Director of Public Prosecutions v Ly

[2014] VCC 1375

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01627

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY LY

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2014
DATE OF SENTENCE:	25 August 2014
CASE MAY BE CITED AS:	DPP v Ly
MEDIUM NEUTRAL CITATION:	[2014] VCC 1375

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:             Possession of drug of dependence.

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:12 months' imprisonment, wholly suspended for 24 months

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APPEARANCES:	Counsel	Solicitors
For The Director at hearing For The Director at sentence	Mr J. Saunders Mr H. Thomas	Office of Public Prosecutions
For the Offender	Ms C. Lynch	Revill and Papa Lawyers

HIS HONOUR

1Ricky Ly, you have pleaded guilty to one charge of possession of a drug of dependence contrary to s.73 of the Drugs, Poisons and Controlled Substances Act (1981). 

2In essence, your culpability is having been in possession of two plastic bags containing heroin whilst being one of two men in a Camry vehicle on 22 March 2013. 

3One of the plastic bags contained heroin as 173.7 grams of powder at 70% purity and the other 346.1 grams of powder in 12 capsule-type containers at 70% purity.

4You had been in the company of your co-accused Vo.  Together you had been observed by police attending an address in Orchard Road, Busby, New South Wales.  Your co-accused Vo was seen to carry a black bag from the premises and enter the Camry.  You entered the passenger side.

5By your plea of guilty you have acknowledged that you were aware that the black bag contained a significant but not commercial amount of heroin. 

6The Camry, with you as passenger, was driven south towards the Victorian border.  Near the town of Yass in New South Wales, you changed positions with you now as the driver. 

7The vehicle was intercepted by police south of Wodonga, and the heroin was located in the plastic bags which had been secreted underneath the centre console of the vehicle. 

8As to your personal circumstances, you were born in Melbourne of Vietnamese parents.  Your mother died when you were nine and your father returned to Vietnam shortly after.  You were then placed with a paternal aunt who was abusive.  You were subsequently placed in transitional housing before being cared for by a maternal aunt.  You attended high school, but drifted into truancy in Year 12 and became technically homeless between the ages of 17 and 19.  You commenced using cannabis and then heroin.  At the age of 20 you were convicted of possessing and trafficking in heroin and were sentenced to and completed a community-based order. 

9In recent times, it appears that you have managed to turn your life around.  You have married, you and your partner are expecting your first child and you have maintained a solid history of employment in your father-in-law's bakery business. 

10The possession of the heroin on 22 March last year was as a result of an arrangement with your co-accused to receive and transport a package of heroin. 

11You would have known, Mr Ly, that the possession of heroin is a prevalent crime and you would also have been aware that there are significant penalties for the punishment of people who are prepared to possess significant quantities of that drug.

12Heroin is a pernicious drug and its illicit use impacts markedly on the community, so principles of denunciation, general deterrence and the protection of the community are dominant sentencing considerations.  Possession in these circumstances, particularly having regard to the fact that you have a prior conviction for possession and trafficking in the same substance, warrants a sentence of imprisonment. 

13

In mitigation I have considered, and I accepted, the submissions of your counsel  including the fact that you pleaded guilty and the early stage at which that plea was first indicated, and in particular your current stable circumstances, the fact that you have not committed any further offences and that you have the very close support of your wife and family.   

14In my view the objective gravity of the circumstances of this offence calls for a sentence of imprisonment, principally, as I have said, for the need to give appropriate consideration to principles of denunciation and general deterrence.  Because of your personal circumstances and other mitigating factors, including the fact that your offence is very different from that of your co-offender Vo, I consider that your rehabilitation, specific deterrence and punishment can be achieved without a sentence requiring your immediate confinement. 

15Mr Ly, would you please now stand. 

16I propose to sentence you to a term of imprisonment which I intend to wholly suspend for a period of two years.  The purpose and effect of the proposed suspension order is to grant you conditional freedom from its commencement, the condition being that you avoid conviction for an offence punishable by imprisonment for the next two years.  If you commit such an offence in that period you will be liable to again attend court, and if necessary that will be under arrest, and in the absence of exceptional circumstances you will be ordered to serve that sentence.  Do you understand that?

17PRISONER:  Yes, I do.

18HIS HONOUR:  And I just warn you that there are not too many offences that do not attract a sentence of imprisonment as an option.  Even a simple shoplifting offence, for example, of theft, contains that option.  So you are in a position where you have to avoid conviction for any offence punishable by imprisonment for the next two years. 

19On Charge 1 of possess a drug of dependence, you are convicted and sentenced to 12 months’ imprisonment. 

20Pursuant to s.27 of the Sentencing Act, I order that the sentence be wholly suspended and I declare that the operational period of the suspended sentence is two years.

21I declare that the period that you have already spent in custody in this matter, namely 32 days, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.

22Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is 24 months' imprisonment with a non-parole period of 18 months.

23Is there anything else from either counsel? 

24MR THOMAS:  Just a housekeeping matter - Your Honour, vacating the trial date, if you would please?

25HIS HONOUR:  Yes, and that trial date of - got the date?

26MR THOMAS:  Excuse me, 1 September. 

27HIS HONOUR:  1 September is vacated.

28MS LYNCH:  As Your Honour pleases.

29HIS HONOUR:  I don't need to make any further order, other than to vacate that date?

30MS LYNCH:  That's correct, sir.  Thank you.

31HIS HONOUR:  All right, thank you.  Mr Ly, if I can just add something of a less formal nature to those sentencing reasons.  The fact is that you are one of the lucky ones.  In light of the background that you had, and your descent into drug-taking and then subsequently some trafficking, you place yourself in a position where many people in that position end up leading a life of addiction, and subsequently crime in order to support that addiction, and their lives descend into a spiral from which it is impossible to pull out.  The courts see this, without exaggeration, every day.   In the process, they destroy other lives.

32You - it is a close-run thing with you, because you got into it pretty deeply pretty quickly.  You have fortunately found a supportive partner.  You had the sense to maintain your relationship with that partner and through the good grace of your parents-in-law you have had the opportunity to work in a business, which you continue to do.  To your credit, you have applied yourself to that business as a baker, and it is not easy.  And people understand that it is not easy.  It is not easy at your age getting up at midnight, getting to bed early and having to work from midnight or 1 am through to 5 o'clock in the morning when other people your age might be going to nightclubs and things like that and having another life. 

33The fact is that it is a business that you can develop yourself.  It is a business that you can build up, you can expand, you can yourself have a shop one day.  You can have several shops.  There is any number of examples of people in your industry, if they are prepared to work hard, who can establish very successful businesses and have very, very successful lives, both fulfilling in every wider sense and also commercially.

34So if you can maintain that, you will keep away from the drugs and you will maintain ultimately a good life.  The difficulty is if it gets too hard or you lose your concentration on what your true purpose ought to be, because of your background you are likely to slide back into a different life.  You have got an opportunity now, so make sure you use it well. 

35All right, with those matters, you may be seated.  And unless there is something else from either counsel, that will be it.  I just leave the Bench, because we have a jury considering their verdict in another matter.

36MR THOMAS:  As the court pleases.

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