Director of Public Prosecutions v Thach

[2022] VCC 2356

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
 Not Restricted
Suitable for Publication

Case No. CR-21-01196

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANH THACH

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2022
DATE OF SENTENCE:	19 May 2022
CASE MAY BE CITED AS:	DPP v Thach
MEDIUM NEUTRAL CITATION:	[2022] VCC 2356

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              One charge of trafficking in a commercial quantity of heroin – one summary charge of dealing with property suspected of being the proceeds of crime (four debit cards and one Medicare card) – long term drug abuse and trafficking – significant criminal history – guarded prospects of rehabilitation.

Legislation Cited:      Sentencing Act 1991 (Vic), Confiscation Act 1997 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169

Sentence:                  Total effective sentence 4 years and 10 months with non-parole period 3 years and 3 months.

636 days pre-sentence detention reckoned as already served.

6AAA: 6 and a half years with non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T Crouch	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J Barreiro	Victoria Legal Aid

HER HONOUR:

1Thanh Thach, you have pleaded guilty to one charge of trafficking in a commercial quantity of heroin which carries a maximum penalty of 25 years’ imprisonment.  In addition, you have consented to a summary charge being uplifted to the County Court and have pleaded guilty to that charge. That is a charge of dealing with property suspected of being the proceeds of crime, which carries a maximum penalty of 2 years’ imprisonment.

2The circumstances of your offending are summarised in the prosecution opening, Exhibit “A”.

3On 17 September 2018, police arrested you and charged you with trafficking in heroin in a commercial quantity.  The basis of this charge is that police found quantities of heroin inside a small lockable black and silver word-combination safe which was attached to the wall of a self-storage unit leased in your name at Kennards Self Storage at 881 Princes Highway, Springvale.  The heroin was contained in four plastic bags in a total quantity of 113.7 grams of 77 per cent purity, and another smaller amount of 1.8 grams of 74 per cent purity which was wrapped in a piece of white paper.  Your plea to the charge was accepted on the basis that you trafficked in a commercial quantity of 88.8 grams of pure heroin (the commercial quantity threshold of pure heroin being 50 grams). 

4The manager of Kennards Self Storage, had provided evidence that you had signed a contract to lease the self-storage container on 7 August 2018. On multiple occasions you had attended to pay for the monthly storage, which at the time of offending was $250 and, sometimes, had paid either two or three months’ rental at once.  At the request of police, he had printed out records of your attendance at the storage facility and also provided CCTV footage showing your attendance there. It tended to be once or twice a week and, often, late at night or in the very early hours of the morning, which raised his suspicions.  In addition, he noted that, when you attended, you would be constantly looking around, as though to make sure people were not watching you. Then you would go to your storage unit and close the door of it straight away, whereas most customers would go into their storage unit and leave the door wide open.  He stated that, in approximately four months leading up to the date of your arrest, you sometimes came with other people to the unit and, on other occasions, other people would come without you.[1]  The prosecution conceded that it could not prove your ownership of some other items located in the self-storage unit. However, three DNA samples taken from the plastic bags in which the heroin was contained were analysed. The expert opinion provided by the forensic scientist was that the analysis indicated that it was one hundred billion times more likely that you were a contributor to the mixed DNA profile than if you were not a contributor.[2] 

[1] Statements dated 14 October 2019, 19 October 2019 (Depositions pp 44 – 53, pp 52 – 68) and committal transcript 7 June 2021 (Depositions pp 268 – 287)

[2] DNA Case Results Summary, Depositions p 219.

5Following your arrest, police searched an address in Woomera Avenue, Keysborough. In a bedroom occupied by you, they found five cards in the names of people other than yourself.  These comprised two Visa Debit Cards, one Commonwealth Bank Visa Travel Money Card, one Commonwealth Bank Debit Mastercard and one Medicare Card.  Your possession of these cards is the basis of the summary offence of dealing with property reasonably suspected to be the proceeds of crime.

6You are presently aged 37, almost 38 years, having been born in June 1984.  You come before the court with a significant criminal history dating back to 2002. On 10 April 2003, on an appeal to the Supreme Court, you were convicted of armed robbery and sentenced to a term of imprisonment of 4 years with a non‑parole period of 2 years.  Thereafter, you had Magistrates Court appearances in 2008 for driving offences, dishonesty offences and possession of illicit drugs, which resulted in a term of imprisonment of 12 months to be served by way of Intensive Correction Order and, also, a sentence of imprisonment of 6 months which was wholly suspended for a period of two years.  You breached the suspended sentence by further offending, which appears to have included trafficking in heroin and other offences such as driving whilst disqualified and driving in a manner dangerous, for which you were given an aggregate sentence of 9 months’ imprisonment.

7In 2010 you (again) appeared before the Magistrates Court in relation to possession of illicit drugs. In 2011 you appeared for more of the same and trafficking in heroin (again) together with dealing with property suspected of being the proceeds of crime, for which you were given a 3 month sentence of imprisonment wholly suspended.  Three years later, in 2014, you were before the court for recklessly causing injury for which you were given 10 months’ imprisonment wholly suspended for 2 years.  Subsequently, in 2015 and 2018, you appeared before Magistrates Courts for various driving offences, as well as offences of possessing prescription medication and methylamphetamine, for which you were given Community Correction Orders.

8Following your arrest, you were remanded in custody on 17 September 2019 and served some 630 days on remand, before being granted bail on 7 June 2021 following a contested committal.  Subsequent to the committal, on 26 November 2021, the matter resolved by you indicating that you were prepared to plead to the one charge on the indictment and the summary charge.

9Mr Barreiro, in a plea on your behalf, told the court that, since being released on bail, you have complied with strict conditions, which included a curfew, and have obtained full-time employment with Elite Staffing Solutions, working at Susan Day Cakes in Hallam assisting with the preparation of cakes sold in supermarkets.  You have been living in secure accommodation with your older sister, Teekay, and her nine year old son and have remained drug-free for the first time in approximately 25 years. Your former partner gave birth to your child in April 2019 and, since being granted bail, you have been seeing the child weekly and are committed to being a good father to him. Mr Barreiro stated that, when you were 6 years old, you migrated to Australia from Vietnam with your mother and siblings. You left behind your father who had never been a role model for you. You are motivated now to ensure that the same thing does not happen to your son.

10Mr Barreiro submitted that the time that you had served in custody was sufficient punishment for your crime of trafficking which was committed “to sate [your] own addiction to heroin as distinct from an individual trafficking for profit”,[3] noting that the trafficking was put on the basis of quantity alone.  He submitted that you have optimistic rehabilitation prospects in the light of the fact that you had accepted responsibility for your crime by pleading guilty and the other positive factors to which I have just referred. He urged that yours was a case where mercy should be exercised because you had been battling drug addiction for over two decades and a degree of leniency might lead to long term reform. 

[3] Paragraph 18 of Defence Outline of Plea Submissions (Marked for Identification -“I”).

11Save for the written submissions of your counsel, the plea was remarkable for the absence of any other tendered material.  There was no reference from your employer, no material relating to any drug treatment or rehabilitation (although your counsel claimed that you had seen a doctor, but were not receiving any specialist drug rehabilitation treatment), no reports of urinalysis confirming that you had remained abstinent from illicit drugs and no evidence that you had been prescribed suboxone or any other substitute medication to help you cope with what was described as an addiction to heroin over some 25 years.

12Mr Barreiro submitted that your criminal history should satisfy the court of your addiction on the balance of probabilities. I pointed out that the history showed that there had been substantial periods when you had not been before courts - five years between 2003 and 2008 (albeit that during approximately two years and seven months of this period you were still undergoing a sentence of imprisonment), three years between 2011 and 2014, and 2 ½ years between 2015 and 2018. In response, Mr Barreiro stated that there had been times when you had not been using illicit drugs and, in particular, between 2015 and 2018 you had been in a healthy relationship with the mother of your now three year old child.  However, he claimed that in the leadup to the offending for which I must sentence you, your drug use had escalated “as a result of your partner falling pregnant, and (you) not being able to cope with the prospect of being a father”.[4]

[4] Paragraph 8 of Defence Outline of Plea Submissions (Marked for Identification – “1”)

13Ultimately, Mr Barreiro called you to give sworn evidence at your plea hearing.  Some of what you told the court contradicted what had been stated by Mr Barreiro. He had stated that the gaps in your criminal history reflected periods when you had ceased using illicit drugs and not committed criminal offences, whereas you stated that during those periods you had still been using illicit drugs, “but [you thought] you just got lucky not to get pulled up for it” and that trafficking or “pushing” drugs is “what [you] did all [your] life”. 

14You stated that you had commenced taking marijuana with other adolescents in your area when you were about 13 as “just a social thing” and this somehow progressed to using heroin and, within six months, you had become highly addicted to heroin such that you needed it to be “normal”.  You stated that you had first appeared before the Children’s Court when you were about 15 years of age and your drug use and offending were very much related. 

15You stated that heroin had been a problem for you all your life and, at the time of being remanded into custody on 17 September 2019, you were injecting 0.4 grams of heroin intravenously between seven and 10 times each day.  You seemed to suggest that this had been your habit for some three or four months prior to you being arrested. Prior to that, you had only taken one shot of 0.1 of a gram of heroin each day and had managed to hold down a job with a family trucking company for two years over the period from 2017 to 2019.  You stated that you were earning some $50,000 per year and you were the Operations Manager of the firm, which is run by your sister and brother-in-law.  You stated that it was a fairly difficult job, where you had to give delivery orders to truck drivers, delegate work to a few staff, supervise staff  and perform other tasks around the premises.  You maintained that you were sufficiently clear-headed to be able to do this work, but not to stop taking some heroin.  However, your evidence seemed to be somewhat inconsistent in that you claimed that you lost that job in or about June 2019 because you were not doing the work properly and had received reprimands and warnings.  You stated that, after losing your job, your heroin use increased and, within a couple of months, you were supporting yourself by “pushing” drugs. You made no mention, as Mr Barreiro had submitted, that it had been “not being able to cope with the prospect of being a father” that caused your heroin use to escalate.

16You stated that you had obtained the quantity of heroin which is the subject of the trafficking charge, on credit “from someone [you] knew within the circle” as you have “a good credit history with the drug scene”.  You stated that the quantity of pure heroin which forms the basis of the charge was a bit under 3 ounces, albeit that you apparently had purchased it as 5 ounces in a mixed quantity of heroin from your suppliers. You stated that, at that stage, the price you paid for an ounce of pure heroin was $5,500, so the amount which was found in the safe in your self-storage facility was worth over $15,000.  You said you were provided it on credit and, in order to pay your suppliers, you would then “push it onto people”. You stated that, you have “clientele” to whom you would sell heroin, usually in a quantity of a ¼ ounce or less. When asked by your counsel whether you would sell it to others for a price higher than for what you had bought it, you responded, “Of course, that is the only way I can make a profit out of it”. You stated that you would obtain $1,700 or $1,800 for selling a ¼ ounce.  You stated that the people to whom you “pushed” the heroin were users “just like [you]. Working, using, just to… I dunno” and, on many occasions, you provided them with heroin on credit.  You were asked whether your customers would on-sell the drugs to others and you stated, “I can’t say with certainty, but I know they worked to pay their drugs off, like me”. 

17I infer from your sworn evidence that the commercial quantity of heroin which forms the subject of the charge was intended to be “pushed” by you onto others in the same quantity and for the same prices as your dealings in the past. Thus, it is not strictly correct to state that you were trafficking “solely to sate your own addiction”. At one point in your evidence, you stated that you made $500 to $600 per ounce but did not clarify whether that was for mixed heroin or pure heroin. If you obtained 1 ounce of pure heroin for $5,500 and on-sold it in amounts of ¼ of an ounce at $1,700, or $1,800, this would result in sale prices of $6,800 to $7,200 per ounce and, hence, a profit of $1,200 to $1,700 per ounce. It is something of an understatement to say that your evidence was not crystal clear, but you definitely conveyed that you “pushed” drugs for a profit and admitted that, when doing that, you did not think about the impact on your customers.

18In contrast to your counsel’s submission that you had reflected on your situation and determined to remain free of drugs whilst remanded in custody, you told the court on oath that, when initially remanded in custody, you “smoked a bit of weed, smoked a bit of ice, used a bit of ‘bupe”.  You maintained that in the first three months in custody you “racked up 27 incidents” because of your behaviour and were moved from Fulham Prison to Marngoneet Prison. You stated that, once you were at Marngoneet , “because of lockdown, there was nothing to play around with there and that [you] didn’t use heroin then because there wasn’t any”.  Thus, it seems it was a situation of enforced abstinence from drugs, rather than you making a conscious decision that you would remain abstinent – although it is possible that you did use this time to reflect upon your long term criminal lifestyle.

19When I queried your breach of community-based dispositions by courts in the past and an apparent failure to seek out any treatment for your long-term drug problem, you stated that such treatment “makes you want to use more, talking about drugs that you want to quit.”  When the prosecutor, in cross-examination, asked whether you had any concerns about your ability to remain abstinent without assistance, you stated, “At the end of the day when you are ready to quit you will.  I don’t think anyone else can persuade you.”  You maintained that, in the last year, it has been the only time in your life that you have not used heroin and you are motivated in your abstinence by wanting to be a good father to your son.  You stated, “Of course I don’t want to go back to gaol, but it does not bother me.” 

20I must say that I found your evidence to be troubling. You seemed somewhat cavalier when you told the Court that your entire adult life you had been a drug trafficker. You appear to have very little insight into your need for treatment, and, when asked about your failure to comply with community-based dispositions, you stated, “What you don’t realise is that when you have nothing to live for, no responsibility and no obligations, your drug habit doesn’t affect anyone else except you and those who use your drugs.” You went on to state that you had been incarcerated at a very young age and “to me it is not a punishment.  It’s more like where you go where you go to clean up your act and not have worries about bills and problems and that.”  You made it clear that, during previous custodial sentences you had always continued to use illicit drugs which were available and, that your time in Marngoneet had been an exception.

21In all the circumstances, I do not share your counsel’s optimism concerning your prospects of rehabilitation. Your appearance in the witness box after lunch was characterised by long pauses before you gave answers to questions and long pauses in the middle of your answers. You seemed, at times, not to understand the questions and to have difficulty concentrating upon what was being asked of you. You gave the appearance of being affected by some substance, but stated that you were not. Whilst I can appreciate that giving evidence in court may be stressful, you seemed to be somewhat removed from the situation. It may be that your demeanour is that of a long term drug user, but if you were in a drug-free state whilst giving evidence, it made me wonder how you had managed to focus upon your daily tasks at work. At one level, it might be said that you were honest about having been a drug trafficker for years. At another level, you appeared to be largely indifferent to the consequences that flowed from your criminal lifestyle, which carries so much potential harm to others. You did state that, now your mind is clear, you “feel bad” about having given people drugs, but my overwhelming impression was that you have been immersed in a  lifestyle of drug use and trafficking and other crime for so long that it is going to be very difficult for you to break those habits.

22Mr Thach, I do not doubt that you have been a user of illicit drugs from a relatively early age.  Indeed, your counsel drew to the Court’s attention your record in the Children’s Court, which dates from 21 January 2000 when you were before the Court for trafficking heroin and possessing money being the proceeds of crime at the age of 15 years.  On 28 April 2000, you were dealt with for these offences by way of a without conviction Youth Supervision Order for a period of 12 months, which you subsequently breached by further trafficking and, on 18 August 2000, were sentenced to a period of 6 months in a Youth Training Centre.  By 27 June 2002 you found your way to the County Court charged with armed robbery, which was the subject of the appeal to the Supreme Court resulting in the sentence of 4 years’ imprisonment with a non‑parole period of 2 years to which I have already referred. You told the Court that you served the whole of the  4 year sentence without being granted parole. This was possibly related to you continuing to use illicit drugs whilst in custody. Therefore, you apparently did not utilise any community-based dispositions which courts gave to you to try and alter your attitude about criminal offending or try to get yourself away from using drugs. 

23The dearth of material to support your claim of having ceased to use drugs since being granted bail on 7 June 2021, after over two decades of drug abuse and without any professional rehabilitative assistance, causes me to conclude that I cannot be satisfied on the balance of probabilities that you have ceased using drugs.  I here note that you claim to have worked for a two-year period over 2018 and 2019, but still took heroin on a daily basis in order to “feel normal”.  You have admitted on oath that you intended to deal with the commercial quantity of heroin which forms the subject of the charge by selling it in ¼ ounce deals, or less, as you had done before. This enabled you to pay for your own usage, as well as, make a profit.  Thus, on your own admission there was a commercial element to your trafficking.

24There are a number of things that remain unexplained about your offending.  These include why you would have carefully secreted the commercial quantity of heroin in the small locked safe, which police had to use bolt cutters to remove from the inside wall of the self-storage unit, if you were, as you claimed, so concerned to protect it from others who used the storage unit.  It was hardly conveniently located for personal use, and the description, by the manager, of you attending the storage unit at unusual hours in the dead of night and being clandestine in your behaviour when you did so, are consistent with an element of commercial activity albeit there is no evidence of any personal enrichment on your part. Although, the quantity of heroin involved and the likely profits from sales were a long way from being the worst examples of commercial trafficking that one sees in this Court, they are also considerably above the pathetic street-level trafficker who divides and mixes small quantities of an illicit drug to on-sell in order to fund his addiction. You told the Court in your evidence that you’d never “cut” what was supplied to you, but you’d “just grab whatever they give me and you basically push it back or move it on” and you made sure that you never used more than your profit margin.

25While drug addiction is not necessarily mitigatory, your moral culpability is less than those individuals who, themselves, have no dependence upon drugs and make vast profits from the misery of others’ drug addiction.  However, illicit drugs have been aptly described by courts in the past as a scourge on our society because of the harm that they do, and this is harm of which you should be very well aware.  Decades have now passed since you first entered the criminal justice system and you have not done yourself any favours by declining to take advantage of dispositions which enabled you to stay in the community. At the time you committed these offences you were already on bail for other offences. On the day prior to your arrest, police had ascertained that you were not living at the address in Hallam where you were supposed to have been living according to your bail conditions.  When police attended that address, your mother stated that she had resided there for 4 years, during which she had had no contact with you,  and that you had never lived at that address. That you committed this offence during while on bail for other offences is an aggravating circumstance.[5]

[5] Statement of senior constable Aaron Gillies dated 29 April 2021, Depositions p 254 – 5.

26In sentencing for this offence, the Court must denounce your conduct and place emphasis upon general deterrence.  This means sending out a message to other people who might be minded to engage in drug trafficking, that it will not be worth their while and they will be appropriately punished.  Illicit drugs do so much harm in our community because of their adverse effects on the physical and mental health of users, who commit criminal offences and thereby impact upon the wellbeing of the victims of crime. Abuse of illicit drugs create a burden on our health and hospital systems, which deal with those suffering drug overdoses or impaired mental health. They also create a burden on our police force, which must devote considerable resources to detecting drug-related crimes, and our court system which must deal with offenders.  The cost to the entire community of trafficking in illicit drugs is a large one.

27Apart from general deterrence, there must be some emphasis upon specific deterrence as you have, on multiple occasions in the past, been before the Court for drug trafficking and, on your own admission, have been a drug trafficker for virtually all your adult life.  The amount involved in this commercial trafficking was over one and a half times the commercial quantity of heroin and of high purity and involved some degree of planning, particularly the secure housing of the heroin in the commercial storage unit.  At best, your prospects of rehabilitation are guarded, given your lengthy feckless lifestyle of drug abuse and criminal offending and lack of acknowledgment that you need treatment.  Not only is there no report of urinalysis to show that illicit drugs have not been present in your system, but not even one rehabilitative certificate was tendered to show that you had turned your mind to educating yourself about the harm of illicit drugs and relapse prevention strategies, either in custody or out of custody. Your counsel told the court that you had the ongoing support of your mother and sister, but neither of them were present in court to support you or gave any evidence on your behalf. [6] Nor was there any evidence from your former partner concerning the parenting of your son.  If you have managed to remain drug-free whilst at liberty in the last year, that is to your credit, however, it is an early rehabilitative step given the length of your illicit drug use for a period in excess of two decades.

[6]         Although Mr Barreiro, at one stage during the plea hearing, indicated that he may either tender some

Material from Mr Thach’s sister or call her to give evidence, neither occurred.

28The offence of trafficking in a commercial quantity is a Category 2 offence pursuant to the definition in sub-paragraph (g) of s3 of the Sentencing Act.  Thus, pursuant to s5(2H), I must impose a sentence of imprisonment unless the circumstances detailed in sub-paragraphs (a), (c), (d) or (e) of that sub-section apply. None of those exceptions apply and there can be no doubt that the only appropriate sentence is a term of imprisonment involving a head sentence and a non‑parole period.  To simply sentence you to the time served in custody (636 days) would not adequately reflect the gravity of your offending, even taking into account your plea of guilty and its enhanced utilitarian value given that it was made during the time when restrictions associated with the COVID‑19 pandemic made it very difficult, indeed, to run criminal trials in the State of Victoria. I am conscious that in these circumstances there is a need for courts to give a real and tangible discount on the sentence which otherwise would have been given in order to reflect your facilitation of the course of justice[7].

[7]Worboyes v The Queen [2021] VSCA 169

29In sentencing you I take into account that, following your remand back into custody on 12 May 2022, you would have been required to undergo 14 days in isolation. Also, part of your time on remand previously was subject to onerous COVID-19 restrictions, and conditions in custody are continuing to be more burdensome, generally, because of ongoing COVID-19 restrictions which, from time to time, result in reduced out of cell time and reduced availability of programs, as well as a lack of contact visits from family and friends.  The Court acknowledges these factors by giving a lesser sentence than would otherwise have been the case.

30Whether you are given parole will depend upon your behaviour whilst in custody.  If you are tempted to take illicit drugs if they are available, then that will stymy your chances of rehabilitation and stymy your chances of obtaining parole.  It can only be hoped that you will be granted parole and that you will take advantage of the support and supervision available to you when you are released from custody.  If you do not, I foresee a bleak future whereby you will continue to lead a wasted life and be a menace to the community by continuing to commit criminal offences. 

31The summary offence is indicative of the dishonesty which seems to have become part of a way of life for you.  Your possession of three debit cards, a Mastercard and a Medicare card belonging to others means that those others have been inconvenienced by the loss of that card. As is evident from your criminal record, this offence of dealing with property suspected of being the proceeds of crime is one that often goes hand in hand with drug trafficking and drug use generally. It is a prevalent offence which courts must denounce and which requires appropriate emphasis on general and specific deterrence and just punishment.

32On one charge of trafficking in a drug of dependence in a commercial quantity, you are convicted and sentenced to be imprisoned for a period of 4 1/2 years.

33On the summary charge of dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to be imprisoned for a period of 12 months.

34The base sentence is that imposed on the indictable offence.  I direct that 4 months of the sentence imposed on the summary charge be served cumulatively upon the sentence imposed on the indictable charge.

35The total effective sentence is thus 4 years and 10 months’ imprisonment.  I direct that you serve a period of 3 years and 3 months’ imprisonment before becoming eligible for parole.  I declare a period of 636 days pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.

36Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 6 ½ years imprisonment with a non‑parole period of 4 years.

37Pursuant to section 78(1) of the Confiscation Act 1997, I order the forfeiture to the State of Victoria the property referred to in the Schedule, AND I FURTHER DIRECT that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed then destroyed.