Director of Public Prosecutions v Pham
[2017] VCC 446
•12 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-02213
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RITCHIE PHAM |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2017 | |
DATE OF SENTENCE: | 12 April 2017 | |
CASE MAY BE CITED AS: | DPP v Pham | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 446 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentencing – trafficking drug of dependence – possess drug of dependence – possess unregistered general category hand guns and deal with property suspected of being proceeds of crimes and possess prohibited weapons – early plea of guilty – relative youth of prisoner – delay – delay combined with significant rehabilitation – excellent prospects for rehabilitation – Community Correction Order imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Harper | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr C. Mandy | David Barrese Lawyers |
HER HONOUR:
1 Ritchie Pham, you have pleaded guilty before me to one charge of trafficking in a drug of dependence (heroin), one charge of possessing a drug of dependence (ephedrine), one charge of possessing unregistered general category hand guns, and one charge of trafficking in a drug of dependence (methylamphetamine).
2 In addition, pursuant to s.145 of the Criminal Procedure Act 2009, two summary charges were transferred and you entered pleas of guilty in respect to Summary Charge 6, deal with property suspected of being proceeds of crime, that relates to cash, $28,645 and Summary Charge 10, possessing prohibited weapons without exemption or approval.
3 The gravity of the offending is serious and that is reflected in the maximum penalties that are prescribed by law and they are:
· Trafficking in a drug of dependence 15 years’ imprisonment;
· Possess drug of dependence 5 years’ imprisonment;
· Possess unregistered general category hand guns 7 years’ imprisonment;
· Deal with property suspected of being proceeds of crime and possess prohibited weapons, in respect to both of those charges, it is 2 years imprisonment.
4 You also admitted your prior criminal history that is of some limited relevance in sentencing you today. There are four court attendances spanning the period from 12 August 2010 to 11 August 2015.
5 You are now aged 26. When you were 20 you were dealt with in respect to possession of drugs, namely MDMA (ecstasy), cannabis and methylamphetamines and on 12 August 2012, without conviction, that matter was adjourned for a period of two years and you successfully adhered to the terms of that undertaking.
6 There were also some driving related convictions recorded in 2010 and 2014 for which you received fines and on 11 August 2015 you were, without conviction, placed on an adjourned undertaking for one year in respect to possess, use and carry a prohibited weapon without exemption. I note that the current offences breach that undertaking.
7 I shall now proceed to sentence you on the basis of the prosecution opening that was read into the transcript at the plea hearing and was marked Exhibit 1.
8 Briefly, the facts of the matter are that following an investigation by the Australian Crime Commission (ACC), the Joint Organised Crime Task Force (JOCTF) and the Australian Federal Police (AFP) codenamed “Operation ATONAL 2”, your activities in supplying drugs were detected.
9 You have been indicted in respect to trafficking heroin and methylamphetamine on one day only, namely, 23 September 2015.
10 As a consequence of information discovered through the joint operation and lawful telephone intercepts, you were identified by the authorities as being a person who supplied drugs.
11 You resided between two properties, one at 26/30 Leonard Crescent, Ascot Vale, and one at 3/290 Pascoe Vale Road, Essendon.
12 On 23 September 2015, police executed search warrants at both the Leonard Crescent and the Pascoe Vale Road properties. At Leonard Crescent, police located numerous items, including:
· One sealed bag containing 118.6 grams of a powdered substance containing 15 grams of pure heroin. (Charge 1, trafficking in a drug of dependence)
· A bag of Ephedrine which was 10.2 grams. (Charge 2, possess drug of dependence)
· Vacuum heat sealing machine.
· $8,695 cash. (Part of uplifted Summary Charge 6, deal property suspected of being proceeds of crime)
13 Police also searched your vehicle that was located in the basement car park and they located $19,950 cash. (Uplifted Summary Charge 6, deal property suspected of being proceeds of crime)
14 Police executed the search warrant at your Pascoe Vale Road property and they located numerous items, including:
· Five handguns and numerous magazines, one with the name “R. Diddy” engraved on the side, confirmed to be airguns, swords, eight throwing knives, two butterfly knives, a hunting knife, a Rambo knife, a set of throwing stars, knuckledusters, four ASP batons, four torch batons, three batons with "R. Diddy" engraved on them, a slingshot, 12 Taser cartridges and 16 Tasers. (The handguns and various magazines are the subject of Charge 3 on the indictment and the other items located are part of uplifted Summary Charge 10, possess prohibited weapons).
· They also located a clip seal bag containing 25.5 grams of a substance containing 80 per cent methylamphetamine. (Charge 4, on the indictment).
15 You were arrested and a formal interview conducted and you made “no comment”. On 26 October 2015, at a further interview, you also made no comment.
16 You were held in custody for 19 days between 23 and 25 September 2015 and 26 October to 10 November 2015. On 10 November 2015, you were released on bail subject to stringent conditions.
17 Procedurally your matter proceeded by way of a filing hearing on 26 October 2015 and was adjourned for a committal mention. Thereafter, a number of adjournments were held so that the drugs could be analysed and also so that the parties could explore the possibility of resolution. The matter was listed for a committal mention on 20 May 2016 and the matter was not able to proceed. It was then relisted for 12 August 2016 and 12 December 2016. On the last occasion, the matter resolved when you agreed to enter the plea to the charges as framed.
18 Notwithstanding that you are to be sentenced in respect to offending on one day only the facts of this matter are such that I am satisfied that you were a mid-range dealer who profited from trafficking heroin and methylamphetamine. The amount of the drugs located and the moneys found by police support the conclusion that you were operating a successful business in the supply of drugs. I am satisfied that you were financing your own drug habit and also supporting your lifestyle. It is a serious example of trafficking simpliciter.
19 I accept that the various weapons that were located were part of a personal collection and there was no evidence to suggest that you intended to use them for illegal purposes.
20 I consider your moral culpability to be high. Ordinarily such trafficking charges would warrant the imposition of an immediate term of imprisonment.
21 Courts acknowledge that trafficking in drugs, particularly methylamphetamines, is not only prevalent but that its prevalence has increased recently and there is a need to emphasise general deterrence in sentences for such offending.[1]
[1]Haddara v The Queen [2016] VSCA 168.
22 There is however a context to your offending that needs to be set out. At the time of the offending you were in the grip of a heavy addiction to methyl amphetamine that had dominated your life over a decade. Drugs had become your way of life.
23 I have had regard to your background and history and have been very impressed by the very real efforts that you have taken towards your rehabilitation since being granted bail on 10 November 2015.
24 Having regard to the particular combination of factors that are relevant in your case, I consider that a Community Correction Order of a significant duration, that has a component of unpaid community work to punish you and further a component for supervision, ongoing drug treatment and testing, judicial monitoring and other programs does satisfy all the relevant sentencing purposes in this case. It is in both your interests and the community’s long-term interests that you continue to remain drug free and law abiding and be supported in the community whilst being rehabilitated.
25 Currently you live with your grandparents in Camberwell, together with an aunt, your mother and younger brother and sister. You are in a long-term relationship with Christine, to whom you are engaged. She lives with her parents in St Albans. You have a child, Maddox, with Christine and he is now aged 24 months. You are presently unemployed. Your efforts at securing employment have been thwarted somewhat in that you had enrolled at the SAGE Institute and started a personal trainer course, but due to the unexpected closure of that institution, you have not been able to complete that course.
26 You were born in Melbourne and grew up in the Maidstone area. Your mother had you at a very tender age. She was not supported by your biological father. You have never had any relationship with him following your birth.
27 Your mother eventually re-partnered when you were about seven or eight and you formed a very close relationship with your step-father. Your mother went on to have two children, your brother and sister, with your step-father.
28 Sadly, they separated when you were around 15. There were issues about your mother’s drug use. She was a known heavy drug user who has undertaken gaol terms in the past. In 2010, she was gaoled for seven years with a five year minimum for drug trafficking.
29 Your childhood was difficult. There were periods when your mother was not able to care for you and you were looked after by relatives. You experienced depression and anxiety and resorted to illicit drugs, namely, ecstasy and marijuana to manage your mood when you were aged about 16. In 2010 you started to use methylamphetamine. You were arrested at the same time as your mother in 2010 and taken into custody. You were initially charged with trafficking matters, but later those charges were withdrawn and the matter proceeded by way of the charges for possession of drugs only for which you received an adjourned undertaking.
30 As a 20 year old, you spent three months on remand which was “dead” time. At the time of your arrest, you had been undertaking a pre-apprenticeship in cabinet making, but because of your remand you lost that apprenticeship and you struggled to find your way upon your release. You did not have the support of any significant adults, you had no mother, no father and you had no job.
31 You were bailed to live with your great-uncle, who lived in Fitzroy, and you were not able to have contact with your brother and sister. You became depressed and started using drugs again. Your life spiralled out of control.
32 You had some occasional employment. You worked for a tyre place in Richmond briefly and you also had some work as a cabinet maker in a pre-apprenticeship position, but because of your heavy drug use you were unable to sustain employment. Your drug use was heavy, became daily with many attempts to abstain but you would fall into a pattern of relapse.
33 What has been really significant since your release on conditional bail in respect to these matters, is that this is the first occasion where you have successfully been supported with professional help to address and overcome your addictions.
34 You have taken advantage of your conditional release. There is documented evidence to support the claim that you have demonstrated a real motivation to change.
35 On the plea, I heard evidence from Denise Abadee, an experienced and respected Alcohol and Drug counsellor. Ms Abadee has been supporting you following your release and she described the various stages that you have gone through since you commenced working with her. She was frank and open with the court and said there have been relapses but she indicated that that is part of the process of stopping drugs and was not unexpected in the early stages. She said notwithstanding the fact that you did relapse at times, you kept attending her and therefore you demonstrated to her that you were genuinely motivated.
36 She described your progress as “amazing”. There have been numerous random urine analysis screens undertaken, and all the results have been negative. Those results were all produced to the court.
37 She also informed the court that Dr Rodney Spencer, your general practitioner, confirmed that you have made a miraculous turnaround. She said that she is very proud of you and that she considers you to be a person who has engaged well with treatment. You have been regular in your attendance on all counselling appointments and follow-up treatment recommendations, and importantly, you have cut your ties from your drug-related contacts.
38 In her written letter addressed to the court she states you are remorseful and feel much shame for your family in respect to the offending. On reflection, you report that you have learnt a lot from your previous offending experiences, including court and gaol. You openly told her you do not want that life anymore. You have also indicated a willingness to continue to commit to addressing your substance use and you want to maintain abstinence from daily methylamphetamine use.
39 Her observations are that you have changed all aspects of your life. Not only are you drug-free, but you are a hands on father to your son, Maddox, something that sadly you missed out on. You spend a lot of your time caring for your son whilst your partner, Christine, works full-time in a bank.
40 Ms Abadee has counselled both you and your partner, Christine, and has supported you in dealing with your addictions and the stresses you are experiencing. Her counselling has been directed towards harm reduction interventions and relapse prevention. She considers that counselling has been influential in assisting you to address the underlying reasons for your substance abuse. She reports that you look better and you state that you feel much better than you have done in a very long time.
41 It is therefore important, where there has been such significant rehabilitation achieved, that the court makes orders that continue to enhance your prospects of rehabilitation so as to reduce your risks of re-offending in the future by consolidating those changes that have been made by you. It is proposed that the Community Correction Order that you are to undertake will provide you with that structure and support.
42 I have had regard to what was said by Mr Patrick Newton, consultant psychiatrist, in his report of 6 March 2017 and I do not propose to repeat the background history. I note he undertook a mental status assessment and he confirms you meet the diagnosis, the DSM-5 diagnosis for a severe methylamphetamine use disorder in early remission.
43 He confirms your counselling with Ms Abadee has increased your awareness of the broader social consequences of the drug trade and its pernicious effects. He states that not only has this led to developing remorse for your drug-related offending but it also has consolidated your motivation to remain abstinent in the longer term.
44 He recommends ongoing drug-related education and treatment to consolidate the changes and the very genuine progress you have made to date. He recommends that you continue treatment for at least the medium term, and that any community-based treatment should include objective monitoring to confirm your abstinence. I have had regard to that advice in formulating the appropriate order.
45 He postulates that should you be required to return to custody, that that would mean, ultimately, when you return to the community you would be a relatively high risk for relapse to drug use, and it would be important to manage your transition actively.
46 He finds that you do not present with any significant symptoms of psychological disturbance and your mood was normal. There is no evidence of depression.
47 He stated you present as a rather immature person for your age, having regard to your mannerisms and demeanour, and also superficial understanding of the emotional world. He considers that since your arrest and participation in drug treatment, you have made some progress towards a nascent maturity. He states that he would be keen to see this program consolidated and extended by your participation in appropriate further treatment.
48 Mr Pham you are fortunate in that you do have strong support network around you and I have regard to the reference material that has been provided.
49
In particular, I have had regard to the character reference provided by
Dr Rodney Spencer, your general practitioner. He is in an unusual position because he has known you since you were aged 15. He first saw you in 2005. He made the observation that in the past you were a troubled young man who was totally uncommunicative. He understands your background and history and the reasons why you are appearing before the court.
50 He says that you have turned your life around over this past year, and that you are no longer keeping in contact with the drug sub-culture, and you are a much happier person in yourself and you now expressing appropriate motivation and to change your life and to make something better of yourself.
51 I have read all the other material provided from Batan Pham, your grandfather, Trin Pham, your mother, Thi Pham, your aunt; Winston, your brother and material provided from Samantha Ishizuka, Christine Tar (your partner), and Truong Nguyen (your friend).
52 What I glean from reading all that material is that you have demonstrated a real commitment to change through your rehabilitation and the steps that you have taken in order to obtain employment. Sadly, the opportunity to work as a fitness coach has closed as a consequence of not being able to complete your course because of the closure of the SAGE Institute. You have also demonstrated that you are motivated to your girlfriend, Christine, who is now your fiancé and she confirms that you have a loving and responsible relationship with your son.
53 Overall, having regard to all the circumstances, I consider your rehabilitation prospects are excellent but that is subject to you remaining on your present course of being totally abstinent.
54 In sentencing you I must impose just punishment. There is a real need for the court to emphasise denunciation and deterrence, both general and specific. Given your present circumstances, where you have voluntarily abstained from methylamphetamines for many months, and have indicated a willingness to continue ongoing treatment and abstinence, I consider the need for specific deterrence at this stage is moderated to an extent.
55 I must balance all of the sentencing principles and only impose a term of imprisonment as a last resort.
56 I have had regard to the guideline judgment of Boulton v R,[2] known as Boulton, and acknowledge that the availability of Community Correction Orders have “dramatically changed the sentencing landscape” in this State.[3]
[2][2014] VSCA 342.
[3]Ibid [113].
57 In this instance, I consider that a Community Correction Order is the most appropriate sentencing disposition. It will enable all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is skewed towards retribution and deterrence. I consider that to imprison you now would be a retrograde step and would undo, potentially, all the work that has been achieved to date to achieve your abstinence and that would be quite tragic in the circumstances such as this where you are a young man who has a real future ahead of you and who has a real relationship with his son.
58 I have also had regard to what was said in Boulton, where it is said that a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.[4] Those observations are particularly relevant in this case. The court, in that case, went on to say, "The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment whilst affording the best prospects for rehabilitation." I am satisfied that this is a case where that can be achieved.
[4]Ibid [131].
59 You have shown significant rehabilitation and you are still in the early stages of remission from a heavy drug habit which has dominated your life for ten years.
60 Ms Harper, the Prosecutor, whilst acknowledging the very real efforts at rehabilitation that you have achieved, emphasised that you are still only in the early stages of remission. She submitted that the trafficking charges were particularly serious, in particular there was a significant amount of heroin and a not insignificant amount of methylamphetamine found. She submitted that an immediate term of imprisonment ought be imposed and that a Community Correction Order or even a Community Correction Order in combination with gaol was not appropriate.
61 I consider that in all the circumstances of this case that a Community Correction Order is warranted and I have had regard to the following factors:
· Firstly, the value of the plea of guilty and the circumstances in which it was entered. There was an offer to settle this matter on 29 March 2016 in terms consistent with the current indictment. I accept that your plea of guilty was entered at an early stage and that you ought be given a full discount on your sentence. There is real utility in your plea. You have spared the State the expense and inconvenience of a trial. You have indicated your willingness to accept responsibility for your wrongdoing and you facilitated justice.
· Secondly, I am satisfied that the plea is indicative of genuine remorse on your behalf. I have had regard to what was said by Ms Abadee and Mr Newton in their evidence.
· Thirdly, you are still relatively youthful and rehabilitation is an important aspect of your sentence. You do have previous criminal history, but in the context of your background, I consider that that is largely explicable due to difficulties you experienced as a consequence of your disadvantaged youth, having regard to the fact that your early years were very much overshadowed by your mother’s own addiction to illicit drugs and her absence whilst undertaking gaol terms. The impact of such a disadvantage and dysfunctional background does not diminish with time and they are to be given full weight in determination of appropriate sentences in every case. That is in accordance with the principles espoused in the matter of Bugmy v R.[5]
· I have had regard to delay in the charges being heard combined with the significant rehabilitation that has been achieved throughout the period of the delay. It is significant insofar as you have demonstrated your ability to adhere to stringent bail conditions since your conditional release, and you have also consistently undertaken your treatment, as guided and directed by Ms Abadee, who has given evidence that your progress is significant. It is recognised that there were some periods of relapse, but you have largely demonstrated that you are now drug-free and you are demonstrating a more responsible attitude towards the care of your son, and to being a more law-abiding person.
· Finally, overall, I consider your prospects for rehabilitation are excellent. That is predicated on you remaining drug-free. You are still considered to be in the early stages of recovery from your drug addiction and that you will require ongoing treatment to succeed. You are very fortunate in having the significant ongoing support from Ms Abadee, your general practitioner, family members and your partner, Christine.
[5](2013) 249 CLR 571.
62 I propose to impose a Community Correction Order in respect to all charges, the duration of which will be for four years. There will be a punitive element, namely, 200 hours of unpaid community work. There will be a requirement that you undergo drug treatment and testing throughout the period, as well as that you undertake any offending behaviour programs that may be considered suitable. You are to be subject to supervision by a Community Corrections officer for the duration of the order and, given that you are seen to be in the early stages of remission recovering from your longstanding drug addiction, this is a case where there will be some judicial monitoring, the first occasion of which will be in six months’ time, on Thursday 12 October 2017 at 10 am and that time will require you to attend court and I will receive an update report on your progress concerning your compliance with the order. Any noncompliance, as I have already discussed with you, will be strictly enforced.
63 You are assessed as being suitable for such an order. You are also assessed as being a medium risk of re-offending. You have had no prior involvement with Community Corrections Services. This morning you have indicated your willingness to consent to such an order and have reported that you fully understand this order and all its terms and you have been explained the mandatory terms of the order, and also the other special conditions and you have consented to me to that order being made. You fully understand that in the event that you breach the order that constitutes a new offence that is punishable by up to three months’ imprisonment.
64 I will now announce the formal court order. In respect to each of the charges on the indictment and the uplifted summary charges, Charge 1, 2, 3 and 4 on the indictment and Summary Charges 6 and 10 you will be convicted of each of the charges and placed on a four year Community Corrections Order in the terms that I have already described.
65 I make the following s.6AAA declaration, but for your plea of guilty, I would have imposed a term of imprisonment of five years to serve three years.
66 I note that you did spend 19 days in pre-sentence detention, but that is not to be declared.
67 I make the ancillary orders.
68 I make the forfeiture order in respect to the firearms, cash and weapons.
69 I make a disposal order with respect to the drugs and other paraphernalia.
70 And I make the order for the forensic sample pursuant to s.464ZF(2) of the Crimes Act 1958.
71 I note that those orders were consented to.
72 Mr Pham, the only thing I need to tell you now is because I have made the order for the taking of a forensic sample, I have made that order because of the seriousness of the offences and I consider that the order is in the public interest. What that means is that you will have to go to a police station, there is a list of 24-hour police stations, and provide a scraping from your mouth and/or a blood sample and I have to inform you that if you do not consent to the taking of a mouth scraping under supervision of an authorised member of the police, then that sample can be taken by way of blood sample and police may use reasonable force to enable that procedure to be conducted.
73 What that means in essence is that you have to attend one of the 24-hour police stations. They have a kit, they will provide you with a cotton bud that you put in your mouth and rub it on your cheek and provided you do that you comply with the order. It is only if you do not they can then take a blood sample. All right? So best to attend to that as quickly as possible.
74 I have signed all the orders so I will provide those to the prosecution. I will sign the Community Correction Order which I would just ask Mr Mandy if you could accompany my associate and just get that signature and then once that is done that can be copied and your client will be free to go.
75 My associate will provide you with a copy, Mr Mandy.
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