Director of Public Prosecutions v Pan
[2022] VCC 1196
•25 July 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-00430
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| PAGUIR PAN |
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JUDGE: | Karapanagiotidis |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2022 |
DATE OF SENTENCE: | 25 July 2022 |
CASE MAY BE CITED AS: | DPP v Pan |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1196 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCING
Catchwords: Trafficking in a drug of dependence – handling stolen goods – early plea of guilty – subsequent offending – youth – guarded prospects of rehabilitation – totality – operation of s 14 of the Sentencing Act 1991 (Vic).
Legislation Cited: ss 6AAA, 11(2), 14, 18 Sentencing Act 1991 (Vic).
Cases Cited:Director of Public Prosecutions v Bowen [2021] VSCA 355; Mohamed v The Queen [2022] VSCA 136; R v Bortoli [2006] VSCA 62; R v Cockerell [2001] VSCA 239; R v Koumis & Ors [2008] VSCA 84; R v Lacey [2007] VSCA 196; R v Poynton [No 4] [2018] VSWSC 1693; R v Rich (No 2) [2002] VSCA 17; R v Tiburcy [2006] VSCA 244; R v Verdins & Ors [2007] VSCA 102; Spireri v The Queen [2018] VSCA 254; Worboyes v The Queen [2021] VSCA 169.
Sentence:12 months and 14 days’ imprisonment with a non-parole period of six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Plummer | Office of Public Prosecutions |
For the Accused | Mr A. Chernok (plea) | Valos Black & Associates |
| Mr J. Valos (sentence) |
HER HONOUR:
1Paguir Pan you have pleaded guilty to three charges of trafficking in a drug of dependence and three charges of handling stolen goods. The maximum sentence for each offence on the indictment is 15 years’ imprisonment.
Circumstances of the offending
2The full circumstances of your offending are set out in the summary of prosecution opening dated 12 July 2022, marked as Exhibit A.
3In April 2018 a police investigation commenced into an armed robbery for which you were originally charged but the charge was later discontinued.
4In June and July 2018 telephone intercept warrants were granted for your mobile phone, along with co-accused Munzar Abaker and Riaz Lodin. Intercepted calls suggested you were discussing the purchase and sale of drugs. You offered to sell and later delivered cocaine, cannabis and methylamphetamine, as reflected in the charges.
5Charge 1 relates to trafficking in cocaine between 13 June and 2 August 2018. On 19 June 2018 there is a discussion about meeting and cutting up cocaine in which you tell Mr Abaker that you have a customer for 3.5 grams. There are other conversations, as outlined in the prosecution opening, where you discuss the sale of cocaine in 3.5 grams for $1,000. You also give someone a gram of cocaine as payment for a debt and deliver 2 grams to another customer.
6Charge 2 is trafficking in cannabis between 13 June and 2 August 2018. The opening outlines the various calls that refer to your drug transactions within this period. You discuss sourcing, selling and delivering cannabis in pound amounts.
7In July 2018 you discuss with Abaker the sourcing, collection and sale of cannabis and that you’ve ordered a pound for $2,200 and are making a couple of hundred bucks on top for selling the pound. At one stage you indicate that you can get a pound for $2,700 and you offer a pound for $2,950.
8Charge 3 is trafficking methylamphetamine on a single date on 26 July 2018. On this day, in three calls, as outlined at paragraphs [24] to [26] of the prosecution opening, you were trying to sell a ‘ball of cold’, that is 3.5 grams of methylamphetamine because you needed some cash.
9The handling stolen goods charges occur on the 26, 27 and 28 July 2018. On those respective days, you and co-accused Abaker were observed in an Audi, a Ducati Panigale and a Jeep Cherokee, vehicles that had been purchased through stolen cheques or false means, as outlined in paragraphs [27] to [29] of the opening.
10On 2 August 2018 you were arrested and police searched your home, seizing various items, including mobile phones.
Gravity of the offending
11The seriousness of your offending is reflected in the maximum sentences set by Parliament. Focusing on the trafficking charges, in relation to Charge 1, you were involved in multiple drug activities. Although the precise amount you trafficked in is not quantified, it is clear that the quantities of cocaine involved were relatively substantial. Charge 2 was for the same period of time and also involved substantial sales of cannabis, with the conversations referring to pounds. Charge 3 is confined to a single date.
12I accept that you were a drug user at the time and that this is the context in which your offending occurred. I accept that you were involved in the sourcing and delivering of the drugs, and did not have a role higher in the supply chain or in cultivating the cannabis. Your Counsel, Mr Chernok, submitted that there is no suggestion that you were anything more than a street level dealer. On behalf of the prosecution, Mr Plummer, submits, and I accept, that your conduct rises a little above low level street trafficking. As already noted, the amounts of cocaine and cannabis were not insignificant; the sale of cannabis was usually in pounds and the sale of cocaine in 3.5 grams. Your offending involved some degree of organisation indicated by the use of codes and your regular and ongoing activities and you were operating a business, in a manner quite a way above someone standing on a street corner and selling points or grams of drugs.
13The charges before the Court are trafficking simpliciter charges. In all the circumstances, I regard your conduct to generally fall within the lower to mid-range of seriousness for such offending.
14I accept that you developed an addiction to drugs at a very young age and that there’s a nexus between your drug use and this offending. You told psychologist Ms Marlese Bovenkerk that you began trafficking in illicit substances as a means to support your drug habit at the time and that you were using ‘a whole heap of drugs’ including methamphetamines, cannabis, cocaine and Xanax’. The offending occurred not long after a motor vehicle accident which caused an increase in your abuse of substances. I accept that there is no evidence of financial enrichment or gain, beyond supporting your addiction and that your offending was not motived by greed. The prosecution accept that much of your offending was to source drugs to satisfy your own use but submit your culpability is high given, in particular, the substantial quantities involved.
15I accept, as was submitted on your behalf by Mr Chernok, that while your drug use or addiction doesn’t excuse your offending it is relevant to an assessment of your culpability for the offending and to the question of rehabilitation, along with your very young age at the time and immaturity.[1] Ms Bovenkerk states ‘substance use can heighten the impulsivity and immaturity present in developing young adults, leading to reduced self-inhibition and cognitive and behavioural self-control, thereby contributing to your antisocial behaviour.’ I accept this is the overall context for both your drug and dishonesty related offending.
[1] R v Lacey [2007] VSCA 196; R v Koumis & Ors [2008] VSCA 84.
Plea of guilty and remorse
16Your case resolved at a contested committal hearing. It is submitted on your behalf that this process was a necessary step in facilitating the resolution of your matter. In all the circumstances, I accept this submission and will accordingly treat your plea as an early one. I accept that your plea represents an acceptance of responsibility on your part and is indicative of some remorse.
17Your plea of guilty has significant utilitarian value warranting a substantial discount, as it has saved the State considerable expense in not proceeding with the matter as a trial. Also, I recognise that your plea is made in circumstances where there is still a large backlog of cases in the court and as such is worthy of ‘greater weight than usual’.[2]
[2]Worboyes v The Queen [2021] VSCA 169.
Subsequent matters
18On 11 March 2019 you were charged and remanded for a matter which occurred on 10 March 2019, that is subsequent to the current offending. On 29 October 2019 you were sentenced by Her Honour Justice Taylor to a total effective sentence of 24 years’ imprisonment with a non-parole period of 16 years’ imprisonment. The prosecution unsuccessfully appealed against that sentence. I have read both decisions.
Personal circumstances
19Your background was comprehensively outlined by your Counsel, Mr Chernok, and in the psychological reports of Ms Bovenkerk of 20 June 2022 and Dr Matthew Path of 9 September 2021.
20In brief, you are now 22 years of age. Your parents are from South Sudan and they sought refuge and stability in Australia, where you were born. Your parents are hardworking, contributing members of the community. You have four other siblings and you are the second eldest child. You report having a positive relationship with your parents and describe your childhood as being a supported one.
21You were an average student and in Year 10 you transferred to a trade school in Hallam. You formally completed up until Year 11. You experienced some difficulties at school including bullying and teasing with racist overtones.
22Given the refugee experiences of your parents your Counsel queried the possibility of intergenerational trauma. However, given your present reluctance to speak about such issues, it is simply unknown if this is something that has impacted you. You and your family returned to South Sudan when you were 12 years of age and within that time you were exposed to the civil war. While you indicate this was a ‘very hard time’ you struggled to expand upon this when speaking to Ms Bovenkerk and so it’s also unknown what potential impact this has had. Additionally, you report being involved in a car accident, that I’ve already referred to, where the driver, your friend, sustained injuries requiring hospitalisation. While you identify this as something you still think about you again struggle to articulate how this has affected you. Within her report Ms Bovenkerk notes that at the time of her first assessment you presented as preoccupied, ruminative and experiencing a degree of psychological distress in relation to the Crown appeal, which was then pending.
23You have a limited work history, with some previous short-term and piecemeal work unloading containers and as a furniture removalist. You recognise that your substance abuse has seriously affected your life and ‘got in the way’ of such things as employment.
24In respect of your drug use, you began smoking cannabis when you were around 14 or 15 years of age, in the context of your peer group. A couple of years later you started to experiment with other drugs. At 18 your substance use significantly increased and you began heavily using illicit drugs, including methamphetamine, cannabis, cocaine and Xanax; ‘whatever [you] could get’. Later in 2018 you started using heroin.
25As I’ve already noted, you have been in custody since March 2019. You told Ms Bovenkerk that in the face of your substantial prison sentence and the subsequent prosecution appeal you have struggled to cope, you have ‘good and bad days’ and weren’t really sure how to describe it.
Prior history
26You have a relevant criminal history that dates back to 2016 when you first appeared in the Children’s Court for matters including theft and criminal damage and you received a good behaviour bond. In 2017 you were charged with armed robbery and other offences and, on appeal, you were sentenced to a youth attendance order.
Factors in mitigation
27I take into account, Mr Pan, the additional factors in mitigation that were advanced on your behalf by Mr Chernok.
Youth
28You were born in September 1999. You are currently 22 years of age and were only 18 years at the time of the offending.
29There are well established principles that apply in the sentencing of youthful offenders. When the matter properly arises, as it does in your case, it should be a primary consideration for a sentencing court.
30Courts recognise that young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct. Relevantly, Ms Bovenkerk states:
It is important to note that a significant difference exists in the maturity of young adults in their late adolescence and early adulthood compared to adult offenders. This is due to their neurological development, whereby the last parts of the brain to reach maturity are those responsible for decision making, impulse control, and emotional processing. The functions have implications for understanding of consequences, exerting self-control, and regulating emotions.
31I note that when Dr Barth assessed you in August and September 2021 you presented as a very immature and egocentric young man. He considered that you had yet to ‘make the transition to adult maturity and [your] sense of self identity [was] very underdeveloped.’
32There is also a recognition that young offenders present with an increased potential for rehabilitation and that incarceration is likely to impair rather than enhance such prospects. In your case Mr Pan you are already serving what is plainly a substantial term of imprisonment. Given your youth at the time of the offending, and your relative young age now, your rehabilitation remains an important sentencing consideration and there is still a very important public interest in promoting it.
Delay
33I also take into account that there has been considerable delay in the finalisation of this matter. The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness.[3]. In your case, in particular I take into account that this matter has now been hanging over your head for some time. You have been kept in a state of suspense as to what will happen to you and/or the impact this may have on your current sentence, which until recently was itself a source of uncertainty for you.
[3] Chernov JA in R v Cockerell [2001] VSCA 239, affirmed in R v Tiburcy [2006] VSCA 244.
Time in custody
34You have no pre-sentence detention pursuant to s 18 of the Sentencing Act 1991 (Vic) in relation to this matter though, as I’ve already noted, you’ve been in custody since March 2019. You have served your time in custody during the currency of the pandemic. I accept that there have been greater restrictions within the prison system which has made your time on remand more onerous. Visits with your family have been restricted, along with the availability of programs and you’ve also experienced occasional lockdowns.
35I take into account the burden imprisonment has had and will continue to have on you. You are serving a substantial term of imprisonment. Also, you have spent a significant period in management units and since August 2020 you have been held under a highly restrictive management regime.
Mental health
36You have no previous contact or involvement with mental health services or any documented or self-reported history of mental illness.
37Your Counsel, quite properly, did not submit that any Verdins[4] principles were enlivened in your case, but maintained that your mental health and the opinions expressed in the psychological reports are relevant matters. Ms Bovenkerk undertook a range of testing, with the following results: you presented with mild level of depressive symptom and anxiety and a mild level of symptomology related to avoidance and re-experiencing/intrusion of a stressful life event. These symptoms however did not reach the level to warrant a formal diagnosis. This was consistent with Dr Barth’s earlier assessment of you. He diagnosed you with an antisocial personality disorder. You displayed significant delinquent behaviours during adolescence and you continued to exhibit entrenched antisocial traits. Your maladaptive personality traits were considered to be intensely problematic, thus warranting the diagnosis. Both practitioners considered that you warranted a diagnosis of various substance use disorders, in remission. I take these matters into account, particularly as they relate to your rehabilitative needs.
[4]R v Verdins & Ors [2007] VSCA 102.
Prospects of rehabilitation
38In all the circumstances and given your current position, it is difficult to assess your rehabilitative prospects.
39Ms Bovenkerk assesses your risk of reoffending to be high, given your history and evidence of antisocial attitudes and criminal orientation. This is also generally consistent with Dr Barth’s earlier assessment of you.
40As Mr Plumber points out, after this offending your rehabilitative efforts obviously did not first commence in the community. In custody however you have taken some positive steps towards your rehabilitation. I received a number of urine samples for the period between July 2019 to May 2021 which all report negative results (Exhibit 7). I was also told, and accept, that you have remained drug free in custody and that you currently present with a willingness to engage in drug treatment, though this has been hampered by custodial conditions and restrictions. I was provided with a prisoner education summary report outlining a number of different programs you’ve engaged in, when given the opportunity (Exhibit 6).
41I also accept based on the material before the Court and the testimonials tendered on your behalf that you have some community and family connections and ongoing support (Exhibit 8).
42As Ms Bovenkerk also points out, protective factors in your case include the absence of serious mental illness in your history and that you now recognise the need for ongoing treatment to address your substance abuse issues. Importantly, she considers that your risks are amenable to treatment and with appropriate psychological intervention and engagement, your recidivism risk will be further mitigated. She states ‘encouragingly, Mr Pan demonstrated insight into his need for treatment for his substance use and there was no evidence to suggest that he suffers from a major mental illness.’
43She makes a number of recommendations and considers that you will benefit from intensive alcohol and drug counselling and intervention aimed at addressing your criminogenic risk factors and improving your insight into your offending conduct. She considers it unlikely that you will receive the treatment you require in custody given the impact of COVID-19 and also expresses a concern that you will continue to be influenced by more experienced criminals in custody. Dr Barth also considered it critical you engage appropriately in offence-specific treatment for violent offenders.
44Overall I consider your prospects as guarded but there are some factors that weigh in your favour. You’re also still a young man and I consider that your rehabilitative prospects will be best maximised through structured and supervised treatment and programs.
Totality
45The principle of totality is very important consideration in your case.
46As the Court of Appeal said recently in Director of Public Prosecutions v Bowen[5]:
The principle of totality is, essentially, a principle of proportionality … In the ordinary case where sentence is to be imposed for multiple offences, the principle of totality requires the court to ask itself whether the proposed total effective sentence is proportionate to the aggregate criminality involved in all of the offending.
[5]Director of Public Prosecutions v Bowen [2021] VSCA 355.
47Mr Chernok on your behalf also referred to a distinct consideration, that is, that your sentence should not be a crushing one, so as to induce a sense of helplessness in you and destroy any reasonable expectation of a future.
48As the Court of Appeal observed recently in Mohamed v R[6], although dealing with very different circumstances then in your case, applying the principle of totality is, almost always, a task of real difficulty. There’s no easy method of deciding that a certain term of imprisonment is proportionate to the offenders criminal conduct, and this is further complicated when a judge is required to form a view as to the ‘aggregate criminality’ of quite different offences (as they are here) committed on different occasions, and then determine what total sentence would be proportionate to that aggregate criminality.
[6]Mohamed v The Queen [2022] VSCA 136.
49As the Court also stated, ‘[the] totality enquiry does not, of course, end with an assessment of the aggregate criminality involved in the offending. The total effective sentence will only satisfy the requirement of proportionality if it is a just and appropriate measure of the total criminality involved’.
50I confirm that I have read and considered the sentence of Justice Taylor of 29 October 2021 and the circumstances of your offending. Taking into account all relevant matters, including the objective seriousness of the offending before this Court, as I have assessed it, and your very young age at the time of it, I consider that overall the applicable sentencing objectives can be sufficiently served by the imposition of a modest increase in the sentence you are currently serving.
51I also have firmly in mind the community interest, as I have already referred to, in maximising your prospects of rehabilitation. I consider that increasing your sentence in any substantial way may have a crushing effect upon your motivation to rehabilitate.
52In Mohamed the Court of Appeal concluded that there is no separate principle requiring that a ‘crushing’ sentence be avoided. Rather, it is a particular expression of the fundamental principle of rehabilitation which requires that the sentence to be imposed should, so far as possible consistently with the other sentencing purposes to be served, promote the rehabilitation of the offender.
53The point is of particular significance in the sentencing of a young offender. The Court referred to the comments of Schmidt J in R v Poynton[7], where he said:
It must also be taken into account that particularly for young people ... extremely long total sentences may also be ‘crushing’, in the sense of inducing a feeling of hopelessness or destroying any expectation of a useful life after release. That can both increase the severity of a sentence and destroy such prospects as there may be of an offender’s rehabilitation and reform.
[7]R v Poynton [No 4] [2018] VSWSC 1693.
54I will give effect to the principle of totality in your case, and to the promotion of your rehabilitation, by ordering a substantial level of concurrency and by setting a new non-parole period, as I am required to do pursuant to s 14 of the Sentencing Act 1991 (Vic), that does not disturb your current eligibility date for parole.
55When you are eventually eligible for parole, I consider that structured supervision and treatment over a lengthy period of time in the community will best reduce your risk of re-offending and maximise your rehabilitative prospects.
56I also consider that imposing a very modest degree of cumulation, in the circumstances of your case, is sufficient to mark and recognise that the charges before this Court represent separate and distinct offending to the matters before Justice Taylor. Both parties were in agreement that your offending called for some cumulation. Your Counsel submitted that only a small degree of cumulation was required and ultimately urged the Court to sentence you in a manner that did not disturb your current non-parole period.
Parity
57As I’ve already referred to, there were co-accused involved in your offending who have now been sentenced. The sentencing principle of parity is an aspect of equal justice. It requires that like should be treated alike, but that due allowance must be made for relevant differences between co-offenders. As suggested by the parties, I consider that there are important differences between your cases. While I’ve considered their sentences I note that they were also sentenced for the principal charge of armed robbery, which you do not face. Also, clearly your current circumstances are unique.
Sentencing principles
58The basic purposes for sentencing are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In relation to trafficking drugs, general deterrence is of particular importance. There was no dispute between the parties that a term of imprisonment is warranted for your offending.
59I intend to impose individually appropriate sentences on the current charges, taking into account the relevant sentencing principles and also the mitigatory factors called upon in your case. As indicated, I will reduce the orders for cumulation between the offending to reflect the totality of your offending. I will ensure that the overall total effective new sentence gives effect to the totality principle, taking into account the overall criminality of your offending and your circumstances. I will then set a new single non-parole period as I’m required to do. You are convicted and sentenced as follows -
60Charge 1, traffick cocaine, 7 months’ imprisonment.
61Charge 2, traffick cannabis, 9 months’ imprisonment.
62Charge 3, traffick methamphetamine 3 months’ imprisonment.
63Charge 2 is the base sentence and I order two months on Charge 1, one month on Charge 3, and 14 days on Charge 4 to be served cumulatively which totals 12 months and 14 days’ imprisonment.
64Pursuant to s 11(2) of the Sentencing Act I set a non-parole period of six months’ imprisonment on this sentence.
65I order that one month of the sentence I have imposed be served cumulatively upon the sentence that you are currently serving, which results in a total effective sentence of 24 years and one month.
66Pursuant to s 14 I am required to set a new overall non-parole period in light of the global total effective sentence as between Justice Taylor’s sentence and my order for cumulation. Your new overall non parole period is 16 years, with the commencement date being the date of commencement of Her Honours sentence, on 29 October 2021. In other words, my intention is to add one month to your total effective sentence and to otherwise fix the same non-parole period of 16 years’ imprisonment set by Her Honour.
67On my understanding, s 14 can either be achieved by backdating the new single non-parole I declare to the date of the original sentence – which is what I have done – or I can direct that it commences from today[8]. I am cognisant of the views expressed by Brooking JA in R v Rich[9] that ‘there should be uniformity of practice’ and that all new non parole periods should be made to commence on the date on which they are fixed. I note however that this approach seems to have caused some problems in the manner in which the sentence calculation authorities in Corrections interpret the order.
[8]R v Bortoli [2006] VSCA 62; Spireri v The Queen [2018] VSCA 254.
[9]R v Rich (No 2) [2002] VSCA 17.
68My intention is to not interrupt or interfere with the earliest parole eligibility date set by Her Honour. If my orders do not have this effect, then the matter should return to me for any necessary corrections or clarifications. As I understand it, there is no need for me to make any s 18 declaration as to your pre-sentence detention as that previous declaration of Justice Taylor remains effective.
69Pursuant to s 6AAA (and I note that this declaration is somewhat artificial given the operation of s 14 in your case) but I indicate that but for your plea of guilty I would have imposed a total effective sentence of two years and four months’ imprisonment with a non-parole period of one year and five months’ imprisonment.
70I make the disposal order that was unopposed, in the terms sought.
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