Director of Public Prosecutions v Kim

[2018] VCC 323

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01352

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEN KIM

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2017
DATE OF SENTENCE:	19 March 2018
CASE MAY BE CITED AS:	DPP v Kim
MEDIUM NEUTRAL CITATION:	[2018] VCC 323

REASONS FOR SENTENCE
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Subject:Trafficking in a drug of dependence (large commercial quantity); traffick in a drug of dependence; possess materials and equipment for the purpose of trafficking in DOD; possess tablet press; handle stolen goods; possess traffickable quantity unregistered firearms

Catchwords:
Legislation Cited:

Cases Cited:R v Verdins (2007) 16 VR 269; DPP v O’Neill (2015) VSCA 325; Brian Gregory (a pseudonym) v The Queen [2017] VSCA 151

Sentence:9 years and 9 months imprisonment with a non-parole period of 7 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert	Erin Finnigan (OPP)
For the Accused	Mr J. Saunders	Ms N. Valos Valos Black & Associates

HER HONOUR:

Charges

1Ben Kim, you have been charged with one count of trafficking in a drug of dependence in a large commercial quantity, MDMA, two charges of trafficking in a drug of dependence, methamphetamine and diacetylmorphine, one charge of possess substances, materials and equipment for the purpose of trafficking in drug of dependence, one charge of possessing a tablet to press, one charge of handling stolen goods and one charge of possessing traffickable quantity of unregistered firearms.

2You have also been charged with summary offences of possess cartridge ammunition without a license, possess prohibited weapons, possess body armour and two charges of dealing with properties suspected to be the proceeds of crime.

3The maximum penalty applicable to the charges are as follows: 

·Trafficking in a large commercial quantity is life imprisonment; 

·Trafficking in a drug of dependence and handling stolen goods is 15 years; 

·Possess a substance and equipment for the purpose of trafficking and possess a trafficable quantity of firearms is ten years; 

·Possessing a tablet press is five years;

·Deal with property suspected to be the proceeds of crime is two years; 

·Possess prohibited weapons is two years or 240 penalty units;

·Possess body armour is two years;

·Possess cartridge ammunition without a license is 40 penalty units;

Circumstances of offending

4The full circumstances of your offending are set out in the prosecution opening, which will form part of the sentence.  In May 2015, you trafficked and manufactured drugs in and around the suburbs of Metropolitan Melbourne.  A police investigation uncovered your illegal activities and those of Thuy Nguyen and Du Tran through the use of telephone intercepts, covert surveillance and searches.  A number of other offenders were also apprehended due to this investigation.

5You were a party to numerous intercepted drug-related telephone conversations.  Between 14 August 2015 and 25 November 2015, you were involved in 300 intercepted calls with Thuy, Tran and others.  When Thuy’s phone was used between 26 November 2015 and 21 January 2016, you were party to over 450 of such intercepted calls.  Those calls involved approximately 15 drug customers.

6On 21 January 2016, the police arrested you and Thuy.  They searched your premises and found drugs and various equipment relating to drug trafficking.

7Charge 1 of trafficking in a drug of dependence in a quantity that was not less than a large commercial quantity relates to 3,468 MDMA tablets, with a purity of between 6 to 30 per cent and 1,301.1 gm of MDMA in powder form, with a purity at its highest of 83 per cent, and its lowest, 7 per cent.

8Charge 2 of trafficking in a drug of dependence relates to 67.7 grams of methamphetamine in crystal form, with a purity of between 68 and 87 per cent.  The other trafficable amount relied on by the prosecution was 28 grams supplied to Kevin Nguyen.

9In relation to Charge 3.  That is 10.9 grams of heroin in powder form with 80 per cent purity.

10With respect to Charge 4, possess substances and material and equipment for the purpose of trafficking of dependence, this related to 3.4 grams of methamphetamine, 5 grams of ketamine, acetone, ether, scales, Ziploc bags and laboratory glassware. 

11Charge 5 of possessing tablet press relates to the tablet press found at your residence.

12Charge 6 of handle stolen goods relates to two rifles, previously reported stolen.

13Charge 7, having in your possession a traffickable quantity of unregistered firearms relates to four handguns and two rifles.

14Summary Charge 8 relates to 100 cartridges of various ammunition.

15Charge 11 relates to two samurai swords.

16Charge 13 relates to $5,085.97 cash.

17Charge 14 relates to 105 Euros and Charge 15 relates to three ballistic vests.

18In your record of interview, you denied trafficking and selling drugs.  Your matter was listed on 3 July 2017 for a contested committal with other persons charged.  A plea offer was made and accepted in August 2017.

Personal circumstances

19Your personal circumstances were outlined in a psychiatric report from
Patrick Newton dated 28 November 2017, and also in a Forensicare report ordered by this court.  You were born in Vietnam on 20 October 1975 and you are 42 years old.  You were abandoned as a baby after arriving in Australia.  You were moved between various foster homes and when you were eventually adopted, your parents emotionally and physically abused you.  You were also sexually abused by their step-son when you were about 12 years old.

20You ran away to Sydney when you were 13 and stayed with the family of a young man you believed to be your brother.  You witnessed this man being shot in the head, which was a very traumatic incident for you.  You returned to Melbourne and you were placed with a supportive Vietnamese family in Richmond.

21You attended a large number of primary and secondary schools, and you described your behaviour in school as being disruptive and problematic.  However, despite this, you were a better than average student and you completed your VCE successfully at Sunshine Secondary College.  You then studied engineering overseas, specialising in mechanical engineering.

22You married in 2009 in Vietnam and you have three children from that marriage aged between three and seven.  Sadly, your marriage broke down after your wife's cousin was murdered following a potential drug deal.

23You have a lengthy history of problematic substance abuse.  You commenced using marijuana and speed when you were aged 14.  You steadily increased your drug usage, and from age 16, you began to use MDMA.  From 19, you used cocaine and also methamphetamine.  You engaged in heavy use of methamphetamine for approximately two years prior to your arrest on these matters.  You told Mr Newton that your use of this drug was principally motivated by desire to block out memories of traumatic and troubling events.

24You have two prior court appearances.  The most relevant offence is a prior for trafficking drugs of dependence, where at the Ballarat County Court, you were sentenced to 12 months, which sentence was suspended.

Psychiatric reports

25Mr Newton concluded that your drug use was sufficiently severe to warrant the diagnosis of severe methamphetamine use disorder.  With respect to your mental health, you participated in psychological and psychiatric care as a child due to the severe trauma of your childhood, physical and sexual abuse.  You attempted suicide on a number of occasions and you have attended the Emergency Department of the Western General and Alfred Hospital in relation to these attempts.

26Mr Newton was of the opinion that you have a history of conduct disorder and that you clearly suffered a reactive attachment disorder.  He said that your maladapted traits have become an entrenched aspect of your personality and that you met the criteria for borderline personality disorder with anti-social features.  Your personality problems constituted the risk factor for continued drug use and further involvement with the criminal justice system and for other broader behaviour difficulties.

27The author of the Forensicare report, Dr Pandurangi, accepted that you have features of a borderline personality disorder, which had a significant impact on the way you function, relating to others and dealing with stress.  However, he found no indication to suggest that any underlying mental condition contributed to your current offending.  With respect to the personality disorders however, he was of the opinion that they would render your incarceration more onerous compared to others that did not suffer from this condition.

28He considered that your prospects of rehabilitation would depend on your motivation to seek psychological assistance, desist from the use of illicit drugs, keeping your distance from anti-social peers and in developing a more pro-social group and meaningful employment.

29Mr Newton's opinion was similar in that he considered that if you were abstinent from drugs while in custody and you undertook drug treatment programs, this would provide an opportunity for you to consolidate a drug-free lifestyle.  He said however, that on your release, you would require further drug treatment with monitoring, as well as ongoing mental health care.

Defence submissions

30With respect to trafficking in MDMA, you instructed your counsel that the tablets were made by someone else using the pill press, which you had been repairing.

31With regard to summary Charge 7, the unregistered firearms, it was submitted by your counsel that there was no evidence that you had used the handguns or the rifles that the police had found.  They were submitted to be simply a part of your hoard of mechanical objects which you had collected due to your interest in mechanical engineering.  One of the handguns was a start pistol and you had instructed your counsel that you were repairing that for a friend.

32The matters submitted to be a mitigation of your offending were as follows: 

·Your early plea of guilty, which is it was submitted indicated your remorse for your offending. 

·The fact that your trafficking had been to feed your own habit, rather than to profit. 

·With respect at least to Charge 2 of trafficking, that the trafficking had been small scale.

33Your counsel relied on Mr Newton's report as establishing that you had a number of severely dysfunctional personality traits due to your chaotic and disturbed childhood.  Counsel submitted that the negative personality traits have been entrenched since childhood and that your drug use had exacerbated your pre-existing mental health problems to the extent that they had undermined the clarity of your thoughts.

34It was submitted in the plea on your behalf that your psychological issues were largely to be causally connected to your offending.  That while the principles in Verdins[1] case, other than the sixth principle were not applicable, your offending warranted a lesser sentence than might otherwise have been warranted. In this respect, your counsel relied on O'Neill's[2] case.  That is that your personality disorder and the effect that it had on you was something that the court could take into account in sentencing you.

[1] (2007) 16 VR 269

[2] (2015) VSCA 328

35With regard to the sixth principle in Verdins case, your counsel relied on
Dr Pangurangi's opinion that incarceration would be more onerous for you than compared with others who did not suffer from the condition.

36The Court was provided with two references.  One was from Wung Wen Hung, a company director of a steel factory in Malaysia.  Mr Wung had known you since 2009 and he had difficulty in believing that you had committed these offences.  The other reference was from Ivan Tan, director of Web Power.  In his reference, he described you as being involved in 2006 with an initial stage design for the Royal Malaysian Police on a total integrated, information, communication and technology system.

Sentencing remarks

37In sentencing you, I have taken into account all the mitigating factors referred to by your counsel.  I have given you a discount for your plea of guilty, as it saves the State the expense of a trial and witnesses the ordeal of giving evidence. It also demonstrates some remorse on your behalf.

38I have accepted Mr Newton's opinion that you suffer from a borderline personality disorder, which I believe was supported by the Forensicare report. I also accept that your personality problems constituted the risk factor for drug use and involvement with the criminal justice system and for your broader behavioural difficulties.

39While your personality disorder does not enliven the principles in Verdins case, other than the sixth principle, I have taken your personality disorder into account as one of many factors relevant in the sentencing synthesis.  Your personality disorder and dysfunctional background provide some explanation as to why you have offended as you have.  I have also accepted that due to your personality disorder, your time in custody will be more onerous then for those who do not suffer from such a disorder.

40In sentencing you, I have to take into account the quantity of the drugs involved in the trafficking, your role in the trafficking and any reward gained by you, and of course, general and specific deterrence.

41With respect to Charge 1, trafficking in a drug of dependence in a quantity that was not less than a large commercial quantity, a large commercial quantity of methamphetamine is 1 kilogram.  You had more than double this amount.

42With regard to your role in the trafficking, you were the principal in a drug trafficking operation.  The intercepted calls reveal that you sourced parts for a tablet press at your residence; co-offenders assisted you in manufacturing drugs at your residence; customers made enquiries about the availability of drugs and prices; you made arrangements to supply drugs to customers, either at your residence or elsewhere; payment of and collection of drug debts owed to you were collected; that a customer, Kevin Nguyen, who is also charged with trafficking complained to you and Thuy that Thuy had supplied him with a few grams short of 28 grams of methamphetamine.

43Drugs are a real problem in this community.  They harm not only the users of the drug, but also the wider community.  In cases such as this, protection of the community and general deterrence are important sentencing considerations.  In a recent decision of the Court of Appeal, Brian Gregory (a pseudonym) v The Queen[3], the Court of Appeal upheld the Director's submission that current sentencing practices for commercial quantity were unduly compressed for offences are the upper end of seriousness, and did not reflect the inherited gravity of the offending, the impact on the community or the higher maximum penalty.

[3] [2017] VSCA 151

44The Court of Appeal accepted that sentencing practices need to change and stated that,

"There needs to be an appropriate relativity between sentencing standards for each category seriousness of an offence, and in the case of trafficking offences, which have an ascending of seriousness depending on quantity, an appropriative relativity must be maintained between sentencing standards for each quasit based offence.

As to sentence, for a commercial quantity in traffic increases, sentences for large commercial quantity will have to substantially increase to maintain appropriate sentencing relativities."

45In sentencing you, this is one of the many matters I have taken into account.  Would you please stand up?

Sentence

46On Charge 1 of traffic in a drug of dependence, MDMA, in a quantity that was not less than a large commercial quantity, you are sentenced to eight years' imprisonment.

47On Charge 2, traffic in a drug of dependence, methamphetamine, you are sentenced to three years' imprisonment.

48On Charge 3, traffic in a drug of dependence, heroin, you are sentenced to
12 months' imprisonment.

49On Charge 4, possession of substances and equipment for the purpose of trafficking a drug of dependence, you are sentenced to 12 months' imprisonment.

50On Charge 5 of possession of a tablet press, you are sentenced to six months' imprisonment.

51On Charge 6, handling stolen goods, guns stolen from properties, you are sentenced to nine months' imprisonment.

52On Charge 7, possession of a quantity of unregistered firearms, you are sentenced to six months' imprisonment.

53On the summary charges, on Charge 8, possess cartridge ammunition, you are convicted and fined $300.

54On Charge 11, possess of prohibited weapon, you are sentenced to three months' imprisonment.

55On Charge 13, deal with properties suspected to be the proceeds of crime, you are sentenced to three months' imprisonment.

56On Charge 14, deal with property suspected to be the proceeds of crime, you are sentenced to seven days' imprisonment.

57On Charge 15, possess body armour, you are sentenced to two months' imprisonment.

58The base sentence is the sentence of eight years on Count 1.  Cumulation on the base sentence of eight years is as follows:  12 months of the sentence on Count 2, three months of the sentences on Counts 3 and 4, one month of the sentences on Count 5, 6 and 7.

59This results in a head sentence of nine years and nine months.  I fix a non-parole period of seven years.

60But for your plea of guilty, you would have been sentenced to 15 years, to serve 11.

61I grant a disposal order for the drugs and drug-related material, the ammunition, prohibited weapons and body armour.

62I grant a forensic sample on the grounds that it is by consent, the serious nature of the offence, and the fact that it is in the public interest.

63Take a seat.  Pre-sentence detention?

64MR ALBERT:  It is 788 days.  Seven, eight, eight.

65HER HONOUR:  Yes.  I hope I cleared up Charge 3.  I think I might have said something a blatant to Charge 3 that was incorrect.  But I have - Charge 3, he's been sentenced purely on the basis of the correction, the amounts that were - the pre - I suppose you call it what, pre-cursor material and the equipment.  Was there anything else?

66MR SAUNDERS:  Charge 3 is the heroin.

67MR ALBERT:  Yes, Charge 3 is the heroin.  Charge 4 is the ‑ ‑ ‑

68HER HONOUR:  Sorry, not Charge 3.  Charge ‑ ‑ ‑

69MR SAUNDERS:  Charge 4.

70MR ALBERT:  Yes.

71HER HONOUR:  I mean Charge 4.  Charge 4, yes.

72MR SAUNDERS:  There was only one other matter, I think.  In the course of your remarks, Your Honour mentioned the drug in relation to Charge 1 as being methylamphetamine.  It is in fact ‑ ‑ ‑ 

73HER HONOUR:  MDMA.  Yes, that was a slip.  Thank you.  Thank you for that.

74MR ALBERT:  Prohibited weapons is the five Samurai swords rather than two, Your Honour.

75HER HONOUR:  Thank you.

76MR ALBERT:  I think you mentioned two.

77HER HONOUR:  All right.  Correction, ought to be five.  There was a lot there.  There were quite a few charges.

78MR ALBERT:  There was.

79MR SAUNDERS:  Yes, yes.

80HER HONOUR:  Yes.  Is there anything else?  I have got to sign - have I signed those disposal orders?  All right, we have to sign those.  I will stand it down while you print those out.  Was there any issue with the saliva sample being taken?

81MR SAUNDERS:  No, Your Honour.

82HER HONOUR:  I have got to explain to your client that the police are going to be taking a scraping or a swab inside your mouth for a DNA test.  If you were to resist, they can use necessary force.  It is not a painful procedure.  I am sure you will not have any issues with it.  I will stand it down while we print out those orders.

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