Director of Public Prosecutions v Lam
[2020] VCC 160
•27 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01715
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY TROUNG LAM |
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JUDGE: | HER HONOUR JUDGE HOGAN | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 17 February 2020 | ||
DATE OF SENTENCE: | 27 February 2020 | (1st Revision: 17 May 2022) | |
CASE MAY BE CITED AS: | DPP v Lam | ||
MEDIUM NEUTRAL CITATION: | [2020] VCC 160 | ||
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: 30 year old offender – two charges of trafficking in a commercial quantity of a drug of dependence and one charge of trafficking simpliciter in a drug of dependence – charged in relation to one day of trafficking (date of execution by police of search warrant) – offender living at premises where search warrant executed – indications of trafficking present not only by virtue of quantity of drugs but also presence of drugs in deal bags, electronic scales, a cash counter – extremely strong support for the offender being the contributor of the DNA sample from two contributors on clip-seal bags found at the premises – plea of guilty to trafficking with a basis of being in possession of the relevant drugs for the purpose of sale – long-term drug addiction – childhood of neglect and disadvantage – long-term behavioural issues from childhood – limited education due to serious drug abuse from teenage years – psychological evidence that the offender suffers a substance abuse disorder and antisocial personality disorder, both apparently linked to his disadvantaged childhood – early plea of guilty but no evidence of remorse by offender and limited insight into his psychological state and the potential harm from trafficking – criminal history of drug-related offending albeit no prior trafficking – three prior court dispositions of rehabilitative nature but no effective rehabilitation undertaken – poor prospects of rehabilitation – first period of substantial remand in custody awaiting plea hearing – abstinence from drugs and undertaking of courses whilst on remand.
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence of 7 years’ imprisonment with a non-parole period of 4 years and 6 months. s6AAA statement: 9 years’ imprisonment with a non-parole period of 6 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Raimondo | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Richter QC with Mr R Edney | Stary Norton Halphen Solicitors |
HER HONOUR:
1 Anthony Troung Lam, you have pleaded guilty to two charges of trafficking in a commercial quantity of a drug of dependence (heroin and methylamphetamine respectively), each of which carries a maximum penalty of 25 years’ imprisonment. You have also pleaded guilty to one charge of trafficking simpliciter in a drug of dependence (cocaine), which carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances of your offending are summarised in the Summary of Prosecution Opening on Plea (Exhibit “A”).
3 On 27 September 2018, police executed a search warrant at residential premises at Unit 1/3 Cresswold Avenue, Avondale Heights. You were the occupier of those premises. Police located various drugs. These were found inside the premises and, also, in a black BMW parked in the garage attached to the premises. This vehicle was apparently owned by your step-father, but the drugs inside it were admitted by you to belong to you. Overall, police seized a total of 593.702 grams of pure heroin, which is well over twice the commercial quantity of 250 grams (Charge 1); a total of 359.634 grams of pure methylamphetamine, which is over seven times the commercial quantity of 50 grams (Charge 2); and 17.004 grams of cocaine, which is over five times the trafficable quantity of 3 grams (Charge 3).
4 At the premises, police located various items associated with drug trafficking. These included a cash counter, a set of electronic scales, and a number of ziplock bags, which contained either other ziplock bags or drugs. In the black BMW were a number of ziplock bags containing drugs which were concealed in the dashboard.
5 Police also located $1,380 cash on the kitchen bench and $73,750 in a shoebox in a cupboard in the laundry. The prosecution concede that these amounts were not able to be proven beyond reasonable doubt to be proceeds of trafficking in drugs by you.
6 All three charges before the court are brought on the basis that, on the day when the police executed the search warrant at the premises, you were in possession of the drugs in question for the purposes of sale.
7 During the execution of the search warrant, you gave police some assistance by disclosing the presence of some drugs in a kitchen drawer. A thorough search of the premises showed the presence of drugs in some other areas as well. As previously mentioned, you admitted that the drugs found in the car were yours.
8 You were interviewed and answered “no comment” to police questions, as is your legal right. You were charged and remanded in custody on 27 September 2018, where you have remained now for one year and seven months.
9 You pleaded guilty to the charges at a relatively early stage, shortly before the committal date. No committal was conducted. Rather, the matters proceeded by way of hand-up brief.
10 You are presently aged 30 years, having been born on 26 September 1989. You come before the court with a criminal history in adult courts dating back some 10 years. The bulk of your earlier offending between 2009 and 2011 relates to driving offences, including fraudulently using a licence and stating a false name and address.
11 On 17 December 2012, you appeared before Sunshine Magistrates’ Court on three charges of possessing drugs of dependence, using drugs of dependence, exceeding the speed limit, and dealing with property suspected of being the proceeds of crime. You were convicted and sentenced to two concurrent Community Correction Orders, each of 12 months’ duration with conditions of unpaid community work, supervision, assessment and treatment for drug abuse or dependency and mental health issues, and to undertake offending behaviour programs as directed.
12 On 2 February 2015, you appeared before the Magistrates’ Court at Sunshine for contravening the Community Correction Orders made in 2012. They were varied and you were again ordered to undertake concurrent Community Correction Orders for a period of 12 months with similar conditions.
13 On 14 August 2015, you again appeared at Sunshine Magistrates’ Court charged with possessing methamphetamine and heroin, dealing with property suspected of being the proceeds of crime, and possessing a prohibited weapon. It was noted in the court record that you were undertaking rehabilitation by way of the previously mentioned Community Correction Orders. You were convicted and sentenced to an aggregate term of imprisonment of nine months, which was wholly suspended for a period of 18 months. Over the ensuing three years, there is no record of further offending by you until you were charged with these offences on 27 September 2018.
14 In a plea on your behalf, Mr Richter of Senior Counsel, stated that you had had a longstanding addiction to methamphetamine and heroin from at least age 18. He relied upon the neuropsychological report of Dr Linda Borg dated 15 December 2019 (Exhibit “2”). Although Dr Borg, in her careful report, stated that she found no evidence to support a diagnosis of intellectual disability or learning disability, or any significant cognitive deficits that would result in an impaired decision-making process or appreciably impact upon your daily function or cause or contribute to your offending behaviour, she did note a very lengthy history of behavioural problems from an early age. At one stage, you had been thought to be suffering from ADHD, although she found that, at the present time, you do not exhibit a pattern of pervasive attentional dysfunction, and deficits relating to inattention only mildly contribute to your current presentation.
15 Your behaviour at school was extremely problematic from a relatively early age. At age five, you were referred as a matter of urgency to Travancore Child and Family Centre at the Royal Children’s Hospital. This was instigated by your primary school and your general practitioner “as a consequence of moderately severe behavioural difficulties demonstrated at least in the school environment”. It was noted that you had a high rate of absenteeism, frequently attempted to run away from school, were disruptive in class and seemed unable to understand consequences, threw tantrums, swore, and engaged in antisocial behaviour, such as biting, spitting, pulling hair, pinching and “generally being provocative towards peers”. At one stage, you attempted to strangle another child and held scissors in a menacing way towards others.
16 The Royal Children’s Hospital notes recorded an apparent contrast between information provided by your family and that provided by the school, and also that kindergarten reports had indicated that “staff felt that [your] parents’ care for [you] was less than ideal”.
17 The hospital notes recorded that your mother was reluctant to provide detailed information and, generally speaking, your family were “quite avoidant about discussing home life/personal issues”. It was recorded that you had been instructed not to discuss your home environment and, generally speaking, your family were described as “reluctant and defensive” as well as “rather disinterested … impatient or resistant”.
18 Dr Borg noted that, in a psychological assessment prepared in November/December 1995 by Ms Cathy Catroppa, it had been stated that there was a significant discrepancy between your perceptual capabilities, which were appropriate, and your verbal skills, which were significantly below your then age group (six years). Your receptive language was assessed at the level of a three and a half year old, and your planning capabilities were reported as being impeded by impulsivity and poor monitoring.
19 By the following year, another psychologist, Ms Julie Barrington, had noted on 8 August 1996 that you had been provided with a teacher’s aide because your mother thought that you might have learning difficulties. Ms Barrington had recorded that your father was “violent and destructive” and your mother considered that you “may have been influenced by seeing [your] father throwing and breaking things”.
20 Overall, your family’s engagement with further sessions with Ms Barrington was poor, and your behaviour at school in hitting, tormenting and provoking other children and taking and destroying their work and possessions, was such that the possibility of making a notification to protective services was raised.
21 It was concluded that your behaviours were consistent with “a diagnosis of conduct disorder, but because of [your] parents’ lack of cooperation, it is unclear whether those behaviours are symptomatic of an underlying social dysfunction or whether they are reactive to exposure to violence and family dysfunction at home”.
22 Ms Barrington thought that your aggressive and destructive behaviours were in danger of becoming entrenched and escalating, and recommended a program to develop and encourage appropriate social behaviour and give remedial help for your educational difficulties.
23 Also tendered on the plea was a report from Mr Patrick Newton, clinical and forensic psychologist, dated 29 January 2020 (Exhibit “1”). He noted that you had been born in Vietnam and came to Australia with your parents before you turned 1 year old. You are an only child and grew up in South Kensington commission flats in an environment which you described as “tough”. Your father had been a heavy drug user and your mother had gambled extensively. They had often left you alone while they pursued their respective addictions. Multiple notifications to protective authorities were made due to you being neglected, suffering behavioural problems (such as biting other children, aggression and suspected early drug use), and exposure to domestic violence and other problematic behaviour on the part of your parents.
24 Mr Newton touched upon your referral to the Royal Children’s Hospital, which I have already mentioned, where diagnoses of ADHD, Conduct Disorder and Oppositional Defiance Disorder were all made during your childhood.
25 Mr Newton detailed a history of your behavioural difficulties being the cause of you being asked to leave your local kindergarten and then subsequently three different primary schools and a secondary school. You then ostensibly went to a community school, but your attendance was very sporadic and you told Mr Newton that, although you were then sent to another school, you barely went there at all and did not do much after Year 7. You described leaving school, which may have been technically when you were in Year 9, and then getting in with “the wrong crowd” and beginning to use drugs and ceasing to participate in any form of education. He noted that you had had involvement with juvenile justice in your teens, had mixed with problematic peer groups, and had not undertaken any post-secondary education or training, and that your main “legitimate” source of income had been welfare payments and that you had engaged in only the most limited paid work.
26 Mr Newton then went on to take a history of extensive and problematic substance abuse, beginning with smoking cannabis from aged 16, which soon became a daily habit and, by about the age of 18, you transitioned to using illicit stimulants, mainly methamphetamine, which helped you to boost your self-esteem. You rapidly developed a daily habit and, at your peak, were using well over a gram a day. You would be awake for extended periods and be unable to rest, and this motivated further drug use, namely engaging in heroin in an attempt to “come down” from the stimulant effects of methamphetamine. Shortly after you turned 18, you began using heroin, which you found to be the most addictive of all drugs. You used a wide range of other drugs in a less systematic fashion. You reported that you had participated in relatively little drug rehabilitation, although, at one stage, your mother had arranged for you to receive a naltrexone implant as part of treatment for your heroin addiction, and this enabled you to maintain abstinent from all drugs for a period of about 6 months. However, at about this time, your mother was imprisoned and you stated that your stepfather kicked you out of the house. You apparently relapsed into the abuse of heroin and other drugs, and you were never able to get your drug use under control again.
27 Mr Richter told the Court that your mother was arrested and charged for importing a commercial quantity of heroin into Australia. Records show that this was in 2011. Following a plea of guilty, she was sentenced to a term of imprisonment in the County Court on 2 April 2012. Following a successful appeal to the Court of Appeal on 31 August 2012, the sentence was reduced to 9 years’ imprisonment with a non-parole period of 7 years. Doing the best I can, I calculate that you would have been aged about 21 when your mother went into prison. Apparently your stepfather ejected you from the home where you had been living with your mother and it would appear that, for a period of time, you lived at the residential premises in Avondale Heights where the drugs were seized by police. When your mother was released on parole in or about 2018, she resumed her relationship with your stepfather. There was a very thinly-veiled suggestion by Mr Richter that your stepfather was the one behind the haul of drugs found by police at the house, and it is not in dispute that the black BMW vehicle in the garage was registered in his name. Beyond noting these matters, there is no evidence which enables me to make any specific finding in relation to your step-father one way or another.
28 Perhaps not surprisingly, both Mr Newton and Dr Borg note that you have an impoverished emotional capacity which reflects a history of significantly disturbed attachments in childhood in a context of an unstable and neglectful environment which provided poor opportunities for emotional and interpersonal development. Mr Newton states that you experience significant impairments in your own capacity to regulate your behaviour and emotions, resulting in marked behavioural problems, and attempts at treatment were either ineffective because compliance was poor or more likely sabotaged because of the broader chaos in your and your parents lives. He considered that your early experiences and subsequent development history have resulted in a form of morality which focuses upon your own needs and desires and that you are prone to test limits that are placed upon you by authority figures. He states that you have less behavioural inhibition than is normal, learn slowly from experience and are prone to make impulsive decisions without considering their full implications until after the event, and that your abuse of drugs has reinforced and intensified these problems. He considers that these personality traits are an integrated part of your make up and that they have their origin in your disturbed earlier experiences of instability and insecurity during your early years. He states that these traits have developed into a “dysfunctional and entrenched set of traits and behaviours that lie well outside the realm of 'normal' personality. Moreover, they are considerably more severe than the typical secondary effects of drug addiction”. He considers it clearly established that you meet the DSM-5 criteria for an Antisocial Personality Disorder.
29 Dr Borg agrees with Mr Newton that you do have maladaptive Cluster B personality traits. Unlike Mr Newton, she does not positively assert that they are caused by a dysfunctional childhood. She notes that there is nothing in your cognition which would indicate that imprisonment would be more onerous for you or that you did not have the necessary skills set to adequately understand and comply with community-based orders or requirements. However, she states:
“One potential barrier to engagement that does warrant further investigation relates to the relative impact of Mr Lam's developmental history on personality development and the potential contribution of maladaptive Cluster B personality traits to his current presentation. Specifically, the potential for normalisation of maladaptive behaviours in childhood due to exposure to violence and lack of structure and boundary provision (and even potentially, neglect) should not be under-estimated.”
She noted you were scheduled to see Mr Patrick Newton to investigate this possibility, which he considered to be important because, in her clinical opinion “…this has the potential to be a major barrier to future rehabilitation. Importantly, Mr Lam has the necessary cognitive repertoire to benefit from formal talk-based psychological assessment and Intervention, although historically guarded and defensive mannerisms may be a barrier to engagement and would likely need to be addressed In the first instance.”[1]
[1]Paragraphs [36] and [37] of Exhibit “2”
30 Mr Newton, in his report, states the following:
“Mr Lam has reportedly sought virtually no drug counselling or education. Even when he has sought treatment, the benefits he has derived from such intervention have been transitory and superficial at best. Specifically, Mr Lam has only the most limited understanding of 'harm minimisation' and the risks of drug use for his mental and physical health. He consistently minimises these, downplays the broader significance of his drug use, and has little realistic appreciation of what might be required if he is to establish long-term abstinence from illicit drugs. The rudimentary state of Mr Lam's insight is a significant risk factor for continued drug use on his part.”
31 He goes on to state that a relapse into drug use would constitute a powerful criminogenic risk factor in your case and this would be particularly high in the period immediately following your eventual release into the community. Mr Newton shares the expressed concern of Dr Borg about the potential barriers to your rehabilitation. He concluded:
“The severity of Mr Lam's problems militates against an easy optimism in his case. Indeed, even with the provision of optimal intervention, the duration and intensity of the problems he has experienced make it clear that it is only in the longer term and with intensive intervention that he will be able to overcome them and be rehabilitated to productive life in the mainstream community.”
32 Nevertheless, Mr Newton stated that your period on remand, with stable accommodation, improved nutrition, opportunities for work and education, and containment of your substance-related problem resulting in improvements in your general health and well-being “could provide a 'window of opportunity' for [you] to institute the long-overdue change necessary in [your] life.” He considered that a period of stability in custody would need to be built upon by ongoing concerted drug treatment, participation in programs to improve your literacy and other educational and vocational skills, as well as training in general living skills and “consequential reasoning” skills. He considered that the more intervention, oversight and containment you could receive, the greater the chance that you would change your lifestyle and be able to contribute positively to the community. He considered that a relatively lengthy period of supervision might help to achieve this end, but noted that participation and treatment would need to be mandated and your risk of recidivism be contained by the imposition of ongoing oversight and conditions.[2]
[2]Paragraphs [52] to [56] of Exhibit “1”
33 It is well-established that the consequences of a dysfunctional and traumatic childhood, like yours, can lead to adverse developmental, behavioural and psychological consequences which can be long-term. Unhappily, this appears to be so in your case and in sentencing you I take that disadvantaged upbringing into account.
34 The fact that you satisfied the criteria for severe substance use disorder in relation to heroin, methamphetamine and cannabis is a relevant personal circumstance, but somewhat problematic in determining what impact it should have upon the sentencing process. Drug addiction is not necessarily a factor that calls for a lesser sentence than would otherwise be imposed.[3] However, there may be circumstances in which an offender’s drug addiction will have a particular bearing upon moral culpability, and it will usually be relevant to the question of rehabilitation. The reticence of sentencing judges to regard drug addiction as a mitigatory factor rests partly upon the notion that the decision to commence taking drugs is voluntary, and a likely consequence of that choice is the need to commit crimes to feed an addiction.[4]
[3]R v Proon [2003] SASC 88, [52] (Doyle CJ)
[4]R v Henry [1999] 46 NSWLR 346, 383 (Speigelman CJ)
35 Sometimes, courts are confronted with situations where children as young as 10 or 12 have commenced drug taking, which then becomes a significant long-term habit. In your case, the history taken by Mr Newton is that you did not commence use until you were aged 16, when you commenced smoking marijuana with your peers.[5]
[5]Paragraph 20, Exhibit “1”
36 Dr Borg took a history that you began using methamphetamine at age 16 and this was on approximately two to three days per week on average, although occasionally on four to five days per week. You last reported use prior to your most recent arrest was approximately 1 gram on each occasion that you used it. Dr Borg recorded that you began using heroin at age 18 and that your use quickly escalated within a period of months to using it on a near daily basis with an average of 1.7 grams being your average dosage. However, you did have periods of abstinence lasting up to six months before relapsing again.
37 It would thus appear that you had a problematic and serious drug history from a relatively early age, just beyond your mid teenage years, and that it has continued largely unabated until you were remanded in custody for this offending. Given the florid history of your behavioural disturbances from an early age, which appear to be linked to neglect by your parents and their very poor example to you, I consider it likely that your drug use was, at least in part, due to the developmental disadvantage you suffered through poor parenting and your unfortunate antisocial behaviour traits which have now become seriously entrenched.
38 Courts have recognised in certain circumstances that, where a drug addict commits offences in order to support his addiction, then a lesser moral culpability may attach to the crime than if the crime had been committed by a non-drug user as part of a commercial purpose related to enrichment and greed. In your case, the situation is complicated. Whilst I accept that your criminal history is indicative of a drug user or addict, there is a substantial period between 17 December 2012 and 2 February 2015 where you did not appear before a court. When I enquired of Mr Richter about this period, he stated that you were trafficking at street level during this time in order to feed your addiction. This is notwithstanding that the Community Correction Order, upon which you were placed on 17 December 2012, had specific rehabilitative conditions in relation to drug and mental health issues.
39 On 2 February 2015, you appeared in court for breach of that order and were given another opportunity to complete a Community Correction Order. Your history does not record any breach of that order, but it would seem from a later appearance on 14 August 2015, that you were given a suspended sentence of nine months’ imprisonment for other offending with a notation on the court record reflected in your criminal history that you were undertaking rehabilitation by way of a Community Correction Order.
40 It is now apparent that your engagement was of a most superficial nature and that, in the three years between your last appearance at Sunshine Magistrates’ Court on 14 August 2015 and the commission of the offences for which I must sentence you (27 September 2018), there has been no real attempt by you to engage in any rehabilitation. You have no work history and it is apparent to the court, although you are not to be sentenced for it, how you lived your life and supported yourself until police executed the search warrant on 27 September 2018.
41 Hence, whilst there might be some link between your dysfunctional upbringing and your decision to take drugs in the first place, your lack of engagement in any treatment for that addiction is clearly relevant to your prospects of rehabilitation which, on the basis of the reports of Dr Borg and Mr Newton, I regard as poor at the present time. It is trite to say that your prospects of rehabilitation and the protection of the community from the pernicious effects of illicit drugs are interlinked. Moreover, it is startingly clear that the quantity of drugs, particularly in relation to Charges 1 and 2, were very vastly in excess of what you would require to feed any personal drug habit.
42 I am conscious that you are to be sentenced on the basis that you were in possession of those drugs for the purpose of trafficking on the one day upon which police executed the search warrant. However, as Mr Richter acknowledged, there was clearly a history behind what was found on that day, as you were living there, as evidenced by your clothing hanging in wardrobes and a very impressive collection of many pairs of runners neatly lined up – as depicted in photographs in the depositional material.
43 Nevertheless, the prosecution have acknowledged that they were unable to prove, beyond reasonable doubt, that the sums of $73,750 and $1,380 were proceeds of trafficking by you. By consent, those sums of cash are to be forfeited to the Minister. Also, I note that you have signed a notice of abandonment in relation to a watch valued at over $9,000, which was located by police when they executed the search warrant.
44 Mr Lam, you should be in no doubt as to the gravity of the offending for which I must sentence you. Mr Richter correctly pointed out that sentencing is not simply a mathematical exercise correlated to the quantity of drugs comprising a charge. However, the charges are, by their nature, quantity based, and the amounts of drugs found in your possession for the purpose of sale are relevant sentencing considerations.
45 Charge 1 comprises 593.702 grams of pure heroin. A commercial quantity of heroin is 250 grams, and a large commercial quantity is 750 grams. Hence, the quantity involved in this charge, as correctly pointed out by the prosecutor, Mr Raimondo, falls into the mid to upper range of seriousness for an offence of trafficking in a commercial quantity of heroin.
46 It is agreed by the prosecution and defence that, depending upon whether this quantity of heroin had been sold in deals of 1 ounce or 1 gram, the potential street value of the drug involved in this charge ranged between approximately $126,000 and $237,000.
47 Charge 2 comprises 359.634 grams of pure methamphetamine. A commercial quantity of methamphetamine is 50 grams. Hence, you had in your possession over seven times the commercial quantity, which makes the quantity of mid-level seriousness for an offence of trafficking in a commercial quantity of methamphetamine.
48 The parties agree that, depending upon whether this methamphetamine had been sold in deals of an ounce or of 1 gram, the potential street value of it ranges from $54,000 to $125,650.[6]
[6]Exhibit “B” is an email from the prosecution setting out agreement of prosecution and defence in relation to the value of the subject drugs.
49 Charge 3 involved you possessing for the purpose of sale 17.094 grams of cocaine. This is a charge of trafficking simpliciter. A trafficable amount of cocaine is 3 grams. Hence, you had in your possession for sale over five times a trafficable amount.
50 The prosecution has conceded that this falls towards the lower end of quantities for an offence of trafficking simpliciter. It is agreed by the parties that, had this cocaine been sold in deals of 1 gram, then the potential street value was approximately $6,800.
51 It is clear that your offending involved the potential for a very significant amount of deleterious illicit drugs to find their way onto the streets of our community and feed the misery of those who use them with the attendant toll on our community, although there is no evidence as to how or when distribution of the drugs was to take place. That toll involves, as you are only too well aware, adverse effects on the physical and mental health of users, the commission of criminal offences by users and adverse consequences to people who may be the victim of such crimes, a burden on our health and hospital systems who must deal with users suffering drug overdoses or other impaired health issues, a burden on our police resources who must detect drug-related crimes and ensure that offenders are charged and brought before courts, the cost to the entire community of the very significant numbers of people who come before courts for drug-related crime and then, of course, the additional cost of housing those people in custody to serve terms of imprisonment or funding rehabilitative dispositions in the community.
52 It is well-known that illicit drugs are a pernicious influence in our society. This is a wonderful country, yet so many lives and relationships are ruined by illicit drug use. You, at age 30, are an example of a wasted life thus far. You have led a self-indulgent, feckless existence, not working and, according to Mr Newton, receiving Centrelink benefits, whilst all the time apparently being able to access accommodation, food, clothing and drugs to not only feed your habit but well in excess of that habit (with potential to do enormous harm). Your case is far-removed from the pathetic street dealer whom one often sees dividing his own pitiful purchase and mixing it with something and on-selling it in order to feed his wretched addiction.
53 The seriousness of the offending for which I must sentence you is reflected by the maximum penalties imposed for the crimes – 25 years’ imprisonment in relation to each of Charge 1 and Charge 2, and 15 years’ imprisonment in relation to Charge 3. The law obliges this Court to denounce your conduct and in sentencing you the predominant sentencing principle must be that of general deterrence. The charge of trafficking is no less serious because the drugs have not actually been distributed. It is the potential for harm that causes this to be such a grave offence.[7]
[7]DPP v Holder (a pseudonym) [2014] VSCA 61
54 Unhappily, drug trafficking is very prevalent in our society and, as I have said, is responsible for great harm. Emphasis on general deterrence means that in imposing the sentence upon you, Mr Lam, I must send out a message to other people who may be minded to possess drugs for the purpose of sale and to potentially feed the misery of those whose lives are already adversely affected by drugs or spread it to new users of drugs, that this conduct will be appropriately punished. In imposing sentences for crimes like this, it is important that the community be protected as much as possible from the potential harm caused by illicit drug use.
55 In arriving at the sentence which I intend to impose, I have taken into account your childhood of neglect and dysfunction and also your drug addiction. Further, the fact that you pleaded guilty entitles you to a discount on the sentence which otherwise would have been imposed. After being charged with the offences on 27 September 2018, there was a filing hearing, bail application, committal mention and special mention, which took place between 1 October 2018 and 28 March 2019. Initially, a committal was listed for hearing on 3 April 2019, but adjourned to 26 August 2019, until such time as DNA evidence became available. The matter resolved into pleas of guilty on 23 August 2019, three days prior to the date to which the committal had been adjourned. They are not the earliest pleas of guilty, but still are relatively early pleas, made once the rather probative DNA analysis results were made available to you. Although pleas of guilty are sometimes capable of being indicative of remorse, I find no evidence of remorse. Indeed, Mr Newton’s report indicates that you appear to have limited insight into the risks of drug use and consistently minimised those and downplayed the broader significance of your own drug use. Nevertheless, you have by your pleas of guilty facilitated the course of justice and saved the State the time and cost of a trial.
56 Contrary to paragraph 14 of the written submissions which had been filed on your behalf for the plea hearing, Mr Richter did not submit that you present as a person with good prospects of rehabilitation. He altered that submission to be contingent upon you being able to remain abstinent from the use of illicit drugs. I have already referred to the fact that adult courts in the past have afforded you an opportunity to rehabilitate yourself by orders that you undertake two Community Correction Orders and also a term of imprisonment which was wholly suspended (with the fact that you were undergoing rehabilitation pursuant to a Community Correction Order noted). It is plain from the history taken by Mr Newton that, notwithstanding those rehabilitative dispositions by courts, you have participated in minimal drug rehabilitation prior to this offending. As Mr Richter stated, you have led a life where you seem to have “drifted for a long time without ambition”. He submitted that this was related to your background of “pretty serious emotional disturbance and privation”. Unhappily, your drifting lifestyle and lack of motivation to engage in drug rehabilitation resulted in the lack of insight into the risks of drug use and what Mr Newton described as little realistic appreciation of what might be required to establish long-term abstinence from illicit drug use. This caused Mr Newton to conclude “The rudimentary state of Mr Lam’s insight is a significant risk factor for continued drug use on his part”. Although Mr Newton referred to you being in remission from a severe Substance Use Disorder in relation to heroin, amphetamine and cannabis in the controlled prison environment, he considered that your Antisocial Personality Disorder did not inspire optimism in relation to your prospects of rehabilitation. As I have said, Dr Borg also saw this as potentially a major barrier to future rehabilitation.
57 It is to your credit that whilst in custody you undertook a course on 9 January 2019 entitled “Ice and Me”, which was an education program concerning the nature and effect of Ice, coping strategies, harm minimisation and such things as relapse prevention strategies and future goals. Unfortunately, despite having done that course, when Mr Newton saw you on 24 January 2020, he was impressed by your limited understanding of “harm minimisation and risks” and your general lack of insight into your drug use. In addition, you have undertaken some courses at Kangan Institute: Preparing a Simple Budget, Using Hygienic Practices for Food Safety, Handling and Serving Cheese and Espresso Coffee, and Participating in Safe Work Practices, and another course in workplace safety arrangements.[8] For someone who effectively has no education beyond about Year-7 level, it is noteworthy that you have been prepared to engage in education whilst in custody.
[8]Certificates in relation to the courses undertaken in custody were tendered as Exhibit “4” and ”5” respectively
58 Mr Richter stated that you had been severely addicted to drugs at the time of your arrest but, after you were remanded into custody, you had withdrawn without any medical assistance and had remained drug free for the entire time you have been in custody. Two certificates which were said to be of random urine sample analysis which showed a lack of illicit drugs in your system were tendered as Exhibit “3”. These were dated 19 December 2018 and 6 September 2019. I understand the prosecutor’s expressed reservation that only two such certificates were made available to the Court, given that you have been in custody for 1 year and 7 months, it would be wrong of this Court to speculate that the absence of any other certificates disproves that you have been drug free whilst in custody. Certainly, there is no suggestion that you have been housed in management units through misbehaviour or illicit drug use. You have apparently improved your health and well-being and fitness whilst in custody and apparently have been employed as a billet, as well as undertaking the previously-mentioned courses. This is your first period in custody and, given that you appear to have never worked in any significant way for your entire prior to being remanded in custody, it is of significance that you have engaged in work and applied yourself to some courses.
59 Although I share the grave reservations expressed by Mr Newton and shared by Dr Borg about your prospects of rehabilitation, because you have a double problem of long-term drug addiction as well as antisocial personality problems, it may be that this period in custody, if you do abstain from drugs and try to improve your mental health and vocational opportunities, might help set you on the path to rehabilitation. However, it is plain that both Dr Borg and Mr Newton see your rehabilitative process as a very intensive and probably fairly lengthy one. For these reasons, I consider it appropriate to assign a slightly shorter non-parole period than I might otherwise have done. However, I am mindful that it should not be so short as to detract from the primary sentencing principle of general deterrence. I note that you have been supported in court throughout the plea hearing by your mother, a cousin and an aunt. It is good to see that you have these people who believe in you as you will need lots of help once you are released back into the community. However, if Mr Richter’s suggestion that you stepfather was really the main person involved in the trafficking operation for which you were charged is true, it would be of concern if your stepfather continued to be a significant presence in your life.
60 In structuring the sentence that I intend to impose, I am conscious of the principle of totality and the fact that although there are three distinct charges, each of the individual drugs were possessed by you for the purposes of sale on the one day on which the police executed the search warrant.
61 Charges 1 and 2, each being a charge of trafficking in a drug of dependence in a commercial quantity, are Category 2 offences pursuant to the definition in subparagraph (g) contained within s3 of the Sentencing Act. Accordingly, pursuant to s5(2H), the Court must impose a sentence of imprisonment unless circumstances detailed in subparagraphs (a), (c), (d) or (e) of that subsection have application. None of those subsections have any application and, in any event, as I have stated, there can be no doubt that the only appropriate sentence is a term of imprisonment involving a head sentence with a non-parole period.
62 As I intend to impose a sentence of imprisonment on Charge 1, that means that you fall to be sentenced as a serious drug offender in relation to Charges 2 and 3 and, pursuant to s6D(a), I must regard the protection of the community from you as the principle purpose for which those sentences are imposed. Although subparagraph (b) of s6D permits a disproportionate sentence to be imposed on those charges, it has not been submitted by the prosecution that this is appropriate. Nor do I consider it to be appropriate.
63 Pursuant to s6E of the Sentencing Act, the term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the Court, be served cumulatively on other sentences of imprisonment, even if imposed at the same time. I do propose in the interest of totality to otherwise direct, as I have already stated, this is appropriate by reason of the fact that your possession of all three drugs for the purposes of sale on each of the charges took place at the same time on the same day.
64 Would you stand up please.
65 On Charge 1, trafficking in a commercial quantity of heroin, you are convicted and sentenced to be imprisoned for 5 years’ and 3 months’ imprisonment.
66 On Charge 2, trafficking in a commercial quantity of methamphetamine, you are convicted and sentenced to be imprisoned for a period of 5 years.
67 On Charge 3, trafficking simpliciter in cocaine, you are convicted and sentenced to be imprisoned for a period of 12 months.
68 The head sentence is that of 5 years and 3 months imposed on Charge 1. I direct that 18 months of the sentence imposed on Charge 2 and 3 months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and upon each other.
69 The total effective sentence is thus 7 years’ imprisonment. I order that you serve a period of 4½ years before becoming eligible for parole.
70 I declare a period of pre-sentence detention of 518 days to be time reckoned as already served under the sentences imposed this day.
71 I direct that it be entered into the records of the Court that you have been sentenced as a serious drug offender in relation to Charges 2 and 3.
72 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 9 years with a non-parole period of 6 years and 6 months.
73 Pursuant to s 33(1) of the Confiscation Act 1997, I order that the two amounts of cash, $1,380 and $73,750 respectively, as well as a Blackberry mobile phone be forfeited to the Minister.
74 I further order that, pursuant to s78(1) of the Confiscation Act, the property referred to in the Schedule be forfeited to the State, and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
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