Director of Public Prosecutions v Le
[2019] VCC 178
•22 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00699
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HANH THI HONG LE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2018, 21 December 2018 and 22 February 2018 | |
DATE OF SENTENCE: | 22 February 2019 | |
CASE MAY BE CITED AS: | DPP v Le | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 178 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – trafficking in a commercial quantity of methylamphetamine and heroin and negligently deal with proceeds of crime – immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Stougiannos | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms L Ristivojevic | TT Law Group |
HER HONOUR:
1
Hanh Thi Hong Le, you have pleaded guilty to criminal charges that on
8 September 2017 you trafficked in a commercial quantity of methylamphetamine (Charge 1) and a commercial quantity of heroin (Charge 2), and negligently dealt with proceeds of crime ($46,495 cash) (Charge 3), and negligently dealt with proceeds of crime (14 designer handbags) (Charge 4).
2 On Friday, 8 September 2017 at about 6.00pm you were arrested at your home in Thomastown following the execution of a search warrant issued under s81(1) of the Drugs, Poisons and Controlled Substances Act 1991.
3 Police located and seized numerous items including a Louis Vuitton handbag in the master bedroom which contained AUD$12,545 in cash that was believed to be the proceeds of crime and that is part of Charge 3.
4 In a false ceiling cavity located in the laundry of the premises, police found four bags and they contained the following:
Bag 1: Six deal bags of what appeared to be heroin.
Bag 2:Five small deal bags containing of what appeared to be methylamphetamines, two large parcels of what appeared to be methylamphetamine wrapped in brown paper and sealed with duct tape, 36 Suboxone films and two empty deal bags.
Bag 3:Five clear bags of what appeared to be heroin and two clear large deal bags of what appeared to be heroin.
Bag 4:One small deal bag of what appeared to be heroin, one bag or three blocks of what appeared to be heroin, one large bag with several small deal bags of what appeared to be heroin, and a set of digital scales.
They also found AUD$33,950 concealed in a rice container that was located in the kitchen area and that is part of Charge 3. In addition, they found 14 designer handbags (Charge 4) that were believed to be the proceeds of crime.
5 Analysis was undertaken of the various substances that were seized.
6 Graham Wilson, who is a scientist at the Victoria Police Forensic Services Centre, found them to be:
(a)425.2 grams of combined substances, including methylamphetamine of purity between 76-86 per cent (Charge 1); and
(b)701.7 grams of combined substances including heroin of purity between 14-77 per cent (Charge 2).
7
The relevant Schedule provided in the relevant Drugs, Poisons and Controlled Substances Act 1991[1] defines a commercial quantity of methylamphetamine as
100 grams pure, or Column 2A as 500 grams of a mixture.
[1] Column 2 of Part 3 of Schedule 11.
8 The relevant Schedule of the Drugs, Poisons and Controlled Substances Act 1991[2] defines a commercial quantity of heroin as 250 grams pure, or 500 grams of a mixture.
[2] Column 12 of Part 3 of Schedule 11.
9 The drugs have an approximate street value of $400,000.
10 It is the prosecution case that you possessed the drugs for the purpose of sale.
11 You were not interviewed by police as there was no Vietnamese interpreter available.
12 You told investigators that the drugs seized had not been paid for and that you had a gambling debt of $200,000.
13 Later that same evening, Thanh Tran, described as your former partner now friend, was arrested when he arrived at the premises. His matter is the subject of a contested trial that is yet to proceed.
14 You admitted your prior criminal history. There are findings of guilt in respect to deal property suspected of being the proceeds of crime in 2008 and 2009, and traffic heroin and possess heroin in 2009.
15 On 9 April 2009, in respect to four charges of traffic heroin and one of possess heroin, and two charges of deal property suspected of being proceeds of crime, you were sentenced to an aggregate term of imprisonment of four months that was wholly suspended with an operational period of 12 months.
16 On 22 September 2008, in respect to three charges of deal property suspected of being proceeds of crime, on each charge, without conviction, you were placed on an adjourned undertaking of one year and ordered to pay $500 into the Court Fund.
17 I turn now to the circumstances of this offending and I note that Part 2A of the Sentencing Act 1991 has application, as the current offences of trafficking in a commercial quantity of a drug of dependence (namely Charges 1 and 2) fall within clause 4(a)(ii) of Schedule 1.
18 You therefore stand to be sentenced as serious drug offender, as you have previously been convicted of a drug offence for which you have been sentenced to a term of imprisonment (albeit wholly suspended)[3].
[3] Section 6B(2) of the Sentencing Act 1991.
19 Therefore, the protection of the community from you is the primary sentencing purpose, and I may impose a longer sentence than would otherwise be imposed to achieve that sentencing purpose[4].
[4] Section 6E of the Sentencing Act 1991.
20 Every 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 any uncompleted sentence or sentences of imprisonment imposed, whether before or at the same time as that term[5].
[5] Section 6E of the Sentencing Act 1991.
21 In the circumstances of this case, I propose to direct otherwise.
22 Whenever a court sentences an offender on the basis that they are a serious offender, it must be entered into the records of the court at the time of the sentence that the offender was sentenced as a “serious offender”[6].
[6] Section 6F of the Sentencing Act 1991.
23 In this case, the prosecution does not seek a disproportionate sentence.
24 There is a further matter that I must have regard to. The offence of trafficking a drug in a commercial quantity is a Category 2 offence under s3(1) of the Sentencing Act. Under s5(2H), the court must make an order for imprisonment for Category 2 offences committed by an adult on or after March 2017, unless one of the criteria under s5(2H)(a)-(e) applies.
25 It is accepted that none of those criteria apply in this case, and therefore it is mandatory for the court to make an order for imprisonment in respect to Charges 1 and 2 on the indictment.
26 A committal mention took place on 5 December 2017 where guilty pleas were entered and your matter proceeded by way of straight hand-up brief on 4 April 2018.
27 The prosecution accept that an early plea has been entered and therefore you are entitled to a sentencing discount.
28 I turn now to your background history and circumstances.
29 You are an Australian citizen. You are Vietnamese by birth and you are the fourth of five siblings. You have a positive relationship with your family. Your father died from cancer approximately six years ago, following which you have experienced difficulties coping with his death. Your mother and other siblings continue to live in Vietnam. You have been advised recently that your mother has suffered a stroke and that she is gravely ill.
30 You have not had any contact with your family in Vietnam since being placed on remand for these matters, with the exception of being informed about your mother's illness. You feel very ashamed concerning this offending.
31 You left school at age 14 so that you could work and make a contribution to your family’s finances. You worked as a waitress at a coffee shop for several years, and during that time you met your former husband, Hung Quang Le. You migrated with him to Australia and there are two children of the marriage ─ Long Le, aged 17, and Truong Quang Le, aged 14.
32 When you arrived in Australia, you had some casual work undertaking seasonal fruit picking at a farm and also working as a factory hand. You completed a beautician’s course and obtained employment at various beauty/nail salons.
33 In 2013, you established your own clothing store and that business continues.
34 Your marriage broke down because of your husband’s violent and abusive behaviours and addiction to heroin.
35 You subsequently met Mr Thanh Phong Tran in 2004 and lived with him for some time. You have one daughter born of that relationship, Phung, who is now 11. Mr Tran has a 19 year old daughter from a previous relationship, whom you have also cared for as if she were a step-daughter. There was another child born of that relationship in 2012 but tragically that child died shortly following birth.
36 Your relationship with Mr Tran was fraught. He was not living with you at the time of these offences. You nevertheless maintained an amicable relationship so that he could be a father to your daughter, Phung. He would on occasion stay from time to time at your premises.
37 You have a history of substance abuse. You commenced using heroin when you were in your early twenties following the separation from your husband and at one stage, the Department of Health and Human Services (DHHS) were notified of your drug problem and threatened to remove the children from your care. You then entered residential detoxification in 2007 and completed drug screens to satisfy the Department that you were no longer using heroin. You self-report that you have not used since 2008.
38 You have had a long-standing history of heavy gambling commencing in your early twenties in an attempt to support your heroin use.
39 Dr Matthew Barth, consultant forensic psychologist, interviewed you and he has prepared a report. The report dated 8 August 2018 states that you gambled heavily and, as a consequence, you were losing money trying to chase your losses. You accrued approximately $200,000 in debt to a “Vietnamese Investment Group” that reportedly allowed you to borrow money at high interest, which only compounded your financial stress and your gambling remained very problematic until your arrest on these charges.
40 Your counsel, Ms Ristivojevic, explained that the reason for your involvement in the offending was that you had borrowed a significant amount of money from the Vietnamese Investment Group in order to help out a friend whom you had known for some years and whom she described as a “colourful character”.
41 Your friend called upon you to store the drugs in your home. You helped your friend to put the drugs in the various bags and stored them in the cavity at your home.
42 You accept that you had knowledge of the substances and took full responsibility for the storage of the drugs.
43 Insofar as the monies ($12,545) that the police found in the Louis Vuitton bag are concerned, you admit those monies came from your shop, representing cash sales that were not being put through the books legitimately.
44 In respect to the $33,000 cash found in the rice container, it is stated that money was sourced through the Vietnamese Investment Group. You cannot say what the provenance of that money was and you accept through your plea of guilty that it was likely derived from the proceeds of crime.
45 You acknowledge that the drugs were in your possession for the purposes of sale and that the drugs were for sale through either your friend or other unknown person or persons.
46 There is no direct evidence that you were involved in the ongoing distribution of the drugs, but you acknowledge that you were aware that the drugs were in your possession for the purposes of sale and have pleaded guilty on that basis.
47 The explanation given to both the court and in your interview with Dr Barth with respect to how it is that you became involved in this offending, to an extent, seeks to deflect responsibility for the offending and minimise your role in the offending.
48 There is, however, no other direct evidence that can be relied upon by the prosecution to determine your further role insofar as the trafficking of the drugs is concerned.
49 I have had regard to the quantity of the drugs, which is a highly relevant consideration in sentencing for trafficking offences. I have noted that the offending is in respect to one day in respect to both charges.
50 I, too, share the concerns expressed by Dr Barth that you have poor insight into your offending behaviour and an aspect of that is you do not fully accept responsibility for your conduct. I consider that your comments to him are to a degree indicative of a lack of remorse and also that has a bearing upon my assessment of your rehabilitation prospects for the future.
51 Nonetheless, I have taken into account that you have entered a plea of guilty at the earliest opportunity, and you are entitled to a sentencing discount. The plea is one of real utility. Through your plea you have spared the State the expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
52 You have utilised your time spent in custody productively undertaking courses that will assist you in the future, including vocational courses as well as an English course, managing change and emotions, and drug and alcohol programs.
53 Your arrest and remand has caused significant disruption to your family. The older two boys are currently residing with their father and grandparents and your daughter is currently living with a paternal aunt. You were the children’s primary carer and were responsible for their day to day care up until the time of your arrest. You now have limited contact with your two older sons because their father does not support them to visit you whilst you are in prison. Furthermore, one of your sons is a witness in the trial of the co-accused and therefore has not been able to contact you directly. Your daughter misses you greatly.
54 Your counsel acknowledged the seriousness of the offending and did not seek to rely upon exceptional hardship. Nonetheless, I have taken into account your time in custody is more burdensome because of your family situation and the anxiety that you have suffered by virtue of not being able to care for your children whilst you are goal. Your continuing absence when the children are so young does have a great impact and that fact is keenly felt by you.
55 I have had regard to the letters that were filed on your behalf. Pha Anh Nguyen states that you are a devoted mother who worries about her children’s welfare. She expresses the view that in her conversations with her, you now regret what you have done.
56 Ly Nguyen, in her letter, confirms that she worked with you in your fashion shop and also had lived with you sometime prior to her marriage. You supported her when she first came here to live in Australia. She is fond of you and your family. She too describes the negative impact of your being in jail upon the children.
57 Ms Ristivojevic submitted an appropriate disposition was the imposition of a gaol term with a non-parole period and that the court should avoid imposing a crushing sentence.
58 I note that your house has been the subject of an automatic forfeiture order and endeavours to demonstrate the house was acquired legitimately have not been fruitful and therefore, the fact that the house has been forfeited is not a mitigating factor relied upon on your behalf.
59 In formulating the appropriate sentence, I must have regard to the sentencing principles, and the matters put on your behalf in mitigation, and my assessment of the gravity of this offending.
60 Overall, I consider that the two charges in relation to trafficking are serious examples of the serious offence of trafficking a drug of dependence. The offending relates to one day only but, nonetheless, the drugs in your possession were well in excess of a commercial quantity. They were in your possession for sale and were packaged for that purpose. The quantum of both drugs the subject of the trafficking charges is such that this was not trafficking at a low street level, but more serious trafficking. Beyond that, I cannot specifically state with any degree of particularity what was your role.
61 The sums of money involved in respect to the two remaining charges of negligently dealing moneys being the proceeds of crime charges also reflect the fact that these are serious examples of this crime, having regard to the amount of cash recovered and also the number of designer handbags found in your possession, the provenance of which you could not prove were legitimate.
62 In the past, you have been dealt with for similar offending in relation to trafficking drugs and also deal with property suspected of being proceeds of crime and that is a relevant factor.
63 In formulating the appropriate sentence, general deterrence, specific deterrence, denunciation, the protection of the community are predominant sentencing considerations. In all the circumstances, there is no other alternative other than the imposition of a jail term to be served.
64 I have had regard to the principles of totality and confirm that I will not be imposing a disproportionate sentence.
65 Finally, I must impose just punishment. Could you please stand, Ms Le.
66 In relation to Charges 1 and 2, I consider that it is appropriate to impose an aggregate sentence. Each of those offences form part of a series of offending of the same or similar character. What that means is I will be imposing one gaol term to reflect the criminality involved.
67 One Charges1 and 2, you are convicted and sentenced to an aggregate term of imprisonment of five years.
68 In relation to Charges 3 and 4, deal with property proceeds of crime, in respect to each charge, you are convicted and sentenced to two years’ imprisonment.
69 I make an order that three months of the sentences imposed in respect to Charges 3 and 4 are cumulative upon each other. That makes a total effective sentence of five years and six months and I fix a non-parole period of three years.
70 I make the following declaration. But for your plea of guilty, I would have imposed a term of imprisonment of seven years to serve five years.
71 I make the following s.6AAA declaration of pre-sentence detention. I declare that you have served 532 days pre-sentence detention to today's date and direct that that be entered into the records of the court.
72 I make the forfeiture order sought in respect to the cash and handbags, and the disposal order sought in respect to the drugs and paraphernalia.
73 I order that it be entered into the records of the court that you are being sentenced as a Serious Offender under Part 2A of the Sentencing Act 1991 in respect to Charges 1 and 2.
74 That is the sentence of the court.
75 COUNSEL: As Your Honour pleases.
76 HER HONOUR: Thank you. All right, so that completes that. We can adjourn. Thank you, Madam Interpreter.
77 MS RISTIVOJEVIC: Your Honour, may I just ask? I note sometimes it is not permitted. But just if the interpreter may remain just for a minute, just to reinforce and explain the sentence.
78 HER HONOUR: Yes. Yes, the order.
79 MS RISTIVOJEVIC: Yes.
80
HER HONOUR: That is all right. Once I leave the courtroom, you can
attend - - -
81 MS RISTIVOJEVIC: Yes, Your Honour. Thank you.
82 HER HONOUR: - - - on the interpreter and your client in the dock.
83 MS RISTIVOJEVIC: Thank you.
84 HER HONOUR: All right.
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