Director of Public Prosecutions v Soong

[2018] VCC 2015

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02568

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL SOONG

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 November 2018
CASE MAY BE CITED AS:	DPP v Soong
MEDIUM NEUTRAL CITATION:	[2018] VCC 2015

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett
For the Accused	Mr T. Trood

HER HONOUR: 

1Daniel Soong, you have pleaded guilty on indictment to two charges of trafficking in a drug of dependence, four of possession of a drug of dependence, one of pharmacist failing to store schedule 8 drugs correctly, one of failing to keep records of schedule 8 poison, one of pharmacist creating false and misleading records and one of pharmacist failing to retain the record for three years. 

2The maximum penalties for these offences are 15 years' imprisonment for Charge 1 and 2.  One year for the drug possession charges, (given it is conceded that such possession was not for trafficking purposes) and five years imprisonment for the remaining offences. 

3You have also pleaded guilty to related summary offences, namely, possession of a prohibited weapon, nunchukkas, and a rolled up charge of unauthorised possession of schedule 4 poisons.  The weapon charge carries a maximum penalty of two years' imprisonment and the other a maximum of ten penalty units.

4The maximum penalties to which I have referred reflect the seriousness with which Parliament regards these offences. 

5The details of your offending are set out in a document entitled "Amended summary of prosecution opening", dated 19 September 2018.  It is exhibited at P1 and its contents are not disputed by your counsel.  A copy will be annexed to these reasons. 

6At the time of your offending, you were a pharmacist who had financial stake in two pharmacies in Moe and were approved by the Victorian pharmacy authority to carry out your business at both pharmacies, having been registered as a pharmacist since 2006.

7From December of 2013, your staff observed that you were performing badly in your role as a managing pharmacist, were often late to work, appeared drowsy and were unable to be roused.  You presented as disorganised, with an absence of procedures in the workplace.  Essentially you presented as drug effected.  This is perhaps reflective of your drug use and abuse at that time and provided the basis for your descent into the behaviours which now place you before the court.

8In terms of Charge 1, trafficking in a drug of dependence, diazepam, between 19 September 2014 and 4 September 2015, you and a man called Fenby exchange text messages.  You offered to supply him with diazepam in exchange for him supplying you with methylamphetamine.  This exchange was agreed to and you met at your home where you supplied Fenby with the diazepam.

9Charge 2 is also one of trafficking in a drug of dependence, methylamphetamine.  Between November 2014 and 4 February 2015, Fenby again went to your home in Moe.  On that occasion you supplied him with either .1 or .2 of a gram of methylamphetamine.  Between 3 and
4 February 2015, Fenby had been at your house doing work on a pathway and you supplied him with .1 gram of methylamphetamine.

10In terms of the charges of trafficking in a drug of dependence, as I understand how the Crown case is put, it involves three separate transactions in total between 19 September 2014 and 4 February 2015 - one being of diazepam and two being of methylamphetamine.  I am unable to form the view that this was anything other than street-level transactions.  The quantity of drug involved is small and frequency of any sale very limited.  These are matters which need to be reflected in penalty.  Despite the high maximum penalty for your offending, at least as it relates to drug trafficking, it is very much towards the lower end of the scale.

11Charge 3, possess drug of dependence, methylamphetamine, also refers to a date in 4 February 2014, when Fenby drove away from your address and was arrested by police.  He was searched and police found the methylamphetamine which you had supplied him and which is part and parcel of Charge 2.  Charge 3 is based on the fact that you possessed methylamphetamine for your own use in addition to that which you supplied to Fenby.

12Charge 4 begins the pharmacist-based offending and particularises failing to store schedule 8 poisons correctly.  Regulation 35(1) of the relevant Act requires pharmacists to store schedule 8 poisons in a lockable storage facility constructed of steel and securely attached to a wall or floor.  They are medicines subject to strict controls.  At the pharmacy at 87 Albert Street, police located a number of unsecured schedule 8 poisons, as per the Crown opening.

13There was a steel storage cabinet at the pharmacy but it was completely filled with other items allowing no room for the storage of the schedule 8 poisons. 

14Charge 5 refers to being a pharmacist failing to keep records of the accurate balance of schedule 8 poisons and Charge 7, to being a pharmacist failing to retain records for three years. 

15Regulation 41(1)(b) of the regulations, requires pharmacists to maintain an accurate record of the schedule 8 poisons in their possession after every transaction.

16Regulation 41(3) of the regulation requires pharmacists to retain a record of every transaction in schedule 4, 8 or 9 poisons in a readily retrievable form for three years following the transaction.  Between 6 June 2014 and 4 February 2015, you breached those regulations.  Regulations which would and should have been well known to you. 

17Your method of doing so was to create a record of the drug to be dispensed after a customer attended the Albert Street pharmacy with a prescription for a schedule 8 poison.

18You would then dispense the drug from the Albert Street pharmacy to the customer.  You then deleted from the records the fact that the drug had been dispensed at the Albert Street pharmacy and did not record the true balance of the schedule 8 poisons in the possession of the Albert Street pharmacy - in that it had been reduced.  You then faxed the original prescription to the pharmacy at the Elizabeth Street store, requesting that the drugs be dispensed, as if it was for the first time.

19This caused the pharmacy at Elizabeth Street to dispense the same quantity of drugs again, which were then sent to you at the Albert Street pharmacy.  Having received that drug, you removed labels detailing which customer to whom the drug had been prescribed.  You did not record receiving the drug from the Elizabeth Street pharmacy.  This had the effect of you coming into possession of the same quantity of schedule 8 poisons, which were originally dispensed to your customers.

20This occurred on 14 occasions, as particularised in the Crown opening.  I note that the drugs which are attributed to these 14 occasions are almost all opiate or amphetamine based, which highlights the importance of accurate record keeping. 

21Charge 6 relates to being a pharmacist making false and misleading records in relation to schedule 8 poisons.  Regulation 42 requires pharmacists to not make false or misleading records in relation to schedule 8 poisons.  This included not making false or misleading records in relation to the destruction of such drugs.

22In December 2014, you had a conversation with Mrs Haraun, who worked at the Elizabeth Street pharmacy, during which you told her to dispense Oxycodone Sandoz brand of a schedule 8 poison to a customer.  She refused to do so as she was aware that particular brand of drug could be abused.  Despite that, you did dispense Oxycodone Sandoz.  On 15 January 2015, you entered into the pharmacy records false information to the effect that what had been dispensed was OxyContin, as opposed to what had actually been dispensed, the Oxycodone Sandoz.

23Further, between November 2013 and January 2016, you created false records in relation to the destruction of schedule 8 drugs and created false records that other pharmacists had witnessed you destroy those drugs.  This occurred on 14 occasions as particularised in the Crown opening.  The false records relate to you recording the destruction of largely opiate-based drugs. 

24Objectively, I find your offending, where you have actively breached your responsibilities as a pharmacist to be the most serious, particularly Charges 4, 5, 6 and 7 and Charges 5 and 7 more so, given their more calculated nature.

25This offending is explained through your counsel as being reflective of your lack of proper thought and organisation, as well as to ‘cutting corners’ in the context of the fog of drug addiction.  Whilst a cynical mind would take the view that the circumstances of your offending are perhaps more sinister, in the absence of evidence, I am unable to do so, nor do I make such a finding.  Despite your suggested drug addiction over the relevant periods, you well understood the responsibilities of your role.

26These regulations are designed to be protective, particularly as they relate to schedule 8 poisons, which involve highly addictive drugs.  Your offending covered a wide range of your responsibilities and was somewhat protracted.  These factors mean that in terms of relevant sentencing principles, general deterrence is a factor that should be given significant weight.  In my view, a proper assessment of these matters also lends need for weight to be given to some degree of specific deterrence and protection of the community.  It clearly requires denunciation.

27Charge 8, 9 and 10 relate to possession of drugs of dependence.  On 4 February 2015, police executed a search warrant at your home, during which they located a snap lock bag containing methylamphetamine on top of a coffee table and another snap lock bag containing methylamphetamine in a pot belly stove.  They also located remnants of cocaine in a small orange container underneath a lounge room table and, inside a shed at the house, a bowl containing cannabis.

28Also located in the shed on the top of a coffee table were a set of nunchukkas, which relates to the summary charge, possess a prohibited weapon.  The final summary charge, unauthorised possession of schedule 4 poisons, also relates to police attending at your home on 4 February 2015.  It is a rolled up charge as per the table in the agreed prosecution opening.  Those drugs were possessed without you being authorised or licenced to do so.  You explained this offending as also being part and parcel of your poor management of your life and the pharmacies at the time.

29In terms of the drugs of dependence which were in your possession, I accept that there is no evidence that they were for anything other than your own use. 

30Your personal circumstances are relevant to the sentencing task and, in your particular case, to explain how you came to be in this position.  In so doing, I rely on oral submissions made before me, as well as the chronology and amended outline of submissions dated 5 November 2018.

31I am told that you were born in Argentina in 1978, the elder of two brothers.  Your father operated a Chinese restaurant and your mother worked as a school teacher.  You describe your relationship with your parents as close and they were here for your plea hearing.  When you were ten years of age, your family migrated to Australia and settled in Melbourne.  You are fluent in both Chinese and Spanish.  You completed a year 12 education and commenced an arts/science degree at Monash University before completing pharmacy training.

32In 2005 you obtained your Bachelor of Pharmacy and registered as a pharmacist the following year.  You commenced work at a pharmacy in Moe in 2007 and, by 2011, you were a pharmacist in charge of a chemist in Moe.  In 2013 you acquired a part ownership of the store to which I have referred to as the Elizabeth Street pharmacy.  In May 2014, the pharmacy in Albert Street, Moe, opened and you had a part ownership of that business as well as being responsible for its day to day operations.

33It would appear that you have been involved in some form of drug use since your 20s.  It also appears that for quite some time you have been in denial about the extent of the problem and have undoubtedly kept the level of your use and any addiction well hidden.  You married in 2013.  Your relationship with your wife, Sue, is uncertain at this time, due to your drug use and offending behaviours.  You have no children. 

34You have a supportive family and are fortunate to have both your parents and brother residing in Melbourne.

35Your family are all members of the Christian Reformed Church, a church in which you also have and find support. 

36I am told this was initially a highly complicated brief of evidence.  I am given to understand that you were initially charged with 118 offences.  The resolution to your plea of guilty has been a somewhat arduous process.  As such, I accept that your plea of guilty was an early one after a contested committal before trial.  I understand that the contested committal proceedings assisted in the resolution of the matter.

37I accept that your plea of guilty has utilitarian value and has saved the court the time and expense of any trial, as well as the witnesses the need to give evidence in such a hearing.  Materials before me would indicate that you are remorseful for your conduct, although until you show true insight into its genesis and give due consideration to the extent of your wrongdoing, you will restrict your future prospects.  I take your plea of guilty into account in your favour.

38I accept there has been a considerable delay between the identification of your wrongdoing on or about 4 February 2015, and this matter being finalised in November 2018. It would not appear that this delay is of your own making.  I accept it has represented a burden over you until the matter could finally reach resolution in terms of the charges and in terms of today's outcome and I take that factor into account.  As a direct result of your offending, you have no doubt permanently lost your ability to work as a pharmacist.  Understandably you have also lost the trust of your clients and of family members. 

39You have no prior criminal history but a number of subsequent matters have been brought to my attention.

40On 13 April 2018, you appeared at Ringwood Magistrates' Court in relation to drug possession, driving offences and committing an indictable offence whilst on bail.  You received an adjourned undertaking and fines.  On 10 October 2018, you appeared at Dandenong Magistrates' Court in relation to Charges of handling stolen goods, dealing with property being the proceeds of crime, burglary, theft and, again, committing an indictable offence whilst on bail.  In relation to those matters, you were convicted and sentenced to 22 days' imprisonment. 

41Your subsequent offending has, in my view, relevance to the proper assessment, as the need for specific deterrence, your prospects for rehabilitation, as well as the need to protect the community from you. 

42I have had recourse to a psychological report prepared by Mr Patrick Newton, forensic psychologist, dated 20 September 2018.  He initially assessed you in January and March of 2016.  At that time he found you to be exculpatory and minimising as well as immature.

43You later requested counselling and consulted Mr Geoffrey Burrows for four consultations in August and September of 2017.  Your focus at that time was on behaviour modification and relapse prevention.  You discontinued this treatment. 

44You were then reviewed Mr Newton in August of this year.  He describes your mental state as, essentially, normal.  Mr Newton comments that it is only the context of you being incarcerated that you have finally been able to become abstinent from illicit drugs and that, at this stage, your insight into your drug addiction remains at what he describes as a “developing level.”

45You clearly need to be supported in maintaining abstinence and gaining further insight into the extent of your addiction and how to address it.  This is obviously in your interests, that of your family and ultimately of the community.  I accept that your capacity to transfer your enforced abstinence into the community, presently remains untested.  This further supports my view that you need a supported transition. 

46I understand that finalising the charges before me will contemplate all - sorry, will complete all outstanding criminal matters and that you are finally in a position to move forward with your life. You have the continuing support of family in order to do so. 

47The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it, your personal circumstances and those of any victim.  I am also required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

48I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case. 

49I make the ancillary orders as sought.  Those ancillary orders include what we describe as a s.464ZF application.  And that requires you to undergo a forensic procedure for the taking of a scraping from your mouth.  That then goes onto a database so that if there is reoffending, it can be picked up that you are the perpetrator.

50I am obliged to warn you that for the purposes of undertaking that procedure, you are required to attend at - the office in charge.  It says the Gippsland police station.  Probably should be Dandenong actually, Ms Duckett, given he is going to be residing in that area.

51MS DUCKETT:  Yes.

52MR TROOD:  Yes.  Yes.  Yes, yes, Your Honour.

53HER HONOUR:  We can fix that.

54MS DUCKETT:  I will have my instructor amend that.

55HER HONOUR:  Reasonable force can be used for the taking of that sample if you do not participate or a blood sample can be taken.  I am making that order because the seriousness of the circumstances warrant it.  It is by consent and, in my view, the granting of the order is in the public interest. 

56Both parties submit that the relevant sentencing considerations can be dealt with by what is described as a combination sentence, that is the imposition of a period of imprisonment combined with supervision in the community, by way of community corrections order.

57Accordingly, I have had you assessed as to your suitability for a community corrections order and you have been assessed as suitable, with recommendations of requiring you to perform community work, to be supervised by the Office of Corrections and to undergo drug treatment.  I accept those recommendations all as appropriate.

58In terms of Charges 4, 5, 6 and 7, I intend to impose an aggregate sentence.  I propose to impose an aggregate sentence, as I am satisfied that the offences are founded on the same facts or form or are part of a series of offences of the same or a similar character.

59In so doing I also bear in mind the principles of totality and proportionality.  As indicated it is these offences which I find the most serious and concerning. 

60In relation to those four charges, you are convicted and sentenced to 199 days imprisonment, which I reckon as already having been served.  Upon your release, which should be today, you are to serve 14 months on a community corrections order with conditions targeted towards your supported rehabilitation.  Those conditions will include 180 hours of community work, to undergo supervision by the office of corrections, to submit for treatment in relation to your drug use and abuse.  Fifty hours of the treatment condition will be offset against the community work.  So, once you have - if you have completed 50 hours of treatment, that will reduce the community work required. 

61In addition to the conditions that I have imposed, there are standard conditions.  The first and foremost of those is that you must not commit any other offence during that 14-month period which could be punished by imprisonment.  You must also report within two working days, as of today, to the nearest community corrections office, which I understand to be Dandenong.  You are also required to advise your supervising corrections officer of any change of address of where you are living or working and you must do so within two clear working days.

62It is a term of all community corrections order you must submit to visits as directed and you must obey all of the instructions and directions of a community corrections officer.  You are not able to leave the state of Victoria without the prior permission of your supervising community corrections officer. 

63I can only place you on such an order if you are prepared to consent to that.  Are you prepared to consent to that?

64OFFENDER:  I am.

65HER HONOUR:  You should be under no illusion that this outcome presents you with an opportunity to further change your life in a positive fashion should you choose to take up that opportunity. 

66This order can be breached if you do not comply with its conditions or you reoffend during its operation.  Should you do so, then you will be required to appear before me for a contravention hearing.  This may require me to resentence you for the charges for which the order has been imposed, as well as considering a charge of contravening of the community corrections order.

67I intend to impose a financial penalty for the two summary charges.  In relation to possession of the nunchukkas you are convicted and fined $800.  In relation to the summary charge of unlawful possession of schedule 4 poisons, you are convicted and fined $200.  In relation to the remaining Charges 1 and 2 on the indictment, you are convicted and fined an aggregate of $2,000.  You are convicted and discharged on Charges 3, 8, 9 and 10.

68Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charges.  If not for your plea of guilty, I would have sentenced you to a total effective sentence of 12 months' imprisonment, with a minimum of six months before being eligible for parole.  I will just wait for the rejigged version of the forensic sample and let you two check my maths et cetera.  I will just hand down the corrections order,
Mr Trood for you to double check ‑ ‑ ‑

69MR TROOD:  Thank you, Your Honour.

70HER HONOUR:  ‑ ‑ ‑ and perhaps take your client through it.

71MS DUCKETT:  Your Honour, just in relation to those disposal orders.  I was correct, there should have been one in relation to the nunchukkas because it comes under a separate act.

72HER HONOUR:  There is one?

73MS DUCKETT:  Yes.  So, there's two disposal orders.

74HER HONOUR:  Yes, that's all right, yes.

75MR TROOD:  Your Honour, in terms of the sentences - the aggregate sentence on 4, 5, 6 and 7, I had 200 days by way of pre-sentence detention but that includes ‑ ‑ ‑

76HER HONOUR:  Yes, mine doesn't include today.

77MR TROOD:  ‑ ‑ ‑ today.  And I say, "Included today" because of the fact that he's going to be in custody up until release which will be some time later today.

78HER HONOUR:  Yes.

79MR TROOD:  It's a matter for Your Honour as to whether you include that but I personally want to double check that - obviously, the arithmetic is the same.  As to whether Your Honour intended to include today in that or not.

80HER HONOUR:  My maths is not my strong point but ‑ ‑ ‑

81MR TROOD:  No, Your Honour's - no, it's right.  So, it is 199 days.  If one excludes today, it's 200 days, if there's credit given for the time in custody today.

82HER HONOUR:  Well, I've sentenced him to 199 days and it's that which I've reckoned.  That's as ‑ ‑ ‑

83MS DUCKETT:  As being served.

84MR TROOD:  Well, as I say, it's ‑ ‑ ‑

85HER HONOUR:  I mean I could have given him six months and reckoned six months and he just would have had the time between then and now as nothing.

86MR TROOD:  No, no, I don't have a problem with 199 days.  Your Honour's absolutely right ‑ ‑ ‑

87HER HONOUR:  No, I know, I know but ‑ ‑ ‑

88MR TROOD:  ‑ ‑ ‑ in my submission, to do it that way because it actually reflects the time in custody.  The only very small point is whether it should include today as ‑ ‑ ‑

89HER HONOUR:  Do you want me to reckon 200 days?

90MR TROOD:  Yes, that's the only point.

91HER HONOUR:  All right.

92MR TROOD:  We'll leave it as 199, Your Honour.

93HER HONOUR:  Thank you, Mr Trood.

94MR BROWN:  May I approach ‑ ‑ ‑

95HER HONOUR:  Yes, absolutely, Mr Brown, thank you.  Nothing further?

96MR TROOD:  No.  No, Your Honour.

97HER HONOUR:  All right, I thank the parties for their assistance.  We'll court the court till 9 o'clock on Monday.

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