Director of Public Prosecutions v To
[2020] VCC 1479
•17 September 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-20-00115
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRUONG TO |
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| JUDGE: | HER HONOUR JUDGE DAWES |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 September 2020 |
| DATE OF SENTENCE: | 17 September 2020 |
| CASE MAY BE CITED AS: | DPP v To |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1479 |
REASONS FOR SENTENCE
---Subject: Criminal Law - Sentence
Catchwords: Prohibited person in possession of a firearm; trafficking in methylamphetamine
Legislation Cited:
Cases Cited: Astbury v The Queen [No 2] [2020] VSCA 158.
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Shaw | Ms A. Patterson, Solicitor for Public Prosecutions |
| For the Offender | Ms M. Carroll | Emma Turnbull Lawyers Pty Ltd |
HER HONOUR:
1Truong To, you have pleaded guilty to the following:
· Being a prohibited person in possession of a firearm. The maximum penalty for this offence is 10 years' imprisonment.
· Trafficking in methylamphetamine. The maximum penalty for this offence is 15 years' imprisonment.
2You have also pleaded guilty to two related summary charges:
·Being in possession of cartridge ammunition without a licence or permit. The maximum penalty for this offence is 40 penalty units.
·Committing an indictable offence while on bail. The maximum penalty for this offence is 3 months' imprisonment.
3At the relevant time, you resided with your parents and two younger siblings in St Albans.
4The circumstances of your offending have been tendered in the prosecution plea opening. I will provide a brief outline.
5On 4 April 2019, police executed a search warrant at your home. You were not present at the time. Police searched your bedroom and located:
·a .22 calibre Winchester rifle under your bed,
·an assortment of ammunition in a zip-lock plastic bag,
·two shotgun cartridges inside another bag,
·assorted drug paraphernalia on the desk and floor.
6Police then searched the garage at the rear of the premises, where they located some equipment associated with manufacturing methylamphetamine.
7The firearm that was found was not operable. Its barrel had been sawn-off, as had the buttstock, which had been fashioned into a pistol grip. The serial number had been removed. The rifle was not stored securely and was unregistered.
8You were a prohibited person at the time, as you had been subject to a community correction order with a supervision condition within the previous five years. You were not the holder of a firearms licence. You were not authorised to possess cartridge ammunition. There is no evidence, however, that the ammunition was compatible with the Winchester rifle.
9On 12 April 2019, police executed a further search warrant at your home, where they seized the drug paraphernalia and equipment.
10On 15 May and 27 June 2019, two unrelated warrants were issued at Court as you failed to answer one summons for contravening a community correction order and another summons for unlicensed driving.
11On the morning of 5 July 2019, the warrants were executed and you were taken into custody at the Werribee Police Station. While in the cells, you engaged in conversation with a police covert operative (CO311). You were released on bail later that day and the covert operative drove you home.
12You told him that you had access to methylamphetamine. Further, that you usually sold a minimum of one ounce (28 grams) at a time and you would sell him a sample of 3.5 grams for $500. You exchanged Wickr handles so that he could purchase methylamphetamine from you.
Transaction 1 - 5 July 2019
13Later that afternoon, you and the covert operative arranged a drug transaction by exchanging Wickr messages. At around 2.50pm, you met him in the car park of a sporting club in St Albans. You were driven there by an unknown male in a grey Holden Captiva. You delivered the drugs to the undercover officer and he paid you $500 in cash. You told him that the methylamphetamine was of very high quality.
14Analysis revealed that the drugs were methylamphetamine, weighing 3.5 grams, at 83 per cent purity.
Transaction 2 – 10 July 2019
15On 8 July 2019, you exchanged Wickr messages with the covert operative regarding the supply of drugs. You quoted prices of $3,200 for one ounce, $3,000 per ounce for two ounces and $2,900 per ounce for three ounces.
16On 10 July 2019, the covert operative contacted you and arranged a meeting. At around 2.05pm, he picked you up from your house and drove you to the Sunshine Police Station to report on bail. You then both returned to your house, parking nearby. You went inside. A short time later, the same Holden Captiva, driven by an unknown male, entered the street and parked across the road from your house.
17You came out to speak to the driver before he followed you inside. You then returned to C0311's car and delivered drugs to the undercover police officer. He paid you $3,300 in cash. You told him that you had to go to the Captiva driver because you needed to work and you had to run some errands for him.
18Analysis revealed that the drugs were methylamphetamine, weighing 28 grams, at 79 per cent purity.
Transaction 3 – 18 July 2019
19On 18 July 2019, the covert operative contacted you by Wickr, arranging to meet you. He arrived at your house at 12.55pm and a black Lexus, driven by an unknown male, was parked in the driveway. You came out to the covert operative's car and were paid $3,100 in cash. You went to the Lexus, then back inside your house and the Lexus drove away. You came back to the covert operative's car and handed him the drugs.
20Analysis revealed that the drugs were methylamphetamine, weighing 27.9 grams, at 77 per cent purity.
Transaction 4 – 29 July 2019
21On 29 July 2019, you and the covert operative exchanged Wickr messages. At 10.50am, he arrived at your house and you told him to wait in his car. At 11.45am you came out and sat with him. Sometime later, a silver Honda Accord, driven by an unknown male, arrived and parked in your driveway. The covert operative gave you $3,200 in cash. You took the money to the Honda and returned to the covert operative, handing him the drugs.
22Analysis revealed that the drugs were methylamphetamine, weighing 27.8 grams, at 73 per cent purity.
Transaction 5 – 15 August 2019
23On 15 August 2019, you and the covert operative exchanged Wickr messages. At around midday, the covert operative met you in the driveway of your house. A short time later, the same Honda Accord, driven by an unknown male, arrived and parked in the driveway. The covert operative gave you $3,200 in cash. You waved to the driver of the car, taking him inside your house. A few minutes later you both came out and he drove away. You gave the drugs to the covert operative.
24Analysis revealed that the drugs were methylamphetamine, weighing 27.8 grams, at 71 per cent purity.
25On 7 October 2019, you were arrested for an outside warrant that had been issued on 4 September 2019, for an unrelated driving matter. Police conducted a record of interview with you in relation to this matter, where you elected to answer “no comment” to the allegations. You were charged and remanded in custody.
26The offence of trafficking in a drug of dependence occurred between 5 July and 15 August 2019. The drugs seized were methylamphetamine, mixed with other substances. The average purity of the methylamphetamine was approximately 77 per cent.
27A traffickable quantity of methylamphetamine is 3 grams. A commercial quantity of methylamphetamine in a mixed form is 250 grams. The transactions that are the subject of these proceedings were 115 grams in total, significantly in excess of a traffickable quantity.
28A commercial quantity of methylamphetamine in a pure form is 50 grams. Analysis reveals that the total quantity of pure methylamphetamine was approximately 87 grams, exceeding that threshold by 37 grams. The prosecution accepts that despite the quantity of pure methylamphetamine, you did not intend to traffick in a commercial quantity and this case has proceeded on the basis of one charge of trafficking simpliciter.
29Trafficking in methylamphetamine is an inherently serious offence. You have pleaded guilty to offending over a six week period. The harmful effects that flow from the distribution of methylamphetamine in our community are well known. Your trafficking involves a significant amount of methylamphetamine at a high level of purity.
30You are the only offender to have been charged in relation to this matter. You assert that your involvement was to ensure an ongoing supply of illicit drugs for your own use and for a limited financial benefit.
31Your role in the offending was not as a principal offender, although it was through contact with you that the transactions with the purchaser were enabled. You had the capacity to source and access large quantities of drugs when requested. You acted as a facilitator. You admit that you exercised custody and control over the drugs and the cash, although they were not in your possession for any lengthy period. When your home was searched by police, no money was located. You were involved in high risk activity for little reward.
32You acted as an intermediary in the drug transactions. The quantity of drugs was not insubstantial, the purity of each transaction being an average of 77 per cent. Clearly, you were actively involved in an organised business of trafficking in a large amount of drugs. While you were not a principal offender, in my view, your moral culpability for your role in the offending is high.
33You were released from the police station on 5 July 2019 on bail, for unrelated offending. Within hours, you facilitated the first transaction with the covert operative.
34On the second occasion, the sale of methylamphetamine occurred soon after you reported to police on bail. You demonstrated a blatant disregard for your obligation to avoid the commission of criminal offences while on bail. This is an aggravating feature of your offending.
35Your plea of guilty has been entered at an early opportunity. You were arrested and charged on 7 October 2019. At the committal mention on 29 January 2020, the matter proceeded to the County Court as a straight hand-up brief, pending analysis of the drugs. These results were served on 17 June 2020. You indicated your intention to plead guilty to the current indictment on 20 July 2020. I accept that the resolution of your case was not possible until the provision of the Certificate of Analysis.
36You made an application to transfer your plea back to the Magistrates' Court, as the offences that are on the indictment can be dealt with summarily. That application was refused. Regardless of the venue for the disposition of the charges, they involve serious criminal misconduct.
37Your plea has a significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial. In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that. This is particularly relevant given that no jury trials are currently proceeding in light of the COVID-19 pandemic.
38Your counsel has submitted that your early plea should also be viewed as an indication of remorse, as the plea material reveals that you regret your actions and wish that you had “taken another path”. In a letter to the court written by your sister, Lenna Thi To, dated 30 July 2020, she states that her belief is that you feel ‘remorseful for [your] wrongdoing and the impact it has had on the family and [your] community’. You have expressed ‘regrets for [your] actions and understanding of time lost with friends and family due to [your] actions’.
39In my view, while you may feel sorry for your current predicament and the effect your conduct has had on your family and friends, that does not translate to full or insightful remorse for your offending. I do accept, however, that you have taken responsibility for your conduct at an early stage.
40You have a limited criminal history. Relevantly, on 19 December 2016, you were convicted at the Sunshine Magistrates' Court for offences that occurred on 17 May 2015, being in possession of 8.85 grams of methylamphetamine, possession of a prohibited weapon, an ‘asp’ baton and driving while disqualified. You were convicted and released on a 12-month community correction order, giving you the opportunity to address your rehabilitation in the community. Although you did engage with parts of the order, you were breached for non-compliance and sentenced to 3 months' imprisonment on 5 December 2019. At the time you were subject to the community correction order you were not using drugs, nor did you commit any further offences.
41The current matters demonstrate an escalation in the seriousness of your offending. This will be the first time that you are sentenced to a term of imprisonment.
42You are now 31 years of age. At the plea hearing, your sister was present. She remains supportive of you, as are the rest of your family.
43You were born in the Philippines on 15 October 1988. You migrated to Australia after your parents were granted refugee status when you were an infant. You have two siblings, both of whom were born in Melbourne. You were raised predominantly by your mother, your parents separating when you were around six years old. They have now resumed their relationship and live together in the family home in St Albans. You have maintained a close relationship with your mother and sister. You are currently in a long-distance relationship with your partner, who resides in Korea. You do not have any children.
44You attended two different primary schools before attending secondary school at Kings Park College, St Albans. You were bullied by a group of school children from Year 7. You were expelled in Year 9 after standing up for yourself. You then attended St Albans Secondary College, but for only for a short time, as you were asked to leave there as well. You then commenced studying VCAL at Spirit West in Footscray.
45During your last two years at school you worked part-time as a waiter. After leaving school, you commenced work in warehousing at Americold where you worked for approximately 10 years.
46Your drug use commenced at around 15 years of age, smoking heroin. You have been dependent on heroin and opioids for many years and have been prescribed Suboxone and methadone. At the age of 25, you started to smoke methylamphetamine. You have also experimented with ecstasy, cocaine and other drugs.
47Despite your drug use, you were able to maintain employment for some time. In the contravention report prepared by the Office of Corrections, it states that your failure to engage with conditions of the order was due to your full-time employment, coupled with a number of other issues.
48In 2016, when you were 28, your best friend who was also a drug user, committed suicide. He had tried to find you at your home, earlier that day. You feel guilty for his death, which has affected you.
49On 4 February and 15 August 2017, unknown armed men came to your house looking for you, in relation to outstanding drug debts. On each occasion, you and other members of your family were home and you called the police. Despite your description of the incidents as home invasions, police records reveal that the offenders did not enter the premises. No one has been charged. These events had a devastating effect on you and on your family. You accessed the gun that was located at your home in April 2019, at around this time for your own protection. Your explanation for possession of the firearm is that you had it for self-defence.
50You were working at a Coles storage facility in Laverton at the time. You suffered a hand injury during the August incident and stopped work.
51Following this trauma, in combination with losing your employment, your drug use increased. Although you were eventually able to return to work in warehousing, your drug use has continued. In 2019, you would leave home and “couch-surf” as you were smoking heroin daily, as well as using ‘ice’. At one stage you also became dependent on Xanax. At the time of your arrest, you were using heroin and methylamphetamine regularly. After being taken into custody, you were withdrawing from drug use and taken to the Sunshine Hospital. You had previously been an inpatient there in 2015, for mental health treatment. You have recently ceased using Suboxone and are not currently prescribed any medication or receiving any treatment while in custody.
52At the request of your solicitor, you were assessed by consultant psychologist Mr Ian Mackinnon. He has provided a report to the court dated 30 August 2020. In Mr Mackinnon’s opinion your functional intelligence falls within a normal adult range. Your general cognitive functioning appears to be normal. Your developmental history was disturbed by the disintegration of your family unit, your father’s prolonged absences, violent bullying that you suffered at school, the death of your best friend in 2016, the attendance of offenders at your home in 2017 and prolonged involvement in heroin abuse and drug use. In Mr Mackinnon’s opinion, by the time the current offences were committed in 2019, you were suffering with significant post-traumatic stress disorder (‘PTSD’) and associated polysubstance abuse. He states that you self-medicated by abusing heroin, ice and Xanax. It appears that you had limited control of your drug use at the time you were arrested.
53Since your remand in custody your PTSD has moderated and your general mental health has improved. In Mr Mackinnon’s view, you have made good rehabilitative progress in the prison environment and this is likely to continue. Since being remanded, you have largely overcome your polysubstance dependency and stopped using Suboxone. In his view, however, given your history of substance abuse, you would be at risk of relapsing into chronic substance abuse once you are released from custody, particularly if you encounter significant life stressors. In Mr Mackinnon’s opinion, you do not possess an inherently anti-social or criminal character.
54You are currently held at the Marngoneet Correctional Centre, where you are housed in a cottage with other inmates. While in custody, you have participated in drug education and vocational programs. You are currently engaging in study related to construction and hope to obtain employment in this field upon your release.
55You have provided evidence of one random urine screen, on 23 May 2020, that was negative. During your time on remand you have worked as a cleaner. You report an improvement in your overall physical and mental health, which is consistent with Mr Mackinnon’s observations.
56You are most fortunate to have the ongoing support of your family. Until the current restrictions were imposed by Corrections, they visited you regularly. You now maintain phone contact with them. You intend to return to live at the family home when you are released.
57It is unclear whether your family were aware that you were actively engaging in criminal activity. They were distressed by the incidents that occurred in 2017. Your father was also present when the police executed the search warrant on 4 April 2019. While not the subject of any charges, you were found to be in possession of drug-trafficking paraphernalia and equipment at that time, as well as being in possession of the firearm and ammunition. Despite the possible negative effect that your criminal conduct would have on your family, you had no qualms about drug trafficking in or in the vicinity of your family home. I do not accept that returning to live at home upon your release, reduces your risk of reoffending.
58I accept that your drug use provides a context for your criminal conduct. Your prospects are linked to your capacity to avoid drug use when you are released. Clearly, your ability to remain drug free in the future is relevant when considering your rehabilitation. While your criminal history is relatively limited, you have been struggling with your drug addiction for approximately 15 years. Your capacity to avoid relapse is a critical factor in your success.
59It is conceded that your offending is serious and that general deterrence, denunciation and the protection of the community must be given significant weight in the sentencing process. In my view, specific deterrence is also relevant, given the number of separate transactions that form part of the evidence here. You had time to reflect on your offending conduct and chose to persist with it.
60Your prospects of rehabilitation will be assisted by supervision and treatment.
61Your counsel has submitted that it would be appropriate to impose a term of imprisonment in combination with another community correction order, as part of the sentencing disposition. The prosecution does not accept that submission, saying that the circumstances here are too serious.
62Your rehabilitation has previously been supervised in the community. You admit contravening that community correction order. Regrettably, you relapsed into drug use after the order expired.
63In light of the objective gravity of the offences, particularly the drug trafficking, I am satisfied that a term of imprisonment is the only appropriate disposition in all the circumstances. I accept that your supervision upon release will be of benefit both to you and to the community. I intend to impose a period on parole to allow for monitoring and supervision.
64I take into account the measures taken by Corrections to deal with the COVID-19 pandemic will continue to add to your hardship as a prisoner, particularly as this is your first sentence of imprisonment. The prosecution concedes as much. I am aware that you have been subject to a short period of lockdown and that this may occur again. I do not provide any specific sentencing benefit for this. As I understand it, when this occurs you may receive sentence reductions as a result of the administrative decision of the prison authorities.
65It is clear, however, that the current time will be more stressful for you, not only due to your personal position of confinement, but also the hardship you may feel being absent from your family at this difficult time. Further, the emotional impact of being unable to have any personal visits from your family for the foreseeable future will increase the burden of imprisonment. You are also likely to feel more vulnerable to the possibility of infection from the virus in light of your incarceration. The Court of Appeal has recently acknowledged, in Astbury v The Queen [No 2],[1] that these hardships justify a sentencing benefit.
[1] [2020] VSCA 158, [33].
66The principle of totality needs to be considered overall and I have taken care not to doubly punish you for the offences. I am aware that there is a presumption of cumulation for offences committed while on bail for another offence. I take into account the 3‑month sentence that you have served for the contravention of the community correction order while on remand for these offences. I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.
67I take into account the maximum penalties for each offence and current sentencing practices.
68Those who embark in the business of drug trafficking must expect to lose their liberty for extensive periods. It is the only way that courts can discourage those who act in a way that is so harmful to our community.
69Balancing all these factors as best I can, I sentence you as follows:
70Charge 1, being a prohibited person in possession of a firearm. You are convicted and sentenced to 9 months' imprisonment.
71Charge 2, trafficking in a drug of dependence. You are convicted and sentenced to 1 year and 9 months' imprisonment.
72Charge 3, possession of ammunition. You are convicted and fined $600.
73Charge 4, committing an indictable offence on bail. You are convicted and sentenced to 1-month imprisonment.
74I direct that the sentence for trafficking will be the base sentence. 3 months for being a prohibited person in possession of a firearm is to be cumulative upon the base sentence. The sentence for committing an offence on bail is to be concurrent.
75That is a total effective sentence of 2 years' imprisonment. I set a non-parole period of 15 months.
76I enter in the records of the court that 255 days has been served by way of pre-sentence detention.
77I do not grant a stay for the payment of the fine.
78I make orders for disposal and forfeiture as requested.
79The declaration I make under s.6AAA is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of 3 years’ imprisonment with a non-parole period of 2 years and 2 months.
80Are there any further orders or any clarification sought, Mr Shaw?
81MR SHAW: No. Thank you, Your Honour.
82HER HONOUR: Ms Carroll, do you have anything further to say before I adjourn the court?
83MS CARROLL: No, Your Honour.
84HER HONOUR: All right, thank you. I'll give Mr To a chance to speak with you Ms Carroll. I'll excuse Mr Shaw and I'll ask my tipstaff to adjourn the court please.
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