Director of Public Prosecutions v Lach

[2017] VCC 513

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-02134
CR -16-02137

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND LACH
AN KEN VI

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	2 May 2017
CASE MAY BE CITED AS:	DPP v Lach & Anor
MEDIUM NEUTRAL CITATION:	[2017] VCC 513

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Piechukowska
For Accused Lach	Mr A. Masters
For Accused Vi	Mr J. Dickenson

Pages 1 - 14

 

 

HIS HONOUR: 

1Raymond Lach and An Ken Vi, you have each pleaded guilty to an indictment charging you with attempting to traffic a commercial quantity of a controlled drug, namely methamphetamine between 30 June and 1 July of last year.  You, An Ken Vi, have also admitted one prior court appearance.  I do not regard that offending as of any significance so far as these proceedings are concerned.  You, Raymond Lach, have no prior convictions.

2The offence to which you pleaded guilty carries a maximum term of imprisonment of life imprisonment.  The prosecution tendered and read to the court yesterday a summary of prosecution opening.  I am not going to read that again.  I incorporate it in its entirety into these reasons for sentence. 

3The essence of the prosecution opening is that at least in the days prior to the arrival of the three shipping containers containing the controlled drug, the subject of the charge, each of you had dealings with a man by the name of Daniel Wong. Each of you attended factory premises associated with Mr Wong at Kimberly Road, Dandenong South.  On 16 June, each of you accompanied Mr Wong to the Bunnings store at Keysborough where a large generator was purchased.  It is not clear exactly what the purpose of that was, but during the discussion at the shop, the person who was doing the talking, who I might infer was Mr Wong but I cannot be sure about that, indicated that it was required to light a factory.

4On 19 June, you, Lach, attended the Budget Car and Truck Rental at Croydon and leased a Renault van for a two week period, ending on 3 July 2016.  You also purchased 15 large cardboard storage boxes and packing tape.  It is accepted on your behalf, Mr Lach, that you became involved in dealing with Mr Wong over a period of some months prior to the offending conduct and that you were involved at least in purchasing the cardboard boxes and hiring the van in preparation for the offending conduct that took place.

5The three shipping containers containing the controlled drugs arrived on 20 June.  The gross weight of the substance concealed under the floorboards of the shipping containers was 262.47 kilograms, which had an average purity of 80 per cent and the total quantity of pure methamphetamine that had been imported in those three shipping containers was 209.79 kilograms.  That is in comparison with other offences of its nature, a very substantial quantity of methylamphetamine. There does not seem to be any dispute that the estimates provided in the summary of prosecution opening for the value of that quantity of methamphetamine on the wholesale black market in Australia was something in the order of $37.7 million and insofar as estimated street value was concerned, something in the order of $58.7 million.  So the scale of the enterprise to which you attached yourselves was enormous. 

6The Australian Federal Police organised for the shipping containers to be dismantled and reconstructed so as not to arouse the suspicion of the intended recipients of the controlled drug and a controlled delivery was effected at Factory 2/10 Turbo Drive, Bayswater North, which had for several months been associated with the man, Daniel Wong.

7On 29 June, apparently at the direction of Mr Wong, two other gentlemen were employed to accept the delivery of those three shipping containers at the factory premises at 2/10 Turbo Drive, Bayswater North, and to unpack the blue metal pellets, which were contained in those shipping containers and were apparently the declared and ostensible goods transported, imported into Australia in those containers.  Those two gentlemen were not, it seems, employed to interfere with the false bottom of each of the three containers which concealed the, by then, substituted controlled drugs for which was in fact effectively an inert substance.

8On 30 June, at 7.33 am, each of you, Lach and Vi, met with Mr Wong at a car park in Ringwood and travelled in Factory 2/10 Turbo Drive, Bayswater North.  You, Lach, were driving the Budget van that you had hired previously and you, Vi, were driving your Honda motor vehicle.  During the course of that day, the two of you removed the flooring of each of the three empty shipping containers using crowbars and screwdrivers and unpacked the substituted substances which I am satisfied you still believed was methamphetamine under the false floors of the shipping containers.  You later placed the substituted methamphetamine, which you believe to be methamphetamine, into cardboard boxes, ready for further distribution of the substances that you believed were methamphetamine.

9At about 6 pm that evening, the two of you effected a delivery of a quantity totalling 114.74 kilograms gross of what you believed to be methamphetamine by parking the Budget van with that quantity on board in Williamsons Road, Maribyrnong and leaving it to be collected by Vu Phi Nguyen or his brothers, Mr Nguyen being a person that I sentenced recently for a similar offence involving that quantity of 104.74 kilograms gross, which came down to about 91 kilograms net of methamphetamine.  Of course it was substituted goods and the charge was also attempt to traffic in a commercial quantity of methamphetamine.

10The van having been collected by the offender, Nguyen and or his brothers, was then delivered back to the same area later that night after the quantity of methamphetamine or believed to be methamphetamine had been removed from the van. It is to be inferred that at some stage, either that evening or the following morning, one or other of you, Lach, or you, Vi, collected the van because on 1 July at 10.53 am, you, Lach, were driving the van and you, Vi, driving your Honda motor car back to the factory at 2/10 Turbo Drive, Bayswater North.

11There, the two of you collected seven further cardboard boxes containing what you believed to be methamphetamine and loaded them into the van and drove in convoy to Pointside Avenue in Bayswater.  Just after midday on 1 July, you, Lach, parked the Budget van in Pointside Avenue and left it unlocked.  The two of you then drove to Bunnings at Canterbury Road where you met with a co-offender, Andrew Findlay, and accompanied him back to where the Budget van was parked.  Mr Findlay then removed the seven boxes that you had transported to that location, containing what he believed and indeed you believed was methamphetamine in a quantity totalling 134.84 kilograms gross.  Mr Findlay loaded the boxes into his vehicle, departed the area in convoy with another alleged co-offender, Mr Shakahanov.  Mr Findlay and Mr Shakahanov were arrested a short time later.

12The two of you returned to Pointside Road, Bayswater.  You, Lach, retrieved the Budget van and the two of you drove in convoy from the area but were intercepted at 2.10 pm by police in Bayswater North and you were arrested.  You were each interviewed and so far as the offending conduct was concerned, each of you elected to make no comment to questions put to you in relation to the allegations.

13A search of the factory at 2/10 Turbo Drive Bayswater North revealed a further quantity of cardboard boxes containing a further quantity of the substituted methamphetamine. 

14So the total quantity of pure methamphetamine trafficked by each of you in the course of your offending was 209.79 kilograms pure, which represents 279 times the commercial quantity threshold for that particular drug.

15Clearly the offending is of a very high order.  The criminal enterprise to which you attached yourselves must, on any measure be regarded as at the very high end of the scale of seriousness, approaching if not in the worst category.  It is important to consider the nature of the role that each of you played in the criminal enterprise.  I observe in passing that I am to pass sentence upon you for your involvement in the venture on 30 June and 1 July of last year, and that the offending conduct involves the two of you in a joint venture of attempting to traffic in that quantity of methylamphetamine.

16The evidence of your dealings with Mr Wong in the days or weeks prior to the offending conduct is not part of the offending conduct and I do not impose sentence upon you for that. But it helps to some extent to give context to your offending and to identify the nature of your role and to the degree to which you were aware of the nature of the enterprise that you were getting yourselves involved in.

17It is very difficult, on the limited evidence that has been placed before me, to define with any precision what your role was.  Either of you could have shared more light on that. You were in a position to give evidence before me and I made the observation that I was not prepared to accept assertions from the Bar table as to the totality of the involvement of each of you.  Neither of you chose to give evidence before me, therefore it is necessary for me to look at the evidence that is before me and see what appropriate inferences I can draw.

18As I pointed out to counsel for each of you during the course of the plea hearing, it would be naïve to suggest that either of you were unaware of the general scale of the enterprise to which you were attaching yourselves.  It cannot be said, at least I cannot possibly find beyond reasonable doubt, that you were aware of the precise quantity of drugs with which you were going to be asked to deal, however I am satisfied beyond reasonable doubt that before attending the factory premises at 2/10 Turbo Drive Bayswater North on the morning of 30 June 2016, each of you was aware that a very substantial quantity of methamphetamine was to be trafficked by you.  Each of you were aware that methamphetamine was then and indeed still is a very valuable commodity on the black market in Australia and that it was worth many millions of dollars.

19I note that each of you had been heavy drug users, albeit cocaine in particular, during the several months leading up to the offending conduct.  Each of you had therefore had to purchase drugs on the black market and immerse yourselves, to some degree at any rate, in the drug subculture and it would be naïve to take the view that you did not have an idea of the value of the goods that you were being asked to traffic.

20I am satisfied beyond reasonable doubt that each of you were aware that you were going to be required to play an important role, indeed a pivotal role, in the trafficking of the 209 odd kilograms pure.  I am satisfied beyond reasonable doubt that you were to receive a very substantial financial reward for your involvement.  I cannot find beyond reasonable doubt with any precision as to what your reward was to be.  In your case, Lach, you having claimed that it was a total of $60,000.  I am satisfied beyond reasonable doubt at least that it was not less than that sum.  I think the likelihood is that it was significantly more than that in each of your cases, given the risks that you were going to be asked to take and the level of trust that was being reposed in you.

21However, the precise figure is not important.  What is important is that you were doing it out of greed.  It may be that each of you is under some degree of financial pressure, but not of a kind that could possibly have justified this sort of resort to criminal conduct. Therefore, on any view, this was a crime where your participation was motivated by the prospect of substantial financial gain.  I am satisfied beyond reasonable doubt that you were trusted by those more senior in the hierarchy to handle and transport these goods without any close supervision and to deliver the goods to downstream participants in the distribution chain.  That degree of trust would not have been reposed unless each of you had given your informed consent to participate in a criminal enterprise on a very large scale indeed.

22I am satisfied beyond reasonable doubt that by the time each of you fulfilled your tasks of transporting the goods, firstly that delivered for Mr Nguyen and secondly, that delivered for Mr Findlay, you were well aware of the scale of the enterprise.  You had been the ones who had extracted the total weight of controlled drug from the shipping containers.  Each of you attempted knowingly to traffic in an amount more than double the quantity with which Vu Phi Nguyen was involved and in respect of which he pleaded guilty.

23Although I have characterised each of you as foot soldiers and accepted that you were not organisers, you were not investors in the scheme but were performing your role for fee or reward, I am satisfied beyond reasonable doubt that your role was more significant and substantial than that of Mr Nguyen and significantly more so.  Indeed, each of you trafficked in more than double the amount of what you believed to be methamphetamine than Mr Nguyen and each of you were closer to the actual importation and were involved in the first and pivotal point of distribution of the drug.

24I accept that the quantity of drug involved in the overall criminal enterprise is not the only, and certainly perhaps not even the most important factor, but it is a significant factor particularly in circumstances where by the time you came to commit this offence, you were aware, as I have found, that you were involved in a very substantial criminal enterprise and by the time you came actually to transport the drugs in the way that I have described and as set out in the prosecution opening, you were fully aware of the weight of the drugs involved and the scale of the enterprise to which you have attached yourselves.

25It is therefore relevant to look at the quantity of the drugs and amongst the various other factors, bearing upon your culpability to assess your culpability at least to some degree by reference to that very substantial quantity.

26Turning to matters personal to each of you.  In each of your cases, I may say, I treat you essentially as persons of good character.  I note that you are still 24 years of age.  You were 24 years of age at the time of the offending conduct.  You are still therefore relatively young.  You are not young offenders per se, but you are still of relative youth.  Each of you comes from a good background.  Each of you has family support, each of you has a good education, each of you is clearly intelligent, able and on the face of it, you have the capacity to lead fruitful and honest lives.  You, Lach, had ambitions to become an architect and still have those ambitions.  It may well be that you will ultimately qualify as an architect or at least playing a significant role in that profession.

27You, Vi, had already obtained a degree at RMIT in engineering and were apparently embarking upon your honours degree.  You are obviously a person of significant intelligence and ability.  Each of you have provided character references and those character references appear to come from very decent and well educated people who have assessed each of you as persons of very significant quality and it seems that your friends and relatives are universally shocked at each of you being involved in this offending conduct.  They find this quite out of character, although you may have shown some signs of having dabbled with drugs.  None of them could and would have predicted that either of you could have attached yourselves to this kind of offending conduct.

28They suggest that each of you are remorseful.  You have told your respective psychologists that you are remorseful.  You, Lach, have provided me with a letter.  I already indicated during the plea that I do not find those letters generally very helpful, but I have accepted your letter and I accept the expressions of remorse contained in it and the various expressions of remorse that you have made to other people.

29Both of you have pleaded guilty at the first available opportunity which supports the proposition that not only are you willing to accept criminal responsibility but that you are genuinely remorseful and contrite.  How each of you or either of you became seduced by the prospect of quick money to become involved in this is very difficult to understand.  You must have had at least some notion of the significant sentences that may await you if you were to be caught.

30It is tragic frankly that either of you sit in the dock as you are now awaiting to be sentenced for this serious crime.  Neither of you have any mental impairment which reduces your moral culpability.  Each of you certainly has experimented and become involved in the abuse of stimulants of one kind or another, latterly in each of your cases, cocaine, which may well have, to some extent at any rate, clouded your judgment and given you some kind of false sense of security and a notion that you may be bulletproof to the point that it laid the foundation for you becoming involved in these criminal enterprises, but really that is speculation on my part in looking for some kind of explanation for the pathway that each of you took.

31It seems to me, looking at the totality of the evidence and accepting that I have not received evidence from either of you, so it is not possible to be certain of this that you, Mr Lach, seem to have had a more longstanding association with Mr Wong than that of Mr Vi.  Your participation in the preparations for the receipt of the three shipping containers seems to be somewhat greater than that of Mr Vi, but it is difficult to make any clear assessment as between each of you in that regard.

32The porosity of credible and reliable information as to how you became involved, exactly what was offered to you to bring you into this enterprise is not possible to ascertain from the material with which I have been presented.  

33Each of you has demonstrated that having been caught and having had an opportunity to assess your situation in the cold light of day and having got yourselves clean, having dried out from the use of drugs of any kind and been drug free during the period that you have been on remand, each of you have settled into rehabilitating yourselves.  Each of you have done what you can within the prison system to better yourselves and to keep yourselves occupied and to pursue such opportunities for rehabilitative programs that are available to you.

34In your case, Vi, I do not hold it against you the fact that you have not been in the youth section of Port Phillip Prison and have not had the same opportunities to demonstrate leadership qualities. 

35Mr Lach, you have shown an interest in imparting the benefit of your experiences to school children and to ensuring insofar as possible that you influence them away from the pathway that you have taken.  That is commendable and whilst the evidence of Ms Hooker on behalf of Mr Lach painted a picture of a model prisoner.  I am quite satisfied that each of you in your own ways have demonstrated that your prospects of rehabilitation are good, perhaps excellent.  I was prepared to indicate on your behalf, Mr Lach, that your prospects of rehabilitation are excellent.  I do not seek to distinguish significantly between the two of you.

36I have not got as much evidence in your case, Mr Vi, to put your prospects as excellent but I would certainly regard them as very good.  Perhaps if I can put it this way, to the extent that the evidence suggests that Mr Lach's involvement with Mr Wong and perhaps his role in the offending might have been slightly greater than that of Mr Vi, it is only marginal and is balanced against the degree to which Mr Lach has emerged as an excellent prospect for rehabilitation.

37I say that because it is necessary for me to impose sentences that show parity as between the two of you and in that, there may be some distinction as to the precise involvement in the criminal enterprise, it is marginal and I think in the end, it is marginal as to the degree to which each of you demonstrates a capacity for rehabilitation.

38For those reasons, I propose to treat you exactly the same in these sentences that I ultimately impose.

39It is necessary for me, dealing with Commonwealth offences to look to the Commonwealth Crimes Act, s.16A(1) requires me to impose a sentence that is commensurate essentially with the offending conduct as of sufficient severity. There are a number of other matters to which my attention was drawn which are covered by s.16A(2) of the Commonwealth Crimes Act.  Those are dealt with in some detail in the prosecution submissions and I do not propose to go through them in detail, I have covered a number of them in the remarks I have already made.

40What is not covered specifically in s.16A is the importance of general deterrence in a case such as this.  It is of paramount importance that courts send out a message loud and clear that if you become involved in trafficking or attempting to traffic in drugs in the nature of methylamphetamine, then stern punishment has to be imposed so as to dissuade other people from getting involved. 

41There are a number of authorities which underscore the proposition that other sentencing considerations must take a less significant place in the overall mix than general deterrence for crimes such as this.  That becomes particularly important when one is looking at a criminal enterprise on the scale of this one, which as I have already said, is if not in, close to the worst category.

42I do not regard individual deterrence in your cases as being of great significance.  It is certainly something I need to take into account but having assessed your prospects of rehabilitation and noted the efforts that you have made thus far, I am inclined to think that with the support structures around you and your families, that you would not offend again.

43I have not gone through in any detail your precise details of your family background.  Both of you were born in Australia and both of you have grown up in migrant families.  Your pathway would not have been as easy, no doubt, as persons who with a long connection with Australia and the parents who were themselves born in Australia. It is axiomatic that there will have been problems along the way.  However, each of you, as I said, have come from good families, not unblemished families.  Each of you have had your own issues, but not of such significance as to merit any particular isolation in the exposition of matters that really bear upon sentence in this case.

44I was taken to a table of cases which for the purpose of helping me identify current sentencing practice, that was a relatively small selection of cases necessarily so because there are not many importations on this scale, giving rise to charges of a similar nature and it is not easy to identify any clear sentencing practice.

45The case of Maher is probably the closest in terms of the bare facts.  I have gone to that particular decision of the Court of Appeal and seen it in more detail.  I find it and indeed reference to the others of some help, but each case has to be determined on its own facts and this is not exception.  

46The other cases referred to by the prosecution in the Crown submissions the well-known cases of Nguyen&Pham (2010) 205 ACrimR 106, and Nguyen v The Queen and Phommalysack v The Queen (2011) 31 VR 673, are useful as is reference to the case of De La Rosa (2010) 79 NSWLR 1.

47Those authorities do identify some key reference points in determining the seriousness of individual offences and I have endeavoured to deal with what seemed to me to be the particularly important points in identifying the scale of seriousness not just of the criminal enterprise, but of the role of each of you in it.

48As was said by Winneke P in The Queen v Carey (1998) 4 VR 13 at 17,

"Those who engage in the illicit drug trade, no matter what their status in the enterprise, must expect heavy sentences in which general deterrence will be the principal purpose of the punishment."

49In the case of Nguyen & Phommalysack, the Court said at Paragraph 34,

"The sentence must signal to would be drug traffickers the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment."

50As the prosecution pointed out, the scale of this enterprise was in the order of 280 times the commercial quantity threshold. 

51Another factor which comes into play is your relative youth, you have got a lot of life ahead of you and I do take that into account.  You are no longer young offenders, per se, but nevertheless, you are relatively young.  However again, good character and indeed youth is of less importance in a case such as this where the need for general deterrence is of such great importance.  Your remorse also is a matter which, in my opinion, should and does operate to reduce the sentence that would otherwise have been appropriate in your respective cases.

52The sentence that I intend to impose is designed to balance all of the various sentencing considerations and to accord with so far as it is possible to identify current sentencing practice.  I am inclined to think that the sentence is towards the low end of the scale so far as current sentencing practice is concerned for offences on this scale and your role respectively in the criminal enterprise and I propose also to give you the opportunity of getting parole at an earlier stage than might otherwise have been the case because of what seems to me to be your excellent prospects of rehabilitation.

53However, the sentence that I impose is nevertheless a stern one and it gives me no pleasure to impose it on persons who have such good prospects for the future.  I am now ready to impose sentence upon you.

54Raymond Lach, for the offence of attempting to traffic in a commercial quantity of a controlled drug to which you pleaded guilty, I convict you and sentence you to imprisonment for a period of 13 years and I order that you serve a period of nine years before you become eligible for parole.

55An Ken Vi, for the same offence, I convict you and sentence you to imprisonment for a period of 13 years and order that you serve a period of nine years before you become eligible for parole.

56Those sentences will commence today and I declare 305 days of pre-sentence detention has time to be reckoned as served on the sentences that I have imposed and deducted administratively from the time that you actually have to serve.  Are there any other orders I need make?

57MS PIECHUTOWSKA:  No, Your Honour.

58HIS HONOUR:  Yes, thank you.

59I am sorry, I did not do a s.6AAA.  What I should have added to what I have already said that but for your pleas of guilty, I would have sentenced you to imprisonment for a period of 17 years with a non-parole period of 14 years.

60Yes, thank you.

‑ ‑ ‑