Director of Public Prosecutions v To
[2014] VCC 1109
•28 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01484
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| HAI HAONG TO |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 May 2014 | |
CASE MAY BE CITED AS: | DPP v. To | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1109 | |
SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Tang | |
| For the Prisoner | Mr D. Georgiou |
HIS HONOUR:
1 Hai Haong Tao, you have pleaded guilty one charge of trafficking in a drug of dependence in a quantity that was not less than the commercial quantity applicable to that drug of dependence, namely, methylamphetamine.
2 On 30 November 2012, a co-offender, whom I sentenced on 4 December 2013, arranged the hire of a car in Melbourne until 11 December 2012. The rental agreement was in your co-offender's wife's name, with your co-offender, Huan Duong, nominated as the driver.
3 Over the following week you exchanged a number of coded SMS texts with Duong, discussing a trip together. You and Duong left Melbourne on 7 December 2012 to collect drugs in Sydney and return them to Melbourne. You arrived in Sydney on the morning of the following day. Texts were sent from Duong's mobile, inquiring where the contacts were. You then drove to a carpark in Hurstville and waited for instructions; an SMS text answered by Duong asking, "Why isn't the phone on?" and then an unknown male approached you and all three got into the car and drove a short distance. You and Duong then got out and were handed a card with a number to call if necessary.
4 Some two hours later the unknown male returned in the hire car. You opened the boot. All got in the car and you drove to another suburb. You reversed the car into the driveway of a house and into the garage which was then closed. Some 10 minutes later after the man left, you and Duong drove away and headed back to Melbourne.
5 At about 4.00 that afternoon, while en route to Melbourne, you received a text from a contact with instructions to bring the ‘beer over to the party’. That evening the police intercepted the car. You were driving and Duong was in the front passenger seat. A search warrant was executed and three large resealable plastic bags which contained a white substance were discovered inside a T-shirt and a large plastic garbage bag.
6 Three mobile phones were found in the car, two belonging to Duong and one belonging to you. Later testing revealed the three bags contained each about a kilogram of methylamphetamine of 90 per cent purity. The total weight was 2.987 kilograms with 2.6 kilograms of pure methylamphetamine.
7 When you were asked about the bags, you indicated you had not put them in the car but that the contents could be drugs. Your DNA profile was detected on the T-shirt used to wrap the packages in the boot of the car and you were remanded in custody after your arrest of 8 December 2012.
8 It was accepted by the prosecution that you had nothing to do with the hiring of the car and that in effect you and Duong were couriers, hired to transport the drugs for the purchaser. You had been recruited in exactly the same way as Duong and played the same role. Ultimately you would have handed the drugs to someone else. You were not in the hierarchy therefore of organisers, but you had arranged the transport of those drugs.
9 Just like Duong, you denied involvement to the police in drug trafficking and each of you placed blame on each other for asking the other to come to Sydney. Nothing turns of who asked who to participate in this enterprise, so I intend to treat you as equally responsible and equally criminally liable
10 You pleaded guilty and though your plea was dealt with later than Duong, for the purposes of the sentence, I will accord an appropriate discount to your sentence for the value of the plea. I accept that your plea is accompanied by regret and remorse. You are a person without prior criminal history and this past good record is a matter I take into account.
11 It is, however, true that the previous good character of a courier is a feature which is of value to those who recruit them, so the value of this aspect must be qualified, Similarly, the role of a courier is limited in the overall drug trafficking scheme which may carry a more limited moral culpability than those who recruited you and who are the organisers of the trafficking.
12 However, the movement of drugs is at the heart of trafficking and so couriers play a valuable and indeed indispensable role to the traffic mechanism. I take these aspects into account. A statement taken by the detective attached to the Victoria Police Drug Task Force outlined the pricing of methylamphetamine when it is sold, and suffice to say the drugs you transported were very valuable.
13 You are 48 years of age. You were born in Vietnam of parents who were relatively well off . Your father was a dentist. Your mother was a stay-at-home mother. You are one of six siblings. In 1980-81, at the time when the Vietnamese government was about to conscript young men for the war, your father arranged for you to flee the country from close to the Vietnam‑Cambodia border. You left in a boat at age 15 and you arrived alone in Singapore but thereafter you were soon resettled in Australia. You completed year 10 before leaving school. You left school essentially to look after your brother. At the time, your older brother and sister had also left Vietnam, but en route your sister was abducted by Thai pirates and never returned.
14 In 1983 you were finally joined by your brother and as I said, you left your education to support him. He is now a pharmacist. The rest of the family joined you in Sydney in the later years. There, in Sydney, you met your future wife. You married in 1989. The two of you worked hard in the garment sewing industry, sewing piecework, working 14 to 15 hours per day. You had a daughter who is now 24. She has a psychology degree.
15 You moved to Melbourne to maximise the work opportunities for the family and other family members remained in Sydney. In Melbourne you worked as a truck driver, as a labourer in factories, in a car components factory, amongst others.
16 Your relationship with your wife was tumultuous, although you are still together. You took to attending the pub and to gambling. There followed a habit of drinking and gambling, while all the time maintaining your work. Someone lent you money and you lost the money and you were now in debt and when presented with the chance to eradicate the debt by a trip to Sydney and back, you took a calculated risk.
17 I understand your wife is most displeased and furious with you and will not visit you in gaol. Hopefully that can change. Your daughter, who was present in court at your plea and is present today, has visited once a month and that level of support is important for your future rehabilitation.
18 Whilst in prison, you have impressed the authorities and have held responsible jobs. You are a cleaner in the educational area. You have undertaken a large number of courses and certificates pertaining to each of those courses you attended and I take all of that into account. Some, like the hospitality certificate, is rarely completed, but you have. I take all of these personal circumstances I have outlined into account.
19 I received, further, a report from Central Melbourne Psychology, Mr David Ball, a forensic psychologist, dated 14 May 2014. You do not have a history of drug abuse but you asserted you had fallen into the clutches of people who gave you a financial way out. You feel isolated and lonely but you have made plans for the future.
20 There was no evidence of mental illness or cognitive impairment. You are experiencing situational insomnia, depression and anxiety which is to be expected and normal in your circumstances. Your gambling arose out of the domestic turmoil and you would also drink to medicate your mood.
21 You were apparently paid no money to undertake the journey to Sydney and you acknowledged your mistake and expressed your remorse to Mr Bull. You have what is called an episodic gambling disorder in remission, but your gambling pathologically was severe at the time. You now well understand to avoid poker machines in the future.
22 Despite your poor command of English, you have vigorously applied yourself to your rehabilitation and I find your prospects are probably quite good. Drug trafficking is an insidious and evil trade which damages lives and families, often the lives of the young. The community must be protected from such damage and the court must denounce this conduct in the strongest and cleanest fashion to indicate to like-minded people that this behaviour will receive stern punishment.
23 I consider that specific deterrence in your case can be sensibly moderated in the sentence but the demands of general deterrence clearly call for imprisonment. There are very few, if any, practical differences between yourself and Duong. You have been friends for years. In my view, I should apply principles of parity to your sentence. Neither of you had a more prominent role. Neither of you could have a sense of grievance to receive a similar sentence, one from the other.
24 On trafficking, you are convicted and sentenced to four years' imprisonment. I fix a nonparole period of two and a half years' imprisonment. I declare that you have served 536 days excluding today by way of pre‑sentence detention. But for your plea, I would have sentenced you to five years with a nonparole period of three and a half years.
25 I order the disposal of items listed in the schedule to the order and I will order that biological samples which were gathered at some point from you will be retained for retention on the DNA database. I will sign those appropriate orders.
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