Director of Public Prosecutions v Ta

[2013] VCC 2183

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00267

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY TA

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 October 2013
CASE MAY BE CITED AS:	DPP v Ta
MEDIUM NEUTRAL CITATION:	[2013] VCC 2183

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

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Moran
For the Accused	Mr C. Nikakis

HIS HONOUR: 

1Anthony Ta, you have pleaded guilty to one charge of trafficking a drug of dependence in a commercial quantity.  That crime carries a maximum penalty of 25 years.

2You are 28 years of age and I accept that you pleaded guilty at the earliest reasonable opportunity and have expressed appropriate remorse.  You must also get the utilitarian benefit of that plea.  You do have prior findings of guilt in the Magistrates' Court, one for possess heroin, which fits in with the problems here, I suspect, and one which is of no relevance at all.  Other than for the prior convictions, those matters obviously go very much in your favour.

3The circumstances of the offending are described in a laudably brief Crown opening.  I have sentenced other people in regard to this particular operation, and accordingly, parity becomes an issue, or a very serious issue in your situation.

4Operation Arising was an investigation conducted by Victoria Police Drug Taskforce from July 2011 to March 2012.  Long Tan Li, also known as Long Ko, was a major target of the operation.  Operation used surveillance and telephone intercept techniques to gather evidence against Mr Li and other members of the syndicate, including Bill Nguyen, you and Trong Quin Nguyen, who were acting at the direction of Li.

5You acted as the main courier and holder of drugs after the arrest of Trong Quin Nguyen.  You transported methylamphetamines and money for Li, to and from Li's house.  I accept that as background information, but it must remain where, at all times, that you are a single act of trafficking, not a Giretti.

6On 1 March 2012, you were intercepted by police in Sunshine, driving Li's car between your address and Li's.  On the front seat of the car, a laptop bag was 497.9 grams of methylamphetamine at 90 per cent purity.  A search of your house the next day under warrant revealed 6.099 kilograms of Ice at between 70 and 90 per cent purity, along with other drug paraphernalia.  So at around about 80 per cent on average or 85 per cent purity, you have got something in the order of 7 kilograms.  I indicated to your counsel that is a lot.

7The prosecution accept that this large quantity, though you are not charged with large quantity, belonged to Li and that you were in possession of it on a holding basis.

8The offending is clearly very serious.  It calls for general and specific deterrence as well as denunciation and punishment.  General deterrence in a situation such as this is almost always of real significance.  The other matters, I am satisfied that you can be adequately dealt with.  I accept that at the time this offending occurred, you were using Ice to a significant degree.

9The end result is that a custodial sentence is inevitable.  You have already done 89 days in custody.  Your counsel has argued strongly that that is sufficient.

10The first thing I need to look at is parity.  The closest of the co-accused in terms of parity was Trong Quin Nguyen, who for trafficking in a commercial quantity and possess proceeds of crime received an overall sentence of two year nine months, with a minimum term of 16 months.  He had a prior conviction, albeit a fine, for trafficking.  In those circumstances where you do not have such a prior conviction, you are clearly entitled to less.  The question is, how much less.  You had a significantly larger amount than he did.

11Materials were tendered on your behalf including, importantly, a report from the CISP program and the simple fact of the matter of these that you are obviously an intelligent young man.  You did well at school.  After leaving school, you then went into banking and finance at RMIT.  Unfortunately, you decided to leave that and participated in casual work in the picking and packing industry.  You then started using drugs.

12Around 2006 to 2007, you appear to have, effectively, stopped working for a significant period of time and you have been drug affected by and large since that time.  As I have said, at the time of the arrest, you were using Ice.  You dried out during that 89 days in custody and underwent the CISP program.  I have read their report.

13You have done very well.  It is now 18 months since you were released from prison.  You are employed and I have seen the reference from an employer.  You are drug free..  You live at home and you have strong family support.  There is a letter from your brother, who indeed is an architect, which indicates his desire to endeavour to assist you to rehabilitate, and also the guilt the family feel when someone such as you offends and continues to offend in this way.  You bring shame upon your family and that should be a factor in your determination to rehabilitate.  You have a fiancée and family have been in court here.

14Not only at the time of this offending, were you using Ice, but you also had a gambling problem.  You have attacked your drug addiction and you have dealt with, by counselling, your gambling problems.  Despite there being a suggestion of depression, I think that relates to a concern about being placed in custody and I do not see that the principles in Verdins arise.

15I think that you are in a significantly different position than the co-accused that I have already referred to.  You have, in my view, made greater attempts at rehabilitation and I think your long term prospects, if you can rehabilitate successfully, of reoffending is very limited indeed.  There is no reason why you cannot be a very worthwhile member of the community.

16I have read the materials provided on your behalf by your counsel and I have taken them all into account, even the $10 donation to the Red Cross.

17I had you assessed for a community corrections order and you have been deemed to be acceptable.  That report is, I agree with your counsel, positive.  I am minded in a situation like this of the words of the Court of Appeal in DPP v Leach where they said:

"It's particularly important should not do that or deny the right of a sentencing judge to act mercifully.  In a case where it seems to the judge to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, maybe a decision which rebounds to the benefit of the community."

18And further as the President said in R v Tacoba,

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred even in the case of a serious offence, and in the long term, the community's interest will be best served by that course.  This course should seek to promote public understanding of the fact that apart from the interest of the individual whom is sought to rehabilitate, an important interest in itself, there's a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime."

19The range that was given by the Crown, certainly at the lower end of that range was within what could have been given as a suspended sentence, but of course which I now no longer can.

20The reading speech so far as the Community Correction Reform Bill is concerned said this,

"The purpose of the CCO conditions is to allow a court greater flexibility to impose a less restrictive order than imprisonment where appropriate.  Potentially leading to a reduction in sentence of imprisonment with advantage such as the promotion of the offender's rehabilitation and the preservation of family and community ties.  This supports the broader purposes of the Sentencing Act to prevent crime and promote respect for the law by providing sentences that deter reoffending and allow the court to denounce the criminal conduct, including the harm caused to the community by the crime and to provide sentences that facilitate the rehabilitation of offenders and ensure that offenders are punished to the extent justified by the offence."

21When taking all those matters into account, I am satisfied that this fits within the area where a community corrections order can be given.  In the circumstances, because of the sheer volume, and I appreciate that you are not charged with a large commercial quantity of the drug involved, I think that three months is inadequate.  However, as I have indicated to counsel, I think you are in a different position to your co-accused.  You have got far greater prospects of rehabilitation and your prior history is not as serious.

22In those circumstances, what I am proposing to do is this.  You will be sentenced to be imprisoned for a period 179 days.  I direct that 89 days of that be reckoned as having been served under this sentence.  If you agree, you will then undergo upon release a community corrections order.  As I have indicated, it is a lot of methylamphetamine.  The conditions of that order would be that you receive, one, supervision; two, treatment if necessary for drug and alcohol addiction and you would have to perform, over a period of three years, 300 hours of community service work.  That would be with conviction.  So if your client is prepared to sign that Mr Nikakis.

23MR NIKAKIS:  Yes, Your Honour.

24MR MORAN:  Your Honour, may I rise on a matter of the s.464ZF(b) order.

25HIS HONOUR:  Yes.

26MR MORAN:  The order I had did not include that last little part which was to be retained for placement on the database.  I was not able, in the time I had, to get hold of anyone who ‑ ‑ ‑

27HIS HONOUR:  I will do it in chambers.

28MR MORAN:  Well I have got one here, if you would not mind looking at it.  It is handwritten, the extra, and signed.  If Your Honour is content with that.

29HIS HONOUR:  Yes, I will do that.

30MR MORAN:  Thank you, Your Honour.

31HIS HONOUR:  The retention is made and handed down.  In this situation where I have given a CCO, I do not do a s.6AAA as it does not fit in the section.  But I will say this, that your client knows the benefit of what he has done.  If you had not have done what you have done, in terms of rehabilitating and the drug thing and the support of your family, just so you know, taking Mr Nikakis' advice, I would have given you three with a two.  That is how much you have saved by the way you have conducted yourself since.

32Thank you Mr Nikakis.

33MR NIKAKIS:  Thank you, Your Honour.

34MR MORAN:  As Your Honour pleases.

35HIS HONOUR:  Thank you Mr Moran.

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