Director of Public Prosecutions v Huynh
[2024] VCC 589
•01 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR 21-00451
CR 21-01602
CR 22-00227
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HEIN HUYNH |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 February 2024 |
| DATE OF SENTENCE: | 01 May 2024 |
| CASE MAY BE CITED AS: | DPP v Huynh |
| MEDIUM NEUTRAL CITATION: | [2024] VCC 589 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Traffic a commercial quantity of heroin; Commit indictable offence whilst on bail; Deal with property suspected of being proceeds of crime.
Legislation Cited: s71AA Drugs, Poisons and Controlled Substances Act1981(Vic); s 195 Crimes Act 1958 (Vic).
Cases Cited:DPP v Condo [2019] VSCA 181; Gregory v The Queen [2017] VSCA 151; The Queen v McLeish [1982] 30 SASR 487; The Queen v D'Aloia [2006] VSCA 237; The Queen v Cheng Wai Man(unreported NSWSC, 22 March 1991); Bugmy v The Queen [2013] HCA 37; Jence v The Queen [2021] VSCA 188; Herrmann reported [2021] VSCA 160; The Queen v Lacey [2007] VSCA; R v Koumis & Ors [2008] VSCA 84; DPP v Dalgleish [2017] ALJR 91.
Sentence:Five years and two months with a minimum of 42 months before being eligible for parole. 6AAA: If not for pleading guilty the sentence would have been six years and ten months with a non-parole period of 56 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | Ms Skye KOSO |
| For the Accused | Ms A. Patterson | Mr Richard JACOBSON |
HIS HONOUR:
1In regard to the sentence of Ms Hein Huynh, the matter proceeded before me as a plea on the 23rd day of February this year, when Ms Huynh pleaded guilty to the counts on three indictments.
2Ms Huynh was born in November of 1983. She is now 40 years old. She carried out the occupations respectively of family carer and/or nail business proprietor and nail technician. This offending happened when she was between the ages of 38 and 39. She arrived in Australia at the age of 24 in 2008.
3At the plea hearing Mr Nibbs appeared and Ms Koso, his instructor, appears today for the DPP and Ms Patterson appeared on behalf of Ms Huynh, as she does today.
4The first indictment relates to criminality committed on the 26 March 2020. It is indictment L100889458.2. This criminality was detected as a result of a search warrant at the premises where Ms Huynh lived, together with Thanh Nyuyen, and her children at the housing commission premises located at 112 Richmond Housing Commission.
5In regard to the criminality set out in the indictment, which is a proceeds charge in regard to $11,210, which was found in a bag after the search of the premises had disclosed drugs and paraphernalia. Ms Huynh was stopped outside the premises; the police having observed her with a bag and the cash was in the bag.
6Insofar as Thanh Nyuyen was concerned, he was, as best as I can understand, charged with a number of matters emanating out of the execution of the warrant. He was dealt with summarily in the Magistrates' Court and sentenced to a total effective sentence of four months’ imprisonment for five charges; trafficking heroin, traffic methamphetamine, breach prescribed term of parole, possess prohibited weapon, possess Schedule 4 poison.
7The second indictment to which Ms Huynh pleaded guilty, she of course was placed on bail as a result of the earlier matter, is Indictment L11397487.1. The first charge is a charge of traffic commercial quantity of heroin on the 21 May 2020. The circumstances involved an alleged dealing which took place from her car, which was a grey Mazda, at a Shell service station, in Hoddle St, East Melbourne. The car was subsequently searched and 439.3 grams of heroin were found, with a purity of 69 per cent.
8Ms Huynh was not arrested that day, apparently, but was subsequently arrested in regard to Charge 2 on the indictment, which was effected after she was arrested on the 10 June 2020 at Docklands in a Honda car. Again, she was found with proceeds and charged in regard to Charge 2 with deal proceeds in the sum of $5,733.50. I will come to the quantities involved in Charge 1 in this indictment in due course, when I am talking about culpability.
9The final indictment is numbered M12430969. Again, it involves two charges. The first charge is a further trafficking charge of a commercial quantity of heroin. The charge relates to the drugs founds in her car and it is a charge of being in possession of such commercial quantity for the purpose of sale. The drugs were found not only in her car, but on subsequent searching of her home. The total amount found was 829.9 grams, three times the threshold for a mixed commercial quantity, and it should be noted higher than the threshold for large commercial quantity, although she is not charged in that regard.
10Insofar as this sentence is concerned, because I was on circuit the matter was adjourned for some time. It was, as it turns out, important because one has needed considerable time to reflect on this sentence, given the many issues considered.
11As submitted by Mr Nibbs in oral submission, and agreed to by Ms Patterson in Exhibit 1, in particular at [4] and [69], a custodial sentence must be passed, considering the circumstances.
12I start, therefore, with a consideration of the principles pronounced by the Court of Appeal in DPP v Condo [2019] VSCA 181, and in Gregory v The Queen [2017] VSCA 151.
13At [21] of Condo, having considered the history of sentences for trafficking in commercial quantities, the Court made the point that sentencing well into double figures would be expected for commercial quantity trafficking offences. Further, at [20], after taking into account the High Court decision of Dalgleish, the Court indicated there was need for an uplift in this type of sentencing.
14At [28] the Court make the point that the maximum sentence imposed for trafficking in a commercial quantity under s71AA, is 25 years’ imprisonment, is always a yardstick, and it is a Category 2 offence.
15In Condo, the circumstances making up the offending, indicate a hierarchy, the Court was dealing with large scale trafficking and a senior member of a syndicate.
16The Court, however, made the point at [23] of Condo that the trade is pernicious. I note at Note 54 the reference to my brother Judge Cahill and his assessment and analysis of sentences imposed in this sphere, ranging from somewhere between four and seven years’ imprisonment by way of a head sentence.
17Insofar as Ms Huynh is concerned, of course, looking at the matters set out by the Court in Condo, it is clear that a discrimination must be made. She is not, clearly, the head of a large syndicate. She has in fact entered a plea to both charges and comes before the Court with no priors. It is necessary, of course, for this Court to discriminate from the factors referred to, both in Gregory and Condo as justifying a sentence in the double figure range.
18As to the circumstances of Ms Huynh I find as follows:
(a) That the commercial quantity trafficking here was inherently serious given the maximum penalty.
(b) I also find the culpability of Ms Huynh to be objectively high. This relates, firstly, to the level of drug in both charges. In the second indictment the amount of heroin was 190 grams over the mixed quantity threshold, and only 60 grams below the next threshold for large commercial quantity. In the third indictment this involved an even higher quantity of the drug, being three times the mixed quantity threshold under the Act, and 65 per cent higher than the mixed quantity threshold for a large commercial quantity. I note in that regard, of course, that the Court is bound by the charge, and I am not sentencing her for the more serious crime.
(c) Both offences of trafficking in commercial quantity were committed while on bail. The second offence committed in regard to the third indictment, Charge 1, was committed while on bail for exactly the same offence.
(d) As to the proceeds charge in the second indictment, such was committed while on bail for the same charge, and in regard to the third indictment, such was committed while on bail for two such charges, and it is to be noted in the third indictment the amount found by way of proceeds had increased significantly, in this instance a sum of $13,160.
19I come, then, to the role that Ms Huynh played. In this drug trafficking, given the paraphernalia found at the home, clearly she is an important cog in the system. She played the role of converting the drug to street quantities and distributing it to those who are afflicted. She is therefore a very important conduit in the drug trade. I accept that, she is not in a position as a head of a syndicate, however her offending is persistent, trafficking drugs in public to the next level, being the street vendors, to distribute, as I have said, to those who are afflicted. I note the comments of Wells J in The Queen v McLeish [1982] 30 SASR 487, [492], where His Honour bemoaned the fact that often in circumstances similar to this, one is not able to identify who are the heads of the syndicate dealing with persons like Ms Huynh well down the ladder. His Honour said this:
'It seems to me to follow, that after making all due allowances for the personal circumstances, and antecedents of the prisoner, the facts of the particular case and the need to show such mercy as is compatible with the safety of the public, a Court should impose such a sentence, as will spell out clearly to those minded to establish or continue an unlawful organisation for providing drugs, as well as to potential recruits, the simple truth that a woman who participates in such an organisation, at any level, I repeat any level, must expect, and will receive, a heavy penalty.'
20I should say that I adopt as a general approach to sentencing in crimes of this type the words of the then Nettle JA in this State, in The Queen v D'Aloia [2006] VSCA 237 at [56]:
'…so far as the effects of', (in this case it was MDMA), are concerned, the matter may still be approached on the basis that all of the drugs which are prescribed have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore properly to be regarded as a serious criminal offence.'
21Further, as a general approach I take into account the words of Sully J in The Queen v Cheng Wai Man, an (unreported decision of the Supreme Court of New South Wales of 22 March 1991) relating to trafficking of drugs, when His Honour stated:
'Such a crime is, in a very real sense, a declaration of war on the community. It is a distinct challenge both to concepts of human dignity and to moral values otherwise which are fundamental to our way of life. It is no less a challenge to the rule of law, which is, in the end, the ultimate guarantor of the personal freedoms and the social stability which all of us Australians take for granted.'
22I come then to the plea made by Ms Patterson. The first matter put was of course that Ms Huynh comes before the Court with no prior offending to her name. Clearly, given my assessment as to her objective criminality, this is a huge step taken by her into the criminal world. However, clearly, I take into account in her favour the fact that she comes before the Court at the age of 40 with no priors whatsoever.
23Secondly, personal circumstances. I note the submission as to her upbringing. Clearly, since she arrived in Australia in 2008, when she was 24, such is a long time ago in her background. However, as detailed in Bugmy v The Queen [2013] HCA 37:
'It is right to speak of giving full weight to an offender's deprived background in every sentencing submission.
24As is clear, prior to coming to Australia, Ms Huynh grew up in an impoverished environment. However, even accepting what happened, allegedly, to her siblings as fact, I consider there is insufficient evidence to conclude that general and personal deterrence and/or punishment should be reduced. I find that there is insufficient connection between such circumstances, which may have occurred back in Vietnam, and her criminality as I have detailed committed in Victoria, as stated in Gence v The Queen [2021] VSCA 188, [63] there is no realistic nexus between the offending and Ms Huynh's personal life experience.
25However, as set out in Bugmy, one does of course take such matters into account generally. In this regard, I have also had consideration to the case put to me by Ms Patterson, being Herrmann [2021] VSCA 160, at [13] to [20].
26I come then to her life in Australia. Importantly, as I have already said, in the 12 years that she has lived here, her life has not been marked by criminal behaviour. However, I am informed, as part of the plea, that she has had the unfortunate capacity to team up with inappropriate partners. Given such relationships, she has firstly become the mother of nine children and has the care of those nine children. At the time that she was placed into gaol, six of those children were placed in State care, as I said, after she was re-arrested on 24 November 2021.
27Given the seriousness of the criminality, it is unbelievable, given her obligations to those six children, that she would take such risk that such criminal behaviour would so effect the children's lifestyle. I, of course take into account, in this particular case the tragic circumstances as to her son Ethan Hoc's death in June 2023.
28As I have said, I have inquired insofar as trying to understand her life in Australia, what happened to her co-accused. Insofar as the first indictment is concerned, as I have already indicated, as best I can understand from the material sent to me from the prosecution, it was decided, despite Nyuyen's background, that those matters should be dealt with, albeit serious trafficking charges and possession of weapons, in the Magistrates' Court. As a result of that he was sentenced to four months’ imprisonment.
29Insofar as the second indictment is concerned, I was advised yesterday that, having been found at Docklands in the car with Ms Huynh, Mr Nyuyen Trang had the charges laid against him withdrawn prior to committal, following DNA evidence and as a result thereof he has not come before any Court. Hence, there is no basis for consideration of any parity issues.
30I then come to the question of Ms Huynh's addiction. It was put on the plea that Ms Huynh's major issue was her addiction, from 2018, to heroin. While the financial motive of the crimes was accepted, it was submitted that the motive here was not only to service her addiction, but to pay off drug debts for her partner and herself.
31Addiction, of course, presents no excuse for this criminality, as set out by the Court of Appeal in Koumis [2008] VSCA 84, at [50]. However, as I have indicated earlier, when discriminating the facts that apply to the role played by Ms Huynh, compared to more serious criminality such as in Condo, it is necessary in sentencing to take into account the fact that she was so addicted.
32However, given the amounts concerned, the persistence and the joint economic motive, I am not satisfied that such addiction should be taken as a mitigatory factor, see The Queen v Lacey [2007] VSCA 196 at [12] to [18]. However, clearly, the fact of her being so addicted is a factor personal to her which must be taken into account in sentencing.
33As to the suggestion of her self-medicating by way of the utilisation of heroin for her mental distress, I do not find such made out, considering the diagnosis of Naomi Cameron, as set out in Exhibit 2 at p71. In that diagnosis Ms Huynh was found to have PTSD in regard to matters that have arisen in her earlier life, opioid use disorder and a major depressive disorder. It was noted that at the time of such examination she had received no treatment for any such disorder, and indeed received no treatment for any such disorder prior to her first remand.
34It appears that COVID-19 issues during the pandemic may well have impacted upon Ms Huynh and her capacity to repay drug debts and pay for her own addiction by way of the earnings made from trafficking, of which she was involved and in particular involved in these two trafficking charges.
35As to Verdins, I accept the evidence of the neuropsychologist, Mr Staios, that gaol will impact upon her mental health and may lead to a decline, due in part to her absence from her children. See in particular Mr Staios' report, Exhibit 3, at p5, [7.4].
36I come then to the issue of rehabilitation. Clearly the essential factor as to Ms Huynh not being involved in future criminality, and Ms Huynh you being able, again, to see and look after your children hopefully in a lot better manner than you have done, is that you refrain from drug taking.
37Positively, it is alleged in the materials put before me on the plea that you have abstained from drugs while you have been on remand. One can only hope such is true. There is, of course, no objective proof put before me, however, insofar as your rehabilitation, given your addiction, I cannot be totally satisfied that you will effect rehabilitation. In the end this comes down to your strength and your own personality as to whether the desire to see your children and live a crime-free life can overcome your addiction.
38Hence, as I said in starting these sentencing remarks, the process of sentencing you is a very difficult balancing process, given the seriousness of the criminality and the matters put in mitigation.
39I accept what the High Court said in DPP v Dalgleish [2017] ALJR 91, 1063 to 1072, at [49]. Ms Huynh, that you are entitled to individualised justice and a just sentence based upon the facts of these three indictments. What I have certainly intended to do in the consideration that I have given to your case is to effect such just and individualised justice in the sentence I am now about to pronounce.
40As I said earlier, given that you are being sentenced remotely, you can remain where you are. Madam Interpreter, I will go perhaps a little slower than I have been.
41INTERPRETER: Thank you, Your Honour.
42HIS HONOUR: On the first indictment, that is the proceeds charge, the one proceeds charge concerning the sum of $11,210, you will be sentenced to nine months’ imprisonment.
43Coming, then, to the second indictment, these offences committed while you were on bail. Charge 1 concerns the trafficking of a commercial quantity of heroin, for which you will be sentenced to three years’ imprisonment.
44Insofar as the proceeds charge, Charge 2, concerning the sum of $5,733, you will be sentenced to 12 months’ imprisonment.
45Coming then to the third indictment, the first count, Charge 1, being a further charge of traffic in a commercial quantity of heroin, you will be sentenced to four years’ imprisonment, this sentence will be the head sentence.
46In regard to Charge 2 in the third indictment, this is the proceeds charge concerning the sum of $13,160, you will be sentenced to 15 months' imprisonment.
47In regard to the two summary offences, which are both numbered 6, insofar as the matter committed on 10 June, that is CR-21-01602, you will be sentenced to one years’ imprisonment.
48In regard to the offence related to the third indictment, that is, CR2200227, you will be sentenced to one years’ imprisonment.
49As I have said, the head sentence is Charge 1 from the third indictment, being four years’ imprisonment.
50I order that in regard to Indictment 2, 12 months of the sentence for traffic in a commercial quantity of three years imposed and in regard to Charge 1, be served cumulatively upon the head sentence and in regard to Charge 2, that is the 12 months period of imprisonment imposed for the proceeds charge, I order that two months of that sentence be served cumulatively upon the cumulated period of 12 months from Charge 1 and the head sentence, making a total effective sentence imposed for the three indictments and the summary charges, of five years and two months, or in other words, 62 months.
51I order that the period that you must serve before being eligible for parole is 42 months.
52The pre-sentence detention that I now declare to be served as a part of this sentence, as agreed by the parties, is 946 days. Essentially, that is roughly, 31 months and 16 days. The end result of that is that in addition to the time you have already served in gaol, Ms Huynh, as best as I can do it and roughly, you will not be eligible for parole until a further 11 months’ imprisonment is served, which will complete the minimum period of 42 months of which you have been sentenced to serve before parole.
53Insofar as parole is concerned, that is a matter for a body separate to this Court. Unfortunately, in recent times Judges' recommendations are not necessarily taken up. I cannot see any reason, in the circumstances of this case, why you shouldn't be eligible for parole having served 42 months of this sentence, and I am happy for those remarks to be conveyed to the relevant authority.
54Parliament requires me to state to you the benefit of you pleading guilty to these three indictments. It is very difficult to make that determination where one is considering only one factor, that is your plea of guilty, when there have been so many other factors relevant to your mitigatory factors. However, given the difficulty involved, I indicate, pursuant to s6AAA that had you not pleaded guilty the sentence I would have passed upon you is not five years and two months with a minimum of 42 months, but would have been six years and ten months with a non-parole period of 56 months.
55Ms Patterson, obviously you might seek the opportunity, I am not sure, to talk to your client here?
56MS PATTERSON: Yes, thank you, Your Honour.
57HIS HONOUR: I am happy to do that. Is there anything I need to clarify with you? Essentially it comes down to five years and two months with a minimum period to serve to be eligible for parole of 42 months. Your client, as best I can work it out, has served approximately 31 months and 16 days, which would leave a further 11 months to be served before she comes up to be eligible for parole.
58MS PATTERSON: Yes, Your Honour.
59HIS HONOUR: Can I thank both counsel and Ms Koso for your assistance in this matter. And Ms Huynh, can I wish you good luck. When you get out, if you want to look after your children and enjoy parenting, then there must not be any drugs in your life. Good luck in your future choice of partners. It might be better if you do not have any, I am not sure, but the ones you have had have not helped you.
60Yes.
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