Director of Public Prosecutions v Taing

[2019] VCC 1738

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01259

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON TAING

---

JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	18 October 2019
DATE OF SENTENCE:	25 October 2019
CASE MAY BE CITED AS:	DPP v Taing
MEDIUM NEUTRAL CITATION:	[2019] VCC 1738

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Saunders	Office of Public Prosecutions
For the Accused	Mr R. Backwell	Theo Magaziz & Associates

HIS HONOUR: 

1Jason Taing, can you stand up please.  You have pleaded guilty to one charge of trafficking in a drug of dependence, commercial quantity; one charge of trafficking in a drug of dependence; one charge of possession of a drug of dependence; one charge of prohibited person possess firearm; one charge of handling stolen goods; and the related summary charge of deal with property suspected of being proceeds of crime.  These offences carry the following maximum penalties.  Trafficking in a drug of dependence, commercial quantity, 25 years' imprisonment; trafficking in a drug of dependence, 15 years' imprisonment; possession of a drug of dependence, five years' imprisonment; prohibited person possess a firearm, 10 years' imprisonment; handling stolen goods, 15 years' imprisonment; deal with property suspected of being proceeds of crime, two years' imprisonment.

2Each of the charges on the indictment and the transferred summary charge are 'rolled-up charges'.  Charge 1 relates to a commercial quantity of two drugs, one 1,4-Butanediol and methylamphetamine.  Charge 2 relates to a trafficable quantity of both heroin and cocaine.  Charge 3 relates to possession of MDMA and Alpha PVP.  Charge 4 relates to a number of firearms, being a 12 gauge Lefever Arms Company double-barrel shotgun and a .25 automatic calibre 1903 Premier semi-automatic pistol.  Charge 5 relates to three motor vehicles and a firearm; a grey 2017 BMW sedan, valued at approximately $80,000; a 2014 black Volkswagen Golf, valued at approximately $17,000; a 2014 red Holden utility, valued at approximately $31,830; and a 12 gauge Puerto single barrel shotgun, valued at approximately $600.  The transferred summary charge relates to $25,660 in cash; 12 laptop tablet computers; a number of mobile phone; SIM cards and other items.

3It is unnecessary for me to recount the facts of the matter in detail, as they are on transcript and contained in Exhibit 1, 'prosecution plea opening'.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise. 

4During the evening of 27 June 2018 police attended at 5 Gayle Street, Clayton South.  They were investigating the theft of the BMW sedan from a car rental depot at Melbourne airport.  This motor vehicle was in the front yard of the property displaying bogus registration plates.  You were at this property and when the police spoke to you, you provided them with a false name.  You provided your correct name shortly prior to being tested for DNA and fingerprints. 

5In addition to the stolen BMW police also located the stolen VW Golf, the stolen Holden utility and the stolen 12 gauge shotgun.  Police searched the stolen BMW.  Police located, in the boot of that vehicle, a plastic envelope that had a water bottle and a plastic container with a white crystal substance inside it and another container with a white powder.  The police formed the opinion these substances were drugs of dependence.  The police searched the house.  The house did not appear to be lived in. 

6During the search of the house police found a rear bedroom set up as an office with chairs and a desk.  In the desktop drawer were a variety of plastic bags containing a white crystal-like substance and a cooler bag containing a large amount of cash.  On a shelf behind the desk the police located a black
bum-bag.  Inside that bum-bag was a handgun with the magazine ejected and empty.  Also in the bum-bag were a plastic bag containing ammunition and other plastic bags containing a white crystal substance.  Further containers of white crystal substance were located in the office cupboard.

7The police that were conducting the search had concerns about the nature of some of these substances so they contacted the Clandestine Laboratory Squad for advice.  Members of that squad attended and conducted appropriate examinations. 

8Containers and packages with a number of different drugs of dependence were located within the office and lounge room of the premises.  These drugs were in various stages of preparation for sale.  Also located was a quantity of disposable bags, a number of sets of scales and a Cryovac ceiling machine. 
A number of bundles of cash were located in the bum-bag and elsewhere in the office.  The cash seized totalled $25,660. 

9The police also located a number of power tools, numerous computers and electronic tablets which were suspected of being the proceeds of crime.  The police located two 12 gauge shotguns within the roof cavity of the house.  One of the shotguns was identified as belonging to Eric Smith, having been stolen in the burglary of his property at Broadford.  Your fingerprints were found on one of the shotguns. 

10You were taken to the Moorabbin police station on 28 June 2018 and you made a 'no comment' record of interview. 

11There was a drug analysis conducted and I will quote from the prosecution opening in relation to the results of that analysis. 

'Drug analysis.  (43).  The containers and packages of the various drugs seized were conveyed to the Victoria Police Forensic Services Centre and analysed.  A copy of the certificate of analysis, dated 1 November 2018, is attached to this opening as Attachment 1.

(44).  In summary there were:  27 items containing
1,4-Butanediol.  The total quantity of 1,4-Butanediol was 10,612.4 grams, equivalent to 10.6 kilograms; 13 items containing methylamphetamine.  The total quantity of methylamphetamine was 421.1 grams, with an average purity of approximately 84 per cent; there were 13 items containing diacetylmorphine (heroin).  The total quantity of heroin was 124.3 grams, with an average purity of approximately 70 per cent; there were three items containing cocaine.  The total quantity of cocaine was 30.5 grams; one item containing MDMA.  The total quantity of this substance, including the MDMA, was 0.5 grams; and finally, one item containing Alpha PVP.  The total quantity of this drug, 0.1 grams.'

12The scale of this offending is illustrated in the photos taken of the search by police and Appendix 1, the Certificate of Analyst. 

13I state to you that I have taken into account the following matters in mitigation of sentence:  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  Your plea of guilty has utilitarian value and has facilitated the course of justice.

14You pleaded guilty at a relatively early stage, at the third listing of the committal.  No witnesses were cross-examined.

15I accept from your plea of guilty and all the material before me, that you are genuinely remorseful. 

16I have been told something of your personal circumstances.  You are 30 years of age, having been born on 9 June 1989.  You were born in Australia to Thai and Cambodian parents.  You were educated to Year 8 level.  You have had a number of unskilled jobs.  You last worked in 2011.  You and your partner have four young children.  You have been a long-term user of illicit drugs.  Methamphetamine was your drug of choice. 

17A psychological report from Ian McKinnon, dated 11 October 2019, has been tendered on your behalf.  He describes your background and general circumstances.  He has diagnosed you as suffering from an acquired brain injury, polysubstance abuse disorder and PTSD.  I have taken these matters into account as part of your general personal circumstances. 

18It is not submitted on your behalf that any of the well-known principles enunciated in Verdins case apply.

19You have been in custody since your arrest on 28 June 2018.  The pre-sentence detention is 485 days.  I accept that you have been using your time in custody in a constructive manner.  You have completed a number of relevant courses concerning drug use, harm reduction and employment options. 

20References and testimonials were tendered on your behalf from your parents and your brother and sister.  They describe your deep remorse for your offending, prior good nature and good works helping others such as teaching the Khmer language.  They believe you started mixing in bad company and this led to this offending.  I accept that you have good support from your immediate family.

21I asses your prospects of rehabilitation as being cloudy given your long-term drug use, prior matters and the nature of this offending. 

22Against these matters in mitigation, however, your actions were very serious indeed.  You have been trafficking in a commercial quantity of two drugs, the 1,4-BTD and ice, trafficking in the drugs of heroin and cocaine, you possessed firearms, you were in possession of drugs, cash, stolen motor vehicles and many other items. 

23A further aggravating factor is that the offending occurred whilst you were undergoing the sentence of a community corrections order imposed at the Dandenong Magistrates' Court on 20 December 2017. 

24This brings me to a discussion and analysis of your prior history.  You have admitted before me numerous prior convictions.  There are approximately seven court appearances between 25 May 2010 and 20 December 2017 involving convictions for breaching court orders, drug offences, offences of dishonesty, motor vehicle offences and weapons offences. 

25The nature of some of these prior convictions, particularly for drug trafficking and other drug offences and offences of dishonesty is highly relevant to my task of sentencing you today. 

26As well as the matters to which I have referred I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant in view of your extensive relevant prior criminal history.  General deterrence is also of considerable importance in a case such as this.  Superior courts have consistently emphasised that drug trafficking must be discouraged.

27I was provided with the authorities of Gregory [2017] VSCA 151, Condo [2019] VSCA 181 and Arici [2019] VSCA 228. I have had regard to these Court of Appeal decisions and particularly the discussion of appropriate sentences for trafficking in a commercial quantity of a drug of dependence.

28I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.  It is not in issue that an immediate custodial sentence is required.  There ought be a total effective sentence and non-parole period.

29Charge 1, trafficking in a commercial quantity of a drug of dependence is the most serious offence.  The sentence on Charge 1 will be the base sentence.  Given the number of charges I have imposed appropriate individual sentences in all the circumstances with some degree of cumulation in respect of most of the remaining charges.

30Having regard to all relevant facts and appropriate sentencing principles,
I sentence you as follows:

31Charge 1, convicted and sentenced to seven years' imprisonment.

32Charge 2, convicted and sentenced to three years' imprisonment.

33Charge 3, convicted and sentenced to six months' imprisonment.

34Charge 4, convicted and sentenced to 12 months' imprisonment.

35Charge 5, convicted and sentenced to two years and six months' imprisonment. 

36The summary charge, convicted and sentenced to 12 months' imprisonment.

37I direct that 12 months of the sentence impose on Charge 2; six months of the sentence imposed on Charge 4; 12 months of the sentence imposed on
Charge 5; and six months of the sentence imposed on the summary charge, be served cumulatively upon the sentence imposed on Charge 1 and upon each other.  Otherwise the sentences are to be served concurrently. 

38The total effective sentence is 10 years' imprisonment.

39The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist.  For that reason, it cannot be fixed automatically.  I have to consider when you should be eligible for mitigation of confinement and in turn, rehabilitation under conditional supervision.  In all the circumstances, I direct that you serve a minimum term of seven years before becoming eligible for parole. 

40As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is 485 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court. 

41I shall make the disposal and forfeiture orders sought by the Crown.

42Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and
non-parole period I would have imposed, but for the plea of guilty, is 13 years with a non-parole period of nine years.

43COUNSEL:  If Your Honour pleases.

44HIS HONOUR:  Does that cover the formalities?

45MR SAUNDERS:  It does, thank you, sir.

46HIS HONOUR:  Thanks very much.  I will just stand down temporarily.  The prisoner can be removed.  Thanks, Danny, I will just move courts.  Thank you.

‑ ‑ ‑