Director of Public Prosecutions v Pham
[2025] VCC 310
•20 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01455
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NGOC PHAM |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 March 2025 | |
DATE OF SENTENCE: | 20 March 2025 | |
CASE MAY BE CITED AS: | DPP v Pham | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 310 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing
Catchwords: Trafficking commercial quantity of drugs (heroin), trafficking a drug of dependence (methylamphetamine), Possess equipment for trafficking a drug of dependence (hydraulic press), possess drugs of dependence, plea of guilty, motive for offending gambling addiction, enrichment not lasting, foreign national facing prospect of deportation.
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1986, Dangerous Goods Act (Regulations) 2022 Firearms Act1996, Sentencing Act1991
Cases Cited:Lieu v The Queen [2016] VSCA 277. Markarian v The Queen (2005) 228 CLR 357. R vPidoto & O’Dea (2006) 14 VR 269. Gregory (a pseudonym) v The Queen [2017] VSCA 151. Djordic v The Queen [2018] VSCA 227. Arico v The Queen [2017] VSCA. Mitchell v The Queen [2016] VSCA 321. Worboyes v The Queen [2021] VSCA 169. Guden v The Queen (2010) 28 VR 288. Konamala v The Queen [2016] VSCA 48. Da Costa Junior v The Queen (2016) 307 FLR 153. Norman v The King [2023] VSCA 213. DPP v Malikovski [2010] VSCA 130. Mohamed v The Queen [2022] VSCA 136
Sentence: TES 7 years with non-parole period of 5 years. PSD declared at 619 days. S.6AAA declaration 9 years with non parole period of 7 years. Ancillary orders made.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B Goding | OPP |
| For the Accused | Mr C Nikakis | Haines & Polites |
HIS HONOUR:
INTRODUCTION
1Ngoc Quoc Pham, you have pleaded guilty to the following charges on indictment and related summary offences (RSO’s), carrying the corresponding maximums:
Charge
Offence
Section/Legislation
Maximum Penalty
1
Traffick Drug of Dependence (DOD) (methylamphetamine) on 15 March 2023.
S 71AC Drugs, Poisons and Controlled Substances Act 1986
15 years imprisonment
1800 penalty units
2
Traffick Commercial Quantity (Heroin) on 10 July 2023
S 71AA Drugs, Poisons and Controlled Substances Act
25 years imprisonment
3000 penalty units
3
Possess Equipment for Trafficking DOD
(hydraulic press)
on 10 July 2023
S 71A Drugs, Poisons and Controlled Substances Act
10 years imprisonment
1200 penalty units
4
Traffick Drug of Dependence
(methylamphetamine)
10 July 2023 and the 11 July 2023
Rolled up charge
S 71AC Drugs, Poisons and Controlled Substances Act
15 years imprisonment
1800 penalty units
5
Possess DOD
MDMA, heroin and methylamphetamine
11 July 2023
Rolled up charge
S 73(1) Drugs, Poisons and Controlled Substances Act
5 years imprisonment
400 penalty units
RSO 4
Possess explosives/fireworks unlicensed
s21(2) Dangerous Goods Act (Regulations) 2022
100 penalty units ($19,231)[1]
RSO 6
Possess ammunition without a licence
Firearms Act1996
40 penalty units ($7,692.40)
[1]A penalty unit in July 2023 was $192.31
2You have reached your late 30s without offending in this way or at this scale before. You have pleaded guilty early. You may be deported to Vietnam.
3The drug offences relate to the drugs seized on three different dates at an address used by you, and a storage locker. You were, on any view of it, involved at a high level of this drug trafficking enterprise. That involvement arose out of your appetite for gambling and the association you made with the architect and principal of the enterprise in the context of excessive gambling.
4Proper application of sentencing principle inevitably means that you will be required to serve a substantial term of imprisonment.
5
I am going to sentence you to a total effective sentence of seven years with a
non-parole period of five years. The 619 days that you have spent in custody so far will be deducted from your sentence.
6My reasons for imposing this sentence follow.
OFFENDING [2]
[2]Taken substantially from Exhibit A – Summary of Prosecution Opening dated 27 February 2025.
Background
7In August 2022, investigators from the Major Drug Squad commenced Operation Backstop into the commercial trafficking of drugs of dependence – mainly methamphetamine and heroin – in the Melbourne metropolitan area by an organised crime syndicate led by the now deceased Long Dang.
8During the investigation, investigators established that you received orders and instructions from Dang and that you maintained addresses on Dang's behalf for the preparation and storage of drugs of dependence.
9During the investigation period, you lived at 35A Hutchinson Street, Albion and spent time at your girlfriend's address in Danzig Court, Kalkallo. You also maintained storage cage 651 at Fort Knox, Braybrook. The charges relate to these addresses,35A Hutchinson Street was referred to by you and Dang as 'the factory'.
10A number of vehicles were linked to you, including a black 2022 Jeep, and a grey 2021 Mercedes Benz. You also leased a white HiAce van.
11At no time during the close to nine-month investigation did you undertake any
full-time work.12Other co-accused charged from the syndicate include:
(a) Long Dang;
(b) Truong Dinh Le;
(c) Phong Hong Le; and
(d) Yong Sen Lee.
13Dang was rightly identified as the principal offender of this syndicate. His matter was withdrawn when he died in custody.
14Phong Hong Le's matter proceeded in the Magistrates' Court. He was sentenced to eight months imprisonment on 21 February 2024 on the following charges (which relate to a different property)[3]:
(a) Possess sassafras oil;
(b) Possess imitation firearm;
(c) Possess drug of dependence;
(d) Fail to comply with direction to assist; and
(e) Deal with proceeds of crime.
[3]This offender is described offender acting on Dang’s instructions but not yours.
15All other co-accused's matters are still pending.
Offending itself
Lead up to 15 March 2023 Search Warrant (led as context evidence)
16From August 2022, investigators identified a number of members of the syndicate, as well as the properties and vehicles used by them. You were one of these individuals. Three cheques made out to you, totaling $12,300.90, were located and seized during the execution of a search warrant at an apartment in Southbank in September 2022. Further, you were frequently seen associating with Dang at Crown Casino and at 35A Hutchinson Street, Albion and at Danzig Court, Kalkallo were also identified as addresses of interest.
17In the early hours of 6 March 2023, you and Dang spent about 40 minutes playing in the Mahogany VIP room at Crown Casino, and then returned to the floor of the casino where you both played machines and on the Baccarat tables.
18On 11 March 2023, investigators commenced monitoring Dang's vehicle, including where it travelled to and the locations it attended. Data captured showed that Dang regularly attended 35A Hutchinson Street.
19On the evening of 14 March 2023, you met Dang at an address in Lacy Street, Braybrook where precursor chemicals were being stored. You spent
35-40 minutes at the factory before walking away on foot and returned about one hour later.
15 March 2023 - Search Warrant 35A Hutchinson Street, Albion – Charge 1
20At 7:20 am on 15 March 2023, police executed a search warrant at 35A Hutchinson Street, Albion. You were not home. Phong Truong was at the house and Chau To arrived during the search.
21Police located and seized:
(a) A yellow envelope containing a zip lock bag with white crystal substances in it;
(b) Australian currency in various denominations; and
(c) Multiple mobile telephones.
22Subsequent analysis showed the white crystal substance to be 254 grams of methamphetamine. (Charge 1 – Traffick in a drug of dependence at Hutchinson St on 15 March 2023)[4]
[4]The methylamphetamine discovered at Hutchinson Street, when forensically examined, resulted in your DNA being discovered on the packaging.
15 March-10 July 2023 (led as context evidence)
23On 4 April 2023, you and Yong Sen Lee attended Fort Knox Self Storage in Ballarat Road, Braybrook where you accessed a storage unit leased from 9 March 2023 under the name 'Annie To'. This was the first time that that storage unit had been accessed since it had been leased.
24You and Lee arrived in the white HiAce van that you had rented. You unloaded various goods into the unit, including taped-up boxes, a petrol-powered pressure washer and white light shrouds.
25Intercepted telephone conversations between you and other syndicate members show multiple discussions about drug purchases, sales and exchanges, as well as the sourcing of funds. You, it seems, regularly advised Dang and others that you were at the ‘factory’ (35A Hutchinson Street).
26In the early hours of 21 April 2023, Dang directed you to meet at ‘Uncle’s’ place whilst he, Dang, goes to get ‘paper’. You told him that you were going to Yong Sen Lee’s first, and then to ‘Uncle’s’. Shortly after this phone call, Dang contacted you and told you to come and test ‘this one’ for him, explaining that he is getting a sample for you to test later and see how it is. CCRs are consistent with you visiting Lee and ‘Uncle’ [5] that morning.
[5]Another accused in part of the broader offending, but not a co-accused.
27On 27 April 2023, you and Dang had multiple phone calls during which you discussed ‘receiving a thingy’. You invited Dang to meet a Caucasian male with you, but Dang declined. During the day you travelled between the Hutchinson Street address and an address used by the syndicate in Braybrook.
28The following day, you and Dang again spoke on the phone. You indicated you were going to the 'factory' to get money and would then see Dang. Dang indicated he had also obtained money, and complained about not making a lot of profit.
29In a phone call to Dang on 1 May, you told Dang you had someone that needed the 'cold one' (methylamphetamine/ice) and you discussed how much to sell. You then travelled separately to the Hutchinson Street address.
30On 3 May 2023, you went to the Fort Knox Storage unit for 5-10 minutes. You then spent time at Hutchinson Street, speaking with Dang on the phone about getting money, and also seeing him in person when Dang attended the Hutchinson Street house.
31An intercepted call on 5 May shows you directing Dang to use another line or application to continue the conversation about sourcing an unidentified drug of dependence.
32On 7 May 2023, Dang sought your assistance transporting a suitcase. He cryptically directed you to drive into the 'thingy' so that the 'thingo' lad could bring something out before transporting it to Quynh Anh Do. You indicated that your vehicle was full.
33In phone calls between you and Dang on the evening of 8 May, you told Dang that you had been at the house of another syndicate member (Phan) and were driving back to Hutchinson Street as 'customers have been waiting'. You requested Dang come to the Hutchinson Street address to assist, as you had a filter in the back of the vehicle and needed to do some filtering for someone.
34Further phone calls between your and Dang in May 2023 show you discussing the availability of drugs of dependence, customers, money, potential purchases/sales and a possible failed purchase of a drug(s) of dependence that fell through because of financial issues and/or miscommunication. In a phone call on 16 May 2023, you asked Dang about the availability of '1-2 pieces', being bricks of heroin. Dang indicated that there would only be one.
35In around mid-May 2023, Johnny El-Hallal began engaging with syndicate members about the provision of drugs in exchange for cash or other drugs.[6]
[6]El-Hallal was arrested by Victoria Police on 7 February 2024 as part of Operation Thistle.
36On 19 May 2023, in an intercepted phone call, you told Dang he needed about six. Dang clarified whether this meant sixty, but you confirmed it meant 6,000. This is alleged to be a discussion about funds, with you indicating to Dang that you needed $6,000. In a call later that day, you told Dang that you were trying to find a way to retrieve your own cash. You discussed that someone who could had a half and could provide half of that later, but you would need paper (meaning money) to do business and it would cost over $100,000. You indicated you wanted to take it all, and Dang told you to hurry as it would go on a 'first come, first served' basis.
37
In a phone call that same night, Dang asked you whether you had paid 'Johnny's' mob; you had not yet done so. Dang told you to just pay it, and you said that
El-Hallal's mob had threatened you. Phone calls over the coming weeks show that Dang tried to mediate that situation.
38You attended Fort Knox on 22 May 2023, spending around 20 minutes there.
39On 23 May, you asked Dang for money to help pay for To (your girlfriend's) legal fees the following day.
40Intercepted phone conversations in June 2023 show that you continued to communicate and meet with Dang and other syndicate members. You regularly discussed the availability of drugs, customers, money and potential deliveries/purchases/sales.
41On 5 June 2023, you, Dang and Quynh Anh Do had a discussion over the pricing of drugs manufactured by the syndicate. It was said to be powdery, warranting a lower price.
42On 13 June 2023, you and Dang discussed the purchase of an appliance that the syndicate needed. You had not purchased it yet as you were unable to get onto Dang earlier to confirm what he wanted. Dang said he would send you a photo and you could get it at K-Mart, Campbellfield which was open 24/7. In a series of calls and messages shortly after 3:00 am the next morning (14 June), you told Dang you could not find the appliance and were waiting for staff to help you. Dang sent an SMS to show the details of an Anko food dehydrator and the instructions for the appliance.
43On 22 June 2023, investigators executed search warrants at a number of Sunshine properties used by the syndicate.
10 and 11 July 2023 - Search Warrants – Charges 2-5 inclusive
44At approximately 11:00 am on 10 July 2023, investigators identified that you and Yong Sen Lee were both at 35A Hutchinson Street. Investigators set up in the vicinity of the property, and at about 12:40, both of you were seen coming in and out of the house. Five minutes later another vehicle arrived at the property, driven by James Martin. He went into 35A Hutchinson Street, before coming out with you and Lee at 12:51. All three of you were arrested.
45Upon initial clearance of the address, investigators located a small rudimentary open lab in the kitchen of the address. Clandestine Laboratory Chemists confirmed that morphine and morphine-like substances were being baked, dried and extracted in the kitchen to create heroin/heroin-like drugs of dependence.
46In the front lounge room, investigators found numerous items used in the preparation of drugs for trafficking including emptied bags containing drug residue, numerous smaller zip lock bags, food bags and scales.
47A hydraulic press was located in the garage along with a rectangular-shaped pressing block in the lounge. (Charge 3 – possession of equipment for trafficking a drug of dependence).
48Concealed behind the kitchen drawers was a vacuum-sealed bag containing thirteen ounce-sized bags of compressed white powder, later analysed and confirmed as being heroin.
49Also seized were:
(a) Two roundels of Chinese-made fireworks (RSO Charge 4 – Possess explosives/fireworks unlicensed); and
(b) ammunition, including three loose .32 ammunition cartridges with a bundle of 9 mm cartridges secured in bubble wrap (RSO Charge 6 – Possess ammunition without a licence).
50In your Jeep, investigators located and seized tick books that contained calculation and sums for drug sales.
51On 11 July 2023 a search warrant was executed on the locker at Fort Knox Storage. Inside the locker they located and seized a length of piping, inside of which was:
(a) A bundle of seven zip lock bags of various sizes containing various quantities of white crystal substance;
(b) A single zip lock bag containing a white crystal substance;
(c) A black 'Everlast' bag containing a small zip lock bag of a quantity of a white/brown substance, and a small zip lock bag containing various pills.
52That same day a search warrant was executed at Danzig Court, Kalkallo. No one was present at the time, and the property appeared to be being moved out of. The following items were seized:
(a) Your passport and travel documents.
(b) A Louis Vuitton shoe box containing:
(i)Three zip lock bags, they contained a small amount of white crystal substance;
(ii)One zip lock bag containing a small amount of reddish-brown powder and rocks; and
(iii)A freezer bag containing a compressed powder.
(c) Also located was a silver-coloured Crown Casino gaming card in your name;
(d) Paperwork addressed to you from the Commonwealth Bank of Australia relating to the potential purchase of a property at 77 Merindah Boulevard, Deanside; and
(e) Various electronic devices.
Drug Analysis and quantities
53The drugs of dependence that I have just identified were analysed, and form the basis of the following charges
(a) white crystal substance known to be 254 grams of methamphetamine.
(Charge 1 – Traffick in a drug of dependence- methamphetamine - on 15 March 2023)
(b) 447.5 grams of heroin, located in the kitchen of 35A Hutchinson Street (Charge 2 – Trafficking in not less than a commercial quantity of a drug of dependence – some three or four months after the first offence - on 10 July 2023)
(c) 169.4 grams of methylamphetamine, located in the various instruments and containers in the kitchen of 35A, Albion; and
45 grams methylamphetamine, located in the Fort Knox Storage unit (Charge 4 – Trafficking in a drug of dependence methylamphetamine, rolled-up charge between 10 July 2023 and 11 July 2023)
(d) 0.5 grams heroin, and 2 grams MDMA, located at Fort Knox; and
(e) 1 gram MDMA, 1.3 grams methylamphetamine and 0.5 grams of heroin, located at Danzig Court, Kalkallo
(Charge 5 – Possess drugs of dependence, rolled-up charge on 11 July 2023)
Interview
54Following your arrest on 12 July, you were transported to the Melbourne West police station. A record of interview was conducted with the assistance of a Vietnamese interpreter. You declined to comment on all questions related to drug trafficking and the address at which you were arrested.
Case history
55The matter proceeded through the criminal justice system in the following way, concluding, with you entering a plea of guilty at committal on 26 August 2024.
DATE EVENT OUTCOME 11 July 2023 Filing Hearing Remand 22 August 2023 Bail Application Bail Refused 23 August 2023 Committal Mention 3 October 2023 Committal Mention Adj to join co-accused 20 November 2023 Committal Mention Listed for Committal 3 May 2024 Committal Mention 17 July 2024 Committal Mention 26 August 2024 Committal PG entered 26 November 2024 Directions Hearing 2 December 2024 Plea Hearing Adj as prosecution not
ready to proceed12 March 2025 Plea Hearing 611 days PSD 20 March 2025 Sentence 619 days PSD
Applicable Sentencing Act Schemes
56Trafficking in a commercial quantity (Charge 2) is a Category 2 offence and therefore a custodial sentence is mandatory unless one of the exceptions in s 5(2H) is established.[7] No such reason was sought to be agitated in this case.
[7]Sentencing Act 1991 s. 5(2H). it was not contended by Mr Nikakis that anything other than a head sentence with a non-parole period was the appropriate sentence in your case.
MATTERS PERSONAL TO THE ACCUSED
Background
57You were born on August 1987 in Vietnam. You are now 37. At the time of the offence, you were 35.
58You arrived in Australia with your family from Vietnam in 2004, when you were 17. You are a permanent visa holder but not an Australian citizen. The prospect that you may be deported to Vietnam is a matter relevant to sentence as I will come to in a moment.
Education and employment
59You attended a language school in Braybrook and ultimately left school at the age of 18.
60Following this, you proceeded to obtain a number of unskilled forms of employment. You were employed as a labourer at a butcher shop, you did formwork and garbage collection.
Family
61You married in 2007. There are two children from this marriage who are now 16 and 14. You have been separated from their mother since around 2017. Despite being in custody, you maintain contact with your children regularly.
Gambling
62You commenced gambling at around 2015, primarily on 'pokie machines' that were found at comparatively modest sporting venues and RSL clubs in Melbourne's inner west. You do not appear to have offended in the past to fund your gambling.
63As the gambling continued, you ultimately lost funds, and the financial difficulties led to issues in your marriage.
64The familial issues led to your separation, and the family violence intervention orders being placed on you by courts.
65It was not until around 2022 that you began attending Crown Casino more frequently and it was there that you met the co-accused Long Dang.
Drug use
66Your prior history of drug use is relatively modest. You were using a variety of drugs over the offending period, but not to excess, and it was not suggested that you were impaired at the time of the offending because of it.
Forensic history
67You admit to a prior criminal history going back to 2015 which coincides with your gambling becoming problematic.
68Your offending is of some relevance, including as it does, convictions for drug possession. That being said, your present offending represents a substantial departure from your prior matters, in both its severity and in terms of its inevitable outcome.
69On 30 September 2015, you were dealt with by the Sunshine Magistrates' Court for breaching an intervention order, failing to answer bail, contravening a conduct condition of bail, contravening a family violence intervention order and assault. You were convicted and placed on an 18-month CCO.
70On 18 June 2018, at the Sunshine Magistrates' Court, you recorded your first conviction for drug-related offending. There, you were fined $1,500 for dealing with property being suspected the proceeds of crime and possession of both heroin and methamphetamine.
71On that same day, you were dealt with for the breach of CCO. The learned Magistrate cancelled the CCO and it appears they imposed a further CCO on you to be completed over 12 months.
72In February 2019, you were again before the Sunshine Magistrates' Court for possession of drugs, namely methamphetamine and a drug of dependence, unnamed, as well as dealing again with property suspected of being the proceeds of crime. You were convicted and given yet another opportunity to complete a CCO, this time spanning 18 months.
73Three months later in May of 2019, you were dealt with for your breach of the CCO imposed in June of the previous year. The order was varied to give you more time to complete the required hours of community work.
74In April 2020 you appeared in the Melbourne Magistrates' Court and you were found to have contravened both CCOs. The breaches were proven and you were sentenced to 35 days for a single charge of wilfully damaging property. This was your first, and only, term of imprisonment before your current remand.
75Finally, on 6 December 2022, you returned to the Sunshine Magistrates' Court where you were convicted and fined $1,500 for your involvement in an affray.
76Your Counsel, Mr Nikakis, rightly describes your prior history as one that demonstrates a use of drugs and is consistent in terms of contravening family violence and intervention orders.
77Sadly, it is also one that involves your failure to complete orders designed to facilitate your reform generally, though I accept they are not dispositions that have targeted problematic gambling.
Context of present offending, including motive and enrichment
78As I noted earlier, in around 2022 you began attending the Crown Casino more frequently and it was there that you met Long Dang. There was no suggestion that you were engaged in the sale, manufacture or distribution of drugs before this time.
79The investigation initially focused on Long Dang and investigators observed the two of you attending, and betting at, Crown Casino regularly.
80An examination of your Crown Casino Profile demonstrates that during the period of March 2023 to May 2023, for instance, you paid for and undertook accommodation at the Crown Metropol Hotel on 36 occasions. When there, you gambled in the Casino itself. You attended both the Mahogany Club and the regular floor.
81With respect to Dang, you moved from acquaintance, to friend, to gambling companion and to trusted lieutenant in this trafficking enterprise over time until you offended in the way that I have described earlier.
82Your motive and the question of enrichment or gain are intertwined.
83Your involvement in this drug offending allowed you to continue to gamble extensively and at a high level in a way that you found attractive, or enthralling. That is what you gained from this enterprise.
84You earned enough money through Dang to arrive at the Casino at the beginning of the week with as much as $10,000 in your pocket. You would then proceed to gamble. On one day alone you made $100,000 playing Baccarat for instance, only to lose it (as you inevitably always did) over the course of the next five days.
85So in that sense, the word 'enrichment' is a bit misleading. You owned no property. Hutchinson Street was rented. The Jeep was registered in your sister's name and financed to her. The Mercedes was not yours. No property was ever purchased by you. It seems that nothing lasting, or tangible was acquired or retained by you. A sizeable and serious gambling habit seems to have been funded though.
86In 2023, you sought assistance, as I said earlier, from Dang to pay Chau To (your then girlfriend's) legal fees. This is more consistent with the transitory nature of your earnings; however substantial they were; they were squandered at the Casino. That said, the gains that you did obtain answer the description 'sizeable'.
MATTERS OF SENTENCING PRINCIPLE
Trafficking offences
87Your offending is undoubtedly serious, especially in relation to the trafficking charges. Overall, of course, it involves trafficking in at least one commercial quantity, that being of heroin, and two charges of trafficking methamphetamine.
88In assessing the objective gravity of the trafficking, which is apposite to Charges 1, 2 and 4 I am entitled to consider the following:
(a) The role of the offender;
(b) The position of the offender in the drug trafficking hierarchy;
(c) The nature and extent of the offender's involvement in the enterprise;
(d) The sophistication of the enterprise; and
(e) The amount of drugs involved or intended to be involved in the enterprise.[8]
[8]Lieu v The Queen [2016] VSCA 277 [41]-[42].
89Plainly, trafficking in a commercial quantity of drugs is a serious offence. The maximum penalty available is 25 years' imprisonment, and that alone is evidence of the seriousness with which Parliament views this offence and provides a yardstick against which the sentence to be imposed should be considered.[9] Trafficking in something less than a commercial quantity itself carries a maximum penalty of 15 years.
[9]Markarian v The Queen (2005) 228 CLR 357, 372.
90Trafficking in drugs is an inherently pernicious trade. Drug offences are a substantial societal evil that causes significant societal harm and it affects its most vulnerable members. Judicial officers have a responsibility to fix sentences that are designed not only to punish but to serve as an effective deterrent. General deterrence, as the dominant purpose for which sentence is to be imposed, has been emphasised by sentences in all Australian jurisdictions. That much is inarguable.
91The community has a justifiable expectation that such offending will be treated very seriously. The consequences for engaging in such serious criminality must mean that any like-minded members of the community who are contemplating behaving like this, as you did, or in any similar fashion, will pause to consider whether the potential rewards or gains are worth the risks of being caught and being punished.[10]
[10]You too need to fully understand that when you engage yourself in the risk vs reward calculus when contemplating more serious drug trafficking that the price you will pay for your criminality will be so severe that the promise of reward is simply not worth it.
92In this State, there is a quantity-based sentencing regime according to the weight of the substance (and not the perceived hierarchy of harm[11]) which informs the maximum penalty. Whilst not determinative of the assessment of the objective gravity of the offending, the amount trafficked is of importance all 'things being equal, the greater the quantity trafficked the more serious the offence'.[12]
[11]R vPidoto & O’Dea (2006) 14 VR 269.
[12]Gregory (a pseudonym) v The Queen [2017] VSCA 151 at [23]–[24].
93Weight or quantity alone is not the only metric to measure the gravity of the offence. Other factors relevant to an assessment of the gravity of a particular trafficking matter include an offender's role, the duration of the offending and the motivation for it.
94I will adopt Ms Goding's analysis in her submissions (which were sensibly not cavilled with) when dealing with these important aspects of the offending. I will start with quantities.
(a) The quantities here are high, and the offending involved is trafficking, as I said, in more than one substance:
(i)Charge 1: 254 grams methamphetamine. This is 87 times the threshold for a traffickable quantity (3 grams), and 4 grams greater than the commercial quantity.
(ii)Charge 2: 447 grams heroin is 1.79 times the commercial quantity threshold (250 gram mixture).
(iii)Charge 4: 214 grams methylamphetamine which is 71 times the threshold for a traffickable quantity, or 85 per cent of the commercial quantity threshold.
(b) Role: you were a key player in a sophisticated[13] drug trafficking syndicate, working closely with Dang (though at his direction) and with other associates. You were a jack of all trades and for want of a better phrase, quite hands-on in this operation. Your involvement included managing logistics, assisting Dang with customers, accessing storage units for drug-related activities. It is fair to say that you were a trusted, high-level employee in a sophisticated trafficking operation, playing a fundamental role in the enterprise.
(c) Frequency: whilst the charged period for each charge is for the dates of the execution of warrants, the offending spans over a number of months. Your conduct between April and July 2023 is relevant as important context to the charges.
(d) Motive: the motive was motivated by the financial gain in the way that I have described just a moment ago. You were unemployed, yet a regular attendee at Crown. Records from Crown show you making regular and significant deposits between 15 March and 3 May 2023, ranging from $500 to $36,560.[14] Regular withdrawals were also made, returning your balance to $0.00 at varying intervals.
[13]This was large in scope, multiple premises were used, a significant number of activities and movement of goods and preparations were necessary and had to be co-ordinated.
[14]A total of 16 deposits were made totalling $179,647.20
95The offending can be rightly described as serious in light of the above analysis.
96General and specific deterrence, just punishment, denunciation and the protection of the community loom large in this sentencing exercise.[15]
[15]See eg. Djordic v The Queen [2018] VSCA 227, [68]; Arico v The Queen [2017] VSCA, [321].
97In Nguyen v The Queen,[16] Priest JA and Coghlan JA quoted with approval the following passage from Dawid v DPP:
The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs, that attracts people, such as the applicant, to engage in this type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.5
[16] [2017] VSCA 262.
98As I said earlier, trafficking in a commercial quantity of a drug of dependence is what is known as a Category 2 offence. Rightly, the offender did not, that being you, rely on any of the exceptions in s5(2H) of the Sentencing Act 1991.
99Even if I was to find that a s 5(2H) exception existed, this does not automatically result in the imposition for instance of a combination sentence or a non-custodial sentence. The Court must still impose a sentence that is appropriate in all the circumstances.
100The concession made very sensibly by your Counsel is that that involves a head sentence and non-parole period.
Current sentencing practices
101I was not taken to any specific authorities when it comes to trafficking in a commercial quantity of drugs, or trafficking drugs in large quantities generally for that matter. [17]
[17]Other than in passing a reference to a case Mr Nikakis was involved I before Judge Quin of this Court on 14 Feb 2025.
102I have familiarised myself with current sentence practices, in so far as I can discern them from a review of the most recent Sentencing Snapshot,[18] and the useful collation of relevant cases provided by the Judicial College.[19]
[18]SAC April 2022, number 268
[19]7.3.1.1 Court of Appeal sentence overview (commercial quantity) and 7.3.1.2 summaries since 2020, 7.3.2, County Court overview of same and 7.4.1.1 Court of Appeal sentence overview (trafficking) and 7.4.1.2 summaries since 2020 and 7.4.2 County Court overview of same .
103It is clear that stern sentences are usually imposed for such offending, especially where the quantum of drugs is high, there is a high degree of sophistication to the operation and the offender's role is quite advanced or active, as it is here. The sentence I impose will be no different.
104Charge 2 will of course attract the highest sentence, which will be designated as the base.
105There will be a measure of cumulation imposed on Charges 1 and 4 to reflect that they are discreet trafficking offences, involving large amounts of drugs trafficked (over different times and at different properties). I do not see any reason, given the quantities and substance involved, and the consistency of your role, to impose different sentences on Charges 1 and 4. As I said, each will be the subject of orders for cumulation on the base as well.
106The Court of Appeal made clear in Mitchell v The Queen,[20] separate acts of trafficking — or possession — of different drugs must be treated as involving separate criminality, the seriousness of which will be assessed separately for each drug. This principle will be reflected in the sentence I have imposed.
[20][2016] VSCA 321, [27].
Possession of equipment offence
107The possession of the press can be properly seen as part of your 'hands on' role in the trafficking enterprise in the way I have described above.[21] There will be substantial concurrency imposed with respect to that count.
[21]See paras [42] and [45] of these remarks.
Other drug offences
108Charge 5 is rolled-up, that is it involves a variety of drugs, different in type and quantity, that were discovered at two locations. That is:
(a) 0.5g heroin, and 2.0g MDMA, located in the Fort Knox Storage unit; and
(b) 1 gram of MDMA, 1.3g of methylamphetamine and 0.5g of heroin, located at Danzig Court, Kalkallo.
109This offending carries a five-year maximum. Your possession of these drugs appears consistent with your own drug abuse. I will impose a modest, totally concurrent sentence for that offending.
Related summary offences
110The related summary offences are minor and punishable only by a fine. They are not associated with any other criminality from what I can discern.
Rolled up charges
111Charge 4 is rolled up, as is Charge 5; that is to say the charge is constituted by what would otherwise be a collection of identifiable charges bundled together in a single one. Rolled-up charges also require the offender's agreement and are only for the purpose of a guilty plea. They simplify my task and work to the benefit of an accused by allowing multiple instances of similar offending to be dealt with as a single charge. That is obviously the case here, and it confirms the cooperative approach that you have taken when resolving the matter.
112When sentencing on a rolled-up charge, I must consider all the circumstances of the offence and the offender including if the offending was carried out over an extended period, or victimised multiple persons and the totality of the harm described in the charge.
113While the Court may consider all the relevant circumstances of a rolled-up charge, the pleading, as it is here, must still be treated as presenting one single charge. The maximum penalty is limited to the maximum for that single charge.[22]
[22]R v Beary (2004) 11 VR 151, 157 [14].
114I have had regard to those principles.
Parity
115Dang's death has come about by his own ingestion drugs in prison, which apparently exploded whilst in his system. This obviously does not change his status as the prime mover in this offending.
116Chau To was charged with two charges of Trafficking a Drug of Dependence regarding items found at 35A Hutchinson Street, Albion.
117On 6 June 2024, Judge Doyle of this Court sentenced her to:
(a) 9 months imprisonment on the trafficking charge;
(b) 3 months, to be served concurrently, in relation to the proceeds of crime charge; and
(c) 7 days in relation to the unlawful possession of a weapon plus a CCO of 15 months upon her release.
118On those facts alone, no argument could seriously be made on your behalf that your sentence should somehow align with hers. Your role and culpability appear to be in my view many magnitudes higher than hers.
Plea of guilty
119You pleaded guilty at committal stage.
120This plea is an important sentencing factor, and you are entitled to a meaningful sentencing discount. It demonstrates a willingness to accept full responsibility for your offending and to facilitate the course of justice as well as demonstrating a degree of remorse. The savings to the community are noteworthy.
121You are the first person involved in this offending to plead. It is unclear whether or not others may follow suit after you are sentenced, but that is beyond your control and beyond the scope of my considerations as far as this sentencing exercise goes.
122The principles establishing a more pronounced sentencing discount in accordance with Worboyes[23] have diminished over time. It is not the principle of a plea of guilty during the pandemic that are so much apposite here, but rather that you were taken into custody in July 2023, and the notification sent by this Court that in effect the backlog had cleared to some extent after the pandemic, was not until October 2023. Your plea was well after this, but I acknowledge for a few months, in the first part of what will be a substantial sentence, you were the subject of quarantine (or a series of unsettling quarantines as you were moved around), and the prison system was less resourced than it usually was. You are now at Fulham.
[23]Worboyes v The Queen [2021] VSCA 169, [39].
Deportation
123The prospect of deportation may be mitigatory where the prospect of deportation (and its impact) is certain, or where deportation and its adverse effects are probable.
124The relevance of this twofold:[24]
(a) it may be relevant to the hardship that would be felt by an offender, uncertain as to whether at the end of his sentence, he will be required to uproot himself, and return to his country of origin; and
(b) it may be additionally punitive because they have lost the opportunity to settle permanently here.
[24]See Guden v The Queen (2010) 28 VR 288, Konamala v The Queen [2016] VSCA 48 and Da Costa Junior v The Queen (2016) 307 FLR 153
125Other than the nature of the offending, and the sentence to be imposed, you cannot point to any matters – such as notification of a cancellation of your visa or any other communication from the Department of Home Affairs – to show that deportation is probable.
126
Whatever the state of affairs are, it adds to a measure of uncertainty and suffering. You have few relatives or contacts left in Vietnam, having lived here for the past 20 years. You may be moved away from your children. You do not appear to have any particular vocational skills to fall back on either. I take into account the effect such uncertainty will have on you during your sentence. The prospect of deportation is of course no reason for me to decline to fix a
non-parole period.
Totality
127I am mindful of the significance in this case of the application of the principle which requires me when sentencing you for multiple offences to ensure that the aggregate term I impose is a just and appropriate measure of the total criminality involved.
128There must be an appropriate relativity between the totality of all criminality and the totality of the effective length of the sentence. That is true when I consider the interaction between the many charges on the indictment.
129I have determined an appropriate length for each charge, taking the applicable sentencing considerations into account and designated the highest term being the base sentence, and then determined the extent to which there should be any cumulation regarding each count, and finally stood back and considered in light of totality what the appropriate sentence should be.[25]
[25]Norman v The King [2023] VSCA 213 [54]-[55].
Specific deterrence and prospects of rehabilitation
130You need to be specifically deterred from re-offending. I find your prospects to be very guarded but not extinguished.
131Historically, you have not taken advantage of sentences designed to supervise and assist you. You are not being punished again for previous offending, but the previous offending weighs quite a deal in the sentencing synthesis when assessing your prospects.
132Gambling has caused problems in your life before, and though you have not offered to support specifically to deal with that issue, you have been offered opportunities by way of community-based penalties to assist in your reform and it does not appear that you have benefitted from them.
133Your counsel says that you are committed to being in a good frame of mind whilst in custody and there is no doubt courses in prison that may curb your appetite for gambling, or drugs or other means of self-destruction. In large part, your reform is up to you. I am told that you have not produced any dirty urine samples in custody and have not been involved in any incidents in prison that would reflect poorly on your prospects for reform.
Protection of the community.
134The Court is obliged, as far as it can, to impose a sentence that enhances your prospects for reform.
135I refer to the comments made by the Court of Appeal in DPP v Malikovski[26]
There is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime. The prospect of an offender being rehabilitated represents the best hope for the community that the person will never again engage in [that case, Malikovski] violent behaviour.[27]
[26][2010] VSCA 130 at [51].
[27]Notwithstanding this is not violent offending the principle is still obviously sound.
Parole
136I am aware that you have spent a significant amount of time in prison so far, that being approximately one year and nine months.
137I will fix a non-period for you as I have noted in my early part of these remarks. You will require supervision, monitoring and assistance upon release. In affixing an appropriate sentence for you and allowing for a parole eligibility component, I had regard to the principle of parsimony; that is, the requirement not to impose a sentence more severe than that which is necessary to achieve the purposes for which sentences are imposed.
138The purpose of parole is to provide for the mitigation of punishment in favour of reform through conditional release when appropriate. A non-parole period is the minimum time I determine that justice requires you must serve, having regard to all of the circumstances. I have attempted to give you what I would call a meaningful parole period – that is to say the potential for you to be supervised in the community if the Adult Parole Board consider this appropriate in order to facilitate your reintegration into the community.
139You may be in a position to re-enter society and contribute to it in the future. A sensibly structured sentence would serve the interests of the community in minimising the risk of further offending following the completion of your sentence. [28]
[28]Mohamed v The Queen [2022] VSCA 136 [66].
SENTENCE
140After having carefully considered, balanced and weighed all of the relevant sentencing considerations, I have decided to convict you on each charge and sentence you as follows, in accordance with the accompanying chart.
#
Charge
Sentence
Degree of cumulation on base on each other
1
Traffick Drug of Dependence
2 yrs 9 m
9 months
2
Traffick Commercial Quantity (Heroin)
5 yrs 2m
Base
5yrs 2 months
(62 months)
3
Possess Equipment for Trafficking Drug of Dependence
14 months
4 months
4
Traffick Drug of Dependence
2 yrs 9m
9 months
5
Possess Drug of Dependence
4 months
Concurrent
RSO 4
Possess explosives/fireworks unlicensed
Convicted and fined $500
$500
RSO 6
Possess ammunition without a licence
Convicted and fined $1000
$1000
TES: 7 years (84 months)
NPP: 5 years (60 months)
$1500 fine
141To be clear, it is my intention to sentence you to a total effective sentence of seven years with a non-parole period of five years.
PRE-SENTENCE DETENTION
142You have presently served 619 days in custody and that figure will be declared under s18 of the Sentencing Act1991 as time having been served under this sentence.
s.6AAA
143But for your plea of guilty, Mr Pham, I would have sentenced you to a total effective sentence of nine years with a non-parole period of seven years.
OTHER ORDERS
144The applications made by the Crown for a disposal order and a forfeiture order will be granted.
145MR NIKAKIS: As Your Honour pleases.
146MR COULTER: As Your Honour pleases.
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