Director of Public Prosecutions v Thai

[2016] VCC 624

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-01476

DIRECTOR OF PUBLIC PROSECUTIONS

v

UYEN THAI

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2015, 3 February 2016, 29 February 2016, 2 May 2016
DATE OF SENTENCE:	13 May 2016
CASE MAY BE CITED AS:	DPP v Thai
MEDIUM NEUTRAL CITATION:	[2016] VCC 624

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Trafficking drug of dependence (heroin) – Large commercial quantity – ‘Operation Isoleucine’ – Family hardship – Whether circumstances exceptional

Legislation Cited:     Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:R v Grossi [2008] VSCA 51; Markovic v R [2010] VSCA 105; R v Panuccio [1998] VSC 300 (Unreported, Victorian Court of Appeal, 4 May 1998); R v Iaonnou [2007] VSCA 277; R v Zeba [2009] VSCA 205; R v Wirth (1976) 14 SASR 291; Wilson v R [2012] VSCA 141; R v Pidoto & O'Dea [2006] VSCA 185; Wong v R (2001) 207 CLR 585; Harris v R [2016] VSCA 70; R v Hassan [2010] VSCA 352; Ibbs v R (1987) 163 CLR 447; R v Verdins [2005] VSC 479

Sentence:Convicted and sentenced to 4 years and 4 months imprisonment with a non-parole period of 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Solicitor for the Office of Public Prosecutions
For the Offender	Mr S. Tovey	Melasecca Kelly & Zayler

HIS HONOUR: 

1Uyen Thi Thai is aged 38, having been born on 4 February 1978. 

2In this matter, Mr Pickering appeared for the Director and Mr Tovey appeared on the plea on behalf of Ms Thai.

3On 8 December 2015, Ms Thai pleaded guilty to one charge in Indictment No.C1409863.1. Such charge involves a breach of s.71 of the Drugs, Poisons and Controlled Substances Act1981 (Vic), being the trafficking of a large commercial quantity of heroin. The period of offending was four months, from 8 June 2014 to 9 October 2014.

4The seriousness of such offending is demonstrated by the fact that Parliament has prescribed the highest penalty possible under our criminal law, that is life imprisonment, together with a penalty of not more than 5,000 penalty units for a breach of such offence.

5Mr Tovey accepted Exhibit A, that is the summary of the learned prosecutor, as detailing the facts upon which his client is to be sentenced.  Ms Thai's role over such four months was to receive heroin imported into the State by the head supplier of this syndicate, to cut and package such drugs and deliver the same to suppliers who then on-supplied to the street.

6The preparation appears to have been conducted at premises at Garden Street, Footscray, which were the object or the subject of a police warrant and the placement and introduction of a surveillance operation on 11 August 2014.  Such listening device apparently remained in such premises till 11 September 2014.

7The precise role that the prisoner played in such criminality was detailed specifically in Exhibit A at paragraphs 8-11 by way of her participation, as is headed in those sections "Preparation for sale," and in paragraphs 12 through to 13 under the heading of "Delivery".

8As Mr Tovey said in his written submission, the prisoner's role was important and facilitated the movement of significant amounts of heroin.  Despite
Mr Tovey's last dot point to paragraph 5, I sentence Ms Thai, as I sentenced the co-offender, on the basis upon which she has pleaded, that is that she has trafficked not less than the large commercial quantity figure, being one kilogram.

9As I say, the plea was made on the basis that the police were unable to quantify the amount actually prepared and delivered by the prisoner, but on the basis of Schedule B to Exhibit A, it was accepted and the plea was made on such basis that there was not less than the amount required to satisfy the elements of a s.71 charge concerning a large commercial quantity. I sentenced the
co-offender in this matter, Minh Nguyen, on 3 March 2016 on such basis.

10As to the arrest of the prisoner in October 2014, at her premises at the Housing Commission flat in Flemington, in Racecourse Road, located therein were a number of SIM cards, various designer bags, the sum of $23,730 in cash and 324.9 grams of heroin. 

11There was reference to the need for the signature by me of a disposal and forfeiture order.  I am told today those documents are still being prepared.

12The prisoner has been on remand, as agreed today, for a period of 582 days.  I think that must make about 19 months?

13MR PICKERING:  Yes, roughly that, Your Honour, October until now, yes.

14HIS HONOUR:  For a person with no priors this criminality was described by the learned prosecutor as a spectacular entry into the drug trade. 

15There was no issue from Mr Tovey on behalf of his client that the Court was dealing with grave criminality for which there was no other alternative but the passing the significant sentence of imprisonment.  Mr Tovey, however, was at pains to have the Court, on the basis of exceptional hardship to the prisoner's youngest child, brought about by Ms Thai’s incarceration and the physical and medical condition of such child to submit to the Court that a shorter than usual sentence, and in particular the non-parole period should be passed, with a corresponding longer period actually on parole.

16In order to consider such submission, the Court adjourned for further hearings and submissions to both 3 February 2016 and 2 May 2016.  As to the criminality of Ms Thai, Mr Tovey accepted that the motive was purely financial.  However, by explanation put to the Court the pathological gambling habit of the prisoner.  This appears to have been longstanding, connected to the Vietnamese community in Victoria, and I should say in particular her own associates within that community, and also allegedly, unfortunately, initiated from contacts made by her at the Crown Casino in Melbourne.  I have already expressed on a number of occasions during the sentencing of persons involved in this particular operation, my concerns about the Crown Casino and the security insofar as these matters at that organisation.

17Tendered on behalf of the prisoner, Exhibits T2 and T3, which were relevant psychological reports.  In Exhibit T2, at p.4, upon the history given there was diagnosed a severe gambling disorder.  Indeed one notes in the history that in 2011, long before these offences took place, Ms Thai had indeed
self-excluded from the Casino.  One ponders to think how one so easily removes oneself from such self-exclusion, and is accepted back by the Casino.

18This severe gambling disorder, if one looks at the history and the opinions expressed in these psychological reports, may well have come about from a prior history of depression and unhappiness connected to Ms Thai's personal relationships.  Indeed the prisoner told the psychologist that the gambling debts were the reason why she ultimately became involved in this criminality owing to the demands of loan sharks who had apparently lent her money to gamble, therefore leading to the incentive to commit crime to pay back.  I make the connection in such regard with the personality disorder that is set out in Exhibit T3, p.1, that is the borderline personality disorder.

19While the prosecution accepted the history given of such gambling addiction and, indeed, noted that such gambling by the prisoner was referred to in the discussions demonstrated from the surveillance, they submitted that such should be seen as only an explanation as to why the prisoner committed the crime, that is the explanation as to why she sought to make money and, further, the prosecution submitted that such condition in these circumstances should not be seen as mitigatory. 

20In such regard, the prosecution relied on R v Grossi [2008] VSCA 51 [56] where the reasons of Redlich JA are detailed. In that paragraph His Honour refers to five reasons which are relevant here and, in my view, apply totally to the facts in this case and support not only the proposition put to me by the prosecution but the conclusion I make, that while the gambling addiction is explanatory of this criminality, such is not mitigatory.

21In the submission Mr Tovey stressed firstly the plea of guilty made by the prisoner, the utilitarian benefit of same and its indication of remorse, which I accept.  Further, in regard to the issue of remorse, Mr Tovey pointed to the report of the psychologist, Mr Ball, and to his comments as to Ms Thai’s acceptance of her criminality, and of her coming to understand the impact of such criminality upon others.

22Mr Tovey further took me to her personal history, both in her original country and in Australia.  The disappointments that she has in the past suffered with her relationships, both in her initial marriage and in the partnerships she had early on in her time in Australia, in the particular location where she has been forced to live and in the lifestyle.  He submitted that, but for the designer bags found at the premises, being the Commission flat in Racecourse Road, is testimony to the drug dealing being carried out to service gambling debts.  That is, the submission was that there is certainly no evidence of any signs of ostentation and/or enrichment from this criminality.

23Mr Tovey further submitted there were no priors of any sort.  He further relied on the conclusions reached by the psychologist, on the assumption that she is not involved in any further criminality, with appropriate support for her personality issues and in regard to overcoming the gambling affliction, she has good rehabilitative prospects.  He submitted that I should take into account, which I accept, given the personality issues disclosed, that the period of imprisonment already experienced and future periods of imprisonment are such that the experience would be, on the principles set out in R v Verdins [2005] VSC 479, in particular principles five and six, far harder for the prisoner than the general members of the community who are placed in such a position.

24The major submission put to me concerned the fate of Ms Thai’s youngest child, her 11 year old son. 

25There is no issue that the Markovic v R [2010] VSCA 105 [20] principles apply, as to the mitigation applicable to the prisoner, as to her being in prison, being unable to see her son and that he is now in State care. I accept such as it was described in this case as a conventional issue of mitigation. However, upon the analysis of the authorities, which I detailed in the sentence in these series of offences, of Thi La and Hung Tieu set out in my sentence of 11 December last year, and the fact that the prisoner had during her time of caring for her son, obviously being regularly absconding herself to either effect the trafficking and/or undertake her gambling activities, and further that she was a person who decided to be involved in such criminality. While I give such issue of mitigation some weight, in the circumstances as I see them, I do not give it a lot of weight as such mitigation.

26Mr Tovey's main submission concerned the circumstances of the youngest child's life as he has been left following the mother's remand, being such as to meet the test of exceptional circumstances test, as expounded in R v Panuccio [1998] VSC 300 (Unreported, Victorian Court of Appeal, 4 May 1998), and Markovic [13]-[15].

27Mr Tovey's submission perhaps anticipated the words of the then President in Panuccio as to the usual alleviation so produced, see p.4, [6] and [7], when he submitted that such circumstances should produce relief from incarceration, not total relief but because of the exceptional circumstances relief could be provided by expanding the otherwise appropriate parole period.

28The first issue to decide is whether the boy's circumstances meet this test. 
I accept the test as to exceptional circumstances, albeit detailed for a particular different provision and in a different Act, as set out in R v Iaonnou [2007] VSCA 277 [17], again a determination of Redlich JA.

29The matters relied upon as to Ms Thai’s youngest child were, firstly, that there was no other carer by way of the family of Ms Thai, but for the fact that he would have to be and was and has been put into State care.  As we have heard this morning the agreed time of which Ms Thai has been on remand is now 582 days and for all the time the youngest child has been under the care of the State.  That fact itself, he submitted, would not usually be sufficient on its own to qualify to the standard required, see R v Zeba [2009] VSCA 205. Of course every case depends on its own circumstances.

30However, apart from the fact of being in State care, Mr Tovey submitted I needed to take into account in my consideration of this submission the following features.  By being in State care has meant that he has been required to be placed in foster care.  As I understand the position he is now in his second foster home.  However, the reports would indicate he is being very well cared for there.

31Further, he is a boy who suffers from autism spectrum.  Exhibit T6 was tendered which was a report provided by a company called Solutions Psychology Australia and was in fact an autism assessment report provided by that company and specifically by Melissa Juzva, who is the psychologist and director.  It is of interest to note that Ms Thai’s youngest child is a person, despite his issues, of average IQ, having a level of 73.  At p.7 of such report the formulation for the appropriate assessment is detailed, it is noted that his symptoms had been present at a very early development stage and has caused clinically significant impairment in social, occupational and other important areas of functioning.

32The determination made in this report was that the criteria set out in the relevant DSM-5 was satisfied and a diagnosis was made of autism spectrum disorder, without any accompanying intellectual impairment and without any accompanying language impairment.  At p.8 in the treatment plan, it is noted that the school had sought CEO funding for support for Ms Thai’s youngest child and provide ongoing individual psychology sessions to assist him with his social and emotional difficulties.

33The next document tendered was the psychological assessment made of Ms Thai’s youngest child, Exhibit T8, 30 April 2016 by the psychologist, Ms Scicluna.  Ms Scicluna details that the child is a current client of North-West Psychological Services and has been since he has been placed in care, and has been in therapy since January 2015. 

34His family relationships have been explored, the issues of separation have been explored.  He has been referred for a diagnosis as to autism, to which I have already referred, and there is also reference by the psychologist of the steps being taken at his school, St Brendans Primary School in Flemington, his welfare team and teachers to assist him while at school.  It was noted that he was having problems at school by way of ongoing crying and he is being assisted generally by his carer and his welfare team at the school and he continues to receive assistance from the North-West Psychological Services.

35The next document was Exhibit T9, which is the report from the school.  As set out at paragraph 3, an assessment was organised for him in August 2012.  The reason for that was to identify the need for support in his learning and social skills.  It should be pointed out that he was first enrolled at
St Brendan’s as a Prep, and has been there ever since.  It seems to me that the work undertaken on his behalf by St Brendans and the assistance provided to him by the Catholic education office has been exemplary.  He has had treatment for speech issues and has had psychological treatments that I have already referred to.

36This report is in fact provided by the Principal and his Wellbeing Leader.  It concludes that he was having worries, as of meetings of March 2016, about his mother, about how long he was in care, about how he was progressing.  He has ongoing difficulties in regard to coping with school and is subject to an individual learning plan.  The school has assisted with the manner in which Ms Thai’s youngest child undertakes his schooling, emotional support, as to how he asked questions and solved difficulties and, I suppose the simple answer is, controls himself.

37In addition was tendered his case manager's report.  That was Exhibit T10 and is a report dated 2 March 2006 by his case manager, Roslynne Bourke.  She has been working with him since October 2014, which is essentially the appropriate remand period.  She engages with him for his home visits, picks him up from school.  He is currently on placement with the carer, Kerry Oliver.  He seems to be engaging in various sports.  He is living out of home care because of the incarceration.  Has fortnightly supervised visitation with his mother, which is seen to be positive for both him and his mother.  His overall health is good.  The assessment is noted, his psychological support is noted.  Her conclusion seems to me to be a conclusion that is undeniable, that he has a very good care team consisting of his carer, case manager, school welfare officer, principal, paediatrician and psychologist, all working closely to support the youngest child’s academic, social and emotional needs.

38Ms Bourke’s hope is that with those supports, the youngest child's ongoing skills will develop and he will successfully integrate his experiences.  The achievement of that hope is beyond the scope of this particular determination.  However, clearly, as I said, he is being well cared for.  It appears to me from the balance of those reports that his autism symptoms are longstanding.  His anxiety issues seem to have required treatment from approximately January 2015.  He is showing symptoms of uncertainty, of missing his mother and of concern as to how long he would be in care.  As I said, however, his underlying problems have clearly been in place and being treated long before he went into care.

39It is mystifying to me how a boy in such a situation, Ms Thai, could commit this criminality, and place her son in such jeopardy.  Since he has been in care, in my view, he has had excellent care and, may I say publicly, how well it appears to me he has been treated.

40The determination of this submission is particularly difficult. I have struggled very much with it.  As has been pointed out, we are dealing here with one of the most serious crimes in our criminal charter.  The law is very clear, that the exercise of mercy for family hardship is only exercised by a Court when circumstances are found to be exceptional.  One is conscious of the need not to act in an inhumane way, and I refer by the use of that phrase to the comments by the Court reported in R v Wirth (1976) 14 SASR 291, in particular [295] to [296].

41One perhaps hesitates to say this, but it may well be the reality that Ms Thai’s youngest child is in fact in better care now while his mother is incarcerated, than he was while she was free, addicted to gambling and committing crime over that four months' period.  However, I am conscious that albeit that we have has a remand period of 19 months, the potential of the minimum period to serve by imprisonment of which I can sentence his mother calls for a considerable further period over which he would be subject to living his life, albeit well cared for, without the care of his mother.

42As I say, this has not been an easy determination.  However, I have decided in all the circumstances to conclude that exceptional hardship has been proved.  I accept in saying that, that the prosecution has submitted to the contrary, however, as I say, I have concluded in the particular circumstances surrounding Ms Thai’s youngest child that it is appropriate for the Court to make such a determination.

43Coming then to other sentencing factors.  Ms Thai, like your co-accused, you come to be sentenced for dealing in an amount at the bottom of the range by way of the relevant quantity for trafficking in a large commercial quantity.  By way of comparison another offender in this series of offences, Men Tran, for whom you and your co-offender were actually supplying heroin to, pleaded guilty to trafficking in a large commercial quantity, being a degree of 2.8 kilograms, over a period of five months.  As I detailed, your period of offending was a period of four months.

44Your co-accused, Men Nguyen, was sentenced for offending over a period of one month.  Although recruited by you, as was noted and referred to by your counsel, he was, as I sentenced him, a willing worker for profit during such period.  The person that I sentenced as being the highest in the chain in this scheme of trafficking, the person who I described as the hub in the wheel, so to speak, Linh Trinh, was involved, as far as I had to sentence her, in a period of only one month and had pleaded on the same basis as you have to trafficking at a level not less than the commercial quantity.

45I consider, as I found with your co-accused, that you were close to and intimately assisting the criminal activities of Linh Trinh who was the hub of the wheel, she being the person at the highest level in this chain of trafficking.  You and your co-accused were assisting Linh Trinh the main supplier, and delivering this product to persons who would then on-sell to street dealers.  I find, as I did with your co-accused, that you are higher in the criminal hierarchy by way of culpability than Men Tran. 

46The same general principles apply to the trafficking in a large commercial quantity of heroin.  All Courts have consistently emphasised that any person in the chain of trafficking, irrespective of their position, is to be subject to condign punishment.  The considerations one has to take into account in these matters was set out by the Court of Appeal in Wilson v R [2012] VSCA 141 [21], where the following was said:

"In offending of this kind primacy must be given to considerations of general and specific deterrence, protection of the community and denunciation of antisocial behaviour."

47Then specifically in regard to this crime, at paragraph 26 the following was said by the Court:

"Trafficking in a large commercial quantity is an offence of utmost seriousness as the maximum of imprisonment unequivocally demonstrates.  This is particularly so where such offending was clearly done for profit."

48Ms Thai, there does not seem to be any evidence of you gaining a huge financial benefits, however you were part no doubt, as I have said about your co-accused, of assisting Trinh in obtaining large financial benefits by this scheme.  When you have a quantity based scheme such as this, it is necessary to recall that where Parliament prescribes a maximum penalty of this type, as was said in Wilson, such shows unambiguously how seriously the community through its Parliament views this particular crime.  Indeed, it is irrelevant, as set out in R v Pidoto & O'Dea [2006] VSCA 185, which particular drug is involved. The system is quantity based and we have regard to the criminal provisions in our State a quantity-based sentencing regime.

49I do want to point out, however, that quantity as such does not have an arithmetical relationship to a sentence, but of course if a very significant matter in sentencing given such scheme.  So there is no confusion in this regard,
I accept the Court of Appeal's reference to Wong v R (2001) 207 CLR 585 referred to in the recent case of Harris v R [2016] VSCA 70 and the principle expressed therein, that the weight of drugs alone can never been the chief factor in sentencing, but all the myriad factors relevant to sentencing need to be give appropriate weight given the particular facts and circumstances in any particular case.

50The scheme was fully detailed by the Court of Appeal in Pidoto & O'Dea and in particular at paragraph 54 where four of the Court of Appeal justices noted:

"By such structure Parliament has adopted a hierarchy of seriousness defined by and only by the quantity of drug of dependence that has been trafficked."

51Further in that case, at paragraph 62, the Court indicated:

"The ultimate question for a sentencing Court to consider given such structure, is not whether trafficking one drug is to be viewed more seriously than trafficking another, but what sentence should be imposed for particular trafficking bearing in mind the maximum penalty that may be imposed in dealing with the particular matter involved."

52As I have said, the maximum penalty in regard to your offence is of utmost importance and significance.  Your offence, and there was no issue with your counsel in this matter, warrants a sentence of imprisonment. His submissions, as I have said, involve the factors I should take into account, in particular the ones that I have referred to, in fixing both the head sentence and the minimum period you should serve before being eligible for parole.  I referred to these matters in sentencing your co-accused.

53The balancing of your role against the role of others in this broad syndicate that I have sentenced, in particular Men Tran and Linh Trinh, and the understanding of the serious nature of your crime, albeit at the lowest level by way of quantity for such crime, my placement of you in a higher level of hierarchy, criminal hierarchy than Men Tran, all contribute to an exquisite balancing task when determining your sentence.

54I do take into account Sentencing Snapshot No.163, taken during the period 2008/2009 through to 2012/2013 when the median total effective sentence for this offence was one of eight years with a medium period of eligibility for parole being five.  Albeit these figures show a much broader range than that.  I only refer to the median sentences.  The range, for example, goes up to 26 years for the total effective head sentence.  It is, however, important to assess sentencing snapshots for what they are and that is simply another mode to assist judges to take into account in the sentencing process of synthesis.  In that regard I refer to the comments of the Court of Appeal in R v Hassan [2010] VSCA 352.

55When considering relevant criminal culpability and/or parity, it is necessary of course to assess the objective criminality of a, crime, not so much in regard to each individual offence that may be committed, but in regard to the individual offences, for example of Men Tran's, upon which submissions have been made in this case.  I refer to the comments concerning Ibbs v R (1987) 163 CLR 447 [452] made in Pidoto & O'Dea [37] to [40] are that 'other things being equal,’ the larger quantity trafficked the more serious the offence, and I stress the comments made the Court in that matter, 'other things being equal' and to that I add the comments that I have just referred to of the Court of Appeal in Harris.

56I take into account the differences between you, as I have detailed, and Men Tran, as to such level of criminality, but of course the differences between your case and Men Tran’s and Linh Trinh, the person who I have described as the hub in the wheel, and your co-accused is my finding of exceptional hardship in regard to your son.  Such finding means that despite my comments that I have just made insofar as how I have tried to make the exquisite comparison by way of culpability between the participants that I have mentioned, necessarily the finding of hardship in regard to your son that I have made means that such is an exceptional factor which none of those persons had taken into account.

57Taking all those matters into account, Ms Thai, the sentence that I impose upon you for this crime is a period of four years and four months with a minimum period of three years. 

58In regard to the period of service of pre-sentence detention, I declare pursuant to s.18 of the Sentencing Act1991 (Vic) that the 582 days not including today that you have served on remand, be taken as service of this sentence and the declaration to that effect be recorded in this Court. The effect of that of course will be that while this can never be guaranteed you will at least be eligible for parole, if you deduct the 19 months that you have already served, in roughly 17 months from today.

59Madam Interpreter, I want you to explain the following. The Parliament has prescribed that I should tell Ms Thai that there has been a benefit to her of pleading guilty. Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty, I would have sentenced you to a period of imprisonment of six years and six months with a minimum period of four years and six months. Madam Interpreter, please tell Ms Thai that by pleading guilty the sentence in this matter that I have prescribed upon her is not six years and six months with a minimum of four years and six months before being eligible for parole, by way of her plea of guilty, four years and four months with a minimum of three years to serve.

60Any other matters that I needed to mention?

61MR TOVEY:  I may have dozed off.  Did Your Honour formally announce PSD.

62MR PICKERING: Yes.

63HIS HONOUR:  Yes five eight to - I hope you did not doze off.  I cannot be that boring, can I?

64MR PICKERING:  Your Honour, given that the forfeiture orders have not been quite finalised ‑ ‑ ‑

65HIS HONOUR:  I give leave for those orders to be made in due course.

66MR PICKERING:  Yes, we will contact Your Honour's associate.  If Your Honour pleases.

67HIS HONOUR:  Yes, thank you.  Thank you both for your assistance in this matter which I think as I just expressed has not been easy.  I am sure
Mr Pickering I will see you again in some form or other in many, many other cases, but as this is the end of this batch, if I can put it that way.

68MR PICKERING:  At last.  Yes.

69HIS HONOUR:  I thank you for your - and I might say in particular your instructor for the hard work and effort that has gone in from the DPP in assisting the Court in the series of cases.  It is much appreciated.

70MR PICKERING:  If Your Honour pleases.

71HIS HONOUR:  I might just leave the Bench.  Yes, and the prisoner can go now.  Mr Tovey, you will no doubt go down and have a chat?

72MR TOVEY:  Yes, Your Honour.

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