Director of Public Prosecutions v Van
[2023] VCC 1652
•8 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00499
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THIEN VAN |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2023 | |
DATE OF SENTENCE: | 8 September 2023 | |
CASE MAY BE CITED AS: | DPP v Van | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1652 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking a drug of dependence in a quantity not less than a large commercial quantity – possess general category handgun – interception and search of vehicle locating large commercial quantity of drugs and firearms – no prior criminal history – history of drug use – moderate prospects of rehabilitation – specific deterrence and protection of the community significant sentencing purposes – standard sentence considerations – high level of moral culpability – early plea of guilty – Verdins – totality
Legislation Cited: Sentencing Act 1991
Cases Cited:Brown v The Queen [2019] 59 VR 462; Director of Public Prosecutions v Fatho [2019] VSCA 311; DPP v Orlov [2023] VCC 444; DPP v Jabbour [2023] VSCA 204; R v Verdins [2007] VSCA 102; DPP v Kumas [2021] VSCA 215; DPP v Yuksek [2022] VCC 683; DPP v Rowe [2021] VCC 780; DPP v Kane [2020] VCC 612; DPP v Meagher [2022] VCC 711; DPP v Fatho [2019] VSCA 311; Gregory (A Pseudonym) v The Queen [2017] VSCA 151; Sharbell [2018] VSCA 324; Director of Public Prosecutions v Condo [2019] VSCA 181
Sentence: Total effective sentence of 12 years and four months' imprisonment. Non-parole period of eight years' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R. Hamnett | Office of Public Prosecutions |
| For the Accused | Ms Z. Garde-Wilson | Garde Wilson |
HIS HONOUR:
Introduction
1Thien Quoc Van, Mr Van, I propose to sentence you to a total effective sentence of 12 years and four months' imprisonment. I will set a non-parole period of eight years imprisonment. I will declare your 343 days of pre-sentence detention as time served under my sentences today. This figure excludes today.
2You pleaded guilty to four charges on the indictment and three summary charges. The most serious of these charges is trafficking in a drug of dependence, being methylamphetamine and MDMA in a quantity not less than a large commercial quantity. The maximum penalty for this offence is life imprisonment.
3The circumstances of your offending appeared in the prosecution opening for plea. You agree with its factual contents.
Circumstances
4At about 7 pm on 30 September 2022, police members intercepted your vehicle in St Albans. You were the driver. There were two bags in the vehicle's cabin. One of the bags contained
(a) A large bag containing 998.3 grams of methylamphetamine. The drugs were stored in a package and in several Ziplock bags.
(b) A plastic bag containing 1,125.9 grams of a mixed amount of MDMA. This drug was held in a vacuum-sealed package.
(c) A large Ziplock bag containing 1,136.5 grams of mixed MDMA. This drug was held in a vacuum-sealed package.
(d) A large Ziplock bag containing 1,829 grams of mixed methylamphetamine, this drug was held in three vacuum-sealed packages, which in turn held a large number of Ziplock bags.
(e) A large Ziplock bag containing three packages of MDMA pills, and another package containing 999.2 grams of mixed methylamphetamine.
(f) A large package containing a Ziplock bag with 498 grams of mixed methylamphetamine.
5The other bag blue in colour, contained various types of firearms and ammunitions, as well as an extendable baton and two Tasers. These items are described in paragraph 11 of the prosecution's opening. The items relate to Charge 1 on the indictment, and one or other of the summary offences.
6Charge 1 deals with a handgun. It is described as a silver M1911A1 handgun. It was found to operate. It had an unloaded magazine. There were also 10 rounds of .22 calibre ammunition in a small Ziplock bag. This ammunition could be used in the handgun.
7Summary Charge 8 is a rolled-up charge dealing with four imitation firearms.
8Not unnaturally you were arrested that day. When interviewed the next day you gave no comment answers to the questions asked.
9Also on 1 October, police members searched an address in Cairnlea and found the items described in paragraph 19 of the prosecution's opening including five mobile phones. Your former wife was present. She told the police you no longer live there and gave them the address in St Albans where you lived.
10The police then obtained further search warrants and searched your unit in St Albans and found a backpack with $329,400 in several plastic shopping bags, and a set of large industrial scales.
11The seven mobile phones found in your car and in the Cairnlea premises were analysed and the data was extracted. It revealed contact between you and someone called ‘Pete Wingman’, and indicated you supplied that person on several occasions with several hundred ecstasy tablets.
12Analysis of the items found in your vehicle at the time of your arrest, showed,
(a) A total of 2,959.9 grams of MDMA, which is three times the threshold of a large commercial quantity of MDMA mixed;
(b) A total of 3,597 grams of methylamphetamine, which is almost five times the threshold for a large commercial quantity of methylamphetamine mixed; and
(c) A total amount of heroin was 28.4 grams, where a trafficable quantity is in the range of 3 grams to 30 grams, above 30 grams it becomes a commercial quantity.
Criminal history
13You had no prior findings of guilt or convictions. Although lacking prior convictions or findings of guilt, you have used illegal drugs for many years. The benefit of previous good character is of lesser weight than if you had not used those drugs when you did.
Personal
14You are now 42. You were born in the southern part of Vietnam and are the second eldest of four children. You are married with two children aged five and seven. When you were about four, your family fled Vietnam, and ended up in a refugee camp in Malaysia. Your family stayed at the camp for three years, before coming to Australia.
15Your family struggled to find stable accommodation. It was only when you were 10 that such accommodation was found in Footscray.
16Your father found full-time work as a farm labourer, which took him away from home so much, you rarely saw him. Despite his employment, the family was poor.
17Although unable to speak English you went unassisted in school. You struggled and had to repeat Year 1. You were daily bullied at school because of your race, and sought protection by associating with other Asian children.
18Interestingly, a Lochie Ngo, a friend of your brother, Son, speaks of you at secondary school[1]:
'Amongst the senior students, and teachers, Quoc was also courteous and polite. Frequently offering assistance in various curricular activities. Whilst among his peers and the junior students, Quoc was always ready to play big brother and help out the under-dogs. Yet at the same time he was never boisterous or over-bearing.'
[1] Letter dated 29 May 2023.
19Your father was a strict parent. If the children needed disciplining, your mother waited for his return. You told the psychologist you feared your father.
20Your brother Adam, speaks of, 'a tightknit family’, which was ‘a Christian household’ and the ‘church was a central part of our lives growing up.' You and he attended Sunday school, church camps and youth groups. It was through the church you met your future wife, Cecile. Later, you left the church and religious observance. It is only while in custody that you have resumed religious practices: reading the Bible, wearing a cross, attending church services and speaking to chaplains.
21Your parents were ambitious for you, wishing for you to become a doctor or a lawyer. During Years 11 and 12, your parents spent ‘a considerable amount on private tutors’. During that time, you met your future wife but your requests to attend social functions were denied. You resented your parents' pressure to study and studied less as a result. Your VCE results were poor and you ran away from home for a week through your sense of shame.
22Nevertheless, you enrolled in a mechanical engineering course at a university and completed the second year. You deferred your studies for a year and then enrolled in the same course at a different university. Unfortunately, the university required you to repeat the second year. In 2006, you enrolled in another course but later left without completing your degree.
23You and your partner travelled to the Philippines for a year. After returning you worked for Telstra in a call centre. You worked for other call centres. You worked for a power company for three years before being made redundant. You took about 18 months to re-enter the workforce. You obtained administrative work with the NBN, married about then and resumed a friendship with someone from school. This friend introduced you to cocaine, but you also used ecstasy. You became part of a drug using group. Cocaine was used on weekends but by 2019, it was daily use for you. It was accompanied by alcohol daily.
24In 2021, you changed jobs and worked as a payroll officer. You were spending heavily on alcohol for your friends and they gave you cocaine without charge.
25You say this offending was done under the pressure of and at the beckoning of your peer group. Despite knowing it was wrong you were unable to refuse their requests.
26As I said early, you are the father of children. You and your wife are separated. Your wife has supported you while in custody. You were raised a Christian and returned to practicing your faith while in custody. You have not participated in drug rehabilitation programs while in custody.
Psychologist
27Luke Armstrong is a consultant psychologist. At the request of your solicitors he interviewed and tested you on 12 July 2023.[2] Much of your personal details comes from his report.
[2] Report dated 17 July 2023.
28Mr Armstrong diagnosed you as suffering from a Stimulant Use Disorder. Initially, the symptoms were mild but after 2019 became moderate to severe. He thought you were also an alcoholic.
29I do not understand Mr Armstrong diagnosed you as suffering from depression. His appreciation is more subtle. He considered you are prone to depression and traced this development to your adolescent years[3]:
'…Mr Van could not actually fulfil his parents’ expectations even if he wanted to, so he lacked the intellectual capacity to successfully undertake law or medicine. He also came to resent his parents, however he could not openly express this owing to shame and guilt. Mr Van likens the experience of growing up as being trapped. Depression is a common outcome for those who cannot reconcile anger or bring about control in their lives, especially during the clinical developmental years of adolescence. I suspect Mr Van developed a proneness for depression during this time. A feature of depression is motivational deficits, anxiety and problems in mood. I would venture further to suggest this depression has followed Mr Van his entire life.'
[3] At p 7.
30He thought the mood and motivational enhancing aspects of cocaine would have appealed to you.
31Mr Armstrong does not recommend specific psychological treatment. Rather, he believes you should undertake drug rehabilitation programmes. However, those programmes would benefit you if you realised your offending was linked to your drug taking. In fact, you need to realise your drug taking had reached the stage of addiction.
Discussion
32Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences maybe imposed:
(a) To punish the offender to an extent and in a manner which is just in all of the circumstances;
(b) To deter the offender or other persons from committing offences of the same or a similar character;
(c) To establish conditions within which it is considered that the offender's rehabilitation of the may be facilitated;
(d) To manifest the denunciation of the type of conduct the offender engaged in; and
(e) To protect the community from the offender.
33Subject to other considerations in relation to the trafficking charges, the purposes of just punishment, deterrence, general and specific, protection of the community and rehabilitation are engaged.
34Apart from Part 2A of the Sentencing Act, the nature of the trafficking offences place just punishment, general deterrence and denunciation at the forefront of the sentencing purposes.
35Even before the advent of Part 2A of the Sentencing Act, specific deterrence and protection of the community from you were very important purposes. Part 2A elevates those purposes.
36The prosecution drew my attention to several judgments of the Court of Appeal[4] for these propositions:
(a) General deterrence is of great importance. Its importance is reinforced by the prevalence of the offence of trafficking in that case in methylamphetamine;
(b) Where the acts of trafficking in a drug of dependence is concerned, the potential harm is viewed as seriously as the actual harm. The drugs found in your possession had not reached their ultimate destination, although given opportunity, they would have done so;
(c) The quantity of the drugs trafficked is important, other things being equal, the greater the quantity trafficked the more serious the trafficking offence. In your case, the amount of trafficking was many times the threshold quantity for the offence.
[4] DPP v Fatho [2019] VSCA 311; Gregory (A Pseudonym) v The Queen [2017] VSCA 151; Sharbell [2018] VSCA 324 and Director of Public Prosecutions v Condo [2019] VSCA 181.
37As I have said, deterring others from committing the drug offences you committed or offences similar to them. Those offences are of such a nature that my sentences must reflect their denunciation.
38Specific deterrence and protecting the community from you are purposes which sit side by side. To an extent, these purposes are determined by my assessment of your prospects or chances of rehabilitation.
39As happens with letters from family or and friends, a side of your character is really revealed different from that supposed by your offending. For example, your friend Tuan Hoang wrote[5]:
'Quoc is a great friend who possesses truly admirable qualities. He is kind-hearted, reliable and always willing to lend a helping hand.'
[5] Undated letter of Tuan Hoang.
40As to your prospects of rehabilitation, this is your first time in custody. The sentences I will impose should act as a strong deterrent to future offending. Necessarily, they will be long sentences. They are a plain demonstration of the power of the law to punish grievous wrongdoing.
41You enjoy the strong support of members of your family and friends. This is evident from the letters which I have read. In his struggle to understand why you offended, your brother Adam, speaks of your unwillingness to discuss your problems with others. If this reluctance continues, then the support of your family and friends is less useful for they will not know how to help you and whatever they do offer will be less effective.
42Your brother speaks of your shame: 'I believe he felt quite ashamed about what he has done and how he has let his parents down...I could tell from his eyes, that he was devastated by what he had done, especially how he had hurt my parents.' I accept you are remorseful, or sorry for your crimes you have committed. However, you do not accept the fact of your addiction, or the link between the addiction and your offending. I doubt your remorse will translate at this stage at least, into a determination not to re-offend.
43Mr Armstrong saw you as prone to suffering depression. He did not recommend any specific treatment for this condition. His focus was on your drug addiction. Even though you had not attended any drug programmes whilst in custody, you were not against attending such programs. He saw you as a good rehabilitation and reform prospect, noting among other things your desire to be a good father to your children.
44While in custody, you have completed four subjects in three courses through the Kangan Institute.
45The Director submits your prospects of rehabilitation are moderate, while you lack a criminal history, your offending is extremely serious. It is linked to your long history of substance abuse. You have not engaged in any drug rehabilitation programme in custody although you say you are willing to do so, whether or not you do so remains to be seen.
46Overall, I consider your prospects of rehabilitation are moderate. The hurdle for you is your drug addiction. It seems you must accept the fact you are an addict in order to embrace the systems to rid yourself of the addiction. Various factors will help you, not the least, the sentence I will impose.
47Because your prospects are moderate, there is a need to recognise specific deterrence for the protection of the community from you as significant sentencing purposes.
48Given the seriousness of the charge, it is superfluous to note it is a category 1 offence under the Sentencing Act and what flows from that categorisation.
Maximum penalties
49The maximum penalties for the offences are:
(a) Trafficking in a drug of dependence in a large commercial quantity - life imprisonment or a fine of 5,000 penalty units;
(b) Trafficking in a drug of dependence - 15 years' imprisonment;
(c) Knowingly dealing with the proceeds of crime - 15 years' imprisonment;
(d) Possessing a general category handgun - a fine of 240 penalty units or four years' imprisonment;
(e) Possessing cartridge ammunition - a fine of 40 penalty units;
(f) Possessing a prohibited weapon - a fine of 240 penalty units[6] or three years' imprisonment; and
(g) Possessing an imitation firearm - a fine of 240 penalty units or two years' imprisonment.
[6] At present, the value of a penalty unit is $192.31.
Standard Sentence Scheme
50On 1 February 2018, the standard sentence scheme commenced operating. Only a few criminal offences are standard sentence offences, for which standard sentences are prescribed. The offence contained in the charge of trafficking in a large commercial quantity of a drug of dependence is one such offence. The standard sentence for that offence is 16 years' imprisonment.
51What is the meaning of the standard sentence? First, it is the period of imprisonment specified for a particular offence. Second, that period is the sentence taking into account only the objective factors affecting the relative seriousness of that offence, and is in the middle of the range of seriousness.[7] The objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to you and wholly by reference to the nature of the offending.[8] Third, in sentencing you for this offence, I must take the standard sentence as one of the factors relevant to sentencing.[9]
[7] S 5A(1)(b).
[8] S 5A(3).
[9] S 5B(2)(a).
52In Brown v The Queen[10], the court discussed the standard sentencing scheme. At paragraph 4 it said,
'The key new requirement is that a judge when sentencing for a ‘standard sentence offence’ must take the standard sentence into account, as one of the factors relevant to sentencing. This requirement
· is to be treated as a ‘legislative guidepost’, having the same function as the maximum penalty;
· does not affect the established ‘instinctive synthesis’ approach to sentencing;
· does not require or permit ‘two-stage sentencing’; and
· does not otherwise affect the matters which the court may, or must, take into account in sentencing.'
[10][2019] 59 VR 462.
Non-parole period
53The scheme sets out the non-parole periods for standard sentence offences. Unless I consider it as not in the interests of justice, the non-parole period must be at least 60 per cent of the sentence imposed on the standard sentence office, namely, the offence of trafficking in a large commercial quantity of a drug of dependence.
Gravity of Offending
54You submit the quantity of the drugs in Charge 2 is in the mid-range for the purposes of the standard sentencing scheme. The charge relates to two substances:
a)MDMA, is approximately 443.7 grams pure and 2,959.9 grams mixed. This amount is less than the pure quantity for a large commercial quantity but three times the mixed quantity for a large commercial quantity.
b)The methamphetamine is approximately 2,635.77 grams pure and 3,597 grams mixed, which on both accounts is about five times the large commercial quantity.
55The threshold for the large commercial quantity of methylamphetamine (mixed) is 750 grams. The total quantity of methylamphetamine seized from your vehicle is 3,597 grams, equivalent to 3.6 kilograms or over 4.5 times the threshold.
56The threshold for a large commercial quantity of MDMA (mixed) is 1 kilogram. The total quantity of MDMA seized from your car was 2,959.9 grams, equivalent to 2.5 kilograms or 2.5 times the threshold.
57In the case of the Director of Public Prosecutions v Fatho the court said[11]:
'As is now well understood, the sentencing regime for drug trafficking is quantity-based. The quantity trafficked can never be the determining factor but it will always be of importance. Other things being equal, the greater the quantity trafficked, the more serious the trafficking offence.'
[11] [2019] VSCA 311 at [70].
58You possessed a large amount of drugs. You had an industrial scale weighing machine. You possessed a very large amount of money You had dealings with another person regarding trafficking of drugs. You received cocaine in exchange for your participation in the trafficking of these drugs. Certainly, the scheme, of which you were a part, was designed for financial gain, partly evidence by your possession of the money.
59Below I mention my sentencing remarks, in Orlov[12] and the very recent judgment of the Court in the DPP v Jabbour[13]. My remarks in Orlov and, more particularly, in Jabbour, examine various cases, party from the perspective of quantity of the drugs. As the sentencing judge in Jabbour noted cases where very large amounts of drugs had been trafficked, ranging between 14 times to up to 170 times of the large commercial quantity threshold.[14] In light of those other cases, the quantity in this case was below the mid-range.
[12]DPP v Orlov [2023] VCC 444.
[13] [2023] VSCA 204.
[14] Jabbour at [9b].
60Although the charges of trafficking were confined to a single day, you possessed, in particular, a very large sum of money and various firearms. There was evidence of dealing with another person. Your involvement was broader than your possession on that day. You were not simply a courier.
61Overall, the gravity of your offending in relation to the trafficking offences is in the mid-range.
62Your drug addiction does not reduce the level of your culpability, which is high. As is usually the case, your drug addiction is not a mitigating factor.
Guilty pleas
63You indicated an intention to plead guilty during a committal mention hearing. If one views the progress of a charge, starting with the filing of the charge in the Magistrates' Court and ending with a trial in this Court, then your indication was given at an early stage. This is a mitigating factor.
64By pleading guilty you have taken responsibility for your offending. Your guilty pleas have the practical effect of assisting the criminal justice system by creating space for those other proceedings which genuinely require a trial. This avoids the need for witnesses to give evidence in this Court.
65Even the problems caused by the virus to the criminal justice system have waned, they have not disappeared. The virus still disrupts the progress of some trials in this Court. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.
66The fact you pleaded guilty suggests that you are sorry for committing these offences.
Verdins
67You rely on the fifth proposition or limb stated by the court in R v Verdins:[15]
'The existence of the condition as at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person of normal health.'
[15] [2007] VSCA 102.
68The prosecution acknowledges you have diagnoses of 'features of depression’, stimulant use disorder and alcoholism. It noes, on the basis of the assessment of Mr Armstrong, your condition at the time of sentencing may enliven proposition or limb 5. I consider it does.
Current sentencing practices
69For the purposes of current sentencing practices, your counsel referred to four sentences of judges of this Court[16]. The Director's counsel referred to several judgements of the Court of Appeal emphasising the inadequacy of past sentencing in this area and, in one case, an indication of the appropriate kind of sentence in trafficking in a commercial quantity of a drug of dependence. I refer the parties to my sentencing remarks in Orlov and the very recent judgment of the court in the DPP v Jabbour.
[16]DPP v Kumas [2021] VSCA 215, DPP v Yuksek [2022] VCC 683, DPP v Rowe [2021] VCC 780, DPP v Kane [2020] VCC 612 and DPP v Meagher [2022] VCC 711
Conditions in custody
70Over and above the restrictions of imprisonment, the reaction to the virus created more restrictions. The extent of those restrictions lessened as the nature of the virus became better understood and measures were taken to moderate its effect. Your time in custody has not been spent during the worst of the pandemic and the restrictions have been less. Nevertheless, there have been some restrictions which render your time in custody more onerous than in normal times. This is a moderating factor in sentencing you.
Totality
71Where one sentences a person to more than one term of imprisonment, the sentencer should ensure the overall sentence is just and appropriate for the whole of the offender's criminality. This is called the principle of totality. Its proper application results in the sum of the sentences for individual charges do not become disproportionate to the offender's overall offending.
72A separate aspect is the overlap of some of the charges. I view the trafficking charges in the light of your possession of firearms money and evidence of other trafficking. The issue of concurrency or partial concurrency becomes important.
Sentence
73On Charge 1, the charge of possessing a general category handgun, I sentence you to 18 months' imprisonment.
74On Charge 2, a rolled-up charge of trafficking a drug of dependence in a large commercial quantity, I sentence you to 11 years' imprisonment.
75On Charge 3, a charge of trafficking in a drug of dependence, I sentence you to three years' imprisonment.
76On Charge 4, a charge of knowingly dealing with the proceeds of crime, I sentence you to two years' imprisonment.
77On Summary Charge 4, a charge of possessing cartridge ammunition, you are convicted and discharged. Fining you for this charge would serve no useful purpose. It is likely you would be unable to pay the fine. Inevitably it would be converted into a term of imprisonment, which is the opposite of the maximum penalty for the offence.
78
On Summary Charge 5, a rolled-up charge of possessing prohibited weapons,
I sentence you to three months' imprisonment.
79
On Summary Charge 8, a rolled-up charge of possessing prohibited weapons,
I sentence you to nine months' imprisonment.
80The base sentence is the sentence on Charge 2. Six months of the sentence on Charge 3, six months of the sentence on Charge 4 and four months of the sentence on Charge 1, are to be served cumulatively upon themselves and upon the base sentence. The other sentences of imprisonment are to be served concurrently.
81The total effective sentence is 12 years and four months' imprisonment. I will set a non-parole period of eight years' imprisonment.
82I declare your 343 days of pre-sentence detention as time served under my sentences today, this figure excludes today.
6AAA
83
If you had pleaded not guilty to these charges (except the charge where
I convicted and discharged you) but were found guilty after a trial, I would have sentenced you to a total effective sentence of 18 years' imprisonment.
Forfeiture and disposal orders
84I will make the forfeiture and disposal orders in the terms of the drafts.
S 5B(3)
85
Section 5B(5) of the Sentencing Act, requires, as part of my reasons under
sub-section (4), that I must refer to the standard sentence for the offence and explain how the sentence imposed by me relates to that standard sentence.
86My sentence for the standard sentence offence in this case is less than the standard sentence. It is less because of a combination of factors including the timing and effect of your guilty pleas, aspects of your character, your prospects of rehabilitation, and the effect of imprisonment upon you.
Declaration
87Having been convicted on Charge 2, of a serious drug offence, I declare you under section 89DI of the Sentencing Act 1991, to be a serious drug offender.
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