Director of Public Prosecutions v Huynh
[2022] VCC 1914
•4 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR 21-01222
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THUY HUYNH |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2022 | |
DATE OF SENTENCE: | 4 November 2022 | |
CASE MAY BE CITED AS: | DPP v Huynh | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1914 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Office of Public Prosecutions |
| For the Accused | Mr H. Rattray | Sarah Pratt & Associates |
HIS HONOUR:
1 Thuy Huynh, you have pleaded guilty to three charges of trafficking in a drug of dependence. Charge 1 alleges that you trafficked in heroin on 14 June 2020. Charge 2 alleges that you have trafficked in methylamphetamine between 15 June and 24 July 2020. Charge 3 alleges that you trafficked heroin on 11 August 2020. The maximum penalty is 15 years' imprisonment. The charges are put against you on the basis that you possessed the relevant drug for sale.
Circumstances of the offending
2
The basis upon which you are sentenced are set out in the prosecution opening which was read in open Court on 2 November. I incorporate the prosecution opening by reference. In brief outline, a combined federal/state law enforcement taskforce became aware of drug trafficking operations being conducted by an individual named Mr Quang Duan Do from a house in
Deer Park. You were living in Keilor Downs at the time.
3 The authorities were using telephone intercepts, listening devices, and physical surveillance of the drug trafficking operation. On 14 June 2020 there were a number of telephone conversations between you and Do where you first said you wanted to order 'my big food'. You went to that address, and in a phone conversation you were told that the item had been “pressed like this and that it was not 9999, and that it was powdered and from the lime.”
4 You said that if the person does not want it, you will bring it back to Do. You later called and said that the person was demanding pure white and asked whether you could exchange the item and told Do that the person tested it by licking it. Later you said you were coming over straightaway.
5 In another call that day Do is referring to 9999, and Do said there is 120 and we only talk big, not small. The unidentified person said it was too high and the price was 125 and they will not make a profit. Do said there were two types, and that one is already adulterated so it is cheaper and this type of 9 was different from the other type and much better.
6 The prosecution says this discussion is in code and is about trafficking heroin with reference to different brands of heroin and quantities, and prices were being discussed. Further, you attended at the address, purchased from Do an unknown quantity of pressed heroin which was under 250 grams to on sell. You returned it because the customer was not satisfied with it, thus Charge 1 is a charge of trafficking by possession of an unknown amount of heroin being less than 250 grams for sale.
7 Charge 2 commences on 15 June when you contacted Do and asked if he was home and asked if “green tea” was available and said you would come over. Green tea is code for methylamphetamine. It is alleged on that day that you attended at the address and purchased a quantity of methylamphetamine from Do. On 20 June there was a further conversation and you asked if “diet green tea” was still available and you were told it was and you said you would stop by shortly. The prosecution alleges that on that day you attended to purchase a quantity of methylamphetamine from Do.
8 On 25 June there was another telephone conversation when you said you would come tomorrow to pick up the tea. He asked why you did not come today. On 26 June there was a conversation where you said you would come over to Do, and Do asked you to come over in 15 minutes and you agreed. On 30 June another conversation was intercepted during which you said 'this girl wants the green tea' and you were told by Do that it must wait until tonight.
9 You asked if the price for the other stuff was exactly the same and they did not agree with that price and Do said no one can give it cheaper than him. Later that day Do said there was a $100 note missing in one bundle. You said you did not count it and would come over and hand it to him. The prosecution says these conversations are evidence of trafficking in methylamphetamine.
10 On 7 July there was another conversation between Do and you, where you asked if Do still “drinks tea” and he said he does. In a later call you asked Do whether he was home and you said you would be over straightaway. Do then calls another person, telling that person to get it ready. He tells that person that someone is coming to the house now. You arrive at the house a short time later in your vehicle and are seen to enter the house for a short time and leave carrying a small white plastic bag.
11 In a conversation later that night you changed your phone number. In a further conversation you tell Do that the green tea was three “chis” short. On 18 July you called Do and said you would drop by tomorrow and Do says there is the other thing but it is very high. You were asked if you still want to eat, and you said you will see him tomorrow. This is put as evidence of you arranging to purchase drugs from Do.
12 On 24 July another call was intercepted during which you asked Do if he had diet tea. He said he has, but it has gone up to 13. You tell him that you have told someone that it is 12.5 and Do agrees to sell it to you for 12.5. Later you say you were coming over and you will talk when you arrive. This again is evidence of Do selling a quantity of methylamphetamine to you.
13 On 11 August another phone call was intercepted where you said you had been at Do's house but he was not at home and you asked if there is no food for me. He says yes, and you said you will come over. When Do said he was on his way back you tell him that you will come over. You were seen to arrive at Do's house and remained there for a short time and drive away.
14 You were intercepted by the police a short time later. The vehicle was searched and 1 ounce or 28 grams of heroin was found. The police are alleging that Do provided that heroin to you, and that you had attended at his house a few minutes earlier. You were interviewed and denied any knowledge of Do and told a number of other lies in the interview. You were charged with trafficking in a drug of dependence and released on bail.
15 Subsequent to the interview you were in discussions with Do and confirmed that when you were arrested 'that thing' was found, and told him to stop using that number and you were using your daughter's in-law's number. You also said that you were unlucky but also lucky, 'If there was more I'd be dead'. There was a further conversation with Do on 23 August where you were instructed by Do what to tell the police and then you went on to discuss brands of drugs and prices. The prosecution says this is further evidence of you attending at the house to obtain drugs.
16 On 15 September there was another conversation at Do's house captured where he says that he has “555”. He is not selling it in pieces. You then asked if he would give you credit, as you still have half a piece and you want to wait until you finished that. Do said the price is 840 per piece and you said that you would call him. Police executed a warrant that day and Do was arrested along with an associate.
17 You were arrested again by the police on 1 October and you told the police in the record of interview that you were purchasing clothes and food and medication from Do, that you were also on Centrelink benefits and did not have a lot of money. You did admit collecting a quantity of heroin on 11 August and said you had purchased it on behalf of a housemate, and otherwise you denied all the allegations. You also said at one stage that you had paid him $900. Subsequently the police found your fingerprints on a brown paper marked 555 wrapped around a block of heroin seized from the premises of Do on 15 September.
Assessing seriousness of the offences
18 The penalty regime for trafficking in illegal drugs is quantity based. A trafficable quantity is 3 grams of both heroin and methylamphetamine, and a commercial quantity is 250 grams mixed. As submitted by your counsel, the matter is somewhat unusual in that the prosecution is not in a position to accurately quantify the amount of illegal drugs in relation to Charges 1 and 2.
19 In relation to Charge 1 your counsel accepts that it is likely that the amount of heroin that you obtained from Do was around an ounce, namely 28 grams. In relation to Charge 2 the matter is put on the basis that on a number of occasions over the nearly six weeks of the charge period you attended at Do's house to collect methylamphetamine to on sell to others.
20 On the plea your counsel submitted that you were often acting as a conduit between people you knew who wanted to purchase drugs and Do, who had the drugs available.
21 In relation to Charges 1 and 3 the drugs did not ultimately reach the customer, although in the case of Charge 1 they were checked and returned by the customer. In relation to Charge 2 I accept that the prosecution is not in a position to quantify the amount of drugs trafficked by you. However, there were multiple transactions and the offence must be seen as a Giretti type offence of a mid-range of seriousness. You were actively involved effectively as a broker between Do and unknown purchasers in the transactions over that nearly six week period. You were using coded language, discussing different types of drugs and prices and suggesting changes of phone numbers.
22 Overall when the three charges are considered together your offending remains in a mid-range of seriousness. You were playing an essential role and were well enmeshed in the drug trafficking enterprise conducted by Do. Although there is no evidence of lifestyle benefits, you were dealing in a valuable commodity and there is reference to bundles of money and there is a clear inference available that you were making something out of your activity.
23 You told the psychologist that you were providing the drugs for users that were renting rooms in your house. Given the intensity of your activity and the span of your involvement with Do, I do not accept that explanation.
Prior convictions
24 You are now aged 57. You have admitted some relevant and other prior convictions. On 15 June 2006 on charges of trafficking heroin, knowingly dealing with proceeds of crime and failing to answer bail, you were convicted and placed on a 12 months' community corrections order by the Melbourne Magistrates' Court with a condition that you perform 100 hours of community work.
25 On 29 August 2006 without conviction you were dealt with for possessing amphetamine and possessing a prohibited weapon without excuse. The matter was adjourned for 12 months. On 21 October 2015 on two charges of driving whilst suspended you were convicted and fined $1,400 and suspended from driving for seven days.
26 Your counsel advised that the prior convictions for trafficking heroin related to an event where you were found in possession of heroin when you were living with your then drug using husband. Although you were dealt with leniently for your drug offending in the past, the fact that you were dealt with previously for trafficking heroin is a relevant consideration and goes to increase your moral culpability for this offending.
Other matters in mitigation
27 I turn now to matters in mitigation. Your personal circumstances are set out in the defence submission which I incorporate by reference. You have had a difficult life. You were born in 1965 in South Vietnam from a large family. You married your first husband in about 1985 and had two children. He fled to Australia in 1987, and you joined him with the two children in 1992 and were granted citizenship in 2000.
28 You divorced that husband around 25 years ago, and the marriage was marred by family violence and infidelity. From 2000 you entered a de facto relationship with another man and had a third child. This relationship was also marred by extreme violence and infidelity. In 2003 your husband had another child to another woman. The child was rejected by the mother and you brought that child up as your own.
29 You married your third husband in 2019. You have no children together. You live with him, along with your youngest daughter and a stepson. He has provided you with strong support. He is a tradesman who earns a modest income. He is a Vietnamese citizen applying for permanent residence. You thus have three adult children, one stepchild, and three grandchildren, all of whom reside in Australia.
30 You had only a rudimentary primary education in Vietnam. Once arriving in Australia you worked in the textile industry and, at one stage with your first husband, operated a company manufacturing garments. This closed when the relationship ended. You have worked sporadically in the textile business since that time and also worked on farms. You are currently in receipt of Centrelink benefits.
Medical issues and psychological report
31 Your counsel tendered a referral to a surgeon for carpal tunnel syndrome. You are also under medication for depression and anxiety.
32 Your counsel tendered a report from Dr Nguyen, a clinical and consulting psychologist. She has been providing counselling to you since 14 February 2022. You had been referred due to feelings of anxiety and depressed mood. She found that you were suffering from extremely severe depression, anxiety, and stress and PTSD. You had previously sought psychological treatment in 2021 for emotional and physical abuse arising out of earlier relationships.
33 You have been the subject of family violence in the past leading to PTSD which remains unaddressed. You remained in a violent relationship with your second husband for the sake of your daughter and proceeded to raise his son as your own. You told the psychologist that you were under financial and other stress at the time of the offending, which was in the early lockdown and this affected your judgment. She found you expressed remorse for your offending and shame and you have taken steps to address the issue by counselling.
34 The learned prosecutor accepted that your psychological condition is such that you will find a term of imprisonment more onerous than a person who did not have your psychological condition of depression and anxiety and untreated PTSD.
Prospects of rehabilitation
35 You come before the Court as a mature woman with adult children. Although you have a prior conviction for similar offending, at your age I would regard your prospects of rehabilitation as good. On the plea your counsel tendered a letter of support from your daughter, who testifies to your strong family support and how you always put the needs of others before your own.
36 Your counsel also tendered a reference from a Buddhist monk at the local Buddhist temple, who indicates that you have been a volunteer there and a kind and caring person.
Other matters in mitigation
37 I take into account your plea of guilty, which is also evidence of remorse. It was at the earliest opportunity. Through your solicitor you offered to plead guilty to two counts of trafficking before the committal hearing. The count of trafficking in a commercial quantity was discharged at the committal hearing in June 2021. You were then presented directly on a charge of trafficking in a commercial quantity. Subsequent negotiations led to the plea presentment of a plea to trafficking simpliciter of three charges.
38 Your counsel emphasised the delay that has occurred as a result of the matter having to go to a committal and then subsequently to negotiations to resolve it. Thus you have had the matter hanging over your head for an extended period. The learned prosecutor accepted that there had been some months of delay, for which you are not responsible. The delay is to be taken into account in your favour and that there is no further offending since that time and it has been hanging over your head since the original offer to plead.
39 Your counsel emphasised that under the Worboyes authority you are entitled to a perceptible amelioration of sentence for pleading guilty during the pandemic. You are entitled to this benefit and I take that into account, along with the impact of the delay on you.
40 I have also taken into account that you spent 10 days on remand in October 2020 during the height of the pandemic, which itself would have been onerous. Although the clouds of the pandemic are lifting, there are still isolation requirements upon entry into the prison system and programs are not fully restored. Thus periods of imprisonment remain more burdensome than in the past.
Purposes of sentencing
41 The basic purposes for which a court may impose a sentence are punishment; general and specific deterrence; rehabilitation; denunciation, and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offending; your culpability for it; your personal circumstances and those of the victims, if any. I am also required to balance the interests of the community in denouncing criminal conduct and the interests of the community in ensuring that, as far as possible, offenders are rehabilitated and reintegrated into society.
Consideration
42 In sentencing for drug trafficking offences, considerations of general deterrence and denunciation are given prominence over matters that are personal to an offender. A signal must be sent to all those tempted to become involved in any stage of the distribution network of illegal and lucrative drugs that, upon apprehension, heavy penalties will be imposed to deter others and to denounce their involvement in this pernicious trade. These considerations must generally be given greater weight than matters that are personal to an offender.
Sentencing submissions
43 Your counsel submitted that this offending should be seen as in the mid-range of offending. There was no evidence of substantial profit and the trafficking by you was at a much lower level than others caught up in this particular police operation. It was submitted that this offending was at the lower end of the range for these types of offences dealt with in this court.
44 On this basis your counsel submitted that a community corrections order would meet all the requirements of sentencing. The prosecution accepted that a combination sentence would be within range, and I had you assessed for a community corrections order. You were found suitable.
45 Having considered the matter further and considered the seriousness of the overall offending and applying the principles of parsimony, I regard your offending as of a seriousness that requires a sentence of imprisonment.
46 There are three charges. They each carry a maximum penalty of 15 years' imprisonment. Your involvement was significant. Although the quantum of drugs trafficked in relation to Charge 2 cannot be precisely determined, you were actively involved.
47 Considerations of general deterrence and denunciation call for a mid-range penalty. I have, however, given significant weight to your early plea of guilty in the pandemic, as well as the delay before the matter was ultimately resolved that was not your fault.
48 I have also taken into account your personal circumstances and your family support, your good prospects of rehabilitation and the burden of imprisonment with your condition of depression and anxiety.
49 As the three charges here arise out of a course of conduct, I regard it as appropriate to impose an aggregate sentence that will reflect your overall criminality. Weighing all the competing considerations and the submissions made on your behalf, I sentence you as follows. Can you please stand.
50 On the three charges you are sentenced to an aggregate sentence of
18 months' imprisonment. I declare that you must serve 10 months' imprisonment before being eligible for parole. I declare that you have served 10 days pre-sentence detention and order that it be deducted administratively, and the 10 days excludes today.
51 I declare that had you not pleaded guilty I would have imposed a total effective sentence of 30 months' imprisonment with a non-parole period of 20 months imprisonment. I must explain the sentence to you.
52 I have ordered a single sentence for the three charges of 18 months' imprisonment. I have ordered that you be eligible for parole after 10 months. I declare you have already served 10 days' imprisonment, and had you not pleaded guilty I would have imposed a total effective sentence of 30 months' imprisonment with a non-parole period.
53 I would ask you, Mr Rattray, to explain the sentence to your client. Are there any matters, Mr Prosecutor?
54 MR DEVLIN: No, Your Honour. That covers it.
55 HIS HONOUR: Mr Rattray?
56 MR RATTRAY: No, Your Honour.
57 HIS HONOUR: I want to thank both counsel for their assistance in this plea. Adjourn the court sine die.
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