Director of Public Prosecutions v Pham

[2022] VCC 1175

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
  Suitable for Publication

CR-21-02591

DIRECTOR OF PUBLIC PROSECUTIONS

v

DUC TINH PHAM

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	20 July 2022
DATE OF SENTENCE:	21 July 2022
CASE MAY BE CITED AS:	DPP v Pham
MEDIUM NEUTRAL CITATION:	[2022] VCC 1175

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW -  Sentencing.

Catchwords:              Plea of guilty – Trafficking in a commercial quantity of a drug of dependence – Deal with property suspected proceeds of crime – No prior criminal history - Genuine remorse – Delay – Very strong prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 d 71AA(1); Crimes Act 1958 s 195; Sentencing Act 1991 ss 6AAA, 18.

Cases Cited:The Queen v Falzon (2018) 264 CLR 36; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Imprisonment for a period of 4 years with a non-parole period of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Teo	Office of Public Prosecutions
For the Accused	Mr J Dickinson QC	Melasecca Kelly & Zayler

HIS HONOUR:

Introduction

1Duc Tinh Pham, you have pleaded guilty to one charge of trafficking in a drug of dependence in a quantity that was not less than the commercial quantity, contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (the Drugs, Poisons and Controlled Substances Act), which carries a maximum penalty of 25 years imprisonment.

2You have also pleaded guilty to two related summary offences being two charges of deal with property suspected of being proceeds of crime contrary to s 195 of the Crimes Act 1958, which carries a maximum penalty of 2 years imprisonment (Summary Charges 14 and 15).

3You have no prior criminal history.

Circumstances of the offending

4A prosecution opening was tendered on plea and may be summarised as follows:

5At the time of this offending, you were 29 years old, and were residing in Craigieburn. You were the registered owner of a white 2014 Audi sedan.

6Intelligence was received by Victoria Police that your vehicle was of interest as it was returning from New South Wales.

7On Friday 16 April 2021 at approximately 7.40 pm, investigators from the Echo Task Force intercepted your Audi sedan at the Caltex Service Station located at 1340 Hume Freeway, Kalkallo.

8You were the driver of the vehicle. Your partner, Ms Hoang Tran, was seated in the front passenger seat.

9Detective Senior Constable Jordan Collinson (‘DSC Collinson’) searched the vehicle and located the following items:

(a)   one electronic cash counter in an air fryer box located in the boot of the vehicle; and

(b)   one plastic bag containing two blocks of pressed powder substance under the front passenger seat, covered by a blanket.

10Your black Samsung mobile phone was located in a holder on the dashboard of the car and seized.

11You were placed under arrest and conveyed to the City West Police Station where you participated in a ‘no comment’ Record of Interview.

12The white powder was analysed at the Forensic Services Department of Victoria Police Forensic Services Centre on 4 June 2021. The powder located in your vehicle was found to be 2001.7 grams of cocaine of 28 percent purity (560.47 grams pure).

13Pursuant to the Drugs, Poisons and Controlled Substances Act, a commercial quantity of cocaine is 250 grams pure or 500 grams mixed. A large commercial quantity of cocaine is 750 grams pure or 1.0 kilogram mixed.

14Cash in the amount of $2,570 was located in three separate wallets and purses in the car (Summary Charge 14).

15Your phone was interrogated by DSC Collinson and the following messages, spanning a period of approximately four to five days, were located within an encrypted messaging application:

(a)   discussion between you using the alias ‘dzny’ and another person with the alias ‘randummb’;

(b)   extensive discussion about mixing grams and ounces of unspecified product with ‘uncut’ product;

(c)   discussion about blocks of ‘rack’ with instructions of how much to break it down into for each customer;

(d)   photographs of plastic snap lock bags containing blocks of white coloured powder labelled with names of people; and

(e)   discussion where you ask ‘randummb’ whether he is available today to collect ‘300k’ and states that ‘we finally going to have a counter lmao’.

16A search warrant was executed at your residence in Cragieburn. Police located four assorted electronic scales in a drawer in the kitchen island bench, and multiple boxes of zip lock bags in the kitchen cupboards. Cash in the amount of $2,140 was located in a plastic container (Summary Charge 15).

Nature and gravity of the offending

17Trafficking in a commercial quantity of drug dependence is an inherently serious offence reflected in the maximum penalty of 25 years imprisonment.

18The cocaine found in your vehicle was just over 2 kilograms with a purity of 28 percent. Translated, the amount of pure cocaine was 560.47 grams. A commercial quantity of cocaine is 250 grams pure or 500 grams mixed. Thus you were in possession of two times the commercial quantity pure or four times the commercial quality mixed.

19Mr Dickenson QC, who appeared on your behalf, submitted that there is no direct evidence of your knowledge of the quantity or purity of the drug and therefore the conclusion to be drawn is that the amount trafficked should be viewed as close to the minimum quantity for a commercial quantity. Mr Teo, who appeared on behalf of the Director of Public Prosecutions, submitted that as the facts contained in the plea opening are not disputed, the surrounding circumstances are matters the court is able to take into account in assessing the gravity of the offending, including the cash counter, the encrypted text messages and the other accoutrements related to drug trafficking found at your home.

20In my view although you have pleaded guilty to trafficking on one day, the items found in your possession and the encrypted text messages do support the fact that you were in the business of trafficking. As was held in The Queen v Falzon,[1] a case involving trafficking on a single day, the fact that an amount of cash was found in the appellant’s home was held to be relevant circumstantial evidence, in conjunction with other indicia of drug trafficking, that the appellant was carrying on the business of trafficking. Further, in Falzon, the fact that the evidence may suggest the commission of other offences of trafficking did not make the evidence inadmissible as it was relevant to establishing the intent to sell.

[1] (2018) 264 CLR 361, [1], [40]-[44].

21However in this instance, as you have pleaded guilty to trafficking in a commercial quantity and do not dispute the surrounding circumstances as outlined in the plea opening, in my view the other circumstantial evidence related to trafficking does no more than fortify the fact that you were carrying on the business of trafficking and that you had the intention to traffick in at least a commercial quantity of drugs and in my view, is serious offending.

Personal circumstances

22You were born in Australia to Vietnamese parents and are the youngest of three siblings. Your parents came to Australia as refugees. You describe having a very close relationship with your siblings, and I note your sister, who is your senior by four years, has provided a character reference, tendered on the plea, which speaks to the supportive presence you have in her life and that of her daughter.

23Your mother worked as a seamstress until she was forced to retire after developing Carpel Tunnel Syndrome. You report a closer relationship with her than with your father, who was emotionally distance and at times ‘harsh and unpredictable’. You describe being afraid of him as a child. He worked for the same plastics company for 30 years and you recall he was either ‘always sleeping or away at work’.

24Your father could be punitive, making you and your siblings kneel on your knees on the floor for hours at a time and hitting you with plastic piping. In the years preceding your arrest for the current offending, your relationship with him deteriorated. This deterioration can be largely attributed to your discovery in 2019 of allegations of abuse made against your father by your sister. Your sister was removed and placed in foster care for a number of years when you were approximately ten to 12 years of age. You did not understand until 2019 that this was because of the abuse allegations, which were kept a secret from you by your parents and your sister in an attempt to keep the family together.

25You describe your father’s derogatory behaviour towards your sister during this time and that your mother enabled it. You were by this time an adolescent mixing with a negative peer group. You engaged in disruptive behaviour, including truancy. You started experimenting with alcohol at fifteen years of age and this escalated into a weekly pattern of binge drinking which remained unchanged throughout adulthood until you were 25 years old.

26You were ultimately expelled in year 11 after fighting with other students. You went on to complete year 12 at TAFE and stayed on to complete an Advanced Diploma in information technology over two years.

27In your early twenties, you obtained work as a labourer and started experimenting with ecstasy on the weekends. You believe this transition impacted your mental health and you began using cocaine more regularly. By 2017 or 2018 your use had increased to at least weekly use, and then to every other day. You continued to work in construction on and off again during this time. At the end of 2019, you went on a family reunion trip to Vietnam and upon return, your sister’s mental health rapidly deteriorated to the point where she ceased all contact with you and your brother. It was at this time that she disclosed the details of the abuse allegations to you. Upon returning to Melbourne, you ceased all contact with your father, who continued to accuse your sister of lying. 

28A report dated 8 July 2022 prepared by Luke Armstrong, Consultant Psychologist, was tendered on the plea. After assessing you on 29 June 2022, Mr Armstrong concluded that you present with features of a Dependent Personality Disorder and that at the time of your offending, you were likely suffering from a Stimulant Use Disorder and alcoholism. He is of the view that, whilst your sister’s disclosure did not directly cause you to escalate your cocaine use, a tumultuous childhood environment created within you a vulnerability which caused you to be predisposed to drug addiction later in life. Mr Armstrong further opines that your offending was motivated in part, by a need to fund your spiralling cocaine addiction. However, he is also of the view that effective treatment of your addiction through intensive outpatient care will reduce your risk of reoffending, noting that overall you have good rehabilitative prospects. Mr Armstrong noted that you present with both insight and motivation to engage in treatment upon release.

29A number of certificates were tendered in relation to courses you have conducted in custody and I was told at the plea that you work in the prison kitchen in addition to actively assisting new Vietnamese inmates.

30Six references were tendered from a variety of family and colleagues which I have taken into account. Each speak of your otherwise good character as a hardworking, caring and reliable person. As noted above, your sister speaks of the enormous support you have given her through many very difficult times. A previous employer states that he would offer you work upon your release to assist you in rebuilding your life.

Sentencing considerations

31Mr Dickinson highlighted a number of matters in mitigation.

32First is your plea of guilty. You offered to plead guilty to the charge on the indictment in November 2021. At that stage the offer was rejected and you proceeded to a committal hearing. In April this year the matter came before me for a case conference and two days later, you pleaded guilty to Charge 1. In the circumstances I accept that your plea was entered at the first reasonable opportunity. Your plea has saved the court considerable time and expense and has high utilitarian value, demonstrating your willingness to facilitate the course of justice.

33The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[2]

[2] Worboyes v The Queen [2021] VSCA 169 at [39].

34It was also submitted that you have demonstrated genuine remorse. One of the sources of that submission is the report of Luke Armstrong where he states that your remorse is genuine. You conveyed to Mr Armstrong that through participation in programs in custody, you have learned of the destructive consequences brought about by drug offending stating, ‘it forced me to realise how negative drug offending is .. it shocked me’. It is clear you have confronted your offending and have sought to put it behind you, appropriately recognising the impact it has had on you, your family and the wider community. In my view in the circumstances, I accept that you have demonstrated genuine remorse.

35As to your prospects of rehabilitation, where available in custody you have engaged in programs to address your drug use and to prepare you for life in the community once you have completed your sentence. You have no prior convictions and you have a strong support network including a partner who you wish to settle down with and start a family. It is also clear in the report of Mr Armstrong that you have a positive outlook and have taken advantage of all that is available to you in prison to assist you facilitating your rehabilitation. In my view your prospects of rehabilitation are very strong.

36Mr Dickinson referred to delay which in this case is not inordinate. Undoubtedly the fact that you ran a contested committal naturally prolonged the criminal process, however as was submitted, the committal assisted in resolving the matter. As I understand the submission, the period of delay, being 15 months between arrest and sentencing, is relied on to demonstrate your positive progress in custody and commitment to your rehabilitation, which I accept.

37I take into account that the time you have spent on remand had been more onerous than usual as a result of the pandemic. Personal visits are limited, programs are reduced and prisoners continue to experience periods of lockdown. Indeed you have recently contracted COVID -19, resulting in a period of isolation.

38Undoubtedly, general deterrence is the primary sentencing consideration in this instance. A message must continue to be conveyed in cases of this nature that people who traffick in commercial quantities of drugs of dependence will face significant terms of imprisonment. Denunciation of your conduct is also relevant. As to specific deterrence, for reasons outlined in relation to your prospects of rehabilitation, in my view specific deterrence should only carry limited weight in the sentencing calculus.

Sentence

39Mr Pham, would you please stand.

40Duc Tinh Pham, on Charge 1, trafficking in a drug of dependence in a quantity not less than the commercial quantity, you are convicted and sentenced to 4 years imprisonment.

41In relation to Summary Charges 14 and 15, dealing with property suspected of being proceeds of crime, you are convicted and sentenced to 2 months imprisonment on each charge which will be concurrent with Charge 1.

42I direct that you serve 2 years and 6 months before becoming eligible for parole.

43Pursuant to s 18 of the Sentencing Act 1991, I declare that 461 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.

44Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of 6 years imprisonment with a non-parole period of 4 years.

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