Director of Public Prosecutions v Ly
[2021] VCC 473
•23 April 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01556
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOA TRAN LY |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 March 2021 and 13 April 2021 | |
DATE OF SENTENCE: | 23 April 2021 | |
CASE MAY BE CITED AS: | DPP v Ly | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 473 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Trafficking in a drug of dependence in not less than a commercial quantity – Trafficking in a drug of dependence – Non-prohibited person possess handgun without a licence – Unlicensed person store in an insecure manner – Giretti trafficking – Early pleas of guilty – Low scale street level dealing over a short period time – Strong family support – Deprived upbringing – Verdin’s principle 5 engaged – Cooperated with police from the outset – Drug addiction
Legislation Cited: Criminal Procedure Act 2009 ss 145 & 242 – Sentencing Act 1991 ss 3(1) & 5(4)
Cases Cited:Brown v The Queen [2020] VSCA 212 – R v Doran [2005] VSCA 271 – Brown (aka Davis) v The Queen [2020] VSCA 60 – DPP v Dalgliesh (a Pseudonym) (2017) 262 CLR 482 – Gregory v The Queen (2017) 268 A Crim R 1 – Nguyen v The Queen [2019] VSCA 184 – Hudgson v The Queen [2016] VSCA 254 – Farmer v The Queen [2020] VSCA 140
Sentence: Total effective sentence of 3 years’ imprisonment with a 18 months’ non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms T N Bolton Ms Z Garde-Wilson | Garde Wilson Lawyers |
HIS HONOUR:
1 Hoa Tran Ly, you have pleaded guilty to an indictment containing four charges – one charge of trafficking in a drug of dependence in not less than the commercial quantity (Charge 1), one charge of trafficking in a drug of dependence (Charge 2), one charge of non-prohibited person possess handgun without a licence (Charge 3) and one charge of unlicensed person store a firearm or ammunition in an insecure manner (Charge 4). Charge 4 is a rolled-up charge[1] in relation to a shotgun and a box of cartridge ammunition for the shotgun located in your garage.
[1] See R v Jones [2004] VSCA 68, [12–[13] (Charles JA, Phillips JA and Bongiorno AJA agreeing); Reid (a pseudonym) v The Queen (2014) 42 VR 295, 308 [74] (Priest JA, Maxwell P and Whelan JA agreeing).
2 You have also consented to have this Court deal with four transferred related summary offences[2] of use a drug of dependence (Summary Charge 1), possess prohibited weapons without an exemption (Summary Charge 2), possess a controlled weapon without lawful excuse (Summary Charge 4) and dealing with property suspected of being the proceeds of crime (Summary Charge 7). You have pleaded guilty to all these charges.
[2] Pursuant to Criminal Procedure Act 2009 ss 145 & 242.
3 The maximum penalty for trafficking in a drug of dependence in not less than the commercial quantity is 25 years’ imprisonment. The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. The maximum penalty for non-prohibited person possess handgun without a licence is 4 years’ imprisonment or 240 penalty units. The maximum penalty for unlicensed person store a firearm or ammunition in an insecure manner is 4 years’ imprisonment or 240 penalty units. The maximum penalty for use a drug of dependence is 1 year’s imprisonment or 30 penalty units or both. The maximum penalty for possess a prohibited weapon without an exemption is 2 years’ imprisonment or 240 penalty units. The maximum penalty for possess controlled weapon is 1 year’s imprisonment or 120 penalty units. Finally, the maximum penalty for dealing with property suspected being proceeds of crime is 2 years’ imprisonment.
The Facts
4 For the purposes of sentencing you, I accept the facts as set out in the amended summary of prosecution opening dated 12 April 2021, which your counsel said I can treat as a statement of agreed facts.[3]
[3] Exhibit P1.
5 On 3 May 2020, police attended at Gertrude Street in St Albans for a welfare check on a male who appeared to be unconscious in a green Toyota Landcruiser, bearing Victorian registration number ODM-162. You were that person.
6 Police observed you asleep in the driver's seat of the vehicle, the ignition appeared to be on, the tail-lights were illuminated and the driver's side window was open. Upon being asked, you exited the vehicle and were placed in handcuffs. You appeared to be drug affected. Your speech was slurred and your pupils were highly dilated.
7 When asked if there were any drugs or weapons in your vehicle, you said there was ‘ice’ in the vehicle. You told police you had used ‘ice’ about three hours earlier (Summary Charge 1).
8 Police searched the vehicle and located the following items:
(a) a sword and a laser pointer (part Summary Charge 2);
(b) a dagger (Summary Charge 4);
(c) four mobile phones (part Summary Charge 7);
(d) $1,370 in cash (part Summary Charge 7);
(e) 37.3 grams of methylamphetamine in various zip-lock bags (part Charge 1);
(f) a black magnetic storage box containing various zip-lock bags;
(g) scales; and
(h) ‘ice’ pipes.
9 I have viewed photographs of the various items found in your vehicle.[4] The sword and the dagger are particularly nasty looking weapons which could inflict very serious bodily injury.[5] The fact they were located in your motor vehicle co-located with drugs is particularly concerning.
[4] Exhibit P3.
[5] Ibid photographs C1, C2 and F.
10 You were arrested and conveyed to the Sunshine police station for interview. At 9:18pm, police commenced an interview with you during which you said the following:[6]
[6] Exhibit P2.
(a) You admitted being in possession of the laser pointer but said you did not know it was illegal to have one.
(b) You said you used the sword for gardening at your property in Yarraville.
(c) You admitted being in possession of ‘ice’ located in your vehicle. You recently struggled financially and purchased ‘ice’ for your own personal use and also to sell.
(d) The ‘ice’ came already portioned and most recently you purchased an ounce. You carried it around, used it, shared it, and sold it to your friends. When asked about ‘ice’ found in the car, you said you did not know how much was for your personal use and how much you intended to sell.
(e) You earned a portion of the money found in your possession by working as a part-time cleaner. You did not know how to activate your bank card and deposit money. Consequently, you carried the money you earned in your wallet.
(f) You admitted $100 to $140 of the money found in the vehicle was proceeds of a drug deal.
(g) You admitted selling one bag of ‘ice’ for $200. You said you only had one customer.
(h) You explained the reason you bought a relatively large quantity of drugs is so you could then sell or share it with your friends, thereby reducing the cost to you of using ‘ice’.
(i) You told police you used the four mobile phones, which were located in your vehicle, to play video games.
(j) You said the zip-lock bags located in your vehicle were empty bags previously used by you. You said you had found the fresh bags, that had not been used, and just kept them.
(k) You said the scales located in your vehicle were used to check the amount of methylamphetamine you purchased was the correct amount and to weigh the ‘ice’ before you provided it to your friends.
11 The interview was suspended at 10.24pm to allow further enquiries to be conducted. A search warrant was applied for under the Drugs Poisons and Controlled Substances Act 1981 to search your home in Brooklyn.
12 On 4 May 2020, police attended your home and executed the search warrant. Your wife and children were home at the time and peaceful access was gained. It was indicated you were residing in the garage at the address and police began searching that area.
13 Inside the garage, police located the following items:
(a) 104.2 grams of methylamphetamine (part Charge 1);
(b) 764.9 grams of cannabis (Charge 2);
(c) a sawn-off 12-gauge E Contento shotgun (Charge 3);
(d) six 12-gauge shotgun cartridges;
(e) a pair of black plastic knuckle dusters and a taser device (part Summary Charge 2).
14 Police located the firearm inside a black zip-up case at the entrance to the garage, up against a wall on the right-hand side. The firearm was in two parts. A box of 12-gauge ammunition was located in an unlocked draw in the garage (Charge 4).
15 At approximately 4.27am on 4 May 2020, police recommenced the interview with you in relation to the items located during the execution of the search warrant. You said the following:
(a) You admitted having a shotgun stored in the garage and said you obtained it from someone who owed you money. A debt of $2,000 was owed to you and the shotgun was given to you as payment. You did not think about the consequences of having the shotgun in your possession and you did not hold a firearms licence.
(b) The 12-gauge shotgun ammunition was also given to you by the man who gave you the shotgun.
(c) You admitted storing cannabis in the garage and said this was given to you by a friend and it had been sitting there for weeks. You thought it was rubbish, although you knew it was cannabis. Your initial intention was to mix it with tobacco, but you never got around to it.
(d) You admitted having ‘ice’ stored in the garage. You said some of that drug was unusable and another substance in the zip-lock bag was sugar.
16 Following your arrest, police were able to analyse one of your phones and discovered your ongoing involvement in drug trafficking activity from 26 March 2020.
17 You were supplying drugs, but many of the conversations also focus on requests for payment so that you can ‘balance’. You also asked for time to find out about available products from other sources.
18 The drugs were analysed by an officer of the Victoria Police Forensic Services Department on 2 October 2020. The purity was ascertained to be between 80% to 92%. The total quantity of pure methylamphetamine was analysed to be 123.6 grams.
19 Charge 1 is put on the basis that you were engaging in the business of trafficking[7] between 26 March and 4 May 2020. At the time of your arrest, you were in possession of a commercial quantity of methylamphetamine for sale, being the combined total of 123.6 grams pure located in the car and in the garage. That is 2.47 times the commercial quantity applicable to methylamphetamine.[8]
[7] See Giretti v The Queen (1986) 24 A Crim R 112.
[8] At the relevant time a commercial quantity of methylamphetamine was 50 grams pure or 250 grams mixed.
20 Based on your own admissions and text messages extracted from your mobile phone, you were also selling on a small scale during this period. The quantity involved, over and above the quantity located by police, is unknown. I will sentence you on the basis you trafficked at least the 123.6 grams of pure methylamphetamine.
21 Analysis of your mobile phone disclosed your ongoing involvement in small scale drug trafficking activity from 26 March 2020, the commencing date of the period charged in Charge 1. You were supplying drugs in relatively small quantities. Amounts worth $100 are discussed on a number of occasions. Prices are discussed and many conversations focus on requests for payment so you can ‘balance’. You also ask for time to establish the availability of drugs from your supplier.
22 Turning to Charge 2, the total quantity of cannabis seized was 764.9 grams. This equates to just over three times the traffickable quantity applicable to cannabis.[9]
[9] At the relevant time a traffickable quantity of cannabis was 250 grams.
23 So far as Charge 3 is concerned, preliminary examination of the shotgun, conducted on 20 September 2020, showed the firearm meets the definition of a handgun pursuant to s 3(1) of the Firearms Act 1996. The firearm was found to be capable of discharge and is a registered firearm. It was modified with barrels sawn off and finished. The buttstock was sawn off and finished into a pistol grip. The overall length was 460mm and the barrel length was 253mm. The fabric pouch held six 12-gauge, Winchester brand cartridges. These cartridges were suitable for use in the seized firearm.
24 I have viewed photographs of the shotgun.[10] Clearly, it had been modified to be easily concealed on the person and it had the capacity to kill or cause very serious injuries indeed. I have also viewed a photograph of the knuckle dusters,[11] which appear designed to inflict serious injury.
[10] Exhibit P4 photograph 4 and exhibit P5 photograph 1.
[11] Exhibit P5 photograph 3.
25 In a statement by Senior Sgt Pinner dated 15 March 2021, the firearm is described as a shotgun – Category A Longarm. The firearm was registered. It was reported stolen to police on 6 July 2017. You are not charged with any offence relating to the weapon being stolen.
Offence Seriousness
26 Trafficking in a commercial quantity of a drug of dependence is a very serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed in Charge 1.
27 In my opinion, your offending falls at the lower end of the scale for offences of this type. The prosecution submitted ‘the overall objective gravity of the offending in this case is in low to medium range for this type of offending’.[12]
[12] Crown Submissions dated 10 March 2021 (Ex P6) [2].
28 As the Court of Appeal has recently reiterated, the sentencing regime for drug trafficking offences is quantity-based and, while the quantity trafficked is not determinative of my assessment of the objective gravity of these offences, it will always be of importance.[13] All things being equal, the greater the quantity trafficked, the more serious the trafficking offence.[14] Other important indicators of offence seriousness are your role, the duration of your offending and your motivation for involvement in it.[15]
[13] Fatho [70]; DPP v Gregory (2017) 268 A Crim R 1, 7–8 [23]–[24] (Maxwell P, Redlich and Beach JJA) (‘Gregory’).
[14] Fatho [70]. See also Gregory, ibid; DPP v Fernando (2017) 268 A Crim R 26, 38–40 [50]–[55] (Redlich JA); DPP v KMD (2015) 254 A Crim R 244, 254 [36], 257 [50]–[52], 260 [64] (Maxwell P, Weinberg and Beach JJA); Adams v The Queen (2008) 234 CLR 143.
[15] Gregory 8 [24].
29 The quantity trafficked by you is high enough considering it is nearly 2½ times the commercial quantity threshold and 25% of the large commercial quantity threshold for the drug in its pure form.[16] Nonetheless, in terms of quantity, in my view, yours is not mid-range offending. Your role was one of low scale street level dealing, over a short period time (40 days), and your motive was to support your own habit.
[16] 500 grams of pure drug was the large commercial quantity at the relevant time.
30 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe grave harm is inflicted on the community by offences involving the trafficking of methamphetamines by modern methods. The harmful effects of methylamphetamines and the seriousness of these offences has been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[17]
[17] See eg Gregory ibid; Fernando v The Queen (2017) 268 A Crim R 26, 41 [61]; Arico v The Queen [2018] VSCA 135 [338]–[339].
31 I accept there is no evidence of significant enrichment arising from your participation in the present offences and there is no evidence you were living a luxurious or grandiose lifestyle. As your counsel put it, at the time of your arrest you were living in squalor in a garage. I have viewed police photographs of the circumstances in which you were living.[18] You had clearly reached ‘rock bottom’.
[18] Exhibit D6.
32 You also fall to be sentenced on one charge of trafficking in a drug of dependence, which is also a relatively serious criminal offence, as indicated by the maximum penalty of 15 years’ imprisonment. I note this was single day offending and involved three times the traffickable quantity applicable to cannabis.
33 It is concerning that a sawn-off shotgun and associated ammunition was found co-located with drugs in the garage in which you were residing. This is an aggravating circumstance in relation to your possession of the firearm (Charge 3).[19] Moreover, as the prosecutor correctly submitted, general deterrence is a significant consideration in sentencing you for this offence.
[19] Berichon v The Queen (2013) 40 VR 490, 496 [26] (Redlich JA). See also R v Graham (2007) 178 A Crim R 467; Armistead v The Queen [2011] VSCA 84.
Personal Circumstances
34 You are now aged 48 and were 47 years old at the time of committing these offences. Prior to being remanded in custody by me on 13 April 2021, you resided in a house in the Melbourne suburb of Seabrook with your wife and three children — a daughter aged 17, a son aged 13 and another daughter aged 7. Your mother-in-law also resided with you. Your daughter is studying Year 12 at Williamstown High School. She wrote a character reference on behalf of your three children.[20] You have the full support of your wife and children.
[20] Dated 24 February 2021 (part Ex D5).
35 You were born in Vietnam during the Vietnam War. Your family origins are unknown to you. You remain unaware of the fate or identification of your biological parents. Prior to his death, your adoptive father disclosed to you that you were adopted within months of your birth, however, the process was not a formal arrangement. Your adoptive father told you the Vietnam War was being fiercely contested in the region of Nha Trang. The city itself was being heavily bombarded with artillery at the time. Apparently, as dusk was coming on, a woman approached your father and told him to take you. The fact that your biological family remain unknown to you continues to cause you significant grief.
36 You remained in Vietnam with your adopted family until 1979. You recall your siblings were significantly older than you and, as a consequence of both parents working full-time, you were left at home on your own for many hours at a time. You told Mr Armstrong, a consultant psychologist engaged by your legal representatives, that you were told to ‘piss in the corner’ and you used to wait behind the front door for someone to come home. There was no extended family available as most, if not all of them, had fled Vietnam after the war.
37 You told Mr Armstrong that you and your family fled Vietnam by boat. You have some recollections of the boat trip, which included being stranded at sea for 11 days following the boat’s mechanical failure. You and your family were rescued by the Hong Kong Coast Guard and placed in a refugee camp. Your family remained in the refugee camp for 8 months, before being settled in Australia as recognised refugees.
38 You remained in a hostel in Maribyrnong before settling in the North Melbourne Housing Commission flats. You told Mr Armstrong that whilst you were surrounded by crime, violence and drugs, you did not align yourself with this lifestyle until late adolescence.
39 You reported an experience of chronic familial violence post settlement in Australia. You told Mr Armstrong that you were treated differently by your parents and siblings, you said you were ‘the black sheep’. You reported that you were physically belted on a daily basis and recalled several incidents vividly. You reported one occasion where you dropped a jar of sugar that smashed and ‘Mum hit me over the head with a metal chair’. You reported that you would immediately flee the house after violence, a situation compounded, as your brother would chase you.
40 You said that you would often find yourself at the brunt of violence from your siblings. You said one day you fought them all in a row, one after the other. You reported that you grew up unwanted and developed with this belief system. You recalled the first occasion of being slapped hard in the face, you ran away from home and hid in a friend’s closet. They fed you and then took you back to the hostel.
41 Your familial circumstances were compounded by material and emotional deprivation. You said there was never affection. Your birthdays were never celebrated, and you never had toys except you had a girl’s bike and a skateboard.
42 You said your parents’ relationship was a loveless one. They lived in separate bedrooms. You were running away from them before the age of 12 years. You denied instances of homelessness.
43 So far as your education is concerned, you attended North Melbourne primary school and Parkville Secondary College. You repeated Year 10 and 11 twice and did not complete Year 12. You denied to Ms Amanda Brown, a counsellor, that you had problems with writing and reading. You had casual employment at the Victoria Market throughout your schooling from age 13 to 18.
44 You first experimented with cannabis when you were aged 15 years. You reported at least weekly use and that consuming cannabis helped you to relax. You began using Rohypnol from approximately 17 years of age and you were using daily until your arrest for armed robbery in about 1991. You said that Rohypnol wiped your memory and the allure of taking the drug was that it wiped painful memories of the daily experience of your family situation.
45 You were paroled on 5 November 1995 after having served nearly three years and four months in prison for four armed robberies, causing injury charges and property damage.[21] You secured work as a trainee pastry chef on release and you reported you remained drug free.
[21] See R v Ly and Nguyen (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, Phillips CJ, Hampel and Vincent JJ, 20 October 1992).
46 You met your wife within three weeks of your release from prison. She supported you in court during the present plea hearing.
47 You worked as an employee in bakeries for several years before buying a share in a bakery business. Although you worked for one year in construction, you mostly worked in hospitality, baking and catering as a self-employed person. With the financial support of your mother-in-law, you bought and sold catering and baking businesses in the latter part of the 1990s and until your arrest. You and your wife worked 6 to 7 days per week since this time.
48 You established a profitable café in about 2008. While the business became profitable, you developed a significant gambling addiction. You used the profits of the business to feed your daily gambling habit. Your losses culminated in debts of $200,000, which forced you to confess to your wife. You allowed your wife to step in and manage your finances. You told her to only give you cash for fuel and cigarettes.
49 You lost your catering business as a result of the COVID-19 pandemic and became unemployed, receiving JobKeeper payments. Your wife has not worked since you lost your catering business. This put severe financial pressure on you to support your family.
50 You first experimented with cocaine in approximately 2012. After receiving an order for 1400 pies, you complained to friends you would need to stay awake for two days to attend to the order. You were offered cocaine, and this was your first experience of it. You said that cocaine was too expensive, and you began to experiment with ‘ice’. Your use quickly escalated to at least multiple times per week. You told Mr Armstrong that your catering business ‘paid the bill’.
51 You attempted several other business enterprises which failed or led to you losing significant money.
52 From the beginning of 2019, your use of ‘ice’ escalated to 4 to 5 days per week. You disclosed your use of ‘ice’ to your wife as you could no longer conceal your level of use and the impact on your family’s finances. You told Mr Armstrong you were relieved when you told your wife, but you kept using, nonetheless. You feared you wife would leave you, however, upon realising she would stand by you, your ‘ice’ use escalated.
53 You reported that you were using at least 0.5 gram of ‘ice’ everyday by October 2019. You described a use pattern consistent with the biological and psychological criterion for Stimulant Use Disorder (DSM-5). You used it to relieve cravings. You reported a preoccupation with using stimulants despite placing your family in a precarious position. You used despite the fact that use of the drug caused ongoing distress for your partner. You also used to avoid withdrawal syndrome. You required increasing amounts of the drug to bring about a desired level of intoxication leading to a level of tolerance.
Mental State
54 I have had regard to a psychological assessment report prepared by Mr Luke Armstrong, a consultant psychologist, dated 10 March 2021.[22] Mr Armstrong conducted an assessment and prepared a report on behalf of your legal representatives. He conducted a face-to-face interview with you over 7½ hours and spoke with your wife by telephone.
[22] Exhibit D2 (‘Armstrong Report’).
55 Mr Armstrong administered the Wide Range Achievement Test (Version 5) and the Minnesota Multiphasic Personality Inventory – Second Edition. He diagnosed you as having a Gambling and Stimulant Use Disorder and as having ‘certainly aspects of a Dependent Personality Disorder’, falling short of a personality disorder.[23] You also ‘most likely’ suffer with Dysthymia (dysphoric mood).[24]
[23] Armstrong Report p 5.
[24] Ibid p 6.
56 Mr Armstrong opined you did not present as thought disordered as a result of any psychotic process. Indeed, he did not diagnose you as suffering from an intellectual disability or any mental condition which would engage Verdins principles.[25]
[25] See R v Verdins (2007) 16 VR 269.
57 Nonetheless, I take into account as part of your personal circumstances the ‘significant unresolved grief and loss’[26] you suffer as a consequence of being orphaned at an early age and your disadvantaged and physically abusive upbringing causing you to feel ‘unloved and unwanted’.[27] This concatenation of circumstances has likely led to you self-medicating with illicit drugs over a long period, causing you now to ‘struggle with addiction’.[28]
[26] Armstrong Report p 5.
[27] Ibid.
[28] Ibid.
58 Moreover, your disadvantaged and abusive upbringing is itself relevant as part of your personal circumstances and provides some explanation for how you come to be before me today.[29] As your counsel fairly conceded, your deprived background does not rise to the level of ‘profound deprivation’ such as would invoke the principles applied in cases such as Bugmy v The Queen.[30] Nonetheless, the circumstances of your deprived upbringing justify some degree of mitigation in sentencing you for the present offences.[31]
[29] See eg DPP v Terrick (2009) 24 VR 457, 468–9 [46] (Maxwell P, Redlich JA and Robson AJA); Marrah v The Queen [2014] VSCA 119 [16]–[17] (Redlich and Tate JJA); Stewart v The Queen [2015] VSCA 368 [23]–[27] (Maxwell P, Priest JA agreeing); DPP v Tewksbury (2018) 271 A Crim R 205, 225 [97], 226 [104] (Tate and Kyrou JJA and Kidd AJA).
[30] (2013) 249 CLR 571, 592–4 [37]–[40] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
[31] Your counsel referred me to Perkins v The Queen [2018] NSWCCA 62 and Neal v The Queen(1982) 149 CLR 305.
59 Mr Armstrong assessed you as representing a ‘low risk of re-offending’.[32] I accept this assessment, with the proviso you will need to continue your present rehabilitative efforts whilst in custody and upon your release from custody if you are to remain drug free. The moment you become re-addicted to illicit drugs, your offending behaviour will, in all likelihood, reappear.
[32] Ibid p 6.
60 I have also had regard to the psychiatric report prepared at the request of you legal representatives by Dr Leon Turnbull, an occupational and forensic psychiatrist, dated 1 April 2021.[33]
[33] Exhibit D3 (‘Turnbull Report’).
61 Under the heading ‘Opinion’, Dr Turnbull said: ‘The first thing to say is this is not a severely psychiatrically disturbed man’.[34] He diagnosed you having an ‘Unspecified Depressive Disorder’.[35] He opined your ‘chronic depressed disposition’ made you susceptible to drug use and thus, ‘there is an indirect relationship between his depressive condition and the offending’.[36]
[34]Turnbull Report p 5.
[35]Ibid. As outlined on p 184 of the DSM-5.
[36]Ibid p 6.
62 Moreover, judging by your presentation at the time Dr Turnbull saw you, as a ‘relatively depressed man’, he opined your condition ‘would contribute to a greater onerousness should [you] be in custody.’[37]
[37] Ibid.
63 Accordingly, considering the whole of the psychiatric and psychological evidence in this case and giving it the ‘rigorous attention it requires’,[38] I find Verdins principle 5 is engaged in your case. Applying the same rigor, in my opinion the indirect nature of the link between your depressive disorder and the present offending is insufficient to engage any other Verdins principles. Moreover, in my view, Dr Turnbull’s opinion fell short of enlivening Verdins principle 6. I note your counsel accepted that only Verdins principle 5 is enlivened in your case.
[38] See particularly Brown v The Queen [2020] VSCA 212, [60]–[63] (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA).
Physical Health
64 As far as your physical health is concerned, you told Dr Turnbull you take a number of medications for diabetes and heart problems. You showed him a list of medications which he could not decipher. In a character reference, your friend Trang Tien referred to your suffering from ‘serious health issues’.[39] Your wife also mentions you suffer from ‘severe heart failure and type 1 diabetes’.[40]
[39] Part exhibit D5.
[40]See character reference dated 23 February 2010 (part Ex D5).
65 I sentence you on the basis these conditions will make the burden of custody more onerous for you than a prisoner of normal physical health.
Prior Criminal History
66 As far as your prior criminal history is concerned, it is noteworthy you have no prior convictions or findings of guilt for drug related matters. It is also to be observed that you were offence free from 1992 to 2016, a period of 24 years, and if the careless driving charge is ignored, the offending-free period becomes nearly 28 years.
67 By far the most serious offences in your prior criminal history are those for which you were sentenced by a judge of this Court on 17 July 1992. They comprise four charges of armed robbery and one charge of each of attempted armed robbery, intentionally causing injury, recklessly causing injury and criminal damage. You were sentenced to a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years and 4 months. An application for leave to appeal to the Court of Criminal Appeal was dismissed.[41] You were released on parole on 5 November 1995 and your sentences lapsed on 4 July 1997.
[41] R v Ly and Nguyen (Unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Hampel and Vincent JJ, 20 October 1992.
68 I have read the judgment of Phillips CJ in the Court of Criminal Appeal.[42] Whilst you were not armed with a firearm in any of the armed robberies you committed, you were armed with a knife, which you used to threaten at least one of the victims. This is relevant to the sentences I impose on you on Summary Charges 2 and 4.
[42] Ibid (Hampel and Vincent JJ agreeing).
69 Additionally, you have a finding of guilt in 1989 for theft, a conviction for discharging a missile in 1992 and a conviction for careless driving in 2016.
70 Whilst your prior criminal history is not particularly relevant for present purposes, it does mean you do not fall to be sentenced as a person of otherwise good character.
Mitigating Circumstances
71 The prosecution accepts your pleas of guilty were entered at the earliest forensically reasonable opportunity. Your pleas have utilitarian benefit and also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
72 You cooperated with police from the outset, admitting there was ‘ice’ in your vehicle. You also made admissions in your record of interview which, inter alia, assisted the prosecution to charge Charge 1 as a Giretti count, rather than as a stand-alone offence committed on a single date. While I accept there is a Doran[43] aspect to your level of cooperation, the prosecution had access to your mobile phone, which also disclosed the nature and extent of your drug trafficking operations prior to the day of your arrest.
[43] See R v Doran [2005] VSCA 271 [14]–[15] (Buchanan JA) and Latina v The Queen [2015] VSCA 102 [12] (Redlich and Kyrou JJA).
73 Accordingly, in my opinion, you are entitled to some real credit for disclosing the extent of your drug trafficking activities to police and your other disclosures, but not to an extent that reaches a ‘significant mitigating circumstance’ of the kind discussed by the Victorian Court of Appeal in Kennedy v The Queen.[44]
[44] [2019] VSCA 127 [26]–[30] (Priest and Kaye JJA). See also Williamson v The Queen (2019) VSCA 138 [116] (
74 On the other hand, your admission to using ‘ice’ earlier in the day entirely allowed the prosecution to charge you with Summary Charge 1, and you will receive a significant sentencing discount as a consequence of your actions in this regard.
75 I have read your record of interview with police,[45] as I was invited to do by your counsel. I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had, and will continue to have, on you and your family. For example, in your record of interview you say you are ‘sorry’[46] and you ‘wanna say sorry to [your] wife’.[47]
[45] Exhibit P2.
[46] Q&A 880.
[47] Q&A 881.
76 It is clear you were cooperative with police and disclosed the location of drugs and other items. You also demonstrated some level of insight into the wrongfulness of your offending conduct when you referred to your arrest as being a ‘wake up call’.[48] You said, having not reoffended since your release from custody on the armed robberies matter, you had now made a wrong decision to become involved in drug trafficking.[49]
[48] Q&A 595.
[49] Q&A 596.
77 Your wife, in a character reference dated 24 February 2021,[50] says you ‘have shown deep regret and remorse for [your] actions and … promised [you] will become a new and better man and move forward with conviction and determination.’ You continue to have her love and full support.
[50] Part exhibit D5.
78 Your elder daughter also speaks of your ‘deep remorse’ and the ongoing support you have form her and your other children.[51]
[51] Character reference dated 24 February 2021 (part Ex D5).
79 Accordingly, I am prepared to find you demonstrate a level of remorse beyond what is evident from your pleas themselves.[52]
[52] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
80 I have had regard to three character references tendered on your behalf,[53] one from your wife, one from your elder daughter and one from a family friend. Undoubtedly, you are a hardworking and passionate family man, who loves and cares for your wife and children as best you can, given your circumstances.
[53] Exhibit D5.
81 So far as your prospects of rehabilitation are concerned, according to Mr Armstrong, you have done well within a non-restrictive model of outpatient drug treatment. You disclosed one episode of a singular relapse, which Mr Armstrong opines is not unusual in the course of recovery. According to Mr Armstrong, ‘what is most predictive of recovery and rehabilitation is [your] response upon relapse’. Apparently, you immediately contacted your AOD treatment provider, Ms Brown, and disclosed your relapse.
82 You have voluntarily engaged in outpatient treatment with Ms Brown since May 2020. I have had regard to the contents of her report dated 6 March 2021.[54] She describes you as ‘polite, cooperative and [you have] approached [your] drug recovery in a forthright manner.’ Apart from one relapse in the context of ‘severe emotional distress,’ you have remained abstinent for illicit substances throughout the period of treatment. Ms Brown reports:
Owing to the cessation of substance misuse, Mr Ly has noted marked improvements in his overall life circumstances. He has become engaged in more meaningful, positive endeavours, established himself into a network of pro-social peers and has improved his relationship with both his wife and his children.
[54]Exhibit D4.
83 According to Ms Brown you demonstrate a sound understanding of the skills pertaining to relapse prevention and you understand the steps you must continue to take in order to maintain abstinence. You have successfully identified potential triggers and considered alternate responses to deal with them effectively. Moreover, you demonstrate insight into the interrelationship between your experience of emotional distress, and past utilisation of substances to cope with this distress. You understand that these maladaptive behaviours serve to undermine your emotional stability only further and ultimately, they have had a cataclysmic affect across a raft of facets of your life.
84 Ms Brown assesses your motivation to remain substance free as being ‘genuine’. She also observes that you have a number of protective factors by way of familial and social support.
85 Whilst being treated by Ms Brown, you have undergone urine analysis testing on a weekly basis. I was provided with a bundle of urine drug screen results form 20 May 2020 to 24 February 2021[55] which were all ‘clean’ except for occasional traces of benzodiazepine, which was prescribed by your GP.
[55] Part of Exhibit D4.
86 Your wife confirms that upon your release from custody on bail, you immediately sought treatment for your drug addiction and, so far as she can tell, you have abstained from taking illicit drugs since then.[56]
[56] See character reference dated 24 February 2021 (part Ex D5).
87 You have also received support from Dr Michael King, who is a clinical psychologist. Moreover, your wife reported to Mr Armstrong that together with her you have attended five sessions with Assistant Professor Alan Gijsbers, an addiction specialist at the Melbourne Clinic.
88 You told Dr Turnbull your plans for the future were to ‘continue to support [your] family, to try and be a better father, and to maintain abstinence.’[57]
[57] Turnbull Report p 3.
89 This all augers well for your prospects of rehabilitation. Nonetheless, because of your past history of drug addiction and your underlying psychological risk factors, there is a real risk, albeit it a relatively low one, that you could relapse into drug addiction and reoffend on your release from custody. Accordingly, I assess your prospects of rehabilitation as being cautiously optimistic.
90 These risk factors require me to give some weight to specific deterrence and protection of the community in sentencing you for the present offences.
91 In addition to the increased burden of custody arising from your mental condition and physical health, I take account of the increased custodial burden arising from the restrictions imposed as a consequence of the COVID-19 pandemic. Your time out of your cell and your ability to access programs will likely be restricted and face to face visits have been suspended. You will have the ability to contact your family by letter, telephone, email and video calls, but the inability of your wife and children to visit you personally in prison will undoubtedly weigh heavily upon you.
92 There is no evidence before me sufficient for me to conclude you are at any particular risk of contracting the virus. Nonetheless, I accept the effects of the COVID-19 pandemic will make the manner you serve this sentence more burdensome on you for the foreseeable future. I also accept, as the Victorian Court of Appeal has recently observed, the current situation ‘is causing stress and concern for prisoners and their families, as it is for every member of the community’.[58]
[58] Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA).
93 So far as the circumstances of your offending are concerned, you told Mr Armstrong that by the beginning of 2020 your business solely supplied catering to the bus tour industry and, with the onset of COVID-19, business income evaporated. You conceded, a need to provide for your habit influenced your decision to engage in drug offending, although you maintained to Mr Armstrong the cannabis found in your possession was only accumulated for the use of your friends.
94 With regard to the weapons offences, you apparently accept that the shotgun and ammunition should never have been in your possession. You reported to Mr Armstrong the firearm was previously given to you as a means to repay a monetary debt. You concede that at the time of offending you never considered the consequences of holding the firearm, including the fact that you did not have an appropriate firearm’s licence.
95 You reported to Mr Armstrong the sword was home-made and the remaining prohibited weapons were not yours, however you take full responsibility for having them in your possession.
96 You claimed to Mr Armstrong you were not thinking clearly at the time of committing the present offences and it was only following your arrest that you came to comprehend the gravity of your offending conduct. I do not accept this characterisation of your moral culpability. In my opinion you knew full well what you were doing and by telling Mr Armstrong otherwise you were seeking to minimise the seriousness of your offences.
Application of Sentencing Principles
97 I have had regard to current sentencing practices in relation to the charge of trafficking in a commercial quantity of a drug of dependence and trafficking simpliciter in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym)[59] and the Victorian Court of Appeal decisions in Gregory (a Pseudonym) v The Queen (Gregory)[60] and Nguyen v The Queen.[61]
[59] DPP v Dalgliesh(a Pseudonym) (2017) 262 CLR 482.
[60] Gregory v The Queen (2017) 268 A Crim R 1 (“Gregory”).
[61] Nguyen v The Queen [2019] VSCA 184.
98 The prosecutor also referred me to Fernando v The Queen,[62] where Redlich JA opined that the observations in Gregory regarding ‘recalibration’ of sentencing for commercial quantity trafficking offences in the mid-range will have a diminished effect on lower category cases leading to ‘modest increases in sentences in the lowest category,’[63] as I find the present case to be.
[62] (2017) 268 A Crim R 26.
[63] Ibid 41, [62].
99 I have also had regard to current sentencing practices in relation to the charges of non-prohibited person possess handgun without a licence and unlicensed person store a firearm or ammunition in an insecure manner.
100 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’ given the wide range of offending conduct which can constitute these offences and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from these and other comparable cases, I have sought to do so in your case.
101 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact on any victim and your personal circumstances.
102 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, so far as is possible, you are rehabilitated and reintegrated into society.
103 General deterrence, denunciation and just punishment are very important sentencing considerations, particularly for the offence charged in Charge 1. Drug offences generally are prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[64]
[64] Nguyen v The Queen (2010) 208 A Crim R 464, 468–9 [21] (Maxwell P, Buchanan JA agreeing). See also Nguyen v The Queen (2016) 311 FLR 289, 331 [141] (Redlich JA, Tate and Whelan JJA relevantly agreeing).
104 Clearly, just punishment, general deterrence and denunciation must be given primacy in my instinctive synthesis, and I am of the view in your case specific deterrence and protection of the community need be given some weight.
105 I commend you for the significant steps you have taken since being charged with these offences towards your rehabilitation and I am cautiously optimistic regarding your ultimate prospects of rehabilitation.
106 Trafficking in a commercial quantity of a drug of dependence is a category 2 offence for the purposes of s 5(2H) of the Sentencing Act 1991.[65] Accordingly, I must impose a sentence of imprisonment to be immediately served on Charge 1 unless there are ‘substantial and compelling circumstances that are exceptional and rare that justify not making’ that order.[66] Your counsel conceded you cannot demonstrate such circumstances in this case.
[65] See Sentencing Act 1991, s. 3(1) category 2 offence paragraph (g).
[66] See Hudgson v The Queen [2016] VSCA 254; Farmer v The Queen [2020] VSCA 140.
107 In any event, I consider sentences of imprisonment to be immediately served are the only sentences on all charges on the indictment appropriate to achieve the purposes for which the sentences are imposed.[67]
[67] See Sentencing Act 1991, s. 5(4).
108 Nonetheless, in recognition of the very significant steps you have already taken towards your rehabilitation and the protective factors you have in place, I will accede to your counsel’s submission that I should impose on you a non-parole period which is shorter than that which I would otherwise have imposed.
Mr Ly
On Indictment No L11055691.1 you are sentenced as follows:
On the charge of trafficking in a drug of dependence in not less than the commercial quantity (Charge 1) you will be convicted and sentenced to imprisonment for 30 months.
On the charge of trafficking in a drug of dependence (Charge 2) you will be convicted and sentenced to imprisonment for 1 year.
On the charge of non-prohibited person possess handgun without a licence (Charge 3) you will be convicted and sentenced to imprisonment for 6 months.
On the charge of unlicensed person store a firearm or ammunition in an insecure manner (Charge 4) you will be convicted and sentenced to imprisonment for 7 days.
On related Summary Charge 1 (use a drug of dependence) you will be convicted and discharged.
On related Summary Charge 2 (possess prohibited weapons without an exemption) you will be convicted and sentenced to imprisonment for 14 days.
On related Summary Charge 4 (possess a controlled weapon without lawful excuse) you will be convicted and sentenced to imprisonment for 7 days.
On related Summary Charge 7 (dealing with property suspected of being the proceeds of crime) you will be convicted and sentenced to imprisonment for 7 days.
I order that 4 months of the sentence imposed on Charge 2 and 2 months of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1 and on each other. All other sentences of imprisonment are to be served concurrently with the sentence imposed on Charge 1 and on each other.
The total effective sentence is 3 years’ imprisonment.
I order that you serve a minimum of 18 months’ imprisonment before becoming eligible for parole.
I declare 12 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the total effective sentence I would have imposed on you but for your pleas of guilty would have been 4½ years’ imprisonment with a minimum non-parole period of 3 years imprisonment.
Remove the prisoner.
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