Director of Public Prosecutions v Huynh
[2012] VCC 1319
•6 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00733
CR-12-01001
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KIM HUYNH THU TRAN |
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JUDGE: | HIS HONOUR JUDGE GULLACI | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 September 2012 | |
CASE MAY BE CITED AS: | DPP v. Huynh & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1319 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K. Heng | |
| For the Accused (Huynh) | Ms J. Hession | |
| For the Accused (Tran) | Mr V. Peters |
HIS HONOUR:
Kim Huynh
1 Kim Huynh, you have pleaded guilty to trafficking in heroin. The maximum penalty is 15 years' imprisonment.
2 The circumstances of your offending have been set out in the Crown opening, which has been tendered as an exhibit and also read into the court transcript.
3 By way of background, in August 2009, Victoria Police commenced an investigation into the illicit activities of members of the Le family. From late 2009, mobile phones used by various members of the Le family and their associates began to be intercepted, pursuant to warrants. You, Kim Huynh, lived in the same block of Commission flats as one of the principal targets of Operation Sethra, known as Chi Thu. You lived in Flat 74 on level 7 and Chi Thu and some of her family lived in Flat 110 on level 11. You live with your 14 year old daughter, Wendy, and your six year old daughter, Tina, and sometimes with your husband or partner, Thanh. At the time of offending you were 42 years of age and you were in receipt of a sole parent pension.
4
I turn to Charge 1, trafficking in heroin, between 1 December 2009 and
21 July 2010. On a continual basis during the charge period, you purchased heroin from Chi Thu or her family, for the purpose of on selling that heroin to others. A chart setting out contacts between you and your daughters with Chi Thu and Flat 110 is attached as Schedule A. You purchased heroin from Chi Thu, then cut the drug to a lower purity and then on sold it. You used at least two other people for the actual on sale of the drugs to others. The heroin that you purchased from Chi Thu had been prepacked as either 1.7 gram, yellow wrapping, or 3.5 grams, blue wrapping, lots. You were charged $425 to $450 per 1.7 grams and $900 per 3.5 gram lots. On many occasions you conducted your business using your 14 year old daughter, Wendy, as a conduit between yourself and your suppliers in Flat 110, either to collect heroin or to deliver money.
5 Discussions recorded on listening devices establish that you planned your trafficking activities in a manner intended to avoid police detection and maintained an awareness of possible police surveillance; that you were careful and selective in your use of on sellers, who you referred to as "soldiers"; you monitored the trafficking activities of your soldiers and other sellers; you invested your money in jewellery and that you were making $250 profit per 3.5 grams purchased from your supplier.
6 The usual process of trafficking was that you would call Chi Thu and have a short conversation to determine whether she was at home. If Chi Thu was at home, you would then go upstairs to her flat, or would send your daughter, Wendy. On occasions, Chi Thu would stop by your flat and you would either pay for the drugs when collecting them, or afterwards, frequently sending your daughter, Wendy, to Chi Thu's flat for this purpose. On occasions at Chi Thu's flat, you were accompanied by your youngest daughter, then six years of age. That child was present with Wendy on 15 occasions when Wendy was sent to Chi Thu's flat to carry out drug trafficking business on your behalf, whether it be the delivery of money or collecting heroin.
7 Investigators were able to establish that 153.7 grams of heroin were purchased by you for the purpose of resale in 25 transactions. There is clear evidence that you trafficked above that figure, however it cannot be precisely determined. However, these factors have been able to be established by investigators and alleged against you. There were more than 50 visits or contacts between you, Wendy and Chi Thu, or her assistants, in addition to those transactions where quantities can be determined, the evidence establishes many deliveries of moneys or collection of drugs by Wendy, where quantity cannot be ascertained. You, in conversations, refer at least one to collecting gear, where the actual amount cannot be ascertained.
8 The minimum amounts sold by Chi Thu per transaction, was 1.7 grams. The quantifiable purchases made by you were regularly more than 1.7 grams. You purchased enough heroin to sell using two soldiers, as you referred to them. You had a busy trafficking business compared to other of Chi Thu's buyers.
9 In a conversation on 3 April 2010, you described your business as "slow" at that time. This followed March 2010, during which there had been activity related to trafficking on 26 days, in respect to ten of which the actual quantities could be ascertained, totalling 82.8 grams. On 3 May 2010, you told Chi Thu that you give 3.5 grams to your soldier, referred to as Mrs Mum, each time and that Mrs Mum's sales had slowed down recently from an earlier rate of 3.5 grams per day.
10 In summary, it is alleged that you were running a busy trafficking enterprise over the charge period and you trafficked a substantial amount of heroin and the purpose of your trafficking was solely for monetary profit. The particular details are set out from paragraphs 13 to 19 in the Crown opening., I do not propose to repeat.
11 You were arrested and interviewed by police on 12 August of 2010. You, in that interview, admitted visiting the flat occupied by Chi Thu, but claimed that you went there because you were friends and you denied any involvement in the trafficking of heroin. A search of your flat did not find any drugs, however the police located a number of items, as set out in paragraph 22.
12 I turn to factors personal to you. You are now 43 years of age and live with your two daughters. You were born in Vietnam and all of your family members still reside there. You were educated to Grade 4 level and then worked in the rice fields. You are one of 12 siblings. At the age of 13, you moved to Saigon and lived with an aunt and fled the country with an uncle at the age of 16. You lived in a refugee camp and were sponsored to Australia by an uncle. You lived with him for a short time, but were told to find employment and be independent. You worked in a shoe factory for three to five years and a biscuit factory for seven to eight years. You became pregnant with your first child but were not in a relationship with the father and have received no support from him. You then had a relationship with the father of your second child, but do not live with him on a permanent basis. He lives in the same block of flats and is involved in the life of your child, Tina, but does not get on well with Wendy. Arrangements have been made for Tina's father to look after the children during any period of incarceration.
13 A report of a psychologist, Ms Lechner, was tendered on your behalf, and
Ms Lechner also gave viva voce evidence before the court. Ms Lechner based a number of her opinions on what you had told her, which she appears to have accepted at face value and incorporated in her report as a basis for some of her conclusions.
14 Your counsel accepted that these assertions by you were not supported by the evidentiary material in the depositions and ultimately did not seek to rely on any of them at all in her submissions. I list some of these assertions to illustrate a concerning trend in psychologist's reports, including those prepared by Ms Lechner, where the psychologist simply accepts a version of what is referred to in Ms Lechner's report as offending behaviour, which is no more than a deliberate attempt by accused persons to minimise their offending and put the best possible spin of their criminal conduct, designed to mislead the court. In this case I refer to the following:
(1) That you had borrowed money, apparently $40,000 from your drug supplier, Chi Thu, and that she, the drug supplier, told you if you could not afford to pay it, then you could do that, that is traffic heroin and pay the loan off slowly.
(2) That you would get small quantities to resell for some profit.
(3) That you told yourself you were at a dead end and would stop when the debt was paid.
(4) That you did not think the consequences would be that great.
(5) That when you were unable to pay the debt, you became involved in street level selling of heroin instead.
(6) That you knew your actions were wrong, but you felt you had no other option.
15 It became clear when I had the opportunity to ask Ms Lechner some questions, that:
(a) She simply accepted what you told her and based her opinions only on that account.
(b) That Ms Lechner was not aware of any of the details in the depositions, which amply set out the level of your criminal conduct and that you were motivated by greed and the lure of easy money.
(c) That she, the expert, had made no attempt to verify any of the assertions made by you to her, such as asking for access to the relevant evidentiary materials.
16 Ms Lechner also conducted some tests to determine the level of your cognitive function and concluded that your performance was in the "mildly" intellectually disabled range. Whilst I have some concerns as to how the testing was conducted, that is through an interpreter, a Vietnamese national with limited education, I am prepared to accept on the balance of probabilities that you have low intellectual functioning.
17 I turn now to factors to be taken into account in your favour.
(1) You have endured a dysfunctional upbringing and have limited family support in Australia.
(2) You have a good relationship with your two daughters, who have made sound progress at school.
(3) You pleaded early at an early stage and that entitles you to a sentencing discount.
(4) You will suffer anxiety and anguish as a result of separation from your children.
(5) You daughter, Wendy, is studying Year 11 and will have to cope without your support and face additional responsibility in assisting with the care of your youngest daughter, Tina.
(6) The relationship between your some time partner and Wendy is not a happy one.
(7) There has been a delay of two years since the offending and you have lived with this serious charge hanging over your head during that period.
(8) You have not offended in any way during that period and have demonstrated a capacity to stop heroin trafficking if you wish to do so.
(9) You have taken some steps towards rehabilitation.
18 I turn to submissions of your counsel. Ms Franjic conceded that the circumstances of your offending warrant the imposition of an immediate term of imprisonment in the range, as I understood her submission, of two to three years with a minimum term of 12 to 18 months. Ms Franjic relied on the matters listed above as matters to be taken into account in your favour and, in addition, submitted:
(1) That your low intellectual functioning attracted the principles as set out in R v. Verdins (2007) 16 VR at 269, so as to reduce your moral culpability and that both specific and general deterrence should be moderated to some extent.
(2) That the court should accept the evidence of Ms Lechner in respect to the testing she administered to you.
(3) That your trafficking was a mid range level of trafficking.
(4) That your involvement of your children in your criminal activity was an aggravating factor, however this should be reduced in light of your low intellectual functioning.
(5) That you have good prospects of rehabilitation.
(6) That exceptional hardship had been established.
(7) That a shorter minimum period should be imposed.
19 Ms Franjic provided a number of written submissions, that she either did not pursue at all in oral submissions, or did not make the same submission orally that she had made in writing. For example:
(a) That your intellectual disability substantially lessens your moral culpability, and
(b) Makes denunciation a less relevant sentencing objective.
(c) General deterrence should be given little weight because you are not an appropriate medium for making an example to others.
(d) That any term of imprisonment would be more onerous on you than other members of the community in normal health.
(e) That punishment should be mitigated because there is a serious risk of imprisonment having an adverse effect on your mental health.
20 Ms Franjic submitted that the court should consider current sentencing trends in the third court to particular cases. (See transcript p.52 onwards.) Ms Franjic accepted that it is difficult to argue from specific cases as each case falls to be sentenced on the particular circumstances of the individual case.
21 I turn to consider some of the significant submissions in detail. The first one of those is that Ms Franjic submitted that exceptional circumstances and the exercise of mercy had been established.
22 Counsel relied on the following, in combination, as establishing exceptional circumstances, thereby attracting a merciful sentence:
(a) That you were the sole guardian of your children.
(b) That you had no immediate family in Australia.
(c) That you had no support from the father of your eldest child.
(d) That despite involving your children in your heroin trafficking business, you were what she referred to as a "devoted mother."
(e) That your oldest daughter is at a critical stage of her education.
23 Ms Dalziel, the learned Crown prosecutor, submitted that these facts did not amount to exceptional circumstances. In my view, the defence has failed to establish exceptional circumstances for the following reasons:
(1) Unfortunately, there is nothing out of the ordinary that children will suffer hardship if their mother is incarcerated.
(2) The children will be cared for by the father of the youngest child.
(3) There is no evidence or suggestion that the children will lose their home, or be required to shift to new school, or that they will be required to go into the care of DHS, or separated during any term of their mother's incarceration.
(4) That the defence has conceded that the only sentencing option is a sentence of immediate imprisonment. Accordingly, in my view, the impact on the children, in particular Wendy, will be experienced by her following the concession that immediate incarceration is appropriate.
(5) The other factors, either individually or in combination, do not amount to exceptional circumstances.
24
As the Court of Appeal said in R v. Markovic [2010] 200 A.Crim.R
paragraph 3:
"It has long been the position at common law that unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration."
25 At paragraph 5, the court said:
"We have concluded that the established common law position should be reaffirmed."
26 And at paragraph 14, the court said:
"As we have said reliance on family hardship is probably to be understood as a request for mercy."
27 I have taken into account, as I set out above, that you personally will suffer anguish and distress being separated from your children.
28 I turn now to consider your asserted low intellectual functioning. Counsel submitted that your low intellectual functioning required the court:
(a) To reduce the aggravating factor of the involvement of your children in the trafficking of heroin.
(b) Substantially reduce your moral culpability so as to reduce the importance of specific deterrence.
(c) To give little weight to general deterrence as you were not a proper vehicle for general deterrence.
(d) That you may not have made the direct link between your prior conviction and appreciating how serious your current offending was, or the possible consequences of being charged.
29 In my view, your low intellectual functioning is such that the court is required to take it into account in determining your moral culpability and the need to reduce the significance of both specific and general deterrence to a limited extent. This was conceded, as I understood your counsel, at transcript pp.58 and 59. In my view, your moral culpability is high and not significantly reduced by your low intellectual functioning for the following reasons:
(1) You have a prior conviction for trafficking heroin. You were sentenced to a term of imprisonment, wholly suspended, and subsequently breached that court order.
(2) You were not deterred from offending in a similar manner, as reflected in the current charge.
(3) Your mental disability is not of the same category or severity as the offender in R v. Muldrock [2011] HCA 39. I am satisfied beyond reasonable doubt that you have had in the past functioned well in the community, as demonstrated by:
(a) That you have a history of significant employment for long periods of time in different factories.
(b) You have been able to set up and manage a home and look after your children, according to the materials available to the court.
(c) You were able to fully participate in your children's school programs as a parent.
(d) You were able to organise and run a well planned and executed trafficking business, which included the use of your own daughters to hide or prevent detection of frequent trafficking, the use of soldiers to sell heroin. You had the mental capacity and ability to take significant measures to avoid detection. Not only did you purchase significant amounts of heroin, but you managed to cut the heroin accurately and into smaller dealer packaging for sale by your soldiers.
(e) You were motivated to engage in the business of trafficking by greed.
(f) There is no evidence that supports your well constructed scenario, as set out above to Ms Lechner, in my view, I am satisfied beyond reasonable doubt, to deliberately minimise your role in this criminal offending and attract sympathy to yourself.
(g) In my view, your low intellectual functioning had little impact on your capacity to run a successful drug trafficking business.
(h) The materials demonstrate you were able to deal with your drug supplier, take steps to avoid detection and you were well conscious and aware of the risks of detection.
(i) You had already received a sentence of imprisonment for drug trafficking, wholly suspended, previously and to suggest that you did not consider "the big picture," or realise the serious nature of your criminal conduct, is to fly in the face of the material contained in the depositions.
(4) In my view, your disability is not of such severity that you are not a proper vehicle for general deterrence.
(5) Although both specific and general deterrence are to be moderated to a limited degree, both are still significant matters for the court to consider in determining an appropriate sentence.
(6) I am not persuaded on the balance of probability that your intellectual functioning is such that it will make any term of imprisonment more onerous on you than other members of the community. In my view, you have demonstrated a well established capacity to function in the general community, the workplace, as a drug trafficker and apparently as a mother.
30 The Crown Prosecutor submitted the circumstances of your offending warrant the imposition of a term of imprisonment in the range of three and a half to five years, with a minimum term of two and half to three and half years for the following reasons:
(1) The duration of your offending.
(2) That you were involved in frequent trafficking over the charge period.
(3) That you have a prior conviction for heroin trafficking.
(4) That your offending has the aggravating feature that you used your children.
(5) That your trafficking involved engaging the people you refer to as soldiers, to on sell to customers.
(6) That your motivation was the making of money.
31 Whilst I am satisfied beyond reasonable doubt that you were an active and proficient drug trafficker in heroin over the charge period, I am not able to determine how much money you actually made out of your trafficking business. Whilst there are references in the depositions to:
(a) Possibly buying a house in Vietnam.
(b) Purchasing expensive jewellery and a valuable watch, actually located during a search warrant execution, the Crown conceded that you made modest profits and there is no evidence that you have amassed significant assets from your heroin trafficking.
32
You have a prior conviction for trafficking heroin and you asserted to
Ms Lechner that you were not trafficking, but, to use your word, "holding heroin" on that occasion for someone else. I have no information to enable me to determine the circumstances of your offending on that occasion, however the court saw fit to impose a term of imprisonment, wholly suspended.
33 In my view, your prior conviction is a matter proper for the court to consider to determine the weight to be given to specific deterrence and assess your prospects of rehabilitation.
34 Relevant sentencing considerations for crimes such as these involve a combination of factors, the seriousness of your offence, your culpability for its commission, your personal history and circumstances, mitigating factors that exist in your case and your prospects of rehabilitation.
35
You have demonstrated in the last two years that you are capable of not offending, but you previously went for a long period without offending and then re-offended in a similar manner. You have responsibilities to your daughters and despite your deplorable actions in involving them in your criminal activities, I am satisfied you care for them. In my view, you have a clear capacity to stay out of the heroin trafficking trade, however you have
re-offended in order to make money.
36 The sentence of the court must be one that deters you from offending in a similar manner again in the future. General deterrence is clearly a significant matter. Those who traffick drugs in order to make money, must be made aware that the courts will impose severe sentences in order to deter others in the appropriate circumstances. As the Court of Appeal accepted what the trial judge said in R v. Healy, as long ago as No.82 of 1990:
"One can understand a drug addict engaged in trafficking to fund his addiction, but in the case of a person who is not an addict, his primary concern is one of greed to make money out of other people's misery."
37 You are one of these people.
38 I have considered the minimum term and fix that term, taking into account the following:
(1) Your plea of guilty.
(2) Matters personal to you.
(3) Your separation from your daughters.
(4) The circumstances of your offending; and
(5) That you have a prior conviction for trafficking heroin.
39 The formal order of the court, as far as you are concerned is as follows:
40 On the charge of trafficking heroin, you are sentenced to a term of imprisonment of three and half years. I fix a minimum term of two years before you become eligible for parole.
41 Pursuant to s.18 of the Sentencing Act, I declare the period of 32 days be reckoned as already served and direct that be noted in the records of the court.
42 The Crown has made an application for a retention order, pursuant to s.464ZFB of the Crimes Act. I propose making that order for the following reasons:
(1) Your prior conviction.
(2) The circumstances of your offending.
(3) That it is consented to; and
(4) That the making of the order is in the public interest.
43 I make a disposal order and forfeiture order by consent.
44 Pursuant to s.6AAA of the Sentencing Act, I am required to inform you what sentence I would have imposed had you not pleaded not guilty and been found guilty by a jury. I would have imposed a head sentence of four years and nine months and fixed a minimum term of three years and four months.
45 I hasten to add, that is not the sentence of the court, the earlier sentence is the sentence of the court.
46 That completes my remarks as far as you are concerned.
47 (Section 464ZFB order signed and acknowledged.)
48 (Disposal order signed and acknowledged.)
49 (Forfeiture order signed and acknowledged.)
Thu Anh Tran
50 I turn now to you Thu Anh Tran. You have pleaded guilty to:
(1) Traffic heroin, maximum penalty 15 years' imprisonment.
(2) Traffic MDMA, maximum penalty 15 years' imprisonment.
(3) Handle stolen goods, maximum penalty 15 years' imprisonment.
51
You, at the time of these offences, were 39 years of age. You lived at
Flat 104, 240 Wellington Street, Collingwood and were in receipt of government benefits. You had two daughters living with you. You were described by the Crown as underling in the heroin trafficking business, carried out by the Le family. You also ran your own business of trafficking MDMA and had a sideline business in the receipt and sale of stolen goods.
52
I turn to Charge 2, the trafficking of heroin between 1 December 2009 and
12 August 2010. You were acquainted with Chi Thu's sister, referred to as Chi Bah and with the co-accused, Kim Huynh. By reason of this friendship, Chi Bah involved you in her heroin trafficking enterprise. You received ounces of heroin from Chi Bah, which you then cut into smaller amounts and on sold. You were available to act as a delivery person for Chi Bah's trafficking business and arranged for others to test the heroin, so that you could apprise Chi Bah about the quality of the drugs. You also assisted Chi Bah and Chi Thu in their loan shark business. I have no information about that and I do not take that into account against your interests in any way.
53 Chi Bah lived in Keilor Downs. She sold drugs in 28 gram lots to her sellers. You contacted Chi Bah and used coded words in order to obtain further supplies of heroin. You would then shave the ounces of heroin purchased by you into smaller amounts, package them in foil, and on sell the drugs. You did not further dilute the drugs by cutting them. You were given the task of testing the quality of the heroin for Chi Bah and her sister, Chi Thu. The transactions, which have been able to be established, are set out in the Crown opening, at paragraphs 30 and 31 and I do not propose to repeat those, but simply indicate that they are part of the allegations accepted by you.
54 When you were arrested and your flat was searched on 12 August, you had two ounces of heroin, that is two 28 gram blocks in your purse, and you had other smaller amounts of heroin, some in foil, ready for sale. The total quantity of heroin located in your flat was 90.4 grams, some at 25 per cent purity and some at 30 per cent purity. The Crown allege that you trafficked substantial amounts of heroin on a regular basis over the entire period of Charge 2, and you did so solely for the purpose of making a profit.
55
Charge 3, is a charge of trafficking MDMA, between 11 January 2010 and
12 August 2010. The Crown rely on telephone calls received by you and made by you, recorded on your telephone, between January and February 2010, was found at your flat and your admissions. You began trafficking in MDMA on 11 January 2010. You used distributors to sell MDMA tablets to users. You purchased the MDMA tablets at $17 per tablet, with the intention that they be sold for $25 each. You and your seller, in particular Anh, were to share the $8 profits equally. On 11 January, you exchanged a series of text messages with Anh regarding prices at which you would sell MDMA tablets. Your price was $25 each if the volume was under 500 tablets, and $20 each if over 500 tablets. You had tablets handed out as a marketing exercise and received reports back from Anh and you then arranged for further supplies. A call on 13 February 2010 shows that you distributed tablets not only to Anh, but to other on sellers. Your trafficking in MDMA was a separate enterprise to your trafficking heroin. You were your own boss in this enterprise, setting the price of the tablets and controlling the number of tablets which would be delivered.
56 Charge 4, handling stolen goods. When your flat was searched by police on 12 August 2010, numerous items which they located, which are the subject of this charge, included 35 items of packets of sheets, total value on the retail tags was $5,576.55; 19 bottles of perfume; two Mandarin duck bags, with retail tags showing prices of $800 and $500; one DKNY bag, with a retail tag attached showing a price of $629. These were goods which you had received as payment for drugs you were selling. You retained them for the purposes of on selling. When police executed a search warrant, they located a purse containing $18,645 cash; two blocks of heroin, totalling 56.2 grams; 18 full packets of heroin, weighing 8.1 grams; they also located a Louis Vuitton zip purse containing the items which are set out in the Crown summary at paragraph 46.
57 You were interviewed by police and you made admissions, in a general way, that you were trafficking in drugs. You agreed that you were selling heroin, but you claimed the ecstasy in your possession was for your own use. As to the blocks of heroin found by police in your purse, you admitted it was heroin that was for trafficking. You told the police you had paid $15,000 for those two blocks, for the purpose of cutting into smaller amounts and on selling. You said that you did not further cut or dilute the drug.
58 I turn to factors personal to you. You are 40 years old and reside with your two children. You were born in Vietnam and were abused physically by your father, who believed that when you born you had brought bad luck to the family. You were banished to live with your grandparents. You lived with your grandparents till the age of six and then went back to the family. You escaped from Vietnam at the age of 16 with an older sister. You were in a refugee camp for two years, then sponsored to Australia by an uncle. The uncle's family settled in Spotswood. You moved to shared accommodation at the age of 20. Your oldest child, now 17, was conceived on a visit to Vietnam, as was your second child.
59 You are in a current relationship with a man who comes from Sydney, who visits you regularly. You have relied on men to provide for you and your children and your gambling, according to the report of the psychologist,
Dr Cunningham. Dr Cunningham concluded, inter alia:
(1) That you have been on a pension since 2008.
(2) That you attempted suicide in 2011.
(3) That you began using ecstasy socially at the casino.
(4) That you report ceasing use of ecstasy after being charged.
(5) That you gambled at the casino daily.
(6) That you claimed not to have gambled since being arrested.
(7) That you are currently being assisted by the Vietnamese Women's Welfare Association.
(8) That you have completed a certificate in hospitality.
(9) That you present with a prior pathological gambling disorder.
(10) That you stated you engaged in your offensive behaviour due to being vulnerable to the influence of your peers and that you are concerned about the welfare of your children.
60 I turn to matters to be taken into account in your favour:
(1) Your plea of guilty entitles you to a sentencing discount.
(2) You have no prior convictions.
(3) You have nothing arising during the significant delay period.
(4) During that delay period of two years, you have used that time to engage with the Vietnamese Women's Assistance Association. (See the reference tendered.)
(5) Your oldest daughter is studying Year 12.
(6) You will suffer anguish from separation from your children.
(7) You have endured a dysfunctional and deprived childhood and upbringing.
(8) You have support for some of your sisters, in particular Michelle, who gave evidence before me.
(9) You are remorseful.
(10) You made admissions to police, both in respect of your heroin trafficking and MDMA.
(11) You have the capacity to rehabilitate yourself if you stay away from your associates, or previous associates and gambling.
61 I turn to submissions of your counsel. Your counsel submitted the court should impose a community corrections order with unpaid community work and other conditions. Mr Peters' secondary submission was that there should be a three month term of imprisonment in association with a community corrections order. His fallback position was that a sentence of imprisonment be partially suspended or a long period of parole be imposed. Mr Peters relied on the matters listed above as matters to be taken into account in your favour and, in addition, submitted that the materials brought to his attention by the Crown Prosecutor should be considered by the court, that is material that:
(a) You had used ecstasy socially.
(b) That your record of attendance and expenditure at Crown Casino was in the depositional material at p.1821. It appears that during the plea hearing, Mr Peters was not aware of these materials in the depositions. However, by email I have been informed of these materials and was also informed by the learned Crown Prosecutor during the plea hearing in relation to your ecstasy use in a social setting. Clearly this material supports the assertions made by
Mr Peters, from the Bar table, as to your gambling and that you had used ecstasy socially whilst socialising, in particular dancing at some nightclub that Mr Peters referred to, I think it was Bubbles. Mr Peters did not seek to submit that these matters were mitigating factors, simply provided an explanation.
62 The learned Crown Prosecutor submitted the circumstances of your offending warranted the imposition of a head sentence of three and a half to five years, with a minimum term of two to three and half years. The Crown Prosecutor submitted the imposition of a community corrections order with or without a term of three months' imprisonment was out of range.
63 I have considered the Crown's submission that the same sentence should be imposed on each of the two accused before me. I have considered the following matters in particular in each case.
64 In the matter of the co-accused, Huynh:
(1) That you have a prior conviction for trafficking heroin.
(2) That you were above street level and you used to sell on the street.
(3) The duration and extent of your trafficking.
(4) That you used your children in the criminal conduct; and
(5) Your low intellect.
65 In respect to you, Ms Tran, I have considered these matters:
(1) That you have no prior convictions.
(2) That you face three discrete charges and two charges of trafficking different drugs.
(3) That you were an underling in the Chi Bah trafficking, but ran your own trafficking business in MDMA and handling stolen goods.
(4) That you occasionally used MDMA yourself.
66 I turn to my conclusions as to your role, Ms Tran. I am satisfied beyond reasonable doubt of the following:
(1) You trafficked both heroin and MDMA by the lure of making money.
(2) You purchased ounce lots of heroin, repacked the heroin into smaller quantities and sold directly to customers.
(3) You trafficking significant amounts of heroin over the charge period and you ran a business of trafficking both drugs.
(4) You also obtained goods in lieu of cash from customers and on sold these items.
(5) You secured your heroin from Chi Bah.
(6) You were also involved as a delivery person for Chi Bah.
(7) You used others to sell your MDMA and fixed the prices.
(8) You had a sideline business of handling stolen goods.
(9) When arrested, you had two one ounce blocks of heroin and four that were prepared for sale to customers and this indicates, in my view, the level of your trafficking generally.
67
Relevant sentencing considerations for you are the same as for the
co-accused. I do not propose to repeat them, but adopt them in your case.
68 I have considered and determined that you have reasonable prospects for rehabilitation if you stay away from gambling and drugs and your past party lifestyle.
69 As stated above, your counsel relied on the report of Dr Cunningham, which refers to:
(a) Your gambling problems and assert that you have stopped gambling; and
(b) Your social use of ecstasy and asserted that you had stopped using ecstasy.
70 Your counsel did not lead any evidence in support of these assertions, however there is material in the depositions, as I set out above, to support some of those assertions.
71 In your case, I am encouraged that there are some positive signs from your involvement with the Vietnamese Women's Association and your attachment to your children. However, you have committed significant offences motivated by greed.
72 The sentence of the court must be one that deters you from offending in a similar manner again in the future. General deterrence, as to its significance, I adopt the previous statements in relation to the co-accused.
73 I have considered your counsel's submission as to the imposition of a community corrections order and have determined to reject that submission for the following reasons:
(1) The nature and extent of your criminal conduct.
(2) That you were motivated by greed.
(3) That you engaged in selling heroin in the Chi Bah hierarchy, at a low level, but ran your own business of MDMA.
(4) That you handled stolen goods and on sold them.
(5) That this type of criminal conduct calls for the imposition of sentences that deter others.
74 I have considered how the sentences to be imposed relate to each other and have determined there should be some cumulation for the following reasons:
(1) The offences are discrete.
(2) You have trafficked in two different drugs.
(3) The total effective sentence should reflect your total criminality; and
(4) There is an additional charge of handling stolen goods.
75 I have considered the appropriate minimum term and have fixed that period, keeping in mind the following matters in particular:
(1) Your cooperation with police and your plea of guilty at an early stage.
(2) You have no prior convictions.
(3) Matters personal to you.
(4) The anguish that you suffer as a result of being separated from your children who will both face some hardships.
(5) That you will benefit from a period of supervision by the Parole Board.
76 The formal order of the court is as follows, with conviction on all charges.
77 Charge 1, trafficking heroin, you are sentenced to two years and six months' imprisonment.
78 Charge 2, trafficking MDMA, you are sentenced to 12 months' imprisonment.
79 Charge 3, handling stolen goods, you are sentenced to six months' imprisonment.
80 I order six months of the sentence imposed on Charge 2 and two months of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1 and on each other. The total effective sentence is three years and two months. I fix a minimum term of 18 months before you are eligible for parole.
81 Pursuant to s.18 of the Sentencing Act, I declare the period of 16 days be reckoned as already served and direct that be noted in the records of the court.
82 In your case, I make a retention order, pursuant to s.464ZFB of Crimes Act for the following reasons:
(1) The circumstances of your offending.
(2) That the orders by consent are not opposed.
(3) The making of the orders are in the public interest.
83 I make a forfeiture order and a disposal order in respect to the items set out in the schedule to those orders.
84 Pursuant to s.6AAA of the Sentencing Act, I am required to inform you what sentence I would have imposed had you pleaded not guilty. I would have imposed the sentence of four years and two months and fixed a minimum term of two years and nine months. I hasten to add, that is not the sentence of the court. That sentence is given to you as an indication of the value to you of your plea of guilty.
85 (Section 464ZFB order signed and acknowledged.)
86 (Disposal order signed and acknowledged.)
87 (Forfeiture order signed and acknowledged.)
88 That completes my remarks. The orders are signed, I hand those down.
89 Any matters that counsel wish to raise?
90
MS HENG: Yes, Your Honour. Just in relation to Ms Huynh, the PSD is
32 days.
91 HIS HONOUR: I was told it was 14 days last time.
92 MS HENG: It was actually 16 days last time and then an additional 16 days not including today.
93 HIS HONOUR: All right, I will change that to 32 days. Anything else?
94 MS HENG: Ms Tran, that will be 16 days.
95 HIS HONOUR: Sixteen days for Ms Tran, I will change that.
96 MS HENG: Yes. I'd formally like to seek to remit the summary charge in this matter in relation to the proceeds of crime, $18,000, thereabouts, the section is 242(5) of the Criminal Procedure Act.
97 HIS HONOUR: All right, I remit that to the Magistrates' Court. Is it the Magistrates' Court or to another court in this - - -
98 MS HENG: To the Magistrates' Court, Your Honour, and I'll just - - -
99 HIS HONOUR: To the Magistrates' Court. I'll remit that charge to the Magistrate's Court. Can I just indicate the charges that Ms Tran faced were 2, 3 and 4. My sentencing remarks obviously go to the cumulation. I just make it clear I'll change the numbers but the base count is the trafficking heroin, six months cumulative in relation to the trafficking in MDMA and then there's a further period of two months cumulated for the charge of handling. So I'll change those counts to reflect the indictment. It's just that I've prepared the sentencing remarks separately and I've obviously, in doing that, I've renumbered the counts on the indictment but I'll fix that up in my - when it comes up for revision, Mr Peters, thank you.
100 MS HENG: As Your Honour pleases.
101 HIS HONOUR: Yes, anybody else? No. Thank you. Both accused are excused.
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