Director of Public Prosecutions v Vong
[2025] VCC 56
•4 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 24-00529
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JONAS VONG |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 December 2024 |
| DATE OF SENTENCE: | 4 February 2025 |
| CASE MAY BE CITED AS: | DPP v Vong |
| MEDIUM NEUTRAL CITATION: | [2025] VCC 56 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of trafficking a controlled drug in a commercial quantity, dealing with money reasonably suspected of being proceeds of crime, possession of an unregistered handgun, fail to comply with order under s 3LA(2) Crimes Act 1914 – general deterrence important sentencing consideration – high moral culpability – remorse – limited period of delay – Verdins.
Legislation Cited: Crimes Act 1914 (Cth); Firearms Act 1996 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:Akoka v The Queen [2017] VSCA 214; R v Chen (2002) 130 A Crim R 300; Teoh v R [2018] VSCA 239; R v Merrett [1997] 14 VR 342; R v Verdins (2007) 16 VR 269; Duong v DPP (Cth) [2021] VSCA 136; Lim v The Queen [2018] VSCA 64; R v Nakash [2017] NSWCCA 196; Le v R [2017] NSWCCA 26; Djorjic v R [2018] VSCA 227; Liew v R [2016] VSCA 277; Kim v R, Fang v R [2016] VSCA 238.
Sentence:Total effective sentence of 6 years and 6 months imprisonment. Non-parole period of 4 years and 3 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Stevens | Office of Public Prosecutions |
| For the Accused | Mr J. Dickinson KC | MK Criminal Lawyers |
HIS HONOUR:
Introduction
1Mr Vong, I will sentence you to a total sentence of six years' and six months’ imprisonment and I will set a non-parole period of four years' and three months’ imprisonment. I will declare your 47 days of pre-sentence detention as time served under these sentences.
2You pleaded guilty to five charges including two charges of trafficking a controlled drug in a commercial quantity. The circumstances of your offending are described in the 'Summary of prosecution opening for plea', which is Exhibit A.
Circumstances
3On 23 June 2023, police searched your premises in Rowville under a warrant. You lived at these premises with your sister and her partner. The police found:
(a) six sources of cocaine in the premises. The different sources had degrees of purity ranging between 29.5%and 79.8%. Overall, there were 2,458.3 grams of pure cocaine;
(b) 704.9 grams of pure MDMA;
(c) $205,700 in cash; and
(d) an unregistered firearm.
4Before entering the premises, a search of your person revealed an Apple Phone X. You were legally required under s 3LA(2) of the Crimes Act 1914 to give the passcode to your Apple Phone X but refused to do so.
5One of the items found was a plastic bag containing two vacuum-sealed blocks of compressed white powder. When asked about one of the blocks, you said it was a block of cocaine.
6In the driveway was a Mitsubishi motor vehicle with your Google Pixel phone in the centre console. Analysis of its contents revealed a series of videos, images and messages establishing you possessed the cocaine and MDMA with the intention of selling them.
7More particularly, the contents of the phone included:
(a) an image of a clear plastic bag containing white powder;
(b) images and messages referring to 'Polo Club' wrapped blocks, and white blocks with 'PS' or a crown printed on them;
(c) a video made on 11 June 2023 showing a block of white substance bearing a 'Polo Club' brand. The block is sitting on top of a white and black marble top. The top strongly resembles the marble top in the kitchen of your premises;
(d) a video made two days later on 13 June, showing a white powder in a block with the 'Polo Club' brand and a gloved hand touching the powder;
(e) on 12 June 2023, you communicated with a person known as 'Dr Evil' using the Threema application. You sent that person a video of 'Polo Club' branded white brick. The communication contained this conversation:
You wrote: 'Smells good you want to take a full one'.
Dr Evil replied: 'What’s the best price'.
You replied: '180 bro. I’ll drop one off later bro'.
(f) on 15 June 2023, using the same application, you communicated with a person identified as 'A$rto-naut' as follows:
You wrote: 'do you need sniff here in melb sexy'. This was a reference to cocaine. You also wrote 'Has polo on it but different stamp inside. Rolex and 007'.
You also sent an image of a white brick with a crown stamped on it.
(g) on 17 June 2023, using the application again, you exchanged messages with a person identified as 'Cuz99', who asked you: 'How many polo you have left' and you replied '4 brother. And 1 loose'.
(h) on 21 June 2023, you used the application to communicate with 'Dr Evil'. You asked whether Dr Evil needed more cocaine, who asked what was available, to which you said 'Rolex stamp bro. Let me know bro I'll put aside for you.'
(i) again, on 21 June 2023, using the application, you wrote to a person identified as 'Y68ZB9AA', saying 'Hey bro you guys want more nose'. You were referring to cocaine. You sent an image of a block of compressed white powder, adding: 'Ts or PS stamp and Rolex. Last 2 bro'. This means you had two blocks of cocaine remaining.
8You possessed commercial quantities of cocaine and MDMA with the intention of selling them. This constitutes Charges 1 and 2.
9Within a wicker basket in the study of the house, the police found a shopping bag. The bag contained $50 and $100 notes totalling A$205,700. When asked to whom the money belonged you said 'No'. This money, the drugs and the messages led to the reasonable suspicion constituting Charge 3.
10In a footstool in the house's living room, the police found a handgun. It had a round of ammunition in the chamber and a loaded magazine. There was also a bag of ammunition in the footstool.
11The handgun was a 'Star' BM 9mm handgun. It was unregistered. For the purposes of s 3 of the Victorian Firearms Act 1996, it is a 'general category handgun'. These circumstances constitute Charge 4.
12On 23 June 2023, the police gave you a copy of an order made under s 3LA of the Crimes Act 1914. The meaning of the order was explained to you as well as the consequences of non-compliance with it. You understood both explanations. Nevertheless, you twice refused to give the passcode to the iPhone X. These circumstances constitute Charge 5.
Arrest and interview
13You were arrested. When interviewed, you gave 'no comment' answers. After 47 days in custody, you were bailed.
Criminal history
14In 2013, you appeared in the Magistrates' Court twice on road traffic charges. In both instances, the charges were adjourned on undertakings for 12 months without conviction. For the purposes of the present charges, these previous findings of guilt are largely immaterial. One of the charges concerned the offence of driving a motor vehicle while your licence to do so was suspended. It shows some disobedience of an order or direction not to drive. The penalty indicates a minor infringement of what is usually a serious offence.
Personal
15You are 32 and born in Manatuto, East Timor. Before fleeing at the age of four with your family, your parents ran a stall at the local market. You are the second oldest of five children. Your father was sympathetic to the Fretilin movement, and consequently became a target for Indonesian persecution before fleeing the country.
16Your parents secured a Protection Visa several years after arriving in Australia. Your family relied on the Red Cross for food, rent and clothing. Your family settled in Dandenong. Until you were 12, your parents were unable to obtain employment. The house you lived in was run down. According to the psychologist, your upbringing was an 'extreme, dichotomous experience'.
17Once your parents obtained visas, your father obtained work. He was a heavy drinker and was psychologically abusive toward your mother and his children. He was physically abusive towards you. Your mother nurtured you. Your parents and siblings remain supportive of you.
18When you started primary school, you were fluent in 'Haka' and was later tutored in the official East Timorese language of 'Tetun'. When you attended school in Australia, you found it very difficult. You were bullied and you retaliated physically. Nevertheless, you attended a secondary school and completed Year 12.
19From about 12 or 13, you started drinking alcohol. You drank until you passed out. You used ecstasy from the age of 14 in addition to cannabis. From 16, you used amphetamines. It was about this time your sister, Odelia, died suddenly from a heart condition. Afterwards, your drug usage escalated quickly. By 17, you used several times a week.
20The death of your sister had a profound impact on your family. Your father left and went back to East Timor for four years. Your parents argued and your mother largely carried the family financially and emotionally in the aftermath of these events.
21After secondary school, you undertook an electrical apprenticeship. You worked as an apprentice for about six years but you failed to obtain your electrician's qualification certificates. After this, the death of your sister and your father leaving, you felt in a vacuum without direction. You drifted towards an Outlaw Motorcycle Club and became a patched member of the Finks. You became dependent on the club.
22Between the ages of 17 and 23, your use of drugs increased and you moved to cocaine. Apparently, the Finks gang disapproved of the use of methylamphetamine.
23On 30 April 2013, you suffered injuries in a motor vehicle accident. It appears the cause of the accident was some kind of heart failure. You suffered head and wrist injuries. A pacemaker was installed. You received income and lump sum payments from the Transport Accident Commission.
24After this, you cut down on your cocaine use but began abusing anxiolytics and Valium, specifically Endone, antidepressants and alcohol during your physical rehabilitation. You became dependent on these substances to manage your mood disturbances. Eventually, you resumed using cocaine and continued to do so.
25After the accident, you received monies from the Commission and ceased full time work. This led to a loss of structure, exacerbating your polysubstance abuse. From 29 or 30 years of age, you used cocaine more regularly, relying on it to wake you up in the morning. You continued using until your arrest and remand in custody.
26You never returned to full time employment following the accident. This is partly due to the injuries, but also due to your addiction and the state of your mental health. You returned to casual employment in sales, until you declared bankruptcy and are currently reliant on Centrelink.
27You have had a few relationships in your life however, none was stable and ultimately ended due to your unstable mental state and chronic drug abuse. You have no children.
28You were ultimately bailed to Harmony House and engaged in drug rehabilitation treatment. This included sanctioned group and individual treatment, in addition to attending Narcotic's Anonymous (NA), at least six days per week for the last 18 months. You received a NA sponsor and have completed the 12-step programme. You have volunteered your time to other addicts in treatment at venues including: Malvern Private; Albert Road Clinic; Flagstaff Boarding house; and Windsor House. You continue to participate in this volunteer work about once a month.
29You also participated in drug treatment with Maria Hutchinson for 18 weeks. This included face to face seminars as well as Zoom based counselling.
30Recently, you remained a Resident/Lead Tennant of the Harmony House programme for 16 months which involved 12 months of intensive residential treatment as a resident. You were then approved to remain in residence, the costs of which have been offset by your unpaid employment as a Lead Tennant, supervised within Harmony House by a Mr La Marchesina.
31You have completed a Certificate IV in Drug and Alcohol Studies. You would like to continue your work in this sector and are supported by Mr La Marchesina of Harmony House as well as other treatment stakeholders. You have enrolled to undertake a Diploma of Community Services in 2025.
Psychologist
Mackinnon
32Ian Mackinnon is a forensic and consultant psychologist. In 2013, you were referred to him by a general practitioner for counselling. By March 2015, there had been 38 counselling sessions[1]. Mr Mackinnon had been counselling you over the psychological consequences of the physical injuries you received in the motor vehicle accident.
[1] Report dated 16 March 2015.
33As a result of the accident, Mr Mackinnon diagnosed you as suffering from a post-traumatic stress disorder. The symptoms of the disorder incapacitated you from performing any form of employment or even vocational training. He identified your proneness to lash out, being easily fatigued, suffering chronic memory problems, difficulty concentrating, being depressed and anxious.
34Mr Mackinnon thought there might be significant psychological improvement in the next 12 to 18 months leaving you able to attempt light duties in some non‑physical capacity. From the psychological perspective, he recommended 12 sessions over the next 12 months.
35In 2023, Mr Mackinnon reported to different solicitors for the purposes of a bail application[2]. His counselling of your stress disorder continued until 2020 with occasional sessions since 2020. In July 2023, he assessed you. At that stage, you were in custody.
[2] Report dated 31 July 2023.
36Mr Mackinnon diagnosed you as suffering from the post-traumatic stress disorder together with a depressive disorder and a substance abuse disorder.
37He noted the symptoms of your post-traumatic stress disorder had decreased significantly in the last 10 years but you remained vulnerable to a strong resurgence of symptoms in response to new threatening experiences.
38Mr Mackinnon saw you as chronically depressed with the depression stemming from the death of your sister, the consequences of the motor vehicle accident and other factors including this offending. Being in custody led to the early stages of remission of your substance abuse disorder.
39On 23 October 2024, Mr Mackinnon re-assessed you at the request of your present solicitors[3]. He had continued to counsel you and still diagnosed you as suffering from the three disorders. The stress and depressive disorders were at a mild level and the abuse disorder at an advanced stage of remission.
[3] Report dated 22 November 2024.
40Mr Mackinnon was so confident of your capacity to rehabilitate, he considered you were a suitable candidate for a drug treatment or a community correction order.
41You told Mr Mackinnon of your fear of imprisonment because:
“He will be at serious risk of violent reprisal, as he believes criminal figures and former associates have formed the view that he has co-operated with the police (largely because he was bailed to a residential program over the current matters).”
Armstrong
42Luke Armstrong is a consultant psychologist. At the request of your solicitors, he interviewed you on 26 November 2024[4].
[4] Report dated 29 November 2024.
43He diagnosed you as suffering from a borderline personality disorder and several substance use disorders. The borderline personality disorder was the product of your father's abuse and the effect on you and the family of the difficult political situation in East Timor. The death of your sister and your father abandoning the family led to your substance abuse and membership of a Motorcycle Gang. Following your motor vehicle accident, you abused more than one drug.
44At several points of his report, Mr Armstrong described your mental state as 'tenuous' or 'fragile'. Its fragility was due to your personality disorder. Nevertheless, he considered your rehabilitation efforts were genuine, your substance use disorders were in sustained remission and your prospects of rehabilitation positive. He was impressed with your involvement in residential drug treatment.
45Your solicitors asked Mr Armstrong about the effect of imprisonment on you. Owing to your 'dual diagnosis', and despite spending some time on remand, he considered imprisonment would prove significantly more onerous for you than for a person without your dual diagnoses. Not being a psychopath, you would be vulnerable to the influence of psychopaths in prison. The nature of your personality disorder would deteriorate in the unpredictable prison environment.
46Not unnaturally, Mr Armstrong felt your rehabilitation would be better served in your current environment rather than prison.
La Marchesina
47Carlo La Marchesina is the clinical director and managing director of Harmony House. He wrote two reports about you[5].
[5] Reports dated 30 July 2024 and 20 November 2024.
48Harmony House provides a residential drug programme. It lasts nine months as a residential programme with a daily outpatient programme to follow. You were bailed with a condition to undertake the programme.
49Mr La Marchesina worked with you since 8 August 2023. You completed the
90-day primary residential programme. You then voluntarily committed to six months of transitional programmes. During the second phase of the transitional programme, you commenced studying for a Certificate IV in Alcohol and Other Drugs.50As a clinician, the reports of Mr La Marchesina naturally focus on the therapeutic aspects of the programme. They do not describe the restrictions involved in the residential or transitional programmes. However, to an extent, his oral evidence did. The first 90 days are sufficiently restrictive on your liberty to be fairly considered in light of the principles stated in Akoka v The Queen[6]. Nevertheless, the weight attached to the punitive aspect of your residence is relatively minor.
[6] [2017] VSCA 214
51Whether during or after your studying for the Certificate IV, Harmony House made you a lead tenant. This involved you becoming a mentor and guiding figure for those facing the early stages of rehabilitation and recovery. You have performed well in this role. Mr La Marchesina was fulsome in his praise of your efforts, saying[7]:
“[Your role]…has been marked by his remarkable leadership, dedication, and commitment to the well-being of his peers. His ability to connect with clients and facilitate various programs has greatly contributed to a positive and nurturing environment. As he continues to grow in his role, Mr Vong is well on the way to becoming an influential AOD clinician, and his contributions are invaluable to the Harmony House community.”
[7] Report dated 20 November 2024, at p 4.
Hutchinson
52Marie Hutchinson is an addiction treatment counsellor[8]. She has counselled you since May 2024. By now, you have completed her 18-week outpatient programme.
[8] Report dated 20 November 2024.
53She found you very committed to your recovery from substance abuse by addressing its underlying causes due to your experiences. Your efforts have inspired others with the same problem of addiction. She referred to the effect of your presentation at a seminar in Shepparton in November 2024.
54She believes your efforts have transformed you into becoming an outstanding and valuable member of society and should be given an opportunity to continue your recovery in the community and not in prison.
References
55Many persons wrote references for you. I will briefly summarise them.
56Although working in real estate, Helen O'Grady holds a qualification in alcohol and other drugs counselling. More significantly, she is a fellow recovering addict, a friend and mentor. She met you at Narcotics Anonymous. She noted your commitment to that association and to the 12 steps of its programme. She believes you are genuinely trying to live a law-abiding life and to assist others recovering from addiction.
57Leone Knight is also a member of your 'home group' of Narcotics Anonymous. She describes you as a committed, diligent and valued member of the group. She sees you as a 'tremendous' community asset in your work with addicts.
58Ata Yako is the wife of Frans Fouad to whom you are a sponsor. She considers you as a good friend of her family through the assistance you have given her and her husband as he recovers from addiction.
59Emmanuel Barbas met you at Narcotics Anonymous. He is very impressed by the change in you over a year, your dedication and perseverance and your empathy and assistance to others.
60You met Anthony Huber while both of you were studying for the Certificate IV in alcohol and other drugs. Mr Huber identifies with you as he had somewhat similar issues with substance abuse, mental health and an interaction with the criminal justice system. He is glowing in his assessment of you in the classroom and with other students.
61Cobina Crawford teaches you in the Certificate IV course. To her, you are an excellent student, not only in relation to your coursework but also in your leadership in the classroom with other students. She recommends you continue your studies in this area after completing the Certificate course.
62About five years ago, Frans Fouad attended rehabilitation at the Windsor Private House. You are his sponsor and friend. He considers you are very honest, humble, genuine and hardworking.
63James McCarthy is a social worker and teacher. Since the beginning of 2024 he taught you in the Certificate IV course in alcohol and other drugs. He finds you are an excellent student and hopes you can continue your studies and 'enter our work' as he puts it.
64Matthew Alquier conducts an electrical business in Melbourne. You and he met at trade school while undertaking an electrical apprenticeship. You have remained in contact. In 2023, he wanted to employ you in his business, but you explained your predicament. He considers you are a highly respectful, empathetic and compassionate person to him and others.
65Jordan Kemp is a fellow student in the Certificate IV course. More than once, you have expressed to him your remorse for your wrongdoing and your willingness to change. You have been an excellent support to him and others in the course.
66Jeremy Pryslak teaches a unit called Dual Diagnosis of your Certificate IV course. Such is your quality as a student, he hopes you will become a valuable member of the alcohol and other drugs practitioner community.
67Emma Pacconi teaches the 'Engagement Cluster' unit of your Certificate IV course. She finds you an excellent student, both in terms of your work and relationship with others in the course.
68Jordan Davis is undertaking the same Certificate IV course. He was also involved with you in the Narcotics Anonymous 12 step programme. He had difficulties negotiating his addiction. You have been a great support to him and others. You have told him of your remorse and shame.
69Caitlin Pierce-Thompson has known you for about 12 months as a fellow student. She speaks highly of your help with her studies and as a friend, helping her with her transition into the community.
70Soroush Habibi has been your general practitioner since 2012. He speaks positively of your character and determination to reform. He too speaks of your expressions of remorse. His letter, dated 19 July 2024, describes your recent surgery on a lipoma mass and the discovery of a large C3/4 disc protrusion affecting the spinal cord. Apart from saying you receive ongoing treatment, he did not elaborate on the significance of the mass or the limitations of, and the prognosis for, your cervical spine.
71Joshua Marks met you in Harmony House and at meetings of Alcoholics Anonymous. He witnessed your transformation to a person who lives with integrity and inspires others to recover from addiction.
72Chris Walters is involved in your Certificate IV course. He too speaks highly of you as a student.
Discussion
Purposes
73Whether these offences are brought under Commonwealth or State laws, the sentencing purpose of general deterrence is very important: that is, deterring others from committing the offences you have committed or similar offences. In relation to the trafficking offences, this consideration may outweigh your personal circumstances.
74The importance of general deterrence stems partly from the difficulty in detecting these drug offences. Not unnaturally, I am not told how the police came to search your premises. You were using an encrypted application, which they had not gained access until after seizing your device. Exhibit A describes the search of your premises as part of an operation called 'Kansimbi'. This was an investigation into the importation of a commercial quantity of border-controlled drugs into Australia.
75As with all offending, Parliament seeks to eliminate offences. With the trafficking of drugs, its determination to do so is reflected in the maximum penalty for the offence. It provides the severest maximum penalty for trafficking in a commercial quantity. In terms of your life, life imprisonment could mean 40 to 50 years for you. This determination is reflected in the passage cited by the prosecution in its written submissions on sentence[9]:
“…that the Courts are both able and willing to calibrate their sentences until a point is reached at which, to a significant extent even if never perfectly, fear of punishment risked will neutralise the greed which is the only possible motive of those who…engage in drug related crime.”
[9]R v Cheung Mai Man and cited in R v Chen (2002) 130 A Crim R 300 at 382.
76In Teoh v R[10], the Court expressed the same view while stressing the importance of general deterrence and denunciation and pointing out the lesser mitigating weight given to personal mitigating circumstances.
[10] [2018] VSCA 239 at [50].
77Although the charges assert offending on a single day, it is clear from the messages, the money and the handgun that your activities were not confined to a single day. It is not said this is a momentary lapse in judgment. The significance of specific deterrence depends, to a large extent, on your prospects of rehabilitation. If your prospects are favourable irrespective of the fear of punishment then this purpose of sentencing may assume lesser importance.
78Your prospects of rehabilitation are very good. I would draw back from using the word 'excellent' as contended by your counsel. Mr Armstrong described your mental state as 'tenuous' and 'fragile' with its fragility due to your personality disorder.
79Nevertheless, he considered your rehabilitation efforts were genuine, your substance use disorders were in sustained remission and your prospects of rehabilitation positive. He was impressed with your involvement in residential drug treatment.
80The quality of your rehabilitation is described in the series of reports and references tendered into evidence. You have made a very favourable impression on a very large number of decent persons. Your crimes demand lengthy sentences of imprisonment. Given your personality disorder, your advances in rehabilitation may be set at naught in a prison environment. This is the sad part of your case. In the trafficking charges in particular, you have committed offences of great magnitude. You have very strong matters in mitigation. These matters operate to ameliorate the length of the sentences of imprisonment I will impose. They cannot do more than that.
Maximum penalties
81The maximum penalties for the offences are:
(a) for trafficking in a commercial quantity of a controlled drug – life imprisonment or 7,500 penalty units or both. At the time of your offending, a Commonwealth penalty unit was $275;
(b) dealing with money, being $100,000 or more, reasonably suspected of being proceeds of crime – three years' imprisonment or 180 penalty units or both;
(c) possessing an unregistered general category handgun – seven years' imprisonment or a fine of 600 penalty units for a first offence. At the time of committing this offence, the State penalty unit was $184.92;
(d) failing to comply with an order under s 3LA(2) of the Crimes Act 1914 – five years' imprisonment or a fine of 300 penalty units or both.
82As I said earlier, for a person of your age, life imprisonment could be imprisonment of 40 to 50 years. The dollar value of the 7,500 penalty units for Charges 1 and 2 calculates out at $2,062,500. I only mention that to emphasise the seriousness with which Parliament seeks to punish the offences in Charges 1 and 2 against you.
Gravity
Trafficking
83You possessed commercial quantities of two controlled drugs. These drugs were found in blocks and lesser amounts. It is fair to infer their trafficking was to the wholesale market as well as at street level. There is no evidence of you being part of an organisation. The drugs, the messages and the money point to you operating on your own. There was a degree of sophistication through the use of the 'Threema' application, a means of communication intended to avoid police detection.
84With the cocaine and MDMA, the quantities are above the threshold for each drug but not greatly so (1.22 and 1.4 times the thresholds respectively).
85Your motive for trafficking in these drugs was financial. At the time, you were addicted to drugs but not these drugs.
Proceeds of crime
86The offence in charge 3 has a threshold of $100,000. You possessed $205,700, which is a little over twice the threshold. The monies were in a wicker basket. To that extent, they were concealed but not significantly so. The evidence does not allow an inference you held the money on behalf of another. When given the chance to say so, you answered the police with the word 'no'.
Firearm
87The handgun was loaded. Its loaded magazine was nearby. Being near children's toys, and children playing with them, adds to the seriousness of the possession for its potential danger. More significantly, the possession of the handgun was related to your drug trafficking.
Section 3LA
88The prosecution pointed to an increase in the penalty for this offence, that is the offence under s 3LA in 2018, from the maximum penalty of two years to five years' imprisonment. Failure to comply with the order impedes the investigations of the police. Somehow, they were able to access the device and see messages using the 'Threema' application. This is a standard example of the offence.
Moral culpability
89Your moral culpability for each of these offences is high.
Guilty pleas
90Your guilty pleas were entered at the committal hearing before any oral evidence was given. You were committed on the basis of the prosecution's brief of evidence. You were arrested and charged on 23 June 2023. There were two committal mention hearings. After the second, further charges were laid. The proceeding was listed for a committal hearing on 8 April 2024, but no oral evidence was given. You pleaded guilty to all bar two charges, which were withdrawn. Your pleas were entered at the earliest reasonable opportunity in a proceeding which starts with the laying of the charges and ends with the verdict of a jury.
91Apart from being evidence of your remorse for the offending, they have the practical effect of helping the criminal justice system. They save the time and expense of a jury trial. They save the witnesses the need to give evidence. This is a lesser benefit in your case because of the professional nature of most of the witnesses. They represent a clear acknowledgement of your guilt to the world. Occasionally, such an acknowledgment is important.
92Seen in the light of your considerable efforts at rehabilitation, I consider you are remorseful. You are determined to rehabilitate yourself.
93Overall, your guilty pleas require a significant mitigation of the sentences which I would have imposed in their absence.
Delay
94You point to the delay between your arrest and my sentencing. I have already described the events between your charging and committal. Looking at the chronology of the procedural events, your case has travelled a usual course. The delay in finalising it has been limited. Your counsel referred to the case of R v Merrett and, in particular, paragraph 35[11]. It points to the two aspects of delay: the unfairness to you; and the rehabilitation undertaken. I will discuss the latter shortly. The former is, as I said, limited because the period of delay is also limited. Your case is not one which requires an undue degree of leniency from the 'unfairness' perspective.
[11] [1997] 14 VR 342.
95As to the latter limb, it is plain you have strived to use the time to rehabilitate yourself. The time has been used profitably.
Verdins
96You rely on principles 5 and 6 in the case of R v Verdins[12]. You rely on the diagnoses of Mr Armstrong rather than those of Mr Mackinnon. The former diagnoses you as suffering from a borderline personality disorder, a stimulant use disorder, an anxiolytic use disorder and alcoholism.
[12] (2007) 16 VR 269.
97To Mr Armstrong, your borderline personality disorder will have two consequences in the prison environment. First, you would be quickly identified by psychopaths and stood over or groomed for their own gain. Second, the disorder leaves you with a fractured and unstable identity which would be destabilised in the unpredictable nature of prison leading to the unravelment of your mental health. I consider both principles apply. They have a significant mitigatory effect.
Comparable cases
98The Director's counsel referred to, and summarised, five comparable cases.[13] Where the principal offence was the same as your Charges 1 and 2, the sentences ranged between eight years to 10 and a half years' imprisonment with the sentence of eight years’ imprisonment with a non-parole period of four and a half years' imprisonment being considered by an appellate court as very lenient.
[13] Duong v DPP (Cth) [2021] VSCA 136; Teoh v The Queen [2018] VSCA 239; Lim v The Queen [2018] VSCA 64; R v Nakash [2017] NSWCCA 196; Le v R [2017] NSWCCA 26.
99Each case is different and there are differences in those comparable cases between themselves and your situation. The principles about the use of comparable cases are stated in Djorjic v R[14].
[14] [2018] VSCA 227 at [74].
100As in these cases, sometimes, the quantity of the drug well exceeded the threshold of a commercial quantity, in one instance six times the threshold. In your case, the MDMA was 1.4 times the commercial quantity while the cocaine was 1.22 times that quantity. Owing to the nearness to the threshold, the excess for each drug is a matter of little consequence[15].
[15] R v Pham (1989) 199 CLR 270 at 279.
101As with the comparable cases, your motivation was financial gain. Although at the time you were an addict, the quantities of the drugs and the money point only to financial gain as the motive for your involvement.
102Some of the comparable cases involve trafficking over a period of time. Your charges specify trafficking on a single date: the day on which you were found in possession of the drugs. The police found a mobile phone in your vehicle. The phone contained messages indicating you intended to traffic the drugs at a wholesale level. You used coded language and an encrypted application. That points to the sophistication of your side of the trafficking.
103The offences in Charges 1,2,3 and 5 are created by Commonwealth legislation. For them, the sentencing considerations set out in the Crimes Act 1914 are relevant:
(a) section 17A forbids the court from sentencing an offender to imprisonment unless it has considered all other available sentences and is satisfied no other sentence is appropriate in the circumstances of a particular case;
(b) section 16(1) requires the passing of a sentence which is of severity appropriate in all the circumstances of the offence; and
(c) more broadly, the factors described in s16A(2), where relevant and known, must be taken into account.
104Charge 4 contains a State offence. Sentencing for it is governed by the provisions in the Sentencing Act 1991, including s 5(4C) and s 5(2).
105The Director's counsel drew my attention to passages from the judgment in Lieu v R[16]; for the proceeds of crime charge, Kim v R, Fang v R[17]; and several cases dealing with aspects of sentencing of the offence of the possession of a firearm.
[16] [2016] VSCA 277 at [41] to [43].
[17] [2016] VSCA 238.
106The maximum penalty for an offence is a guide or yardstick to the sentence which should be imposed in a particular case. Life imprisonment is the most severe maximum penalty known to the criminal law in this country. Your trafficking offences are obviously extremely serious. This is so even though they occurred at the same time and on the same day.
107Unlike Victorian law, the Commonwealth does not create a distinction between commercial and large commercial quantities of a drug. The Commonwealth deals with commercial quantities only.
108Whatever the differences between the two jurisdictions, the principle of totality has an important part to play.
Sentence
109On Charge 1, a charge of trafficking in cocaine in a commercial quantity, I sentence you to six years' imprisonment.
110On Charge 2, a charge of trafficking in MDMA in a commercial quantity, I sentence you to six years' imprisonment.
111On Charge 3, a charge of dealing with money reasonably suspected of being the proceeds of crime, I sentence you to 12 months' imprisonment.
112On Charge 4, a charge of possessing an unregistered firearm, I sentence you to 18 months' imprisonment.
113On Charge 5, a charge of failing to comply with a s3LA order, I sentence you to one year's imprisonment.
114The sentence on Charge 4 starts immediately. The sentence on Charge 1 starts six months from today. The sentence on Charge 2 starts 12 months from today. The sentences on Charges 3 and 5 start 12 months from today. The Federal total effective sentence is six years' and six months’ imprisonment.
115I will set a non-parole period of four years and three months’ imprisonment.
116The State total effective sentence is 18 months’ imprisonment.
117I declare your 47 days of pre-sentence detention as time served under these sentences.
Section 6AAA
118Although there are Commonwealth offences involved, if you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total sentence of 10 and a half years' imprisonment and set a non-parole period of seven years' imprisonment.
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