Director of Public Prosecutions v La and Tieu
[2015] VCC 1836
•11 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-15-01514
& CR-15-01516
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THI LA HUNG TIEU |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 December 2015 |
| DATE OF SENTENCE: | 11 December 2015 |
| CASE MAY BE CITED AS: | DPP v La & Tieu |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1836 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – trafficking drug of dependence (heroin) – family hardship
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic)
Cases Cited:R v Pidoto & O'Dea [2006] VSCA 185; R v D'Aloia [2006] VSCA 237; Boulton v R [2014] VSCA 342; Nguyen v The Queen [2010] VSCA 127; R v Panuccio [1998] VSC 300 (Unreported, Victorian Court of Appeal, 4 May 1998); Markovic v R [2010] VSCA 105; Ibbs v The Queen (1987) 167 CLR 447; R v Rawlings [2003] VSCA 157R; R v Williams [2004] VSC 429; R v Tilley (1991) 53 A Crim R 1; R v Grbin [2004] NSWCCA 22
Sentence:Thi La; convicted and sentenced to 2 years and 6 months imprisonment with a non-parole period of 1 year and 9 months imprisonment – Hung Tieu; convicted and sentenced to 2 years and 6 months imprisonment with a non-parole period of 428 days imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Solicitor for the Office of Public Prosecutions |
| For Offender La | Mr J. Dickinson QC (Plea) Ms A. Nguyen (Sentence) | Melasecca Kelly & Zayler |
| For Offender Tieu | Mr S. Chambers (Plea) Ms A. Nguyen (Sentence) | Melasecca Kelly & Zayler |
HIS HONOUR:
1This plea was conducted on 7 December 2015. The prisoners are husband and wife. Thi La is aged 34. Her normal occupation is house duties. She was born on 27 August 1971. Mr Hung Phung Tieu is aged 53. He normally works on a farm. He was born on 10 October 1963.
2At the hearing Ms La was represented by Mr Dickinson of Her Majesty's Counsel, Mr Tieu by Mr Chambers. Both are represented today by Ms Nguyen and at all hearings Mr Pickering has appeared on behalf of the Director.
3Both prisoners pleaded respectively to charges of traffic heroin; an offence under s.71A(C) of the Drugs, Poisons and Controlled Substances Act. The period involved in the trafficking was a period of one month from 7 September 2014 to 8 October 2014. The trafficking was taking place in and out of their premises at Commission Flat 21, 125 Napier Street, Fitzroy. In regard to both of the offences to which they have pleaded, the seriousness of such is indicated by the fact that the Parliament has prescribed a maximum period of imprisonment of 15 years.
4Exhibit A was agreed by all counsel as being an appropriate summary of facts, as prepared by the learned prosecutor that is, being the appropriate summary of facts upon which I am to sentence. Both of the prisoners were involved in what was a much larger police investigation. The investigation was, no doubt for the police's own purposes, significant. It is an investigation that took place over a period of five months.
5For the period of which I am interested in regard to both of the prisoners, they resided at the Flat 21, Napier Street, Fitzroy. The heroin of which they dealt was supplied to them by co-offenders L and T Thrinh. The police investigation, surveillance and intercepts establish that the prisoners were on selling heroin obtained from the Thrinhs.
6In particular in paragraph nine of the learned prosecutor's opening, Exhibit A annexed, details the recorded transactions in the month as identified in the Indictment. One can remark from observing those details that they were particularly active during that period, that there were large amounts being sold at a large cost and the dealings were taking place essentially in two ounce lots, occasionally in one ounce lots.
7There were meetings at various places, in particular, at the Crown Casino, where both money and drugs changed hands. One hesitates to be too critical of Crown Casino. It is a blot on the community for many reasons, but clearly this is one of them. What type of security they institute I fail to understand, for this type of activity to be able to be taking place so freely at the casino. I make that remark in general because over the last week and a half nearly every case relevant to this ‘syndicate’ has involved dealings and exchange of moneys at the casino.
8Perhaps fortunately for each of the prisoners, the exact amount in which they have dealt has been unable to be assessed. They therefore could not be charged, and are not charged nor will be dealt with for any more serious offences.
9In regard to the intercepts what was particularly identified were five actual deals. There are clearly others, from the intercepts that took place. Finally after the month that we are concerned, a warrant was executed and the various items found that are set out in the opening. In addition to those matters I have been asked to sign a disposal and forfeiture order and I think I have already signed those. There is a s.464ZF order which applies pursuant to Statute.
10Both of the prisoners have now served by way of pre-sentence is 428 days, not counting today, and it is important to understand that neither of them have any prior offences. Hence both of the prisoners decided to jump in at the very deep end of criminality, as described by our Legislature.
11The prosecutor in his submission essentially said it was very important for the Court to appreciate that these are not the dealings of persons who are addicted, or dealing in drugs to assist their own addiction, these are dealings done by persons who have no apparent addiction, done purely to obtain profit. In those circumstances, given the significant amounts and money involved, the learned prosecutor said the general principle of general deterrence is particularly important, as is also confirmed in the authorities. The learned prosecutor submitted therefore gaol is warranted. There was no resiling from that submission from either Counsel who appeared for both prisoners.
12The question for the Court, however, given the plea in this matter, are the issues of particular family hardship and the principles spoken about in Markovic v R [2010] VSCA 105 and as the learned prosecutor said, it is also necessary for the Court to take into account the remorse demonstrated by the plea and the utilitarian benefit therein to the community. The plea itself, which he described as a valuable plea, that being that there was a large degree of investigation in this matter, the prospective number of witnesses in a trial was also going into, I think, three pages and so those matters have to be taken into account. It is also to be noted that the plea was made at the first opportunity, given the Indictment involved. The matter was in fact settled at committal and the Indictment ultimately, as a result of such settlement, contained lesser charges.
13Where Parliament prescribes a maximum penalty of 15 years, such shows unambiguously how seriously the community, through Parliament, views the particular crime. Indeed it is irrelevant what particular drug is involved. The system essentially is quantity based; that we have in regard to the criminal provisions in our State a quantity based sentencing regime. I should point out that the quantity as such has no arithmetical relationship to a sentence, but of course is a very significant matter to take into account in sentencing.
14The particular regime which applies in this state has been fully detailed by the Court of Appeal in R v Pidoto & O'Dea [2006] VSCA 185. Although that case in fact involved a more serious offence under s.71AA of the Act, the principle as to the regime is exactly the same, where the Court of Appeal noted that Parliament has:
"adopted a hierarchy of seriousness defined by and only by the quantity of the drug of dependence that has been trafficked".
15In Pidoto & O'Dea at [62], the Court indicated the ultimate question for the sentencing Court in matters of this type given such a structure is:
"not whether trafficking in one drug is to be viewed more seriously than traffic of another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing with the material involved".
16As I have already remarked, the maximum penalty in regard to your offence is one of significance, being 15 years. That is, the offences to which each of the prisoners has pleaded. Nettle JA, as he then was, in R v D'Aloia [2006] VSCA 237, again involving a much more serious charge in the regime, indeed involving the maximum charge that can be applied in this case, a matter involving large commercial quantity. At [56], His Honour set out the general approach for sentencing judges in trafficking matters. As I say in that case, not only was it a more serious offence, but he was dealing with MDMA. He said as follows:
"As far as the effects of cannabis and MDMA are concerned, the matter may still be approached on the basis that all of the drugs which are described have deleterious consequences of anti-social proportions and that trafficking in any of them is therefore appropriate to be regarded as a serious criminal offence".
17Clearly these are offences, as I have already said, in regard to both prisoners, which warrant a sentence of imprisonment. On the plea on behalf of each of you, both counsel in fact realistically accepted that there was no argument with that proposition. The submissions were that I should take into account in fixing the appropriate period of imprisonment, and the exceptional hardship to the family which would be produced by such imprisonment.
18As to range, I take into account the comments of the Court of Appeal in Nguyen v R [2010] VSCA 127 in particular as to current sentencing practices, albeit that the particular case was directed to cultivation. I also note the Court's comments as current inadequacy as to current sentencing practice, but the fact is that this Court is bound by the current sentencing practice.
19Sentencing Snapshot 161 indicates that in regard to this particular crime the majority of persons sentenced were male and 87 per cent of persons so sentenced were given an immediate gaol sentence. In the period analysed from 2008/09 through to 2012/13 in this snapshot, the median sentence was two and a half years with a median minimum of one year and six months, that is, a minimum period to be served before being eligible for parole. Insofar as both the maximum and minimum, obviously the range was far broader. Indeed as indicated by way of head sentence, the range over the snapshot period was from three months through to eight and a half years and the non-parole period range was three months through to six years.
20As the Court of Appeal has determined, the issue of snapshots is just that. It is of some assistance to the Court in the determination of the instinctive synthesis insofar as sentencing is concerned, however, it is one only of such methods of assistance. Sentenced are determined by the provisions of the Sentencing Act, in particular, s.5(2) to (6) and as the Court of Appeal have said on numerous occasions, one of the most important factors to take into account in offences such as this is the large maximum penalty prescribed.
21As I think is obvious given the amounts of drugs here, and the regime based upon quantity, the objective criminality in regard to both of these offences of both prisoners must be classed, I find, in the mid to high range. In that regard I refer to Ibbs v The Queen (1987) 167 CLR 447 [452].
22Mr Dickinson in the plea on behalf of Ms La set out the background of Ms La, in particular the various associations which she has been involved in since the age of 17, whereby she has had in total some seven children. She now has three dependent children, and they are children that she had with her husband, the co-accused. As to mitigation I take into account in particular the factors detailed in paragraph three of Mr Dickinson's submission.
23The next eldest daughter, Ha, or Lucy, as I understand she is called or is called in Australia, who is now 20, currently resides at home since the parents were placed on remand and is the carer to the three youngest children. They are xxxxx or xxxxx, who is aged 11, xxxxxx, who is eight and xxx, who is seven. The particular difficulty insofar as care for the children comes about from xxxxxx, with his autism and intellectual deficits.
24Tendered on behalf of Ms La by Mr Dickinson was Exhibit L2, which is the report of Mr Newton, Mr Newton being a clinical and forensic psychologist. Such report was dated 28 November 2011. The personal history insofar as Ms La is concerned is contained essentially on p.2 of the six page report and I note on p.3 the comment at present that:
"Ms La's older children are caring for the younger children. Ms La expressed considerable concern about the wellbeing of her children, especially xxxxxx and nominated this as her major worry".
25I will come to that in due course. Essentially, however, what is obvious, that Ms La has no great psychological or psychiatric problems. The real issue with her is an alleged pathological gambling disorder. Those matters are particularly detailed and as I said, it is noted that her mental status is normal and was at the time of the offending. The issue as to her gambling was put, not by any way as an excuse, but as an explanation of why a person with no priors would suddenly be involved in such serious criminality.
26I must say, the circumstances put to me are somewhat amazing, if not puzzling. I wonder how a person who comes before the Court saying that she has concerns about her children, can be as involved as she was. She allegedly, on the matters put to me, went to the casino at least three times a week. The figures would demonstrate even more. Each time she goes, on her evidence she is spending some - on what was put to me - $200. It is alleged that prior to this offending, this month of offending of which I am dealing with, she had built up a debt of $50,000 to loan sharks and that is the reason why she suddenly turned to criminality.
27It was further put to me that she has been involved in this activity for only the four weeks and it was only as a necessity to repay the debt. I just do not think that meets reality. I do not accept that proposition. As put by Mr Dickinson, in the period 2012 to 2014, she was recorded as being at the casino on 529 days. I must say, I personally have great scepticism about a person who comes before this Court and says how concerned she is about her children. She is a person who is unemployed. She is living at the housing commission. The family no doubt is being ostensibly cared for by the Commonwealth carer's pension and in these circumstances she resorts to gambling and drug dealing.
28However, despite my scepticism, I will make it very clear, I am not here to sentence her for any other criminality or moral failure she may have committed, and there is no evidence of any such criminality. I am only to sentence her for the period as alleged. I simply say that I do not accept the proposition put to me that that is the totality of her drug dealing. The reality of her life beggars such a reality, and indicates such a proposition cannot be accepted.
29As I said, she has no cognitive or mental issues and the only issue as described in the report of the psychologist is her concern, as I read out, or alleged concern at her children's current state. As I say, the purpose that that matter was put to me by Mr Dickinson was to provide an explanation for this criminality, that explanation being gambling. Such motivation for criminality, as put by the learned prosecutor, must be seen as crime for monetary gain only.
30Mr Dickinson in his plea also called the daughter Ha. She confirmed that as a result of her parents' criminality, she had to give up, at this stage, her TAFE VCE program and has had to put that on hold and one would hope she return to that in due course. The family is still in the same premises. The elder sister apparently is supporting the family. The witness Ha when I questioned her was unsure if someone is getting a carer's pension. I presume they are. However, the previous registered carer for xxxxxx was the co-accused.
31Also tendered as Exhibit L3 were a bundle of medical documents related to xxxxxx. xxxxxx is autistic and epileptic. He also suffers from severe mental disability. His real issues are, in regard to everyday life, that he is not spatially aware and not alert to hazards that relate to himself. He needs a lot of personal care and that apparently up until the time of imprisonment was carried out by his father. A report from the special school principle says that xxxxxx needs constant supervision and care throughout the day. Hence the submission based on Markovic as to exceptional circumstances and personal family hardship presented by the imprisonment was put. That proposition of exceptional circumstances was accepted by the Crown as being established in the circumstances of this case.
32Without going closely into - and I do this by no disrespect - to the plea on behalf of Mr Tieu conducted by Mr Chambers, essentially he adopted the arguments of Mr Dickinson. Such is evidenced from Exhibit T1 which are his submissions. He also tendered a report relative to Mr Tieu himself from Mr Newton dated 3 December 2013 which spoke in particular about his ongoing issues of anxiety. As Exhibit T3 were the similar documents that I have already referred to insofar as xxxxxx is concerned.
33There are two issues that arise with the acceptance of the Markovic principles insofar as the state of the children. Mr Dickinson sought to rely on [20] in Markovic as to the mitigation brought about by the impact upon the offender herself of her children being deprived of both herself and her partner, who is the children's father. It is described at that paragraph as a conventional issue of mitigation. I must say, I have some issues with this.
34Besides the statements of Markovic, which I point out is a five member Court of Appeal, I considered the statements made by Batt JA in a three member Court of Appeal in R v Rawlings [2003] VSCA 157R, date of judgment 27 September 2003. Such was also a trafficking case and related to a proposition as to exceptionality in regard to a daughter. However, in particular in talking about this aspect, His Honour spoke about the evidence of the daughter's emotional state that was therefore before His Honour had consequences of relevance in two respects. First, there was the applicant's distress at the deterioration in her daughter's emotional state - I am speaking, I might say, from [13] - due to the applicant's imprisonment, which might have made her own depression more severe, that is, the impact on her herself. His Honour could not have been unmindful of that, but in the instinctive synthesis which he was required to make in the circumstances of this case considered such was of little weight, especially because it flowed from the applicant's own conduct.
35It seems to me that when these propositions are put, despite accepting the establishment of the Markovic propositions insofar as the severity on the family itself, the proposition set out in Markovic at [20], while it has to be accepted, has to be looked at in the context of each particular case. Clearly if Ms La does have actual concerns, which I accept, although I have some grave doubts given her behaviour, such hardship has been brought about purely by her own behaviour.
36These matters have also been considered by Kellam J in R v Williams [2004] VSC 429. In that case, via the conduct of both Ms Williams and her husband, their children had been rendered into a position of emotional suffering. In that case His Honour did not conclude that the hardship was so exceptional as to be classified in the Markovic sense. However, in the sense of being taken into account generally as an issue of mitigation, His Honour said this:
"However, I do not conclude the circumstances of the hardship suffered by your children are so exceptional so as to justify a wholly suspended sentence as submitted as appropriate by your counsel".
37He then referred to R v Tilley (1991) 53 A Crim R 1, a decision of the Queensland Court of Appeal, in particular at [3] to [4] the Court said:
"It is common that hardship or stress is (indistinct) by a family of an offender and that may be inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for others and Courts must not shrink from their duty by giving undue weight to personal or sentimental factors. The public, which includes many people who struggle to bring up their children with moral standards, would be poorly served if Courts gave in to this temptation".
38That brings me to look at the reality of the proposition being put in Markovic at [20] by Mr Dickinson in regard to his client. The major carer, it would appear, for xxxxx is Mr Tieu. Given the amount of absence at the casino by his mother and in addition to that, her decision to be involved in the trafficking, while I accept the concern she may have in regard to both xxxxxx and her other two children as a matter to be taken into account in mitigation, given the reality of her circumstances, while I give it weight, I do not give it a lot of weight.
39Given the acceptance of the finding of exceptional hardship as regards the children as against the finding in regard to the mother, the next question is: what are the consequences of that finding? In this regard I refer to R v Panuccio [1998] VSC 300 (Unreported, Victorian Court of Appeal, 4 May 1998). In particular I refer to the comments of Winneke, Brooking and Charles. One could hardly think of a stronger Court, who said at [7] the following:
"Although the Court is not, both as a matter of compassion and common sense, impervious to the consequence of a sentence upon other members of the family or of a person in prison, such factors will need to be exceptional or extreme before the Court will tailor its sentence in order to relieve the plight of those other family members. Such a principle is clearly an obvious one because the Court's primary function is to impose a sentence which meets the gravity of the crime committed by the person who is being sentenced. There will rarely be a case where a sentence of imprisonment imposed does not have consequential effects upon the spouse, children or other family members who are dependent in one form or other upon the person imprisoned. Thus it has often been stated that as a general principle of sentencing the Court should usually disregard the impact that the sentence will have upon the members of the family, unless exceptional circumstances have been demonstrated".
40The Court goes on to say:
"It goes without saying, I think, that the graver the crime for which the prisoner is being sentenced, the more difficult it will be to find exceptional circumstances because the relief usually sought and generally necessary to alleviate the plight of relevant family members affected will require absolution from incarceration".
41That principle and the issues where you have an accepted finding of extreme consequences to the children of the family, as in this case, of the parents being away is a very difficult balancing process. Even accepting the Crown's concession and my finding that there is exceptional hardship to the family in this case, I do not consider that total absolution from incarceration could be contemplated and nor was it put by anyone, especially given the gravity of this crime.
42The child xxxxxx is currently being cared for directly while at home by his sister Ha and supported financially by the elder sister and, as I have said, I assume the Commonwealth. I imagine, taking into account his impairments, that although there may be some difference between the care given by Ha and her father, such would have no great impact upon him. I say this respectfully because from what I observe he is in a particular world of his own and as the statements of his medical practitioners and the special school principle indicate. However, Ha herself has to be considered because she is the one who is bearing the burden of looking after the children and in particular, xxxxxx. For example, xxxxxx still wears nappies at his age and Ha is involved in those issues.
43The evidence before me from the plea of Mr Tieu and the propositions put by Mr Chambers is that it his client, who was responsible for the care of xxxxx and for all of the matters required while he is at home. Indeed it was put by Mr Chambers that there was a special bond between Mr Tieu and the child and in addition to that, Mr Tieu is apparently the registered primary carer for the child and looks after the child when the child is home. As was put by Mr Chambers, on a 24/7 basis.
44It is a very difficult balance in this case, given the severity of the crime, to balance on one hand the need for a sentence which effects general deterrence, specific deterrence and punishment, as would be expected by the community for offences of this seriousness and the matters put to me, as I have detailed, by each counsel and in particular the principles set out in the Sentencing Act s.5(2) to (6) and in particular insofar as orders sought, that is, a Community Correction Order, by both counsel, the principles set out in s.5(4C).
45I have of course taken into account those submissions and also the principles set out in Boulton v R [2014] VSCA 342. However, in my view, it is not appropriate to pass, despite the positive reports in regard to both prisoners, given the severity of the criminality involved and the total circumstances, albeit that they have no priors and the criminality was involved over, and which I am sentencing, one month only, it is still in my view of such a nature that the proposal of a period of imprisonment plus a community correction order is not appropriate as a sentence in this case for either of the prisoners.
46In dealing with the issue of exceptional hardship it is quite obvious to me that such is alleviated for the family by Mr Tieu being returned home to his family as soon as is possible, he being the primary carer for xxxxxx. It seems to me that that matter is consistent with the considerations put to me by his counsel Mr Chambers, and the considerations set out in R v Grbin [2004] NSWCCA 220.
47In considering the final outcome there is, as between the prisoners, a difference in their role. From the prosecution summary and from observing the material, all of the conversations insofar as the trafficking between the suppliers to the prisoners and in particular, Ms La, were carried out by Ms La. She is the person who was organising the trades, Mr Tieu performed the role of the collector after the deals were made, organised and finalised by Ms La. True it is that all persons who are involved in this trade can expect condign punishment. However, there is in particular a difference in the roles here.
48It is those two factors, that is, the alleviation of the exceptional hardship which can be achieved by Mr Tieu being released and the difference in role that has led to the difference in the sentences that I am about to pronounce. Would you stand up please.
49Ms La, for this crime you will be convicted and sentenced to a period of imprisonment of two and a half years. I order that the period that you must serve before being eligible for parole is a period of one year and nine months.
50I also order pursuant to s.18 that the 428 days that you have served to date is to be deemed as service of this sentence and a declaration to that effect is to be registered in this Court. Roughly therefore you have served in regard to your sentence a period of one year and three months. You will be required by this sentence to serve another six months before you will be released.
51Insofar as your co-accused Mr Tieu is concerned, and husband, equally for this offence I impose a period of imprisonment of two and a half years. However, for the reasons I have indicated I intend to differentiate insofar as Mr Tieu is concerned as to the minimum period to be served. I order that the minimum period to be served by Mr Tieu in regard to his sentence is a period of 428 days. The consequence of that is that once Mr Tieu is paroled at the prison, Mr Tieu can be released to go home and look after the family.
52I have signed the orders, Mr Prosecutor, is there anything else I have to do?
53MR PICKERING: Yes, Your Honour, just in terms of that sentence, he - I take it Your Honour's saying that he would be eligible for release if approved by the Parole Board obviously.
54HIS HONOUR: Not up to me, but he has to - I am saying that he has to serve 428 days before being eligible for parole.
55MR PICKERING: Exactly. The second matter, Your Honour, is the 6AAA.
56HIS HONOUR: Yes, that is right, I have not put that in. Well, 6AAA in this case is quite difficult in the sense of the mitigating factors, but had Ms La not pleaded guilty in this matter I would have sentenced her to four and a half years imprisonment with a minimum period of three years imprisonment. Insofar as her husband, Mr Tieu, equally a sentence of four and a half years imprisonment with a minimum period of three years imprisonment.
57MR PICKERING: As Your Honour pleases.
58MS NGUYEN: As Your Honour pleases.
59HIS HONOUR: Madam Interpreter, it is important for me and for you to explain to both prisoners the importance - and I am required to do this - the importance of pleading guilty in this matter and what it means to them. In particular, Mr Tieu would not have been going home, subject to him getting parole and Ms La would have served approximately a double period in gaol by way of a minimum period. Yes, are there any other matters, Mr Prosecutor?
60MR PICKERING: No, Your Honour.
61HIS HONOUR: Yes, thank you. Ms Nguyen, any matters from you?
62MS NGUYEN: No further matters, Your Honour.
63HIS HONOUR: Yes. The prisoners can be taken away. I thank both counsel for their assistance in the case and instructors, which involved a lot of very interesting principles.
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