Director of Public Prosecutions v Lam

[2017] VCC 474

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01475

DIRECTOR OF PUBLIC PROSECUTIONS

v

NGHIA LAM

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2016; 30 March 2017
DATE OF SENTENCE:	12 April 2017
CASE MAY BE CITED AS:	DPP v Lam
MEDIUM NEUTRAL CITATION:	[2017] VCC 474

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Trafficking in a drug of dependence; Manufacturing a firearm without a licence; disposing of a trafficable quantity of an unregistered firearm without a dealer's licence; possessing cartridge ammunition without a licence; possessing a prohibited weapon without an exemption

Legislation Cited:  Disability Act 2006 (Vic); Sentencing (Community Corrections Order) and other Acts Amendment Act 2016 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269; Vergados v The Queen [2011] VSCA 438; Carroll v The Queen [2011] VSCA 150;

R v McIntosh [2008] VSCA 242; R v Wise [2007] VSCA 266; R v Mirrim Bux (2002) 132 A Crim R 395; DPP v O’Neill [2015] VSCA 325.

Sentence:12 months' imprisonment with a two-year community corrections order.  Fines totalling $1500.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Churchill	Office of Public Prosecutions
For the Accused	Ms S. Parsons	Doogue O’Brien George

HER HONOUR: 

1Nghia Lam, you have pleaded guilty to two charges of trafficking in a drug of dependence, for which the maximum penalty is 15 years' imprisonment, two charges of manufacturing a firearm without a licence, for which the maximum penalty is ten years' imprisonment or 1200 penalty units, and one charge of disposing of a trafficable quantity of an unregistered firearm without a dealer's licence, for which the maximum penalty is ten years' imprisonment or 1200 penalty units.

2You have also consented to the uplifting of related summary offences and pleaded guilty to three charges, Charges 18, 29 and 35, of possessing cartridge ammunition without a licence, for which the maximum penalty is 40 penalty units, and one charge, Charge 36, of possessing a prohibited weapon without an exemption, for which the maximum penalty is two years' imprisonment or 240 penalty units.

3The circumstances of your offending are set out in the prosecution opening which was tendered at the plea hearing and I sentence you on the basis of the facts set out in that document which may be briefly summarised as follows.

4During 2015 and 2016, Victoria Police conducted a number of operations targeting alleged trafficking of heroin and methamphetamine by you.  In mid-December 2015 you were observed by Mark Johnson, who was living in Werribee at the same address as you, with your partner's mother, making items in the backyard of the property.  A few days later, you showed him a pen pistol.

5I turn to the trafficking charges, Charges 1 and 2.  There were three transactions in relation to Charge 1.  Each transaction consists of your selling heroin to a police covert operative, which I will refer to as a PCO.  The third transaction also involved the selling of methylamphetamine, Charge 2, to the PCO.  On the first occasion on 13 January 2016, the PCO attended your home which was then at Altona North, and asked to buy heroin from you.  You drove to another address together where you obtained a package.  The PCO gave you $200 and you gave the PCO the package. 

6You then went to your home with the PCO, weighed the package, and gave the PCO 0.5 grams of heroin in a snap lock bag.  The heroin was analysed and confirmed to be heroin of 14 per cent purity.

7On the second occasion on 16 January 2016, a PCO came to your home and you gave her a silver foil containing 0.5 grams of heroin in return for $200.  The heroin was later analysed and confirmed to have a purity of 13 per cent.

8On the third occasion on 25 January 2016, you and the PCO went to a location to wait for a third person.  While waiting, you handed the PCO a small snap lock bag containing less than half a gram of methylamphetamine in exchange for $150.  A short time later you left the car and met another person, then drove to your home with the PCO.  You went inside, then returned with a small foil package containing 3.5 grams of heroin which you gave to the PCO in exchange for $450.

9The drugs were later analysed and found to be methylamphetamine with 87 per cent purity and heroin of 8 per cent purity. 

10On a further occasion on 4 February 2016, you met the PCO at a location.  She gave you $950 cash and you gave her a snap lock bag containing methylamphetamine which was later analysed and confirmed to be 2.5 grams at a purity of 86 per cent. This transaction, in addition to the methylamphetamine sold to the PCO on 25 January 2016, forms Charge 2.  Each of these meetings was recorded by the PCO.

11I turn to the firearms charges.  During the conversation with the PCO on 13 January 2016, you mentioned your involvement in the manufacture and trafficking of pen pistols of various calibre which you sold for $200 each and offered to send the PCO the photographs of them if she was interested.  The next day you sent a text message to the PCO asking her if you could send her some pictures of pen pistols.

12On 16 January 2016, while you were providing the PCO with heroin, you sent her three photographs by text message.  Two of the photographs comprised photographs of different pen pistols and the third photograph was of ammunition.  You told the PCO that you had manufactured them and offered to sell them to her.  As offering for sale falls within the definition of disposal.  This conduct relating to two pistols is part of Charge 5.  The two pen pistols and ammunition photographs have not been recovered.

13On 16 January 2016, you were living in a tent with your partner, her mother, and Mark Johnson in a caravan park.  Mr Johnson saw you using a Dremel drill in the tent one night.  On 17 January 2016, you sent the PCO some text messages asking whether she had seen the photographs, and on the following day you sent her a text stating that you had just finished the 9 millimetre.

14On 23 January 2016, you and the others moved from a tent into a cabin at the caravan park.  You set up a workshop area inside the front part of the caravan where you placed the Dremel drill and drill bits, bits of piping, spray cans and hand tools.

15On 25 January 2016, while you were driving the PCO to purchase heroin, you produced a pen pistol without a firing pin and showed her where the ammunition and firing pin went into the pistol, saying it would be available the next day.  You stated that the pen pistols cost around $100 to make and you sold them for $200.

16On 26 January 2016, you sent the PCO a text message containing a photograph of a homemade pen pistol, stating that you had made it.  A few hours later the PCO came to your house and you produced that pistol, showing her how to operate it by pulling it apart and pointing to the firing pin and other components.  You began to place a round in the chamber but were stopped by the PCO, who gave you $250 and asked if you could supply more of them.  You said that you could.

17You gave the PCO a container with three rounds of 9 mm ammunition inside.  This transaction constitutes the third disposal relied upon to make up the charge of trafficking, Charge 5.  It is also the subject matter of Charge 3 and the related summary offence, Charge 18.  The pen pistol you sold that day was examined later and found to be capable, with slight adjustments, of firing ammunition. 

18On 28 January 2016, the PCO deposited $200 into your girlfriend's bank account as prepayment for the two pen pistols.  You told the PCO that you would use the money to buy the parts needed to make the pistols.  Over the next two weeks you sent more text messages to the PCO about the pistols, met her to discuss them, and sent her a picture of an unfinished pen pistol with the message stating it would be finished soon.

19On 26 February 2016, you spoke to the PCO and asked her to come to your address.  She did so and you showed her two pen pistols, a .22 pen pistol and a 9 mm pen pistol.  You also gave her one round of 9 mm ammunition.  You demonstrated how the .22 pen pistol operated.  The PCO gave you the remaining $200 she owed you.  The manufacture of these two pen pistols is the subject of Charge 4.  The disposal by sale of these two pistols completes the five firearms disposed of for the purpose of making up the trafficable quantity alleged in Charge 5.

20The possession of the ammunition is the subject of related Summary Charge 29.  When later examined, the 9 mm pen pistol was found to be capable of firing and the .22 pen pistol would have been capable of firing after slight adjustments.

21On 22 March 2016, Victoria Police executed search warrants at your home at Altona North and at your previous address in Williamstown.  The search of your home revealed two rounds of ammunition, which is the subject of related summary offence Charge 35, possess cartridge and ammunition without a licence, and a large dagger which is the subject of related summary offence Charge 36, possess a prohibited weapon without an exemption.  A search of your previous address revealed a number of items associated with the manufacture of pen pistols. 

22On 24 March, the police attended at the home of Mark Johnson.  He provided them with a box of your tools that he had taken from your place in Williamstown.  The box of tools included items used in the manufacture of firearms.  On 9 April 2016, police attended the caravan park where you used to live and spoke to one of your associates, Christian Fothergill, who provided them with two drills used in the manufacture of firearms.

23You were arrested on 22 March 2016 and have been remanded in custody since that date.  The pre-sentence detention not including today is 386 days.  According to your counsel, all of that time has been at the Melbourne Remand Centre.  Your instructions are that you spent the first month in 23-hour lockdown and since then have only had four hours per day out of your cell.  Your matter resolved to a plea of guilty at the committal mention stage.

24The prosecution sought disposal and forfeiture orders and you have consented to those orders being made.

25You have a number of prior convictions which you admitted.  As an adult, your convictions go back to 1997 and include dishonesty offences, namely burglary, aggravated burglary, shop steal, obtaining property by deception, dealing with property suspected of being the proceeds of crime, possession and/or use of amphetamine, methylamphetamine and heroin in 2003, 2007, 2013, 2014 and 2015, trafficking methylamphetamine and heroin in 2007, 2008, 2009 and 2010, and numerous charges of possessing and/or using a controlled weapon without excuse, 2007, 2008, 2010, 2013 and 2014.

26You have contravened community-based dispositions in 1996 and 2015, intensive correction orders in 2008, 2009 and 2010, and suspended terms of imprisonment in 2010, 2011 and 2014.  You were sentenced to terms of imprisonment in 2013 and 2014.

27Your counsel relied on a psychological assessment of Dr Aaron Cunningham dated 4 November 2016 which contained a summary of your personal circumstances.  You are 37 years old and were born in Vietnam.  When you were two years old your father came to work in Australia and you and your mother lived with his family.  When your father sponsored you and your mother to come to Australia in 1988, he had formed a new relationship.  You and your mother lived with him, his second wife and two children.  Then your parents had a further child.  This caused tension in the family.

28You, your mother and younger sister then lived together in Yarraville.  You left school during Year 11 to make money to support your family and were dealing drugs for this purpose.  You were shot through the neck at the age of 16.  You worked in a sheet metal factory for three years from 2000.  You then worked in a lighting business but left that job after suffering burns in a house fire in 2002.  You had a number of skin grafts and suffered pain for several years after that.

29You lived with your partner, Tien Bui, with whom you had three children, now aged 19, ten and eight.  Ms Bui became a drug addict and developed mental health problems.  You separated about five years ago.  Your children live with your mother.  You were then in another relationship for the past four years and abused drugs with that partner.  You started abusing heroin at the age of 15 and methylamphetamine from the age of 25.  You then used both drugs together.  A friend taught you how to make firearms and you were hoping to make money to avoid selling drugs.  At the time of your offending in this matter you were supporting your own drug habit as well as that of your partner,
Ms Clegg.  You had been evicted from your accommodation in January 2016 after failing to pay rent.  You and Ms Clegg moved into a tent in the caravan park and then into a cabin at that park. 

30You told Dr Cunningham that you wanted to stop using drugs and not expose your children to them.  Dr Cunningham reported that you were depressed in custody but were hopeful for the future.  He concluded that you suffered some trauma due to the house fire but are not suffering from a mental illness.  He says your full IQ is 65, within a range of 62-70, in the bottom
1 per cent of your age peers.  He concluded that you presented cognitive functioning in the extremely low range and noted, "On the basis of this test score, Mr Lam would likely experience increased difficulty in sourcing and maintaining employment.  He would likely be more reliant on the support of others and more susceptible to negative influence.  His intellectual impairment likely contributed to his initial vulnerability with negative peers in Yarraville."

31He thought that you would benefit from assessment by Disability Services to determine whether you are eligible for case management.  He noted that there are some protective factors: you want to stop using drugs as you have the support of your mother and children; they visit you in gaol and you will live with them upon your release.  He thought that you would benefit from drug and alcohol counselling to support your abstinence in the future, maintaining stable accommodation with your mother and re-engaging in the workforce.  He felt that engagement with ongoing drug and alcohol counselling, as well as stability through employment and accommodation, will reduce your risk of offending and positively permit rehabilitation.

32The plea hearing was adjourned part-heard on 9 November 2016 so that you could be assessed for suitability for a community corrections order and/or a Justice Plan.  A pre-sentence report dated 22 December 2016 was provided.  The authors stated that you told them that the breaches of community-based dispositions occurred because you lapsed into drug use.  You managed one period of abstinence for about six months some five years ago when clean screenings were a precondition of your having contact with your children.  You stated that at the time of your offending you and your partner were taking heroin and ice daily and that you made the pen pistols for sale in order to support yourself and your partner.

33You and your partner had started seeing a psychiatrist two months prior to your arrest and were placed on a methadone program and stopped using drugs.  You have produced negative drug screens while in custody.  You are no longer in a relationship with Ms Clegg and have no intention of contacting her in the future.  You are receiving medication for depression while in prison.  Your general practitioner diagnosed you with an intellectual disability about ten years ago.

34The authors noted your willingness to engage in a community corrections order and your identification of drug usage as a factor in your offending, but also pointed to the numerous times you have breached community-based dispositions.  They assessed you as having a high risk of general reoffending, given that you are aware you will need support to stay clear of drugs, have had no real education since 2004, and cannot point to any positive peer influences apart from people you are currently in custody with.

35Given your history of contravening community-based orders and the fact that you are currently in contravention of a community corrections order, the authors assessed you as unsuitable for a further community corrections order.  On a later date of 16 March 2017, Maria Peterson, Manager, Disability Client Services, Department of Human Resources, reported that you had been assessed as not meeting the criteria for intellectual disability as defined in the Disability Act 2006 (Vic) and are thereby ineligible for a Justice Plan.

36Your counsel made a number of submissions in mitigation which may be summarised as follows.  First, your circumstances at the time of the offending were very challenging.  You were heavily addicted to heroin and methylamphetamine, your Newstart allowance was insufficient to support your drug use, you had been evicted from your rental accommodation in January 2016 after failing to pay rent, and you were living in a tent and then a cabin at a caravan park.

37Second, you have a very low IQ of 65 and this intellectual deficit was apparently identified two years ago by a general practitioner and for the purposes of the plea confirmed by the report of Dr Cunningham to which I have already referred above.  Your low level of intellectual functioning reduces your moral culpability in that you think on a more immediate level, unless able to consider the consequences of your conduct, are more vulnerable to suggestion and encouragement and less able to resist overtures and offers of cash by the undercover police.

38Moreover, your low intellectual functioning contributed to your dire personal circumstances at the time.  For these reasons it was submitted all six limbs of Verdins[1] apply and there should be significant moderation of the sentence imposed. 

[1]R v Verdins (2007) 16 VR 269 (“Verdins”)

39Third, your sentence should be moderated because of the entrapment by undercover police. 

40Fourth, the amounts trafficked by you were small.  Only one of the transactions involved an amount greater than the trafficable threshold. Each of the transactions after the first one was instigated by the police covert operative and each time you had to take the police covert operative to a third party to obtain the drugs.

41At the time of the offending you were being investigated for suspected drug trafficking and not the manufacture of firearms, and you produced the pistols at the instigation of the PCO when money was offered to you.  Your operation was unsophisticated and two of the three pen pistols you sold required adjustment in order to be capable of firing ammunition.

42Fifth, in spite of your extensive criminal record and frequent breaches of community dispositions, these dispositions have only included unpaid community work and have not provided you with the intensive support you need, particularly ongoing drug and alcohol counselling.

43You have an offer of stable accommodation with your mother, are prepared to comply with an abstinence condition, no longer want to use drugs, and have provided four clear urine certificates and are therefore in a much better position to continue your rehabilitation.

44Finally, you pleaded guilty on the day of the committal hearing before any witnesses were called to give evidence. 

45You have spent 386 days on remand at the Melbourne Remand Centre with only four hours per day outside your cell and have only been able to complete one course.  Your last community-based order was in 2009 and you have had no rehabilitation support in place since that time.  In all the circumstances it was submitted that a sentence of imprisonment of 12 months, plus a community corrections order, was warranted.

46The prosecution concedes that you have a very low IQ; however, in the light of the Department of Health and Human Services report, its conclusion that you do not meet the definition of intellectual disability in s.3 of the Disability Act 2006, it says that none of the Verdins principles are enlightened because it is not established on the balance of probabilities that you suffer intellectual disability or other mental impairment, and in any event your level of cognitive function is not shown to have affected your functioning in the context of these particular offences.

47In this regard, the prosecution points to your ability to maintain employment after leaving school and to the suggestion in Dr Cunningham's report that it was your drug habit which led you to manufacture the firearms for money.  The prosecution submits that it has not been shown that your condition mitigates the seriousness of your conduct.  However, the prosecution concedes that your low level of cognitive functioning remains relevant in a general way to an assessment of your circumstances in fixing an appropriate sentence.

48I note that by ss.12 and 17 of the Sentencing (Community Corrections Order) and other Acts Amendment Act 2016 which came into force on 20 March 2017, the court is now restricted in all cases to imposing combined sentences where the term of imprisonment is 12 months or less.  The prosecution notes that you have been in custody for 386 days apart from today, slightly more than a year, and says that time served is insufficient to meet the relevant sentencing purposes.  If that submission is accepted then a combined sentence is not available.

49The basic purposes for which a court may impose sentence are denunciation, punishment, deterrence, both specific and general, protection of the community, and rehabilitation.  In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

50I accept the matters put on your behalf by your counsel as summarised above in paragraphs 36 to 45 and will not repeat them.  I reject the prosecution's contention that Verdins principles are not enlivened in your case.  The Department of Human Services report does nothing more than indicate that you do not meet the criteria necessary to qualify for a Justice Plan.  

51On the authorities, diagnostic labels of conditions are not critical.  What matters is what the expert evidence shows about the mental impairment.[2]  Also, on the authorities[3] an offender's low cognitive ability may enliven Verdins and moderate general and specific deterrence.  In this case the conclusion of Dr Cunningham that you have an IQ of 65 constitutes the evidentiary basis for moderating specific and general deterrence.[4]

[2]Carroll v The Queen [2011] VSCA 150, [19]-[20], Maxwell P.

[3]Vergados v the Queen [2011] VSCA 438; R v McIntosh [2008] VSCA 242, R v Wise [2007] VSCA 266 and R v Mirrim Bux (2002) 132 A Crim R 395.

[4]DPP v O’Neill [2015] VSCA 325, [59].

52As Warren CJ said in Vergados v The Queen,[5]

"It is not difficult to identify a causal relationship between an offender's borderline intellectual disability and his decision to abuse drugs and then offend, because the volition and self-control present in a person of ordinary intelligence are lacking.  These factors combined with an offender's personal circumstances mean it is necessary to moderate the offender's sentence to allow for a reduced need for general deterrence.  Insofar as the offender suffers from a permanent impairment in his ability to reason consequentially, function as a member of the community and exercise appropriate judgment, which in turn led him to forming and being susceptible to negative peer influence, the capacity of punishment to operate as a form of specific deterrence was also reduced."

[5] [2011] VSCA 438, [35].

53I consider in your case that your moral culpability is reduced by your low intellectual functioning.  Your low intellectual functioning contributed to your descent into drug abuse and offending behaviour during your life, and in particular to this offending.  More specifically, it also contributed to your vulnerability to suggestion and overtures by others, in this case by undercover police operatives.  It was those overtures and your drug addiction and precarious personal circumstances which contributed significantly to this offending.

54I take into account that the manufacture and sale of pen pistols is a serious matter and that generally persons engaging in this conduct must realise that significant punishment will follow.

55In relation to the drug trafficking offences, I note that while the amounts trafficked were small and you were operating at street level, you have prior convictions for trafficking the same drugs.  For this reason, I consider it necessary to impose a term of imprisonment on the trafficking charges.  However, balanced against the need for denunciation and punishment there is the community interest in keeping you drug-free within the community so that you can stabilise your personal and financial position, play a role in your children's development, and hopefully return to employment.  I consider that the relevant sentencing considerations militate in favour of a term of imprisonment of one year, combined with a community corrections order which contains a drug counselling and testing condition.

56On Charge 1 you are convicted and sentenced to three months' imprisonment.  On Charge 2 you are convicted and sentenced to three months' imprisonment.  On Charge 3 you are convicted and sentenced to three months' imprisonment. On Charge 4 you are convicted and sentenced to three months' imprisonment.  On Charge 5 you are convicted and sentenced to six months' imprisonment and a two-year community corrections order with conditions that you undergo drug assessment and treatment, including testing for drug use and dependency.

57The sentence on Charge 5 is the base sentence. The sentence on Charges 3 and 4 are to be served concurrently with the sentence on Charge 5.  The sentence on Charge 1 is to be served cumulatively on the sentence imposed on Charge 5.  The sentence on Charge 2 is to be served cumulatively on the sentence imposed on Charge 5.

58On the three uplifted summary charges of possessing cartridge ammunition without a licence, I convict you and impose an aggregate penalty of a $1000 fine.  On the uplifted summary charge of possessing a prohibited weapon without exemption, I convict you and impose a penalty of a $500 fine.

59The total effective sentence is one of 12 months' imprisonment with a two-year community corrections order to commence upon your release date.  On the uplifted summary charges there are fines totalling $1500.  I order that 386 days of pre-sentence detention be reckoned as time served. 

60I indicate pursuant to s.6AAA of the Sentencing Act 1991 (Vic) that but for your plea of guilty I would have imposed an effective sentence upon you of two years' imprisonment with a non-parole period of one year.

61In relation to the conditions I specifically imposed, you must also abide by the terms that apply to all community corrections orders.  These are that you must not commit any other offences during the period of the order being in force, which is two years from today, any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment.  You must report to and receive visits from the community corrections officer.  You must report to the community corrections centre at Werribee within two clear working days, which will be 18 April 2017.  Also, you must not leave Victoria without first getting permission from the community corrections officer and you must inform the community corrections office of any change of address where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of community corrections officers.

62Ms Parsons, did you want to approach your client and make sure he has understood the CCO terms.

63MS PARSONS:  Thank you, Your Honour, yes.

64HER HONOUR:  Just go through those with him and then I will ask him whether he understands them, et cetera.

65MS PARSONS:  Thank you, Your Honour. 

66HER HONOUR:  Do you understand the conditions I have imposed and the general terms that apply, Mr Lam?

67OFFENDER:  Yes, Your Honour.

68HER HONOUR:  Before you consent to the making of such an order you must understand that contravention of any condition attached to the community corrections order, except for a contravention directed by the Secretary, is itself an offence punishable by three months' imprisonment.  So if you breach the community corrections order you may face a term of imprisonment of three months.  Do you understand that?

69OFFENDER:  Yes, Your Honour.

70HER HONOUR:  And also, if you breach the community corrections order, you may be brought back here again and face resentencing on the charges that I am dealing with today.  Do you understand that?

71OFFENDER:  Yes, Your Honour.

72HIS HONOUR:  Do you still consent to the imposition of a community corrections order?

73OFFENDER:  Yes, Your Honour.

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