Director of Public Prosecutions v Truong; Director of Public Prosecutions v Vu
[2021] VCC 1983
•1 December 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00232
Indictment No. K11023499
Case No. CR-21-00228
Indictment No. K11023466
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THANH HUY TRUONG DAVID VU |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 August 2021; 1 September 2021; 2 September 2021; | |
DATE OF SENTENCE: | 1 December 2021 | |
CASE MAY BE CITED AS: | DPP v Truong; DPP v Vu | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1983 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Guilty pleas – Eleven co-offenders – organised crime syndicate trafficking in mostly methylamphetamine – large commercial quantities – standard sentencing regime – Covid-19
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981; Crimes Act 1958; Sentencing Act 1991; Confiscation Act 1997
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Gregory (a Pseudonym) v The Queen [2017] VSCA 151; Kumas v The Queen [2021] VSCA 215; Rahmani v The Queen [2021] VSCA 51; Azzopardi v The Queen [2011] 35 VR 43; Mills v The Queen [1998] 4 VR 235
Sentence:T Truong: 11 years and 8 months imprisonment with a minimum non-parole period of 7 years and 2 months.
D Vu: 10 years and 10 months imprisonment with a minimum non-parole period of 6 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | B Sonnet | Solicitor for the Office of Public Prosecutions |
| For the Accused Truong For the Accused Vu | F Holmes J McQuillan | Melasecca Kelly & Zayler Barristers and Solicitors Melasecca Kelly & Zayler Barristers and Solicitors |
HIS HONOUR:
1
Operation Polaroid commenced in September 2018. It was a drug task force into an organised crime syndicate operating a drug trafficking business. From
31 November 2018 until 22 April 2019, the syndicate's customer buy phones were intercepted by police via multiple telephone interception warrants. Listening devices were also lawfully installed in a syndicate vehicle and the syndicate safe houses in Sunshine and Maribyrnong and an optical surveillance device was used.
2The syndicate itself was a highly organised, prolific, systematic and large-scale distributor of illegal drugs, principally methylamphetamine. It dealt in different quantities of drugs, ranging from 0.5 grams to 1 kilogram. Over 200 customers were identified, the majority of whom were drug traffickers on-selling the drugs to their own customers. The amount of drugs sold by the syndicate during the investigation able to be quantified, was approximately 46 kilograms. The actual amount would have been significantly more.
3The syndicate's operations are described in the Prosecution Opening, which was tendered as Exhibit A on the plea. The Prosecution Opening also described the way the case was put against each offender. No issue was taken with the Opening.
4The drug business was run with four phone holders who each took turns holding the customer buy phone. Customers would contact this number and place orders for various drugs of dependence. The syndicate would supply methylamphetamine, heroin and cocaine, even cannabis, but most of the syndicate's business came from methylamphetamine.
5Once a customer placed an order, the phone holder would call the syndicate's delivery drivers on low-cost phones connected in false names which were changed weekly. The phone holder would task a driver to package and deliver the ordered amount of drugs. The business regularly employed six delivery drivers who took turns doing shifts for the business. Delivery drivers were paid at a rate of $66 per hour. Phone holders were paid at some higher rate not disclosed in the evidence. It has been the prosecution position that phone holders occupied a position above delivery drivers in the syndicate hierarchy.
6Throughout the investigation, four storage locations were identified where the syndicate stored drugs for sale and prepared drugs. The phone holders and delivery drivers would conduct start of shift and end of shift reconciliations of drugs, cash and detailed handwritten ledgers were kept in lined notebooks. Phone holders would exchange the handwritten ledgers to the syndicate member working the next shift. The syndicate's basic business hours were 12.00pm to 2.00am. Occasionally, these business hours varied. When the syndicate was closed for business, the customer base was advised. All syndicate members had links to one another, either as family members or long-time friends.
7To provide context to the syndicate's operations, the prosecution referred to the execution of a search warrant on a syndicate vehicle in Sunshine on 25 January 2019 when police seized approximately 2.1 kilograms of heroin, a kilogram of methylamphetamine, 121 grams of pseudoephedrine, 28 grams of cocaine, six handguns, an SKS semi-automatic rifle, 20 machetes, two samurai swords, and various drug trafficking items, such as scales and packaging.
8The operations of the syndicate as a whole represent drug trafficking at the very high end. The syndicate was a systematic, organised commercial operation introducing very large quantities of destructive drugs of dependence into the community, mainly supplying other drug dealers operating closer to street level than the syndicate was.
9You, Mr Truong and Mr Vu, have both pleaded guilty to trafficking in a large commercial quantity, resulting from working for the syndicate and to various other charges which I will set out later in these remarks. The charge of trafficking in a large commercial quantity carries a maximum penalty of life imprisonment. It is also subject to a standard sentence of 16 years imprisonment.
10I turn firstly to some matters of general application to both of you. The sentencing regime for serious drug trafficking is quantity based and each of you trafficked in amounts well above the large commercial quantity threshold of 750 grams mixed in this case. The quantum of drugs is obviously not the only factor for me to consider in assessing the seriousness of the offence, but it is an extremely important factor.
11Considerations of general deterrence, denunciation and just punishment are important sentencing principles in commercial drug trafficking at this level. In particular, the sentencing authorities have emphasised the importance of general deterrence and denunciation. The principles in the case of Gregory(a Pseudonym) v The Queen [2017] VSCA 151 relating to trafficking in commercial quantities dictate a consequent increase in sentences for trafficking in large commercial quantities to maintain appropriate relativities between trafficking of a commercial quantity and trafficking of a large commercial quantity. Mr Sonnet to me to the recent case of Kumas v The Queen [2021] VSCA 215 where the Court of Appeal confirmed that this was so (see also the case of Rahmani v The Queen [2021] VSCA 51).
12A further guidepost towards substantial sentences for trafficking in large commercial quantities is the standard sentence. The standard sentence, as I said earlier, for trafficking in a large commercial quantity is 16 years imprisonment. The standard sentence operates as a yardstick only and is applicable to an offence in the mid-range of seriousness, having regard only to its objective features. A standard sentence is not a mandatory sentence, nor is it a primary sentencing consideration or the starting point from which to add or subtract time. It is just one of the many matters to be considered by the court in the instinctive synthesis of all matters relevant to sentencing.
13The law requires me to identify fully the facts, matters and circumstances which bear upon my decision as to the appropriate sentence. In the remarks that follow, I have endeavoured to do that in some detail. The sentence which I will impose for each of you for the charge of trafficking in a large commercial quantity, is less than the standard sentence. In arriving at the sentence in this case, I have taken into account all the matters I am required to consider under the Sentencing Act, including the standard sentence. I have considered all mitigating factors which apply in this case.
14The Sentencing Act provides that in sentencing for a standard sentence offence, unless it is in the interests of justice, I must fix a non-parole period of at least 60 per cent of the head sentence if that sentence is less than 20 years imprisonment.
15Current sentencing practices remain a relevant factor, but in sentencing for a standard sentence offence, I am constrained to only consider sentences passed after the introduction of the standard sentencing regime. I have read and had regard to the cases referred to in the prosecution submissions and the table of cases in the Opening. There are, of course, relevant differences between the offending in each of your cases and the offending in the cases referred to by the prosecution. One such matter is the role each of you played. It is not put against either of you that you were principals in the syndicate.
16Mr Truong, your role was characterised as that of a delivery driver and all that that entailed in this syndicate. You, Mr Vu, were a phone holder receiving an undisclosed higher rate of pay that delivery drivers. The prosecution case, as I said earlier, has been that phone holders were above delivery drivers in the syndicate hierarchy. I will deal further with your roles in the individual sentencing remarks.
17Current sentencing practices are a guide or yardstick but not a controlling factor in sentencing.
18Pursuant to s 89DI of the Sentencing Act, on conviction for trafficking in a large commercial quantity, I must declare each of you to be a serious drug offender. I will do that and the declaration will be entered into the records of the court. Further, trafficking in large commercial quantity is a Category 1 offence, which means that, in the absence of you satisfying the statutory criteria, I must impose a prison sentence, excluding a combined sentence with a Community Correction Order. No argument has been made in this case that anything other than a prison sentence is appropriate.
Utilitarian value of the guilty plea
19For both of you, any trials in this case would have been long and complex. The utilitarian value of the pleas of guilty in each case is substantial. You both pleaded guilty at a time when the court faces a very substantial backlog of trials resulting from the suspension of jury trials during the pandemic. This increased utilitarian value of a guilty plea was recognised by the Court of Appeal in the recent decision of Worboyes v The Queen [2021] VSCA 169 where the court said:
Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.[1]
20The utilitarian value of your pleas entitles each of you to a significant sentencing discount. I am also satisfied that in each of your cases, your plea of guilty indicates a willingness to facilitate the course of justice and is indicative of a level of remorse and both of you are entitled to a significant sentencing discount as a result of your guilty pleas.
21You were each charged and remanded in custody in April 2019. It has taken now over two years and eight months for this matter to be finalised. Given the scale of the investigation and the number of people charged, it was always likely to take a significant amount of time for this matter to proceed through the Magistrates’ Court and then to be finalised in this court. Of course, the disruption to court proceedings meant that the contested committal was not listed until February 2021. In all the circumstances, I do not regard the delay as inordinate. However, I have taken into account the uncertainty about your future and that each of you has experienced over a lengthy period on remand in prison.
22Both of you have been in prison on remand during the pandemic and I take into account that as a mitigating factor because of the additional hardship of being in prison during this period. This is so because of the restricted conditions in prison caused by the pandemic. Such aspects are the suspension of visits and educational courses and lockdowns have been prevalent. Such conditions are likely to be in existence for some time. Additionally, I have taken into account the general anxiety caused by the pandemic as it relates to you in prison with your family and friends in the community.
[1] Paragraph [35]
THANH TRUONG
23Mr Truong, you pleaded guilty on Indictment K11023499 to trafficking in a large commercial quantity, trafficking in a drug of dependence, possession of a trafficable quantity of firearms and negligently dealing in the proceeds of crime.
24I have already set out the maximum penalties and other statutory provisions relating to Charge 1. The maximum penalty for trafficking is 15 years imprisonment, for possession of a trafficable quantity of firearms 10 years imprisonment and 5 years for dealing in the proceeds of crime.
25
You were born in September 2021 and were 27 years old at the time of the offending. You were living at Linoak Avenue, Lalor prior to your arrest. The facts of your offending were set out in the Prosecution Opening and tendered as an exhibit. Your role was that of a delivery driver. You worked 36 shifts on behalf of the syndicate over a four-month period. Charge 1 relates to
9,564.8 grams of methylamphetamine.
26I will go through the details of your offending:
· 27 December 2018, as a delivery driver working with Quang Vo as your passenger, you conducted 27 transactions totalling 1020.45 grams.
· 29 December into the early hours of 30 December 2018, with Mr Vo you conducted 24 totalling 370 grams.
· 30 December and into the early hours of 31 December, 20 transactions in methylamphetamine totalling 803.6 grams.
· 31 December, with Mr Vo, 15 transactions totalling 415.55 grams.
· 2 January over into 3 January 2019, 14 transactions in methylamphetamine totalling 432.9 grams. You were seen at the Sunshine and Maribyrnong safe houses.
· 6 January over into 7 January, 12 transactions in methylamphetamine totalling 158.1 grams. At 10.01pm on that night, you and Mr Phi Van entered a carpark at 1 Foundary Road, Sunshine in a convoy. You drove up to a vehicle, registered TBG 631, unlocked the vehicle and removed a grey backpack from the boot and placed the backpack into your car and drove away with the other vehicle that you had arrived with. Both cars then went to the Sunshine safe house for a few minutes before leaving.
· 9 January, with Mr Vo again, you entered a carpark of an apartment complex. That was captured on CCTV. On that day you conducted 14 transactions in methylamphetamine totalling 290.5 grams.
·
10 January, over into 11 January 2019, you and Mr Vo conducted
18 transactions in methylamphetamine, 214.1 grams.
· 16 January, you were seen at the Maribyrnong safe house and the Sunshine safe house and conducting a transaction in Wests Road, Maribyrnong. You conducted 23 transactions totalling 252.7 grams.
· 18 January, again you entered an apartment at Wests Road, conducted a transaction. You were then seen at the Sunshine safe house with Thanh Dang. After he left, you continued on as delivery driver and conducted 21 transactions totalling 615.8 grams.
· 20 January, two transactions totalling 2.5 grams.
· 25 January 2019, 13 transactions totalling 415.3 grams. Later, on 25 January, it became apparent that the syndicate vehicle had been seized and the syndicate was then shut for business after you completed your last transaction.
·
31 January over into 1 February, you were driving the new syndicate vehicle, registration XRI367. In the afternoon, your co-offender Raymond Tran purchased a kilogram of methylamphetamine and provided it to you at an unknown location. He went to the syndicate safe house in Maribyrnong while carrying an Aldi bag with the one kilogram of methylamphetamine. This was then divided up into smaller bags to prepare the drugs for sale. You conducted
15 transactions totalling 397.2 grams.
· 1 February 2019, in the new vehicle, 22 transactions in methylamphetamine totalling 244.8 grams.
· 3 February, 12 transactions totalling 67.15 grams.
· 7 February over into 8 February, 19 transactions which included four 14.5 grams of methylamphetamine and a small amount of cocaine.
·
8 February over into 9 February, 15 transactions totalling
299.6 grams.
· 10 February, 18 transactions in methylamphetamine totalling 853.7 grams. You were also seen accessing a syndicate vehicle and collecting a Coles bag from within the vehicle. You met an unknown male at the safe house prior to the phone holder advising clients they had new drugs.
· 12 February, the syndicate commenced using a new customer telephone number which was not intercepted until 28 February. Between these dates, police obtained stored communications that showed drug trafficking unable to be quantified during this period. In this period, you worked 21 February, 21 February, 22 February, 24 February.
· 1 March, you were seen attending the safe car and coming out with a shopping bag. You conducted 13 transactions totalling 109.85 grams.
· 3 March, 17 transactions totalling 161.15 grams.
· 15 March, you were seen with Raymond Tran and you were heard on listening devices making a call to phone holder William Wu. You were heard discussing the process of placing orders, the product being new and counting cash. You conducted 17 transactions totalling 316.9 grams.
· 16 March, nine transactions in the amount of 144 grams. You were also seen removing a bag from vehicle XRI367, before entering the safe house. You left at 12.54 pm carrying a plastic bag. You then got into vehicle WRL892. You were heard on listening devices with Mr Tran conducting deals and asking for feedback on the product.
· 22 March, you conducted 13 transactions in methylamphetamine totalling 185.7 grams.
· 24 March, 17 transactions totalling 20.3 grams.
· 29 March, with Mr Vo, 23 transactions 153.4 grams of methylamphetamine and 14 grams of cocaine. You were seen at the safe house preparing methylamphetamine for sale.
· 30 March, 10 transactions, 219.8 grams. You were also captured counting cash and weighing drugs and writing notes. You spoke to Minh Nguyen and told him the amount that was available at the safe house. You were seen coming and going from the safe house.
· 4 April over into 5 April 2019, 17 transactions PF 210.2 and 1.7 grams of cocaine. You were captured preparing drugs for sale inside the safe house. There was also a discussion about delivering cash to William Wu and Minh Nguyen, including you taking $111,400 to William Wu for him to purchase drugs said to be needed before 1.00pm the next day and taking $5,000 to Minh Nguyen. You were also captured arriving at Minh Nguyen’s building.
· 5 April over into 6 April, you were preparing drugs for sale and you conducted on that day 17 transactions; 167.2 grams of methylamphetamine and 0.5 grams of cocaine.
· 7 April, as the delivery driver, you conducted 13 transactions of 69.55 grams of methylamphetamine and 0.5 grams of cocaine. At one point, at the safe house you reported there was $212,385 cash at the house. Later on, you and Mr Tran counted out $77,000 for Mr Tran to purchase a kilogram of methylamphetamine.
· 13 April, you were seen at the Flowerdrum restaurant with other members of the syndicate.
· 18 April, as the delivery driver, you conducted 11 transactions totalling 75.9 grams.
· 19 April 2019, you and Mr Vo were the delivery drivers. You conducted four transactions totalling 204 grams. You were also captured counting cash which you dropped off to James Van. You were asked by Minh Nguyen if you had reloaded yet and you told him, effectively, that had not happened and you were told to take ‘75’ to Jay. You counted the cash again. You confirmed with Mr Nguyen it was for ‘75’ and the tracking device on WRL892 confirmed you went to Mr Van's address for about 23 minutes. A few minutes later, you and Minh Nguyen spoke on the phone and you told him you, 'Took an extra 800 for family flights and court and stuff.' Investigating police seized $94,950 from Mr Van's house on 22 April 2019.
·
The next day, you conducted 10 transactions of 44.4 grams of methylamphetamine and 1.5 grams of cocaine and prepared methylamphetamine for sale. You delivered an unknown quantity to Phi Van during the night. You and Mr Vo conducted transactions together later on in the evening and there was a further 14.4 grams of methylamphetamine and
1.5 grams of cocaine transacted.
27On 22 April 2019, search warrants were executed at your home. Police located a large zip lock bag containing 75.8 grams of cannabis (uncharged act), various weapons (uncharged act), $9,370 in cash and a mobile phone regularly used by the syndicate. At the Maribyrnong safe house, police located three zip lock bags containing cannabis and another zip lock bag with a crystal substance. Inside vehicle XRI367, police located:
· Four semi-automatic handguns, magazine, bullets and knuckle dusters;
· Coles freezer bag containing two semi-automatic handguns, a silver revolver with ammunition;
· A zip lock bag containing white powder and other items as well;
· Various Optus phones;
· Scales; and
· Amounts of methylamphetamine, cocaine, heroin and MDMA.
28The prosecution case showed a strong connection between you and vehicle XRI367 based on surveillance, including a DNA match on the Coles bag contained two semi-automatic handguns and a silver revolver with various ammunition, as well as other items. The prosecution case on Charge 3 relating to the guns, related to the three unregistered firearms. You did not have a license to possess those three firearms.
29On 22 April 2019, you made a no comment interview.
Gravity
30Charge 1 covers a four-month period and involves trafficking in 9,564.8 grams of methylamphetamine. The quantity involved in Charge 1 is just under 13 times the large commercial quantity threshold. This underpins the seriousness of your offending. Apart from the quantity of your trafficking, which was very substantial, you worked consistently for the syndicate over the whole of the four-month period of the investigation, some 36 shifts.
31Your role has been characterised as that of a delivery driver, not a principal. You worked on instruction and you received a relatively modest wage for what you did and the risk you were taking. However, it is apparent from the summary, you were also involved in the syndicate’s 1 kilogram reloads and you were trusted with large amounts of money and drugs in respect of that involvement. Plainly, you were also involved in the preparation of drugs at the safe houses, as described in the summary that I have detailed. You did play an essential role in the continuation and success of the syndicate's operations. You were an essential cog in its operations. You were responsible for introducing a very large amount methylamphetamine into the community.
32That you were not a principal serves to reduce your moral culpability and the objective gravity of your offending to some extent, but I reject your counsel's submission that your offending should be characterised as at the lower end of gravity and that the quantity of your trafficking in Charge 1 was modest relative to large commercial quantity offences. Your participation involved repeated ongoing criminal activities over four months.
33
In respect of Charge 1, based on objective gravity, I am of the view that, although you were a delivery driver, you are above David Vu in the hierarchy of offenders. In coming to that finding, I have had regard to all of the facts detailed of your involvement and, in particular, that the quantum involved is approximately
1.5 kilograms larger than that alleged against Mr Vu. However, he was a phone holder and he worked more shifts than you did, therefore, based on objective gravity, the difference between the two of you is not so significant.
34Charge 2 of trafficking in cocaine was part of the syndicate operations. It does not add in any significant way to the criminality of Charge 1. The offending involved 26.7 grams. It was described in the prosecution submissions as a low range offence.
35Charge 3, possession of a trafficable quantity of unregistered firearms relates to the seizure of firearms on 22 April 2019. This is a serious offence. The three weapons were part of the syndicate's operations. Firearms are a common feature of serious drug trafficking and possession of firearms connected with other criminality is a more serious form of this offence, meriting a significant sentence of imprisonment.
36General deterrence and denunciation must be given substantial weight in sentencing for such offences. That said, your possession of the firearms was a part of what you did for the syndicate. It was incidental to your role as a delivery driver. The firearms were a part of the syndicate operation and possession of the firearms adds less to your criminality in this case than it might if this was your own operation and these were your weapons alone.
37Charge 4, negligently dealing with the proceeds of crime relates to the seizure of $9,370 cash which is consistent with your involvement in the drug trafficking activities of the syndicate.
Personal circumstances
38
I will turn now to your personal history. You are now 29 years old. You were
27 years old at the time of the offending. Your personal history was outlined in the psychological report of Mr Luke Armstrong which was tendered as an exhibit on the plea. You were born in Australia. Your parents migrated to Australia from Vietnam after the Vietnam war. You are one of six children. You moved from a housing commission flat in Carlton to Lalor after your parents purchased a house there. You were in primary school at that time.
39Your mother worked long hours as a waitress. Your father also worked long hours until he sustained a work injury. He has not worked since. Your eldest sister Marianne took on a parental role. Mr Armstrong characterises your upbringing as socially disadvantaged, involving neglect and emotional deprivation. You told him you witnessed drug abuse and crime when you were young.
40In your early teenage years, you engaged in some misconduct, including fire lighting and theft, which resulted in police cautions. You also engaged in drug and alcohol abuse. This persisted over the years. At school you completed VCAL and obtained a mechanical apprenticeship. Because of your drug use, you were unable to maintain that position and left within three months. You then worked in a plastics factory full-time for four years. In this period, your drug use increased and you began to gamble heavily, leading to you losing that job because of your unreliability.
41
At the plastics factory you met your partner Thi, a farm labourer. She and her family assisted you to obtain a second-hand truck and for a few years you were self-employed as a haulage driver. She does not use drugs and disapproves of your offending. Because you face a lengthy period of imprisonment, she is uncertain about the future of your relationship. She hopes to have children. Together you purchased a property off the plan which settled in December 2018. Your haulage business declined around August 2018. In the context of a shortage of money, you chose to participate in this offending. As with most of your
co-offenders in the syndicate, you were using cocaine at that time.
Psychological factors
42In his report, Mr Armstrong described you as having a moderate to severe Stimulant Use Disorder. He described your verbal intellectual functioning as in the extremely low range and your non-verbal intellectual functioning as in the average range. He said you did not present with a personality disorder or an entrenched criminal belief system. As to the offending, he offered the view that you were facing financial difficulty and your limited capacity to problem solve and limited positive peer connections were causative features in your offending.
43Your low verbal functioning and your difficult background are matters personal to you which explain to an extent how you became involved in this offending but not entirely. I have taken these matters into account in that way. Along with the absence of a criminal history, these matters are relevant to the assessment of your moral culpability and your prospects of rehabilitation. That said, your moral culpability for the offending is significant, given that it went on over a four-month period and involved such a large quantity of drugs. But to some extent these factors mitigate your offending, given your role as a paid employee and your lower IQ, as well as the absence of prior convictions, which I will now turn to.
Criminal record
44You have no criminal history. Your counsel Ms Holmes submitted that, notwithstanding the personal hardship of your upbringing and the substance abuse issues in your past, you have largely been a contributing member of the community with a consistent work history. I accept this. Your previous good character is a mitigating factor. Your positive work history and the absence of prior convictions, as I said, are relevant to the weight to be given to specific deterrence, the assessment of moral culpability and the assessment of your prospects of rehabilitation.
Character references
45Letters of support were tendered on the plea. Your close friend Michael Van says he has known you for more than 20 years. He speaks highly of the support and encouragement you provided to him during his university studies. He says he has admired your goal-orientated approach to life. He says he witnessed the focus and dedication you showed as a truck driver and says this offending is out of character for you.
46Your older sister Ms Truong provided a letter as well and describes the difficult environment of your early childhood. She says your parents did their best but were not around a lot. You were left alone and exposed to drug use and violence. She says she was shocked when she heard of your offending. She says, as a brother, you have always been there for her and describes you as a bright and generous person.
47The letters of support corroborate the difficulties in your upbringing and highlight some of your positive qualities and I take them into account in assessing your rehabilitative prospects.
48In the absence of prior convictions in your case, your positive work history and having regard to all the matters, I accept you have good prospects of rehabilitation.
49The totality principle requires that the overall sentence I impose must be just and proportionate to the whole of your offending. In your case, the offences to which you have pleaded guilty all arise from your participation in syndicate drug activities and there is therefore considerable overlapping criminality between the various offences. I have had regard to these matters in deciding issues of concurrency and cumulation between charges, in particular, to the amount of cumulation to be imposed on Charge 3.
50The purposes for which a court may impose a sentence include just punishment, deterrence, both specific and general, denunciation of your actions and the protection of the community and your rehabilitation. In this case, general deterrence is the primary sentencing purpose but having regard to your prospects of rehabilitation in the absence of a criminal history, I have reduced, to an extent, the weight to be given to specific deterrence, even though it remains a significant sentencing consideration.
51The non-parole period is the minimum period justice requires an offender to serve before being eligible for release on parole. Of course, the non-parole period should not be fixed at level which impermissibly erodes general deterrence. In your case, given the absence of any criminal history and my assessment of your prospects of rehabilitation, I will allow for a lengthy period of supervision on parole.
Sentence
52I will now turn to sentencing you, Mr Truong:
· On Charge 1 of trafficking in a large commercial quantity of a drug of dependence, I sentence you to be imprisoned for a period of 11 years and 2 months.
· On Charge 2 of trafficking in a drug of dependence, I sentence you to be imprisoned for a period of 6 months.
· On Charge 3, possession of a trafficable quantity of firearms, I sentence you to be imprisoned for 2 years and 4 months.
· On Charge 4 of negligently dealing in proceeds of crime, I sentence you to be imprisoned for a period of 5 months.
53I order that 6 months of the sentence on Charge 3 is cumulative with the sentence on Charge 1. In coming to that period of cumulation, I have given a bit of weight to the application of the totality principle. I have not ordered any other cumulation by reason of the totality principle in this case.
54That makes a total affective sentence of 11 years and 8 months. In this case, I fix a minimum non-parole period of 7 years and 2 months. I declare the pre-sentence detention to be deducted from this sentence is 954 days.
55Pursuant to section 6AAA of the Sentencing Act, the sentence I would have imposed if you were convicted of these offences but for your plea of guilty, would have been 18 years with a minimum of 12 years and 8 months.
DAVID VU
56
Turning now to your case, David Vu. You have pleaded guilty on
Indictment K11023466 to one charge of trafficking a large commercial quantity of methylamphetamine which carries a maximum penalty of life imprisonment and two charges of trafficking in a drug of dependence carrying a maximum penalty of 15 years.
57You are now 24 years old. Your date of birth is 26 June 1997. At the time of your arrest, you were just 21 years of age. You were living at unit 111/112 Elizabeth Street, Richmond. You were remanded in custody on 22 April 2019.
58
Your role in the syndicate was that of a phone holder; taking orders from customers and relaying those orders to delivery drivers. You worked 60 shifts. You were first detected on the telephone intercepts on 26 December 2018 after holding the phone on Christmas day 2018 and telling the customers who called that the syndicate was closed for Christmas. The next day, you sent 167 text messages to the customer base saying, 'We will be open at four.' You then facilitated
17 transactions in methylamphetamine totalling 532.2 grams. On 27 December 2018, you conducted one transaction for 7 grams and then in the early afternoon, another transaction in methylamphetamine of 1.7 grams.
59You worked shifts for the syndicate throughout January and February of 2019 as follows:
· On 2 January, one transaction for 140 grams.
· On 9 January, facilitated 14 transactions for 290.5 grams and the following day, another small transaction for 0.5 grams before handing the phone to Phi Van.
· 13 January, 11 transactions at 133.45 grams.
· 16 January, Mr William Wu was the main phone holder, but you assisted him in relation to four transactions totalling 10.9 grams.
· 19 January, 14 transactions totalling 210.25 grams. The next day, three transactions 141.7 grams and another small transaction before the handover.
· 25 January, 11 transactions for 404.8 grams. That was the day police seized the vehicle TBG 631 and located the items to which I referred to in the general summary. The next day you were the phone holder and you facilitated two transactions in methylamphetamine totalling 10.5 grams. That was the day of the seizure, after which no further transactions were performed and you told the customer base that the syndicate was no longer open.
· 28 January, 17 transactions totalling 958.9 grams and then additional transactions on early in the morning of 29 January for 2.2 grams and another small transaction in the afternoon before you handed over the phone.
· 31 January, 13 transactions totalling 386.7 grams. Customers were asking you about the quality of the methylamphetamine on that shift and that is the day the syndicate reloaded with Raymond Tran purchasing a kilogram of product. You told the customer that it, 'Stinks, but it's good.'
· 1 February, two transactions totalling 10.5 grams and another three transactions before handover for 119 grams.
· 3 February, 12 transactions for 67.15 grams and a smaller transaction of 0.4 grams before the handover to Mr Wu. Then there was an additional three transactions for 59.4 grams after Mr Wu handed the phone back to you.
· 6 February, further transactions, two of them, for 4.25 grams. Later on another 14 transactions for 331.40 grams.
· 7 February, 18 transactions of methylamphetamine for 354.8 grams and 0.5 grams of cocaine.
· 8 February, again, there was an additional transaction in methylamphetamine for 59.7 grams and later on in the day, 16 transactions for 239.9 grams of methylamphetamine and 448 grams of cannabis, which is the subject of the trafficking in cannabis charge. That is Charge 3.
· 9 February, two transactions, methylamphetamine, 21 grams.
· 11 February, four transactions, 27.7 grams.
60Then, as I said earlier, a new telephone was obtained for the syndicate and there was no intercept in place until 28 February, but text messages show drug trafficking activities in that period and you worked on: 14 February, 15 February, 18 February, 19 February, 24 February and 26 to 28 February. There was one transaction on 26 February able to be quantified for 112 grams. The intercept became active again on 28 February and you were captured predominantly dealing in methylamphetamine during March until your arrest in April 2019 and I will just list those:
· 1 March, two deals of methamphetamine, 8.85 grams.
· 3 March, three transactions, 30.7 grams.
· 4 March, four transactions, 13.9 grams.
· 5 March, 11 transactions totalling 175.4 grams and then early on the same shift on the following morning, an additional transaction of 84 grams, followed by a further 10 transactions of 191.45 grams in the afternoon.
·
7 March, two transactions totalling six grams. You were heard arguing with a customer who wanted a cheaper price, telling him that it was a business and that he was giving you a 'fucking headache'. There was a further
12 transactions facilitated totalling 175.65 grams.
· 8 March, two transactions for the small amount of 1.2 grams. Then you told customers the syndicate had closed early that night.
· 12 March, three transactions for 5.5 grams. The next day, when you were the phone holder, there was an argument about the amount of methylamphetamine that had been provided to a customer. Raymond Tran attended the house and you put him on the speaker phone. Mr Tran went to meet the customer and could be heard on listening devices manipulating a firearm. Whilst all this was going on, on that day you transacted a further nine times for a total 83 grams and then early the next morning on 14 March 2019, another transaction for 84 grams.
·
15 March, two transactions for 56.5 grams. The next day, a further seven transactions for 129 grams. Early on 17 March, another transaction for
14 grams.
· On 18 March, two further transactions for 7.25 grams. Twelve transactions followed for 51.6 grams and then on 19 March into the early hours of 20 March another three transactions totalling 107 grams, plus another transaction for 1 gram.
· 22 March, 10 transactions, 181.3 grams. In the early morning 23 March, another transaction, 1.7 grams, followed on 24 March by 10 transactions for 20.3 grams and three transactions for 114.7 grams on 25 March.
· 27 March, three transactions for 13 grams.
·
28 March, nine transactions for 123.9 grams followed by two further transactions for 15.7 grams, and the next another small transaction for
1 gram.
· 2 April, three transactions for 38.5 grams.
· 3 April, seven transactions for 73.85 grams. The next morning, a further two transactions for 1.5 grams.
· 4 April, one transaction for 1 gram before you handed the phone to Minh Nguyen.
· 5 April, 14 transactions for 103.2 grams and 0.5 grams of cocaine. Then there was a further transaction the next morning for 56 grams of methylamphetamine.
· 7 April, 69.55 grams of methylamphetamine and 0.5 grams of cocaine.
· 8 April 2019, four transactions in methylamphetamine for 88.4 grams.
· 9 April, 11 transactions for 210.15 grams.
· 11 April, six transactions for 201.5 grams.
· 12 April, four transactions for 260 grams.
· 13 April, 12 transactions for 369.7 grams. You were heard doing stocktake with delivery drivers and with Larry Vu talking about the store of methylamphetamine and the amount of cash which was $39,750. There was a further transaction you conducted in the morning.
· 15 April, five transactions for 341 grams.
· 18 April, 10 transactions amounting to 47.9 grams. You told a customer that day that the stock of drugs had run out and then there was one transaction of methylamphetamine the next morning for 28 grams.
· On 19 April, six transactions in methylamphetamine for 204 grams. You told a customer that you might be getting new stuff.
6122 April 2019, you had the customer phone overnight when the search warrants were executed. Investigating police found a backpack at your house used by the syndicate to transport the buy phones and the business ledgers at the foot of the bed that you were sleeping in. Inside the backpack were several low-cost mobile phones, lined notebooks and cash being $3930. You made a no comment interview on 22 April 2019.
Gravity
62Charge 1 covers a four-month period and involves trafficking in 8,172 grams of methylamphetamine, just under 11 times the large commercial quantity threshold. The seriousness of your offending is, of course, underpinned by the quantity of drugs sold and by the large number of shifts you worked and the transactions you facilitated as a phone holder. The quantity involved of course does not include the period in February where the syndicate changed phones and no phone intercept was in place but where you were working.
63You were a phone holder; you were not a principal. Phone holders were above delivery drivers in the syndicate hierarchy. You did, therefore, have a trusted position and, of course, without your involvement the syndicate could not have operated. The extent and prolific nature of your involvement is clear from the details I have read of the number of shifts in which you participated and the transactions you facilitated. Finally, your offending in Charge 1 is extremely serious for the reasons I have set out in some detail in the general comments and in sentencing Mr Truong and the others in this matter.
64The trafficking cannabis charge was part of the syndicate business and involved overlapping criminality with Charge 1, but it did involve a reasonably significant amount and does justify some modest cumulation.
65Your counsel Mr McQuillan submitted your offending is at the lower to middle range for offences for this type. In my view, your offending is well above the lower end of the range. You were a trusted and essential worker occupying an important role in a business-like, professional drug operation, introducing very large quantities of drugs into the community, well above street level.
66You are an intelligent person which is presumably why you were able to occupy the role that you had in the syndicate. You must have well understood the gravity of what you were involved in. Therefore, your moral culpability must be considered significant. There are other factors that relate to that assessment, which I will refer to later in these remarks.
67As I said earlier, although Mr Truong's large commercial quantity relates to higher quantity, he was a delivery driver and you were a phone holder. Based purely on objective gravity, I regard you as a little below Mr Truong in respect of Charge 1 but because you were a phone holder, the difference is not so significant. I refer to the significance of your guilty plea and you are entitled to a significant discount in sentence because of it.
Personal circumstances
68Your personal circumstances are set out in the psychological report of Mr Luke Armstrong which was tendered at the plea hearing.
69You were born in Melbourne to parents of Vietnamese background and grew up in the commission flats in Richmond. Your mother worked part-time as a waitress, your father had intermittent employment as a chef. Your parents separated during your early years of your primary school but continued to live together until your early adolescence, when your father left and did not return. You have not seen him since.
70Mr Armstrong describes your childhood as, 'rife with emotional neglect.' Your parents' relationship was marred by conflict and instances of family violence. Your father was a heavy drinker and during periods of unemployment, your family lacked financial stability. Mr Armstrong said there is no suggestion of early behavioural problems in your case and you have a relatively normal academic history. You attended Simmonds Catholic College. You played sport and your academic performance was satisfactory, however, you were regularly reprimanded for disruptive behaviour.
71
You first used cannabis at 14 and your use continued weekly until the age of 17. You describe drinking alcohol until you blacked out. You described to
Mr Armstrong three events which had a profound impact on your mental health and an escalation of your drug abuse. These are the disappearance of your father, the hospitalisation of your brother and a car accident which killed two of your close friends. Following these events, you became depressed, unmotivated and began abusing cocaine and MDMA. Despite disengaging from school and abusing alcohol and drugs, you completed VCE. You apparently enrolled in a Bachelor of Psychology but deferred in your first semester. You have not since obtained secure employment.
72Mr Armstrong described you as presenting with borderline personality disorder. He also said he suspected you are an alcoholic and had features of a stimulant use disorder at the time of the offending, although you were not an everyday user of drugs. He said that you are intelligent, performing better on testing than 84 per cent of people your age. He said you do not display psychological features of entrenched criminality. He described the context of your offending as that at the time of the offences you could not obtain employment, you lacked hope regarding your future and apparently you were compelled to offend to secure alcohol and you were contributing to your family's expenses. I take these matters into account but I am not of the view that they provide a total explanation of why you would become involved in this serious offending.
73I have also taken into account the difficulties in your upbringing as matters personal to you, which do relate to some extent to the assessment of your moral culpability in that they explain the trajectory of your life and your problems with substance abuse and involvement in a drug trafficking milieu.
74You have no criminal history and you were still aged 21 at the time of these offences. This is a significant matter in your favour.
Character references
75There were character references, or letters of support, tendered as exhibits on the plea. Phong Thein Tran provided a letter dated 3 June 2021. He described his own disbelief when he learnt of your offending. He described you as a caring and supportive friend who has always looked after those around you. He said you feel distress about the impact of your offending on your friends and family. He said you are remorseful and clearly bothered by your own actions. He outlined his continued support for you. He said your offending was not a true reflection of your personality.
76Anne Nguyen also outlined her support in a letter tendered. She described you as selfless. She said she has visited you in prison or had visits with you whilst you've been in prison and you have developed a better mindset and have expressed remorse for your offending.
77Your friend Peter Lau says you have shown remorse and concern for your family's wellbeing. He described you as a devoted friend and recalled you helping a mutual friend financially during a difficulttime. I have taken these references into account as further evidence of remorse and as indicators that you have a number of positive qualities and people who support you.
Prospects of rehabilitation
78Mr McQuillan submitted that your prospects of rehabilitation are excellent given your remorse and insight into your offending, the substantial drug free period you have already spent in custody, the ongoing support of your mother, your intelligence, and your age. Mr Sonnet said that if you dissociate yourself from negative peer groups, your prospects are very good, although, perhaps not as a high as ‘excellent’. You are drug and alcohol free, as evidenced by the urinalysis results which were tendered to the Court as an exhibit on the plea.
79In assessing your prospects of rehabilitation, I have had regard to the character references and the courses you have completed in custody, for which certificates were tendered. In my opinion, there is no reason why you cannot lead a productive life when you are released. You are still very young and you are intelligent. I assess your prosects of rehabilitation as very good, provided you can disengage from your drug use and peer group.
Sentencing submissions
80Mr McQuillan submitted that the principles outlined in the case of Mills v The Queen [1998] 4 VR 235 are applicable in that your youth and rehabilitation should be the primary sentencing considerations leading to a reduced prison term. He submitted a 'longer than usual period' on parole was appropriate. Whilst there is no usual period on parole, I interpret that submission to mean that I should allow for a lengthy period of supervision to promote rehabilitation in a youthful offender.
81In the case of Azzopardi v The Queen [2011] 35 VR 43 (‘Azzopardi’), Redlich JA reviewed the authorities and confirmed that the principles relating to young offenders are of less significance in cases involving very serious offending where general deterrence is of primary importance. In line with Azzopardi, Mr Sonnet submitted that whilst your age remains a relevant consideration, the gravity of the offending means deterrence and denunciation are the central sentencing objectives.
82I accept this submission. In my opinion, whilst the principles relating to youthful offenders are not extinguished by the gravity of your offending, the importance of general deterrence and denunciation dictates the weight to be given to those principles is substantially reduced. That said, you were just aged 21 when you committed these offences and I have assessed your prospects of rehabilitation as very good, provided you can disassociate yourself from your peer group and I have not lost sight of the need to promote your rehabilitation. I am of the view that your age at the time of the offending does justify some reduction in the sentence to be imposed and, of course, is relevant to the non-parole period.
83The totality principle requires that the overall sentence I impose must be just and proportionate to the whole of your offending. In your case, the offences to which you have pleaded guilty all arise from your participation in syndicate drug activities and, therefore, considerable overlapping criminality exists between the various offences. I have had regard to these matters in deciding issues of concurrency and cumulation between the charges.
84The non-parole period is the minimum period justice requires an offender to serve before being eligible for release on parole. In your case, given the absence of a criminal history, your age, in my view, you have very good prospects of rehabilitation and I will allow for a lengthy period of supervision on parole. Of course, the non-parole period should not be fixed at a level which impermissibly erodes general deterrence.
85I have had regard to all of the matters I can apply in the Sentencing Act and I have balanced the gravity of this offending against the mitigating factors that apply.
Sentence
86I will now turn to sentence.
· In relation to Charge 1 of trafficking in a large commercial quantity of methylamphetamine, you are sentenced to 10 years and 9 months imprisonment.
· In relation to Charge 2 of trafficking in a drug of dependence, namely cocaine, you are sentenced to 2 months imprisonment.
· In relation to Charge 3 in trafficking in a drug of dependence (Cannabis) you are sentenced to 6 months imprisonment.
87I order that one month of the sentence on Charge 3, given the amount involved, is to be cumulative on the sentence for Charge 1. That makes an overall total effective sentence of 10 years and 10 months. I fix with a non-parole period of 6 years and 6 months.
88I declare the pre-sentence detention to be deducted from the sentence imposed; 954 days.
89Pursuant to s 6AAA of the Sentencing Act, I indicate that, but for your plea of guilty, the sentence I would have imposed 16 years and 8 months with a minimum of 11 and 2 months.
90HIS HONOUR: Now, if there's no objection to the ancillary orders, I will make all of those orders. Mr Kelly?
91MR KELLY: No objection, Your Honour.
92
HIS HONOUR: There's a range of confiscation orders and so forth. Now,
Ms Mellios, there was a forensic sample order for one of the offenders, wasn't there? Was it Mr Vu?
93MS MELLIOS: Mr Vu, Your Honour.
94HIS HONOUR: All right. No objection to that, Mr Kelly?
95MR KELLY: No, there's not.
96HIS HONOUR: All right. Having regard to the fact that the order is not opposed and the seriousness of the offences in this case, I will make a forensic sample order. It's for a saliva sample, Ms Mellios, I assume, is it?
97MS MELLIOS: Yes, Your Honour.
98HIS HONOUR: Yes. That'll be done in prison, it's a custody order. If you resist the order, reasonable force can be used by those taking the sample to obtain the sample, but I'm making that order on the basis that it's not opposed and noting the gravity of the offences. So I'll make all of those ancillary orders. Is there anything else that I need to deal with?
99MS MELLIOS: Your Honour referred to it earlier but just the 89DI declaration.
100HIS HONOUR: Yes, yes, of course. For both of you, as I indicated at the outset, I make a declaration under s89DI that you are sentenced as serious drug offenders. That's because trafficking in large commercial quantity is a specified offence, I think, under the Confiscation Act, isn't it?
101MS MELLIOS: Yes, Your Honour.
102HIS HONOUR: And so I make that declaration and that'll be entered into the records of the court. Court is now adjourned.
103MS MELLIOS: As Your Honour pleases.
104MR KELLY: As Your Honour pleases.
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