Director of Public Prosecutions v Quach
[2018] VCC 64
•8 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01358
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAI THANH QUACH |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2018 | |
DATE OF SENTENCE: | 8 February 2018 | |
CASE MAY BE CITED AS: | DPP v Quach | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 64 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Trafficking in a drug of dependence – Not less than a commercial quantity – Plea of Guilty
Legislation Cited: Sentencing Act 1991
Cases cited: R v Verdins (2007) 16 VR 269
Sentence: 6 years imprisonment with a non-parole period of 4 years imprisonment; 749 days pre-sentence detention; Section 6AAA declaration: 8 years imprisonment with a non-parole period of 5 years imprisonment; Forfeiture order; Disposal order; Forensic sample order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Ms D. Tang |
| For the Accused | Ms L. Ristivojevic | Ms S. Tricarico |
HIS HONOUR:
1 Hai Thanh Quach, on 1 February 2018, you came before me for plea in respect to Indictment G10229752, containing two counts of trafficking in a drug of dependence in not less than a commercial quantity. The drugs of dependence were, in respect of Charge 1, methylamphetamine, and in respect of Charge 2, pseudoephedrine.
2 The maximum penalty for trafficking in a drug of dependence in not less than a commercial quantity, is 25 years’ imprisonment.
3 You admitted your prior criminal history.
4 Tendered as Exhibit A and read aloud in court was the summary of prosecution opening. In short, police were investigating a number of persons involved in trafficking of methylamphetamine. On 21 January 2016, police executed a warrant at your home address and located 4,802.1 grams of methylamphetamine (Charge 1) and 327 grams of pseudoephedrine (Charge 2). The methylamphetamine was between 82 and 87 per cent pure and was located in a storage area under the stairs in your house. The pseudoephedrine was between 83 and 84 per cent pure and was located in a number of places, including 263 grams of the material in a container in the oven in your kitchen.
5 You were arrested and interviewed under caution. You told police that you had put “ice” in the wall cavity, after it was left there by another person, whom you would not name. You were going to keep the drugs for that person until he returned in a few days’ time. You were not paid for this service and the $7,000 that was found in your premises, was borrowed from the person who had left the drugs at your premises. You told police that the material found in the oven was sugar that was off. This statement I reject out of hand.
6 Ms Ristivojevic of counsel, who appeared on your behalf, acknowledged that your offending did not occur within a vacuum and that you were acquainted with some of the other targets of the police operation. Ms Ristivojevic ultimately submitted that your offending should be regarded as slightly below mid-range offending of its kind.
7 Whilst you have no prior convictions for drug-related offences, you have, in my view, relevant prior convictions in respect to firearms and violence and the factual basis for these convictions is set out in Exhibit C, an extract from LEAP summaries held within the records of Victoria Police.
8
In essence, knowing that the material that you were to store was methylamphetamine, you stored the material on behalf of another who you knew would traffic the material. I regard your offending as a serious example of its kind. Having rejected your utterance to the police that you believed the pseudoephedrine to be sugar, I am satisfied that you were aware that it was
a drug of dependence and, likewise, you were prepared to store it on behalf of another who you knew would traffic the material.
9 You were arrested on 21 January 2016, following the execution of the search warrant at your home and you have remained in custody since that time. As at the date of your plea, you had been in custody for 742 days. I was informed that on 6 July 2017, following a committal proceeding, you offered to plead to the counts on the indictment, but this offer was rejected by the Crown. Subsequently, at a bail application in October 2017, the offer was repeated and ultimately accepted by the Crown.
10 You were initially charged with trafficking in a large commercial quantity of methylamphetamine and the Crown accept, by the filing of the indictment, that it is unable to prove the necessary state of mind in you as to the quantity in your possession, in order to establish the more serious offence of trafficking in a drug of dependence in not less than a large commercial quantity.
11 In respect of the methylamphetamine, the quantity held by you on behalf of another was nine times the commercial quantity, whilst in respect to Charge 2, the pseudoephedrine, the amount held by you was in excess of twice the commercial quantity.
12 Tendered on your behalf was Exhibit 1, a summary of defence submissions; Exhibit 2, a psychological report, dated 23 January 2018, from Mr Warren Simmons; and Exhibit 3, two references, each dated 29 January 2018, from your daughters, Sarah and Lucy Quach.
13 You are 49 years of age, having been born in Vietnam. You completed the equivalent of Year 9 in Vietnam and then worked on the family farm for approximately ten years or so, before leaving Vietnam. You left Vietnam at the age of 18 or 19 years. You fled Vietnam to Malaysia as a refugee and were sponsored to Australia some six months later by your older brother. In Australia, you worked in the automotive manufacturing industry for a period of five years or so, before becoming self-employed, working with your first wife, Phuong, the mother of the deponents to the references contained in Exhibit 3. Together with your wife, you worked as piece workers in the garment industry for a period of approximately ten years, working seven days per week and often up to 12 hours per day.
14
It is apparent from the contents of Mr Simmons’ report and the instructions given to your counsel, that you are not a good historian, in terms of the dates of milestones in your life. In many respects, the dates when things occurred do not matter, as the sequence of events are not in dispute. Your daughter, Lucy, is currently aged 27 years and was born when you were aged about 22 years. Sarah is 23 years of age and was born when you were about 26 years of age. Your marriage to Phuong lasted approximately ten years or so and it was
a mutual decision to end the relationship. In all likelihood, the downturn in the clothing industry in Australia in the early 1990s that brought about the end of your business, put pressure on your relationship.
15 Two years after the end of your first marriage, you met your second wife, Nga, who is about ten years your junior. A daughter was born to that marriage, Trish, who is 13 years of age and was born when you were aged approximately 36 years. The relationship with Nga lasted approximately three years and according to your counsel, broke down because of your partner’s gambling problems, as well as her addiction to illicit drugs. I was informed that after the breakdown of the relationship, a bitter custody dispute concerning Trish took place, which eventually resulted in shared custody of her. However, eventually your second partner was unable to care for Trish adequately and you became sole custodian of your daughter.
16 In or about 2012, you met your third partner, Trinh, and she is the mother of your fourth child, Dylan, a boy aged four years, who was, I was informed, aged two years when you went into custody.
17 As to the present family situation, your daughter, Lucy, has taken on the responsibility for care of the younger children, Trish and Dylan and they reside together with your first wife.
18
Ms Ristivojevic, on your behalf, did not rely upon any of the principles set out in Verdins, as they did not arise out of the report of Mr Simmons. Accordingly, you are an appropriate vehicle for the application of the principle of general deterrence, which is an important sentencing factor in sentencing those who involve themselves in the trafficking drugs of dependence in not less than
a commercial quantity.
19 The sentencing regime in respect to drugs of dependence is a quantity-based system. However, it is plain that our community is awash with methylamphetamine, it is a scourge on our society and the prevalence of trafficking in methylamphetamine is a matter properly taken into account in the exercise of my sentencing discretion.
20 It is plain from the references written by your two elder daughters (Exhibit 3) that they both love and respect you. Your daughters regard you as a good father, who has looked after their interests throughout their life. Be that as it may, you involved yourself in the pernicious trade of trafficking in drugs of dependence.
21 You have pleaded guilty and are entitled to the benefits that flow to you from that plea, being that it is some evidence of your remorse and that it has utilitarian benefit.
22 It was put on your behalf that as a result of being remanded in custody, you were imprisoned in a regional prison and that this made it difficult for you to have contact with your children and that this has weighed heavily on you. Further, that any additional time in custody, if you were to be held in a prison in regional Victoria, would mean that you will have irregular visits from your children.
23 It was conceded by your counsel that you must be sentenced to a term of imprisonment, but that the time spent in custody to date, in all the circumstances, should constitute the minimum term appropriate in your circumstances. I do not agree.
24
Your offending did not occur in a vacuum. You were acquainted with some of the targets of the police investigation. You accepted responsibility for storing
a large amount of methylamphetamine and pseudoephedrine on behalf of
a person known to you to be a drug trafficker. You did so in the knowledge that the drugs would be trafficked in the future. Your conduct calls for condign punishment.
25
In respect to your prospects of rehabilitation, your prior criminal history in respect to the possession and use of unregistered firearms, both as a
non-prohibited and prohibited person, when combined with the instant offending, causes me to assess your prospects of rehabilitation as guarded.
26 Would you please stand.
27 By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing this kind of crime. Taking into account the circumstances of the offence and its effects, together with your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
·On Charge 1, five years’ imprisonment.
·On Charge 2, two and a half years' imprisonment.
28 I order that 12 months of the sentence imposed on Charge 2, be served cumulatively upon the sentence imposed on Charge 1. This results in an effective sentence of six years’ imprisonment and I fix the period of four years’ imprisonment as a period that you must serve before you will become eligible for parole.
29 I declare that you have spent 749 days by way of pre-sentence detention.
30
Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to eight years’ imprisonment, with
a non-parole period of five years’ imprisonment.
31 COUNSEL: As Your Honour pleases.
32 HIS HONOUR: Would you be seated please, Mr Quach.
33 The Crown has made application for forfeiture orders and disposal orders in respect to some cash and the drugs seized by members of Victoria Police and I have made three copies each of those orders.
34 Mr Quach, you may remain seated.
35 The Crown have made application for what is known as a forensic sample. In this case, that is a scraping from the inside of your mouth. I have granted that application because of the seriousness of the circumstances of the offending, warrant the order being made; that your prior convictions are such as to warrant the order being made; and that the granting of the order is in the public interest.
36 I must inform you, that if at the time of request for the taking of the mouth scraping, you do not consent to the taking of that mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
37 I hand down three copies of that order.
38 Are there any other matters to be dealt with?
39 COUNSEL: No, Your Honour.
40 HIS HONOUR: Remove the prisoner please.
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