Director of Public Prosecutions v Le

[2016] VCC 485

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00086

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINH QUOI LE

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 April 2016
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2016] VCC 485

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Office of Public Prosecutions
For the Offender	Mr I. Crisp

HER HONOUR:

1Minh Quoi Le, you have pleaded guilty to the following charges.  Five charges of trafficking in a drug of dependence, Charges 1 and 4, heroin.  Charges 2 and 5, methylamphetamine and Charge 6, cannabis.  One charge of negligently dealing with the proceeds of crime.  One charge of being a prohibited person possessing a firearm.  One charge of being an unlicensed person with insecure storage of firearm and ammunition and one charge of possession of drugs of dependence.

2You have also consented to me dealing with the following related summary offences.  One charge of driving whilst suspended.  Eight charges of possessing a prohibited weapon, Charge 7 a pocketknife, Charge 14 a butterfly knife, Charge 15 knuckledusters, Charge 16 samurai sword, Charge 22 a butterfly knife, Charge 23 a laser pointer, Charge 24 a bamboo handled sword and Charge 25 a short samurai sword and one charge of possessing cartridge ammunition by an unlicensed person. 

3The maximum penalties for these offences are as follows.  Trafficking a drug of dependence, 15 years.  Negligently dealing with the proceeds of crime, five years.  Being a prohibited person with a firearm, ten years.  Being an unlicensed person with insecure storage of firearm and ammunition, four years or 240 penalty units.  Possession of a drug of dependence, 400 penalty units or five years.  That is I am not satisfied that it was for personal use.  Drive while suspended, 240 penalty units or two years and that is because this is a second offence.  Possessing a prohibited weapon, 240 penalty units or two years.  Possession of cartridge ammunition by an unlicensed person, 40 penalty units.

4On 16 September 2015 you were driving in Springvale and police intercepted you as a consequence of a routine check.  At that time it was discovered that you were driving whilst your licence was suspended.  You later admitted that your licence had been suspended due to the loss of demerit points. 

5On a subsequent search of both your car and of you by police the following was found: a zip lock bag in your pocket which contained a block of white powder which had 0.3 grams of heroin.  In the centre console, multiple zip lock bags containing white rock-like substance, six grams heroin and a cloudy white crystal substance, one gram methylamphetamine.  Under the driver's seat, multiple zip lock bags containing white powder, 14 grams of heroin and a cloudy white crystal substance, two grams of methylamphetamine.  Multiple spare deal bags, scissors, syringes, digital scales and foils in a black bag on the back seat.  In total, therefore, in the car was 20.3 grams of heroin and three grams of methylamphetamine.  Also in the car was $3715 cash and a key ring containing a knife. 

6You were arrested and taken to Dandenong police station where you were interviewed.  The interview was suspended to obtain a search warrant for your parent's house in Keysborough where you were living.  The next day police conducted a search at this house and located the following: 157.03 grams of heroin, 33 grams of methylamphetamine, 75.76 grams of cannabis and a white box containing various medications. 

7Police also located two butterfly knives, a samurai sword, a black sawn-off .22 calibre rifle which had been modified so as to be fully automatic, under your bed.  The sawn-off rifle is within the definition of a machine pistol.  Two magazines with .22 calibre ammunition on the bedside table and a further 170 rounds of .22 ammunition.  A knuckleduster, a laser pointer, a bamboo handled sword and a short samurai sword.  The photographs in the depositions depict all the drugs, weapons and other materials, all items relevant to your trafficking business.

8During the record of interview you were fully cooperative with police and made the following admissions.  That you bought and sold drugs to support your drug habit.  That some of the money located in the car was from your parent's business and a win on poker machines but the rest was from trafficking.  The knife located in the car on your key ring was for cutting boxes at work.  That you were selling drugs almost every day with amounts between 0.1 to an ounce.  You started about a year ago with $600 and had built the business up.  That you had made about $800 per day trafficking but it used to be busier.  You admitted that the tablets located were swapped with the customer for heroin. Given those admissions and other surrounding circumstances I do not, for the purpose of sentencing you, accept your position that those tablets were for personal use.

9As to the weapons located at your parents' house, the samurai sword and knuckleduster you said were for self-defence if someone robbed you of drugs or money.  The firearm and ammunition was exchanged with a customer for heroin and you had had it for about four months.  You denied that you had that firearm for protection or to shoot anyone and maintained it was just something you wanted.  You also maintained some of the other weapons, such as one of the swords, was for display.

10As to your personal circumstances I received an undated report from Bernard Healy, clinical psychologist, who saw you in custody on 7 January 2016 and I take that material into account.  Additionally I was provided with a letter from
Dr Ernie Andrada dated 12 April 2016 regarding your medical history. 

11You are currently aged 31.  You were born in Vietnam and came to Australia with your parents when you were very young.  Your parents are hardworking and run their own business.  You have an older and one younger brother.  None of your family members have been in trouble in with the law.  Your brother and two of your friends were at court so support you.

12You completed secondary education to Year 12 and have had various jobs in your life including working in the family business and also independently of that with different sales representative jobs.  You reported to Mr Healy that your first relationship was with a woman who introduced you to heroin.  You were married although that relationship soon broke down.  You have no children.

13Tests conducted by Mr Healy revealed you to be below average intellectually and that you are vulnerable to drug abuse, anxiety and depression.  This was consistent with the medical history provided to me.  You have had issues with drugs most of your life commencing cannabis use when you were at school.  Although at times since you were 16 there have been periods of abstinence and you have been on methadone for extended periods, you have used illicit substances extensively such as heroin and ice and also have been addicted to prescription medication such as Valium over much of your life.  You indicated in your record of interview at the time of this offending you were using between 1.2 to 1.7 grams of heroin on a daily basis. 

14You have a significant criminal history with court appearances dating back to 2004.  However most of your convictions relate to driving offences.  You have previously served time in custody as a consequence of breaching a court order during 2008.

15You have pleaded guilty to all these matters at the earliest opportunity and you receive the full benefit for that having saved time and expense to the community. 

16There was limited evidence that you were remorseful in the sense of recognising the effects that trafficking such drugs has on the community.  Although I do accept that you have some insight into your offending and have indicated a desire to desist in your own drug taking and involvement in trafficking.  Your full admissions and cooperation with police are also indicative of remorse.

17In your record of interview you state that you really wanted to "get off heroin a long time ago" but that it has really changed your life and you just "want to get off it and start a new life".  It has pretty much "ruined your life".  Your prospects for rehabilitation are clearly dependent on your capacity to properly address your drug issues. 

18This is the longest period of time you have spent continuously in custody.  I understand that you have been subjected to random drug screening whilst in custody and the results are clean.  Perhaps consistent with your abstinence of drugs in gaol I was informed that when you first went into custody you went to 22 hour lockdown then to 20 hour lockdown and are now working in horticulture in the prison, which is a privilege, and allows you to be outside for significant portions of the day.  I received various certificate of courses that you have completed whilst in custody.

19Your rehabilitation prospects are enhanced by you having a supportive family and the capacity to be able to work in the family business on your release from custody.  Additionally, although you have a significant prior history, most of the matters relate to driving offences.  There are no outstanding matters.

20As to aggravating features, the total quantity of heroin, 177.06 grams and methylamphetamine, 36 grams, was a significant amount of produce.  Additionally you had available a variety of drugs.  On your own admission, you would try to get whatever product was requested. 

21This was not just street level dealing.  Again, by your own admission, it was a business engaged in by you for about a year which slowly built up.  You sold various amounts and admitted that you were trading at about $800 per day at the time of your arrest.  This, you said, was in circumstances of where you were not as busy as you had previously been.  The amounts of money you made were not only to support your own habit.  The amount and variety of weapons that were located and particularly the serious nature of the weapon and ammunition involved in Charges 7 and 8. 

22The prosecution submitted this offending warranted an immediate term of imprisonment with a non-parole period.  That is, that a combined sentence involving a term of imprisonment of less than two years with a Community Correction Order to be completed at the end of that term was outside the range of sentencing options available to me.

23Your counsel argued that a combined disposition of imprisonment and a Community Correction Order could meet all sentencing considerations. 
In particular it was submitted that the time you had already served, seven months, since your arrest was sufficient and that you could be immediately be placed on a CCO. 

24Considerations of just punishment, general deterrence, specific deterrence and community denunciation must be balanced against the matters in mitigation outlined above.  It is necessary to balance considerations personal to you regarding your rehabilitation and reintegration into society with society's interest in deterring you and others engaging in the trafficking of drugs and additionally the possession of weapons, including unregistered firearms, by people who engage in drug use.  The protection of the community in circumstances of involvement with drugs and possession of weapons is of importance. 

25As previously indicated the success or otherwise of your future depends on your capacity to stay away from drugs.  You have commenced this process but once outside it may not be so easy to avoid falling back into bad habits and drug use.  I accept that this period of time in custody, the longest that you have ever served, has given you the time to reflect and hopefully the motivation to stay away from drugs.  I also note that you have never had the opportunity to participate in rehabilitation programs or treatment.

26Taking all relevant sentencing considerations into account and on consideration of the Court of Appeal decision in Boulton I am of the view that all sentencing purposes can be met by the imposition of a term of imprisonment with a Community Correction Order to commence at the completion of that term.

27Having received a favourable report from the Office of Corrections, I am minded to make such an order.  It is my intention that the term of imprisonment that you have served is sufficient.  That is, a period of seven months.  You will be placed on a Community Correction Order for a period of three years at the end of that period of seven months, which I understand has already been completed.

28Mr Le, I am giving you this chance to put in practice what it is that you have already begun and with the assistance of Corrections I am hoping that you are able to overcome your drug issues.  If there is any breach before me I will have no hesitation in placing you back in custody and I am also proposing to include a judicial monitoring condition on your Community Correction Order for me to ensure that you are compliant with the order that I am about to impose.  Could you stand up please, Mr Le?

29In respect of Charge 1 you are convicted and sentenced to a period of one month. 

30In respect of Charge 2, convicted and sentenced to a period of imprisonment of one month.

31Charge 3, convicted and sentenced to a period of imprisonment of one month.

32In respect of Charge 4, convicted and sentenced to a period of imprisonment of six months.

33In respect of Charge 5, convicted and sentenced to a period of six months.

34In respect of Charge 6, convicted and sentenced to a period of imprisonment of two months.

35In respect of Charge 7, convicted and sentenced to a period of imprisonment of three months.

36In respect of Charge 8, convicted and sentenced to a period of imprisonment of one month.

37In respect of Charge 9, you are convicted and sentenced to a period of imprisonment of two months.

38In relation to the related summary offences, summary offence Charge 6, you are convicted and sentenced to a period of imprisonment of one month.

39In respect of summary Charge 7, convicted and fined a sum of $200.  Summary Charge 14, convicted and fined a sum of $200.  Summary Charge 15, convicted and fined the sum of $200.  Charge 16, convicted and fined the sum of $200.  Charge 19, convicted and fined the sum of $100.  Charge 22, convicted and fined the sum of $200.  Charge 23, convicted and fined the sum of $200.  Charge 24, convicted and fined the sum of $200.  Charge 25, convicted and fined the sum of $200.

40In respect summary Charge 6, all licences - so you will be disqualified from obtaining your driving licence for a period of two years. 

41That leaves, Mr Le, a total effective - sorry, I should indicate in respect of the sentences of imprisonment imposed, one month on the sentence imposed on Charge 7 will be cumulative on the sentence imposed on Charge 4.  All other sentences imposed are concurrent.  So that leaves a total effective sentence of seven months. 

42At the expiration of that sentence you will be placed on a Community Corrections Order for a period of three years.  The conditions that I propose in respect of the Community Corrections Order are, as I indicated, judicial monitoring.  That will be - Mr Le, you will be required to come back before me on 22 July at 9.30 for judicial monitoring.

43There will also be the other conditions as recommended by the report.  That is a condition regarding treatment and rehabilitation in respect of drugs.  Condition, treatment and rehabilitation in respect of your mental health.  Condition regarding treatment and rehabilitation in relation to programs that will reduce your re-offending.  Any other treatment and rehabilitation as recommended by Corrections and you will be under the supervision of Corrections. 

44In addition the total of those fines comes to $1700.  Mr Crisp, what time?

45MR CRISP:  A stay of three months, Your Honour.

46HER HONOUR:  Three months?  Yes I will grant a stay of three months in respect of that.  I have already made the forfeiture orders.  The 464,
Mr Pickering, the one that was drafted I think accommodated a person being in custody?

47MR PICKERING:  Yes.  There's also a ‑ ‑ ‑ 

48HER HONOUR:  Yes.

49MR PICKERING:  ‑ ‑ ‑ a non-custodial grant as well.

50HER HONOUR:  That's the one I need to sign today.  Pre-sentence detention, is it 219 days?

51MR PICKERING:  Correct.

52HER HONOUR: Thank you. I declare the pre-sentence detention of 219 days and also pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to these matters I would have imposed a sentence of imprisonment of three years with a non-parole period of 20 months.

53We will just organise for the CCO to be printed out and I will sign this 464 - were there any other matters, Mr Pickering?

54MR PICKERING:  No, Your Honour.

55MR CRISP:  No, Your Honour.

56HER HONOUR:  Thank you.  All right, Mr Le, well you have heard what I said.  It is really a matter for you.  I am giving you this opportunity.  You have not had that opportunity before but if you muck it up, you will come back before me and you will find yourself back in custody pretty quickly.  All right, thank you.

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