Director of Public Prosecutions v Vu
[2021] VCC 1391
•20 September 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case no. CR-21-00227
Indictment no. K11023568
Case no. CR-21-00245
Indictment no. K11023499
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LARRY VU JAMES VAN |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF PLEA: | 31 August 2021, 1 September 2021, 2 September 2021, 3 September 2021, 6 September 2021 | |
DATE OF SENTENCE: | 20 September 2021 | |
CASE MAY BE CITED AS: | DPP v Vu; DPP Van | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1391 | |
REASONS FOR SENTENCE
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Subject:SENTENCE – CRIMINAL LAW
Catchwords: Guilty pleas – Eleven co-offenders – organised crime syndicate trafficking in mostly methylamphetamine – large commercial quantities – standard sentencing regime – Covid-19
Legislation Cited: Crimes Act 1958; Drugs, Poisonsand Controlled Substances Act; Crimes Act 1958; Sentencing Act 1991; Confiscation Act 1997
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Gregory(a Pseudonym) [2017] VSCA 151; Kumas v The Queen [2021] VSCA 215; Rahmani v The Queen [2021] VSCA 51
Sentence: L Vu: 4 years imprisonment with a minimum non-parole period of 2 years and 6 months. J Van: 14 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | B Sonnet | Solicitor for the Office of Public Prosecutions |
| For the Accused L. Vu | M Perry | Melasecca Kelly & Zayler Barristers and Solicitors |
| For the Accused J Van. | P Morrisey QC | Melasecca Kelly & Zayler Barristers and Solicitors |
HIS HONOUR:
1Operation Polaroid commenced in September 2018. It was an operation by a Victoria Police Drug Task Force which uncovered an organised crime syndicate operating a drug trafficking business. From 31 November 2018 until 22 April 2019, the syndicate’s ‘customer buy phones’ were intercepted by police via multiple telephone interception warrants. Listening devices were also lawfully installed in syndicate vehicles and safe houses.
2The syndicate was a highly organised, prolific, systematic, and large-scale distributor of illegal drugs, principally methamphetamine. The syndicate dealt in different quantities of drugs ranging from 0.5 grams to 1 kilogram. During the investigation, over 200 customers were identified, the majority of whom were drug traffickers on-selling the drugs to their own customers. The syndicate's operations are described in the Prosecution Opening, which was tendered as Exhibit A on the plea.
3The following people have pleaded guilty before me to charges arising from Operation Polaroid: Minh Nguyen, Raymond Tran, William Wu, Thanh Dang, David Vu, Thanh Truong, Huy Vu, Quang Vo as well as you, Larry Vu and you, James Van.
4Syndicate members had different tasks in the distribution of the syndicate’s drug supply. Some manned the syndicate’s buy phones and others were the delivery drivers. Delivery drivers were paid at a rate of $66 per hour. Phone holders were paid at some higher rate that is not disclosed in the evidence. Phone holders occupied a position above delivery drivers in the hierarchy of the syndicate.
5The system used by the syndicate was that once a customer placed an order, the phone holder would call the syndicate’s drug delivery drivers on low-cost phones connected in false names. The phone holder would tell a driver to package and deliver the ordered quantity of drugs. The business regularly employed six delivery drivers, who took turns working shifts for the business.
6The syndicate used a pool of potential workers available to replace current workers (should they be arrested or become unable to perform their duties for some other reason). All syndicate members had links to one another; either family members or long-time friends.
LARRY VU
7Dealing firstly with you Mr Vu. Larry Vu, you have pleaded guilty to trafficking in a commercial quantity of a drug of dependence. The maximum penalty for this offence is 25 years' imprisonment. This is a ‘Category 2’ offence which means that s5(2H) of the Sentencing Act 1991 applies. I must impose a sentence of imprisonment unless certain statutory exceptions are met. It is not submitted that any of those exceptions apply in this case. You also pleaded guilty to negligently dealing with proceeds of crime for which the maximum penalty is 5 years' imprisonment.
8You were born in September 1991 and were therefore aged 27 years at the time of the offending. You were living at Unit 111, 112 Elizabeth Street, Richmond with your brother David Vu, a co-offender.
9The facts of your offending were set out in the Prosecution Opening and were not in dispute. Your role was that of a delivery driver. You worked just one shift for the syndicate before being arrested by investigating police on 22 April 2019. Your offending involved trafficking a total of 370.45 grams of methylamphetamine along with Minh Nguyen on 13 April 2019 and into early hours of 14 April 2019. You were also in possession of 412.82 grams of methylamphetamine for sale jointly with others at the ‘safe house’ on 13 April 2019.
10On 13 April 2019, your co-offender David Vu held the syndicate’s customer buy phone. On this day, you and Minh Nguyen were captured on police internal optical surveillance device and listening devices conducting the syndicate’s drug transactions from the ‘safe house’ at Mitchell Street, Maribyrnong. Throughout the afternoon one of your co-offenders Raymond Tran provided direction on how to prepare the drugs, where to park when conducting transactions and what to say if police pulled you over.
11On 13 April and into 14 April 2019, you conducted 13 transactions in methylamphetamine between 5.00am and 12.06am in the amount of 370.45 grams.
12Later that night, Minh Nguyen was captured on listening devices in the ‘safe house’ undertaking a stocktake of the drugs and cash with David Vu. You were present during that stocktake. The amount of methylamphetamine you were jointly in possession of 412.82 grams. There was also reference to $39,750 in cash.
Record of interview
13On 22 April 2019, investigating police executed search warrants in this matter. In your room, police located $1,000 cash which is the basis of Charge 2, the negligent proceeds of crime, as well as two low-cost mobile phones. You made a ‘no comment’ record of interview.
Gravity
14The operations of the syndicate as a whole represent drug trafficking at the very high end. The syndicate was introducing very large quantities of destructive drugs of dependence into the community, mainly supplying other drug dealers operating closer to street level than was the syndicate.
15Your role, although limited to just one shift, was very serious offending in its own right. The quantity of the transactions you were involved in on your shift moved well past the commercial quantity for methylamphetamine of 250 grams mixed and when combined with the drugs of which you were later in joint possession, the quantity is greater than the specified amount for a large commercial quantity of 750 grams mixed. The Court of Appeal has repeatedly emphasised that the sentencing regime for drug trafficking offences is quantity based. The quantum of drugs is obviously not the only factor for me to consider in assessing the seriousness of the offence, but it is undeniably a very important factor.
16In the case of DPP v Gregory(a Pseudonym) [2017] VSCA 151, the Court of Appeal made clear that offenders who engage in commercial drug trafficking where the amounts trafficked approach the large commercial quantity can expect lengthy gaol sentences. General deterrence is the predominant sentencing purpose. Those principles apply with full force to offenders who can properly be described as principals in a drug enterprise who, motivated by greed, are deriving substantial profits for themselves through drug distribution. You were not in that category but the enterprise in this case continued and flourished because you and your co-offenders provided your services to the syndicate by selling very large amounts of drugs for the syndicate. Presumably this kept the principals, whoever they were, away from the risk of detection. Although the amounts sold varied, this was not street level dealing. The average amount of drugs you trafficked per transaction across the 13 transactions on your shift was approximately 28 grams. The stock of drugs at the safe house was larger again than what you sold.
17Unusually, your precise role and the exact extent of your participation is quite clear. You were a delivery driver and were being paid a relatively small amount for the magnitude of the risk you were taking. Delivery drivers were at the bottom of the hierarchy of this syndicate. The prosecution submitted that as you worked just one shift as a delivery driver you ‘plainly sit at the bottom of the syndicate hierarchy’.
18In respect of the quantity at the safe house it is not suggested you had any real control or played any active part in the distribution of that amount or were aware of the precise quantity. In my opinion your moral culpability in respect of that quantity of methylamphetamine is considerably lower than in relation to the amount you participated in selling.
19General deterrence though remains the paramount principle in sentencing for trafficking of this nature notwithstanding your comparatively fleeting involvement. However, your role, the extent of your participation and the absence of prior convictions allows for a reduction in the assessment of your moral culpability and the gravity of your offending.
20As to the negligent proceeds of crime charge, the amount of $1,000 is comparatively small and adds little to your overall criminality. The prosecutor Mr Sonnet categorised this as a comparatively low-level offence and submitted a wholly concurrent sentence is open, as did Mr Perry who appeared on your behalf. I agree with this assessment.
Guilty plea
21You pleaded guilty to this matter at what was booked in as a contested committal. In your case the matter resolved without any witnesses being cross examined. The brief in this case was very large and it was unsurprising that this matter proceeded to a contested committal and resolved in the way it did. In the circumstances, I regard your plea as an early plea.
22I give you credit for the utilitarian value of your plea which has saved the court the time and resources involved in what would have been a very long trial. The utilitarian value of your plea is heightened in the current circumstances, where the court faces a very substantial backlog of trials resulting from the suspension of jury trials during the pandemic. This increased utilitarian value of a guilty plea was recognised by the Court of Appeal in the recent decision of Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’) where the court said at paragraph 35:
Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
23I also accept your guilty plea indicates remorse and a willingness to facilitate the course of justice.
24You must receive a significant sentencing discount for your guilty plea.
Personal circumstances
25Mr Vu, you are now 29 years old.
26You came to Australia from Indonesia at the age of five. Your family lived in Richmond where your father obtained employment as a chef. You have two siblings with whom you have a close relationship.
27You went to Abbotsford Primary School and Christian Brothers Secondary College to the middle of Year 11. Your parents are separated. Your father had no real contact with the family. Your mother now lives at home in Richmond.
28You have a history of drug abuse and mental illness. By way of employment you worked at McDonald’s and Hungry Jacks in Richmond for brief periods of time. Before you were arrested you were in receipt of a Newstart allowance.
29You have in the past indicated a willingness to obtain work where possible and when released you intend to actively seek employment. Your chances of obtaining a job are improved by the fact you have not been taking drugs in prison as demonstrated by the drug screens tendered on the plea. You have completed several courses and I have been provided with your certificates of completion in relation to those courses.
30You do have a history of substance abuse including alcohol, cannabis, amphetamines, and cocaine. This started with cannabis at the age of 16 or 17 with friends and later progressed to methamphetamine and cocaine. I am told and accept that you were using cocaine regularly in the period leading up to the offending. Notwithstanding your history of drug use you have no prior convictions. This is an important matter in your favour.
Mental health
31A psychiatric report from Dr Adam Deacon dated 29 August 2021 and a psychological report of Mr Luke Armstrong dated 10 August 2021 were tendered on the plea. Dr Deacon described you as a politely mannered man with a meek demeanour. He said you presented as ‘quiet, stilted and reserved’, and that rapport was limited. He said you have an established diagnosis of schizophrenia, first experiencing psychotic symptoms in 2014. You had three further inpatient admissions between 2014 and 2017. You have been prescribed various anti-psychotic medications in the past including depot injections. You were compliant with your medication from 2017 until your arrest. You were very vague in discussing your offending with Dr Deacon and he was therefore unable to offer any opinion of a nexus between your offending and your psychiatric condition. He said there was no obvious nexus. You remain mildly symptomatic. You have received appropriate treatment in prison.
32Mr Armstrong in his report said given your presentation and functioning, it is likely that you were a relatively impressionable and peripheral member of the syndicate. This is borne out by your limited role on one day.
33Mr Armstrong assessed you as having borderline intellectual functioning placing you in the bottom five per cent of individuals for your age. Your memory performance is significantly lower than normal. As to your insight into the offending, Mr Armstrong noted that you described the offending as “very bad”.
34Mr Perry submitted that your various mental state issues are relevant to the issue of hardship and would make a further sentence of imprisonment more difficult for you than for an offender without your mental state issues. The prosecutor Mr Sonnet accepted this principle had application in your case and also that general deterrence could be sensibly moderated. I have taken these matters into account in formulating the sentence in your case.
COVID-19
35I also accept that the period you have spent custody has been more onerous due to the pandemic related restrictions such as the suspension of visits and limited access to rehabilitative programs. These matters have added to the difficulty of your period of remand.
Prospects of rehabilitation
36Mr Perry submitted that having regard to the comparatively limited extent of your involvement, the absence of prior convictions and the deterrent effect of spending more than two years in prison (the first time you have been in gaol) in the restricted prison conditions, I should take the view you have reasonably good prospects of rehabilitation. I accept this. You are still a relatively young man and your rehabilitation remains an important sentencing objective.
37In my opinion the objective of specific deterrence has less weight given the period you have already served and the conditions in which you have served that period, as well as the absence of prior convictions and the duration of your involvement in this offending.
Current sentencing practices
38Mr Sonnet referred me to the Court of Appeal sentencing overview of cases involving trafficking in commercial quantities of drugs of dependence. Highlighted in red on the document Mr Sonnet submitted were those cases said to be relevant comparators. I have had regard to those matters. Current sentencing practices are a yardstick or a guide to the appropriate sentencing range but not a controlling factor in the exercise of the sentencing discretion.
Submissions
39Mr Perry submitted on your behalf that given your efforts to rehabilitate in prison and the difficulties adverted to in the medical reports, you are less suitable as a vehicle for general deterrence and denunciation and a sentence of imprisonment should be imposed resulting in little or no increase to the term of detention you have already served. As I said earlier, it was not suggested, nor could it be, that any of the statutory exceptions to s 5(2H) apply.
40The prosecutor Mr Sonnet submitted that a sentence of imprisonment with a head sentence and a non-parole period was the appropriate sentence and submitted that the time served was not equivalent to the appropriate non-parole period for this offending.
41The purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and protection of the community. In this case general deterrence and denunciation assume considerable importance. I must also seek to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society. To that end, given my assessment of your prospects of rehabilitation and your previous good character. I will allow for a significant period of supervision should the Parole Board release you at the end of your non-parole period.
42Mr Vu, I have attempted to balance the seriousness of the offending in this case against the mitigating factors that apply and I have taken into account all relevant sentencing principles.
Sentence
43On Charge 1 of trafficking in a commercial quantity of methylamphetamine, you are convicted and sentenced to a period of imprisonment period of 4 years.
44On Charge 2 of negligently dealing with proceeds of crime, you are convicted and sentenced to a period of imprisonment of 2 months.
45That latter sentence is to be served concurrently with the sentence on Charge 1. That makes a total effective sentence of 4 years.
46I fix a minimum non-parole period in this case of 2 years and 6 months.
47HIS HONOUR: Can I just check this, I have the pre-sentence detention at 872 days today.
48MR SONNET: Your Honour, I have been instructed that the pre-sentence detention is 882 days, not 872.
49HIS HONOUR: I beg your pardon, I must have missed a 10 in there. Thanks, Mr Sonnet. Mr Kelly, you agree with 882?
50MR KELLY: Yes, I do, Your Honour.
51HIS HONOUR: All right. Pursuant to s 18 of the Sentencing Act I declare 882 days as pre-sentence detention to be deducted from the sentence that I have imposed.
52Pursuant to s 6AAA of the Sentencing Act, I indicate that I would have imposed a sentence of 6 years with a non-parole period of 4 years but for your plea of guilty in this matter.
53That is the sentence I am imposing in relation to you, Mr Vu.
54MR SONNET: Sorry, Your Honour, before you move onto Mr Van, just need the forfeiture and disposal order to be granted.
55HIS HONOUR: I will be making those orders. The orders the Crown sought in your case are made. Thanks, Mr Sonnet.
56MR SONNET: It's all by consent, Your Honour.
57HIS HONOUR: Yes, thank you.
58MR SONNET: Thank you.
59HIS HONOUR: So, I make the ancillary orders sought.
JAMES VAN
60James Van, you have pleaded guilty on Indictment number K11023499 to a charge of trafficking in methylamphetamine between 19 April 2019 and 22 April 2019 and to negligently dealing in the proceeds of crime between 19 April 2019 and 22 April 2019; and possession of cannabis on 22 April 2019.
61I turn to the circumstances of the offending which are also summarised in the Prosecution Opening tendered as Exhibit A.
Circumstances of the offending
62On 1 April 2019 over into the early hours of 2 April 2019, Raymond Tran was the delivery driver for the syndicate. He was captured on listening devices speaking to you discussing the syndicate, including his ongoing role in the syndicate. Those discussions are said to provide context to the charged offences in this case.
63At the syndicate safe house on 19 April 2019, Thanh Truong and Quang Vo were working as the delivery drivers for the syndicate and transactions in methylamphetamine occurred on that day.
64During his shift, Thanh Truong was captured on a listening device at 1.36pm counting cash which he later dropped off to you, Mr Van. Mr Minh Nguyen asked Truong if he had ‘reloaded’ which referred to whether or not the syndicate's drug supply had been replenished. Truong replied saying ‘thingy didn’t pull through’.
65Minh Nguyen instructed Mr Truong to take ‘75’ to ‘Jay’ because he needed it now. '75' refers to $75,000 and 'Jay' was a reference to you, Mr Van. Truong then counted the cash again, placed it into a cooler bag, and confirmed with Minh Nguyen the amount of money as ‘75’. Tracking device data relating to vehicle WRL 892 showed that Mr Truong drove to Cambala Avenue, Lalor which was your address. He stayed for approximately 23 minutes. A few minutes later, Minh Nguyen and Thanh Truong spoke on the phone. Mr Truong said, ‘he took an extra 800 for his family flights and court and stuff’’. Again, this is a reference to you, Mr Van. At 4.34pm Mr Truong told Quang Vo that he had been at your address earlier.
66On 20 April 2019, Thanh Huy Truong and Quang Vo were again the delivery drivers for the syndicate and transactions in methylamphetamine took place during the day.
67The following day, 21 April 2019, the syndicate was closed for business as the syndicate was waiting for ‘new stuff’.
68On 22 April 2019, search warrants were executed by investigating police. At your address, police forced entry into the premises. They saw bags of cannabis and loose cannabis located in the toilet bowl. You were seen walking away from the toilet. Underneath the stairs, police removed a timber sideboard which revealed a hidden compartment. Inside this compartment, police located an amount of $94,950 in cash. Police seized from your address a total of $97,005 in cash and three zip lock bags containing cannabis to a total weight of 10.8 grams.
Subsequent sentence
69I turn now to the sentence you are presently serving.
70This offending that I have described in the summary took place approximately one month before you were sentenced in the County Court for various charges including trafficking and conspiracy to traffic in 1,4-Butanediol. You were on bail for those charges when you committed the current offences. You are presently serving a sentence of five years' imprisonment with a non-parole period of three years, for the earlier offences. You received that final sentence in December 2019 after a prosecution appeal against the original County Court sentence. The original County Court sentence was 30 months with a minimum non-parole period of 18 months imposed on 12 July 2019. The first hearing day for the plea in the matter had been 13 May 2019. That you were on bail when you committed these current offences is of course an aggravating feature of this offending. Your bail on the earlier charges was revoked nine days after you were charged and remanded in custody for the current offences.
The prosecution case
71The prosecution case for the trafficking charge in this matter is that you had an association with Raymond Tran who was working for the syndicate and you made yourself available as a storer of cash for the syndicate during the four-day charged period. The prosecution does not put the case that you stored a specific amount of money for the syndicate or that you were aware of the amount of drugs trafficked in the charged period. It was your availability as a storer of cash that constituted assistance to the syndicate's trafficking activities. The money that was dropped off to you by Thanh Truong being $75,000, has relevance to the trafficking in that it demonstrates your awareness of the level at which the syndicate was operating its drug trafficking activities.
72The negligent proceeds charge relates to all of the money that was found at your house. The charge is based on you being criminally negligent as to the origins of the money, rather than ‘knowledge’ or ‘recklessness’ which are the more serious states of mind in the legislation for dealing in the proceeds of crime. The offence based on negligence has a relatively low maximum penalty of five years.
Seriousness
73Trafficking a drug of dependence is a serious charge with a maximum penalty of 15 years. As I said, negligently dealing in the proceeds of crime has a maximum of five years. In this scenario the possession of cannabis charge carries a financial penalty.
74Your role in the trafficking is said to be at lower level given the basis of the charge is that you made yourself available as a storer of cash over four days. However, I accept given your association with Raymond Tran, and the amount of money dropped at your house, you were aware that the syndicate was dealing in large amounts of drugs and money. That said, no quantity of drugs or amount of money is attached by the prosecution to the trafficking charge.
75The seriousness of the negligent proceeds charge lies in the large amount of cash and the way in which the money was hidden in a seemingly purpose built compartment. This case was settled on the relatively pragmatic basis that the negligent proceeds of crime is the more serious charge in this case. I will sentence on that basis.
76Mr Morrissey submitted that the context of the offending was that after a period of rehabilitation on bail for the earlier offences you relapsed into drug use. He submitted your motivation and culpability was that found by the sentencing judge for the earlier matters centred on the need to obtain money to fund your drug use. I accept you have a drug addiction and it is a relevant matter in sentencing in that your motivation was not purely greed, but your addiction does not fully explain your criminality and I have no doubt you were also involved in the expectation of some reward.
77The offences were committed whilst you were on bail for commercial trafficking charges; an aggravating feature that underlines your moral culpability in this offending. You do have a significant criminal record which I will deal with, including prior convictions for trafficking and a negligent proceeds of crime offence. In my opinion you understood the criminality involved in the negligent possession of such a significant amount of money.
Criminal history
78You have a relevant criminal history commencing in 2012 in the Children’s Court. You received a community correction order in 2013 for a deception, an assault and possession of amphetamine. The first community correction order had a range of conditions designed to promote your rehabilitation. You breached that order and in 2014 the court gave you another chance and confirmed the order. On the same day you were also dealt with for trafficking cannabis and possession of methylamphetamine. Further breach proceedings in November 2017 saw the order varied but it remained in place. I may have that breach date wrong, I will correct it.
79In April 2016 for trafficking methylamphetamine, possession of firearms, negligently dealing with the proceeds of crime and other offences, you were sentenced to 200 days which you had already served on remand. You were also placed on another community correction order for 12 months. The offending that you are currently undergoing sentence for took place between March and April 2018. As revealed by the Court of Appeal decision in respect of those charges, you were on bail for other matters as well when you committed those Butanediol trafficking offences.
80These prior convictions indicate that you have for some time now been immersed in drug related criminal activity including serious trafficking activity. This offending was a continuation of such conduct, committed just 21 days before you were due to face the County Court on serious drug charges.
81Your prior convictions are relevant to the assessment of your moral culpability; and your prospects of rehabilitation; and they elevate the importance of specific deterrence as a sentencing objective.
Personal circumstances
82You are now 27 years old. You were 25 years old at the time of the offences. You were born in Melbourne to Vietnamese parents. Your parents spent years in refugee camps in other countries before arriving in Australia. You and your two brothers were born here. You and your family lived in St Albans until you were 14 years old. You then moved to Lalor. At that time, you started to associate with peers engaged in drug use. You started using cannabis.
83You met your partner Casey when you were 14 years old. You have two children with her: a daughter Cherry who is now seven years old and a young son who was born in 2019 after you went into custody.
84Your family has now relocated to the Gold Coast area in Queensland, along with your partner Casey and your children. Your family own and run a chicken shop in Queensland where they have been now for approximately three years. They remain supportive of you. I have received character reference from your mother, Thi Pham and from your partner Casey Nguyen. These references speak highly of you and I have taken into account their content. I have also received drug analysis certificates which are negative, apart from one which related to using buprenorphine as I follow it.
Delay
85This offending took place well over two years ago and you have now served most of the non-parole period imposed on the previous sentence. You become eligible for parole on 2 March next year and the head sentence expires in March 2024.
86In this case the delay involved has largely been a result of the size and complexity of the evidence in this case. It has meant that you have been in a state of uncertainty for some years about when you will be released and the exact parameters of your sentence and I must take it into account in applying the totality principal as well given how close you are now to the minimum non-parole period.
Plea of guilty
87You pleaded guilty in this matter on day two of what was a booked in contested committal involving all of the offenders. The matter resolved in your case without any witnesses being cross-examined. As I said in the case of Mr Vu, the brief was very large and it was unsurprising that this matter proceeded to a contested committal and resolved in the way that it did. In the circumstances I regard your plea as an early plea of guilty.
88I give you credit for the utilitarian value of your plea which has saved the court the time and resources involved in what would have been a very long trial. The utilitarian value of your plea is heightened in the current circumstances, where the court faces a very substantial backlog of trials resulting from the suspension of jury trials. As I said in the case of Mr Vu, the increased utilitarian value of a guilty plea was recognised by the Court of Appeal in the case of Worboyes.
89I also accept your guilty plea indicates remorse and a willingness to facilitate the course of justice.
90You must receive a significant sentencing discount for your guilty plea.
COVID-19
91I accept you have spent your period in custody during the pandemic which has involved increased restrictions in prison such as the suspension of visits and limited access to rehabilitative programs. These restrictions are also likely to affect the remainder of the time you have to serve and I have taken into account these matters as a mitigating factor.
Prospects of rehabilitation
92Having regard to your criminal history for similar offending and offending whilst on bail, the seriousness of your offences, your relatively entrenched drug problem and your immersion in a drug related milieu, I can only take a guarded view at best as to your prospects of rehabilitation. However, I accept Mr Morrisey’s submission that the following matters provide some cause for optimism:
· You do have strong family support including from your partner Casey;
· Your family are now in Queensland which will give you a fresh start when you are permitted to leave Victoria;
· You are a father of two young children and you are motivated to be present and involved in their life;
· You are still a relatively young man; and
· You have served a considerable period of time already in prison; the first lengthy period of imprisonment you have served.
93If you do return to this type of offending in the future you will undoubtedly receive further and longer periods of imprisonment, Mr Van.
Totality
94The totality principle requires that the overall sentence I impose must be just and proportionate for the offending as a whole. It applies to the offences across the charges in this indictment and to this sentence and its relationship to the sentence you are serving. There is a considerable overlap in criminality between Charges 1 and 2 on this indictment to the extent that I have decided the sentences should be concurrent. This was the submission made by both Mr Morrissey on your behalf and Mr Sonnet, the prosecutor.
95I am not of the same view in relation to the issue of concurrency between the sentence I impose today and the sentence you are currently serving. This offending is entirely separate to the earlier matters and was committed a year later. It was committed whilst you were on bail for that earlier offending and only shortly before you faced court for that offending. The Sentencing Act reverses the rule of concurrency for offences committed on bail and sentences for offences in this category are to be served cumulatively unless I direct otherwise.
96As submitted by both counsel, the principles of totality require me to consider your overall criminality for these charges and the earlier 2018 offences; accordingly, a measure of concurrency is appropriate. However, in my opinion considering the separate nature of the offences and the circumstances in which these offences were committed, reasonably significant cumulation is also warranted.
97In sentencing you I am required to have regard to deterrence both specific and general, denunciation, just punishment and community protection. In this case considerations of general deterrence and specific deterrence are both important. That said, I do not overlook your rehabilitation and reintegration into the community in formulating the length of the sentences in this case and the orders for concurrency.
98I have attempted to balance the gravity of your offending against the mitigating factors that apply in this case.
Sentence
99My sentence is as follows;
100On Charge 1, trafficking in a drug of dependence, you are convicted and sentenced to be imprisoned for a period of 12 months.
101On Charge 2 of negligently dealing in the proceeds of crime, you are convicted and sentenced to be imprisoned for a period of 14 months.
102On Charge 3, possession of cannabis, you are convicted and fined $800.
103That means that the total effective sentence is 14 months.
104I order that 5 months of the sentence that I have imposed is concurrent with the sentence you are presently undergoing, which means 9 months is cumulative.
105Now pre-sentence detention is 9 days, is that correct? You are on mute.
106MR SONNET: Yes, Your Honour, 9 days pre-sentence detention.
107HIS HONOUR: Pursuant to s 18 of the Sentencing Act I declare that 9 days is to be reckoned as pre-sentence detention already served to be deducted from the sentence that I have imposed today.
108I indicate that but for your plea - this is quite complicated I might say, s 6AAA in this scenario, but I indicate that but for your plea of guilty I would have imposed a sentence of 22 months. I would have made an order for concurrency of 4 months which would have meant 18 months was cumulative which would have really resulted in an overall sentence of 6 and a half years and I would have fixed a minimum non-parole period back to the date of the original sentence of 4 years and 9 months.
109I mean, I can do it that way, Mr Sonnet, or I can just give a straight declaration for these charges but that is the way I have tried to structure it.
110MR SONNET: Yes, Your Honour, I understand.
111HIS HONOUR: What that effectively means and the intention of this sentence, is that you will serve effectively 5 years and 9 months with a minimum of 3 years and 9 months. That is the effect of it, Mr Kelly and Mr Sonnet.
112MR SONNET: Can you just repeat that, I just missed those figures. The effect is five years - - -
113HIS HONOUR: The effect of this sentence is that Mr Van will serve 5 years and 9 months.
114MR SONNET: Yes.
115HIS HONOUR: With a minimum of 3 years and 9 months. I am not declaring a new parole period, I do not have to but what happens effectively is according to the Act the present sentence is suspended, he serves the 9 months.
116MR SONNET: Yes, Your Honour, I understand.
117HIS HONOUR: I mean he goes back to serving. Look, I might indicate I believe that that is what the sentence will achieve here, so that is the order that I make in relation to Mr Van.
118MR SONNET: Likewise forfeiture and disposal by agreement.
119HIS HONOUR: Yes, I will make those orders. So those are the orders that I make. Now, look as far as the other accused are concerned I will try and do that, Mr Sonnet and Mr Kelly, I do not think it will the first week I get back but I will try and do it in the second week.
120MR SONNET: Understand that, Your Honour.
121HIS HONOUR: Nothing further, Mr Sonnet?
122MR SONNET: No, Your Honour.
123HIS HONOUR: Mr Kelly?
124MR KELLY: Nothing further, Your Honour.
125HIS HONOUR: All right. I will adjourn now until tomorrow.
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