Director of Public Prosecutions v Ly
[2021] VCC 1070
•3 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00174
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHEN LY |
---
JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 June 2021 | |
DATE OF SENTENCE: | 3 August 2021 | |
CASE MAY BE CITED AS: | DPP v Ly | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1070 | |
REASONS FOR SENTENCE
---
Subject:Criminal Law - Sentence
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms C. Cameron | Office of Public Prosecutions |
| For the Accused | Mr C. Nikakis | Haines & Polites |
HIS HONOUR:
Introduction
1Mr Ly, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence, namely heroin, in a quantity that was not less than a commercial quantity.[1] The maximum penalty for that offence is 25 years’ imprisonment.
[1] Charge 1 in Indictment L11995228.
2You have also consented to this court hearing a number of related summary charges, to which you have also pleaded guilty.[2] Those charges and their applicable maximum penalties are as follows:
·Summary charges 3 and 9, deal with property suspected of being proceeds of crime, 2 years’ imprisonment;
·Summary charge 4, use unregistered vehicle on a highway, a fine of 50 penalty units;
·Summary charge 6, possess dangerous article, 6 months’ imprisonment;
·Summary charge 7, possess prohibited weapon without exemption/approval, 2 years’ imprisonment; and
·And summary charge 11, possession of a Schedule 4 poison without authorisation/licence, a fine of 10 penalty units.
[2] Summary charges 3,4,6,7,9 and 11 in the Notice of Related Summary Offences dated 1 June 2021.
Circumstances of the offending
3The circumstances in which you committed these offences are set out in the typed prosecution opening dated 1 June 2021, which your counsel acknowledged could be treated as an agreed statement of facts for sentencing purposes.[3]
[3] Exhibit A on the plea.
4You are now aged 43, having been born on 10 March 1978. At the time of this offending, you were 42 years of age and living in Richmond with your mother. Your former partner, Tamara Marshall, was also staying there. I note that Ms Marshall was also charged by police. An initial directions hearing was listed in this court on 1 June 2021, after she was committed for trial on charges of trafficking in a commercial quantity of heroin and trafficking and possession of heroin.[4] That hearing was adjourned until 21 June at which time the matter was further adjourned for a more detailed discussion of the issues at a Directions Hearing on 27 August 2021. I was advised by prosecuting counsel at this plea hearing that the sticking point for Ms Marshall appears to be the trafficking charges and, in particular, her purported knowledge of the heroin Mr Ly secreted in his underwear.
[4] Some additional related summary charges were also transferred to this court.
5I will now describe the circumstances of your current offending, Mr Ly.
6At about 9:10pm on 20 August 2020, you were driving your vehicle along Olympic Boulevard in Melbourne while Ms Marshall was seated in the front passenger seat. There was a vehicle check point in that area so as to enforce the 8pm curfew that was in place as part of the COVID-19 restrictions.
7When a police check revealed that the registration of your vehicle had been cancelled, they instructed you to pull over to the side of the road. This is the factual basis for summary charge 4, use unregistered vehicle on a highway.
8You appeared nervous to the police officer who then spoke to you. This, in combination with the fact that you were out past curfew, led him to believe that you and Ms Marshall may have been in possession of drugs.
9After removing the registration plates from the vehicle, that officer walked around to the passenger side and then noticed a small zip lock bag containing white powder in the passenger seat footwell.
10When the vehicle was then searched, the following items were located:
·A baton torch between the driver’s seat and the driver’s door. It is this item that is the subject of summary charge 6, possess a dangerous article;
·A box of Vasafil 100mg containing two tablets in a blister pack located in the driver’s side door. This forms part of the basis for summary charge 11, possession of a Schedule 4 poison (along with the two further tablets that were later located in your wallet);
·A Swarovski gift bag containing a necklace in a blue Nike bag located in the boot of the vehicle. This item of jewellery forms part of the basis for summary charge 9, deal with property suspected of being the proceeds of crime (along with the pendant and silver charm bracelet that police later located in your jeans); and
·A bottle of Anadrol 25mg in a blue Nike duffel and various items of mail in different people’s names, all located in the boot.
11When police seized and then searched the bum bag in your possession, they located the following items:
·Two infrared laser pointers, which provides the factual basis for summary charge 7, possess prohibited weapon without exemption/approval;
·$2265 in Australian currency in your wallet, which provides the factual basis for summary charge 3, the other charge of deal with property suspected of being proceeds of crime;
·Also located in your wallet were three Vasafil tablets. As earlier indicated, this forms part of the basis for summary Charge 11, possession of a Schedule 4 poison;
·A measuring scale in the appearance of a key; and
·A Samsung mobile phone.
12You were then arrested and taken back to St Kilda Police Station where you were subjected to a full search which located the following additional items:
·A pink jewellery box containing a heart shaped pendant and a pink jewellery bag containing a silver charm bracelet, in the front right pocket of your jeans. As earlier indicated, these additional items of jewellery form part of the basis for summary charge 9, deal with property suspected of being the proceeds of crime;
·$80 in notes in the rear right pocket of your jeans; and
·A brick of white powder secreted in a sock located in your underwear.
13A drugs search warrant was then obtained and later executed at your home address. In your bedroom, police located white powder in a plastic bag, six glass vials and a plastic tub, as well as $2,000 in Australian currency in a wardrobe safe.
14An area within the bedroom was set up with multiple sets of scales, foil used to smoke heroin, a chisel covered in white powder, multiple small zip lock bags, empty gelatine capsules commonly used to package heroin and Unisom sleep gels used by heroin users to prolong the effect of heroin. Further Unisom sleep gels were located in the safe.
15Police also located a mobile phone which had a live stream to a CCTV camera fixed to the outside of your premises.
16By the time police were in a position to interview you at the St Kilda Police Station, it was 21 August 2020. After answering their initial questions, you exercised your legal right by largely giving ‘no comment’ answers during the interview.
17When the Samsung mobile phone seized from your bum bag was analysed by police, it revealed that on the day of the offending, a number of text messages were sent and received in relation to selling and purchasing drugs.
18When forensically tested and analysed, the white powder located in the front passenger seat footwell of your vehicle was found to be heroin. It weighed 0.9 of a gram and had a purity level of 85%.
19The brick of white powder located in your underwear was subjected to the same testing and analysis. It was also found to be heroin. That brick weighed 174.9g and contained heroin at a purity level of 84%. It is your possession of this brick containing heroin, for the purpose of future sale, which forms the factual basis for charge 1 on the indictment, the indictable charge of trafficking in a commercial quantity of a drug of dependence.
20I interpose to note at this stage that both parties agree that the offence of trafficking in a commercial quantity of a drug of dependence is a Category 2 offence which therefore engages section 5 (2H) of the Sentencing Act 1991.
21Before leaving the prosecution opening, I just want to confirm the purpose of the references to such matters as the content of the text messages on the mobile phone and the fact that other items were found that could be described as being the indicia of drug trafficking, for example, the scales and plastic bags. As was conceded by Mr Nikakis, all of that is relevant to prove that at the time that Mr Ly possessed the brick containing heroin, he did so with the intention to ultimately sell it as opposed to having it for some other purpose. Mr Ly is not to be additionally punished for any other conduct for which he is not charged. I have therefore only had regard to those other references for the limited purpose of providing the necessary backdrop and context to his possession of the brick containing heroin which is the subject of the commercial trafficking charge alleged on the indictment.
Pre-sentence detention
22Mr Ly, I note that you have remained on remand since being arrested for this matter on 20 August 2020. By the date of the plea, you had spent 286 days in pre-sentence detention. At the time of sentencing, that figure is now 348 days, not including today’s date. That period will be formally declared in respect of this sentence shortly.
Criminal record
23As the criminal record filed with this court shows, Mr Ly, you have a very lengthy and very relevant prior criminal history. It spans no less than 22 pages and covers the 24 year period between 22 May 1995 and 15 August 2019. In that period, you appeared at court on no less than 27 occasions in respect of approximately 100 offences. The range of offences for which you have been previously sentenced is quite broad and encompasses trafficking, cultivation, possession and use of drugs, various weapon related offences, violence related offending and various types of dishonesty offences.
24Of particular note, for current sentencing purposes, are the following convictions. On my calculation, you have 8 previous convictions for trafficking in heroin (one in 1996, one in 1997, two in 1999, one in 2005, one in 2011, one in 2012, and the last one in 2013). You have also been convicted of possess a dangerous article in 1995, 2008 and 2010, of possession of a regulated weapon in 1998, of possession of a controlled weapon in 2005 and of use a prohibited weapon in 2019. Apart from the plethora of use and possess drug of dependence convictions (mainly for heroin), you also have convictions for possession of a prescription drug (in 2009), of alprazolam (in 2016) and of a schedule 8 poison (also in 2016). Among your prior convictions for dishonesty related offences are six convictions for the offence of deal with property suspected of being proceeds of crime (those convictions being recorded in 2005, 2007 (x3), 2011, and 2019, respectively).
25It is equally clear from your criminal record, that you have been given numerous opportunities through community based dispositions, to advance your prospects of rehabilitation. As the current offending shows, you have not grasped those opportunities. Nor have you been deterred from further offending by past sentences of imprisonment, whether wholly suspended or immediate. You have been placed on and breached multiple community based orders, as well as an intensive correction order and a community correction order. You have also breached a suspended sentence.
26Also of note is the fact that your current offences of 20 August 2020, appear to have been committed while you were still on the 12 month community correction order you received on 15 August 2019 for offences that included recklessly cause injury, drive while authorisation suspended, and use prohibited weapon without exemption/authorisation. That order did not commence until 13 September 2019 because you had also been sentenced to a term of 100 days’ imprisonment for other offences, of which 30 days were outstanding at the time of being sentenced on 15 August (70 days were declared by way of PSD).
Personal circumstances
27I now turn to your personal circumstances, Mr Ly.
28Your background was touched upon by your counsel and is referred to by the psychologist, Ms Gina Cidoni, in her report dated 15 February 2019.[5]
[5] Exhibit 2.
29Mr Nikakis described you as a long term drug user. He submitted that your criminal history supports that description. In the context of the current offending, he submitted that the evidence supported the fact that you were a street level trafficker, just as had been the case on previous occasions when you had been sentenced in the Magistrates’ Court.
30You appear to have few supports within the community although your mother, who was providing you with accommodation at the time of your offending remains
steadfast in her support of you.
31It needs to be noted at the outset, that Ms Cidoni assessed Mr Ly on 15 February 2019, that is, some 18 months or so before he committed the offences for which he now falls to be sentenced. That assessment was for the purposes of a pending court hearing with respect to offences of recklessly cause injury and using a prohibited weapon (a baton) committed on 4 August 2018.
32After noting some aspects of Mr Ly’s criminal history to that point, including that it was reflective of him being a long term heroin user, Ms Cidoni described his personal history in the following terms.
33He was born in Vietnam and came to Melbourne at age 3 months with his parents and three older brothers. His parents separated when he was 14. Following the separation, his mother did not cope well and one of Mr Ly’s siblings went to live with his father. In response to the turbulent family situation, Mr Ly left home and commenced to live on the streets of Richmond and with friends. His father died from cancer in about 2017 after a two year illness. His mother continues to live in a Housing Commission flat in Richmond.
34Mr Ly left school after completing Term 2 in Year 9. He worked as a car tinter for approximately 6 years before going on to the disability support pension approximately 15 years ago.
35Mr Ly managed to purchase a property at age 21 with money he had saved while working. It was sold about two years later. He was in a 10 year relationship with a woman named Chloe and they have a son who was, at the time of Ms Cidoni’s assessment, 18 years old. Mr Ly appears not to have any ongoing contact with either his former partner or son. On the breakdown of that relationship, Mr Ly returned to live with his mother until forming a new relationship which also lasted for 10 years. He and that partner, Misty, had two young children together. She is on methadone, having previously been a heroin user.
36In terms of substance abuse, Mr Ly gave Ms Cidoni the following history. He had binged on alcohol in adolescence. He commenced to use cannabis at age 14 and heroin at age 16. He has been addicted to heroin ever since. He had also used other drugs. At the time of being assessed by Ms Cidoni, Mr Ly was prescribed 100mils of methadone but admitted to continued use of heroin. He underwent rehabilitation at Odyssey House for 2 months and at Nacanon for 6 months where he met Misty. He, unlike Misty, relapsed into further drug use.
37Ms Cidoni assessed his full scale IQ as being 76, falling in the 5th percentile in the border line range of function. In her view, he fitted the criteria for substance use disorder and suffers from dysphoria and anxiety and is ruminative and compulsive. In Ms Cidoni’s opinion, those conditions, in combination, affected his capacity for thinking clearly and compromised his ability to problem solve and make sound judgements. Ms Cidoni did, however, also acknowledge that these factors were no doubt also further reduced while under the influence of any substance.
38In the context of Ms Cidoni’s ability to accurately assess Mr Ly at the time that she saw him, it must also be noted that on his own admission, Mr Ly was a long term and continuing drug user who had last used heroin as recently as the day before that assessment.
39In terms of any recommended treatment for Mr Ly as at February 2019, Ms Cidoni indicated that he would benefit from a period of intensive drug treatment and counselling to address his entrenched opiate addiction and the methylamphetamine use which underlay the weapon and violence offences for which she was asked to prepare her report.
Matters in mitigation
40Mr Ly, your counsel sought to rely on the following matters in mitigation on your behalf.
41Your family background was an unfortunate one and explains why you had recourse to drugs, including heroin, from a relatively young age. Given the addiction you developed, it also explains your frequent resort to crime over the years. Your profile, as assessed by Ms Cidoni, at least suggests that you are not as well equipped as some within the community to work your own way out of the cycle of drug use and offending that you are enmeshed in. You clearly need intensive professional assistance in order to have any realistic chance of achieving significant rehabilitation in the future.
42You pleaded guilty to these charges at the earliest reasonable opportunity, namely at the committal mention stage. You were then committed to this court by way of a straight hand-up-brief procedure, thereby avoiding the necessity for the prosecution to call any witnesses. By taking that course as and when you did, you have saved the community from the time and cost associated with a trial and facilitated the course of justice. The utilitarian value of a plea is greater when, as here, it is entered during a Covid-19 pandemic created backlog of trials, when this court is facing significant case listing pressures.[6]
[6] See Worboyes v The Queen [2021] VSCA 169.
43In those circumstances, I consider it appropriate to provide you with a significant sentencing discount for pleading guilty to these charges at the stage that you did.
44Whilst your preparedness to plead guilty to these charges also demonstrates that you are willing to take legal responsibility for your criminal conduct, I do not consider that it reveals genuine remorse on your part. It was only to that plea that your counsel could point in order to submit that you were remorseful. I simply cannot, in the circumstances, accept that submission. This was, in my view, a strong prosecution case where you had deliberately secreted a significant amount of white powder in brick form in your underwear. It would be a short step indeed for a jury to draw the necessary inferences that you knew the nature and quantity of that substance and intended to on sell it, especially given what was later found on your phone and in your bedroom. Further, your repeated instances of trafficking in heroin in the past tell against your professed remorse for this most recent and most serious of your offending.
45You have spent a significant period on remand awaiting sentence for this matter.
46INTERPRETER: Excuse me, Your Honour?
47HIS HONOUR: Yes? Yes, madam interpreter.
48INTERPRETER: I got lost. I got lost, where are you now, Your Honour?
49HIS HONOUR: I am at paragraph 45. 'You have spent', do you see that? Top p11.
50INTERPRETER: Yep, I - I got it.
51HIS HONOUR: You okay now?
52INTERPRETER: Yep - yeah, I'm okay now. Thank you, Your Honour.
53HIS HONOUR: Thank you.
54You have spent a significant period on remand - - -
55INTERPRETER: (Foreign words spoken).
56HIS HONOUR: Mute.
57INTERPRETER: Sorry.
58HIS HONOUR: You need to be on mute, thank you.
59You have spent a significant period on remand awaiting sentence for this matter. I accept that the COVID-19 pandemic has made that remand experience more onerous than it otherwise would have been on account of the restrictions which Corrections Victoria had to implement in relation to visitation rights, movements of prisoners and remandees, and their ability to undertake courses, education and work within the prison system. I also accept that those within the prison system may well have felt and continue to feel a heightened sense of anxiety in relation to contracting the coronavirus within such a restricted environment.
60No doubt, at least in the medium term, some or all of those factors will continue to influence, to some degree, the difficulty of serving the sentence you are about to receive, Mr Ly.
61You have always had, and continue to enjoy the support of your mother. She will provide you with accommodation on your eventual release from custody and that is certainly better than you being itinerant or homeless. But, it is also potentially problematic, in this sense. Your current offending occurred whilst you were living with her and your bedroom seems to have been the command post for your future drug selling operation. Clearly, your mother had no ability to control or significantly influence your decision making insofar as your offending was concerned.
62In the past, you have at least attempted two periods of drug treatment and counselling of your own volition. That at least suggests that you may be prepared to accept and attempt to engage in whatever further assistance is available, whether by way of courses in custody during the remainder of your sentence, or as part of the parole conditions you may be released on, or both.
Gravity of the offending
63One of the other matters to which this court must have regard is the objective gravity of the offending.
64As can be gleaned from the very high prescribed maximum of 25 years’ imprisonment, trafficking in a commercial quantity of a drug of dependence is an intrinsically serious offence.
65The amount of the drug trafficked is an important but not the only relevant factor that needs to be considered. In this case, Mr Ly was in possession for sale of 174.9 grams of substance that contained heroin which, at a purity level of 84%, equates to 146.9 grams pure. In this context, it is relevant to note that the statutory threshold amount for a commercial quantity of the drug heroin is 50 grams pure and 250 grams mixed, while for a large commercial quantity, the threshold amounts are 500 grams and 750 grams, respectively. Thus, Mr Ly trafficked in almost three times a commercial quantity based on the pure quantity. By reference to the pure quantity of heroin, that represents a fraction over 29% of a large commercial quantity of heroin.
66This is a single date trafficking charge not a between dates charge. Mr Ly is charged as a principal for this offending since he obtained this block of heroin with a view to selling it in smaller quantities on a street level basis. And, as the mobile phone analysis and the various other items that police found reveal, he was well set up to operate a business of that type. In other words, this was not a spontaneous involvement in a serious drug enterprise but rather a planned and fairly sophisticated venture by a person well versed in the ways of the drug trade. Whilst I accept that Mr Ly was himself a drug user, it seems clear that he was also motivated by the profits to be derived from involvement in the drug trade.
67In all of those circumstances, I consider this to be a relatively serious example of an inherently serious offence. I have no doubt that Mr Ly would have realised at the time that he was involving himself in serious criminality which would have serious ramifications for him if he were caught. I regard his moral culpability for this offending to be of a high order notwithstanding what Ms Cidoni had to say in her 2019 report.
68In my view, and notwithstanding that the value of the jewellery is not specified, each of the offences of deal with property suspected to be proceeds of crime are to be assessed as being towards the mid range of seriousness on the spectrum of seriousness for offences of this type.
69The possess dangerous article offence involving the torch baton is far from a minor example of that type of offence.
70The same can be said of the possess prohibited weapon offence which, I note, involves two laser pointers not one.
71The possession of a Schedule 8 poison offence, given the small quantity involved, is of lesser significance in the scheme of things.
72As for the use unregistered vehicle offence, I regard it to be neither a minor nor an overly serious example of its type.
73In relation to all of this offending, it must also be remembered that it is aggravated by the fact that it occurred during the currency and therefore in breach of, the community correction order that Mr Ly received on 15 August 2019. He commenced that 12 month order on 13 September 2019, the date he was released from serving the 100 day sentence he received for the other offences for which he was also sentenced on 15 August. Accordingly, it seems that Mr Ly committed the current offences approximately 11 months and 1 week into that 12 month community correction order.
Relevant sentencing principles
74The sentencing principles of general deterrence and denunciation are of real significance in this case. Drug trafficking has been rightly identified as a scourge on our society. The community rightly expects that the courts who sentence offenders for committing serious drug trafficking offences will impose appropriately stern sentences in order to deter others in the community who might be tempted to engage in such serious criminality, and in order to vindicate the community’s values by denouncing such conduct in clear and unmistakable terms.
75Specific deterrence also looms large as a sentencing factor in this case. Mr Ly has a formidable and very relevant criminal history, including for offences of the same or a similar type to the current offences for which he now falls to be sentenced. He has clearly not learnt from past sentences, including terms of imprisonment. It is of considerable concern that his current offending appears to demonstrate his preparedness to not only continue offending but to escalate it in terms of its seriousness. He must be left in no doubt by today’s sentence that such behaviour will not be tolerated by the courts so as to make him think twice in the future about committing these or any similar types of offences.
76For much the same reasons, protection of the community is a relevant sentencing factor to which this court must have regard when sentencing Mr Ly. To some extent, the sentence imposed must afford a level of protection to the community from him.
77Mr Ly’s age and prospects of rehabilitation must also be given their due weight. He is a mature aged man who has amassed a lengthy criminal history. Even allowing for other more positive aspects of his personal circumstances, his prospects can only be considered as very guarded and at best, relatively poor, in my view.
78In the end, this court is required to punish Mr Ly to an extent and in a manner that is just in all the circumstances. Given the nature and seriousness of this offending, I consider that in order to be just, any such punishment needs to be a substantial one.
Sentencing submissions
79Whilst in no way seeking to detract from the seriousness of this offending, Mr Nikakis sought to put it in context by noting that Mr Ly had been battling with a long term drug addiction for many years and that until this matter, his largely drug related prior offending had been dealt with in the Magistrates’ Court jurisdiction. He also noted that Mr Ly had never had assistance in the form of a parole period previously.
80In his written submissions, defence counsel noted Ms Cidoni’s observations in relation to Mr Ly’s IQ, shortcomings with respect to thinking clearly, problem solving and making sound judgements, but without seeking to submit that Mr Ly had impaired mental functioning. In his oral submissions at the plea, Mr Nikakis made it clear that he was not suggesting that the evidence in this case established any of the principles in Verdin’s case.
81Ultimately, Mr Nikakis acknowledged that Mr Ly’s prospects were ‘very guarded’ and that nothing short of a head sentence with a non-parole period was open given the gravity of Mr Ly’s current offending and his very relevant prior criminal history. However, defence counsel did argue that it was appropriate for the court to give Mr Ly the opportunity for an extended period of supervised release on parole to assist him with his rehabilitation. As he put it, the strictness of a parole regime may be just the thing Mr Ly needs to get him on the right track with regards to his rehabilitation.
82For their part, the prosecution noted the seriousness of the current offending and highlighted the need for the court to have regard to denunciation, protection of the community and deterrence, in particular, specific deterrence. Ms Cameron, counsel appearing on behalf of the Director, also submitted that notwithstanding the observations of Ms Cidoni, Mr Ly’s moral culpability for his current offending was high. Accordingly, the prosecution also submitted that only a sentence comprising a head sentence with a non-parole period was open in all the circumstances of this case.
Other sentencing materials
83In addition to those sentencing submissions from the parties, I have also had regard to, in a very general way, other sentencing materials, including the latest Sentencing Snapshot for the offence of trafficking in a commercial quantity of drugs[7] and the Judicial College of Victoria’s summary of recent Court of Appeal cases relating to this type of offence.[8] I have also had regard to the recent observations of the Court of Appeal in Gayed v The Queen[9] regarding the proper application of Gregory v The Queen.[10]
[7] Sentencing Snapshot No. 244, for the period 2014-15 to 2018-19, published by the Sentencing Advisory Council in August 2020.
[8] Published in the Victorian Sentencing Manual at paragraph 7.3.1.2.
[9] [2021] VSCA 141.
[10] (2017) 268 A Crim R 1.
84In the end, though, as with all sentencing exercises, the circumstances of the particular offending and offender before the court must remain the focus and individualised justice must be the result. And, that is what I have sought to do and achieve in this case.
Analysis
85Having done so, it is my considered view that nothing short of a substantial sentence of imprisonment is appropriate in this case. If the court were to do otherwise it would not be giving due regard to the relevant sentencing considerations, in particular, denunciation and deterrence, both general and specific, and it would not be imposing a punishment that was just in all the circumstances.
86As this will be the longest sentence that Mr Ly will serve to date, by some margin, and in order to foster and facilitate what limited prospects of rehabilitation he does possess, I intend to give him the opportunity to be considered for eligibility for release on a relatively extended period of tailored and supervised parole in the community. Whether he is so released, and if so when, is appropriately and ultimately, a matter for the Adult Parole Board and not this court.
87Of course, there are limits to how low and how disparate any non-parole period can be. It should not be so low that it undermines the very sentencing principles that need to be recognised or results in a sentence that is not just in all the circumstances.
Sentence.
88After considering, balancing and weighing all of the relevant sentencing considerations in this case as best I can, I have decided to convict Mr Ly on each charge and sentence him as follows.
89On charge 1, trafficking in a drug of dependence in a quantity that was not less than a commercial quantity, to a term of 6 years’ imprisonment.
90On summary charge 3, deal with property suspected of being proceeds of crime, to a term of 4 months’ imprisonment.
91On summary charge 9, deal with property suspected of being proceeds of crime, to a term of 4 months’ imprisonment.
92On summary charge 6, possess dangerous article without lawful excuse, to a term of 1 months’ imprisonment.
93On summary charge 7, possess a prohibited weapon without exemption/approval, to a term of 3 months’ imprisonment.
94The sentence of 6 years imposed for charge 1 on the indictment will be the base sentence.
95I make the following orders for cumulation. One month of the sentence imposed for each of summary charges 3, 7 and 9 are to be served cumulatively with the sentence imposed on charge 1 and on each other.
96The total effective sentence of imprisonment is therefore 6 years and 3 months’ imprisonment.
97In respect of that head sentence, I fix a non-parole period of 4 years and 3 months.
98In relation to the two remaining summary charges, Mr Ly will be fined the following amounts, with conviction.
99On summary charge 4, use an unregistered vehicle on a highway, $500.
100On summary charge 11, possess a Schedule 8 poison, $250.
Pre-sentence Detention
101Pursuant to s.18 of the Sentencing Act 1991, I declare that Mr Ly has already served a total of 348 days pre-sentence detention, not including today’s date, in respect of the custodial sentence that I have imposed on him today. I order that such period is to be reckoned as already served under that sentence, and I further order that the declaration and its details be entered in the records of this court.
Section 6AAA indication
102Pursuant to s.6AAA of the Sentencing Act 1991, I give the following indication.
103But for Mr Ly’s pleas of guilty to the offences for which he has been sentenced to terms of imprisonment today, he would have been sentenced to a total effective sentence of 8 years with a non-parole period of 6 years for those offences.
Ancillary Orders
104In the exercise of my discretion, I grant the prosecutions application for a disposal order, in the terms sought, pursuant to section 78(1) of the Confiscation Act 1997.
105In addition, I also grant, in the exercise of my discretion, the prosecution's application for a forfeiture order in the amended terms, pursuant to section 33(1) of the Confiscation Act 1997.[11]
[11] In the amended application for a forfeiture order, the prosecution no longer sought to have Mr Le’s vehicle included in the order.
106I note that neither application was opposed by the defence.
Other matters
107Counsel, is there any matter that either of you wish to raise at this stage in relation to the sentence - - -
108MR NIKAKIS: No, Your Honour.
109HIS HONOUR: - - - or the sentencing reasons?
110MS CAMERON: No, your Honour.
111HIS HONOUR: Mr Nikakis, do you wish to have the opportunity of speaking briefly to your client via the current Webex link?
112MR NIKAKIS: Yes, your Honour, that would be helpful. It won't be very long, I just thought I'd advise him of what my next move is.
113HIS HONOUR: All right.
114MR NIKAKIS: Thank you.
115HIS HONOUR: All right. Mr Nikakis, would you mind just repeating that with your mask removed just so it is - - -
116MR NIKAKIS: Thank you, Your Honour. Yes, I'd be grateful if I could talk to him for about two or three minutes just to advise him of a couple of things.
117HIS HONOUR: Yes, I will certainly give you that opportunity, Mr Nikakis. And to facilitate that aim the interpreter will also remain on the link to provide interpreting assistance.
118MR NIKAKIS: Thank you, Your Honour.
119HIS HONOUR: Madam interpreter, could you - - -
120INTERPRETER: Yes. Yes, Your Honour.
121HIS HONOUR: - - - do that. And thank you for doing so, and also for providing the assistance to the accused that you have during the course of this fairly lengthy sentencing exercise, thank you.
122INTERPRETER: Yes, thank you, Your Honour.
123HIS HONOUR: Yes, very well. This court is adjourned now until 1.30pm tomorrow.
- - -
0
2
0