Director of Public Prosecutions v Huynh
[2015] VCC 1109
•14 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01117 & CR-14-01118
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYNE HUYNH & WILLIAM XI |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21, 22, 23, 24 & 27 July 2015 | |
DATE OF SENTENCE: | 14 August 2015 | |
CASE MAY BE CITED AS: | DPP v Huynh & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1109 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Each accused charged with attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to s307.5(1) and s11.1(1) of the Criminal Code (Cth) – controlled delivery of substances substituted for methamphetamine – total weight of 1551.7 grams of pure methamphetamine (over twice the commercial quantity) which had a potential wholesale value of $1.4 million and potential street value of $2.9 million.
Legislation Cited:
Cases Cited:
Sentence: of 10 years' imprisonment with non-parole period of 7 years for Huynh (financier and architect of scheme to possess illegally imported commercial quantity of methamphetamine)
Sentence: of 7 years and 354 days with non-parole period of 5 years and 7 months for Xi (significant role in facilitating infrastructure for possession of the drugs)
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Barry | Commonwealth Director of Public Prosecutions |
| For the Accused (Huynh) | Mr I Polak | |
| For the Accused (Xi) | Ms F Todd |
HER HONOUR:
1 Wayne Huynh and William Xi, you have pleaded guilty to attempted possession of a commercial quantity of an unlawfully imported border controlled drug, namely, methamphetamine. This offence carries a maximum penalty of life imprisonment.
2 The circumstances of your offending are summarised in the Prosecution plea opening (Exhibit “A”). On 14 December 2013 a consignment of two boxes, which had apparently been shipped from Mexico on 11 December 2013, arrived in Australia. The consignment was addressed to both of you at 3/178 Duke Street, Braybrook, 3019 (“the factory”) and the sender was a person from a corporation at an address in Mexico. Each box was marked with words in Spanish and English describing its contents as “clay ceramic”.
3 On 16 December 2013, Australian Customs and Border Protection Services officers examined the consignment, which was found to contain 1551.7 grams of pure methamphetamine. The drug was contained in 20 heat-sealed plastic packages which had been secreted inside plastic bags filled with powdered clay. The bags of clay were packed inside smaller boxes within the two boxes constituting the consignment (“the intercepted consignment”).
4 On 19 December 2013, Australian Federal Police took possession of the intercepted consignment from Customs officers. The methamphetamine was removed and, in its place, an inert substance was substituted. A controlled delivery of the intercepted consignment was made by police to the factory on 23 December 2013. This occurred after police rang a mobile telephone number which was listed on the consignment as the contact number of the consignee. You, Mr Huynh, took that call and advised that you would be available to collect the package at 11.45am. Shortly after this time, both of you attended the factory, where you identified yourselves as the recipients of the package. You, Mr Xi, produced an Australian Drivers Licence as identification and you, Mr Huynh, produced a Californian Drivers Licence as identification. You each picked up one of the two boxes, and loaded it into the boot of Mr Xi’s car. You later took the boxes into the factory and, after some 10 to 12 minutes, inside the factory, you both left and went out for a meal at a Vietnamese restaurant in St Albans. At 1.45pm police arrested each of you at a residential address at 3 Baron Court, Kings Park. This is the address where Mr Xi had been living with his mother. Over the previous couple of weeks, Mr Huynh had arrived from Vietnam and, also, was staying at that address, along with Mr Xi’s father, Simon Xi, who had also arrived in Australia from Vietnam shortly before Mr Huynh. Mr Simon Xi had ceased to reside with the family over two decades previously and, for many years, had been living in Vietnam with a new wife and children of his new marriage.
5 When interviewed by police, you, Mr Huynh, claimed that you accepted the intercepted consignment but, when you opened it, found the contents were not your things and did not know what was inside or who had sent them to you. You claimed that you came to Australia in order to get your business licence to import coffee or seafood and had proposed to pick up your licence the day that the police interviewed you, namely, 23 December 2013. You claimed that you were scared after you accepted the boxes and, so, you threw away the SIM card of the mobile phone upon which you had received the call notifying you of the arrival of the intercepted consignment.
6 When interviewed on 23 December 2013, you, Mr Xi, claimed to have no knowledge of what was being imported and stated that Mr Huynh had told you that it was seafood. You agreed that you had bought SIM cards for Mr Huynh and helped him find a warehouse and had agreed to be the director of Mr Huynh’s company, notwithstanding that you had only met him once in Vietnam about five or six months previously. You also agreed that you had driven Mr Huynh to collect the packages and that Mr Huynh had claimed that it was a seafood sample. You claimed that you did not know your name was on the package, but agreed that you helped Mr Huynh unload it and claimed that you did not see what was inside.
7 In the course of a protracted plea hearing, a number of submissions were made on behalf of each of you, which necessitate my making findings of fact before proceeding to sentence. On behalf of you, Mr Huynh, your counsel , Mr Polak, urged that, at that at all relevant times, you had intended to engage in a legitimate business importing into Australia either coffee or dried seafood. Mr Polak stated that this was supported by what you had told police in your record of interview and also by what you had told Martin Huang, the brother-in-law of Mr Xi, who was the real estate agent who had facilitated the lease of the factory.
8 On behalf of you, Mr Xi, your counsel, Ms Todd, stated that, although by your plea you admitted the elements of the offence of attempted possession on the one day of 23 December 2013, the Court could not be satisfied beyond reasonable doubt about what had occurred in the period leading up to this date. Ms Todd referred to the evidence that your father, Simon Xi, had been in Melbourne from Vietnam prior to the offending and, on the evening when the intercepted consignment was delivered, he had come to the factory with a key to it. Further, the informant, Ms Siegemund, had given evidence at the committal that, if Simon Xi were to return to Australia, he would consider him a suspect and attempt to locate and question him.[1]. Ms Todd stated that your instructions were that you were “just the gofor” for Mr Huynh. Further, there was evidence in your record of interview and on oath at the plea hearing from your sister, Manh Xi, that, shortly before Mr Huynh arrived, your father had arrived in Melbourne to stay with your family after many years’ absence. Mr Huynh, who was a distant relevant, had also come to stay with the family and the family had referred to him as “Uncle Huynh”, as it is a Vietnamese cultural custom to use this term as a matter of respect for an older person. Ms Todd implied that, there was family and cultural pressure upon you, Mr Xi, to assist Mr Huynh with his business endeavours.
[1]Transcript of Committal pages 14 – 15
9 Ms Todd further submitted that the Court could not be satisfied that the business venture to be operated from the factory was a sham or, if it was, there was no evidence that you knew of it. She submitted that your brother-in-law, Martin Huang, who had facilitated the lease of the factory, referred to a legitimate business being set up[2] and the various text messages which formed part of the depositions gave a “flavour” of a legitimate business. In particular, she urged the Court to find that one text message from you to Mr Huynh on 13 December 2013, which inquired about the type of internet package he wanted, was consistent with you being a “gofor”.[3] She submitted that the Court should accept that you participated in the setting up of a corporate structure for the benefit of a friend of your father, whom you thought was conducting a legitimate business, and that, at all relevant times, you were “the subordinate” of Mr Huynh, as illustrated by the text message tendered by her.
[2]21-2 Depositions
[3]Exhibit “D21”
Findings of fact
10 I find the submissions of counsel, that the culpability of you both is simply confined to one day of attempted possession of a commercial quantity of an illegally imported border controlled drug, methamphetamine, artificial and unsupported by the evidence. In response to all inquiries from me as to when it was that you, Mr Xi, became aware of the illicit contents which were supposed to be in the package, the Court was met with a stonewalling response. Ms Todd, on your behalf stated that she “did not have those instructions”. Mr Polak, on your behalf, Mr Huynh, stated that he was “hamstrung” by you not wanting to name anyone else who was involved, which was a “cultural thing” and, moreover, you had no recollection of having met your co-accused in Vietnam, albeit that you know his father. Further, Mr Polak stated that you had no recollection of having the yellow “post-it” note in your possession, on which was written the mobile telephone number, 61 469563031, which was the contact number for the consignee written on the intercepted consignment.
11 Of course, each of you are to be sentenced for attempted possession on the one date specified in the indictment, but, in my view your moral culpability by way of planning for possession precedes that date.
12 I am satisfied of the following matters beyond reasonable doubt:
(1)From, at least, the date of Mr Huynh’s first arrival in Australia on 25 November 2013, both of you, Mr Huynh and Mr Xi, were involved in planning for the lease of a factory where illicitly imported drugs could be received. I conclude this from the following:
(a)There is simply no evidence of any inquiries, documents, orders or any steps, whatsoever, which would support a conclusion that any legitimate business, whether it be the importation of coffee or seafood, was proposed to be undertaken. It is possible that some business may have been proposed as a “front” for illicit drug activity at the factory, but any statements concerning same come only from the mouth of you, Mr Huynh, in your record of interview in which you lied to police claiming no knowledge of the proposed illicit drugs in the intercepted consignment. Alternatively, they come from you, Mr Xi, in your record of interview, in which you also lied to police about lack of knowledge of the proposed illicit drugs in the intercepted consignment.
You, Mr Xi, told police in a vague way that Mr Huynh had told you, on his first visit to Australia, that he would be importing coffee. You stated that, on his second visit he said he would be importing seafood. You also told police that you helped Mr Huynh unload the intercepted consignment and “he was gunna take it to the bathroom cos he expected it to be wet or something.”[4] Yet, you conceded that there was no refrigeration at the factory and claimed that you had never really thought about how the seafood would be stored.[5] This is simply not believable, and of course Mr Huynh claimed that it was dried seafood that he proposed to import, which is inconsistent with an expectation that the contents of the intercepted consignment were expected “to be wet or something”.
[4]Answer to Q 233.
[5]Answer to Q 307 – 312 in the record of interview.
The only other reference in the depositional material to the purpose for which the factory was leased is in the statement of the estate agent, Martin Huang.[6] The source of Mr Huang’s belief about the proposed business and requirements for fitting out the factory comes from you, Mr Huynh, as a interpreted by you, Mr Xi. Further, the representation to Martin Huang that you, Mr Huynh, ran a successful business in Los Angeles consisting of importing sea cucumber and associated dried seafood is at odds with what you told police in your record of interview, namely, that your wife ran a “nail shop” in the United States.[7] Other than this, there were assertions from the Bar table by Mr Polak that you had a relative in the United States who ran a seafood business and a relative who runs a coffee plantation in Vietnam, but no evidence in support of such assertions.
[6]Depositions pages 1 – 2
[7]Answer to Q 136 and 137 in Mr Huynh’s record of interview
(b)The mobile phone number which is listed as the contact number for the consignee on the intercepted consignment (61 469563031) and which was answered by you, Mr Huynh, when undercover police telephoned you to advise that the intercepted consignment was ready to be delivered, was activated on the very day that you arrived in Australia (25 November 2013). Further, when you arrived in Australia for the second time on 17 December 2013, a Customs Officer found in your possession a yellow post-it note with this number recorded on it. You, Mr Xi, acknowledged having organised phones and SIM cards for Mr Huynh.
(c)Although a company was in the throes of being registered, and allegedly, such registration would have been completed on the date that you were arrested by police, no import licence had been applied for or obtained. In these circumstances, if there were proposals for a legitimate business, it makes no sense, at all, that you would receive an overseas consignment before the business even came into operation. Both of you not only showed a lack of surprise upon receiving notification that there was a consignment to be delivered, but promptly went to the factory, received it, unloaded it and placed it in the factory. Later, police found that one of the boxes, and some of the smaller boxes within that box, had been opened. I am satisfied that both of you were present when this occurred and that what you believed were illicit drugs in three plastic packages were separated from the ceramic clay powder in which they had been secreted.
(d)The observed behaviour of you, Mr Xi, in effectively keeping a look out after the intercepted consignment had been delivered to the factory, is consistent with a person concerned not to have his activity interrupted.[8] It is not consistent with your version to police that you took no note of what was inside the intercepted consignment when it was unpacked and played no role in that because “It’s not my business … I didn’t really care what’s coming into his warehouse.”[9]
[8]Surveillance log pages 359 – 362 of Depositions.
[9]Answers to Q 357 – 358 of Xi’s record of interview.
(e)Mr Huynh financed the infrastructure for the possession of illicitly imported drugs by leasing the factory at an annual rental of $30,000 plus GST and paying a total of $8,250 cash by way of one month’s rental and the bond on 2 December 2013. However, the role played by you, Mr Xi, was indispensable in setting up such infrastructure. You used the contact you had in Australia, your brother-in-law, Martin Huang, to find the factory, as well as your good English and local knowledge to put Mr Huynh in touch with a Cantonese speaking solicitor, who would undertake the registration of a company,[10] you procured SIM cards and mobile phones and internet access for Mr Huynh and, also, purchased garbage bags, sticky tape and box cutters to facilitate the unpacking of the intercepted consignment. The fact that you were prepared, whether on the spur of the moment or otherwise, to be listed as a director of the company and that the intercepted consignment was addressed jointly to both of you, are also relevant factors upon which I have relied in arriving at the conclusion that both of you had been planning to receive illicitly imported drugs from at least 25 November 2013. Another factor which contributes to this conclusion is that you, Mr Xi, were prepared to be woken up by Mr Huynh in order to join him to rush off to the factory immediately after Mr Huynh received the call about the delivery.[11]
[10]Answers to Q 162 – 167 of Xi’s record of interview.
[11]Answer to Q 231 in Xi’s record of interview.
(f)The fact that you both remained at the factory after taking delivery of the intercepted consignment and were both present as part of it was unpacked is, in my view, behaviour consistent with the expectation of what you believed were illicit drugs. I reject the explanation in each of your records of interview that Mr Huynh was surprised to find that the contents were not what he expected and not for him. If, as you, Mr Xi, told police, Mr Huynh was so anxious that he stated that it was necessary to go back and call the United States,[12] it makes no sense that the two of you simply went off to have a meal together and did not arrive home until approximately one hour after you had left the factory. Moreover, I consider that your action, Mr Huynh, in throwing away the SIM card of the mobile phone upon which you had received notification of the delivery, is the action of someone concerned about detection of wrongful actions after you had reflected upon the fact that the persons delivering the intercepted consignment took down all of your details, including photographic identification, whereas those details had not been taken when an earlier consignment from the same consignor and addressed to each of you (unknown to police) had been delivered to the factory on 19 December 2013 (“the earlier consignment”).
(2)I am satisfied that the motivation for each of you being involved in this offending was one of financial gain. Investigating police found at the factory a yellow handled knife with powder on it, together with sticky tape, a roll of green garbage bags and, also discovered that three packages of the substituted drug had been separated from the other clay material in the intercepted consignment and placed in one of the green plastic garbage bags. In addition, at the Baron Court address where both of you were staying, police located two sets of scales under a couch in the lounge room. These factors, together with the quantity of the drug which had been substituted being twice the commercial quantity, support the conclusion that you had an intention to deal with what you believed to be illicitly imported drugs in some way by moving them on, albeit that there is no evidence of the way in which you proposed to do this. That the potential wholesale value of the methamphetamine was $1.4 million and the potential street value was $2.9 million has not been contested by either of you. Save that there was the potential for each of you to make significant financial gains from possession of the drugs, there is no evidence which enables me to conclude precisely how you proposed to deal with the drugs or what your profit may have been.
In arriving at this conclusion in relation to you, Mr Xi, I take into account the material on the plea and, in particular that of your sister, Manh Xi, that, for approximately two years prior to your offending you had not worked and did not look for work and relied for support upon your hardworking mother, who works as a cashier and waitress at a restaurant in the city. The distinct impression I gained from your sister was that, during those years, you were a lazy layabout, albeit that she stated that in this two year period, you were clean from using drugs to which you had been addicted at an earlier time. She based her impression that you were not using drugs in the two years leading up to your offending on the basis that you “did not show signs of being really gaunt and skinny and having no colour like (you) did when (you) were in trouble before.” Indeed, your counsel stated that “it is not suggested that [your] drug addiction was in an active state in the months leading up to this offence.”
As a person of such an indolent lifestyle over the preceding years you suddenly leapt to attention to run around and organise things for Mr Huynh, whom you claim to have only met once some five or six months previously in Vietnam (I here interpolate that there is some inconsistency between the evidence of your sister and what you told police about when you actually returned from a period of staying with your father in Vietnam). You purchased SIM cards and internet access, assisted Mr Huynh in organising the lease on the factory, and in locating a solicitor who would prepare documents for registration of the company, drove him to see the solicitor and undertook to be the director of that company, purchased garbage bags and sticky tape and a box cutter knife and immediately woke up, at his bidding, to accompany him to the factory on 23 December 2013 to receive the intercepted consignment. These are all actions which, in my view, can only be explained by you expecting to obtain some gain from your conduct.
(3)Although I am satisfied that the two of you acted together for a common purpose of taking possession of illicitly imported drugs, I am satisfied that Mr Huynh was the architect of the scheme and had the financial capacity to fund it. There is no evidence that you, Mr Xi, possessed any commercial acumen, whereas Mr Huynh, who is 10 years older than you, was presented at the plea hearing as a successful businessman from the United States, who had renovated a number of warehouses into cosmetic nail salons, which he sold with some financial success. Mr Polak also stated that Mr Huynh, regularly travelled to Vietnam to explore business opportunities. In contrast to this, you had not worked for a couple of years prior to your offending conduct. It is clear from the depositional material that Mr Huynh was requesting you to organise things for him here in Australia by way of SIM cards and the internet and the lease of a suitable factory.
Thus, although you, Mr Xi, played a crucial role in facilitating the scheme to possess illicitly imported drugs, the evidence before me indicates that Mr Huynh had control of the mobile phone with the number of the consignee to be contacted when the intercepted consignment was ready for delivery and he also had the key to the factory, which he had apparently left behind at the Baron Court address on the day that you drove to collect the intercepted consignment. Further, Mr Huynh’s fingerprint was found on a document from R.T. Vanderbilt Company relating to the earlier consignment,[13] and intercepted telephone conversations from a listening device installed by police within the intercepted consignment show Mr Huynh’s concern that the person who delivered the intercepted consignment had taken down all his details but that had not occurred on the previous occasion. This evidence satisfies me beyond reasonable doubt that Mr Huynh was the person who received the earlier consignment and misrepresented himself to the person delivering that consignment as “William”. This is strong support for Mr Huynh being the person in charge of this so-called business (although I make it plain that involvement in the earlier consignment is not treated by me as an aggravating feature in sentencing Mr Huynh). Further, it is Mr Huynh who makes a call to someone to see if there is any further issue relating to the intercepted consignment and, when he receives a response, he is the one who tells Mr Xi that it is okay to unload the intercepted consignment. Once inside the factory, it is, also, Mr Huynh who directs “This one first”,[14] indicating which of the boxes should be opened. This utterance is followed by loud noises consistent with the movement of plastic and the opening of the box. Further, Mr Huynh maintained control of the key of the factory, after earlier having taken possession of it when Mr Xi’s father delivered it to the factory. He also used it to lock the door after you, Mr Xi, drove your car out of the factory through the roller door at 12.36pm on 23 December 2013. As the architect and financier of the scheme to possess illicitly imported drugs, I consider that Mr Huynh’s moral culpability is higher than that of Mr Xi, even though you, Mr Xi, were involved at a serious level in ensuring that the structure which enabled possession to occur was established.
[12]Answer to Q 232 in Xi’s record of interview.
[13]Statement of Werts at page 283 and 288 of the Depositions.
[14]Surveillance log page 363.
13 In a plea on your behalf, Mr Huynh, Mr Polak stated that you are presently forty years of age, having been born on 2 July 1975 in what was formerly Saigon in South Vietnam. You were the middle of nine children and, shortly after your birth, in that then war-torn country, your family moved to the countryside. Apparently various members of your family succeeded in making their way to the United States, where they ultimately settled. However, for reasons which were not explained by your counsel, you were left with friends in Vietnam. You had had only two years of schooling to age thirteen when you found your way to a refugee camp in Hong Kong, where you remained for some four years before being sponsored by relatives to join them in the United States. You arrived in the United States in 1993 at the age of eighteen years. You had some English classes but were too old for high school and began working in restaurants and markets. In 1996 you married a Vietnamese woman whom you had met in the Hong Kong refugee camp. You remain married and have three children aged six, twelve and eighteen. Apparently, after your father died in 2007, your mother came to live with you and your family for a couple of years, before going into a permanent care facility. Tendered as Exhibit “D1-1” was a letter from El Monte Convalescent Hospital dated 25 March 2014 addressed to you at an address in California, verifying that Mui Nhi Che was admitted to that facility on 20 September 2011 and requires 24 hour nursing care.
14 As previously mentioned, Mr Polak told the Court that your wife has a cosmetic nail business and you have been successful in renovating rundown warehouses and selling them to your financial advantage. He also stated that you had travelled to Vietnam on a number of occasions because you still have family there and Mr Xi’s father, with whom you grew up in Vietnam, is a cousin once removed.
15 Mr Polak stated that, since being remanded in custody on 23 December 2013, you have been very isolated. Your English is poor and you have had only one visit from your wife and one daughter, who flew from the United States to see you. He noted that you are likely to be deported once you are released from custody, however, acknowledged that, as you were not a resident of this country, this would not have the impact it would normally have, although a deportation order would be a stigma and possibly a hindrance in relation to any international travel or future business arrangements. In sentencing you, I take into account your disadvantaged childhood, but note that, apparently, you managed to become a successful businessman in the United States. I do take into account that custody has been a very isolating experience for you and will probably continue to be so. I place less weight on the fact that you are likely to be deported on release.
16 In sentencing you, Mr Huynh, it was urged by Mr Polak that I should take into account that you were not involved in the organisation of any importation, that your culpability was of short duration and that the quantity of the methamphetamine was unknown to you and, further, that you had not made any profit from your offending. I note that you were initially charged with both importation and attempted possession, but the matter resolved on the day after the trial was due to begin by way of a plea of guilty to attempted possession only. It is that charge, and not one of importation, for which I must sentence you and Mr Xi. I have already indicated my findings as to your respective roles and preplanning relating to the charge of attempted possession and I propose to sentence each of you in accordance with those findings.
17 As to Mr Polak’s submission that the quantity of methamphetamine was not known to you, I make the following observations: You denied your offending to police and it was merely asserted from the Bar table that you did not know the quantity of the intercepted consignment. Section 11.1 of the Criminal Code makes the offence of attempt punishable as if the offence attempted had been committed. Section 307.5(2) makes it clear that the element of the quantity possessed, being a commercial quantity, is a matter of absolute liability. By your plea of guilty to the offence of attempted possession of a commercial quantity of unlawfully imported methamphetamine, you have acknowledged that the quantity which you have attempted to possess is a commercial quantity. It is possible that, in some cases, there may be material which satisfies a court on the balance of probabilities that an offender did not know that the relevant quantity was a commercial quantity and this would be a mitigating factor. In your case, there is no such evidence.
18 As far as Mr Polak’s submission that you did not make any profit is concerned, I simply remark that the fact of interception of the consignment and your arrest obviously put an end to any capacity by you to deal with the methamphetamine. Had this not occurred, your potential for financial gain was significant. For this reason, the fact that you did not actually succeed in making a profit is not mitigatory.
19 As previously noted, both of you were initially charged with both attempted possession and importation of a commercial quantity of methamphetamine. Although you, Mr Huynh, lied to police about having any knowledge of the methamphetamine in the intercepted consignment, at the committal on 24 June 2014, you offered to plead guilty to the charge of attempted possession on condition that all charges against Mr Xi were withdrawn. The Crown rejected that offer. Three months later, namely, on 23 September 2014, you made an offer to plead guilty to the charge of attempted possession, without any conditions. This was rejected by the Crown. However, obviously the Crown, ultimately did accept this offer which was re-put on 20 July 2015, the day on which your trial was due to begin As previously stated, the matter resolved into a plea and you were arraigned and pleaded guilty on 21 July 2015. In the circumstances, it is appropriate to regard the unconditional offer to plead guilty to the charge of attempted possession made on 23 September 2014 as the date upon which you indicated you were prepared to plead guilty. By reason of that plea, you are entitled to a discount upon the sentence which, otherwise, you would have received in that you have saved the time and expense of a trial. However, I do not regard your plea as a remorseful one. There is simply no evidence that, at any time, you have been remorseful for what you have done.
20 Another factor which I take into account in sentencing you is that you were remanded in custody at the Metropolitan Remand Centre where riots took place on 30 June this year. Following those riots, your counsel stated that you were locked down for 24 hours a day for some three to four days in a very small space in the visitors’ centre at the Metropolitan Remand Centre. You were then transferred to Port Phillip Prison. Apparently, you were subjected to 24 hour lock down for a total of 15 days, after which you have been permitted to be out of your cell for one hour per day. This was still the situation during the plea hearing. Further, your counsel stated that you have not had any of your possessions since the date of the riot and it is unclear whether they have been destroyed or lost or are somewhere in storage. Mr Polak submitted that, in circumstances where you have had only one visit in the 19 month period of your remand, to have no access to photographs or letters is an additional hardship on top of already onerous conditions of incarceration. I do take these matters into account in sentencing you.
21 Mr Huynh, you come before the Court with no prior convictions alleged against you. It has often been said by the higher courts that the fact that a person was formally of apparently unblemished character is of lesser importance in cases of this type where a commercial quantity of a drug is involved than in other types of cases. However, I do take into account that you have apparently utilised your time in custody to undertake a number of courses via Kangan Institute. These have included certificates in General Education for Adults (apparently introductory English); Cleaning Operations; Kitchen Operations and Use of Hygienic Practices for Food Safety. Documents relating to these courses were submitted as Exhibit “D1-2” at the plea hearing. It is to your credit that you are apparently using your time productively, however, so little information about you or how you came to be involved in this serious criminal offending has been put before the Court, that I find it impossible to assess your prospects of rehabilitation.
22 Mr Xi, you are presently aged 30 years and come before the Court with no criminal history alleged against you. In a plea on your behalf, Ms Todd told the Court that you were born in Melbourne on 7 May 1985. Your grandparents, on both sides, migrated from China to Vietnam, where the family lived in the former Saigon, where both your parents were born. Your parents migrated to Australia following the Vietnam war. You have two older siblings, both sisters, respectively aged 35 and 33 years. Your parents separated when you were quite young. According to your instructions to Ms Todd, you were approximately four years of age, although your sister, Manh, who gave sworn evidence at the plea hearing, stated that you were aged approximately eight years. As already mentioned, your father, Mr Simon Xi, left the family and returned to Vietnam, where he married again and he has children from that marriage. Apparently he had nothing to do with the family for many, many years and returned to Melbourne only shortly prior to the date of your offending.
23 Ms Todd told the Court that, until your sisters left home to reside with their respective spouses, you lived with your mother and two sisters, all of whom are law-abiding people, in the housing commission flats in North Melbourne. You claim that, because your mother was working hard in the textile industry, she was away from home a lot and you were left unsupervised. In her evidence, your sister, Manh Xi, stated that when you were quite young, a teenager, you were addicted to heroin and there were periods when the family put you through rehabilitation programs. Ms Todd said that you did have a history of some engagement with YSAS. However, as previously mentioned, your sister stated that, in the couple of years leading up to the date of your offence, you did not show signs of being drug-addicted as you had done when you were earlier.
24 You left school in Year 11 and successfully completed an apprenticeship as a motor mechanic. You worked as a qualified mechanic for a couple of years after completing your apprenticeship, but then worked for a company called ‘Jaycar’ selling car parts for one or two years. Your sister stated that you ceased working there approximately three years ago and have not worked since. She stated that, after you ceased to work, you were being supported by your mother and the family shifted you to the former Saigon to stay with your father and you remained with him for one year. She stated that this was about two years ago. She believed that you had undergone some sort of drug rehabilitation there with a doctor overseeing you, but was not sure of the details. She believed that your rehabilitation treatment was successful and you attempted to study to get a Diploma to teach English, undertaking a course for a couple of months, but you did not pass the test. She claimed that you did not work in Vietnam, although you instructed your counsel that you had taught English privately to a couple of families in Vietnam. Your sister stated that you returned from Vietnam one or two years ago and continued to be supported by your mother. She stated that you did not work and did not look for work and did very little, although, while you were in Vietnam, you had met a girlfriend, who now lives in Laos, and you keep in touch with her by Skype. She stated that, to the best of her knowledge, you had not returned to Vietnam or travelled anywhere overseas after you returned to Melbourne. Your sister confirmed that she had gone surety for you in the sum of $100,000 when you were granted bail and she felt betrayed when you breached your bail by using heroin. As a consequence, you were remanded in custody again on 28 February 2015. She said that she has not been to visit you in custody since that date, but she and your mother and other sister are prepared to stand by you.
25 I have already referred to the matters of which I am satisfied beyond reasonable doubt concerning your role in this offending. I have found that the organisational activities which you undertook were of crucial importance in enabling the offence of attempted possession of methamphetamine to be committed. However, I have also found that Mr Huynh was the architect and financier of the offending enterprise and bears a higher level of culpability for the offending than you.
26 You sister referred to the Vietnamese custom of calling an older person or relative, such as Mr Huynh, “uncle” out of respect. This could never justify you behaving illegally as you have done. I must take into account such factors mentioned in s16A of the Crimes Act 1914 as are relevant and known to the Court, but Section 16A(2A)(a) makes it clear that I must not take into account any form of customary law or cultural practice as a reason for excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates.
27 I have rejected the submission that you believed Mr Huynh to be setting up a legitimate business and I consider that you were more than a “gofor” for him. However, I do accept that, unlike Mr Huynh, you did not leave Australia in the weeks immediately leading up to the date of your offending. Nor did you have the possession of the mobile phone, the number of which was listed as the consignee contact on the intercepted consignment. Nor was your name on the commercial lease for the factory. Also, the Crown acknowledges that there is no evidence linking you to the earlier consignment, as was the case with Mr Huynh. As I have said, I find, your overall moral culpability is somewhat less than Mr Huynh’s, but you are more than a humble subordinate and, without your assistance, the infrastructure for the attempted possession would not have existed. While it is possible that your father, Simon Xi, may have been involved in the planning for this attempted possession, that is not a matter of which I can be satisfied on the balance of probabilities. Even if he were, any concept of filial piety would not justify or excuse or mitigate your criminal behaviour. Although in no way determinative of your role, the fact is that, in the past, you have used illicit drugs and have some knowledge of them. Although you are a qualified motor mechanic, your sister’s evidence satisfies me that you had shown a disinclination to work in the couple of years prior to your offending. As I have previously stated, I am satisfied beyond reasonable doubt, that the only reasonable inference is that you became involved in this offending for financial gain.
28 Although your plea of guilty was a late one, entered only on the day after the matter had been listed for trial, it is relevant that this took place in the context of the prosecution withdrawing the other charge of importation. I do not find that your plea is a remorseful one and, indeed, your counsel stated that she did not make that submission. Nevertheless, you have facilitated the course of justice by reason of your plea and saved the time and cost of a trial and are entitled to a discount on the sentence which, otherwise, would have been imposed.
29 As with Mr Huynh, I accept that, since the riots at the Metropolitan Remand Centre on 30 June 2015, you have been subjected to onerous conditions of incarceration with weeks of either 24 or 23 hour lockdown. These conditions are persisting and, as is the case with Mr Huynh, you have had all of your personal belongings removed. I take these onerous conditions into account in sentencing you.
30 Also, I take into account that, whilst in custody, you have used your time usefully. You have been working in the timber production unit and have undertaken a number of courses of study at Kangan Institute. Various documents relating to these courses were tendered as Exhibit D2-2. It would appear that you have completed a number of certificates in Agrifood Operations, Horticulture, Cleaning Operations and Workplace Safety. You are only 30 years of age and do have formal qualifications and some work history as a motor mechanic and seller of car parts. I consider that, if you are able to remain free of illicit drugs, given that you still have the support of your mother and two sisters, your prospects of rehabilitation are probably reasonable.
31 In arriving at the sentences which I intend to impose I have taken into account such matters in s16A of the Crimes Act as are relevant to each of you. I also take into account that there has been some delay in these matters being brought to a conclusion before the Court. In your case, Mr Xi, I accept your counsel’s submission that this has caused you anxiety. Indeed, you relapsed into drug use resulting in cancellation of your bail. In your case, Mr Huynh, I accept that serving a long period on remand in a country away from home and any family support has been a lonely and difficult time for you.
32 The offence for which you each must be sentenced is a very serious one, indeed, as reflected by the maximum penalty of life imprisonment which Parliament has assigned to it. The quantity of the methamphetamine, which is the subject of the charge, is a relevant factor. It is twice the amount of 750 grams which defines a commercial quantity for methamphetamine. This type of offence is difficult to detect and the need to protect the community from the great social consequences of illicit drugs means that denunciation of your conduct, general deterrence and just punishment must all be the subject of significant emphasis when sentencing you. The higher courts have emphasised that an offence of this character must, necessarily, attract a stern sentence of imprisonment, otherwise the interests of general deterrence are not served. A message needs to be sent out to those who might be tempted to possess illegally imported border-controlled drugs, particularly in a commercial quantity, that they will meet severe punishment if they do so. As already mentioned, higher courts, also. have indicated that prior good character in offences of this type is generally to be given less weight as a mitigating factor than in relation to other types of offences.
33 In imposing the sentences which I intend to impose I have had regard to sentences imposed in other cases of offences of attempted possession a commercial quantity of a border-controlled drug. However, these vary greatly in in relation to the quantity of the drugs involved and the circumstances surrounding the offending conduct. At best, these other cases can be a yardstick by which to examine my proposed sentence. Ultimately, it is the application of the relevant legal principles revealed in those other sentences which is crucial to ensure consistency in sentencing.
34 There can be no doubt that there is no sentence appropriate for the offending of each of you other than a term of imprisonment, which must be of a severity appropriate to the circumstances of the offence. As I have stated, I am satisfied beyond reasonable doubt that there was a significant degree of planning that took place involving each of you prior to the offence of attempted possession on 23 December 2013 and, also, I am satisfied beyond reasonable doubt that there were indicators that you both proposed to move the substance which had been substituted for methamphetamine, such that it is reasonable to infer that your offending was for financial gain.
35 Would you please stand up Mr Huynh.
36 On one charge of attempting to possess an unlawfully imported border-controlled drug, namely, methamphetamine, in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of ten years commencing today.
37 Pursuant to s19AB of the Crimes Act 1914 I fix a non-parole period of seven years.
38 I declare a period of presentence detention of 599 days to be time reckoned as already served under the sentence imposed this day.
39 Mr Huynh, pursuant to s 6AAA of the Sentencing Act (Vic) I state that, had it not been for your plea of guilty, the sentence imposed would have been twelve-and-a-half years imprisonment with a non-parole period of nine-and-a-half years.
40 Would you stand up please Mr Xi.
41 On one charge of attempting to possess an unlawfully imported border-controlled drug, namely, methamphetamine, in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of seven years and 354 days commencing today.
42 Pursuant to s19AB of the Crimes Act, I fix a non-parole period of five-years-and-seven months.
43 I declare a period of 339 days presentence detention to be time reckoned as already served under the sentence imposed this day.
44 I note that, after allegedly committing further offences whilst on bail for the offence of attempted possession, (for which you are awaiting hearing), you were, remanded in custody on 28 February 2015, but your bail was not formally revoked until 11 days later, on 12 March 2015. This 11 days is not pre-sentence detention to be reckoned as time served under the sentence imposed this day. However, I have considered it appropriate for you to receive the benefit of that time served at the first available opportunity. Accordingly, I have taken those 11 days into account in arriving at the sentence which I have imposed. Otherwise, the head sentence would have been 8 years.
45 Mr Xi, pursuant to s 6AAA of the Sentencing Act (Vic) I state that, had it not been for your plea of guilty, the sentence imposed would have been ten-and-a-half years’ imprisonment with a non-parole period of eight years.
46 Mr Huynh and Mr Xi, I must explain to you that the sentence which has been passed upon each of you this day involves each of you serving a term of imprisonment which is not less than the non-parole period which I have set. In your case, Mr Huynh, this is a period of seven years. In your case ,Mr Xi, it is a period of five-years-and-seven months. After your respective non-parole periods, if a Parole Order is made, you will each serve a period of time in the community, called a parole period, in order to complete serving the balance of your sentence. If a Parole Order is made, that order will be subject to conditions and the Parole Order may be amended or revoked. If, without reasonable excuse, you fail to fulfil the conditions of your parole, apart from having your Parole Order revoked, which means that you would return to prison, there may be other more onerous conditions imposed for the balance of your parole period. If you commit another offence punishable by imprisonment while on parole you parole order will be revoked and you will be returned to prison to serve the unexpired part of your sentence.
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