Director of Public Prosecutions v Huynh
[2017] VCC 1543
•11 October 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-16-00464
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI HUYNH |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2017 & 5 October 2017 | |
DATE OF SENTENCE: | 11 October 2017 | |
CASE MAY BE CITED AS: | DPP v Huynh | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1543 | |
REASONS FOR SENTENCE
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Catchwords: Possession of equipment and substances for trafficking in a drug of dependence, negligently dealing with proceeds of crime.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Regan | OPP |
| For the Accused | Mr N. Hutton | Emma Turnbull Lawyers |
HER HONOUR:
1 Thi Lan Huynh, you have pleaded guilty to possession of equipment and substances for trafficking in a drug of dependence, and negligently dealing with proceeds of crime. The maximum penalties for these offences are ten years and five years respectively.
2 The details of your offending are set out in the prosecution opening for plea dated 4 October 2017 (Exhibit A), and can be summarised as follows.
3 On Tuesday, 4 August 2015, police were investigating an unrelated burglary at a self-storage facility in Ravenhall. After police had left, a staff member noticed that the padlock for Unit 614 was missing and was concerned that it had also been the subject of a burglary. On entering that unit she noticed a money counting machine and metal drums containing chemicals relating to trafficking. Police were informed that Unit 614 had been rented by a male who had been introduced to the storage company by you as you had been renting Unit 612 for several years from 15 August 2013.
4 Business records from the storage company revealed Unit 612 had been accessed a number of times during your rental period. With the last customer access being on 25 July 2015. Police located a number of pieces of equipment and substances in Unit 612, the full details of which are listed in the prosecution opening. They included numerous glass condensers, conical volumetric and round bottom flasks containing traces of solids or liquids. Other equipment which contained washings of methylamphetamine though no quantity was stated. A bottle containing hypo-phosphorous acid which is a prescribed precursor chemical, the amount being 440 millilitres which was about the prescribed quantity. Different bundled bank notes in a toilet bag and a black pouch totalling $98,950. That money is the subject of Charge 2. I note from the Photos 1 and 2 that Unit 612 also contained a significant amount of unrelated domestic appliances and personal goods.
5 The prosecution conceded that your role was such that you knew that the materials the subject of Charge 1 were being used by others in the manufacture of methylamphetamine. It was conceded there was no evidence that the funds were available for your own use.
6 Police searched your residential apartment in Maribyrnong where you were living with Mr Lee. You were not charged in relation to the items that were located in 614 though the contents of it are relevant to the circumstances of your offending. You were arrested and interviewed by police and gave a no comment interview.
7 You are currently aged 31 and were born in Vietnam. You came to Australia on a student visa to study Years 11 and 12 in 2005. You had a child Tommy in November 2007 who suffers from autism. He has spent a considerable time of his life in Vietnam cared for by your parents. However they now live here and assist you in caring for him. I understand your parents are currently applying for a visa to remain in this country. You have no contact or support from the father of Tommy who you married in 2009 but that union soon broke up. You are a qualified beauty therapist and have completed a Certificate III in Business Administration. You currently work part-time as a nail technician. You are no longer with Mr Lee though it is uncertain when that relationship broke down.
8 I received a number of reports from Dr Michael King, clinical psychologist, dated 3 June 2016, 11 April, 31 August and 3 October 2017 respectively. Some of these were prepared for the purpose of previous court appearances including for a variation of the current Community Correction Order. I was also provided with a character reference from your friend Monica Tran who outlines your personal history and difficulties that you have encountered. I take all that material into account.
9 You have been seeing Dr King since early 2016 though you have had periods of no contact. You have been medically diagnosed as suffering from anxiety and depression, given the pressures that you have been under particularly relating to the care of your son and your own level of functioning. In his most recent report he notes:
"As soon as the situation reaches a certain relatively low level of complexity where you have to think of several factors at one time, then your capacity for reasoned judgment entirely fails."
10 Your counsel submitted and the prosecution did not dispute that your psychological condition makes it difficult for you to properly analyse situations or to make careful decisions. And that accordingly principles of general deterrence and moral culpability have more limited application to you. I accept that submission.
11 You have had three previous appearances in court with prior convictions for dealing with property suspected of being proceeds of crime and in April 2015, for trafficking in methylamphetamine and heroin. I was informed that this offending occurred at a time when you were using drugs and related to a small quantity that was in a car in which you were travelling. For this offending you were sentenced to a Community Correction Order for a period of nine months. That order included a requirement of 200 hours community work and a condition you not associate with Mr Lee. I note this offending occurred between 20 July and 4 August 2015, only three months after that Community Correction Order was imposed. And that you continued breaching the order by associating with Mr Lee.
12 That CCO was varied on successful application by you based on your level of functioning and psychological state. It has resulted in a Community Correction Order with no work requirements and a condition that you continue with psychological treatment and counselling with Dr King. I note Dr King's opinion regarding your lack of capacity to meet the requirements of that Community Correction Order coincided with times in your life when you had been overwhelmed by multiple competing or conflicting events and forces and thus reached a state of inability to deal with almost anything. You have no outstanding matters.
13 The pleas to these charges was entered after negotiations with the prosecution. You originally faced much more serious charges. I take into account your plea of guilty. Although it was not at the first opportunity I accept that there was some limitations given your psychological functioning in obtaining instructions and once these issues were properly revealed an appropriate settlement was reached.
14 Additionally there is the significant utilitarian benefit in the plea saving the community the cost and the inconvenience of a trial.
15 Your counsel submitted that despite the lateness of your plea it was indicative of remorse. I was informed that you were being prevailed upon in respect of the proceeds of the money to retain it for the benefit of others and that you had otherwise tried to ignore or fail to deal with the criminality of your actions consistent with your difficulties in coping with most aspects of your life. As previously indicated, the prosecution conceded that you were keeping the materials and funds on behalf of others. I accept as your counsel submitted that you were incapable of being a chemist given the psychological opinion that has been proffered.
16 Your counsel submitted all sentencing purposes could be adequately met with the imposition of a Community Correction Order, and the prosecution did not dispute that position. You have been assessed as a medium risk of re-offending by Corrections. This type of offending assists in the distribution of illicit substances in our community, the social and economic cost to society are high. General deterrence, just punishment and denunciation all have a role to play. Additionally you have relevant prior matters and specific deterrence applies to you. However these matters must be weighed against matters personal to you including your plea and level of functioning.
17 I have received a report from Corrections regarding your suitability for another Community Correction Order. Attached to that report were other reports relating to breaches of Community Correction Orders previously imposed. I note however in the current report that you have attributed your past non-compliance with lack of family support which as matters currently stand, is no longer the case. It is important that you understand that the making of such an order imposes obligations on you which you must comply with, otherwise the matter comes before me and I will have to re-sentence you.
18 I note that you have had difficulties complying with the conditions of previous orders but as I previously indicated, you now have family support. I do propose to include a work condition of 50 hours. If you have any difficulties meeting that condition bring the matter back to court before it is breached. Additionally a drug treatment condition is to be included in the order, as is a condition regarding supervision. It is anticipated by Corrections that supervision can continue to monitor your counselling with Dr King. The order will be for a period of 12 months.
19 In respect of both of the offences I impose a Community Correction Order for a period of 12 months with a conviction.
20 There is a 50 hour work component. There is a condition regarding drug treatment and also a condition regarding supervision.
21 Ms Huynh, I understand that the conditions and requirements of the order have been explained to you and that you understand those obligations. You must understand the consequences of your failing to meet those obligations, that is if you do not you will come back before me for re-sentencing for these offences and my options will be much more limited.
22 Pursuant to s.464ZF(2) of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth until a sample of sufficient standard is obtained for the placement on a database. I must inform you that at the time of the request you do not consent to the taking of a mouth scraping under the supervision of a police officer, then the sample will be a blood sample and police can use reasonable force to enable that forensic procedure to be conducted.
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HER HONOUR: Mr Regan, I have the order for you signed.
MR REGAN: Yes Your Honour, I've been given updated orders that have got the current date on them.
HER HONOUR: It doesn't matter, I signed them the other day.
MR REGAN: All right.
HER HONOUR: So I think that what I've provided already is sufficient. Are there any other orders that I need to make?
MR REGAN: No Your Honour, because the disposal orders were done the other day.
HER HONOUR: Yes, they were done the other day. All right thank you. We'll just print up the order and have Ms Huynh sign it. Mr Hutton, do you want to attend with Ms Huynh?
MR HUTTON: Yes Your Honour, if I could have that leave. She's signed the order Your Honour.
HER HONOUR: Thank you. I'll just stand down, thank you.
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