Director of Public Prosecutions v Hoang Dang
[2016] VCC 90
•5 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-01649
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOANG DANG |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 and 29 January 2016 | |
DATE OF SENTENCE: | 5 February 2016 | |
CASE MAY BE CITED AS: | DPP v Hoang Dang | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 90 | |
REASONS FOR SENTENCE
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Subject: Sentencing; importing heroin and methamphetamine; escape lawful federal detention
Catchwords: Plea of guilty; courier; sophisticated concealment of methamphetamine; internal ingestion of other drugs; relatively low quantity; drug addiction
Legislation Cited: Crimes Act (Cth) 1914 ss 16A(1), 16A2, 19AB; Sentencing Act 1991 (Vic) s 6AAA
Cases Cited: Nguyen v R; Phommalysack v R [2011] VSCA 32; Director of Public Prosecutions (Cth) v De La Rosa [2010] 79 NSWLR 1
Sentence: TES: 3 years 6 months imprisonment with non-parole period of 2 years 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Verdon (on plea) Ms S. Lye (on sentence) | CDPP |
| For the Accused | Ms J. Warren | Michael Gleeson and Associates |
HER HONOUR:
1 Hoang Anh Dang, you have pleaded guilty to two charges of importing a border controlled drug in not less than a marketable quantity, one of those charges relating to heroin and the other methamphetamine. You have also pleaded guilty to a charge of escaping lawful federal criminal detention.
2 The maximum penalty for each charge of importing a border controlled drug in a marketable quantity is 25 years' imprisonment, and for escaping federal detention it is 5 years' imprisonment. These maximum penalties reflect the relative objective seriousness of offences of this type, and in particular the maximum for each importation offence reflects the very serious nature of such offences generally.
3 These offences occurred on 2 and 3 July last year. On 2 July 2015 you arrived at Melbourne Airport on a flight from Vietnam having flown out to Vietnam almost two months earlier. Your luggage was selected for a baggage examination and Australian Border Force officers queried why each of two suitcases contained curtains. You said they were for your house and they were cheaper in Vietnam.
4 Swabs were taken from these and other personal belongings and returned presumptive positive results for heroin and methamphetamine. When asked if you could explain the positive results you said you had no idea why this would come up. You were asked to produce anything you had in your pockets and gave the officer a mobile phone and a wallet but said that was all you had in your pockets.
5 A button from one of the curtains was removed and a hole drilled into it which showed that it contained white powder. The button was deconstructed and found to contain a small parcel wrapped in carbon paper and inside the parcel was a small sealed plastic bag containing a clear crystalline substance. A second button was similarly deconstructed and found to contain a similar substance. Presumptive testing of the substance indicated the presence of methamphetamine.
6 After being cautioned you requested to use the toilet and as officers suspected that you maybe carrying illegal substances on your body, they first conducted a frisk search. You then produced from your pocket another mobile phone and seven pellets wrapped in paper towel. When asked what they contained, you said they contained heroin. You were then cautioned for a second time and frisk searched.
7 Subsequent testing confirmed that the seven pellets contained 95.3 grams of loose white powder which when analysed equated to 72.9 grams of pure heroin. The finding of this substance on you in these circumstances is the basis of Charge 1.
8 When all buttons were removed from the five curtains, a number of them were found to contain an off white crystalline material which on analysis was found to be methamphetamine. The total amount of pure methamphetamine concealed within the buttons was 14 grams. The finding of this substance on you in these circumstances is the basis of Charge 2.
9 After you admitted that the pellets contained heroin, Australian Federal Police were notified, and after being cautioned by them, you consented to undergo a medical examination to determine any internal concealment of drugs. You were taken to the Royal Melbourne Hospital where scans showed that no foreign objects were located inside your body, but indicated that you may have tuberculosis. That required you to be placed in an isolation ward while further testing was completed and you were then admitted as a patient and placed in an isolation room by hospital staff. You were under arrest at the time and Australian Federal Police officers remained on guard outside the room.
10 The next afternoon two nurses came to your room informing the police guarding the room that an alarm had been activated due to a change in air pressure in the room. Upon entering the room it was found that you were no longer there, the manhole above the toilet area had been removed, but when police inspected the roof cavity they could not see you.
11 A search of the hospital found you about 45 minutes later in a communication and switchboard room located on the same level of the hospital as the isolation room where you had been. When found you were not wearing any clothes. These events give rise to Charge 3 of escaping from lawful federal detention.
12 You remained under arrest at the hospital for three more days during which the diagnosis of tuberculosis was confirmed, but in a mild form. On discharge from hospital you were transferred to prison where you have remained ever since.
13 You had been interviewed briefly before your escape, but you asked to consult your lawyer and before that was able to occur you escaped. No further record of interview seems to have been conducted, however you indicated a plea of guilty at an early stage on all charges. You are entitled to some leniency for pleading guilty as an indication of a willingness to facilitate the course of justice. Although the attempt to escape custody in my view can only reflect an unwillingness at that stage to face the consequences of the importing offences, I accept that by your pleas of guilty you accepted responsibility for all of the three offences. I also take it now to be an indication of remorse or contrition, although that was not displayed at the time of your escaping custody. Your plea of guilty has resulted in a reduction in your sentence for all of these reasons.
14 From hospital you were taken to the Melbourne Assessment Prison and then transferred on 9 July to Port Phillip Prison. On 30 October you were transferred to the Metropolitan Remand Centre. You have spent a total of 218[1] days in custody not including today, and those days will be counted towards your sentence.
[1] Corrected by agreement of prosecution and defence – see pages 20-21
15 In your case there is a further consideration in relation to your sentence as a result of the conditions in which you have spent time in custody. It is well known in this court, and indeed no doubt to all other courts dealing with people who have been in custody, that as a result of disruptions at Metropolitan Remand Centre on 30 June and 1 July last year, there have been, to various degrees, more restrictive conditions for prisoners at a number of gaols in Victoria since then.
16 You clearly were not involved in the actual disruptions yourself as you had not yet arrived back in Australia. There has been difficulty in your case - difficulty I might say the extent of which I do not understand - in obtaining the precise details of those restrictions as they have applied to you. It was not until this morning that the information was supplied by Corrections Victoria. That was made available as soon as possible to your counsel as well as to the prosecution, and you have heard that has been the subject of some further submissions today.
17 The information provided is to the effect that from 9 July to 30 October you were indeed at Port Phillip Prison where there were only slightly reduced hours out of cells. The information, though, is that from 11 November, that is only 11 days after your transfer to MRC, the reason you have been in something like 22 hour lockdown, is because of disciplinary proceedings, or in other words arising from your own conduct.
18 This is not what was conveyed by your initial instructions that were that since transfer to MRC you have been in 22 to 23 hour lockdown. I do accept that 22 to 23 hour lockdown is much more restricted conditions of serving time in custody than would be normal on remand. I was told that that is the reason that you were anxious that there not be delay in your matter proceeding even though there was a lot of information obtained at the last minute.
19 I have taken into account, therefore, that the first three and a half months at Port Philip Prison were only slightly more restricted conditions than usual, but as it appears that the normal hours out of cells at Port Phillip are 11.5 hours per day, slight reduction of that should not have meant significantly harsher conditions, and I accept you did not complain that the conditions at Port Phillip were to any significant degree harsher. When transferred to MRC you spent the first 11 days under conditions of limited time out of cell, only approximately four hours. Since then you have apparently been in intermediate management, due to disciplinary issues within the prison, and that has resulted in only approximately two hours out of cell time per day. I accept that that will have made your time in custody more onerous although the degree of extra restriction seems to have been due to your own behaviour since 11 November.
20 Overall I have taken into account that your initial three and a half months in custody were slightly more restricted than usual, that all of your time at MRC would have been in more restricted conditions of only having four hours out of cell time per day, but I have offset to a degree although not by strict calculation, that the last three months in management conditions were due to your own conduct. I have moderated your sentence overall to the extent of treating the total time you have spent in custody as the equivalent of approximately three months longer than the actual number of days which will be declared as reckoned served.
21 I turn now to your personal history and from that the explanation given for your offending. You are now aged 31, or on your reckoning in your 32nd year. I am told that you were born in Vietnam and came with your family to Australia when you were aged eight. You grew up in Melbourne, left school at year 11 but by then had already been using illegal drugs for some years.
22 At age 15 you were before the Children's Court for offences of trafficking and possessing heroin, possessing proceeds of crime, and failing to answer bail, and were sentenced to probation for six months without conviction, but with a condition to attend drug rehabilitation programs.
23
I am told that after leaving school you worked at various jobs but were heavily involved in heroin use. Apparently you smoked it and never injected it, but had reached what you call a really bad level of addiction. I am told you made an attempt, at age 17, to withdraw by going on a methadone program.
Mr Watson-Munro, who recently examined you, considered it may have failed due to an inadequate dose. It did fail and you then went to Vietnam for about two months. This was an attempt to get away from your drug connections in Melbourne, but you found heroin in Vietnam cheaper and even more accessible there, and apparently increased your use. That was in 2001.
24 It was during that trip that you met your wife whom you married in 2004. It was not until 2006 that she arrived in Australia, and I am told that at that stage you had stopped your drug use. The following year your child was born, and I am told that you maintained your abstinence from heroin for approximately five years. Your wife has worked since soon after the baby's birth, and you stayed at home to mind the baby.
25 However I am told that in 2011 you again began spending time with drug users, and resumed your own heroin abuse. To that you added use of methamphetamine, and sometimes MDMA and cocaine. I am told that your drug use progressed to daily and serious addiction, and that your wife was unhappy about this. She was entitled to be unhappy, as you were spending the money she earned on drugs. At around that stage a house was purchased for the family, with money borrowed on mortgage.
26 In 2014 you twice faced the Magistrates' Court for charges to which I shall refer again shortly. By early 2015 you were in fact living separately from your wife and child. They were still living in the house that was subject to the mortgage, and you were in a flat in Fitzroy. I am told that the reason for your trip to Vietnam in May 2015 was to go there to care for your father-in-law who was very ill. I am told that your wife could not go herself because she was the sole wage earner and was caring for your child. You were in Vietnam for almost two months and I am told that in that time you were using drugs daily. I am told that you ran out of money and through a person supplying you with drugs, you were offered the chance to obtain them without payment for your own use on condition that you carry drugs back into Australia.
27 You were aware that methamphetamine was concealed in the curtains in your luggage but you did not know where in those items. In relation to the heroin, I am told that the pellets containing heroin had initially been ingested by you, but during the flight to Australia you passed them, and although you considered abandoning them, you were scared of the consequences if you did not delver them as required, and so you wrapped them in paper towels and put them in your pockets. The arrangement was that you would be picked up by someone at the airport after your arrival, and would hand over the drugs and that would be the end of your involvement.
28 I am told that the reason for your escape from detention was that you were scared, and having never previously been in custody realised that you were facing a real difficulty given the offences you had been caught committing. I am told also that your judgment in trying that escape was affected by the effects of coming off drugs at the time.
29 I am told that whilst in custody you have detoxified from the various drugs you were abusing, and although you found that difficult at first, you now feel better than you did in the months prior to your departure for Vietnam. You are said to speak positively of spending this period of imprisonment as a good opportunity to recover from your drug addiction. That is what I was told before the report received this morning, that you were caught with unauthorised buprenorphine in your system. It is not for me to go behind all of that. I understand that there is an issue at the prisons at the moment about tobacco and nicotine and that type of use, which seemed to be the other matters for which you were disciplined.
30 It seems to me that if you maintain what is put as a positive view of the effect of the period of imprisonment of having detoxified, and that you are feeling better than you had for a long while, that augurs well for you to continue with your rehabilitation and remain drug free. Given your entire history, my view is that your prospects of rehabilitation are somewhat guarded but not without some real hope of success if you continue in the mindset that you described through your counsel.
31 I am also told that while you were in Vietnam, your wife was seeking your assistance because of pressure for mortgage repayments which she could not meet, and with which she was not used to dealing. Ultimately the bank foreclosed and the family has lost the house. Your wife and daughter have had to move to public housing in Fitzroy, although on further questioning it emerged that that is the place where you had been living prior to your departure for Vietnam.
32 Your daughter is still only eight years old, and had to move from her home and away from friends, and will have been starting a new school about now - I assume this week. I am told that this has been very disruptive for her and for your wife. I am also told and accept that that is bringing home to you that you have caused great hardship for your wife and child by your actions.
33 I have read the letters tendered, from two friends who have been helping and supporting your wife. They were both in court to support her during the plea hearing, and I am told that your sister was also in court.
34 One friend, Ms Andrews, says that with her husband she has known you and your family from attendance at church. She writes that she has found you and your family to be very respectful, kind and generous people and she regards you as a very caring and honest man. She says she was very surprised to learn that you were in prison, and she felt this was out of character for you. She confirmed that your family has been very upset, stressed and concerned, and that they need you in their lives.
35 I accept that these are the genuine views of the writer of that reference, and were intended as genuine support for you and your wife and child. However what she writes does not reflect knowledge of your long history of drug addiction, nor of your offences before courts in 2014, nor indeed that you were living apart from your wife and child before you left for Vietnam.
36 Similarly I have read and taken into account the reference from Ms Oates who describes the assistance she has been giving your wife including dealing with creditors and the paperwork for the foreclosure on the house, applying for government services, and the move to Fitzroy. I accept that she believes your wife and child have been going through what she calls “incredible hardship” that your incarceration has produced for them. She also offers to continue to provide ongoing support to your family when you are released from prison.
37 Again I accept that her concerns for your wife and child are genuine, and that they have needed this type of support as a result of you being in prison. Nevertheless she also does not appear to have been aware that you were not physically living with your wife even immediately before you left for Vietnam, and nor does she mention knowing of your prior history of drug abuse.
38 Your wife has also written a letter, prepared with assistance from Ms Oates as to the English. Your wife speaks of your daughter waiting for you to come back to them, asking when you are coming home, and how much you are also missing her and your daughter. Again I accept that the matters expressed in that letter are genuinely felt, but I note that not only did you leave them behind in Australia for almost two months, accepting the reasons I was told that your wife had to keep working and looking after your child here, but you had not actually been living under the same roof as them for some time before that, although I am uncertain for how long that was.
39 I have considerable sympathy for the position of your wife and child, and I note your wife has worked to support the family, and has found that the house for which she was working hard to make repayments has been lost. I am told and accept that she opposed your use of drugs, and I infer would not have approved of your offending, the importing of drugs, if she had known of it in advance.
40 Unfortunately sympathy from a court for the consequences to an offender's family does not generally entitle an offender to a more lenient sentence. It is an unfortunate fact, and courts hear very often, that it is often the family of offenders who suffer considerable hardship and distress when that offender is imprisoned. But the law is that there must be exceptional hardship before it would enable a sentence to be reduced (or mitigation to be invoked) as a result of such hardship. That degree of hardship does not exist in this case, and your counsel did not press that it did.
41 I do take into account that you are concerned for the impact of your being in prison on your family, and that your concern for them has already and will continue to make your serving of time in prison more difficult for you as it will bear more heavily on you. I have allowed some mitigation as a result of that.
42 Under s.16A(1) of the Crime Act of the Commonwealth, I am required to impose a sentence that is of a severity appropriate to all of the circumstances of the offence. Section 16A(2) requires me to take into account a number of matters to the extent that they are relevant. I have already dealt with some of these and shall mention only those further ones which do have relevance in your case.
43 I must take into account the nature and circumstances of the offences and assess your culpability or blameworthiness in them. The escape from detention was in my view at a relatively low, but not the lowest, level of seriousness for such an offence. It was not an entirely spontaneous action such as running away when not restrained. You must have made the decision to remove the vent and then the effort to climb into the air conditioning system. You caused some damage apparently in doing that.
44 Further as the prosecution submits, it is of some concern that at the time you escaped custody, you knew that you were suspected of suffering from tuberculosis and that is why you were being kept in isolation. You were putting at risk other people with whom you might come into contact while suffering from that communicable disease.
45 Nevertheless, I accept that this was a relatively unplanned action, particularly without clothes if you really hoped to escape the hospital, probably from fear of the consequences of being caught importing drugs, and that you were in fact only missing for some 40 minutes, and after being found you showed no further resistance.
46 For offences of importing drugs, which are the more serious in this case, a number of propositions have been laid down for courts as the focus for decisions on sentencing. The case of Nguyen v R; Phommalysack v R[2] summarises these in this State and I will not set them out in detail but discuss their application in your case.
[2] [2011] VSCA 32
47 First I must consider your criminality in light of your involvement in the steps taken to import the drugs. Obviously the greater the importance of the role, the higher the objective criminality of the offending. Your role was that which is commonly called that of a “courier” from which I infer that you were not a principal planner or instigator of the importation, but were doing what someone else planned and directed or asked you to do. However your role was an essential link in bringing such illegal drugs into this country.
48 You did not stand to make any profit from the drugs imported, but there was financial gain in the arrangement for you because you had been supplied drugs for your own use while in Vietnam for which you did not have to pay.
49 As I do not know the full nature or extent of the enterprise that brought about the particular importations you carried, I cannot draw comparisons with the likely roles of any other people involved as they are all totally unknown to me.
50 In relation to your role in the importation of heroin, the threshold amount for a marketable quantity of heroin is 2 grams, so the amount you were carrying was 36 times the marketable quantity. Although very far below the next level of seriousness, being of a commercial quantity, this was not an insignificant amount. That you were prepared to ingest seven pellets of this drug reflects to me that you were taking, and knew you were taking, a very serious risk. You were indeed lucky that they did not burst inside you. Overall it is a not insignificant but relatively low amount of the drug being carried by you in a very risky manner, but in circumstance where you well knew that it was not only illegal, but that what you had in those pellets inside you was heroin.
51 In comparison, the amount of methamphetamine was much lower, only seven times the marketable quantity for that drug, so a relatively small quantity. However it was a much more sophisticated concealment, reflecting that although of a small quantity, considerable thought and preparation had gone into the hiding of the drug inside some of the buttons on the curtains. Of course I have no information that you were part of that concealment, but just that you knew that somewhere in the curtains there was methamphetamine concealed.
52 In the end I have decided that each of the two charges of importing a border controlled drug should attract the same length of sentence, because the lesser quantity was a more sophisticated concealment, and the greater quantity offset a little by the risk you were raking by ingesting it. There should be some cumulation between the two charges because there were two different drugs being carried by you in two entirely different manners, that is each was a separate offence, but some concurrency because they occurred at the same time.
53 Courts have repeatedly said and I must apply or follow the principle here, that because of the difficulty of detecting importation offences, and the great social harm that follows from the dissemination of drugs of these types, the sentencing principle of general deterrence must be given chief weight in a sentence for importation of drugs. That means that stern punishment will be warranted in almost every case to send the message to others tempted to engage in such offending, that they can expect stern punishment.
54 Further, involvement at any level of a drug importation offence has been said to necessarily attract a significant sentence or else the purpose of general deterrence will not be served.
55 Finally, prior good character is often found, and generally to be given less weight as a mitigating factor than it might be in other types of offending. That is often said to be because people of good character, in particular with no prior offences, are often chosen ad couriers of drugs because it is perceived that they are less likely to be searched by border officials.
56 In your case you do have some prior criminal history and I must take it into account, however I do not regard it as extensive for someone of your age, particularly not for a person who has a longstanding drug addiction. The Children's Court appearance which I have already mentioned occurred more than 15 years ago when you were in your teens and is not even formally part of your prior criminal history. Its relevance is simply that you have had previous involvement in drug offences beyond just personal use, and to that extent should have been aware and more cautious about becoming involved in any further level of the drug trade.
57 There was next a court appearance in July 2005 when you were placed on a good behaviour bond for charges of using and possessing heroin. Although reflecting your personal drug abuse at that stage, that charge is more than ten years old and I note prior to your marriage and prior to what I am told was a sustained period of abstinence from drug abuse by you. I regard it as of minimal significance.
58 Of more relevance is that you were twice before courts for offences in 2014. In March 2014 you faced Broadmeadows Magistrates' Court on a charge of theft of a motor vehicle and obtaining financial advantage by deception, which charges I am told arose when you retained a hired care beyond the agreed period. Then in October 2014 you were sentenced for use and possession of amphetamines. Fines were imposed on each of those sets of charges. Whilst those penalties reflect that the offences were not regarded as of a particularly serious nature, I note there were no orders referring you to rehabilitative programs, which with hindsight is regrettable.
59 I do not regard this past history as showing entrenched or habitual offending, although I am told that you were a frequent abuser of drugs over some periods of years, and including some years prior to this offending. What those past offences reflect as I have partly already said, is on the one hand you have struggled with your own drug use, but also that references to your being of good character must be read with some qualification. I do note that there were long intervals between offences, not inconsistent with what I am told that you managed to abstain from drugs over about a five year period, and even after you resumed you were not habitually before the courts.
60 I have read a report from Mr Tim Watson-Munro, consultant psychologist who assessed you very shortly before this matter was to come on for hearing. That report outlines your background. It was not possible for formal psychometric testing to be conducted due to the interview conditions at the prison. Mr Watson-Munro's report is based on your descriptions to him of your symptoms, and his assessment on observation of you. He describes you having symptoms consistent with an anxiety disorder and depressive illness, but was unable to formally diagnose such conditions. He noted your substance abuse, considered that you would have been suffering a substantial substance misuse disorder involving heroin and methylamphetamine, and noted that you had detoxified from that whilst in custody.
61 He noted the connection between your drug use and your offending in terms of your significant addiction. He also considered that your consumption of methylamphetamine may have affected your judgment, but he could only say that in general terms. He noted that you have had limited treatment in the past and in particular that your attempt at a methadone program may have failed due to the dosage being incorrect. He considered you would benefit from cognitive behaviour therapy with a clinical psychologist who has skills in dealing with addiction disorders, and noted that as you have detoxified and gained weight, you maybe in an optimum position for treatment to commence in order to turn your life around.
62 It is conceded by your counsel that the opinions of Mr Watson-Munro are insufficient to enliven legal principles which would call for mitigation of your sentence as a result of your moral culpability being lower, or the need for general or specific deterrence modified. I have taken Mr Watson-Munro's report into account as providing a restatement of parts of your background, and an indication that you were, when recently assessed, expressing appropriate intentions towards rehabilitation, recognition of the harm done to you and the consequences to your family from your drug addiction.
63 As I have already said, your prior record, personal history and what I am told of what you say is your resolve since detoxifying in prison, and the effect of time in custody on you, have led me to the view that although your prospects of rehabilitation must be viewed as somewhat guarded, they are far from hopeless. Primarily they depend on you maintaining an intention to abstain from drug abuse.
64 Finally, without referring to each individual case, to gain a reflection of current sentencing practices and for sentencing consistency, I have considered cases drawn to my attention imposing sentences for comparable importing charges, although most were for larger quantities than those carried by you. Each case of course must depend on all its individual circumstances. I have taken into account the categorisation of sentence ranges outlined in the New South Wales case of De La Rosa, and accept as submitted by your counsel that the lower quantities of each of the drugs that you carried place you in the lowest of those groupings, together with your role, your early guilty plea, and personal circumstances.
65 Taking all of these matters into account and as was conceded on your behalf, there is no sentence less severe than imprisonment which would be adequate in the circumstances of this case.
66 I was urged to consider a sentence of no more than two years' imprisonment on one or two charges, to be followed on a separate charge by a Community Corrections Order. In my view, and as reflected in the sentences on other cases to which I have referred, the seriousness of the charges of importing border controlled drugs requires that each of those charges receive a sentence of more than two years imprisonment. That would exclude you from eligibility on any other charge for a Community Corrections Order imposed at the same time.
67 As the total of sentences will exceed three years, I shall be fixing a non-parole period. It will be up to you to take advantage of programs available while in prison to deal with staying abstinent from drugs and any other appropriate programs, including those that might assist your ability to find employment on your release.
68 Hoang Anh Dang, on each of the charges you are convicted and sentenced as follows. On each of Charges 1 and 2, you are sentenced to three years' imprisonment. The sentence on Charge 1 begins today and on Charge 2 will commence in four months' time, that is namely on 5 June 2016, so the effect of that is that four months of that sentence is cumulative on Charge 1.
69 On Charge 3, that of escaping from federal detention, you are sentenced to four months' imprisonment and that sentence is to commence on 4 April 2019[3]. I will check that my calculation is correct, but my intention is that two months of that sentence be cumulative on the other two sentences.
[3] Corrected to 5 April 2019- see page 19
70 The effect of those orders is intended to be that the total sentence for you is three years and six months' imprisonment. I fix a period of two years and three months before you become eligible for parole.
71 Pursuant to s.19AB of the Crimes Act, and s.18 of the Victorian Sentencing Act, I declare that 219[4] days of pre-sentence detention, that is up to but not including today, be reckoned as served towards this sentence, and I direct that that be recorded in court records.
[4] Corrected from 219 days – see pages 19-20
72 I will need both counsel to check that I have achieved what I have said is my intention in this sentence. Before I go further, before that happens though, I was not specifically asked to state what the sentence would have been if there had not been a plea of guilty. In some Commonwealth cases I am asked to state that and in some I am not. I am prepared to state it if asked to, but it is an artificial statement required under s 6AAA the Victorian Sentencing Act and it presupposes all other factors are the same. It is for many reasons artificial. I will wait and hear if I am invited to state what it would have been.
- - -
MS LYE: Your Honour, I do ask that you do state it. In recent cases the Commonwealth has been asking.
HER HONOUR: I was not asked on this occasion and that is why I have not gone ahead with it yet.
MS LYE: I understand.
HER HONOUR: But I thought about it.
MS LYE¨ Also as a matter of housekeeping, I don't think Your Honour stated the commencement date of Charge 1.
HER HONOUR: Charge 1 commences today, yes I probably did not formally say that. So on Charge 1 of importing a border controlled substance, namely heroin, the sentence is three years' imprisonment commencing today,
5 February 2016. Charge 2, importing border controlled substance, namely methamphetamine, the sentence is three years' imprisonment commencing on 5 June 2016, namely four months' time. And on Charge 3, escaping Federal detention, the sentence is four months' imprisonment to commence - I have calculated it to be on 4 April 2019, it is intended it be two months before the other sentences would expire. So two months before the sentence on Charge 2 would expire. And the sentence on Charge 2 - you can take a seat for this Mr Dang, this is where it becomes very technical and difficult to construct and the Victorian model does not quite fit it in the computer either.
If it were a Victorian sentence I would have said three years on Charge 1, three years on Charge 2, and four months on Charge 3. And I would have directed that four months of the sentence on Charge 2 and two months of the sentence on Charge 3 be served cumulatively on each other and on the sentence on Charge 1, bringing it to a total of three years six months. Now on my calculations to add the four months from Charge 2, I defer its commencement for four months from today, to 5 June of this year. But then to make two months of the four month sentence also cumulative, I have got it commencing two months before the expiration of the sentence on Charge 2. I am open to be persuaded that does not work but I have thought it through and think it works.
MS WARREN: I'm reluctant because I'm sure I'm wrong, but on my calculations if it's three years and six months from today, then that takes it to
5 August 2019.
HER HONOUR: Yes.
MS WARREN: And then two months back from that would be 5 June 2019.
HER HONOUR: No but it's a four month sentence.
MS WARREN: I beg your pardon, I'm sorry, yes, so that's right.
HER HONOUR: So it's commencing two months before the expiration of the sentence on Charge 2 and runs for two months after that.
MS WARREN: Yes, I see yes.
HER HONOUR: And as you said, if you take three years six months from today, you should get to 5 August 2019, so coming back four months from then it would commence on 4 April. Sorry, the 5th I should - it should be the 5th.
MS WARREN: Yes.
HER HONOUR: I beg your pardon, it's the 5th, today is the 5th not the 4th.
MS WARREN: Sorry, yes.
HER HONOUR: I'm sorry, yes, it's 5 April.
MS WARREN: The only other matter Your Honour, while I'm on my feet, and I don't want to - - -
HER HONOUR: Do you want to be heard about what the sentence would have been but for the plea of guilty?
MS WARREN: Sorry, if you want to do that, yes.
HER HONOUR: Do you oppose me stating it?
MS WARREN: No, no Your Honour.
HER HONOUR: All right, I will on the record state that if Mr Dang had not pleaded guilty to these charges but been found guilty after a trial of the same charges, and if all other circumstances had been the same, I would have imposed sentences of four years' imprisonment on each charge of importing a border controlled drug, six months' imprisonment for escaping lawful detention, and a total effective sentence of five years' imprisonment with non-parole period of three years and six months.
MS WARREN: As Your Honour pleases. The matter I wanted to raise Your Honour, and I don't want to do my client a disservice but I don't want the court to find error either, so the PSD I had calculated at 218 days, Your Honour has declared 219.
MS LYE: I had the same calculations as my friend.
HER HONOUR: It's 218 is it?
MS WARREN: And that's not including today.
HER HONOUR: Not including today.
MS WARREN: Yes.
HER HONOUR: When I saw 219 I was not sure whether that's what I had said earlier. I've said 219.
MS WARREN: Your Honour said 219 consistently but - - -
HER HONOUR: Yes, it's 218 is it?
MS WARREN: Yes, and I've double checked it Your Honour.
HER HONOUR: All right. I correct that, it is better that I get it right so it's 218 days, not including today.
MS WARREN: Yes Your Honour.
HER HONOUR: All right, and there were no other orders sought in this matter?
MS LYE: No Your Honour.
HER HONOUR: All right. Mr Dang, I am sorry that the technical part takes us a long while to work out but the net effect is that the total sentence is three years six months, and two years three months before you are eligible for parole. But 218 days which is just over seven months is declared reckoned served. All right, can Mr Dang be removed from the court room please. The orders have to be produced but I will sign them downstairs, I won't wait in court for that. They are a challenge to the computer system because they don't take the form of the Victorian structure with the different commencement dates so it doesn't - my associate has to persuade the system to accept what I'm saying. All right thank you, I'll adjourn the court till 10.30 Monday morning.
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