Director of Public Prosecutions v Sun

[2016] VCC 1952

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01078

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN SUN

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2016
DATE OF SENTENCE:	2 December 2016
CASE MAY BE CITED AS:	DPP v Sun
MEDIUM NEUTRAL CITATION:	[2016] VCC 1952

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek	Office of Public Prosecutions
For the Accused	Mr C. Farrington	Chiodo Madafferi

HER HONOUR:

1John Sun, you have pleaded guilty to:  one charge of trafficking in a drug of dependence; one of being a prohibited person in possession of a firearm; one of possession of a drug of dependence; and one of negligently dealing with proceeds of crime; and also to one uplifted summary charge of possession of a controlled weapon, or a prohibited weapon.

2The offences to which you have pleaded guilty all occurred on 15 November last year.  On that day you were discovered asleep in a room at the Quest serviced apartments in Springvale Road, Glen Waverley.  You, together with three other people, had checked into the apartment the previous day.

3When you were discovered asleep hotel staff discovered that there were drugs and a firearm in the apartment.  They called the police and when the police arrived and entered the apartment you by then had woken up and had the firearm in your hand as the police came in.

4They were able to quickly obtain that from you without resistance from you but a search revealed ultimately what turned out to be 204.7 grams of methylamphetamine of a high level of purity, 84 to 86 per cent, which means there was approximately 176 grams of pure methylamphetamine.  The firearm that was seen was a 32 automatic calibre Browning semi-automatic pistol.  It was in proper working order and there was also ammunition compatible with that firearm in the room.  It is possession of that just over 200 grams of methylamphetamine that gives rise to Charge 1 of trafficking in a drug of dependence, and possession of the firearm that gives rise to Charge 2, being a prohibited person in possession of a firearm.

5A search of the serviced apartment room also revealed a pill bottle containing ten tablets of Alprazolam, which is a drug of dependence.  That is a relatively small quantity, and in respect to that, that gives rise to the charge of possession of a drug of dependence.  Located in the room also was a bag that you actually had on you containing $2700 in cash, a number of mobile telephones, computers and keys.  It is possession of those items that gives rise to Charge 4, negligently dealing with proceeds of crime.  There was also a prohibited class laser pointer on the coffee table and it is that that gives rise to the charge of possession of a prohibited weapon.

6You were less than frank when you were interviewed by the police.  You told them that you had gone to the apartment to score ice, that you had been driven there by somebody else.  CCTV footage revealed that in fact you had driven there.  You said that you had had some Xanax and fallen asleep on the bed and that you woke up suddenly, walked out in the main room, saw the gun on the coffee table and picked it up and it was at that instance that the police came in.  That again is clearly untruthful having regard to the circumstances in which you were found asleep on the sofa and with the gun and the drugs in front of you.

7You told the police you thought the gun was broken and were just looking at it when they knocked on the door.  That clearly was not correct, and you claimed not to have noticed the ice on the floor or on the coffee table in the room, asserting that you would have smoked it if you had seen it.  That again is clearly contradicted by your plea of guilty to trafficking in the ice.  You asserted that the money, the cash, was either winnings from the pokies or earnings from legitimate work, that one of the laptops was one you had purchased from a friend cheaply and that you were unaware of the ownership of the other laptop and all the mobile telephones.  Although there is no evidence before me in relation to the ownership or how you came to be in possession of those items, it is clear that your explanation again is less than frank, and your explanation in relation to the cash was also less than frank.

8Consistently with the account you gave in your recorded interview, you contested the committal proceedings, cross-examined witnesses and it was not until August of this year, after your first final directions hearing in this court that a settlement of the charges was negotiated and that you pleaded guilty to the charges that are now before me.

9The quantity of methylamphetamine found on you and to which you have pleaded guilty is, by quantity, a commercial quantity.  In fact it is twice the threshold for a commercial quantity.

10However, the prosecution accepts that whilst it can prove the objective fact that the amount is commercial, there is no evidence to, or insufficient evidence, to establish beyond reasonable doubt that you were aware that there was a real or substantial risk that the amount of methamphetamine was in excess of a commercial quantity.  That is the basis then for the plea of guilty to trafficking simpliciter.  But the amount of drug is relevant to my assessment of the objective gravity of the charge, but in the context of a trafficking charge, not a commercial quantity trafficking charge.

11The nature of the offences themselves and just that bare recitation of the summary of them, makes it clear that these are serious offences, particularly the trafficking and the possession of a firearm related to it. That makes it clear that subject to your personal circumstances and matters personal to you, considerations of deterrence, both general and specific, denunciation and just punishment, loom large in the sentencing mix.

12Ice is a pernicious drug of dependence and those who traffic in it must understand that whether they assert they are trafficking to support their own habit, to support their own lifestyle, that is to be able to accommodate and feed themselves without resorting to legitimate employment, or whether it is for a profit making venture over and above that, is really not much to the point.  You are profiting by the trafficking in a drug of dependence and peddling untold misery to countless other people and their families.  It is clearly something you should be aware about given your long history of ice abuse and the extraordinary tolerance, care, kindness and support of you shown by your family.

13But it is clear therefore that when people are found trafficking in a drug such as ice and when that is accompanied by possession of a firearm, that they are very serious offences.  We, as a civilised community can do nothing other than condemn it in the sternest of terms and to ensure that sentences are imposed that deter those engaging in such conduct themselves or tempted to engage in it understand that there are serious and significant consequences when detected.

14Similarly, possession of items connected with proceeds of crime is a serious offence related to living in a drug - using and drug dealing milieu and again, considerations of denunciation, deterrence and just punishment loom large there.

15Dealing then with your personal circumstances, you are now 28 and you were 27 at the time of the commission of these offences.  You are the oldest of three children.  Your siblings are in their early 20s and you come from a loving and extraordinarily supportive family.  Your parents, your brother and your sister have been here at court supporting you.  They all have histories of diligent application to study or work.  None of them have ever been in any trouble.  There is no mental illness, substance abuse or violence which has marred the family life.  You were brought up in this loving, supportive family.  You are of at least average intelligence and you yourself suffer from no mental illness or personality disorder which might explain your offending behaviour.

16It is a real sadness to see somebody who has grown up and been surrounded all his life with such loving support and such good and active role modelling from parents and siblings, to see that you come before me at the age of 28 having squandered those opportunities that such a loving, stable family upbringing has given you.

17You left school without completing your Year 12.  Although, in your early years after leaving school you obtained employment, it would appear, relatively easily,  you lost every job that you had because of your poor attitude to commitment to employment or because your drug use was so affecting your life or interfering with your capacity to perform your work duties, that you got the sack.  You have spent your life since leaving school, abusing drugs and abusing or not taking advantage of the opportunities that have been offered you.  As you said to the psychologist, Jeffery Cummins, who assessed you for the purposes of this plea, you have wasted the last nine years of your life partying on drugs.

18You started with cocaine and ecstasy but progressed very rapidly by the age of 20, it would appear, to methamphetamine and you have been a significant user of methamphetamine for most of your time since then.

19You have a significant criminal history:  multiple driving and traffic offences; dishonesty; violence, including aggravated burglary; some drug possession offences; and weapons offences included in the list.

20You have received the full range of rehabilitatively based sentencing options:  Community Correction orders; intensive Corrections orders; suspended sentences, and sadly, you have breached every one of them by non-compliance with conditions of orders and by further offending.

21You have been sentenced to terms of imprisonment, sometimes as a result of being breached for the more rehabilitative focussed orders, sometimes just straight out and by reason of the nature of the offending and the significant criminal history that you are amassing.  Sadly, no sentence, whether it is a rehabilitatively focussed one that allowed you to stay in the community or a term of imprisonment, has so far been effective in deterring you from engaging in criminal behaviour and continuing your drug use, or been effective in bringing about any long term change in your behaviour.  You have indeed, as you said to Mr Cummins, wasted the last nine years of your life.

22You were sentenced in this court in March 2012 by Judge Chettle for aggravated burglary and related charges.  In sentencing you His Honour said this.  You were then 24 years of age:

"You have a history of poly-substance abuse, including taking ecstasy, cocaine, crystal methamphetamine and GHB.  You also abused the prescription drug, Xanax.  You claimed to be anxious to participate in a drug and alcohol rehabilitation program, although you have not done so to date.  There are clearly no Verdins issues raised by Mr Cummins' report and your counsel conceded as much.  Your prior criminal history and your prior traffic history demonstrate you to be a  young man who has little regard for the law and who represented a risk on the road in particular.”

23At the time of the aggravated burglary and injury charges, for which His Honour sentenced you in April 2009, he said you had a relatively minor criminal history but he noted that since that date you had continued to accumulate traffic offences and engaged in seriously dangerous conduct that saw you imprisoned.  His Honour went on to say this:

"Your criminal history demonstrates that you have not rehabilitated yourself and the report of Mr Cummins tendered upon your plea provides the court with little assistance.  You purport to be desirous of undertaking a drug course but have not done so.  You claim to be drug free yet produce no evidence in that regard.   You have not taken steps to rehabilitate yourself since this offending and although it has been 12 months since your last offence you present as an antisocial and dangerous young man with little insight into your offending behaviour".

24Those were very stern words from Judge Chettle and, unfortunately, they did not seem to be stern enough to deter you from engaging in further criminal offending after you were released from serving that term of imprisonment.  I should note that that term of imprisonment was one that sentenced you to a total effective term of two years but with a very low non-parole period of only nine months.

25After being dealt with for those offences by Judge Chettle you have appeared on three separate occasions before Magistrates' Courts for a combination of dishonesty, driving, and drug possession offences, so even then, after getting that two year with a nine month minimum term of imprisonment you continued to offend.

26You have, though, and I will refer to this in more detail in a moment, during the time that you had been on remand in respect to these charges, shown some positive signs of change that were not apparent in your behaviour at the time that you were sentenced by Judge Chettle.  So although he referred to having taken little advantage of your time in custody to rehabilitate yourself, I accept that you have made steps this time to do so.

27In the course of his thoughtful and helpful plea, Mr Farrington relied on a combination of the significance of your family support; the significance of your recent discovery that you had fathered a child who is now six months old, and your desire to be a part of her life; the manner in which you have used this time on remand in custody; and the absence of any factor such as mental illness or personality disorder which could adversely affect your prospects of rehabilitation, as being significant factors pointing to positive signs of change in you.  They are signs of a desire to lead a drug free life upon your release and therefore, give a more positive indicator of your prospects for rehabilitation than  the recitation of this offending, of your previous criminal history, would indicate.  They pointed, Mr Farrington argued, to the imposition of a sentence that was structured so as to give the best possible means to encourage you to rehabilitate yourself and to take advantage of the rehabilitation opportunities offered to you.

28You do have the most extraordinary level of family support.  Your parents are loving and very supportive.  Throughout your nine years of drug abuse they have continued to love and support of you, most of the time to be prepared to offer you a home, only occasionally making you leave when your behaviour has gone beyond the bounds of what is acceptable.

29After you were released from the term of imprisonment imposed by Judge Chettle they bought you a vehicle so that you could take up work as a delivery driver.  Unfortunately you squandered that chance after a relatively short time.  On this occasion, in the time leading up to this offending, they, again desirous of finding a way of giving you gainful employment, poured not only a lot of their emotional energy and time, but a significant amount of their money into establishing a business that would be a business for you to run with family support.  Sadly, whilst they were doing that and whilst this business was actually being established, you were using drugs.  I would imagine from what I've been told, at a level completely unknown to your parents and your siblings and probably actively concealed from them.  You were charged with these offences and remanded in custody at about the time this business was supposed to open.

30They have continued to run the business at extraordinarily high personal cost to all of them, sacrificing their own futures, their own comfort, and their own careers to assist you.  As I said to Mr Farrington, I have not seen this level of family support provided to somebody in all my times on the Bench, and they continue to love and support you.  Mr Farrington told me, and I have no reason to doubt what he said, that the sense of betrayal yet again that your parents and siblings felt when you were charged with this offending, at a time they were setting up this business, was such that their immediate reaction was to say they would have no more to do with you.  They are clearly loving, forgiving parents and siblings and ones who want to help you to help yourself. They have found room in their hearts to forgive you and have seen very positive signs of change in you.  That is clear not only from their presence here, from the testimonials from your mother and sister, but from what I have been told about their desire to still to maintain this business so that you will have something meaningful to do upon your release.

31They clearly provide you with enormous emotional support and are prepared to invest trust in you and one can only hope that you will start to repay that trust instead of betraying it.

32The  next factor that Mr Farrington pointed to was the discovery that you had fathered a child and have a desire to be part of her life.  You had a short term relationship with a young woman in the time leading up to this offending and it was not until you had been in custody for some time that you discovered that she had become pregnant as a result of that, had given birth to a child, had gone back to her family in Tasmania because she was a young, single mother, but who has shown every sign of wanting to encourage you to share in the responsible parenting of this child upon your release.  She has been communicating with you and also with your family and making arrangements to come over from Tasmania to introduce the child to your family and to you.  So you have not only enormous family support, real employment to go to with support around you in that, and a promise of a future, a family of your own, that should give you responsibilities as well as encouragements for a better and drug free life upon your release.

33Consistently with what I had already said about the reason for your family's continued support or re-giving of support to you, you appear to have used your time in custody well.  Because on a previous occasion in custody you had been assaulted, apparently by reason of an outstanding drug debt or drug related matter, you had spent some of your last period in custody in protective custody and were placed in protective custody again by reason of that history on your remand this time.

34You have, because you are in protection, been moved to Hopkins Correctional Centre at Ararat and although protective custody can be very restrictive, it has meant that you have had the opportunity to be provided with greater educational opportunities than those on remand normally have and you have taken good advantage of that.  You have not only done drug awareness and rehabilitation courses but vocational courses and vocational courses particularly related to assisting in the running of the business that your family has set up for you.

35Importantly, with your history of drug use, you are clearly an at risk prisoner in terms of substance abuse in custody.  I have been given one clean drug screen and told that you have been regularly and randomly tested and that your screen results have always been clean.  You are working as a billet, which again means a position of trust and clean drug screens.  So all that shows that you have used the time in custody to, on this occasion at least, through some reflection and to avoid the temptation, to avail yourself of the drugs that we know are, unfortunately, available in prison.  It means you have had 12 months in order to go back to a stage of being substance free and to see that as normal rather than having been substance impaired, your normal state of being.  Hopefully that will give you a means of recalibrating yourself and of encouraging you to understand you can have a happy, meaningful life without substances in your body and to give you the strength as you move towards your release, to be able to remain drug free, to identify the triggers for your drug use, and to be able to take alternative steps.  There are no negative factors such as mental illness or personality disorder, which make you likely to re-offend by reason of that.

36So I accept that those matters identified by Mr Farrington do, despite your appalling history of offending and breach in trust to date, make your prospects for rehabilitation much better than an objective look at your circumstances might otherwise reveal, and that the sentence should be structured so as to encourage your rehabilitation.

37One cannot be overpoweringly optimistic, though.  Mr Cummins, in his report said this.  He quoted what he had said in the report that he had prepared in February 2012 at the time that you were coming to be sentenced by His Honour Judge Chettle, namely: 

"My report of 21 December 2012 specifically concluded in my opinion his prognosis is very much linked to whether he is able to remain drug free on a long term basis and in my opinion, in this regard he will require residential drug rehabilitation.  He is hoping the court may endorse his desire to undergo residential drug rehabilitation in conjunction with a community correction order".

38And he confirmed that he would be prepared to treat you in accordance with a court imposed order.  His Honour Judge Chettle set out the reasons why he considered, having regard to the nature of the offending before him and your prior history, a CCO was an inappropriate disposition and referred, somewhat disparagingly, to your statements of desire, not backed by any reality, to undergo drug rehabilitation.

39At the conclusion of this report Mr Cummins said again, or linked again, your prospects for rehabilitation to your ability to remain drug free.  He said:

"I remain of the opinion Mr Sun's prognosis is very significantly linked to whether he is able to remain drug free on a long term basis and I remain of the opinion, spending an extended time in residential drug rehabilitation would be of benefit to Mr Sun.  Speaking strictly as a clinician, it is my opinion that as anything a court can do to facilitate Mr Sun participating in a residential drug rehabilitation program would be appropriate".

40I asked Mr Farrington specifically about whether you were contemplating a residential drug rehabilitation program and he told me no, by reason of the plans that the family had made and were undertaking in relation to the business.  It is still, I think, something that you should think about very carefully as to whether in addition to using your time in custody and the drug rehabilitation programs available there as a form of residential rehabilitation, whether you should also consider upon your release, staging your release into the community by doing a transition from full time custody to a residential rehabilitation program and then to return to the family and to the business.

41There is a real risk that a move straight from the restrictions of custody into freedom in the community again, even with the restrictions of a post-sentence order could expose you to the same sort of risk factors that have led you to relapse into drug use in the past.  Particularly if you are going to have a responsibility on you participating in the business.  The business clearly requires long hours of hard work.  If anything is likely to make you want to turn to ice again to help give you energy and self-esteem, it could be the fear of failing to meet expectations and the long hours.  So I would urge you to consider that as part of your transition plan, still with a view to going into the business the family is running for you but maximising your prospects of being able to succeed in it.  I would urge those responsible for your care in custody to consider how well you can be assisted in that during your time in custody and as part of a transition upon your eventual release.

42I say that too because Mr Cummins also said that although you, at interview, apologised for letting your parents and your siblings down in relation to continued drug use and offending, and whilst Mr Cummins considered you displayed some insight into how drugs had significantly compromised your life over the past nine years, in Mr Cummins' view you are still at a very early stage in terms of developing insight into the pervasive negative impact of illicit drugs in the community.  So they are promising signs but they are early signs.

43In addition to these factors that count so positively in terms of structuring a sentence so as to encourage you to take advantage of the opportunities to rehabilitate yourself, I also take into account the fact that you did, albeit late, plead guilty.  It does have utilitarian value.  It saved the time and cost of a trial and it advances the interests of justice, but for the reasons that I articulated when I was discussing this with Mr Farrington in the course of the plea, I do not accept in the circumstances that the plea of guilty is in itself independent evidence of remorse.  I do not consider that there is evidence of remorse in the sense that that term is defined and described in Barbaro and Zirilli. Except perhaps, from what can be gleaned by the fact that you have remained drug free whilst in custody and committed yourself to the courses directed towards being able to provide better quality of participating in the business upon your release.

44In the course of the plea I also had discussions with Mr Farrington about the appropriate sentence structure.  I do not consider, as you probably already appreciate from having heard that discussion, that a sentence, that is a combination of a term of imprisonment and a community correction order is the appropriate one.  First, because you have had those options before and you have not taken or been able to take advantage of them appropriately, and second, because I do not consider that the maximum term of imprisonment available for a combination sentence is sufficient to reflect the overall gravity of the offending, particularly having regard to your previous history.

45However, I do accept that there should be a significant gap between the head sentence and the non-parole period so as to allow you to take advantage of those opportunities to rehabilitate yourself and to give the Parole Board a significant time to be able to properly assist you in a supported way to encourage you in your reintegration into the community.  I take heart from the fact that although you had, it would appear, committed some of your past offences whilst on parole and whilst you were serving a suspended sentence at the time of the commission of these offences, you have not previously been breached on parole.  You have seen out your parole periods and therefore you show yourself to be, at one level at least, amenable to the sort of support and structure that parole can give.  I do think it will give you and the Parole Board more flexibility to manage you because that transition from custody to release to the community can be a very difficult one.  They can often intervene much more quickly and head off problems before they become too serious, whereas the regime under a community correction order may mean that it takes longer to addresses lapses or relapses.  That can attenuate the sentencing process and the time before the sentence is ultimately served in a way that I do not think is in your interests.  I agree with this much of Mr Farrington's submissions that date certainty in terms of when your sentence starts and when your ultimate sentence ends as well as your earliest date for release on parole, are important things in having milestones for you to work towards.  I adopt or repeat what I said in the course of the discussion about how fixing a parole date or a date when you are eligible for release on parole, gives you something to work for during the balance of your time in custody as well as something to work for once the Parole Board, if it does, sees fit to release you into the community.

46So you are 28.  You are, it would appear, showing signs of maturing and of realising that you have wasted those important years of your early adulthood, and of wanting to have a more meaningful life from now on.  That often happens at around this age.  So it is indeed up to you and I do hope that you take the time of serving the balance of your sentence and any time on parole that the Parole Board sees fit to give you, to reflect on that and to seize the opportunities given to you so that you can, in five years' time, turn around and say, it is all behind me and look what I have been able to achieve recently, and look at a much more promising future into your 30s than you have been able to look at into your 20s and approaching the age of 30.

47Could you now please stand?  John Sun, on the four charges to which you pleaded guilty before me and on that fifth, the uplifted summary charge, and to which you pleaded guilty before me, you are convicted:

on Charge 1 you are sentenced to be imprisoned for a period of three years and six months;

on Charge 2, to be imprisoned for a period of two years;

on Charge 3, to be imprisoned for a period of three months; and

on Charge 4, to be imprisoned for a period of 12 months;

on the uplifted summary charge, to be imprisoned for a period of three months.

I direct that 12 months of the sentence on Charge 2, three months of the sentence on Charge 4 and one month of the sentence on the uplifted summary charge be served cumulatively upon each other and upon Charge 1, which is the base sentence.  That makes a total effective sentence of four years and ten months and I fix a period of two years and four months as the time that you must serve before being eligible for parole.  So that gives you two and a half years for your parole period.

48I declare that you have spent 383 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. I declare, pursuant to s.6AAA of the Sentencing Act that but for your pleas of guilty I would have sentenced you to a total effective sentence of six years and six months, and I would have fixed a period of four years and six months as the time that you would have had to have served before being eligible for parole.

49I have been asked to make forfeiture orders in respect of the drugs and the firearm and a disposal order in respect of the drugs, and I make those orders.

50Are they all the orders that are required to be made?  Have I pronounced them correctly?  Is the arithmetic correct?

51MR BALLEK:  I think so, Your Honour.

52HER HONOUR:  You say you think so or yes, Mr Ballek?

53MR BALLEK:  I am fairly confident that is correct, Your Honour.

54HER HONOUR:  All right.  Mr Sun, I am required to remain on the Bench whilst you are here in court and in the dock.  Because you are being held at Hopkins and because your family have been so clearly supportive of you and they here today but clearly have limited opportunities to see you given where you are, I will remain on the Bench whilst they approach the dock and you can speak to them briefly.  You will not be allowed to touch but you can at least speak to them.  Thank you.  So, family, you can approach.  So do you understand that?  Family can all go and speak.

55MR FARRINGTON:  Your Honour, are you content for my instructor to approach as well, just to explain the nuances of the sentence?

56HER HONOUR:  All right, he can do that downstairs.

57MR FARRINGTON:  As Your Honour pleases.

58HER HONOUR:  This is a privilege for families.

59MR FARRINGTON:  No, I understand.  It was just so there was no confusion but we (indistinct) Your Honour.

60HER HONOUR:  Do you think Mr Sun or the family might not understand what the total effective sentence actually is?

61MR FARRINGTON:  Yes.  It was just that they understood, yes, the sentence itself.

62HER HONOUR:  All right, yes, he can go down and explain it.  All right, thank you.  Can you remove Mr Sun now, please.

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