DPP v Dong

[2020] VCC 298

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02213

DIRECTOR OF PUBLIC PROSECUTIONS

v

THUY DONG

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2020
DATE OF SENTENCE:	20 March 2020
CASE MAY BE CITED AS:	DPP v Dong
MEDIUM NEUTRAL CITATION:	[2020] VCC 298

REASONS FOR SENTENCE
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Subject: Traffick in a large commercial quantity of heroin
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Cameron	OPP
For the Accused	Mr L. Barker	Valos Black

HER HONOUR:

1Thuy Song Dong, you have pleaded guilty to single Charge of trafficking in a drug of dependence in a large commercial quantity, namely heroin, at Abbotsford and Altona North between 26 March and 10 April 2019.  The maximum penalty for this offence is life imprisonment and up to 5000 penalty units. 

2This offence is the standard sentence offence, the duration of which is 16 years' imprisonment, and a category 1 offence, making the imposition of a term of imprisonment mandatory (see s.71(2) of Drugs, Poisons and Controlled Substances Act and s.5A(1A), s.3(1J) and s.5(2G) of the Sentencing Act, herein after referred to as the act).  Further, this offence is a serious drug offences for the purposes of the Confiscation Act 1997.

3As to the circumstances of the offending, in August 2018, police commenced an investigation into a heroin trafficking syndicate operating from a pool hall in Abbotsford.  The pool hall was managed by Minh Chi Trinh, Mr Trinh, Tian Loy Hoang, Diem Thi Vic Vho, the partner of Mr Hoang, Ms Vho, and their associates, Jackie Tran, Mr Tran, and Phat Lu, your wife. 

4The licensee of the pool hall was Mr Trinh's daughter, though it appeared he did not conduct a legitimate business; rather, it operated as a front for the trafficking of heroin. 

5Between 14 March 2019 and 10 April 2019, police utilised listening and optical devices inside the pool hall to capture evidence of you and your co-accused restocking the supply of heroin and engaging in conversations about the trafficking of drugs, including organising drug transactions. 

6Recorded conversations in Vietnamese were subsequent interpreted and translated.  Evidence relating specifically to you were set out in a table in the prosecution opening, Exhibit A, paragraph 10.  A more detailed summary of all the evidence relating to both yours and your co-accused's involvement in contained in annexure A of Exhibit A. 

7On 10 April 2019, police executed search warrants at five different properties linked to you and others, including the pool hall and your residence in Altona North.  Various items were seized and subjected to forensic testing, including drug analysis and DNA analysis. 

8Police located and seized the following items at the pool hall:  $39,443.70 in cash; 39 compressed rocks of heroin of either 18 or 19 per cent purity, in black wrapping, weighing a total of 149 grams and found in various locations, including hollowed out compartments of an esky and in a yellow-lidded recycling bin, that contained fake bottles and cans which hid various storage compartments.

9DNA testing provided extremely support that you were a contributor to the DNA profile connected with the heroin (see paragraph 16 of Exhibit A).  Also located were equipment, documents and other drug related paraphernalia. 

10You were present when police attended at your house with your wife, child and a friend.  Police located and seized a further 39 compressed rocks of heroin of 19 per cent purity, again in black wrapping, weighing a total of 2.0244 kilograms in different bags in your spare bedroom.  All except one of the packages subject to DNA analysis showed extremely strong support for you being a contributor to the DNA profile (see paragraph 18). 

11When police spoke with you, you grinned and said you found it, though you avoided any conversation regarding where the heroin had come from and who had supplied it.  You were arrested and made a no comment interview. 

12Mr Tran pleaded guilty to lesser offences in the Magistrates' Court, including trafficking of 149 grams of heroin and received 12 months' imprisonment. 
Ms Trinh also pleaded to a lesser offence relating to $120,000 located at her home in the Magistrates' Court and was placed on a two year undertaking. 

13In respect of both those individuals, parity has little, if any, application to you.  Both your partner, Ms Lu, and Mr Trinh have a trial listed in this court in January next year. 

14As to your personal circumstances, you are currently aged 54 and were born in Nha Trang in a coastal tourist area of Vietnam.  Your family were fruit and vegetable farmers, and you were the second of six children.  Your father left the family unit when you were about 14, and your mother and siblings continued working very hard on the farm. 

15Your mother is currently in poor health, aged 83, and is looked after by your older sister.  Your four younger brothers still live near the farm in Vietnam.  You had a limited education in Vietnam; you attended school to the equivalent of Year 8.  Then your family decided you should flee Vietnam as a refugee with your great uncle. 

16At 15 you left the country under precarious conditions on a boat and arrived in the Philippines, remaining in a refugee camp for about three years.  You and your uncle obtained refugee visas and came to Australia in 1983.  You became an Australian citizen in 1985 or 1986.  You were ultimately required to assist your uncle with living expenses and rent, so did not return to school, and obtained work in a upholstery factory. 

17You had a solid career as an upholsterer, working in various businesses up until 2012.  Since that time, you have worked as a handyman, undertaking repair or odd jobs. 

18You met your first wife in about 1991 and carried on a long-distance relationship with her, as she was in a refugee camp in Germany.  You brought her to Australia on a spousal visa and had two children, now aged 28 and 24.  Your marriage broke down and you separated in 2000, and you only have intermittent contact with those children.

19You re-married and your current wife, Ms Lu, came to Australia in 2018 from Vietnam.  She has lived with you and your young daughter, Evita, in a rental property, your residence in Altona North. 

20You met some of your co-accused at the pool hall, others you had known for a number of years.  You were motivated to be involved so you could provide financially for your new young family.  Your offending was financially motivated; however, enrichment did not eventuate.  The prosecution did not suggest otherwise.  No doubt, you had an expectation of making substantial sums of money selling the drugs at your home.

21Pursuant to s.5A(1B) of the act, the offence of trafficking in large commercial quantity specifies the standard sentence of 16 years.  This period takes into account only the objective factors affecting the relative seriousness of that offence and is in the middle of the range of seriousness. 

22The Act requires me to have regard to a number of specified matters in sentencing you, including s.5(2ab), the standard sentence.  In addition, s.5B(2a) of the Act requires me, in sentencing you, to take the standard sentence into account as one of the factors relevant to sentencing. 

23The parties agreed that the approach to be adopted was that expressed in the Court of Appeal in Brown v The Queen [2019] VSCA 286. There, the Court of Appeal stated as follows:

'For the most part, the provisions are clear, and the approach required is not in dispute.  The key new requirements is that the judge, when sentencing for a standard sentence offence, must take the standard sentence in to account as one of the factors relevant to sentencing.  This requirement is to be treated as a legislative guidepost, having the same function as the maximum penalty, does not affect the established instinctive synthesis approach to sentencing, does not require or permit two-stage sentencing, and does not otherwise affect the matters which the court may or must take into account in sentencing (see paragraph 4 of Brown).'

24The court also concluded that the new scheme did not require or permit a sentencing judge to assess the seriousness of the subject offence, taking into account only the objective factors as defined in s.5A(3):

'Rather, a sentencing judge is obliged to assess the seriousness of the offence before them; that assessment remains a necessary part of the process of the instinctive synthesis, and it is not constrained by the legislative definition of objective facts.  Those constraints are referrable only to the assessment which gives content to the hypothetical offence, an offence in the middle of the range of seriousness (see paragraph 7).' 

25I have had regard to the standard sentence for this offence as one of the matters to be taken into account in arriving at the appropriate sentence for you by the process of instinctive synthesis.  In doing so, I have applied the law as recently explained in Brown.

26As to current sentencing practices, under s.5B(2) of the Act, the court must only have regard to sentences previously imposed for this offence as a standard sentence offence.  I was provided with four cases with sentences imposed for this offence as a standard sentence offence since February 2018, when the legislation came into effect (see annexure A, prosecution written submission on sentence).

27I was informed that none of these cases involve offending directly comparable to yours, though they may act as a useful guide.  As to your role, you have pleaded guilty to trafficking by way of possession for sale of a large commercial quantity relating to heroin located both at the pool hall and at your home. 

28Your counsel submitted that your role was more limited than that of your co-accused.  Mr Trinh, as in respect of the pool hall, there was no evidence that you were involved in any of the sales of those drugs, and no suspicious amounts of money were found in contrast to amounts found at properties associated with Mr Trinh. 

29Your role at the pool hall was characterised by your counsel as being a general 'dogs body', with involvement in only six actions out of the 100 as listed in Appendix A in Exhibit A, involved in your role at the billiard hall. 

30The prosecution described your role as a 'subordinate' in relation to the activity at the poll hall, involving you moving drugs to and from the pool hall, where others who were more directly involved in the pool hall operation to sell.  Your role was described as being a necessary and contributing component of the wider pool hall operation. 

31In relation to the heroin located at your home, you were the sole offender.  No drug trafficking accruements were located at your home.  The prosecution conceded the drugs located at your home were packages likely to have been part of the pool hall operation, given the similarities in weight, purity, packaging and DNA.  Further, there was no evidence of significant enrichment. 

32As to the objective seriousness of your offending, the total amount of heroin is over 2 kilograms.  The heroin located at your home is just over twice the statutory 1 kilogram threshold required for a large commercial quantity as a mixed substance.  The purity of that heroin was 19 per cent, or 384.63 grams, which is just over half the 750 gram threshold for the substance in its pure form. 

33Further, your plea incorporates an unknown quantity of heroin relating to the activity as outlined in paragraph 10 of Exhibit A.  Your offending conduct occurred over a period of just over two weeks and was not a single or isolated act. 

34The seriousness of the trafficking was unaffected by the fact the drugs you had at your home had not reached the public or been sold by you.  As noted above, you had a limited but essential role in the operation at the pool hall.  Additionally, though, you hoped to make a substantial sum; that expectation did not come to fruition. 

35You pleaded guilty to this matter on 7 November 2019, the day the committal was listed, though no witnesses were called.  The prosecution accept that you entered this plea at an early opportunity and are entitled to a sentencing discount.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  You have saved the cost to the community of running what was likely to be lengthy trial proceedings. 

36I accept your plea is also indicative of remorse.  Your counsel submitted that you had excellent rehabilitation prospects, that you have no prior convictions, and have otherwise been of good character until your involvement in this offending.  The prosecution conceded that you had good rehabilitation prospects, noting your lack of prior history. 

37I accept that you have good rehabilitation prospects, given that you have no prior convictions.  You are a mature gentleman and have remained out of trouble for the 54 years of your life until now.  You have participated in a number of courses whilst you have been in custody and you have a solid work history. 

38I accept that imprisonment is more onerous for you, given your cultural background.  Although you speak fairly good English, most of your social network are fellow Vietnamese migrants.  You have few family or friends in Australia and, consequently, no visitors in prisons.  You concern for your wife, who is currently charged in matter relating to this offending, and your young daughter is constant and a burden on your mind whilst imprisoned. 

39Both parties accepted that general deterrence and denunciation were primary sentencing principles in this matter.  The sentence imposed must announce your offending and be sufficiently severe to deter others who consider embarking upon such offending due to the lure of large relatively easy profits which can be derived from the trafficking of illicit drugs. 

40Specific deterrence is of less relevance, given your more limited role in this offence and your lack of prior convictions.  Taking all relevant considerations into account, I propose to convict and sentence you to a period of imprisonment of nine years. 

41There was dispute between counsel as to how the non-parole period for a standard sentence offence was calculated and whether relevant term referred to in s.11A(5) of the Act was the standard sentence or the head sentence that I have imposed.  I propose to adopt the approach taken in the Supreme Court and consider that s.11A(5) of the Act requires me to fix a non-parole period of at least 60 per cent of the head sentence imposed on you unless it is in the interest of justice not to do so. 

42In your case, neither party submitted I should be persuaded that was the case.  Thus, the non-parole period I impose is 60 per cent of nine years; that is five years and five months before you are eligible for parole. 

43Section 5(B4) and five of the Act requires the court that sentences an offender for a standard sentence offence to state its reasons for imposing that sentence and to explain how the sentence imposed by me relates to that standard sentence. 

44As I understand it, the applicable law does not require me to attribute particular mathematical values to matters regarded by me as significant to the formation of the head sentence that differs from the standard sentence.  However, I have endeavoured in these reasons to identify full, the facts, matters and circumstances which relate, in my judgment, to the appropriate sentence.

45The sentence I have passed is lower than the standard sentence for this offence.  I have taken into account all of the matters I am required to consider under s.5(2) of the act, including the standard sentence.  I have taken into account any mitigating factors which apply and, by process of instinctive synthesis, arrived at the sentence that I did.  What is the pre-sentence detention, please?

46MR CAMERON:  The updated ‑ ‑ ‑

47MR BARKER:  The number is 345.

48HER HONOUR:  Sorry?

49MR BARKER:  Three, four, five.

50HER HONOUR: Three forty-five days pre-sentence detention is declared. Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have imposed a sentence of 14 years with a non-parole period of eight years and five months.  Are there any other matters?

51COUNSEL:  No, Your Honour.

52HER HONOUR:  Thank you.

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