Director of Public Prosecutions v Ngo

[2023] VCC 2067

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-02450

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI LOAN NGO

---

JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2023 and 9 November 2023
DATE OF SENTENCE:	9 November 2023
CASE MAY BE CITED AS:	DPP v Ngo
MEDIUM NEUTRAL CITATION:	[2023] VCC 2067

REASONS FOR SENTENCE
---

Subject:Criminal Law

Catchwords:              Trafficking in a drug of dependence commercial quantity – knowingly deal with proceeds of crime – high moral culpability – early guilty plea in context of COVID 19 – remorse – relevant criminal history – serious drug offending

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Gregory (a Pseudonym) v The Queen (2017) VSCA 151; Lieu v The Queen [2016] VSCA 277; Vincent v The Queen [2021] VSCA 99; Gregory (a Pseudonym) v The Queen [2017] VSCA 151; Nguyen v The Queen [2019] VSCA 184; DPP v Condo [2019] VSCA 181; Said v The Queen [2020] VSCA 178.

Sentence:                  Total effective sentence of 9 years 2 months imprisonment with a non-parole period of 6 years 2 months

6AAA: If not for plea of guilty 11 years imprisonment with a non-parole period of 7 years and 8 months

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Malik	Office of Public Prosecutions
For the Accused	Mr J. Mortley	Emma Turnbull Lawyers

HER HONOUR:

1Thi Loan Ngo, you have pleaded guilty on indictment to two charges of trafficking in a drug of dependence in not less than a commercial quantity and one charge of knowingly deal with the proceeds of crime.

2Charge 1 relates to the drug heroin which you trafficked between 9 September 2020 to 19 October 2020 and Charge 2 relates to the drug methylamphetamine which you trafficked between 23 September 2020 until 19 October 2020.  

3In sentencing you for your crimes I am obliged to consider the maximum penalties for each of the offences to which you have entered your guilty plea.

4The maximum penalty for trafficking in a drug of dependence in not less than a commercial quantity is 25 years. You also face a charge of knowingly deal with the proceeds of crime.  The maximum penalty for that offence is 15 years imprisonment.

5The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 15 May 2023. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence. It is a lengthy document of some 85 pages. I have had full regard to that document so will refer to the factual circumstances only briefly in these reasons for sentence.

Offences

6'DTF-ELEMENT-2020' was an investigation undertaken by the Victoria Police Drug Task Force into the trafficking of drugs of dependence conducted by Linh Thuy HUYNH, you, Thi Loan NGO and Thinh HUYNH. Thinh Huynh was not indicted in this proceeding.

7Your co-offender, Linh Thuy Huynh, otherwise known as Tiffany Nguyen,  is charged with the same offences but on a differing factual basis and she is also charged with an offence of committing an indictable offence whilst on bail. Ms Huynh is yet to have her matter finalised.

8In relation to your charges, you admit trafficking in a drug of dependence, namely heroin, in not less than a commercial quantity between the dates to which I have already referred. You trafficked the amount of 1430.1 grams, comprising 1368 grams identified through intercepted communications and the use of listening devices as follows:

(a)   28 grams on 9 September 2020;

(b)   28 grams on 24 September 2020;

(c)   24 and 28 grams on 2 October 2020;

(d)   168 grams on 3 October 2020;

(e)   112 grams on 4 October 2020;

(f)    168 grams on 6 October 2020;

(g)   28 grams on 10 October 2020;

(h)   56 grams on 11 October 2020;

(i)    28 grams on 15 October 2020; and

(j)    700 grams on18 October 2020

9This was in addition to 62.1 grams which were located by Police at your premises on 19 October 2020 which were for the purposes of sale. You are said to have been selling to co-accused Huynh and that all purchases from Huynh were done so for then on sell to customers.

10Charge 2, trafficking in a drug dependence, namely methylamphetamine, in not less than a commercial quantity, occurs between the dates to which I have already referred. On 24 September 2020, the same day on which you admit trafficking 28 grams of heroin, you trafficked 750 grams of methylamphetamine which was identified through intercepted communications.

11This methylamphetamine was in addition to 27.7 grams located by Police at your premises on 19 October 2020 which was for the purposes of sale and comprises a total of 777.7 grams of methylamphetamine. You are said to have purchased this drug from co-accused Huynh and that all purchases were done for the on-sell to customers.

12The details of this offending was comprehensively referred to in the Crown opening. In brief summary during the respective offending periods 16 occasions of trafficking were identified as follows:

(a)   HUYNH (alias NGUYEN) sold quantities of heroin to you on nine occasions for on-sell to customers.

(b)   HUYNH (alias NGUYEN) sold quantities of methylamphetamine to you on one occasion for on-sell to customers.

(c)   HUYNH (alias NGUYEN) offered to sell you a quantity of methylamphetamine on one occasion.

(d)   You sold a quantity of heroin to HUYNH (alias NGUYEN) on one occasion.

13Police had obtained a telecommunication intercept warrant on the mobile phone used by Huynh which showed conversational communications or SMS/MMS messages in Vietnamese which related to the offending. Tracking and listening devices were installed in Huynh's car which also captured the communications.

14The intercepted information and listening device material revealed that you and Huynh spoke almost daily during the offending periods and in respect to the supply of drugs of dependence.

15A valuation of heroin and methylamphetamine of unknown purity was undertaken by investigators, who estimated the average 'street' price per gram and ounce (rounded to 28 grams) during the offending period were as follows:

(a)   Gram price for heroin - $400

(b)   Gram price for methylamphetamine - $500

(c)   Ounce price for heroin – $10,000

(d)   Ounce price for methylamphetamine - $12,000

16As referred to earlier, in addition to the quantities identified through intercepted communications and listening device material, physical drugs of dependence were located at your residence when police executed a search warrant at your address of 34/1 Woodward Way, Caroline Springs, on 19 October 2020. It was on that occasion that 62.1 grams of heroin and 27.7 grams of methylamphetamine were located.

17Charge 4, knowingly deal the proceeds of crime, relates to the amount of $224,900 located at your premises at the time of the Police search.   The Crown say that the basis of this charge is your dealing in cash received from the drug trafficking activities. At your plea hearing on 7 September 2023, you accepted this description.

18However in your record of interview with police on 19 October 2020 you made admissions that the money located by police at your premises was for Huynh. You denied it was for heroin trafficking. You made admissions to trafficking in heroin for a certain period but denied trafficking with Huynh and made 'no comment' responses to allegations relating to those activities. You stated the drugs located at your premises were for personal use.

19You did provide police with the passcode for your mobile phone which is to your credit.

Offence gravity

20It is trite to say that this is extremely serious offending.

21Together with Ms Huynh, your trafficking was an ongoing and clearly lucrative enterprise. The telephone used by you was connected in another name and linked to an address which was not yours. Your communications with Ms Huynh were coded but show you constantly enquiring about price, quality and being concerned about profit.

22In the circumstances of your case, and under a quantity-based sentencing regime, the quantity of drugs is an indicator of the seriousness of a drug offence. 

23The amount of heroin you trafficked was an amount just under twice the threshold for a large commercial quantity of this drug and 5.2 times the threshold for a commercial quantity.

24The amount of methylamphetamine you trafficked was an amount just over the threshold for a large commercial quantity of this drug and 3.1 times the threshold for a commercial quantity although, apart from the quantity at your premises, seems to involve the one transaction on 24 September 2020. That one transaction was axiomatically in a large amount of that drug.

25You were able to access significant amounts of both heroin and methylamphetamine.  I accept that the overall circumstance is indicative of an intention to traffick drugs at a level which far exceeds street or low-level dealing. I accept the description of you proffered by the Crown as a 'wholesaler'.

26In Gregory (a Pseudonym) v The Queen[1] (‘Gregory’), the Court of Appeal concluded that current sentencing for trafficking in a drug of dependence in not less than a commercial quantity was unduly compressed for offences at the upper end of seriousness and was therefore not reflective of the inherent gravity of the offending, community impact, or the high maximum penalty.

[1] Gregory (a Pseudonym) v The Queen (2017) VSCA 151

27The Court observed that 'sentences well into double figures would have been expected for trafficking offences involving a commercial quantity where one or more of the following features were present:

(a)   the quantity involved approached the large commercial quantity threshold;

(b)   the offender was in charge of the trafficking business;

(c)   the business was conducted for a substantial period;

(d)   the offender pleaded not guilty; and/ or

(e)   the offender had relevant prior convictions'.

28Relevant to an assessment of the seriousness of your offending therefore lies in the role you played, your position in any trafficking hierarchy, the nature and extent of your involvement in the enterprise, the sophistication of the enterprise and the amount of drugs involved or intended to be involved.

29In effect, I am only able to compare you with your co-offender, Huynh. You appear to be relatively equal in the sense that you had mutual and supportive roles in accessing and then supplying significant quantities of both heroin and methylamphetamine.

30The fact that you had two serious drugs of addiction would also indicate that you intended to be a resource or supply for more than one drug and this, in my view,deserves separate recognition in the sentencing process.   This recognition, must, at the same time, show due regard for the overall offending and the commonality of the offending.

31Your matter resolved on the concession by the Crown that they could not prove, beyond reasonable doubt, that you had an intention to traffick in not less than a large commercial quantity at the outset of the trafficking. You will be sentenced on that basis. The circumstances involved Huynh selling substantial quantities of both drugs to you and others and you then on selling to other people. You were not a direct distributor to consumers.

32As indicated, I am only really aware of you and Ms Huynh in terms of what occurred and the periods of your offending are relatively confined, given they amount to 40 days for Charge 1 and 26 days for Charge 2. You have obviously pleaded guilty and do have relevant prior convictions.   

33Your motive was clearly financial and at the expense of the community. You were not a drug user.

34The amount of monies located at your premises on 19 October 2020 is perhaps indicative of the financial resources and gains associated with drug trafficking.

35For your own needs, you were prepared to be involved in the pernicious trade of drug trafficking.  It is a highly profitable business with enormous negative and devastating impact on the community through the offending that results from drug addiction, the physical and mental health impacts and the behaviours drugs and addiction then produce. 

36Your moral culpability would appear to be high.

37General and specific deterrence, denunciation and community protection are important parts of the sentencing mix, and the message needs to be clear to those who may be tempted to engage in such activities that stern punishment will result.

Plea of guilty

38The Sentencing Act obliges me to take into account the stage at which you entered your pleas. 

39A contested committal hearing was held on 15 November 2021 in order to determine codewords said to have been used in the recorded communications and the quantities of drugs to be alleged.

40You were committed to the County Court with an initial directions hearing on 13 December 2021.

41There was some delay in reaching the next stage. I was told that the Crown did not comply with filing requirements.

42In an attempt to resolve the matter, you participated in the case conferencing process as part of the County Court's response to the COVID 19 pandemic. Case conferences were designed to discuss pathways to resolution where possible or to narrow issues prior to listing any trial. On the provision of further material from the Crown at a case conference held on 24 January 2023 your matter resolved to the charges on the indictment by a final directions hearing held on 14 February 2023.

43You were committed for trial on more serious charges. The resolution which ultimately unfolded, therefore in effect, represented your first opportunity to plead guilty to what are the appropriate charges.  In that sense, it is a plea of guilty at an early stage and this fact is recognised by the Crown.

44Your decision to resolve and plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it does provide certainty and finality to all parties in circumstances where the Court's operations were significantly disrupted.

45Your plea also has utilitarian value in saving the court the time and expense of contested proceedings which would have necessarily been lengthy given the recorded evidence and communications, much of which was in Vietnamese and required translation. There was no evidence of actual sales, so communications recorded required interpretation of codes used. Your plea is of significant value in this circumstance. Your decision has avoided the need for witnesses to attend court and give evidence.

46Remorse is harder to discern but you have taken responsibility for your offending.

47These factors will be taken into account in your favour.

48The chronology would also reflect some delay. A plea hearing on 1 June 2023 was adjourned to another date on application by your co-accused. Your plea hearing did not take place until 7 September 2023, bearing in mind you were charged on 19 October 2020.

49Your sentence is being imposed on 9 November 2023; some three years post your arrest.

50I take into account this delay in terms of the stress of awaiting the final outcome and as a period in which to further assess your prospects for rehabilitation.

Personal circumstances

51You are now aged 48 years.

52You understand that you were born in Saigon, Vietnam, to parents who are unknown to you. You were told by your adoptive grandparents that your adoptive mother, Kim, gave birth to a stillborn child on the same day that you were born. You were then apparently given to Kim, whom you do regard as your mother.

53You immigrated to Australia in 1983 as a refugee with your adoptive grandparents. You had a close relationship with them. Your father passed away in 2009 from cancer and your grandmother in 2001 from complications after suffering a fall.

54Your mother and two younger sisters (who are also adoptive) came to Australia in 1990.

55You completed primary school at Footscray primary school and commenced secondary schooling at Melbourne Girls College in Richmond.

56In March 1989, aged 14 years, you fell pregnant with your first child, Lynn, who was born in December of that year. You exited from schooling after completing Year 11 as a result. Lynn's father was also a child and has had no involvement in your daughter's life.

57As a young single mother you lived with your adoptive mother, Kim.

58In 1992, when aged around 18 years, you began to attend the casino.

59You describe a cycle of obtaining Centrelink payments or a weekly pay cheque  and immediately spending them at the casino. You say you are introduced to 'loan sharks' at the casino and by 2009 had amassed debts in excess of $120,000.

60When you could not furnish interest repayments to the loan sharks you were offered a mechanism to pay your debts. This consisted of being a heroin mule. Your convictions for drug trafficking in 2009, 2012 and 2014 are said to relate to this arrangement. 

61You have worked at various times including at a bakery in the year 2000, and a linen service in 2001. You have been unemployed since this time and have received payments from Centrelink.

62In 2002 you met Jack Pham, who is the father of your son, Jason, born in 2003 and your daughter Vivian born in 2006. You describe Jack as a good man.  He owns businesses in South Melbourne and Victoria Markets selling menswear. Your relationship with Jack broke down in the context of your then gambling addiction and people attending your home with threatening behaviour. You describe your gaol sentence in 2014 to be the 'last straw' in this relationship.

63You instructed your Counsel that in 2014 you told the loan sharks you would no longer traffick on their behalf and began reporting them to Police. In response an arrangement was made for you to pay $500 per month without interest accruing and that your offending in 2020 relates in part to that debt.

64You say that during the COVID‑19 pandemic and lockdown periods you commenced making money by reselling unlocked phone Sim cards, bedding, clothing, herbal sexual enhancement pills and skin care. You would also cook and sell takeaway food from your home and instruct that customers began asking if you could source drugs.

65You did not believe that you were trafficking drugs if you did not 'own' them or sell directly to customers. You saw yourself as putting customers in contact with suppliers in exchange for payment. You say that you received $500 for each successful transaction.  This is somewhat inconsistent with the telephone intercept materials. For example, the Crown summary:

(a)   at paragraph 78 references a conversation you had with Huynh (referred to as Nguyen) on 24 September 2020 in which she offered you heroin and you accepted but said it has to be a good price otherwise you cannot make profit and it must be pure; 

(b)   at paragraph 91 references another conversation with Huynh (referred to as Nguyen) held on 25 September 2020 in which you complained about the price of a previous purchase and that with the price paid you cannot make a profit;

(c)   on 1 October 2020 you complained to Huynh (referred to as Nguyen) about not being able to make profit for 15; 

(d)   on 6 October 2020 you and Huynh argued about money being deducted and Huynh not counting properly; and 

(e)   paragraph 167 of the Crown summary references 'Ngo said it should have been 48 for 4 kids but the customer paid Nguyen extra 1,000 for Ngo's profit'.

66I accept there is no indication of unexplained wealth independent of the monies located in cash by Police at your premises on 19 October 2020 - which you told Police was for Huynh.

67The matters of needing to pay off a gambling debt and succumbing to customer pressure during lockdown are put as an explanation for the context of your offending. I find this account difficult to accept but it is not sought to raise this circumstance to mitigate your sentence. Your offending demonstrates the ease with which you fell into old habits and a lack of insight of the impact of your offending on the community. This elevates the need for protection of the community and specific deterrence in the sentencing exercise.

68Your daughter, Vivian, has an intellectual disability and autism. She requires your full-time care.

69A 'Confidential Program for Students with Disabilities Psychological Assessment Report for Parents and Schools' dated 19 March 2018 and authored by Ms Vikki Tsoukalas, psychologist has been tendered.  At that time Vivian was aged 11 years and 10 months.

70At the time of that assessment, Vivian's IQ was identified as 58, putting her in the extremely low range equivalent to 0.3 percent of children her age and consistent with a mild intellectual disability.

71A 'Speech Pathology Assessment Report' relating to Vivian and dated 13 February 2018 has also been tendered. Vivian was attending Jackson School which caters to students with intellectual disability.  The assessment report indicates that Vivian presented with severe receptive language disorder and severe expressive language disorder. She had difficulty understanding classroom instructions, communicating and with language.   

72I accept Vivian's condition is lifelong and that she is in need of constant care and assistance. 

73Your son Jason is now 20 years of age and recently found employment at Crown Casino.

74Your daughter, Lynn, attended your plea hearing and today's sentencing and has provided a written reference. Lynn is now 35 years of age and works at Crown Casino.  She described you as a kind person who is always willing to work and who does much to help your family members.

Prior criminal history

75Your prior criminal history does form part of your personal circumstance.

76Your first court appearance was at the Melbourne Magistrates Court on 19 October 1999 for a single charge of incitement. You were placed on an adjourned undertaking for a period of 12 months and ordered to pay $250 into the court fund. This undertaking was made without the recording of a conviction.

77It was 10 years before you again appeared before a court. On 15 June 2009 you appeared at the Neighbourhood Justice Centre in Collingwood in relation to charges of traffick heroin and deal with property suspected to be the proceeds of crime. Documents filed by the Crown would indicate that you were located at an address with another person, approximately 34 grams of heroin and around $19,125 in cash. You were convicted and placed on a community-based order for a period of 12 months with a community work component and treatment conditions.

78On 6 March 2012 you appeared at the Melbourne Magistrates' Court for a charge of traffick heroin. You were convicted and sentenced to 15 months imprisonment and were required to serve a period of eight months before you were eligible for parole. Sixty-nine days were reckoned as having already been served.

79You appealed this decision to the Melbourne County Court. On 11 May 2012 your appeal was allowed and the order of the Magistrates' Court was set aside. You were convicted and sentenced to 12 months imprisonment with a requirement that you serve three months imprisonment before you were eligible for parole. Sixty‑nine days were reckoned as having already been served.

80Your most recent appearance was at the Melbourne Magistrates' Court on 17 November 2014. Documents filed would indicate that you were intercepted by Police in Richmond who located 120 grams of heroin and $250 in cash. You were sentenced to 120 days imprisonment with 53 days reckoned as having already been served in relation to charges of traffick heroin and deal with property suspected to be the proceeds of crime.

81You are not to be sentenced for your criminal history a second time.

82It is clear from your criminal history that you have had periods of complying with community expectations given the gap in your offending between 1999 and 2009, the gap between 2009 and 2012 and the gap between 2014 and the offending in 2020 which is now before this court.

83However, given your reoffending, it would appear that relatively short periods of imprisonment have not deterred you, nor have supervisory orders assisted you given the matters before this court have such stark similarity to your offending in the past.  Your most recent offending represents a considerable escalation however.

84Your criminal history is relevant to the assessment of your moral culpability for this offending, specific deterrence, denunciation and protection of the community.

85It is also relevant to the assessment of your prospects for rehabilitation.

Psychological assessment

86Tendered on your behalf is a psychological assessment authored by Mr Jeffrey Cummins dated 7 July 2023.

87Mr Cummins states that you left school midway through Year 12 and you were 17 at the time of Lynn's birth. These factual differences probably do not make any difference.

88You explained to Mr Cummins you had no work during COVID but still owed gambling debts with high interest. You claim to have owed $140,000.  You say that you 'stupidly accepted the role of getting involved with drugs'.  This is no way mitigates your offending nor is it sought that it do so, and as indicated earlier, it is an explanation I find difficult to accept.

89You told Mr Cummins you have not previously been a user of drugs other than for a period of approximately two weeks during your most recent offending when you were smoking ice as others had told you it would help you lose weight. You were never addicted to drugs. Your involvement in drug trafficking you see as a by‑product of a gambling addiction and accumulating debts. You understand these debts to remain and that you will be sought out when you are released from custody.

90You are concerned for your mother and your intellectually disabled daughter. Mr Cummins opines that it would be more onerous for you to spend time in custody because of the carer's role you have played with Vivian. I accept that separation from Vivian will be difficult for you and for her given what is known to me of her particular difficulties and the role you have played as her carer. I do take this into account in a general sense.   

91Jeffrey Cummins did not identify any real issues with your mental health or concerns for addiction which perhaps augurs well for your future prospects.

92There is nothing in Mr Cummins report which otherwise assists with the sentencing process.

Prospects for rehabilitation

93I earlier referred to your regular attendances at the casino and your regular habit of gambling in your younger years. In December of 2009 you sought a gambling exclusion order and self-excluded from the Casino.

94You attended a Gamblers Anonymous program in 2014.

95You were proactive on your own behalf to resolve this problem.

96On your arrest on 19 October 2020, you were remanded into custody. You were released on bail on 2 February 2021 into a property owned by your daughter Lynn and resided there with your son Jason and daughter Vivian.   

97You found employment picking vegetables and took a number of animals into your care including three dogs, a turtle, and a rabbit. You are concerned for their welfare in your absence.

98In addition, in terms of the reference from your daughter, Lynn, to which I referred  earlier, she indicates that she did not have much contact with you previously but that she has now started to keep in regular contact and spend more time with you as a result of these proceedings. I accept that this is an important and prosocial relationship. Lynn expresses concern for your animals, Vivian and her relationship with you on your inevitable incarceration. She implores me not to do so. She hopes to help you set up a take away business on your release as you are apparently a very skilled cook.

99You have a partner of some 5 years who has no prior convictions and, I am told, remains supportive. 

100You were remanded by me at the time of your plea on 7 September 2023. I am told that you have obtained employment in custody packing meals and delivering them to inmates. You are trying to fill your days and make a contribution.

101Your daughter, Vivian, has been residing in a shared care arrangement between your daughter, Lynn and  Vivian's father, Jack Pham. As they each work full time, this has meant Vivian has had regular periods of time on her own.

102In addition, you have been told that your adoptive mother has been diagnosed with cancer. You maintain a relationship with her although have not told her of your offending.

103You clearly have a supportive family to return to.

104I accept that your concern for important family members, both those in poor health and those responsible for their care, is a source of worry and concern for you and I do take this into account in a general sense. 

105Your prospects for rehabilitation are otherwise difficult to discern. You have had gaps in your offending but your motivation for your offending saw your easy resort to behaviours known to you to solve financial difficulties with little or no insight to the harm you have caused. I accept that the term of imprisonment I will have to impose will be capable of acting as a sanction and as a deterrent into the future and may well be a catalyst for change.

Sentencing submissions

106Pursuant to s 3 of the Sentencing Act 1991 (Vic) , the charges of trafficking which you face are defined as a Category 2 offence and as such, s 5(2H) of the same Act mandates that the court must impose a custodial order for this offence unless certain circumstances apply. No exception in raised on your behalf, nor could it realistically have been done.

107Upon a sentence of imprisonment being imposed on Charge 1, you fall to be sentenced on Charge 2 as a serious drug offender pursuant to the provisions of s 6B of the Sentencing Act. I will direct that this status be entered on the record.

108Section 6E relevantly provides that every term of imprisonment imposed on a serious offender for a relevant offence, be served cumulative on any sentences of imprisonment imposed on that offender whether before or at the same time as that term. I am mindful of that provision, but also mindful of the important principle of totality.

109To assist in the sentencing exercise, the Crown has referred me to a number of decisions which include Lieu v The Queen [2016] VSCA 277, Vincent v The Queen [2021] VSCA 99, Gregory (a Pseudonym) v The Queen [2017] VSCA 151, Nguyen v The Queen [2019] VSCA 184, DPP v Condo [2019] VSCA 181 (‘Condo’) and Said v The Queen [2020] VSCA 178. I have had recourse to these decisions.

110The Crown submit that considering the decisions in Gregory and Condo, the involvement of two drugs, your role as a wholesale supplier and your relevant prior history, that any sentence should reflect references in Gregory to 'sentences well into double figures' where certain features are present.

111Your Counsel acknowledges that a term of imprisonment is inevitable but argues:

(a)   your role is equivalent to 'middle management';

(b)   your offending does not warrant a sentence that could be described of 'double figures' when looking at the factors referred to and;

(c)   that there should be substantial concurrency between Charge 1, Charge 2 and Charge 4.

112I have already referenced my assessment of your offending. I do see a basis for some cumulation between the charges on your indictment but in consideration of totality and the commonality between the offending, any cumulation should be moderate.

113Now I will just check with each of you whether there has been any factual errors you wish to draw to my attention?

114MR MALIK:  No, thank you, Your Honour.

115MR MORTLEY:  No, Your Honour.

Sentencing

116HER HONOUR:  I make the ancillary orders as sought for the disposal of the drugs physically located at your residence and for the forfeiture of your mobile phone located at your premises.

117The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.

118I must also balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and reintegrated into society.

119I have taken into account the sentencing guidelines referred to in s 5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the important principles of totality and proportionality.  

120Ms Ngo, in relation to Charge 1 – trafficking in a drug of dependence in not less than a commercial quantity, you are convicted and sentenced to 8 years and 2 months imprisonment. This is the base sentence.

121On Charge 2 – trafficking in a drug of dependence in not less than a commercial quantity, you are convicted and sentenced to 6 years imprisonment, of which 10 months is cumulative on the sentence imposed on Charge 1

122For Charge 4 - knowingly deal with the proceeds of crime, you are convicted and sentenced to 12 months imprisonment of which 2 months is cumulative on the other sentences imposed.

123Your total effective sentence is therefore one of 9 years and 2 months. I fix a period of 6 years and 2 months before you are eligible for parole.

124170 days are reckoned as having already been served.

125Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty you would have been sentenced to 11 years with a minimum of 7 years and 8 months before being eligible for parole.

126My maths always needs checking gentlemen, I didn't do it myself before I came in.

127MR MALIK:  No issue, Your Honour.

128MR MORTLEY:  Correct, Your Honour.

129HER HONOUR:  Thank you.  Well I do thank each of you for your assistance.  I will stand down now so that you can speak to your client, Mr Mortley.

130MR MORTLEY:  Thank you, Your Honour.

- - -