Director of Public Prosecutions v Nguyen; Director of Public Prosecutions v Wu; Director of Public Prosecutions v Tran
[2021] VCC 2160
•10 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00230
Indictment No. K1102375
Case No. CR-21-00235
Indictment No. K11023386
Case No. CR-21-00231
Indictment No. K11023808.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHUONG MINH NGUYEN RAYMOND TRAN |
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| JUDGE: | HIS HONOUR JUDGE DOYLE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 August 2021, 1 September 2021, 2 September 2021, 3 September 2021, 6 September 2021 |
| DATE OF SENTENCE: | 10 December 2021 |
| CASE MAY BE CITED AS: | DPP v Nguyen; DPP v Wu; DPP v Tran |
| MEDIUM NEUTRALCITATION: | [2021] VCC 2160 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Guilty pleas – Eleven co-offenders – organised crime syndicate trafficking in mostly methylamphetamine – large commercial quantities – standard sentencing regime – Covid-19
LegislationCited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991; Confiscation Act 1997
CasesCited: Worboyes v The Queen [2021] VSCA 169; Gregory (a pseudonym) v The Queen [2017] VSCA 151; DPP v Kumas [2021] VSCA 215; Rahmani v The Queen [2021] VSCA 51; Fatho v The Queen [2019] VSCA 311
Sentences:K M Nguyen: Convicted and sentenced to a total effective sentence of 15 years and 4 months with a non-parole period of 9 years and 10 months
W Wu: Convicted and sentenced to a total effective sentence of
12 years with a non-parole period of 7 years.
R Tran: Convicted and sentenced to a total effective sentence of 12 years and 10 months with a non-parole period of 8 years and 4 months
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| APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | B Sonnet | Solicitor for the Office of Public Prosecutions |
For the Accused Nguyen | D Trood | Melasecca Kelly & Zayler Barristers and Solicitors |
For the Accused Wu | J Saunders | Melasecca Kelly & Zayler Barristers and Solicitors |
For the Accused Tran | S Tovey | Melasecca Kelly & Zayler Barristers and Solicitors |
HIS HONOUR:
1Operation Polaroid commenced in September 2018. It was an operation by Victoria Police Drug Task Force into an organised crime syndicate operating a drug trafficking business. The investigation ran from the end of November 2018 until 22 April 2019. Phone intercepts were utilised, as well as listening devices and an optical surveillance device.
2The syndicate the subject of this operation was a highly organised, prolific, systematic, and large-scale distributor of illegal drugs, principally methylamphetamine. The syndicate dealt in different quantities of drugs ranging from 0.5 grams to 1 kilogram. During the investigation, over 200 customers were identified, the majority of whom were drug traffickers on-selling drugs to their own customers. The quantifiable amount of drugs sold by the syndicate during the investigation was approximately 46 kilograms. That was the amount that was quantifiable.
3The syndicate's operations as a whole are described in the Prosecution Opening, which was tendered as Exhibit A on the plea. I do not propose to repeat in detail all of the material relating to the system operated by the syndicate which is set out in the Opening and in my earlier sentencing remarks in this matter. It was undisputed.
4Syndicate members had different tasks. Some took orders over the syndicate’s phones and others were the delivery drivers. Delivery drivers were paid at $66 an hour. Phone holders were paid at some higher rate not disclosed in the evidence. Phone holders occupied a position above delivery drivers in the syndicate.
5The syndicate worked daily from 12.00pm to 2.00am. Occasionally, the business was closed. If so, the customer base was advised.
6The operations of the syndicate represented drug trafficking at the high end. It was a professional, systematic, organised commercial operation introducing very large quantities of destructive drugs of dependence into the community, well above street level.
7You, Khuong Minh Nguyen, William Wu and Raymond Tran have all pleaded guilty to trafficking in a large commercial quantity resulting from your employment with the syndicate and also to various other charges which I will set out later in these remarks. Trafficking in a large commercial quantity carries a maximum penalty of life imprisonment and is subject to a standard sentence of 16 years' imprisonment. It is also a Category 1 offence which means that a sentence of imprisonment must be imposed in the absence of the stipulated statutory criteria being established. It is accepted in this case that prison sentences are the only alternative for each of you.
8I turn to some matters that apply to each of you.
9The sentencing regime for serious drug trafficking is quantity based and each of you trafficked in amounts very substantially above the large commercial quantity threshold. The threshold for the large commercial quantity in methylamphetamine is 750 grams, mixed, and the same for heroin, in your case, Mr Wu, of 750 grams mixed.
10Considerations of general deterrence, denunciation and just punishment are important sentencing principles in commercial drug trafficking at this level. In particular the sentencing authorities have emphasised the importance of general deterrence and denunciation. The principles in the case of Gregory (a Pseudonym) v The Queen [2017] VSCA 151 relating to trafficking in commercial quantities dictate a consequent increase in sentences for trafficking in large commercial quantities. Mr Sonnet took me to the recent case of Kumas v The Queen [2021] VSCA 215 where the Court of Appeal reiterated this. See also the decision in the case of Rahmani v The Queen [2021] VSCA 51.
11It is clear from the appellate authorities that offenders who traffick drugs in large commercial quantities and in this case those who choose trafficking drugs in these quantities as a full-time occupation, must expect lengthy sentences if they are detected and convicted. There is no doubt that a proper application of the sentencing principles dictates a substantial period of imprisonment for each of you and that general deterrence is the primary sentencing principle.
Guilty plea
12Any trials in this case would have been long and complex. The utilitarian value of the pleas of guilty in each case is substantial. Although the guilty pleas were indicated or entered at a contested committal the brief in this case was very large and it was unsurprising that the matter proceeded to a contested committal and resolved the way that it did. In the circumstances I regard each of your pleas as early pleas.
13Additionally, you have all pleaded guilty at a time when the court faces a very substantial backlog of trials resulting from the suspension of jury trials during the pandemic. This increased utilitarian value of a guilty plea was recognised by the Court of Appeal in the recent decision of Worboyes v The Queen [2021] VSCA 169 and in subsequent decisions where the court said at [35]:
‘Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.’
14For each of you I am satisfied your plea indicates also a level of remorse and a willingness to facilitate the course of justice.
15You are all entitled to a substantial sentencing discount because you have pleaded guilty.
Delay
16You were each remanded in custody, apart from you, Mr Wu, in April 2019. You, Mr Wu, were subsequently released on bail. It has taken over two years and eight months for this matter to be finalised. Given the scale of the investigation and the number of people charged it was always likely to take some time for this matter to proceed through the Magistrates’ Court and then to be finalised in this court. Of course, the disruption to the court proceedings has meant that the contested committal was not listed until February 2021. In all the circumstances I do not regard the delay as inordinate. However, I have taken into account the uncertainty about your future that each of you has experienced over a lengthy period on remand.
Standard sentence
17The standard sentence for drug trafficking in a large commercial quantity is 16 years' imprisonment. The standard sentence operates as a yardstick only and is applicable to an offence in the mid-range of seriousness, having regard only to its objective features. A standard sentence is not a mandatory sentence or the primary sentencing consideration, or the starting point from which to add or subtract time. It is one of the many matters to be considered by the court as part of the instinctive synthesis of all matters relevant to sentencing.
18The law requires me to ‘identify fully the facts, matters and circumstances’ which bear upon my decision as to the appropriate sentence. In the remarks that follow I have endeavoured to do that in some detail. The sentence I will impose for each of you for the charge of trafficking in a large commercial quantity is less than the standard sentence. In arriving at the sentence in this case, I have taken into account all of the matters I am required to consider under the Sentencing Act 1991 including the standard sentence. I have considered all the mitigating factors which apply in this case.
19The Sentencing Act provides that in sentencing for a standard sentence I must fix a non- parole period of at least 60 per cent of the head sentence if that sentence is less than 20 years' imprisonment unless I consider it to be in the interests of justice to fix a lower minimum.
20Current sentencing practices remain a relevant factor but in sentencing for a standard sentence offence I am constrained to only consider sentences passed after the introduction of the standard sentencing scheme. I have read and had regard to the cases referred to in the prosecution submissions and the table of cases in the Opening as well as the Court of Appeal decisions relating to large commercial quantities since the introduction of the standard sentencing regime.
21There are of course relevant differences between the offending in each of your cases and the offending in the cases referred to by the prosecution. One such matter is the role each of you played. It is not put against any of you that you were principals in the syndicate, although you, Mr Nguyen, were considered to occupy a trusted and important role. Mr Sonnet accepted on the plea that there are no factually similar cases amongst the comparative cases. You, Mr Nguyen and William Wu, were phone holders. Raymond Tran, your role has been characterised as that of a delivery driver and all that that entailed in this syndicate, but you did more than simply deliver drugs to customers. I will deal further with the details of your roles in the individual sentencing remarks.
22Current sentencing practices are a yardstick or a guide but not a controlling factor in sentencing.
MINH KHUONG NGUYEN
23Mr Nguyen you pleaded guilty on Indictment number K11023750 to the charge of trafficking in a large commercial quantity of methylamphetamine. You also pleaded guilty to trafficking in cocaine, trafficking in heroin and negligently dealing with the proceeds of crime.
24Trafficking attracts a maximum penalty of 15 years' imprisonment, and negligently dealing with proceeds of crime a maximum of five years.
25You also pleaded guilty to the related summary offences of possession of prohibited weapons, namely knuckle dusters and ninja throwing stars, which has a maximum of two years and committing an indictable offence on bail, three months' imprisonment maximum. The fact that you were on bail when you committed these offences is an aggravating feature.
Circumstances of the offending
26The facts of your offending are described in the Prosecution Opening in considerable detail.
27You worked 56 shifts but performed other duties when you were not manning the phones. You participated in numerous phone handovers between other phone holders captured on CCTV and surveillance. Sometimes Mr Tran would contact you regarding ‘reloading’ kilograms of drugs before doing so. The prosecution case is that you were a person of authority within the syndicate.
28The quantum alleged in Charge 1 is 15,575 grams of methylamphetamine. This amount is made up of 14,456.45 grams from transactions captured on the telephone intercept and an additional 1,118 grams located during the execution of search warrants on 22 April 2019. Charge 2 relating to trafficking in cocaine was part of syndicate operations that are picked up on the telephone intercepts and a further 14.7 grams when the warrants were executed. Charge 3 was a significant amount, over 300 grams, but it included 292.8 grams located during the execution of the search warrants. Charge 4, negligently dealing in the proceeds of crime, relates to a 24-carat gold chain and $6,410 in cash located in the search warrants, as do the knuckle dusters and ninja throwing stars. The quantum of drugs is not the only factor for me to consider in assessing the seriousness of the offence, but it is an extremely important factor.
29The duration of your participation in the syndicate was over five months commencing in November 2018 when the operation started and through to the end of April when the search warrants were executed.
30You were born in March 1992 and you were therefore aged 26 and turning 27 years old. You are now 29. You were living in Richmond before your arrest.
The details of your offending
31As I said, you were first detected on the intercepts on 30 November. You worked 56 shifts for the syndicate. The Prosecution Opening describes the bulk of your offending in repetitive terms, indicating the specified shifts you worked as a phone holder and that you facilitated multiple transactions in that role. On many occasions at the end of your shift William Wu took over as the phone holder. The total number of completed transactions you facilitated across the 56 shifts you worked, based on the Prosecution Opening, was on my arithmetic in the order of 588. You worked shifts consistently throughout the five- month period of the investigation. As I said, included in the transactions were transactions relating to cocaine and heroin. I do not propose to repeat the entirety of the prosecution summary given its repetitious nature based on the repetitious offending in the case, but I have had regard to all the details contained in it. I will just go through some aspects of that Opening which detail the leadership type role you had within those that were working regularly for the syndicate.
32On 17 January for example you were working as a phone holder and facilitated a substantial sale of 500 grams of methylamphetamine and then you requested feedback on the drugs. You then went on to discuss ‘man tools’ for sale. The customer clarified these were not power tools, but man toys. The customer offered to send a photo, but you advised your phone did not receive photos, and to show the boys in person. The customer agreed and said, 'Make an offer on it for me. It’s a nice one yeah, semi and fully’. It is indicated in the summary that it is suggested, and I accept, that this was discussion on behalf of the syndicate relating to the sale of a firearm.
33On 25 January 2019, a syndicate motor vehicle was seized containing a couple of kilograms of heroin, a kilogram of methylamphetamine, pseudoephedrine, cocaine, six handguns, a semi-automatic rifle, 20 machetes, two samurai swords, and other drug trafficking items. Your fingerprints were on digital scales within the vehicle. Thereafter you were engaged in moving and the organisation of syndicate business or items from the Sunshine safe house to the Maribyrnong safe house.
34On 5 February you were proactively calling customers in the northern suburbs, telling the customers there was a driver in the area if they needed drugs.
35On 10 February over into 11 February, as the phone holder you told a customer the syndicate was getting new ‘gear’ today. You told the customer that the product was the same as the previous product. Later that evening you called a customer, seeking feedback on the new product.
36On 12 February 2019 the syndicate started using a new customer telephone which was not intercepted until 28 February. Stored communications in the form of text messages indicate trafficking in the period. Members of the syndicate continued to attend the safe houses and handovers were captured on CCTV. The amount of drugs sold is not able to be quantified but you worked on:
(a) 15 February 2019;
(b) 16 February 2019;
(c) 17 February 2019;
(d) 19 February 2019;
(e) 20 February 2019;
(f) 21 February 2019; and
(g) 22 February 2019 into 23 February 2019 when a text message shows a 196-gram transaction took place.
37On 25 February 2019, you called dozens of customers attempting to gather more business for the syndicate and transitioning customers to the new phone number. You told customers the product is good quality. One customer asked for ‘drinks’ and you responded, ‘not drinks, but anything else you want, we got the hotcake, the coke and the ice’ (being references to heroin, cocaine and methylamphetamine). You discussed price matching with another customer. On this day, there was one transaction conducted by Mr Tran out at Highpoint and it is believed on that day Mr Tran conducted a restocking of 1 kilogram. Once the phone intercept was active you were captured on the intercept thereafter.
38On 26 March over into 27 March you made numerous calls attempting to secure more business for that day, indicating you had very good quality methylamphetamine and the price had dropped. You sent text messages at 6.47pm offering pure ‘hot’ (heroin) for sale. You told a customer you have ‘magic city’ for sale and that is thought to be a reference to heroin because when police executed the warrant on the vehicle on 25 January 2019, there were blocks of heroin labelled ‘magic city’. You discussed the price of methylamphetamine and heroin with this customer.
39On 29 March you spoke to customers offering discount rates.
40On 1 April, you discussed a reload with Raymond Tran. He spoke to you about providing a sample to a customer to test the quality. You sent a text to a customer saying, ‘I've got a new one, you wanna try it out?’.
41You sent further text messages the next morning to several customers confirming that the syndicate had a new one that was better than the last one.
42On 4 April text messages were sent by you to customers touting for more business and offering discounts to various customers and you were involved in a re-stock and a delivery of money in relation to $111,400 and you had spoken to Thanh Truong about that, as well as William Wu.
43On 10 April 2019 you spoke to Mr Tran about a cash count that day, being $49,710 and you were asked to get permission from William Wu for a reload.
44On 13 April you were captured discussing the profits available and purchasing by the kilogram and selling by the gram and you were on that same day, 13 April, involved in a stocktake.
45On 17 April you were captured again discussing discounted rates with customers and telling them that they don’t ‘tick’, being presumably credit. You told customers you had ‘mad coke’ and there was talk about a ‘reload’ with Mr Tran on that day.
46On 19 April, you told Thanh Truong to take $75,000 to James Van because he needed it.
47On 20 April you were the phone holder. You were captured speaking to Thanh Truong and Quang Vo discussing how you were the boss because ‘Jay’ had put you in that position.
48On 21 April 2019, there was another reload in the amount of 1 kilogram and you spoke to Mr Tran, saying that you had to pay ‘83’, which is a reference to $83,000 for the kilogram reload.
49On 22 April 2019, police executed search warrants. At your address they located:
(a) knuckle dusters;
(b) ninja throwing stars;
(c) small quantity of cocaine;
(d) $6,410 cash; and
(e) yellow/black lined books (being notebooks used as ledgers).
50Investigating police also located 1,118.6 grams of methylamphetamine, 14.7 grams of cocaine and 292.8 grams of heroin during searches on that day which had become part of your charges. As I said, you were on bail.
Seriousness of the offending
51Your role in the syndicate was an important one and you participated throughout the whole period of the police investigation. The seriousness of your offending is underpinned by the quantity of drugs you introduced into the community being over 20 times the large commercial quantity of methylamphetamine covered by Charge 1. The value of the drugs and the profit generated from your activity has not been specified but it must have been very large indeed.
52You occupied a leadership position in this syndicate. That is obvious from restating the facts. Without you the syndicate could not have operated. Moreover, you performed what was effectively a marketing role for the syndicate: drumming up new business, touting the quality of the product and offering attractive prices to keep existing customers. At one stage you appeared to be negotiating for a firearm. This is illustrative of the significant role you occupied.
53That said it is not put by the prosecution that you were remunerated by a share in the profits. The prosecution case is that you were an employee but an important one. You seem to have been the leader of the day-to-day operations. Your position as an employee reduces the objective gravity of your offending and to an extent your moral culpability. It is not clear what you received in return for your labour. It is not disclosed in the evidence. What is clear is that this was effectively your occupation during the period of the investigation, and your motivation must have been financial reward for your role in the syndicate. This syndicate was highly professional, operating as though it was an organised legitimate business. It would not have been able to do so without the substantial contributions you made.
54You must have well understood the gravity of what you were involved in. I consider your moral culpability to be high. I accept the prosecution submission that of the offenders who have pleaded guilty before me your involvement places you at the top of the hierarchy.
55Charge 2 of trafficking in cocaine arises from syndicate operations, and in my opinion adds little to the overall criminality having regard to the nature and quantum of Charge 1.
56Charge 3 of trafficking in heroin does involve a substantial quantity of more than 300 grams in total but it arose entirely out of syndicate activities and I have taken all those matters into account in assessing the leadership role, as it were, in respect of Charge 1.
57In my view the remaining charges were all part and parcel of the syndicate activities and do not add greatly to your criminality.
58In relation to the bail offence, as I have already stated, that is an aggravating feature in this case.
Personal circumstances
59Your counsel Mr Trood outlined your personal circumstances on the plea, and they are also detailed in the psychological report of Mr Luke Armstrong dated 13 September 2019.
60You were born in Australia to parents who had fled the Vietnam War. You grew up in the commission flats in Richmond and lived there until the time of your arrest. You have one brother who suffers from Autism and an intellectual disability.
61To Mr Armstrong you said your father was violent, an alcoholic and a gambler. Your parents separated when you were five years old, and you were brought up by your mother. She relied on social security benefits. You say your mother struggled to cope and you often experienced violence at home. Your father reinitiated contact when you were 15 years of age, but this did not develop into a meaningful relationship.
62You attended Richmond Primary School where you describe being teased and struggling to integrate, although you apparently performed well academically. You finished your education at Hawthorn Secondary College.
63In your senior years you began experimenting with alcohol and illicit substances and got into fights at school. Mr Trood submitted that it was in this context of a deprived early childhood and adolescence that led you to abuse drugs and alcohol from an early age. Mr Armstrong says you display chronic personality disturbance related to childhood trauma consistent with a Personality Disorder.
64You completed your VCE and undertook a finance degree at Victoria University, but you failed your first year twice. You attributed this to your increased drug use and a deteriorating lifestyle.
65You worked at Woolworths for four to five years in various roles. By the age of 23 to 24 you reported your drug use as ‘out of control’ and you became unable to obtain full time or part time employment. You were using drugs daily, particularly cocaine, when you were arrested in these matters.
66You maintain a close relationship with your mother who you speak to from Skype in prison.
Character references
67Tendered on the plea were various references in support of you from Dao Thi Truc Ton, Hieu Dinh Nguyen, Tony Nguyen, Brett Gatherer, Dusan James Mijic, Angela Cao and Ricky Nguyen. Those who went to school with you described their shock when they found out about your offending. They say you studied hard in school and wanted to be an accountant, but that you fell in with the wrong crowd. Ricky Nguyen grew up in the same neighbourhood and recalls you teaching him boxing. He now runs a boxing program in the community. Others speak of your family-orientated nature, describing you as a polite and caring son and brother. Mr Gatherer worked with you at Woolworths and described you as loyal and hard-working. You were apparently promoted to replenishment manager. He said you were a loved and respected team member.
68There is also a letter from Uniting AOD clinician dated 17 August 2021 confirming that you would have commenced your engagement with ReGen AOD were it not for the COVID-19 pandemic.
Criminal history
69You do have several previous appearances in the County Court and the Magistrates’ Court commencing in 2012. Your first appearance was for intentionally causing serious injury in the County Court. You were placed on a community correction order for 18 months with a condition that you perform 100 hours of community work. This is by any measure a lenient penalty for that charge. It must have been an offence towards the bottom end of the range. However, you breached that community correction order and on 1 March 2013 that breach was dealt with and the order was confirmed. In July 2013 at the Ringwood Magistrates’ Court, you were placed on another community based order for possession of a controlled weapon without excuse. In March of 2017 you were placed on yet another community correction order for possession of cocaine and ordered to perform 100 hours of community work, as well as to undertake rehabilitation for drug abuse.
70Notwithstanding the orders made by courts designed to assist your rehabilitation, you committed these offences commencing at the end of 2018.
71Whilst your prior convictions are not for similar offending, they are relevant in my opinion to specific deterrence and to the assessment of your prospects of rehabilitation. You have not been deterred by the orders made in the past; nor have you been rehabilitated as a result of them.
Prospects of rehabilitation
72You admitted to Mr Armstrong that when you went to prison you were able to access drugs in custody and you used drugs over the early months of your remand period. However, that changed, and you realised then that you had a serious drug problem. In April 2021 I am told you completed a psychological program which has been of assistance. Further, I have been provided with negative urine test results from July 2019 up through to July 2021. It is to your credit that after a rocky start in prison you have now been abstinent for over two years. There are some positive signs in respect of your level of insight and the way you are now thinking about your life.
73The sentence you must serve will be a long one. Your criminal history is relatively limited, and you have no prior convictions for drug trafficking. There are some factors in your favour, you have held down employment in the past; however, I am not able to take quite as optimistic a view of your prospects of rehabilitation as I have been for some of your co-offenders. I would assess your prospects as reasonably positive given you have shown a capacity over the last couple of years to stop using drugs and your criminal history is relatively limited, and these things are to be looked at in the context of what will be a lengthy sentence.
COVID-19
74You have been in prison on remand during the pandemic and I take that into account as a mitigating factor because of the additional hardship of being in prison during this period. That is so because of the restricted conditions caused by the pandemic. Aspects of those restrictions are the suspension of visits and educational courses, and the lockdowns that have been prevalent. Such conditions are likely to be in existence for some time. In addition, I have taken into account the general anxiety caused by the pandemic as it relates to you in prison and with your family and friends in the community.
Totality
75The overall sentence I impose must be just and proportionate to the totality of your offending. To achieve this, in the end I have ordered concurrency between the sentences to be imposed for each charge with Charge 1 in this case. In addition, in your case there is a necessity to avoid a crushing sentence. All of your offences arose during the same course of conduct, namely your leadership role in the syndicate. This a matter that I have taken into account in assessing the gravity of Charge 1, the large commercial quantity trafficking charge, and I need to be careful to avoid double punishment.
Non-parole period
76The non-parole period is the minimum period justice requires an offender to serve before being eligible for release on parole. In your case, given my view, you have solid prospects of rehabilitation and I will allow for a lengthy period of supervision on parole. Of course, I have kept in mind that the non-parole period should not be fixed at a level which impermissibly erodes general deterrence.
Sentence
77Minh Khuong Nguyen, you are to be sentenced as follows:
(a) In relation to Charge 1, trafficking in a large commercial quantity of methylamphetamine, you are convicted and sentenced to a period of 15 years and 4 months' imprisonment.
(b) In relation to Charge 2, trafficking in cocaine, you are convicted and sentenced period of six months imprisonment,
(c) Trafficking in heroin, Charge 3, 18 months' imprisonment.
(d) In relation to the charge of negligently dealing with proceeds of crime, nine months' imprisonment.
(e) In relation to possession of a prohibited weapon - one month's imprisonment.
(f) In relation to committing the indictable offence on bail, convicted and discharged, because I have taken this matter into account as an aggravating feature.
78Therefore the total effective sentence is 15 years and 4 months' imprisonment. I fix a non- parole period of nine years and 10 months.
79I declare that pursuant to s89DI you are to be sentenced as a serious drug offender. I declare 887 days as pre-sentence detention to be deducted from the sentence I have imposed.
80Pursuant to s6AAA I indicate that but for your plea of guilty I would have imposed a sentence of 22 years and six months with a minimum of 15 years and eight months.
81HIS HONOUR: I will make the disposal orders sought.
WILLIAM WU
82William Wu, you pleaded guilty on Indictment K11023386 to one charge of trafficking in a large commercial quantity for which the maximum term of imprisonment is life, as I have already said. In your case, this is a rolled-up charge comprising of two different types of drugs. You also pleaded guilty to another charge of trafficking which carries a maximum of 15 years.
Circumstances of the offending
83You were born in August 1992 and aged 26 years old at the time of the relevant offending. You were living in Hoddle Street, Collingwood at the time of your arrest.
84Your role in the syndicate was as a phone holder. You worked 47 shifts. You participated in numerous phone handovers which were captured on CCTV footage. It was put in the Prosecution Opening and not disputed that you had a high level of responsibility in the day to day operations of the syndicate and that from time to time Mr Tran would contact you about ‘reloading’ kilograms of drugs before doing so.
The details of your offending
85You were first detected on the phone intercepts in late November 2018. You worked consistently up until 22 April. During your shifts you facilitated in the order of 520 transactions for the syndicate. I do not intend to summarise each shift you worked given the repetitious nature of the activity described, but I will describe those shifts which illustrate your involvement beyond simply the facilitation of drug sales as the phone holder, but I have had regard to all matters in the prosecution summary which was not disputed.
86You facilitated transactions in methylamphetamine and heroin as I said.
87On 2 February 2019 by way of example, you told people that the business was not open. One customer was after cocaine. You told the customer that while the business was not open, one of the boys was going to get some that night and you would let him know. You were seen entering the safe house on that day and the prosecution case is you retrieved cocaine that day and delivered it, so that was an instance of you delivering drugs. Throughout this period you participated as a phone holder, on a regular basis facilitating drug transactions.
88As I have said a number of times, on 12 February the syndicate commenced using a new telephone. The intercept did not capture daily drug trafficking up until 28 February, however stored communications and text messages indicate trafficking continued and police were able to establish who worked but not able to quantify the amount of drugs sold.
89In this period, you worked shifts on:
(a) 13 February over into 14 February;
(b) 17 February; and
(c) 20 February over into 21 February.
90Once the intercept was back in place you continued to work consistently as a phone holder.
91On 25 March you had a phone conversation with Raymond Tran about meeting with someone to pick up a ‘gold tea bag’ for ‘77’. It is put and I accept this was a discussion about reloading the syndicate's methylamphetamine supply. Raymond Tran discussed with you having organised the 1 kilogram ‘reload’ but told you he was not happy with the purchase.
92On 27 March you were working as the phone holder and during that shift Mr Tran discussed the recent batch of methylamphetamine sourced by ‘Panda’ (which was a reference to you).
93On 2 April you were captured speaking to Raymond Tran on the surveillance devices regarding the preparation of methylamphetamine, the sales that were coming up and the cash you had that week.
94On 4 April, you were involved in discussions with Mr Thanh Truong in relation to the syndicate reload in the amount of $111.400 and you were involved in that.
95On 8 April you were captured doing a stocktake with Raymond Tran. You were captured tallying up drugs, including heroin, cocaine, and the following morning you reported the cash count as $147,965, not including the profits that had been made that evening.
96On 11 April, Mr Tran was talking to Mr Nguyen about speaking to ‘Luigi’ (also a reference to you) about ‘reloading’ because the syndicate needed more drugs. Later on Mr Tran was captured saying that you were not picking up the phone. Even later, he spoke to you about a reload for $77,000. This related to methylamphetamine.
97On 15 April you were the phone holder conducting transactions. On this shift, the business was running low on product and you told customers that the syndicate drug supply was low, and then later that evening or night, Mr Tran ‘reloaded’ with another kilogram of methylamphetamine and then he spoke to you about that.
98On 16 April there was further discussion about the reload and you talked about purchasing another kilogram next time and discussed different types of methylamphetamine.
99Then on 22 April a search warrant was executed at your address. Investigating police located registration documents and sales invoices for a syndicate motor vehicle which had firearms and drugs inside of it when searched.
100Subsequent forensic analysis linked you to over a kilogram of heroin, 1020 grams found in the back of the vehicle at Foundary Road, Sunshine on 25 January 2019. You were also linked to the snap lock bags of cocaine at your house.
101You were arrested and remanded in custody on 22 April 2019. You made a no comment interview. You were granted bail on 8 August 2019.
102Of course, you have pleaded guilty, and I have dealt with the significance of that.
Personal circumstances
103Mr Saunders on your behalf addressed your personal circumstances which are also set out in the report of Mr Luke Armstrong dated 7 August 2021 which was tendered.
104Your parents fled the Vietnam War as refugees. You are one of five children. You reported to Mr Armstrong that your parents worked long hours as factory workers. You grew up in a garage shared with your four siblings, mother, father and grandfather. Your extended family lived in the main residence and you have a recollection of your aunt being violent. You were aged 14 when your family moved to the commission flats in Collingwood.
105Your father had suffered mental health issues and an ongoing gambling addiction. Twelve months after moving to Collingwood your parents’ relationship deteriorated and your mother and your siblings moved out, but you stayed, continuing to live with your father and care for him.
106You went to Abbotsford Primary School where you struggled with English and you were placed in ESL classes. You reported being bullied on account of your weight. You left school before completing year 12 due to stress at home.
107After school you started a hospitality course at NMIT but you left half-way through. Again, you attributed leaving your studies because of your situation at home. You also completed a Diploma in IT at Victoria University.
108During this time at the age of between 20 and 21 you began experimenting with drugs. By the age of 23 you reported abusing alcohol and cocaine daily. At the time of your arrest, you said you were using on average 1-2 grams of cocaine each day.
109In his initial assessment at paragraph 6 of page 7 of his report, Mr Armstrong noted:
‘Your client’s presentation, his personality profile and background reflect considerable personality disorder (Borderline and Dependent Personality Disorder), which in the last 4-5 years has become entwined within a significant drug addiction (Stimulant Use Disorder)’
110In his second assessment in April 2021, Mr Armstrong noted that you had been bailed to the Refocus Residential Treatment on 8 August 2019 and that you had successfully completed the residential part of that program in November of that year. You then spent a further period in a transitional home after that. I have considered the letter from Dr Rafe Humphries who is a senior counsellor at the Refocus program. He indicates you spent three months at the early recovery program in Toorak, which is an inpatient program, followed by a further 11 months at the Brunswick facility Advanced Program. This letter was dated 12 October 2020. As I understand it, you spent another month after that in Refocus, making a total of 15 months in the Refocus Program. The letter indicates that you then transitioned back home but with ongoing assistance. In any case, the letter from Dr Humphries indicates that you were successful in the Refocus Rehabilitation Program, where you were required to undergo twice-weekly urine drug screenings, random swabs and breath testing, and you had been negative for all substances in that period. You were also required to attend Alcoholics Anonymous or Narcotics Anonymous meetings five times a week and that you had been fully compliant with those requirements. It is a glowing letter in relation to your participation in that program, which as I understand it covers a period of 15 months according to the letter.
111Mr Armstrong dealt with that in his second report and said that since returning home you have continued to attend Narcotics Anonymous three times a week. None of this is challenged by the prosecution.
112Based on this material Mr Armstrong concluded that you now present with a low risk of relapse and reoffending.
113Mr Saunders did not submit that any of the principles in Verdins are enlivened. He did, however, submit that your psychological issues as set out in the report of Mr Armstrong are nonetheless relevant to the assessment of your moral culpability. I accept that submission and I have taken the matters in Mr Armstrong’s report into account.
114Alone among those charged, you were granted bail. I have dealt with the time you spent at Refocus. In respect of this time, Mr Saunders submitted that the principles enunciated in the case of Akoka v The Queen [2017] VSCA 214 apply. Mr Sonnet accepted this submission. The application of those principles is not a mathematical exercise. The time you spent at Refocus, both the inpatient facility and in the transitional housing, is to be taken into account as part of the instinctive synthesis. I accept that I must take into account those restrictive conditions that prevailed where you were undergoing drug rehabilitation both at the inpatient facility and then in the transitional housing. These matters apply to reduce both the head sentence and the non-parole period.
115Further, the period that you have spent in the community working on your rehabilitation is highly relevant to my assessment of your prospects of rehabilitation. You have demonstrated over an extended period in the community that you can stay away from drug use. Your ongoing commitment to your rehabilitation is a significant matter in your favour.
116In circumstances where you have no prior convictions and where you have demonstrated rehabilitation in the community over an extended period, I take the view that you do have very favourable prospects and that your risk of reoffending is low.
117Mr Saunders in his oral submissions relied on the decision in Fatho v The Queen [2019] VSCA 311. He argued that case also deals with circumstances where rehabilitation has been demonstrated and there is a need to reflect that in the sentence. He submitted that I should impose a period of parole below the 60 per cent figure set out in the Sentencing Act for standard sentence offences. He argued that it is in the interests of justice to do so in your case. Mr Sonnet submitted that I should not go below the 60 per cent in your case. I will return to that issue, but I observe that your situation is different to the other offenders because you have demonstrated rehabilitation in the community at a drug rehabilitation facility and then in transitional housing, and since then by attending Narcotics Anonymous meetings and you have not reoffended.
118Mr Saunders also raised that you have been in employment during the period you have been on bail. In December 2020 you obtained work at Sunshine Tyre and Autos as a mechanic for a few months. You have also had work as a packer. This has fluctuated depending on demand.
119Mr Saunders relied on the letter provided by your fiancée, Jessie Nguyen, and the report of Mr Armstrong as to your father’s current situation. He continues to struggle with his mental illness and is now apparently legally blind. Ms Nguyen sets out the manifestations of his mental health problems and indicates that she will continue to support him whilst you are in custody. Mr Saunders said that although there are other siblings of yours who can help to look after your father, they are also involved in looking after your mother in St Albans. He did not argue that this situation constitutes exceptional circumstances but argued that your father’s health situation will increase the burden of your imprisonment. I accept this and I take this into account in fixing sentence in this matter.
120I have regard to the COVID-19 restrictions which I set out when sentencing Mr Nguyen. Those restrictions are likely to be in place for some time and will affect the burden of your imprisonment going into the future.
Gravity
121Charge 1 covers a nearly five-month period and involves trafficking of methylamphetamine and heroin. The total quantity of methylamphetamine is 10,757 grams and for heroin it is 1,312.8 grams. For both drugs the mixed large commercial quantity threshold is 750 grams. Combining both drugs as multiples of the large commercial quantity you trafficked, the quantifiable amount is a little over 16 times the large commercial quantity. The seriousness of your offending is, of course, underpinned by the quantity of drugs sold and by the large number of shifts you worked and the transactions you facilitated as a phone holder. The quantity involved of course does not include the period in February where the syndicate changed phones and no intercept was in place.
122You were a phone holder; you were not a principal. That is relevant to the assessment of your moral culpability, as is the issues surrounding your mental health, although not in a Verdins sense. You were a constant and industrious worker for the syndicate paid at a rate not disclosed by the evidence. Phone holders were above delivery drivers in the syndicate hierarchy. You did, therefore, have a trusted position and, of course, without your involvement the syndicate could not have operated. You were more than a foot soldier, the description used by Mr Saunders in describing your offending. The extent and the prolific nature of your involvement is clear from the details in the Crown Opening. You also assumed a management role at times in respect of the reloads of the syndicate's drug supply. Your offending is obviously extremely serious for the reasons I have set out in some detail, both specifically to you and in the general comments that I have made.
123As between your participation and that of Mr Tran for Charge 1 there is in my opinion not a great deal of difference, although I would accept the Crown assessment that you are above him in hierarchy because you were a phone holder. The quantum of drugs for him was higher than for you and he conducted more transactions but you did occupy a higher position in the business than him.
124However, in your case there are significant mitigating matters personal to you that do not present in his case. The Akoka principles require a reduction in the head sentence to be imposed and in the non-parole period and you have been able to demonstrate excellent rehabilitation in the community over a lengthy period. Additionally, your father’s situation is a significant matter increasing the burden of your imprisonment and you have no prior convictions.
Addiction
125Mr Saunders argued that your motivation in this matter was to obtain money to support your drug addiction. He argued that was relevant in respect of your moral culpability. Mr Sonnet submitted that your moral culpability is not significantly reduced by drug addiction, your family background or your mental health. He submitted you were a busy participant in the activities of the syndicate and by your conduct demonstrated an awareness of the scale of syndicate activities.
126I take into account your addiction to drugs, but your involvement was constant, and the scale of the syndicate’s activities must have been very obvious to you. This was a complex organisation, and it is obvious your role required a level of skill and intelligence which you were able to bring to the task. You were a reliable and effective contributor to the operations of the syndicate. This syndicate was operating as a genuine business and without the organisational contribution that you made, it would not have been able to do so.
127Therefore, I accept Mr Sonnet’s submission that your situation is a long way from a street level trafficker, desperately selling small amounts to feed their own addiction. Nonetheless I take into account your mental health, your difficult upbringing and your drug addiction as relevant in reducing your moral culpability to a degree but not operating in substantial reduction of your moral culpability.
Character references
128I take into account the bundle of supporting letters provided on the plea from Liberty Griffin, Hamish Wishart, Anna Powe, William Pausewang, Andrew Starkins, Jack Sutherland, James Bruce and Ed Browne, as well as the Refocus material. Ed Browne detailed your contribution to the Narcotics Anonymous fellowship and your dedication to the 12-step program. He says in the last two years you have matured and grown.
129Others who met you at the Refocus residential rehabilitation centre say you navigated them though their recovery and they would turn to you when relapsing. They characterise you as a warm, intelligent, and generous friend.
130Ms Griffin described you as a man of integrity and a valuable member of the community. All of those who wrote letters of support had positive things to say about you. I have also had regard to the letter from Ms Nguyen to which I have referred.
Totality
131The overall sentence I impose must, of course, be just and proportionate to the totality of your offending. I will impose an entirely concurrent sentence on Charge 2 in this case.
Non parole
132The non-parole period is the minimum period an offender is required to serve before being eligible to be released on parole. In your case, given my view that you have very favourable prospects of rehabilitation and the application of the Akoka principles I will allow for a lengthy period of supervision on parole. The period that I have imposed is just slightly below the 60 per cent period required and I do so as I have set out that are in favour, including your prospects of rehabilitation and the application of principle.
Sentence
133Mr Wu, on the charge of trafficking in a large commercial quantity of a drug of dependence, you are sentenced to 12 years.
134On the charge of trafficking in cocaine, six months.
135I fix a minimum non-parole period of seven years. I declare 190 days as pre-sentence detention to be deducted from the sentence.
136Pursuant to s 89DI I declare that you are sentenced as a serious drug offender and this will be entered into the records of the court.
137Pursuant to s 6AAA I indicate that but for your plea of guilty I would have sentenced you to 18 years with a minimum of 12 years and four months.
RAYMOND TRAN
138Raymond Tran, in addition to pleading guilty to trafficking in a large commercial quantity of methylamphetamine, you pleaded guilty as well to trafficking cocaine, heroin and MDMA. Each of those charges carries a maximum of 15 years' imprisonment.
139You also pleaded guilty to possession of a traffickable quantity of firearms which has a maximum of 10 years' imprisonment and the related summary offence of driving with a suspended licence, carrying a maximum penalty of two years' imprisonment.
Circumstances of the offending
140You were born in December 1994 which as I understand it would make you 24 years at the time you were first detected on the telephone intercept. You were living in Maribyrnong before your arrest.
141Your role in the syndicate was that of a delivery driver. You were first detected working on 11 December 2018. You worked 53 shifts but on other days you would undertake additional duties. You were responsible for ‘reloading’ kilograms on behalf of the syndicate when stocks ran low and you would regularly undertake stocktakes of the cash and drugs that the syndicate was in possession of.
142The amounts from the ‘reloads’ were not added to the quantum of your trafficking tally, other than for a re-load on 21 April 2019 which was located within a syndicate vehicle when the warrants were executed on 22 April 2019. The ‘reloading’ activities are relevant to showing your role within the syndicate.
143You had aspirations to work to receiving a percentage of the syndicate’s earnings. You discussed this with Huy Vu at the safe house on 12 April 2019.
Details of your offending
144The prosecution summary of your offending describes your activities on each of the shifts you worked, attending safe houses, preparing drugs for sale, counting cash and conducting drug transactions. Much of it is repetitious because that was the nature of the activity you engaged in. Based on the Prosecution Opening, working as a delivery driver, you conducted 606 transactions for the syndicate. I will not repeat all of the details in the summary other than some which illustrate the role you played as above and beyond a mere delivery driver.
145As I have said, on 25 January 2019 police seized a syndicate ‘safe car’ in Foundary Road, Sunshine and you were then involved with the others in moving syndicate property to Maribyrnong as a result of the seizure of the car.
146On 31 January you purchased a kilogram by way of a reload which you provided to Thanh Truong. As with the others, you worked when the phone intercept was not operating. You worked on the following days:
(a) 13 February 2019;
(b) 14 February 2019;
(c) 18 February 2019;
(d) 19 February 2019;
(e) 20 February 2019; and
(f) 21 February 2019;
147Store communications on 25 February 2019 show that you conducted a transaction at Highpoint with a man named Chris Androas (who you later met with in April to conduct a re-stock or a reload of one kilogram.)
148You also worked on 26 February and there was a transaction which took place at the Westfield Shopping Centre. Once the intercept was back in place there were continuing observations of your involvement.
149On 7 March, as the delivery driver you were seen removing a bag from one syndicate vehicle to another. That bag was seized later and contained multiple firearms and your connection to the firearms detailed in the prosecution summary is the basis of the charge of possession of a traffickable quantity of firearms.
150On 13 March, as the delivery driver you were seen retrieving a backpack from the boot of a syndicate vehicle. You were then involved in a discussion with a customer which included David Vu because the customer was dissatisfied with the amount of drugs that were delivered. The listening device captured the sound of a firearm being manipulated. You took a firearm with you to this transaction because of the argument relating to the drug weight discrepancy.
151On 14 March, you did a deal at Highpoint with a female customer who was acting on behalf of the Bandidos Motorcycle Gang.
152On 18 March, you were caught on devices within a syndicate vehicle discussing reloading syndicate drug supply and discussing the various types of drugs and the prices per kilogram.
153On 19 March over into 20 March, you were intercepted talking to a customer, asking the customer about guns and what sort of guns the customer had.
154On 25 March, you were involved in a reload for $77,000 in respect of the 'gold teabag’ that I referred to earlier.
155On 26 March you discussed ‘reloading’ with methylamphetamine with the phone holder that was working that day. You also conducted a stocktake on that day as well.
156On 1 April into 2 April, you were involved in another move because you were heard handling cash to buy a kilogram of methylamphetamine and then later on you went to James Van's address and you had a discussion with him. He asked you if you had any friends interested in doing the work. Mr Van told you he wanted another five years' work out of you. You said you had one more year in you and he told you if you gave him a couple more years he would give you a percentage of the profits. You said you had been sourcing methylamphetamine and doing a lot.
157The next morning, you were seen on devices wrapping a dark coloured handgun which was later located by investigating police during the execution of the search warrant on a syndicate vehicle as set out in the Prosecution Opening.
158On 3 April, you were captured handling a firearm by removing the firearm wrapped in a paper towel inside a cooler bag. You then took a photo of it on your phone (this was the same firearm you had handled earlier that morning apparently).
159On 7 April, you were counting money, $77,000 for you to purchase another kilogram of methylamphetamine. There was further connection to handling firearms captured on surveillance devices on 9 April at the safe house in Maribyrnong. You were caught pulling the trigger several times and removing the magazine and testing the action of the semi-automatic pistol.
160On 10 April you were discussing reloading for the following day. Similarly, on 11 April you went to dinner with other syndicate members at the Flower Drum and you purchased a kilogram of methylamphetamine that evening at 11.54pm on behalf of the syndicate. you continued over the rest of the period leading up to 22 April to transact in drugs on behalf of the syndicate, including conducting further reloads for the syndicate.
161On 22 April, search warrants were executed by investigating police and one of the syndicate delivery vehicles was located at your house with scales, a zip lock bag, a handwritten tick sheet, as well as $5685 in cash, mobile phones and a vacuum sealer with bags in your apartment. You were taken to the safe house by police in Maribyrnong where various firearms were located in vehicle XRI367. Police located at that time 1,118.6 grams of methylamphetamine, and the other items that I have already described.
162DNA analysis revealed your DNA on a number of exhibits linked to the Maribyrnong safe house and the XRI367 vehicle in respect of the firearms. You were not licensed to hold firearms; these were not registered.
163You were arrested and made a ‘no comment’ interview and you were remanded in custody. You were also disqualified from driving throughout this period.
Personal circumstances
164Your counsel Mr Tovey characterised your personal history as one ‘marked by family dysfunction, instability and various types of abuse’. Your personal circumstances are also outlined in the psychological report of Mr Armstrong.
165You were born in Australia to Vietnamese refugees. You lived in commission housing for the first few years of your life before moving to St Albans where your parents purchased a home. Your mother worked as an accountant and your father was a salesman and later on a lawyer. You parents’ relationship was described as toxic, and your mother was violent.
166Although educated, your family struggled financially. Your father was rarely at home. For the most part you were cared for by your maternal grandmother who you described as acting as a peacekeeper in the home. Following your grandmother’s death, you said your mother’s abuse escalated both in frequency and severity.
167Your father left the family home around the time you started secondary school. You apparently then became the focus of your mother’s outbursts which were verbal and physical. You left home at times and lived with friends and family.
168Notwithstanding these issues you performed academically well despite the instability and the conflict at home.
169By early adolescence though you had begun using alcohol, cannabis and ecstasy and your interest in school had diminished. You would often stay with friends or relatives for extended periods. Your counsel submitted that being away from home facilitated you to begin using cannabis on a regular basis and to increase your alcohol use.
170You were expelled from school after a fight and changed schools for a year before leaving and commencing a carpentry apprenticeship at age 17. Between 17 and 20 you worked as a carpenter and you enrolled in TAFE to further your qualifications.
171Mr Tovey on your behalf submitted that it was during this period you entered into a downward spiral whereby you engaged in a daily pattern of polysubstance abuse including stimulants and experimentation with Xanax and heroin.
172You had quit your job at the height of your drug abuse. You told Mr Armstrong you did this because you did not want to let your employer down.
Criminal history
173You do have previous convictions, all from the Magistrates' Court. The most significant of these is an appearance in 2018 for negligently dealing with the proceeds of crime. You received a community corrections order for two years with 400 hours community work, a significant penalty for that offence being dealt with summarily. That offence strikes me as relevant although neither counsel addressed me on the circumstances. What is clear is that you were on a community corrections order at the time of this offending which is an aggravating factor. That you were under a supervisory order at the time is a matter to be taken into account in assessing your prospects of rehabilitation and is relevant to the weight to be given to specific deterrence.
Psychological factors
174Mr Armstrong described you as having a substance abuse problem and offered the opinion that it was a form of self-medication. He said you presented with a borderline personality disorder arising from your upbringing which is entwined with a polysubstance abuse problem. He says your substance abuse problems are now in a sustained period of remission. This means you have not used drugs in custody. He assessed you as being in the low average range of intelligence.
Bugmy principles & addiction
175Mr Tovey submitted that the Bugmy principles are applicable; that your deprived upbringing serves to reduce your moral culpability. He further submitted that your drug addiction arising from your upbringing also reduces your moral culpability in a significant way. He relied on the decision of Lacey v The Queen [2007] VSCA 196, in support of this argument. He submitted that general deterrence and specific deterrence should also be moderated because of these factors.
176Mr Sonnet, the prosecutor, submitted that your drug addiction and upbringing are relevant matters for me to consider and do serve to reduce moral culpability to a degree but not significantly. Mr Sonnet pointed to the level of your involvement in this syndicate over the lengthy period of the offending and contrasted this with the situation of a street level trafficker trafficking to feed a drug habit. Mr Sonnet argued that your use of drugs did not impede your ability to perform your duties for the syndicate. He further argued that the addiction must cause the offending and not merely explain it. He referred the Court of Appeal decision of Audino v The Queen [2007] VSCA 318.
177Mr Sonnet submitted that you were able to hold down a skilled job for a number of years which is evidence of a break from your disadvantaged background and these offences. He submitted that the effects of your upbringing should not therefore be seen as enduring.
178I accept the prosecution submissions on these issues. Whilst I accept you had a drug problem the exact nature of it and how it compelled you to commit these offences over a number of months involving over 600 transactions is not clear to me. I accept that earlier for a number of years you had held a relatively skilled occupation. Your conduct in this case was reliable and consistent. You expressed an aspiration to make more money from your involvement. You were on a community corrections order at the time you decided to work for the syndicate.
179In all the circumstances I am not satisfied that the deficits caused by your upbringing, although relevant, trigger the application of the Bugmy principles to significantly reduce your moral culpability. Nor am I satisfied that your addiction to drugs significantly reduces your moral culpability or significantly moderates general deterrence and specific deterrence.
180That said I take these matters into account as matters personal to you which reduce to a degree your moral culpability but not in the very substantial way submitted by your counsel.
Gravity
181As with the other offenders in this case the gravity of your offending in Charge 1 is underpinned by the quantity, which in your case was just under 18 times the large commercial quantity. The duration of your involvement and the high number of shifts you worked and transactions you conducted are also important in the assessment of your offending.
182Your role has been characterised as that of a delivery driver, not a principal. However, it is apparent from the summary you were also regularly involved in the 1 kilogram reloads and you were trusted with large amounts of money and drugs in respect of that involvement. You undertook stocktakes of drugs and cash regularly.
183Your involvement was very consistent throughout the period of the investigation and you conducted a very large number of transactions. You were a committed worker and well understood the gravity of what you were doing. Your participation involved repeated ongoing criminal activities over four months. However, I take into account that you were not a principal and that you were a paid worker in this syndicate. The amount that you received was modest compared to the risk that you took in committing these offences.
184But you did play an essential role in the continuation and success of the syndicate. You were an essential cog in its operations, and you were responsible for introducing a very large amount of methylamphetamine into the community.
185Charge 2 of trafficking in cocaine was part of the syndicate operations. It does not add in any significant way in my view to the criminality of Charge 1. It was described in the prosecution submissions as a low range offence.
186Charge 3 of trafficking heroin involves a reasonably significant amount but was part of your work for the syndicate. The prosecutor characterised this offence as being at the lower end of the range. Similarly Charge 4 of trafficking MDMA has been characterised by the prosecution as a low-level offence.
187The possession of a traffickable quantity of unregistered firearms relates to seven firearms referred to in the indictment. This is a serious offence. The summary indicates your connection to these firearms. The weapons were part of the syndicate's operations. Firearms are a common feature of serious drug trafficking and possession of firearms connected with other criminality is a more serious form of this offence, meriting a significant sentence of imprisonment. General deterrence and denunciation must be given substantial weight in sentencing for such offences. That said, your possession of the firearms was part of what you did for the syndicate. It was incidental to your role. The firearms were a part of the syndicate operation and the possession of the firearms adds less to your criminality in this case than it might in other circumstances. It is to be noted that you never produced a firearm in connection with a transaction.
Character references
188I have taken into account the letters of support tendered on your behalf from Ethan Huynh, Julie Nguyen, Vincent Dang and Wesley Huynh. Wesley Huynh says that you have been a role model and a mentor for him as he grew up and you are described in the reference material as a loyal friend and as a determined individual, notwithstanding your difficult upbringing. The referees attest to your engagement in programs at prison. You are described as honest and caring in the reference material. The referees talk of your remorse in respect of these offences and I take that into account as an indication of remorse along with your plea of guilty.
Youth
189Mr Tovey also submitted that the principles relating to youthful offenders apply, meaning that rehabilitation must be given significant weight in the sentencing synthesis. You were aged 24 at the time of this offending and you are now aged 27. You have prior convictions, and you were on a community corrections order at the time of the offending. The gravity of this offending, as well as the sentencing authorities, dictate that general deterrence is the most important sentencing purpose. The gravity of this offending in accordance with the authority of Azzopardi v The Queen (2011) 35 VR 43 means that the principles relating to youthful offenders must in this case take a back seat to general deterrence. Your age is a relevant matter, you are still a young man, but in all the circumstances the principles relating to youthful offenders do not significantly reduce the sentence in this case.
Prospects of rehabilitation
190It was submitted that you have positive prospects of rehabilitation, based on the mitigating features in this case, the matters set out in the psychological report, the references and your plea of guilty. Additionally, your criminal history is relatively limited and you do not have any prior convictions for drug trafficking. I look at your prospects of rehabilitation in the context of what will be a significant sentence in this case. The prosecution agree that your prospects of rehabilitation are sound if you can stay away from drugs in a drug using peer group. In the end, I would assess your prospects in that way as reasonably sound.
Totality
191The totality principle is highly relevant in your case. The overall sentence must remain just and proportionate to your offending. In applying the totality principle, I have ordered substantial periods of concurrency between the charges.
Non-parole period
192The non-parole period is the minimum period to be served. In the interests of justice it must not be such so as to erode general deterrence. However, in this case I am of the view that a significant period of supervision by way of parole should be allowed for.
Sentence
193Raymond Tran, you will be sentenced as follows:
(a) In respect of trafficking in a large commercial quantity of methylamphetamine, you are sentenced to 12 years and three months' imprisonment.
(b) On the charge of trafficking in cocaine, six months' imprisonment.
(c) Trafficking in heroin, 18 months' imprisonment.
(d) Trafficking in MDMA, six months' imprisonment.
(e) Possession of a traffickable quantity of firearms, you are convicted and sentenced to two years and 8 months' imprisonment.
(f) In relation to driving whilst suspended, the summary offence, one month's imprisonment.
194I order that seven months of the sentence on Charge 5, traffickable quantity of firearms, is to be made cumulative with the sentence for Charge 1, which makes an overall total effective sentence of 12 years and 10 months. I fix a minimum non-parole period of eight years four months.
195I declare you to be a serious drug offender pursuant to s89DI. With respect to pre- sentence detention, can you just give the numbers again please?
196MS PATTERSON: Yes, Your Honour. It was 963 days, not including today.
197HIS HONOUR: I declare 963 days to be deducted from the sentence that I have imposed pursuant to s 18 of the Sentencing Act. I will do the s 6AAA in a moment, I will just stand down for a moment while I do that if you do not mind.
198MS PATTERSON: Yes, Your Honour.
199HIS HONOUR: I will make all the disposal orders, just give me a minute.
(Short adjournment.)
200HIS HONOUR: I will just go back one moment. Can I just indicate with respect to totality, in deciding the very substantial concurrency in this case, I have given significant weight to the totality principle for what was a consistent course of conduct on behalf of the syndicate and the need to avoid a crushing sentence, so the s 6AAA declaration, but for your plea of guilty I would have imposed a sentence of 19 years and four months with a minimum of 13 years and eight months, and I will make the disposal orders sought.
201Any other clarification required?
202MS PATTERSON: No, Your Honour.
203HIS HONOUR: Mr Kelly?
204MR KELLY: No, thank you, Your Honour.
205HIS HONOUR: Thank you both, I will now adjourn.
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