Director of Public Prosecutions v Van
[2015] VCC 649
•2 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01323
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONG PHONG VAN |
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JUDGE: | Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | Monday 2 May 2016 | |
CASE MAY BE CITED AS: | DPP v Van | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 649 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms D. Tang | |
| of Public Prosecutions | ||
| For the Accused | Mr J. Valos |
HER HONOUR:
1 Cong Phong Van, you have been found guilty by way of jury verdict on one charge of trafficking in a drug of dependence in a commercial quantity. The maximum penalty for that offence is 25 years’ imprisonment. As a result of your prior criminal history, if you are sentenced to a term of imprisonment in respect of this charge, you will be sentenced as a “serious offender” for the purposes of s.6D of the Sentencing Act (1991). The prosecution do not urge a disproportionate sentence for the purposes of community protection.
2 The prosecutor sought an order for disposal of a phone. The making of that order was consented to. The prosecutor also sought a forfeiture order in respect of $10,000 cash which was found on you at the time of your arrest. The making of that order was opposed.
3 Your offending was detected in the following circumstances. During 2014, there was a Joint Organised Crime Task Force investigation into the importation and distribution of cocaine in Australia. A target of these investigations was Matthew Murphy. Matthew Murphy was wholesaling cocaine which was sourced from Columbia. From 10 November 2014, police intercepted messages between Mr Murphy and a co-accused, Quang Xuan Do, which suggested that Mr Do was seeking to purchase cocaine from Mr Murphy.
4 At about 10 o’clock on the morning of 13 November 2014, Mr Do drove to Mr Murphy’s home and parked. You were already in the street and parked. Mr Do met Mr Murphy and ultimately returned to his car with a white plastic bag, waving to you. You and Do drove off in your cars and were arrested by the police. In Mr Do’s car, a number of items were found including a plastic containing 399.3 grams of cocaine of 72.7 per cent purity, leaving a total nett weight of 290.2 grams of pure cocaine. At Mr Murphy’s house, was found an amount of $60,000 cash in bundles. You were arrested and in your car was found $10,000 and two mobile phones.
5 Investigation showed a number of text messages and exchanges between you and Mr Do in the days before and on the day of arrest. During those messages, there were references to a “half” and various exchanges which the prosecution relied on as leading to a conclusion that you were going to obtain cocaine from Do for the purposes of on-selling it. That was the basis on which the trial proceeded.
6 Your counsel at the plea hearing said that your position was that you were involved for the purposes of obtaining cannabis, and that you were not involved with the purpose of cocaine by Mr Do from Mr Murphy. The jury found that you were criminally involved in Do’s purchase of cocaine from Murphy. The jury was not required to specify the particular type of involvement. On the basis of the evidence in the trial, I am satisfied beyond reasonable doubt, that you had an agreement, arrangement or understanding with Do that he would obtain half a kilo of cocaine from Murphy which Do was going to provide to you for the purposes of on-selling. In my view, that conclusion is the only reasonable conclusion that can be drawn from the circumstances of this case and the contents of messages between you and Do. For sentencing purposes, the precise basis of the jury verdict is immaterial.
7 In respect of the $10,000 found in your vehicle, I am not satisfied that that amount can be characterised as being linked directly to the commission of this offence of trafficking in a commercial quantity of cocaine. The application for forfeiture of that amount is refused.
8 In sentencing you, I have taken into account your personal circumstances which were described by your counsel and by Mr Patrick Newton in his psychological report dated 14 August 2013, which was tendered as Exhibit 1. You are now 26 years old. You were born in Hong Kong after your parents had fled from Vietnam. You are the second of four children. Your family came to Australia when you were a baby and settled in Richmond. You had a very loving relationship with your parents and an unremarkable upbringing, apart from your mother’s serious illness when you were in late primary school. Your mother’s illness and the need for your father to work two jobs left you and your siblings at times unsupervised.
9 You completed school although you had some difficulties with bullying at school. In 2008, you began tertiary studies in business, but by that time, your drug use meant that you were unable to sustain your studies. You did an electrical pre-apprenticeship course and have re-enrolled in tertiary studies in 2013. You have a patchy work history.
10 Mr Newton says that you began drinking alcohol in your late teens and started using cannabis when you were 18. By about a year later, you were using significant quantities on a daily basis. You reported a history of heavy gambling from about the age of 20. You regard yourself as a successful gambler and spent an increasing amount of time gambling and wagering large amounts of money. In 2012, you became involved in the cultivation of cannabis as a means of repaying debts to money lenders. It was in that context, that your prior offending occurred.
11 At the time he assessed you in August 2013, Mr Newton says that you were suffering symptoms of significant anxiety. He described you as recovering from cannabis use and as needing education and counselling to address your drug use and gambling behaviour.
12 You have admitted a prior criminal history which includes three court appearances in respect of injury offences. On 26 August 2013, you were sentenced to a period of imprisonment of 1 year and 2 months, with a non-parole period of 6 months, for offences of cultivating a narcotic plant in a commercial quantity and theft. You were released from custody at the end of the non-parole period and successfully completed the parole period which ended on 26 October 2014.
13 Your counsel said that the offending for which I am sentencing you occurred after you met Mr Do at a wedding and became friendly with him, and became involved in a variety of activities with him. You have been in an ongoing relationship with your partner, and with her, you have a baby, who was born in December 2015. Your counsel said that since the birth of your child, you have reorientated your priorities and seldom go out. He said you have complied with your bail conditions, including daily reporting and curfew conditions.
14 You commenced an apprenticeship in 2015 but needed time off, due to your partner’s difficult pregnancy. You then got a job as a landscape gardener which you enjoyed but that employment ended with you being owed 2 months wages. You would like to return to that type of work.
15 Your counsel said that you returned to gambling after you were released on parole and generally had gambled successfully.
16 I accept that you have been involved in assisting youth in the Buddhist and Vietnamese community, including at Vietnamese festivals. According to a reference which was tendered as Exhibit 2, you have also been assisting as a volunteer at a food bus on Sunday evenings. You were described by the writer of that reference as, “a real team player”.
17 Your partner gave evidence on your behalf. She said that she had known you since you were in high school and that the first time she had met Mr Do was at the wedding which you both attended. Your partner says that she does not like you taking anything and wishes you would stop smoking and gambling. She says you have spent less time gambling in recent times and that you are eager to re-enrol in studies and to assist your parents. She says that since her pregnancy, you have become very determined to work and are trying to find new work. She says you are a very good father which she had not expected from you. She said there was a massive reduction in your gambling but you still gambled on occasion at poker machines.
18 A friend who has known you since 2003, in reference, Exhibit 3, says that you are remorseful and feel guilty about the stress, anxiety and shame you have caused your partner and son. She says she has never seen you so committed as she has seen you since the birth of your baby and describes your day-to-day care and support for him. She describes you as having been a “decent, loyal and trustworthy friend”.
19 Your counsel submitted that the appropriate sentence would be a combination of imprisonment with a community correction order. He stressed your relative immaturity and your willingness to work. He submitted that you had strong support in the community and had matured to a degree and would benefit from a community correction order including in respect to your ongoing problems with gambling.
20 The prosecutor, in sentencing submissions, submitted that due to the seriousness of this offence, general deterrence and specific deterrence will be a significant sentencing consideration. The prosecutor submitted that the seriousness of the matter demanded a significant sentence of imprisonment.
21 During the adjournment of this matter for me to consider the appropriate sentence, I have had you assessed as to your suitability for a community correction order. The report says that you are suitable for a community correction order and suggests various conditions. I note that the Community Correctional Services say that you received a parole order for about 8 months in 2014 and your compliance was excellent.
22 Cong Phong Van, the offending in which you engaged is serious. You became involved in the business of selling illegal drugs. Your motivation seems to have been at least in part to obtain money to support your gambling. You have a history of cannabis use but not of using cocaine. From the evidence in the trial, it appears that you were intending to distribute the drugs at street level.
23 The trade in illegal drugs is an evil one. It preys on the weaknesses of others. You had had the opportunity to observe the harm caused by illegal drugs and should have been warned by your previous sentence not to get involved again. It is very concerning that you have committed this offence very shortly after completing your parole period for similar offending. A sentence must be imposed on you which may act as a deterrent to those who decide to take this further step into trafficking drugs. A sentence of imprisonment is clearly warranted for the purposes of denunciation, general deterrence, just punishment and specific deterrence.
24 I consider that you do have reasonable prospects of rehabilitation given your behaviour since you became a father. That said, specific deterrence must be given weight in sentencing you in order to discourage you from further offending and to encourage you to continue with your rehabilitation. The need for further specific deterrence is demonstrated by your inability to learn from your previous sentence.
25 A number of your co-accused have been sentenced. In terms of parity issues, I consider that Mr Do’s sentence is of relevance. Your role was significantly different than that of the other co-accused. Quang Xuan Do pleaded guilty to trafficking in a commercial quantity of cocaine and possession of heroin. He was sentenced on 9 December 2015 to a term of imprisonment of 4 years’ and 3 months with a non-parole period of 2 years’ and 3 months. The sentence for the trafficking charge was 4 years’ and 3 months.
26 I have had the benefit of reading the reasons for sentence of Judge Misso [2015] VCC 1957. Mr Do was sentenced on the basis that he was a middle-man who was obtaining cocaine to supply to you, a street dealer. Mr Do’s position in the hierarchy was higher than yours. He had a relevant prior conviction although he had not previously been imprisoned. Mr Do pleaded guilty, had engaged in rehabilitation and had become involved to fund his heroin habit.
27 I have taken into account that your position in the drug dealing hierarchy was at the low level and you are charged in relation to this one transaction. I have also taken into account matters personal to you.
28 The amount of cocaine obtained is a significant quantity. As I have said, your offending was serious. I consider that the need to give proper weight to sentencing considerations of denunciation, general deterrence, just punishment, specific deterrence and community protection cannot be met by a sentence of imprisonment to be followed by a community correction order. The parity considerations also support that conclusion.
29 I do not intend to impose a disproportionate sentence for the purposes of s.6D of the Sentencing Act (1991).
30 Cong Phong Van, on Charge 1 of trafficking in a commercial quantity of cocaine, you are convicted and sentenced to a term of imprisonment of 4 years’ and 9 months. I fix 3 years and 3 months as the period you must serve before being eligible for parole.
31 I declare that you have served 73 days of this sentence by way of pre-sentence detention.
32 You are sentenced as a serious offender in respect of this sentence.
33 I have made the orders for disposal sought.
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