Director of Public Prosecutions v Vo

[2015] VCC 1891

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00042

THE QUEEN

v

AN LANH VO

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 December 2015
CASE MAY BE CITED AS:	DPP v VO
MEDIUM NEUTRAL CITATION:	[2015] VCC 1891

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Ms S. Coidan
For the Offender	Ms J. Swiney

HIS HONOUR: 

1An Lanh Vo, you have pleaded guilty to one charge of deal with money being $100,000 or more which is reasonably suspected of being the proceeds of crime and one charge of conspiracy to commit an offence of importing a commercial quantity of a border controlled drug.

2These offences carry the following maximum penalties:  Charge 1, deal with money which is reasonably suspected of being the proceeds of crime, three years' imprisonment and/or 180 penalty units; Charge 2, conspiracy to commit an offence of importing a commercial quantity of a border controlled drug, life imprisonment.

3It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, Prosecution Plea Materials folder tab 3, Summary of Facts for Plea Hearing.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now briefly summarise.

4Between 16 August 2012 and 20 March 2013 you and others, including Suky Lieu, Van Thi Hong Nguyen and Thi Quyen Le conspired to import a commercial quantity of heroin into Australia from Vietnam.  Pursuant to the conspiratorial agreement heroin was to be imported on an ongoing basis as and when it was available to the Vietnam suppliers and sought by the Australian buyers.  Various importations using recruited couriers to bring the drugs into the country were planned and carried out.

5You and Suky Lieu were principal Australian-based participants in the conspiracy.  As and when required you and Suky Lieu would communicate with each other about the placement of orders and arrangements for the supply of heroin in Vietnam with the intention that the heroin would be subsequently imported into Australia by couriers once it was available.  In anticipation of the intended importations you provided money to Suky Lieu so that arrangements could be made by him to confirm and pay for the supply of the heroin in Vietnam.  You also arranged for and organised the couriers who were to travel from Vietnam to Australia with the concealed heroin. 

6Once an order for the supply of heroin had been placed you and Suky Lieu would remain in contact about the progress of the order, the arrangements for the delivery of the heroin to your couriers in Vietnam, and the anticipated return of those couriers to Australia.

7Nguyen was a source of the supply of heroin in Vietnam.  When your syndicate associates received heroin in Vietnam you would arrange for the drugs to be brought into Australia using internal couriers and body packers.  You arranged and paid for couriers to travel to Vietnam and to be ready in Vietnam on a number of occasions. 

8At least four couriers arranged by you, Dai, Ly, Truong and Pham, were identified as having returned to Australia from Vietnam carrying concealed quantities of heroin.  You intended to receive delivery of the heroin from these couriers upon their return to Australia.  You and other syndicate members regularly spoke on the phone using codes and you used multiple telephones, usually subscribed in false names to attempt, to evade detection.

9During the relevant period you were in receipt of unemployment benefits and received no other legitimate source of income. 

10Prior to the conspiracy you sent significant amounts of money to recipients in Vietnam via money remitters based in Victoria.  Between 16 February 2012 and 14 August 2012 you sent a total of $100,518 via 20 money transfers (see Annexure A, Charge 1).

11The precise details of various importation arrangements in the period August-October 2012, the importations by Dai and Ly on 8 December 2012, the importation by Truong on 28 January 2013, the importation arrangements between January and March 2013 and the importation by Pham on 15 March 2013 are contained in the Summary of Facts for Plea Hearing. 

12There is no dispute that you did the following acts in pursuit of the conspiracy.  These matters are set out in paragraph 21 of the Prosecution Sentence Submissions (Exhibit 1, tab 4):  "(21) The evidence established that the offender did the following acts in pursuit of the conspiracy:  (1) participated in numerous coded telephone conversations with Lieu (and sometimes also with Nguyen) in which she placed orders for heroin; (2) participated in numerous coded telephone conversations with Lieu (and sometimes also with Nguyen) in which she sought and received updates from Lieu about the availability and quality of the heroin and discussed arrangements for the purchase and supply of the heroin in Vietnam; (3) participated in numerous coded telephone conversations with her courier managers and other associates in Australia and Vietnam in which she sought and received updates about courier and drug supply arrangements in Vietnam and Australia; (4) gave at least $35,000 to Lieu as down payment for the first importation and later met in person with him for its return after the failure of the first importation, receiving just short of $35,000 back; (5) gave Lieu other unidentified amounts of money for the supply of heroin (which she later sought back from him given his failure to deliver); (6) met in person with Lieu on other occasions for the purpose of discussing arrangements for the orders; (7) recruited couriers (e.g. Truong) to import drugs into Australia by coercive means, including facilitating their indebtedness to her and forgiving the debt if drugs were imported successfully; (8) funded the travel and maintenance of her couriers in Vietnam as they awaited the supply of heroin; (9) recruited and used courier managers (e.g. Quyen Le Duong) to oversee the hands-on management of couriers and their arrangements in Australia and Vietnam; (10) directed others, including Quyen, Duong and others in Vietnam to coordinate the preparation and supply of sourced heroin to her couriers; (11) monitored the progress of couriers (and the imports) before and after their landing in Australia; (12) made arrangements for the receipt and collection of couriers (and their drugs) upon their arrival back into Australia; (13) made arrangements for the further warehousing, preparation, supply and distribution of the imported heroin."

13I find that you did these acts in pursuit of the conspiracy.  The conspiracy was in existence from 16 August 2012 to 20 March 2013.  During the initial period of the conspiracy attempts to import heroin were frustrated for various reasons.  There were ultimately three successful importations. 
(1) 8 December 2012, courier Dai found to be in possession of 218 grams of pure heroin.  Courier Ly was not apprehended but later that day police seized 143.1 grams of pure heroin imported by Ly.  (2) 28 January 2013, courier Truong was apprehended in possession of 559.5 grams of pure heroin. 
(3) 15 March 2013, courier Pham was apprehended in possession of
577.1 grams of pure heroin.

14It can therefore be seen that 1497.7 grams of pure heroin was successfully imported.  A commercial quantity of heroin is a pure amount of 1.5 kilograms or above.  You have pleaded guilty to the crime of conspiracy to import a commercial quantity of a border controlled drug.  The quantities sought and ordered by you and the co-conspirators were in excess of a commercial quantity.

15The conspiracy was ultimately frustrated by the arrest of various conspirators in March 2013. 

16I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty; you are entitled to have that fact taken into account in your favour, and I do so.  The community has by your plea been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial.  You were arrested on 15 March 2013 and a contested committal took place in late 2013 and early 2014.  You pleaded guilty on 6 February 2015 but various problems arose when the matter was listed for plea hearing.  Ultimately the pleas of guilty were again made on 20 November 2015 and the plea hearing was conducted.  I accept that your pleas of guilty do demonstrate a willingness to facilitate the course of justice and they are some evidence of remorse.  I find that this is the only evidence of remorse.

17Your original pleas were entered after a contested committal.  I do not intend to make any comment on subsequent events or the reason for the delay in the disposition of this matter.  I state that I have given weight to your plea of guilty, its timing and, as I said, that it demonstrates a willingness to facilitate the course of justice and is some evidence of remorse.

18I have been told something of your personal circumstances, and these matters have been summarised in the Defence Sentencing Submissions (Exhibit 2).  You are 52 years of age, having been born on 1 February 1963 in Vietnam.  You lived with your family in poverty as subsistence farmers.  You left school when you were 11 years of age.  Your mother died when you were 13 years of age.  After your father remarried you were mistreated by your stepmother and sexually assaulted when only 14 years of age.  You married but were the victim of domestic violence.

19You left Vietnam in 1990.  You were sexually and physically assaulted in a refugee camp in Indonesia.  You arrived in Australia in 1993.  You remarried in 1998.  You have two adult children, aged 30 and 27 years, both of whom reside in Sydney.  Following a fall at work you were injured and you ceased work.  You became depressed.  You ultimately moved to Victoria in about 2001.  You struggled with depression, alcohol abuse and gambling. 

20You were incarcerated in 2005.  This offending was the result of a gambling debt.  You have admitted prior convictions.  On 21 June 2005 you were convicted and sentenced to a term of imprisonment at the County Court at Melbourne on charges of money laundering, handle/receive/retention of stolen goods, and obtain property by deception.  The total effective sentence was
18 months' imprisonment, such sentence being suspended after serving
81 days for a period of 18 months.  You appeared at the Magistrates' Court at Melbourne on 1 October 2003 on charges of make a false document to prejudice others and attempt to obtain property by deception, and were sentenced to pay a fine of $1,000. 

21Your daughter remains supportive of you and maintains contact with you, however you and your son are estranged.  A letter from your daughter was tendered on your behalf.  Your daughter confirms that you were the victim of domestic violence.  She describes the difficult circumstances you faced in Vietnam and the help and assistance you have provided to her over the years.  A letter was also tendered from your son.  He ran away from home in 2001 but he has now forgiven you. 

22Other material tendered on your behalf were two letters from Dr John Taylor, psychiatrist, addressed to your treating general practitioner dated 28 April 1999 and 5 July 2000.  These letters confirm that on 12 July 1998 you fell at work and hit your head and you had not worked since that time. 

23Dr Taylor noted complaints of ongoing symptoms, including headache, depressed mood, irritability, forgetfulness, argumentativeness, nightmares, disturbed sleep and reduced libido.  A cerebral CT scan and skull X-ray were both reported as normal.  He also commented that you did not seem to be clearly depressed when interviewed on 27 April 1999, however he felt that you exhibited features of irritability and depression, with dysthymia being the most likely diagnosis.  In his letter dated 5 July 2000 he described your symptoms and commented that you were chronically depressed, moody and hypochondriacal. 

24Two reports from West CASA dated 1 December 2014 and 29 October 2015 were tendered on your behalf.  These reports have been provided by counsellors who first commenced seeing you in June 2013.  They have been assisting you in respect of post-traumatic stress disorder resulting from sexual assaults.

25A medico-legal report from Dr Aaron Cunningham dated 26 March 2015 was also tendered on your behalf.  He assessed you at Dame Phyllis Frost Centre on 17 March 2015.  Dr Cunningham was of the opinion that you were suffering from post-traumatic stress disorder resulting from sexual assault at the age of 14 and the subsequent events including being beaten by your stepmother and forced to have an abortion following that sexual assault.

26It was submitted on your behalf that limb 5 of the principles enunciated in Verdins' case applied in that a period of incarceration would weigh more heavily on you than on a person in normal health, having regard to your post-traumatic stress disorder.  This was the only relevant limb of Verdins' case relied upon by the defence, although I note broader submissions were contained in the defence sentencing submissions document.  The prosecution did not take issue with the application of limb 5 of the principles enunciated in Verdins' case, however it was submitted on behalf of the prosecution that this was the only relevant psychological issue raised. 

27I have carefully considered the material tendered on your behalf.  It is relevant to note that the diagnosis of post-traumatic stress disorder has only been made after your incarceration.  There are no reports from any treating practitioners at or about the time of this offending.  I do accept that limb 5 of the principles enunciated in Verdins' case does apply. 

28Whilst I have taken this into account in formulating an appropriate sentence, I state that I am not satisfied that it is appropriate in these circumstances to moderate the weight to be attached to general or specific deterrence.  I find that your conduct at the relevant time was not affected by any post-traumatic stress disorder that you may have been suffering as later diagnosed.  Your acts, which I have set out in detail, demonstrate you were a principal in this very serious criminal conspiracy.  I do not accept you were suffering any impairment of mental functioning at the time of the commission.

29In reaching these conclusions I have carefully considered and critically analysed the reports tendered on your behalf, the nature and severity of your symptoms as described in the reports from West CASA and in the one medico-legal psychological report tendered on your behalf. (See the recent discussion on the application of Verdins' case by the Court of Appeal in DPP v O'Neill [2015] VSCA 325).

30I assess your prospects of rehabilitation as being cloudy.

31Against these matters in mitigation, however, your actions were very serious indeed, particularly in respect of the more serious offence, Charge 2.  This was a significant criminal conspiracy.  I find the nature and scope of the conspiracy to have been extensive.  As I have already stated it extended over time from 16 August 2012 to 20 March 2013.  You were a party to an organised drug importation enterprise in which you and others agreed to work together to achieve the importation of a commercial quantity of heroin.

32The organisational structure of the conspiracy was analogous to a "wheel" type conspiracy.  I accept that prosecution analysis of the organisational structure of the conspiracy and your role described in the Prosecution Sentence Submissions in these terms:

"Role and involvement.  (14) The offender's involvement and role in the conspiracy offence was multifaceted.  In broad terms, her involvement in the offence can be characterised by the three main roles she performed.  First, she acted as a principal Australian 'buyer' and director of the heroin importation conspiracy.  In that respect she acted in partnership with Lieu to place orders and organise the purchase of heroin from suppliers in Vietnam.  These suppliers included Thi Van Hong Nguyen. 

Second, she directed and employed her own existing network of recruited couriers and courier managers to facilitate the importations of the heroin from Vietnam into Australia.  In that role she recruited, managed and coerced couriers to travel from Australia to Vietnam to receive and carry drugs back into Australia, and oversaw the management of couriers through her trusted courier managers.

Third, she liaised with her own contacts in Vietnam in order to arrange for preparation and concealment of sourced heroin to couriers (e.g. internal concealment or concealment in underpants).

(15) In performing each of these roles she continually monitored the progress of the arrangements for the supply of the heroin to her couriers and the progress of their planned and expected importations.  The offender ran her business by maintaining contact with a wide range of co-conspirators in Vietnam and Australia, including Lieu and occasionally Nguyen throughout the course of the conspiracy in order to monitor and advance the progress of various order that had been placed and various deliveries that were anticipated.

Organisational Hierarchy and Position.  (16) The prosecution submits that the organisational structure of the conspiracy was analogous to a 'wheel' type conspiracy.  At the hub of the wheel were Lieu and the offender.  Lieu and the offender were the buyers of the heroin, they demanded the commodity.  They were the central participants who were responsible for initiating and driving the conspiracy to import the heroin.

(17) Emanating from the hub were various 'spokes', which were persons who occupied positions and performed roles that revolved around the central participants. 

(18) Although both Lieu and the offender occupied that central position within the organisation of the conspiracy, the prosecution submits that the offender was at a higher level of position than Lieu overall.  The extent of her involvement and role was greater than Lieu's.  Further, whilst Lieu was her business partner in the ordering of heroin.  It is clear that the offender was capable of directing Lieu and dictating terms to him regarding the timing and size of the orders to be placed and in seeking compensation from him when orders failed to come to fruition."

33These matters were not in dispute.  As I have stated, I accept this analysis, and in particular I find that your position within the organisation of the conspiracy was at a higher level than that of Suky Lieu.

34I have already stated the acts you performed and the number of importations actively carried out.  I have referred to your prior convictions.  The nature of some of these prior convictions, particularly for the offence of money laundering, is relevant to my task of sentencing you today.

35I have had regard to the principle of parity.  I have taken into account the respective roles, antecedents and prospects of rehabilitation of co-offenders.  I have sentenced Thi Quyen Le, Suky Lieu and Nguyen.  I have had regard to the various sentences imposed on the couriers.  I have also had regard to the other comparative cases referred to in the Prosecution Plea Materials folder, however this material was not the subject of oral submissions.

36As well as the matters to which I have referred I must also take into account the need for general and specific deterrence. Specific deterrence is relevant in view of your prior criminal history. General deterrence is also of considerable importance in a case such as this. This type of offending must be discouraged. Pursuant to s.16A of the Crimes Act 1914 I must impose a sentence that is of a severity appropriate in all the circumstances. I must manifest the community's denunciation of your conduct. I have taken into account the matters in s.16A(2) insofar as relevant. I have concluded that I have no alternative but to sentence you to a term of imprisonment (see s.17A). It is appropriate that there be some degree of cumulation.

37If you could stand up please now.

38Having regard to all the relevant facts and appropriate sentencing principles I sentence you as follows:  Charge 1, convicted and sentenced to 18 months' imprisonment; Charge 2, convicted and sentenced to 18 years' imprisonment. 

39I direct that six months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.  The total effective sentence is 18 years and six months.  The sentence imposed on Charge 1 commences on this date, and the sentence imposed on Charge 2 commences 6 months from this date.  As I have said, the total effective sentence is
18 years and six months.

40The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist.  For that reason it cannot be fixed automatically; all relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and, in turn, rehabilitation under conditional supervision.  In all the circumstances I direct that you serve a minimum term of 13 years before becoming eligible for parole.

41The pre-sentence detention is 994 days.  I declare that the period of time you have spent in custody is 994 days, which is to be reckoned as time already served under the sentence.  I direct that such be noted in the records of the court.

42Pursuant to s.6AAA of the Sentencing Act, I state that the sentence and non-parole period I would have imposed but for the plea of guilty is 25 years' imprisonment, with a 20 year non-parole period.

43I must explain the effect of the sentence upon you.  The total effective sentence is 18 years and six months' imprisonment.  You must serve 13 years before being released on parole.  There is 994 days of pre-sentence detention which is to be reckoned as time already served.

44Does that cover everything?

45MS COIDAN:  It does, Your Honour, yes.

46HIS HONOUR:  And in terms of the form of the sentences, that's appropriate?

47MS COIDAN:  Yes, Your Honour.

48HIS HONOUR:  The starting dates are all clear?

49MS COIDAN:  Yes.

50HIS HONOUR:  And it all works?

51MS COIDAN:  I think so, Your Honour, yes.

52HIS HONOUR:  All right, thank you.  The prisoner can be removed, thank you.  Thank you, 10.30 Monday.

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