Director of Public Prosecutions v Ngo

[2013] VCC 2148

IN THE COUNTY COURT OF VICTORIA  Revised

(Not) Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 12-00123

CR 12-00124

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHUONG NGO (aka DAVIS LE) HOANG THI KIM TRAN

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JUDGE:  HIS HONOUR JUDGE PARSONS

WHERE HELD:  Melbourne

DATE OF HEARING:                   1, 2, 3, 4, 7, 8, 9, 10, 11, 14, 15, 16, 17 and 30October 2013

DATE OF SENTENCE:               27 November 2013

CASE MAY BE CITED AS:         DPP v Ngo & Anor

MEDIUM NEUTRAL CITATION:   [2013] VCC 2148

Subject: Catchwords: Legislation Cited: Cases Cited: Sentence:

REASONS FOR SENTENCE

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APPEARANCES:  Counsel  Solicitors

For the Director of Public Prosecutions

Ms A. Ellis  Commonwealth Department of Public Prosecutions

For Accused Ngo  Mr D. Goddard  Victoria Legal Aid

For Accused Tran  Mr B. Johnston  C. Marshall & Associates

VICTORIAN GOVERNMENT REPORTING SERVICE

565 Lonsdale Street, Melbourne - Telephone [phone]

148441

Pages 26 - 39

HIS HONOUR:

1You, Davis Lee, have pleaded guilty before me to two counts, one count of possessing a drug of dependence, namely Cocaine, and also another summary charge of failing to answer bail which matter was brought before me pursuant to the relevant provisions of the Criminal Procedure Act and that application is marked as Exhibit 2 on your plea. Further, you were convicted after trial by jury on 17 October 2013 of one count of attempting to possess a drug of dependence, namely pseudoephedrine contrary to s.73 of the Drugs Poisons and Controlled Substances Act.

2You Hoang Tran, were found guilty after trial by jury on 17 October 2013 of attempting to possess a drug of dependence, namely pseudoephedrine contrary to the relevant provisions of the criminal law.

3In broad compass the matters with which I am concerned are set out in the Prosecution Opening on plea, Exhibit 1. They were fully explored at your trial and I will only set out the more significant aspects of those facts.  Both you, Lee, and you, Tran, were acting with others including a co-prisoner, namely Tao  Nguyen,  in attempting to possess a drug of  dependence,  namely pseudoephedrine,  between 5 August and 15 August 2011.   The drugs had been sent from Vietnam  in a wooden crate by airfreight. The package was intercepted by Customs on  arrival on 5 August 2011 and examined. The drugs were concealed within the  bases of two lamps inside the crate. The gross weight of the powder containing the drugs was 5.8 kilograms and the pure weight of the drugs was 3.93 kilograms.   I note the background of this matter is fully set out in Exhibit 1 between Paragraphs 7 to 41 inclusive.

4On 29 June 2011, members of the Australian Federal Police obtained warrants to be placed on various mobile phones used by your co-prisoner, Nguyen. As a result of those intercepts, investigators determined that Nguyen and two other people overseas, someone in China and another in Vietnam,

were arranging for the importation of pseudoephedrine. On 20 July 2011, Nguyen told the person in China that the intended delivery address was Lee's address in Carlton. Police then obtained a warrant on your phone, Mr Lee, on 22 July 2011.

5On Tuesday, 26 July 2011 Australian Federal Police surveillance observed Nguyen being collected by you, Tran, from St Albans and being driven to your home at 3 Ryan Close, Deer Park. On that same day, Nguyen was asked to find another  address and in return provided your address at 3 Ryan Close, Deer Park.

6Over the next few weeks, Nguyen and the other person in China further discussed the impending arrival of the drugs. On Friday, 5 August 2011, Customs identified the wooden crate which concealed the drugs, which they then removed and replaced with an inert substance for the purpose of a controlled delivery to Tran's home in Deer Park.

7Telephone intercepts revealed that Nguyen and you two, that is both Lee and Tran,  were awaiting the arrival of the package and to that end you, Tran, drove Lee  from his apartment in Carlton to your home in Deer Park on an almost daily basis.  There were a number of communications between you, Lee  and  Tran,  with Nguyen when  the  package  arrived  at  Tran's  house. Indeed, at one stage you, Tran, offered to look after the package and you told Nguyen that Lee did not need to come and assist you although Nguyen told you that in fact the package was in a male name and therefore Lee had to sign for it.

8Between 11 August and 12 August 2011 there were various discussions between Nguyen and the person in China. At midday on 15 August 2011, a police officer posing as a courier delivered the consignment to both of you at Tran's residence in Deer Park. The conversations were recorded by listening device and, in due course, you both then took the package into town.  The

circumstances of all this were recorded on various devices and also a video was played to the court.

9Lee, you opened the crate in your apartment and there were various communications between you and Tran as to what you found or in fact did not find.  You were both arrested by police and upon your arrest, Davis Lee, you were found to be in possession of a quantity of cocaine weight 0.2 grams with an 80 per cent purity. During a search of your apartment, police retrieved the crate and its contents, noting that the lamps in which the inert substance was stored were still intact.

10You, Lee, made a recorded interview with the police in which you explained that you did in fact reside with Nguyen, that you were old friends with him and that you had been waiting for the consignment at Deer Park, although you had not realised until just the day before its delivery that it contained light fittings. You explained that you had the cocaine in your possession and you had bought it for $150.

11You, Ms Tran, did not participate in a recorded interview.

12I note that an analysis of the drugs revealed that the 3.93 kilograms of pseudoephedrine could produce approximately 2.48 kilograms of methamphetamine base or 3.1 kilograms of methamphetamine chloride. The potential resale value that could have been produced from those drugs was between $868,000 and $1.023 million.  And the street level value was put at

$3.1 million, if sold at $100 per point of methamphetamine.

13With respect to you, Lee, I note that you entered a plea of guilty to the charge of possessing a drug of dependence, being cocaine, at committal on 2 February 2012. You indicated your intention to plead guilty to the summary charge on 23 October 2013. You have also pleaded guilty to the unrelated summary offence of failing to answer bail contrary to the relevant provisions of the Bail Act.

14I note that the contested committal took place on 2 February 2012, both of you were  committed to stand trial which was set down for 26 November 2012 although the matter could not then proceed as there was no judge available. Ultimately, the trial was adjourned to 30 September for a three week trial.

15Mr Lee, I have been told something of your personal history and your circumstances.  I have before me the report of a clinical psychologist, Bernard Healey, which is dated 19 May 2012 which I am informed is still the relevant mater to put before the court with respect to your offending. I note that you had been  previously assessed by Mr Healey in 2003, after which you had been sentenced to seven years' imprisonment with a minimum of five and that you had been then in detention since 2002, although you were released, you believe, in 2005.

16You were born in Saigon, one of nine children. Your father is deceased and your mother is in frail health and still in Vietnam. You were successful in your third attempt at fleeting your country of origin and you spent two years in a Malaysian holding camp until you were sponsored to Australia as a refugee and secured citizenship. You suffered asthma in infancy and you still use a Ventolin spray. Your only other major health problem was associated with a motor vehicle accident in 2010, as a result of which you still experience severe headaches. You have been diagnosed with high blood pressure and you underwent a brain scan. Following the accident you smoked cocaine in an effort to alleviate the headache pain.

17Your schooling came to an end with the Communist takeover in Vietnam and your first work was in factories in Sydney and Melbourne until the early 1990s where,   following retrenchment, your relationship deteriorated and your subsequent attempts at obtaining employment have all be undermine by your criminal record.    While living in Sydney, you met the mother of your two children, a son now aged 19 and a daughter aged 17 but contact with them has dwindled over the time after separating from your wife and her move to

Adelaide with the children in late 1995.

18I note that specific testing revealed a marked decline in your intellectual functioning since you were assessed in 2003. I note that your full scale IQ is 96 where 60 per cent of people your age would perform better; with respect to your perceptual reasoning, 92 per cent of people your age would do better; with respect to your working memory and your processing speed, 96 per cent of people your age would do better; with respect to your verbal abstraction it was quite weak and the estimated full scale IQ was 80 which represented a fall of some 25 to 30 per cent.  Your powers of delayed recall were reasonably sound but initial acquisition was  reduced and one could not discount the possibility of a higher level cerebral impairment as a result of the accident in 2010.

19Personality testing was indicative of depression linked to your life experiences which  include terms of imprisonment, loss of relationship and now  your current  predicament and a marked paranoid trend in view of your not guilty plea. There  was also a suggestion of auditory intrusions and some visual anomalies.   Certainly there have been marked changes in your adjustment since you were first seen in 2003 by Mr Healey, perhaps linked to the impact of a head injury sustained in 2010 but also a general decline in your life linked to self-neglect, in turn bringing about changes in intellectual capacity, mental state, heightened depression and paranoid features.

20With respect to specific propositions put to Bernard Healey by your instructing solicitors, it was his view that you suffer from impaired intellectual functioning, most likely arising from injuries sustained in the motor vehicle accident but also as a result of the general decline in your situation. Those symptoms would have affected your mental capacity and functioning at the time of the offending and continue to do so. Your condition would have prevented your capacity to think clearly and to make calm, reasoned decisions and appropriate judgments. And in your case incarceration would be more difficult

for you than for a person who does not experience the same problems. It was his view that your prospects of rehabilitation will be directly linked to your opportunity for medical and other interventions on your return to the community. It was his view that your risk of re-offending would be markedly reduced if a range of interventions were available to you on your return to the community which he sets out.

21I had the very helpful Outline of Submissions prepared by your counsel on your  behalf which were tendered and marked as Exhibit B. In view of the matters set  out above, it was submitted that the propositions set out in the case of Verdins have applicability in your case. And it seems to me that on the basis of the  material set out by Mr Healey, that is the case and I will therefore sensibly  moderate, as I am obliged, the principles of general and specific deterrence as they apply to you. And obviously take into account that custody for you is more difficult than for the normal person for the reasons set out by Mr Healey.

22Further, as I explained to Mr Goddard, I accept his characterisation of your offending that you did not know of the quantity nor of the value of the drug, that is there is certainly no evidence to indicate that you did have any knowledge of those matters. Further, with respect to your role, I accept that your role was directed by Nguyen and you were subservient to Nguyen.

23There is indeed no evidence of enrichment and I accept the proposition set out in Paragraph 7 with respect to your role as pointed out by Mr Goddard in his submissions. With respect to the issue of parity of course I bear in mind very much that Nguyen was charged with an offence which carries a maximum penalty of 25 years and he was the significant player in the organisation of the drugs travel to Australia.

24Further, I accept, with respect to the  other  charge  with  respect  to  the possession  of  cocaine,  that  it  is  a  very small  amount and  was  for  your

personal use and with respect to your failure to answer bail, I note Exhibit 3 sets out the relevant materials from the Crown's perspective and I have had regard to that and accept that you were very quickly located and arrested on the day of your failing to appear.

25In your case, you have admitted prior convictions and they are very significant in the circumstances of this case. You were previously before the Magistrates' Court at Melbourne on 15 February 1996 and with respect to a charge of trafficking in a drug of dependence, being heroin, you were sentenced to a term of imprisonment of one year and six months, and six months of such sentence being suspended for a period of two years. Then again on 18 July 2003 you were before the County Court on charges of importing a prohibited drug, being heroin, and also trafficking in a drug of dependence, being heroin, as a result of which you were sentenced to a total effective sentence of seven years, with a non-parole of five years to be served. Such sentence was affirmed on appeal to the Supreme Court of Victoria on 8 June 2004.

26I have those sentences available to me and have had regard to them, that is the sentence of Judge Duckett dated 18 July 2003 and also the judgment of the Court of Appeal of 8 June 2004.

27Finally, of course, you were before the County Court of Melbourne on 12 September 2003 on seven charges of defrauding the Commonwealth and you were sentenced to a term of imprisonment for a period of three months and all charges which were ordered to be served concurrently and you were ordered to pay reparation in the sum of slightly less than $25,000.

28Clearly your two convictions on drug-related matters and most particularly your sentence on 18 July 2003 are of the greatest significance with respect to your sentencing in this matter today. Of course, I am not overborne by that matter but I have had regard to the sentencing remarks of Judge Duckett and

think it appropriate to quote from them. Judge Duckett, in his sentencing remarks, noted your general background and set out your personal circumstances at p.4 of the sentencing remarks. His Honour noted your relevant prior conviction, His Honour said at the time, and I quote.

"You appear to have no family or other support in Australia.  Your previous conviction, your record of gambling and heroin addiction do not promise well for your rehabilitation. Your long period of unemployment since the early 1990s will have disadvantaged you on your release from prison."

29I had the sentencing remarks of Her Honour Judge Thornton of 12 March 2013 with respect to the third person involved in this matter, Tao Nguyen, who was sentenced to a total effective sentence of Five years and six months with a non-parole period of three years for the offence of importation of the particular drug with which we are concerned.

30Of course, you have been in custody for most of the time since your arrest on this matter, your history having been explained to me. And consistent with the remarks of Judge Duckett, it seems to me, although one can never give up hope of your eventual rehabilitation, there is little before me to suggest that there is any great likelihood of that at this stage and in view of this now further conviction for drug-related matters.

31Of course, in fixing an appropriate sentence, however, I have sought to maximise such chances of your rehabilitation as there may be. With regard to your role, I particularly bear in mind the submissions of your counsel and agree with him as to his characterisation of your role in this particular offending.

32As well as those matters personal to you to which I have referred including the question of rehabilitation, I must take into account such matters a deterrence and especially general deterrence which is of considerable importance in a case such as this. Specific deterrence also clearly looms large with respect to your sentencing given the relevant prior convictions.   Ofcourse, I also bear in

mind the sensible moderation of those principles in your case.

33I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be significant. In view of your previous convictions and noting the remarks of Judge Duckett to which I have referred, there seems little in your life that has changed since. It is hard to paint anything other than a bleak future that you face when you are released from prison. You seem to have little, if any, family who are concerned about you, virtually no employment prospects and I presume the only social group available to you will be those whom you have befriended in prison. These things do not auger well for you.

34There has been considerable delay in this matter which has been the subject of some submissions and of course, in the circumstances, you are entitled to the benefit of that. It is not of your doing and I have no doubt that the passing of that time has weighed heavily with you knowing of the inevitable gaol sentence and, of course, you have spent that time on remand and in that context done what little you can to make good your rehabilitation and, accordingly, you deserve sentencing credit for that.

35You, Davis Lee, are convicted and sentenced as follows. On Charge 1, four years and six months' imprisonment;  on Charge 2, one month imprisonment; on Charge 3, one month imprisonment. I direct that seven days of Charge 2 and Charge 3 be served cumulatively upon the sentence imposed on Count 1 and on each other.  That results in a total effective sentence of four years, six months and 14 days.

36I direct that you serve a minimum term of three years before becoming eligible for parole.

37As proscribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is 615 days and I direct that such be noted in the records of the court.

38I also direct that, subject to the provisions of s.6AAA, had you not pleaded guilty to the offences involving possession of cocaine and failure to attend in answer to  your bail, I would have ordered a sentence in respect of those matters of three months on each charge.

39Ms Tran, with respect to your personal circumstances, I heard submissions on 25 November and was also provided with a chronology and some details with respect  to your personal circumstances.  Plea submissions were helpfully provided by your counsel, Mr Johnston, which I marked as Exhibit T1.

40Further, I was provided with a psychologist's report from Mr Michael Bilyk which I also marked as an exhibit, Exhibit T2.

41You were born in Vietnam in 1966 and in 1977 you fled Vietnam as a refugee.

Your parents remained in Vietnam.  You were 11 years of age accompanied by your older sister when you arrived in Australia.

42In 1984, you met your partner, from whom you are now separated, and he was the father of your three children who were born in 1985, 1987 and 1992 respectively.

43Throughout the 1990s your parents and other family members who were sponsored by you and others, arrived in Australia.

44In 1992, your relationship came to an end and thereafter, until your trial, you took  various employment as a cleaner, factory worker and farm hand and I shall return to that in due course.  Your three children have all done very well. I understand one is a group co-ordinator at Crown Hotels and she is currently pregnant with her first  child, due next year.   Your second daughter is a customer relations officer at  the Commonwealth Bank and she is engaged and about to be married. You third daughter resided with you.

45It is clear that since the break-up of your long-term relationship with Mr Tran, the father of your three daughters, you experienced a period of considerable

difficulty in the past, now, 20 years. I understand that whilst your former partner remains supportive of your children, you became significantly depressed following the break-down of the relationship and apparently attempted suicide.

46You then married another man, although apparently that marriage only lasted three years as he desired to return to Vietnam due to the  difficulties in acquiring the English language. Subsequently, as was explained in the report of Mr Bilyk, the psychologist, you sought the company of women on the basis that you found those relationships to be of more substance and you had become very distrustful of men, given your experience throughout your marriage and long-term relationship.

47You reported to the psychologist that there was frequent and significant use of alcohol and also the commencement of your gambling habit whilst in the company of some of your women friends and this has caused you considerable difficulty. I understand you told the psychologist that you no longer use alcohol, upon this matter being brought to the attention of the police, and further, as a result of you wishing to sort of your life. You report your conviction as being a consequence of your inability to deal with the separation from your then partner and that is explained at p.4 of the psychologist's report.

48In Mr Bilyk's opinion, psychometric testing has revealed a confusing picture.

You are regarded as a moderate risk of re-offending, given the presence of both risk and protective factors. One test reveals an individual who is likely to be psychologically well, although other tests identify post-traumatic reactions. A further test indicates extremely severe levels of depression, anxiety and stress currently operating.

49I do note the fact Mr Bilyk pointed out that the very strong  association between the stress disorder and substance abuse and that individuals who

witness or are exposed to traumatic events and are clinically diagnosed with post-traumatic stress disorder have a greater likelihood of development later drug and/or alcohol use disorders.

50I have also had regard to the significant number of character references which have been provided on your behalf by persons who have come to know you recently. In  the case of Vivian Tran from AMES and Daniel Green, a civil construction trainer.  In addition to those character references, there are also references from your daughters as well as your niece and her husband and I do note the certificates which were appended to those documents specifically with respect to your qualifications which you have achieved of late and that you are a practising Buddhist.

51I shall also note, of course, the fact that this matter has taken some time to get to court and, indeed, there has been a delay of, as was put to me, 834 days or approximately two and a quarter years between the date of the commission of the offence and 25 November. With respect to that, of course, you are fully entitled to the sentencing discount appropriate to you for two reasons, firstly that no doubt  the passing of that time has been a cause of considerable anxiety with respect   to  the  inevitable  gaol  sentence.  That  would  be consequence upon a conviction.

52And further, of course, you have utilised the passing of that time to effect your rehabilitation in the way described in the psychologists' report and also in submissions made on your behalf. Both these matter weigh in the balance on your behalf and in your favour.

53I am, on balance, satisfied the chances of your rehabilitation are reasonably good in view of your age and your current circumstances and your resolve to put any criminal offending behind you. But clearly that will depend in large measure on you coming to terms with the situation described by the psychologist.   Also, you will need to receive and accept counselling with

respect to your gambling addiction that has bedevilled your life for the past decade or two.

54With respect to your role in the offending, I find that you and Mr Lee should be treated  equivalently, although, of course, your antecedents are significantly different.

55However, as well as those matter personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence and especially general deterrence which is of considerable importance in a case such as this. With respect to specific deterrence, I do not think it is of significance given your age and your circumstances at present. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be modest in view of those circumstances.

56Ms Ellis, there was no intimate forensic sample requested, was there?

57MS ELLIS: No there wasn't, Your Honour.

58HIS HONOUR: Madam Interpreter, I will delete Paragraph 69.

59This is, without doubt, a serious offence and, in all the circumstances, I have no alternative to the imposition of a custodial sentence. You are convicted and sentenced as follows. On Count 1, two years and six months' imprisonment, that results in a total effective term of imprisonment of two years and six months and I direct that you serve a minimum term of 18 months before becoming eligible for parole.

60As proscribed by s.18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is 42 days and I direct that such be noted in the records of the court.

61That conclude the matter?

62MS ELLIS: Yes, Your Honour.

63HIS HONOUR:    Thank you, Mr Tran and Mr Lee, if you could go with the officers at the back of the court.

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