Director of Public Prosecutions v Le

[2023] VCC 958

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02568

CR-21-02570

CR-22-01103

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

THIEN LE

&

VIEN HOANG (aka TU VAN NGUYEN)

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	2 June 2023
DATE OF SENTENCE:	5 June 2023
CASE MAY BE CITED AS:	DPP v Le & Anor
MEDIUM NEUTRAL CITATION:	[2023] VCC 958

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:          Traffick drug of dependence, commercial quantity - possess drug of dependence - recklessly dealing with the proceeds of crime - knowingly dealing with the proceeds of crime - commit indictable offence whilst on bail - contravene conduct condition of bail

Legislation Cited: 

Cases Cited:

Sentence:Le:        4 years' imprisonment, non-parole period 2 years, 6 months
Hoang:  6 years and 6 months' imprisonment, non-parole period 4 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr W. Drent	Office of Public Prosecutions
For the Accused Le For the Accused Hoang	Ms K. Rolfe Mr T. Sawyer	McNally & Gleeson Lawyers SLKQ Lawyers

HIS HONOUR:

1Thien Le, you have pleaded guilty to two charges of trafficking in a drug of dependence, commercial quantity, for which the maximum term of imprisonment is 25 years, to two offences of possessing a drug of dependence, for which the maximum term of imprisonment is five years, and to recklessly dealing with the proceeds of crime, for which the maximum penalty is imprisonment for 10 years.

2You, Vien Hoang, otherwise known as Tu Van Nguyen, have pleaded guilty to an offence of recklessly dealing with the proceeds of crime on Indictment No. M10816106 in the name of Nguyen, for which the maximum term of imprisonment is 10 years, and to, on Indictment No. M12378725.1 in the name of Hoang, an offence of trafficking in a drug of dependence, commercial quantity, for which the maximum term of imprisonment is 25 years, to possession of a drug of dependence, for which the maximum penalty is imprisonment for five years, and to knowingly dealing with the proceeds of crime, for which the maximum penalty is imprisonment for 15 years.

3I have also taken into account three related summary offences: two of committing an indictable offence whilst on bail and one of contravening a conduct condition of bail, for all of which the maximum sentence is imprisonment for three months.

4You have both admitted prior convictions.

5The prosecution has tendered and relied upon an amended prosecution opening on plea dated 1 June 2023 which was read to the court.

6Dealing first with the matters involving the indictment against you, Thien Le. 

7On 21 April 2021 police executed a search warrant at your home address in Abbotsford.  Present at the address was your co‑offender Tu Van Nguyen, otherwise known as Vien Hoang.  Police located a quantity of illicit drugs which were identified as 343 grams of heroin of generally substantial purity and 90.4 grams of methylamphetamine, of which 75 grams were pure methylamphetamine.  Both of those quantities are within the parameters of commercial quantities for the drug involved.

8In addition, police also recovered a quantity of ecstasy and a quantity of methorphan, both of which are drugs of dependence, and found $5,760 in cash - which is the subject of Charge 4 on the indictment against you, Thien Le.

9Police also recovered a total of $5,800 in cash, which is the subject of the single count indictment against you, Tu Van Nguyen, in which you are charged in that name.

10Both of you were arrested.  You, Le, were interviewed by police that day and admitted that some of the drugs found in the room belonged to you.  You also admitted possession of some of the money.

11Also found at the premises were a number of plastic bags located in the room, the implication being that they were for use in trafficking in the heroin and methylamphetamine which were found at the premises.

12In respect of the indictment against you, Tu Van Nguyen, in the name of Hoang, during August 2021 you came to the attention of police who were involved in an operation which targeted a person by the name of Hien Ngoc.

13As a result of surveillance police were able to identify you as being involved with that person in trafficking in drugs of dependence.  After a period of surveillance on a hotel where many of the transactions with customers apparently took place, police executed a search warrant upon the address of your daughter at an address in Melbourne.

14At those premises police discovered substantial items connected with drug trafficking activity, including a total of 278.4 grams of methylamphetamine the subject of Charge 1 on the indictment in the name of Hoang.  In addition, they found 21.2 grams of heroin, which is the subject of Charge 2 on that indictment, along with a total of $69,675 in cash.

15You were interviewed by police.  You admitted that you lived at those premises with your daughter in the bedroom where the items to which I have referred in the main were found.

16The quantity of methylamphetamine was a mixture, but was in excess of the threshold for a commercial quantity, being 250 grams.

17Thien Le, your counsel provided me with a written set of submissions dated 2 June 2023, which is Exhibit L1, together with a report from forensic psychologist Naomi Cameron dated 12 May 2023, which sets out a great deal about your background and your mental health and medical history.

18You were born and brought up in Vietnam.  Your father died when you were seven years of age and you were brought up substantially by your grandmother.  It seems that your upbringing was tainted by poverty.

19You were sponsored to come to Australia when you were aged 22 and you came along with your sister.  You have maintained a close relationship with your sister and uncle who are still in Australia.  Your mother is in Vietnam and you maintain contact with her.

20You have not returned to Vietnam since 2005.  You had work within a short period of arriving in Australia and you remained in that work until 2010 when the factory closed down.  Since then, you have not had any regular employment although you have had brief casual employment in another factory.  You have been in receipt of the Centrelink Newstart Allowance since 2010.

21You have for many years now suffered a severe medical issue with a swollen thyroid gland which is painful and unsightly.  It is benign but will require surgery.  It causes you embarrassment and considerable discomfort.  At least partly in order to deal with the pain, you became addicted to heroin and have been a heroin addict for many years.

22Three of your prior convictions involve trafficking in heroin and one involves possessing heroin.  But I note, as your counsel has stressed, you have not served a term of imprisonment as a result of any of your convictions.

23You commenced abusing heroin in 2007 and you have used consistently since that time.

24Whilst you have been in custody you have been employed in a cleaning capacity within the prison service. 

25You claim to be motivated to remain abstinent from heroin on your release from custody and it is your hope that you will receive surgery to relieve the pain and discomfort of the swollen thyroid gland.

26Your counsel points out in her submissions that the quantities of heroin the subject of Charge 1 and methylamphetamine the subject of Charge 2 are not significantly above the threshold for a commercial quantity.

27She points out that the duration of the offending was a single day, although it is to be inferred that what the police found was not necessarily accumulated that day.  It is, of course, correct that the way in which the matter has been charged involves your trafficking offending occurring on that one day.

28She also rightly points out that there is no evidence of significant enrichment and she points to the connection between your heroin habit and the trafficking in which you were engaged.

29There is no doubt that it is a mitigating factor that you have a significant and longstanding heroin addiction which, as your counsel points out, seems to be linked to your offending conduct.  The fact that you have two prior convictions for which relatively low amounts of punishment were meted out to you, suggests that her submission as to that connection is clearly made out.

30You have been in custody for a significant period of time and all of that time has been during the COVID pandemic.  The additional burdens of confinement during the lockdowns and the reduced access to programs and other matters that have been necessary to impose in terms of the conditions of your incarceration have no doubt made the period on remand much more difficult to bear.

31It is submitted that you have reasonable prospects of rehabilitation. 
You have had a significant period of abstinence during the period on remand.  You have previously had some compliance with court orders, but not with all of them.  You have had a prior work history and you have a reasonable prospect that surgery will reduce the pain and embarrassment of the swollen thyroid gland.  You also have the ongoing support of your mother and sister.

32It is submitted that although the offences the subject of Charges 1 and 2 on the indictment are serious offences, they are towards the bottom end of the range in terms of the quantity of the drugs and the motivation for your offending, and that I can impose a sentence which pays proper regard to all of the sentencing considerations, including rehabilitation, and gives proper value to your pleas of guilty and the connection between your drug addiction and the offending conduct.

33Although it is accepted that a term of imprisonment which extends beyond the time you have already served on remand is inevitable, I am urged not to impose a crushing sentence upon you and to give proper value to the various mitigating factors to which I have referred.

34I think it is fair to say that there is no evidence that your conduct was attached to a more significant criminal enterprise than that which was revealed by what the police discovered upon the execution of the search warrant upon your premises.   

35Dealing next with you, Tu Van Nguyen, otherwise known as Vien Phuc Hoang.  Your counsel provided me with a summary of plea submissions dated
29 May 2023, along with a report from psychologist Carla Lechner dated
3 January 2022, a letter from your wife and a letter from the daughter with whom you were living at the time of your arrest in November 2021.

36The report of Carla Lechner is Exhibit H2 and the two letters to which I have referred are collectively Exhibit H3.

37There are also two letters with which I have been provided from On Track Counselling and Consulting, dated 27 July 2021 and 11 October 2021 respectively, concerning your efforts at treatment and rehabilitation.

38The report of Ms Lechner sets out details of your history.  You are now 54 years of age, the youngest of three children.  You were born in Vietnam.  Your father was killed in 1973 whilst serving in the Vietnamese Army aligned with the Americans.  You have a brother aged 62 living in the United States and a sister aged 63 who lives in Australia.  You have little or no memory of your father.  You had rudimentary schooling.

39In 1982 your cousin organised a boat journey for you to travel to Hong Kong with him.  You arrived there as a refugee and spent the next three years in a refugee camp there until your sister sponsored you to come to Australia.  You were exposed to a lot of violence going on in the camp although it did not involve you directly.

40You were aged 18 years when you came to Australia to live with your sister in Collingwood.  You obtained work and remained in that job for four or five years.  You then worked as machine operator for about four years and you ceased working when you commenced drug use.  You have not worked since.

41You are a long-term heroin addict.  You also commenced using methylamphetamine in your late 20s and you have been addicted to that substance.

42Your life has been blighted by your addictions to heroin and methylamphetamine and characterised by frequent court appearances for serious offending.

43I note that you were sentenced in 2007 in this court to imprisonment for a total of seven years for trafficking a large commercial quantity of cocaine.  Prior to that, in 2000, you had been sentenced to a three-month suspended term of imprisonment for trafficking in heroin.

44Then, although your sentence in the County Court in 2007 was reduced on appeal to the Victorian Court of Appeal to imprisonment for six years with a non‑parole period of four years, you appeared again in the County Court, in fact before me, on 7 March 2014 for trafficking in a commercial quantity of a drug of dependence, namely heroin.  You were sentenced to a total effective sentence of imprisonment for four years and six months with a non-parole period of
two years and six months.

45The offending on that occasion involved a quantity again not significantly above the threshold for a commercial quantity of heroin.  You were also convicted on Charge 2 for trafficking in methylamphetamine.

46Your counsel pressed me to accept that there was a well-established link between your offending and your addictions to methylamphetamine and heroin and that that was the principal motivation for your offending.

47It is more difficult to make out that case as clearly for you, Mr Tu Van Nguyen otherwise known as Hoang, because you were also found in possession, at the home of your daughter, of more than $69,000 in cash.  Although it was submitted that some $40,000 of that was provided to you to buy a car it seems to me that, whether that is true or not, there is a significant element of profit to be identified in your trafficking activity.  

48It is accepted, of course, that the amount of methylamphetamine the subject of Charge 1 on the indictment was not significantly above the threshold for a commercial quantity.  That places the offending towards the lower end of the scale save that there was clearly, as I infer from the whole of the evidence, a link between the amount of cash involved and your trafficking activity.  That link revealed a trafficking enterprise to which you had attached yourself that was motivated by financial gain as well as your addiction to both heroin and methylamphetamine.  It raises the seriousness of the offending well above that of your co-offender, Mr Thien Le.

49In addition, it is clear that you have not learned your lesson from your previous convictions for trafficking in drugs of dependence in commercial quantities for which you have received significant terms of imprisonment in the past.

50You are entitled to a significant reduction in sentence as a result of your pleas of guilty and the remorse that they signify.  You are fortunate to have the support of family.  There is no doubt that your life in recent years has been blighted by your drug addictions.  You undoubtedly have had a deprived background and I must take all that into account in determining an appropriate sentence.

51Your plea is to be given proper weight given that it is tendered during the COVID pandemic and that you have had to serve a significant period on remand during the pandemic with the attendant extra restrictions on prisoners during that period.

52I am not convinced by your counsel's submission that I should apply any of the Verdins principles.  It does not seem to me that the criteria for establishing a mental impairment has been made out on the evidence. 

53Your counsel accepted that, given your prior convictions, it is inevitable that you face a lengthy term of imprisonment with a non-parole period.

54Nevertheless, he urges me to give proper weight to the totality principle and the principle of parsimony, that is, imposing a sentence that is no more severe than is necessary to meet the purposes of sentencing.

55Given that I have to sentence you as a serious drug offender in relation to Charge 1 on the indictment of trafficking in a drug of dependence, namely methylamphetamine, in a commercial quantity, I must balance those submissions against the need to give particular significance to protection of the public.

56That is not to say that a sentence that is crushing achieves that by any means because protection of the public can indeed be achieved by rehabilitation, and a crushing sentence is incompatible with the promotion of rehabilitation.

57Doing the best I can to marry all of the sentencing considerations and give proper weight to the matters in mitigation, in particular the link between your drug addictions and the offending conduct, I am ready to impose sentence on each of you.

58In relation to you, Mr Thien Le, on Charge 1 on the indictment you are convicted and sentenced to imprisonment for a period of three years and three months.

59On Charge 2 on the indictment, I sentence you as a serious drug offender and you are convicted and sentenced to imprisonment for a period of three years and nine months.

60On Charge 3 on the indictment, you are convicted and sentenced to imprisonment for one month.

61On Charge 4 on the indictment, you are convicted and sentenced to imprisonment for three months.

62On Charge 5 on the indictment, you are convicted and sentenced to imprisonment for one month.

63The sentence of three years and nine months on Charge 2 is the base sentence.

64I order that three months of the sentence on Charge 1 on the indictment be served cumulatively upon the sentence on Charge 2.  The other sentences are concurrent.

65The total effective sentence is imprisonment for 4 years.

66I fix a non-parole period of two years and six months.

67I declare 775 days pre-sentence detention as time to be reckoned as served on the sentences that I have imposed and deducted administratively.  I order that those facts be noted in the records of the court.

68But for your pleas of guilty I would have sentenced you to imprisonment for a period of six years with a non-parole period of four years.

69In relation to you, Tu Van Nguyen otherwise known as Vien Phuc Hoang, on the single-count Indictment No. M10816106 charging you with recklessly dealing with the proceeds of crime, you are convicted and sentenced to imprisonment for three months.

70For Indictment No. M12378725.1 charging you with trafficking in a commercial quantity of methylamphetamine and the other offences, on Charge 1 of trafficking in a drug of dependence, commercial quantity, you are convicted and sentenced to imprisonment for six years.

71On Charge 2 of possessing a drug of dependence, namely heroin, you are convicted and sentenced to imprisonment for three months.

72On Charge 3 of knowingly dealing with the proceeds of crime in the sum of $69,675, you are convicted and sentenced to imprisonment for three years and six months.

73I note that there seems to be a strong connection between the knowingly dealing with proceeds of crime, Charge 3, and the trafficking in a drug of dependence in Charge 1 and I seek to avoid double punishment.  To the extent that there is a considerable overlap, I treat the sentence of six years on Charge 1 as the base sentence and I order that six months of the sentence of three years and six months on Charge 3 be served cumulatively upon the sentence on Charge 1.

74In relation to the two offences of committing an indictable offence on bail and the one offence of contravening a conduct condition of bail, on each offence you are convicted and sentenced to imprisonment for one month.

75Those terms of imprisonment will be served concurrently, as will the sentence of 3 months imposed on Charge 1 on Indictment No. M10816106.

76The total effective sentence over all charges is six years and six months imprisonment.

77I fix a non-parole period of four years.

78I declare 680 days pre-sentence detention as time to be reckoned as served on those sentences.

79But for your pleas of guilty I would have sentenced you to a total of nine years' imprisonment with a non-parole period of six years.

80I think there are some disposal orders are there not, forfeiture and disposal orders?

81MR DRENT:  There are two sets of disposal and forfeiture orders, Your Honour.

82HIS HONOUR:  I have signed all of them.  So I make those orders in the terms of the drafts.

83MR DRENT:  As the court pleases.

84HIS HONOUR:  Are there any other orders that I need make?  I should say, if I have not already done so, I sentence you, Tu Van Nguyen otherwise known as Vien Phuc Hoang, on Charge 1 on the indictment as a serious drug offender.

85I think that is all.  Thank you.

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