Director of Public Prosecutions v Phan

[2023] VCC 1842

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CR-22-00487

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID PHAN

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	20 August, 28 August and 12 October 2023
DATE OF SENTENCE:	12 October 2023
CASE MAY BE CITED AS:	DPP v Phan
MEDIUM NEUTRAL CITATION:	[2023] VCC 1842

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                  Sentence – Pleas of guilty – Trafficking drug of dependence (Charge 1 State offence) – Attempt to import marketable quantity border-controlled drug (Charge 2 Commonwealth offence) – Destroy or damage property (Charge 3 State charge) – Possess drug of dependence (Charge 4 rolled-up State offence) – Summary charges – Possess prohibited weapon without exemption or approval (Charge 9) - Commit indictable offence whist on bail (Charge 12) – Co-accused – Parity – Co-accused’s idea to attempt importation – This accused substantial role in bankrolling attempted importation – Features which separate respective roles in offending – This accused trafficking offending over fairly substantial period of time – Actively involved  as sole operator of street level trafficking business – Use of false identities and the dark web – Accused prepared to distance himself from offending - Relevant criminal history but not previously committed trafficking or attempted importation offences  – History of entrenched drug addiction

Legislation Cited:           Drugs Poisons and Controlled Substances Act 1981; Crimes Act 1958 (Cth)

Sentence:  Convicted of all offences.

Sentence (Charge 2 Commonwealth offence) 2 years and 6 months’ imprisonment to commence on 12 October 2024 but to be released forthwith upon giving security by recognisance in the sum of $5,000 to comply with the condition of being of good behaviour for 3 years.

Sentence on all State indictable and summary offence – Total Effective Sentence of 10 months’ imprisonment – 545 days’ pre-sentence detention declared as part of the sentence imposed – s.6AAA Sentencing Act 1991 declaration.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms G. McMaster	Solicitor for the Office of Public Prosecutions
For the Offender	Ms J. Willard	Emma Turnbull Lawyers

HER HONOUR:

1David Phan, you have pleaded guilty to one charge of trafficking in a drug of dependence; one charge of attempting to import a marketable quantity of a border‑controlled drug; one charge of destroy or damage property and one rolled-up charge of possessing a drug of dependence.

2Trafficking in a drug of dependence has a maximum penalty of 15 years' imprisonment; attempting to import a marketable quantity of a border-controlled drug has a maximum penalty of 25 years' imprisonment; destroy or damage property, has a maximum penalty of 10 years' imprisonment, and possessing a drug of dependence has a maximum penalty of five years' imprisonment.

3You have also pleaded guilty to the summary offences of possessing a prohibited weapon without exemption or approval (Summary Charge 9) and committing an indictable offence whilst on bail (Summary Charge 12).  The maximum penalty for possessing a prohibited weapon is two years' imprisonment and for committing an indictable offence whilst on bail – three months' imprisonment.

4In sentencing you, I must factor in the maximum penalties, as these reflect the seriousness with which the relevant Parliament regards the offences you have committed.

5You entered pleas of guilty to the offences before me after a sentence indication hearing, where I said I would sentence you to a recognisance release order in respect of charge 2, where the immediate term of imprisonment reflected time served as at the date of sentencing you, with sentences on the State matters also enabling your immediate release upon sentencing. 

6The agreed facts are as follows:

7I was told that Charge 1, trafficking in a drug of dependence, related to trafficking heroin and methylamphetamine.  In July 2020, Victoria Police commenced an investigation into the trafficking of methylamphetamine and heroin in the Footscray area, focusing on drug-trafficking activities, including your drug-trafficking activities.

8One aspect of the investigation was a telephone-intercept warrant on mobile telephone communication services used by you. On Friday, 11 September 2020, a telephone-intercept warrant was obtained for phones used by you and, between 11 September and 18 November 2020, investigations monitored your telephone services. A review of all telephone-intercept transcripts established that, between these dates, you trafficked not less than trafficable quantities of heroin and methylamphetamine.  The relevant 'chats' were set out in Appendix 1 to the agreed facts. I have read that appendix, which records a number of conversations between you and others in relation to purchasing drugs from you. The conversations recorded indicate that you were actively engaged in trafficking, communicating with others to that end on one occasion on 12 September 2020, four occasions on 13 September, one occasion on 2 October, two occasions on 3 October, one occasion on 7 October, one occasion on 11 October, 15 October, 8 November and 10 November, two occasions on 11 November and two occasions on 14 November. 

9Charge 1 also includes evidence that approximately 1 gram of heroin was sold to Mr Reece Whitworth on 7 October 2020 – the heroin was seized by police when Mr Whitworth was arrested and found to be in possession after having visited you that day.  Further, quantities of methylamphetamine were seized from you on 18 November 2020 upon execution of a search warrant at your residential address as follows:

·          A total of three zip-lock bags containing methylamphetamine with a combined weight of 0.9 grams found in a white box on a table in the garage.

·          A plastic bag containing 3.4 grams of methylamphetamine found concealed in a cigarette packet inside a locked safe in the garage.

·          A total of 0.4 grams of methylamphetamine which was found in your car.

10The charge of trafficking is put on the basis that there was regular trafficking of heroin and methylamphetamine during the charged period. As this is a statement of agreed facts, you agree that this was the case, and I sentence you on that basis.

Charge 2 – Attempt to import a marketable quantity of a border-controlled drug between 17 October to 9 November 2020

11Charge 2 relates to the attempted importation of 28 grams of heroin.  Further examination and review of all telephone-intercept material established that you and Mr Whitworth attempted to import 28 grams of heroin from the dark web; however, the heroin was never sent or received.  The relevant chats were set out in Appendix 2 to the agreed facts and established that:

(a)   Attempts were made to import 28 grams or one ounce of heroin, in that a vendor was contacted and an order was made;

(b)   Money received from you was sent by Mr Whitworth to purchase the heroin from the vendor.

(c)   The heroin was never sent or received; and

(d)   Mr Whitworth and you formed the view that you had been scammed by the vendor.

12Mr Whitworth provided a statement in relation to your drug-trafficking activity, in which he said: 

(a)   that he, Mr Whitworth, came up with the idea to import heroin via the dark web and sought your involvement, as you had the money to fund the importation;

(b)   that you gave him $3,000 to pay for the importation of the heroin on the basis that he organised it and you would receive 10 per cent of the heroin as payment for doing so;

(c)   further, that you wanted to import the heroin over the dark web because heroin had become very expensive in Australia due to COVID-19 travel restrictions and you intended to sell the imported heroin;

(d)   that Mr Whitworth paid $3,000 for importation of the heroin, but was subsequently threatened and asked to pay $1,000 more, which he received from you and paid; and

(e)   that after he did not receive the heroin, he realised that he had been scammed by the vendor.

13Heroin is a border-controlled drug. The threshold for a marketable quantity is 2 grams and for a commercial quantity,1500 grams.  Therefore, the quantity which you attempted to import was fourteen times the threshold for a marketable quantity. Your offending in attempting to import the drug occurred between 17 October and 9 November 2020, as reflected in the telephone intercept evidence.  I have read the various conversations in Appendix 2 and it is obvious that you are an enthusiastic participant in the scheme and were prepared to bankroll this.  I will make some further remarks in relation to this offending in due course.

14The basis for Charge 3, destroy or damage property, is that, on 21 October 2020, you called a female and told her you were planning to go to an address in St Albans and spray paint on the fence 'unit 3 pay your debts'.  On 22 October 2020, you called a male and said 'you just missed some funny action, I went to Tram's aunty's house and spray painted "dealer in Unit 3 pay your debts”'.  At 7.15 pm, investigators attended this address and observed your 'handiwork' – a stencilled spray-painted message read, 'dealer in unit 3 pay your debts' on an electrical box near the mailboxes of the address.

15The basis for Charge 4, which is a rolled-up charge of possess drug of dependence is that, on 18 November 2020, Victoria Police executed a search warrant on your house in Footscray.  A large number of items were seized, including the following:

16Three vials of diazepam with a combined weight of 0.9 grams, which was found in a white box on a table in the garage and two vials of xylocaine, with a combined weight of 4.2 grams, which was found in a drawer in the garage 

17Police also seized 100.4 grams of pseudoephedrine from a safe in the garage.  This gives rise to rolled-up Charge 4.

18Also found was a flick knife and double-edged knife, these were seized from the garage, giving rise to Summary Offence 9.

19You were arrested and taken to Altona police station, where you took part in a record of interview. You made no comment.

20You were subsequently remanded in custody on 18 November. You had been on bail for charges dating from 24 February and therefore you have also committed the offence of committing an indictable offence whilst on bail.

21You made an application for bail on 15 January 2021 (first bail application). This application was refused.  You made a further application (second bail application) on 22 March 2021, and you were released on bail into the care of a drug-treatment facility on 8 April 2021. 

22On 5 March 2022, you were charged with further offences committed whilst on bail following the second bail application and you were remanded in custody. On 28 March 2022, you made a third bail application, but bail was refused.

23On 6 May 2022, you were sentenced for charges that you had been on bail for as at 18 November 2020 and for further offending after you were released on bail and you were sentenced to six months' imprisonment on that date.  You made a fourth application for bail on 15 June 2023, but bail was refused, and the sentence indication hearing was listed.

24Mr Phan, your offending for which I now sentence you, is serious and warrants a punishment which is just in all of the circumstances.  Your conduct must be appropriately denounced.

25For State offences, I must impose a sentence which is just in all of the circumstances.  In relation to the Commonwealth offence, I must impose a sentence that is of a severity appropriate in all the circumstances of the case. In doing so, I must take into account the non-exhaustive list of matters in s16A(2) of the Crimes Act 1958 (Cth).

26In relation to the Commonwealth matter, Charge 2 on the Indictment, I have had regard to the maximum penalty for this offence, bearing in mind that this is a yardstick for comparison between the case before me and the worst case.  I should have regard to the maximum penalty in determining the degree by which your conduct offends against the legislative objective of suppressing the importation and trafficking of prohibited drugs[1].

[1] (insert authorities from footnotes 3 and 4 in prosecution submissions)

27In assessing the seriousness of your offending, in relation to the drug trafficking in which you engaged, this included being in possession of drugs for sale.  Although the quantities involved were not the largest that the courts have seen, you were actively engaged in trafficking drugs over a fairly substantial period of time and it is to be noted that as it has been pointed out, that the exact quantity has not been ascertained.  I must not speculate about that and I do not.

28In relation to the attempt to import heroin, I have already noted that you were prepared to import fourteen times the marketable quantity threshold. The prosecution concedes that the attempted importation was in respect of a relatively small quantity, however, in my view, it is still fairly significant.  Also, your attempt to import occurred over a fairly substantial period of time and it is evident that you were prepared to source drugs elsewhere when you discovered that you had been scammed.  Although I understand you have struggled with drug addiction, clearly the attempted importation was also for profit and you had the capacity to bankroll this, providing Mr Whitworth with $3,000 in order to purchase the heroin.  While this offending is not the most sophisticated, it did involve the use of false identities, the use of the dark web and it appears to me that you were prepared to distance yourself from your activity, prepared for Mr Whitworth to deal with the vendor and have him use his name and address, rather than your own.

29I also regard the damage property offending as a nasty example of that offence, where you were prepared to damage the premises of another in such a way that might well have attracted unwanted attention to those residing there.  You seemed to think this was amusing, which concerns me about your moral compass, even more so, although preparedness to traffick drugs and import them reflects poorly on this in any event.

30In sentencing you, I take into account your criminal record, as follows:

(a)   On 6 July 2009, you were convicted of possessing a dangerous article in a public place and refusing or failing to state name and address. You were fined an aggregate of $900;

(b)   On 20 June 2016, you were dealt with in the Magistrates' Court in respect of one charge of intentionally cause injury. On appeal to this court on 15 August 2016 an appeal was allowed, however the sentence recorded in the appeal appears to be the same, whereby a sentence of eighteen months' imprisonment was imposed, with a non-parole period of twelve months. However, as the learned prosecutor pointed out, 56 days of pre-sentence detention was declared at that time.

(c)   On 15 July 2019, you were fined $500 without conviction for possession of methylamphetamine;

(d)   Subsequent to the offending before me, on 6 May 2022, in the Magistrates' Court, you were dealt with for two charges of possessing a prohibited weapon without exemption or approval, intentionally causing injury, two charges of possessing methamphetamine and possess heroin, as well as dealing with property suspected to be proceeds of crime, committing an indictable offence whilst on bail and contravening a conduct condition of bail.  In relation to the first two-mentioned offences, you were convicted and sentenced to an aggregate term of six months' imprisonment concurrent, and you were fined an aggregate sum of $2,500 in respect to the other offences.

31Your criminal history is not overly lengthy, however there are some matters which are relevant to the offences for which I now sentence you, although you have never committed the offence of trafficking drugs or attempting to import a border‑controlled drug before.

32The most serious offences before me are the attempt to import and trafficking charges and in particular I must say, the attempt to import charge.  In relation to the trafficking charge, it appears that you were the sole operator of a street-level trafficking business.  Whilst you were addicted to substances yourself, as previously noted, your motivation was also for profit. In such circumstances I find that your moral culpability is high.

33In relation to the attempt to import offending, you were actively involved in this, although I note that it was Mr Whitworth who said it was his idea to attempt to access the heroin. However, you were prepared to bankroll the attempted importation, and as I say were actively involved, albeit from a distance. As I understand it your motivation for being involved in this attempt was because the cost of heroin in Australia was very high at that time.  Whilst it might have been Mr Whitworth's idea to import the heroin, I find that you had a substantial role in bankrolling and overseeing this, and you stood to profit if the importation had occurred.  Again, in relation to this particular offence I find your moral culpability is high.

34In assessing your moral culpability, I have factored in that you were addicted to drugs.  However, this is not a mitigatory factor as such. If you were not addicted to drugs and were engaging in the conduct that you did purely for profit, then your moral culpability would have been even higher.

35In sentencing you, I allow for a fairly significant discount in the sentence you would otherwise receive, although this would have been a good deal greater had you pleaded guilty at an earlier stage.  You conducted a contested committal hearing, which is your right and you are not to be punished for that.  However, the witnesses were not spared the time and trouble of giving evidence at that hearing, and the community was not spared the time and expense of these proceedings.  However, you entered pleas of guilty following a sentence indication in this court, weeks before your trial was due to start. By entering pleas of guilty at this stage, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings. You also made a contribution to the backlog of trials in this court.  due to the pandemic, and I am required to provide a palpable reflection of this in my sentence.

36Your remorse or contrition for your offending is not evident from much I have seen in materials tendered on your behalf, I must say. I accept that you experience guilt and shame in relation to what you have done; however, it is to be hoped that you develop appropriate remorse and insight as to how your offending behaviour might well have impacted others or else had the potential to do so.

37In sentencing you, I take into account your personal circumstances:

38You are 33 years old, and you lived with your mother before being remanded.  Your parents were born in Vietnam and lived as refugees in Malaysia before being allowed to come to Australia. You were born in Vietnam but came to Australia when you were very young. Your parents owned and operated a restaurant in Traralgon for many years during your childhood, despite the fact that your family moved around a good deal.  You were not exposed to domestic violence, child abuse, or substance abuse when you were a child. You have a twin brother.  Your parents separated when you were in high school, and you have had no contact with your father.

39You and your brother frequently changed schools due to your parents moving around. You attended various primary schools around the State, then attended a private boarding school in Melbourne when you were in Year 7, which you found difficult. You then completed Year 8 at another secondary school in Gippsland, and after you attended a college in Gippsland for the remainder of your education, including VCE.

40You have a fairly solid work history.

41Initially you worked in your family restaurant from when you were 16 until you finished high school.  When you finished school, you enrolled in a Bachelor of Arts degree.  However, you withdrew after studying for one year, feeling that you needed to work to support yourself. You then commenced an apprenticeship as a boilermaker, but had to stop midway through, as your employer went broke.  You then obtained your security licence and worked as a security guard for five years.  After this you commenced a carpentry apprenticeship; however, your employment was terminated when your employer found out you had been charged with criminal offences.

42You started drinking alcohol when you were 17 years old.  In your twenties, you started using methylamphetamine. At the time of the offending before me, you were smoking almost one gram of ice per day.

43You have had one romantic relationship, having been with your ex-partner for four years and you have a four-year-old child.

44In sentencing you, I factor in that the majority of your time on remand was spent during the height of the COVID‑19 pandemic lockdowns, which made your experience of custody a most difficult one.  You had no access to courses, and you could not see loved ones. There was a good deal of uncertainty about how you would be impacted by COVID‑19 whilst in prison, which, I understand, was a source of anxiety for you.

45I was told that on 22 March 2021 you were granted bail and released into the care of The Cottage in Shepparton on 8 April 2021.  During this time, you did extremely well, as the report from the CEO, Ms Hutchison, stated. As your counsel, Ms Willard, submitted in her written submissions, the report reveals that you were committed to your recovery and provided supervised weekly urine screens, all of which were clean. You were a valued member of The Cottage community.  For the first three months of your stay you could not leave the facility without a supervisor.  You remained committed and complied with this condition. It is evident that your son, Archie, was a motivator for you to complete the program, and you did so, completing the program on 29 July 2021. You stayed for a further month as a mentor.  You then left the facility in August 2021.

46In sentencing you, I have allowed some credit for this period of 4 months in residential rehabilitation as it was a restriction on your freedom, carrying with it, some punitive aspects.

47After leaving The Cottage, you completed a further period of four-weekly Zoom appointments. You were then exited from treatment.

48In your counsel's written submissions, she said that in October 2020 your partner of four years ended the relationship, and you were unable to see your son. Child Protection was involved, and this caused you to relapse into drug use.

49Concerningly, on 5 March 2022, you were remanded in custody once more, after committing a further offence, being that of intentionally causing injury. You have remained in custody from this time, serving a six-month jail term along the way.  I note that in your criminal record the matter appears to have been dealt with on 6 May 2022, together with matters, other charges or offences that you committed at an earlier stage, and I have referred to that previously.  As at that time pre‑sentence detention was declared as being 62 days. 

50I understand that you started pharmacotherapy about nine months ago.

51In assessing the seriousness of the drug trafficking charge, I have factored in that it endured for a five-week period, and that you were dealing at street level, appearing to run your own business of a rather rudimentary nature, rather than being part of a more sophisticated drug syndicate.  I have also factored in that the quantities trafficked appear to be at the lower end, in so far as I can tell, and that you had an entrenched drug habit at the time, using funds to help support this.  It was submitted that there is no evidence of enrichment. However, it appears that you had a fairly substantial sum at your disposal to bankroll the attempted importation, and that your motivation in the trafficking and attempted importation was also to make a profit, as I have said.  However, I accept that you were not leading a lavish lifestyle at the time.

52In relation to the attempted importation, I accept the quantity that you were seeking to import was not the largest that the courts have seen, and the offending was not particularly sophisticated, although it did employ the use of the dark web, and you were at arm's length from the person attempting to import the substances. Obviously, it was not so sophisticated that it could not be detected by authorities.  However, that appears to be due to the fact that your phone was being intercepted at the time.  I also accept that this offending was not part of some sophisticated syndicate.

53In sentencing you in relation to the attempted importation, I have factored in that your co‑accused was sentenced to 18 months' imprisonment and released on a recognisance release order after serving 225 days. A feature which separates your situation from Mr Whitworth is that he made a statement to police, and I understand he was prepared to be a witness in proceedings against you.  Although, he was yet to give an undertaking to give evidence. Also, he pleaded guilty at an early stage, in contrast to you and as I understand it, he did not conduct a contested committal.  These matters certainly separate his situation from yours.

54I have already spoken of your respective roles in relation to the offending, and, although it was his idea, I find that your roles in the offending were fairly equal.  It appears that Mr Whitworth had a limited criminal history I have had regard to the sentence imposed in relation to the attempted importation in so far as Mr Whitworth is concerned.  However, you are in a more serious position than he overall, as you did not provide the same level of cooperation, and your plea of guilty came at a later stage, after a contested committal hearing, and not long before trial in this court.

55In cases involving drug offences, general deterrence is a weighty consideration.  I place strong weight upon general deterrence in your case to send a message to others in the community not to be tempted to behave as you have.  Drugs are a scourge on our society, and those prepared to help in their proliferation, such as you, ought be met with stern punishment.

56In view of your offending for which I now sentence you, your criminal record and subsequent matters, your battle with substance abuse, but also factoring in your efforts at rehabilitation, and your fairly limited criminal history, but also factoring in your reoffending whilst released on bail in relation to these offences, I assess your prospects of rehabilitation as being rather guarded.  I place fairly moderate weight on specific deterrence and protection of the community.

57The Crown submitted that the summary offence of committing an indictable offence whilst on bail was linked to the charges on the indictment and conceded that the sentence for this and the other offences should be concurrent.  I observe that breaching bail conditions is a separate offence, with separate elements, and may well warrant a measure of cumulation. However, I have accepted the concession made in your case.

58In sentencing you, I have had regard to the principle of totality, noting that as at the plea hearing date, you had been in custody for 727 days overall, with part of this time being attributable to the other matters to which I have referred.

59I have also had regard to current sentencing practice, noting that this is but one consideration, and not a controlling one.

60It was submitted by the Crown, and accepted by your counsel, that only a period of immediate imprisonment could adequately reflect all relevant sentencing considerations and the weight needed to attach to applicable sentencing principles. However, the Crown conceded that in your case a sentence which reflected the time in gaol you had already served would be sufficient, in terms of the period to be served immediately by way of a recognisance release order, and that State sentences ought be such that you are released immediately.  Unsurprisingly, your counsel did not seek to make an alternative submission in this regard.

61In all the circumstances, I am of the view that it is appropriate to impose sentence in accordance with these submissions – indeed, I indicated my preparedness to do so at the sentence indication hearing, advising all concerned that I would be sentencing you today rather than at an earlier stage. Having given the sentencing indication, your counsel obtained instructions to plead guilty, which is what you have done.

62You are convicted of each of the offences, and I sentence you as follows:

63In relation to Charge 2 you are sentenced to 2 years 6 months' imprisonment to commence today but you are to be released forthwith, upon you giving security by recognisance in the sum of $5,000, to comply with the condition that you are to be of good behaviour for 3 years. This means that you are to be released today but that if you commit any further offence within the next 3 years, then you will be liable to be brought back before me and you will be dealt with for breaching the recognisance release order, which may well mean that you are ordered to undergo a further period of imprisonment and to also pay $5,000. The Court can also fine you or vary the recognisance release order, depending on how serious the breach is.

64In relation to this recognisance release order, I have made the order because:

(a)   you have been charged with the Federal offence of attempting to import a marketable quantity of a border-controlled drug, and I have sentenced you to a term of imprisonment of 2 years 6 months, but I have decided that you are to be released forthwith if you comply with the conditions of this order.

(b)   I have imposed this sentence because of the seriousness of the offence that you have committed and to give appropriate weight to all relevant sentencing principles in this case.

65In relation to the State offences, you are sentenced as follows:

66Charge 1 on the indictment: 10 months' imprisonment.

67Charge 3: 3 months' imprisonment.

68Charges 4 (rolled-up charge) 1 month’s imprisonment.

Summary offences:

69You are sentenced to 3 months in respect of possessing a prohibited weapon and 6 weeks imprisonment in respect of committing an indictable offence whilst on bail.

70All sentences imposed in respect of the State matters are to be served totally concurrently, producing a total effective sentence in respect to the State matters of 10 months' imprisonment.

71Pre-sentence detention in respect of the Commonwealth matter and the State matters is 545 days in each case, which I declare as having already served.

6AAA declaration

72If not for your pleas of guilty I would have sentenced you to 4 years' imprisonment to commence today with a non-parole period of 3 years in respect of the Commonwealth charge, and I would have sentenced you to a total effective sentence of 22 months' imprisonment with a non-parole period of 16 months.

73Now is there anything arising from any of those sentencing remarks?

74MS McMASTER:  No, thank you, Your Honour.

75MS WILLARD:  No, Your Honour.

76HER HONOUR:  No, all right. Now in terms of the machinations for the signing of the recognisance release order, that will be attended to over the airwaves, is that right?

77MS McMASTER:  I assume it will be coordinated through the prison, yes, Your Honour.

78HER HONOUR:  All right, yes, very well because the recognisance release order has to be signed.  So perhaps I should just check with Mr Phan.  Mr Phan, you have heard that there is a recognisance release order that I have imposed upon you and that involves you being sentenced to a term of imprisonment of 2 years and 6 months, but that the sentence that you have already served means - and that is the pre-sentence detention in this case of 545 days has already been served - and so that means that you will be released today.  You have heard what has been set out by me about what the recognisance release order means and I have explained the purpose and effect of the order; the consequences that can follow if, without reasonable excuse, you fail to comply with the order; and that the order can be discharged or varied.

79And also I ask that you would consider whether you consider yourself bound in accordance with the order and agree that you have been given - you cannot agree that you have been given a copy of the order - but agree that you are to be given a copy of the order, as counsel have indicted.

80So do you agree with all of those matters, Mr Phan, that I have just set out to you.

81OFFENDER:  Yeah.

82HER HONOUR:  All right, well look I just wanted to get some sort of acknowledgement over the airwaves, because he is not here, Mr Phan is not here in court, but I will sign the necessary documents and he will be provided with the necessary documentation, as well.  All right, is there anything further counsel?

83MS WILLARD:  No, Your Honour.

84MS McMASTER:  No, thank you, Your Honour.

85HER HONOUR:  Very well. Did you want to have a word with your client before we finished the link?

86MS WILLARD:  Yes, thank you.

87HER HONOUR:  All right.  It will just have to be fairly brief.

88MS WILLARD:  I will.

89HER HONOUR:  That's fine.

90MS WILLARD:  I'll just make sure he understands everything.

91HER HONOUR:  Yes, thank you very much.

92MS McMASTER:  Your Honour, there were just the destruction and retention of property documents.

93HER HONOUR:  Yes.

94MS McMASTER:  But they can be sent to the associate.

95MS WILLARD:  And they're by consent.

96MS McMASTER:  Yes.

97HER HONOUR:  Yes, very well. Well I will make those ancillary orders that are sought and agreed to.  All right.

98MS McMASTER:  Thank you, Your Honour.

99MS WILLARD:  Thank you.

100HER HONOUR:  We will now adjourn.

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