Director of Public Prosecutions v Le, Loan
[2014] VCC 1780
•31 October 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01151
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Loan LE |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September 2014 | |
DATE OF SENTENCE: | 31 October 2014 | |
CASE MAY BE CITED AS: | DPP v LE, Loan | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1780 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Operation Presley/Froggiest – Trafficking in a drug of dependence – Possess drug of dependence – Deal property suspected proceeds of crime – Stimulant Use Disorder
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Regan | Office of Public Prosecutions |
| For the Accused | Ms C Lynch | Revill and Papa Lawyers |
HIS HONOUR:
1 Loan LE, you have pleaded guilty to two charges of trafficking in a drug of dependence. Further, you have pleaded guilty to one charge of possessing a drug of dependence. In addition, you have agreed to the uplifting of one summary offence, a charge of deal with property suspected of being the proceeds of crime. You pleaded guilty to that summary offence. You have six prior convictions arising from nine prior court appearances, including relevant convictions for trafficking in August 2012, and possession in April and May 2012.
2 By way of background, you are one of a number of accused before this Court as part of Operations PRESLEY/FROGGIEST. Operation FROGGIEST was a Drug Task Force investigation commenced in November 2012 in relation to illicit drug trafficking by Frank FORTUNATO (‘FORTUNATO’). Paul BOEHM (‘BOEHM’) was identified as a close associate of FORTUNATO. BOEHM would both supply and purchase methyl-amphetamine from or through FORTUNATO depending on who had access to or possession of methyl-amphetamine at the time, but was predominantly a supplier.
3 Operation PRESLEY was commenced by investigators in February 2013, which targeted known suppliers of methyl-amphetamine to FORTUNATO during Operation FROGGIEST. The investigation also targeted further suppliers of methyl-amphetamine, heroin and cannabis that were identified during the monitoring of lawful telephone intercepts and surveillance during the initial stages of Operation PRESLEY.
4 The facts in this case were opened by Mr Regan who appeared to prosecute, and are contained in the Revised Prosecution Opening for Plea, Exhibit A. I direct that a copy of that exhibit be appended to these reasons for sentence. In short, you were identified as a supplier of methyl-amphetamine to FORTUNATO during Operation FROGGIEST. Further, the investigation revealed you trafficked in heroin as well. Your offending occurred between the period 3 January 2013 up to your arrest on 18 July 2013, during which time you were involved in multiple transactions for the sale of methyl-amphetamine and heroin. I note that you were never the primary target of either operation and your overall role in the offending was, despite being serious, somewhat limited.
5 On 18 July 2013, police executed a search warrant at your Braybrook home. You were arrested and made admissions in relation to ownership of a telephone device connected with the relevant investigations, however denied involvement in drug trafficking.
6 Exhibit 2 is a report authored by Carla Lechner. In her opinion, at interview you did not display any symptoms of an underlying psychological or psychiatric disorder such as depression or anxiety, but stated that at the time of your offending you had a Stimulant Use Disorder connected with your abuse of ice.
7 On your behalf your counsel, Ms Lynch, provided a helpful outline of submissions on the plea, Exhibit 1. She submitted the following by way of mitigation:
a) that your descent into the world of drugs was caused, primarily, by the arrival of your brother, David, whose drug-addicted lifestyle impacted significantly on you, resulting in you becoming addicted to, and involved in the trafficking of, methylamphetamine;
b) that in the months leading up to your involvement in these offences your brother died, followed shortly by the death of your mother. Ms Lynch submitted that your brother’s death was traumatic for you and I was referred to observations made by Ms Lechner in her report;
c) that you were surrounded by people in the drug scene and it was easy for you to source drugs. Ms Lynch pointed out that you were only detected trafficking on eleven occasions over a six month period. She pointed out that the quantities increased at the request of the undercover operative, and the amounts were not, in the overall scheme of things, substantial;
d) that your early plea of guilty demonstrated remorse.
8 Ms Lynch further submitted on your behalf that your prospects of rehabilitation are good. She submitted that the absence of mental illness or disorder at the time of your offending, together with the presence of a Stimulant Use Disorder, enhances your prospects of rehabilitation. In further support of your prospects of rehabilitation, she submitted:
a) that you have availed yourself of opportunities to engage in programs whilst in custody;
b) that your offending was committed in the context of drug addiction and gambling, both of which are matters that can be addressed effectively through rehabilitation;
c) that any immediate concerns regarding your drug addiction have subsided by the passage of time while you have been incarcerated for the past 15 months;
d) that the totality of your experience of prison to date has addressed the need for specific deterrence; and
e) that your children remain supportive and will continue to support you upon your release from custody, and that you will not return to live at the Braybrook address in an effort to sever all ties with former drug associates.
9 I now turn to circumstances personal to you. You are presently aged 53, having been born in 1960 in Saigon, Vietnam. Your early life was relatively stable, despite living under a communist regime. Your mother and father separated, however remained on terms good enough to see your mother assist your father in leaving a labour camp where he was held. You were formally educated until around Year 10 level, and worked thereafter as a street vendor selling drinks and wooden artefacts, and also as a currency trader. You and other members of your family built a boat and sailed to Malaysia, where you remained for a year in a refugee camp. You came to Australia in 1987 under sponsorship of an older brother who had already settled here. You lived in Perth initially before moving to Melbourne to be closer to your younger siblings. Upon arrival in Melbourne, you commenced English language classes for about 12 months and worked intermittently as a kitchen-hand. Your mother came to Melbourne to live, at which time you assumed the role of her carer. Your mother suffered from a range of health issues, ultimately requiring dialysis two or three times a week, assistance showering and spoon feeding, all matters which caused you considerable distress. You report that your life unravelled in 2012 when, in a short space of time, one of your brothers and mother died, your partner was incarcerated and your brother David was using drugs and heavily involved in the business of drug trafficking. You report that you started gambling and began abusing ice after your mother’s death due to stress.
10 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim 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.
11 The trafficking in drugs is pernicious. Drugs effect the health and lives of many and are often found as the cause of other serious offending. Trafficking in drugs in the quantities here concerned is a most serious crime as is evidenced by the fact that the maximum penalty that has been provided by the legislature is 15 years imprisonment. The drug ice in particular is pernicious and its use prevalent. Its impact on the community is perceived as very significant because of it addictive qualities and the fact that it is productive of extreme violent and dangerous behaviour.
12 It appears from the summary of facts as opened that you do not hold significant quantities of drugs but rather are able at very short notice to source drugs for supply to your customers. Generally speaking, you take the money first and then either alone or in company with the purchaser go to the vicinity of where the drugs will be supplied. You obtain delivery away from the purchaser. The methylamphetamine ranges form 40-50% pure to 80-90% pure. The heroin that you provided was 100% pure indicating that you were close to the importing source. Whilst it appears that the undercover ‘worked you up’ in terms of the quantity of methylamphetamine, it was you who introduced him to the heroin.
13 You have relevant prior convictions and this offending was during the period of a suspended term of imprisonment and in breach of a Community Corrections Order. Both those sentences were imposed for drug offences. Considerations of community protection, denunciation and general deterrence must assume primary importance in your sentencing.
14 Section 9 of the Sentencing Act 1991 permits me to impose an aggregate sentence where there are two or more offences founded on the same facts or that form, or form part of, a series of offences of the same or similar character.
15 Would you please stand, Ms Le. You are convicted on all charges and on charges 1, 2 and 3 are sentenced to an aggregate sentence of 3 years’ imprisonment. I fix a non-parole period of 2 years’ imprisonment. On the uplifted related summary charge you are convicted and ordered to pay a fine of $1000.00. I will grant you a stay of 18 months to make payment.
16 I declare that 470 days of pre-sentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded in the records of the court.
17 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 4 years imprisonment with a non-parole period of 2 years and 9 months.
18 I make the forfeiture and disposal orders in the terms sought.
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