged only with trafficking simpliciter, confined to the one day and to the methylamphetamine seized by the police during the warrant. In the summary there are numerous references to you dealing in methylamphetamine at earlier times and to you assisting in the purification of the drug. As the prosecutor, Ms Holmes, stated, this information is provided as context and to indicate the scale of activities being led by Mr Vo.  I have had regard to these circumstances but make clear that you will not be sentenced for offending for which you have not been charged.    

16I note here as earlier indicated, that the cannabis located during the search warrant was a small quantity, an estimated 17 grams. 

Plea of guilty and remorse

17Your case resolved at committal mention and is clearly an early plea which entitles you to a significant sentencing discount. I accept that your plea represents an acceptance of responsibility on your part and is indicative of some remorse.

18Your plea of guilty has significant utilitarian value, particularly in circumstances where there is still a backlog of cases in the court caused by the pandemic.  I recognise the utilitarian benefit of the plea and I accept your counsel’s submission that a real and tangible sentencing discount must therefore follow.[1]

[1]Worboyes v R [2021] VSCA 169.

Personal circumstances

19In terms of your background, Mr Hoang, it was canvassed in detail in the report of Warren Simmons and also by your Counsel, Ms Liang. Briefly, you are 32 years of age.  You were born in Huong Yen, Vietnam.  You were raised by both parents and you have an older sister.  Your father works as a nurse and your mother is a pharmacist. You were raised in a nurturing, supportive and stable family home. You completed a three year nursing degree at tertiary college in Huong Yen.  Thereafter you worked with your mother for about a year at her own pharmacy.  You then made plans to come to Australia to study. 

20You arrived in Australia in October 2013.  You were enrolled at Swinburne University and studied English there for 3 months before transferring to another college in St Kilda.   

21In 2015 you were sentenced to one year imprisonment for cultivating a commercial quantity of cannabis.  I was told this occurred within the context of your family experiencing some financial stress as a result of your father’s illness at the time.  After serving this period in custody you were transferred and detained in immigration detention where you remained for several months.  You were then released back into the community. 

22Since your release you have not really had paid employment.  You have mostly lived in shared accommodation and relied on support from family and friends overseas.  It is unclear when you became unlawful in the community but at the time of your arrest you did not have a visa and were unlawful. 

23In 2018 you met your current partner who has resided in Australia for some 20 years and is a permanent resident.  You have a child together, a daughter now aged two and a half.  Your partner also has another young son from a different relationship.  During the period of your offending, I was told that you were experiencing difficulties in your relationship.  Your partner developed postnatal depression.  In a letter of 3 February 2020, Dr Sandra Nguyen confirms that she has been treating your partner for her Major Depressive Disorder with postpartum onset. Your relationship began to deteriorate and you both had little other support, as family and friends were mostly in Vietnam.  You were constantly arguing and you ended up moving  out of the family home.  You started to spend more time with friends and associates who introduced you to methylamphetamine.  You also reconnected with the co-accused in this matter, Mr Vo, who you first met in custody in 2015.  It is within this context that you agreed to assist or work for Mr Vo in return for accommodation and drugs. 

24Your partner remains supportive of you and you have applied for a spouse visa.  The status and the likely outcome of this application is unknown.  You have regular phone and Zoom contact with your wife and daughter and in more recent times, with the easing of restrictions, you have had some contact visits at the prison.  Your hope is to resume a life with your family in Australia where you have lived since 2013, though you appreciate and expect it likely that you will be deported and not permitted to remain here. 

Factors in mitigation

25I take into account, Mr Hoang, the additional factors in mitigation that were advance on your behalf by Ms Liang. 

Time in custody

26You have served your period on remand during the currency of the pandemic.  You have been subjected to greater restrictions and deprivations than in normal times and I accept that it has made your time on remand more onerous.  Specifically you have experienced the following restrictions: you endured 14 days of quarantine upon entering the system; 80 days of lockdowns due to positive COVID-19 cases; you have not been able to receive any contact visits from your partner and daughter until recently; and you have not been able to access any rehabilitative programs. You have been subject to one random urine screen provided and dated 22 August 2021, which was negative.  

27It was further submitted, and I accept, that you experience additional anxiety and stress in custody because of the concern you have for the welfare of your young family and your inability to support them. Also, you are concerned because of the risk of deportation that you face and the uncertainty that surrounds your status. Further, you were the subject of a fairly serious random assault in custody in December 2021 where you suffered a fractured nose and damage to your eye which required surgery. In addition, while you have a basic level of English, it is only limited and causes a degree of isolation in custody. I take all these matters into account in sentencing you. 

Prospects of rehabilitation

28It was submitted that you present with good prospects of rehabilitation.  Your prior criminal history is confined to the one matter that I’ve already referred to.  You have no prior history for trafficking in drugs.  In his assessment of you Mr Simmons considers that you present with good future prospects given your lack of significant antisocial behaviour in the past, your stable relationship, and your history of attempting to build a career for yourself.  While you present with a history of drug use, it is not a significant one and Mr Simmons confirms that you present with no significant psychiatric or behavioural difficulties. In all the circumstances, I accept that you present with reasonable prospects of rehabilitation. 

Sentencing principles

29The basic purposes for sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  I note that there is no victim impact statement in this matter but it is clear and well-known that drugs cause substantial harm to the community.  There is certainly a need in this case to deter others who might be minded to engage in such activities. 

30I take into account the sentencing guidelines referred to in s 5 of the Sentencing Act 1991 (Vic) where relevant to your case. I have also had regard to the current sentencing practices for trafficking in drugs. Also, I have had regard to the principles of parsimony, totality and proportionality in your case.

31There was no dispute between the parties that a term of imprisonment is warranted for your offending. Given your circumstances, the parties agree that there is little utility in having you assessed for any other type of sentencing disposition, such as a Community Corrections Order.  In light of the nature and the gravity of your offending, I consider that a term of imprisonment is the appropriate sentence. As discussed at the plea hearing, I do not necessarily regard a straight term of imprisonment as reflecting the matters in mitigation advanced on your behalf or as allowing for the promoting of your rehabilitation. The Court should not deny you the incentive for reform and rehabilitation offered by the parole system because you are currently an unlawful non-citizen.[2]. However, in your case, after weighing up all relevant matters, I consider that you have now served a sufficient period of time in custody. It would therefore be entirely artificial to set a period of parole to a sentence that you have already effectively served in full.

[2]R v Shrestha [1991] HCA 26.

32Taking into account all relevant matters and the submissions of the parties, I impose the following sentences with conviction -   

33On Charge 1, you are sentenced to 12 months’ imprisonment, in other words, 365 days. 

34On Charge 2, you are sentenced to eight months’ imprisonment.

35Charge 1 is the base sentence, and on Charge 2 I order that 45 days of the sentence is to be served cumulatively on Charge 1.

36The total effective sentence therefore is 410 days.

37Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that you have served 410 as presentence detention.

38On Charge 3, which relates to the possession of a small quantity of cannabis, you are convicted and discharged. 

39Pursuant to s 6AAA but for your plea of guilty I would have sentenced you to two years and eight months’ imprisonment with a non-parole period of one year and eight months’ imprisonment.