Director of Public Prosecutions v Lam
[2016] VCC 273
•17 March 2016
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-01737
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINH LAM |
---
| JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 17 March 2016 |
| CASE MAY BE CITED AS: | DPP v Lam |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 273 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Perry | Office of Public Prosecutions |
| For the Accused | Ms J. Valos | Valos Black and Associates |
HIS HONOUR:
1Minh Quang Lam, you have pleaded to trafficking in a drug of dependence and possessing a drug of dependence. The trafficking took place between 13 November 2013 and 11 September 2014 and concerned methyl amphetamine. Possession took place on 11 September 2014 and included MDMA, cannabis, and GHB as well as methyl amphetamine.
2A comprehensive and detailed summary of the case against you was tendered as Exhibit A. It will be retained in the courts records.
3You waived the committal proceedings and entered a plea at the earliest opportunity and as a result you will be accorded a sentencing discount by law.
4For purposes of this sentence the following summary will suffice. You are a close associate of co-accused Fogarty and her supplier. You are considered a main supplier to Fogarty and your offending is regarded by the prosecution at the higher end of offending. This is not disputed by you as on the available evidence.
5I will just stop there. I think that that may have been an expression in the summary which named Mr Lam as a main supplier to Fogarty. I think it is the other way around. Although on some instances there was supply by Lam to Fogarty the majority of the supply flowed from Fogarty to Lam. No? It is the other way? Yes? Well then the summary is right and I will proceed on that basis that you are considered a main supplier to Fogarty and your offending is regarded by the prosecution at the higher end of offending.
6MR. PERRY: Thank you, Your Honour.
7HIS HONOUR: I am sorry. There was some confusion about that in my mind in terms of the summary, Mr Perry, but I have made that clear. In any event this is not disputed by you on the available evidence and your relationship with her spanned a number of years.
8The average price of the ounce quantity supplied by you up until your arrest was about $8,000 per ounce. You were sometimes paid for drugs supplied by you through deposits made via a TAB wagering account, effectively laundering those payments. Between November 2013 and April 2014 over $74,000 was deposited through one TAB account alone.
9You also received cash payments and provided drugs on credit to others. When discussing ice, cannabis, and ecstasy you and Fogarty used code language. You used a number of couriers to deliver drugs to Fogarty and a number of others to enforce drug debts owed to her.
10You kept ledgers in which you annotated in the details your operations and these annotations amount to over $900,000 worth of drugs.
11Violence involving you both by way of the infliction and the receipt of injury from associates occurs regularly throughout the material.
12You were found in possession of weapons on a number of occasions.
13The summary outlines and details many events involving you. Some of those include frequent arrangements to supply Fogarty and payment arrangements. After your arrest on 10 January 2014 whilst on remand Fogarty attended to your personal affairs. Upon your release on 21 January 2014 you arranged to meet with her and continue trafficking drugs within a few days.
14If Fogarty was threatened she would inform you. On an occasion she advised you she could provide you with a firearm. She would discuss with you the recovery of debts and you would discuss the value of property such as motor vehicles and placing them in your name from time to time.
15On one occasion you tied up and tortured a person while she was listening on the phone having being called by you for this purpose. On another occasion you told Fogarty that members of a motorcycle group were looking for her residential address. They were armed and seeking to recover a $40,000 drug debt.
16In July 2014 you informed her you had 100 pounds of cannabis sourced from Queensland. Your own ledger contained sales of up to $38,000. After the arrests of a number of suppliers in September 2014 Fogarty contacted you to assist her and you agreed to supply her with half an ounce on credit in return for a car valued at about $14,000. She declined the offer.
17Upon your arrest apart from various ledgers which outlined many transactions police located drug trafficking accoutrements and various drugs, the subject of Count 2.
18Those who traffic drugs peddle human misery and attract users into a vortex of addiction and prey on them for their purposes of greed and their own addictions. Indirectly, trafficking makes victims of not just the users but their families and the communities.
19The criminality, the availability of weapons, the use of standover tactics, and violence all bespeak of serious offending. The duration of the offending is a relevant consideration. The scale of drugs traded, their value, and frequency of trades indicates a grave example of the offence. There is a level of deliberateness, planning, and business-like indicators.
20The scale of the harm to victims and the impact on the community is also relevant. The impact on a small rural community like Wangaratta and surrounding areas is significant. The harm done to victims and the consequences to persons addicted, their health, the consequences on family, social structures, criminality, the fabric of the community must all be considered when the court looks at the intent of the traffic and its gravity.
21The community looks to the court to denounce such conduct by clear action to protect it by the imposition of appropriate punishment which will deter generally and specifically those who would be minded to engage in it. It is particularly incumbent upon the courts to so act when those charged before it are those who are the apex or close to the apex of criminal activity and enterprise who pursue this conduct with single minded determination over long periods with a sure methodology and an intend as opposed to end users and street addicts.
22Where people like you are highly placed in an organisation it is obvious that you should expect heavy punishment. Substantial retribution must be exacted from those who deliberately, cynically, and greedily seek to profit from such conduct.
23You have a prior criminal record which begins in 2002 with possession of ecstasy for which you were fined. In 2005 you were in possession of heroin, ecstasy, and cannabis for which your gaol sentence was suspended. In 2008 in this court you were sentenced to 36 months with a 15 month non-parole period with a $50,000 pecuniary penalty for trafficking in a drug of dependence in a commercial quantity and one charge of trafficking simpliciter.
24In 2011 you were again convicted for possession of amphetamines, counterfeit money, possession of a weapon, possession of cannabis, ice, prescription drugs, and ecstasy.
25I should make clear that the summary encompasses a number of criminal acts which are not covered by the trafficking count. These are included in the summary and give a complete picture of the scale and organisation of the trafficking, your role, and the overall gravity of the offending.
26It is for the trafficking alone as well as the possession for which I am sentencing you.
27Your priors are relevant to your prospects of rehabilitation, which I will address in a moment, but together with some aspects of the summary go to demonstrate that court sanctions appear to have failed to have a deterrent effect on you highlighting the need for specific deterrent and punishment in your case.
28I take into account your personal circumstances. You were born in 1965 so you are 51 years old. You came to Australia from Vietnam in 1997 with an Australian teacher you met in Ho Chi Minh City with whom you had lived for two years.
29The death in Vietnam of your grandfather in 1997 and your inability to attend his funeral appears to have triggered a reckless response from you. However, you obtained employment at St Vincent's Hospital in food preparation. You then got involved in the party scene where drugs were freely available and you began to use them, particularly ecstasy.
30In 2001 this drug use led to your relationship ending. You were unemployed for 18 months but got work in a restaurant. In 2002 you began smoking heroin. You started to traffic to support your habit and you sent some of the money to America to your father who had cancer.
31In 2005 you started to use ice. In 2008 you were sentenced in this court as I have indicated. In 2009 you were released from custody but you returned to drug use.
32November 2013 marks the beginning of a trafficking period covered by the indictment and you were arrested and did not apply for bail and you have gone on to serve over 530 days in reclusion by way of pre-sentence detention and those will be noted by the court. The precise number I will note and ascertain in a moment.
33There is no evidence of enrichment from your activities during the eight or so months and particularly the period in which the main transactions took place, a period of some four months.
34At the time of arrest you were using half a gram of ice per day at a cost of between $200 and $250 per day. In prison you worked as a kitchen billet seven days a week.
35In my view, given your history, your prospects of rehabilitation should be considered to be guarded.
36A psychological report from Jeffrey Cummins an experienced forensic, clinical, and consulting psychologist was tendered. It was dated November 2007 for purposes of the trafficking charge in your prior criminal history which related to offences committed in 2005. I take into account the detailed background which is set out in that report. You did not present with a personality and are of average intelligence. He confirms much of the material I have recited already.
37I accept that because you do not have family in Australia your time in gaol will be more isolated than usual. Your ex-partner has visited you on a couple of occasions but those have been limited.
38In my view, your offending lies at the high level just below Fogarty and not at a middle range as it was submitted. Your involvement was for personal use which diminishes your moral culpability somewhat but when confronted with your supply for profit without doubt your moral culpability remains in my view high. Can you please stand please, Mr Lam?
39On Count 1 of trafficking you are convicted and sentenced to eight years' imprisonment.
40On Count 2 of possession you are convicted and sentenced to two months' imprisonment.
41I order that you serve a non-parole period of five and half years' before being eligible for parole. Clearly there are considerations of totality and parity to be take into account. Fogarty received a much reduced sentence due to her valuable assistance. In my view, the sentences reflect adequately your role just below her in the enterprise.
42But for your plea I would have sentenced you to ten years' imprisonment with a non-parole period of seven and a half years'.
43I have signed orders for forfeiture and disposal. I order that under s.464ZF of the Crimes Act a biological sample be taken from you. My notation says that the pre-sentence days are 553, is that correct, or is there an adjustment to be made?
44MR PERRY: That is the figure I've been provided with, Your Honour.
45HIS HONOUR: Yes, well I will note that record of that in the record of the court as 553 days by way of pre-sentence detention and I'll hand down the forfeiture and disposal orders to the Crown instructor in court.
46MR PERRY: Thank you, Your Honour. I believe the accused has already given a sample of DNA.
47HIS HONOUR: A biological sample? Yes, I understand that's the case so I don't need to - that order is superfluous.
48MR PERRY: Thank you, Your Honour.
49HIS HONOUR: Yes. Have you been able to translate that for Mr Lam if required, Mr Interpreter?
50INTERPRETER: Yes, I did, Your Honour. Yes.
51HIS HONOUR: Yes, thank you. Are there any other matters, Ms Valos, or Mr Perry?
52MR PERRY: Not arising in Mr Lam's matter, Your Honour.
53MS VALOS: No, Your Honour.
54HIS HONOUR: Yes.
55(At this point the court discussed other matters.)
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