DPP v Kha
[2019] VCC 1682
•15 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01166
CR-19-01167
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENNIS KHA |
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| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 October 2019 |
| DATE OF SENTENCE: | 15 October 2019 |
| CASE MAY BE CITED AS: | DPP v Kha |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1682 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Traffick in a drug of dependence - large commercial quantity- possess drug of dependence – negligently deal proceeds of crime – standard sentencing provisions - Serious drug offender.
Legislation Cited: Sentencing Act 1991, Sentencing Amendment (Sentencing Standards) Act 2017.
Cases Cited: DPP v Quah [2019] VCC 1158.
Sentence:Convicted and sentenced to a total effective sentence of 12 years and six months imprisonment, with a non-parole period of eight years and nine months imprisonment before being eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Devlin | Director of Office of Public Prosecutions |
| For the Accused | Mr N. Tehan | Slades and Parsons |
HIS HONOUR:
1Dennis Keith Kha, on 11 October 2019 at the County Court in Melbourne, you pleaded guilty to the following charges on Indictment C1912946:
Charge 1; on 11 January 2018, trafficking in a drug of dependence in a large commercial quantity. That drug was methylamphetamine. This offence has a maximum sentence of life imprisonment.
Charge 2; on 6 February 2019, trafficking in a drug of dependence in a quantity not less than a large commercial quantity. That was a combination of methylamphetamine and what is known as MDMA. The maximum sentence is life imprisonment for this offence and it is also the subject of standard sentencing provisions of the Sentencing Act.
Charge 3; on 6 February 2019, possession of drug of dependence which was cannabis L. The maximum penalty for the amount you had was five penalty units.
Charge 4; possession of a drug of dependence, non-traffickable purpose which was 1, 4-Butanediol. This charge has a maximum penalty of one year imprisonment; and
Charge 5; negligently deal with the proceeds of crime, the sum being $42,280. This charge has a maximum penalty of five years' imprisonment.
2Pursuant to s.145 of the Criminal Procedure Act, you agreed to a related summary charge being heard at the time of your plea. You pleaded guilty to Summary Charge 12 which was possess a prohibited weapon, in this case a knuckle duster. This charge has a maximum penalty of two years' imprisonment or 24 penalty units.
3You also admitted your prior criminal history including one charge of trafficking methylamphetamine when, on 19 April 2017, you were imprisoned for six months and ordered to serve a 12-month CCO after your imprisonment was completed. Your offending in Charge 1 is in the period of that CCO.
4You have two prior convictions for possessing a prohibited weapon; you have one conviction for proceeds of crime offences. Consistent with your personal history, you have court appearances for possession of a drug of dependence.
5You have spent 251 days in pre-sentence detention not including this day.
The circumstances of your offending
6The prosecutor tendered a summary of prosecution opening dated 30 September 2019 and a chronology. These documents were Exhibit “A” on the plea. The prosecution also tendered a bundle of still photographs of you on 11 January 2018, relating to the surveillance for Charge 1, and was Exhibit “B”. In respect of the drugs seized and the basis for the drug offence in Charge 2 on 6 February 2019, the prosecution tendered the certificate of analysis by Graham Wilson, a scientist at the Forensic Science Services Department dated 21 May 2019, and this was Exhibit “C”. I will return to this document in the sentencing considerations.
7At the time of Charge 1, you were 25 years old and you had been out of gaol for a sentence of trafficking in a drug of dependence for six months. You were serving a 12-month CCO.
8The police were conducting an operation known as Operation Webber. One of the principal people who was the focus of Operation Webber was Veselin Orlic who lived in Malvern East. Orlic's premises were fitted with surveillance devices by the police.
9On 11 January 2018, police had Orlic's premises under surveillance. From the street, Orlic was seen to receive the delivery of five clear Ziplock bags from an unknown person. Shortly after that, you were observed attending at that same premises empty-handed. Orlic opened the door and you let yourself into the unit. Orlic took a large Ziplock bag of methylamphetamine out of a bag in the lounge room and handed it to you.
10You had a brief conversation with Orlic about a female and stated that you, 'Has little bits in the safe just to show people and shit', referring to drugs he has on hand for people to try.
11You and Orlic then have the following discussion about the weight and quality of the methylamphetamine:
KHA: 'What's here?'
ORLIC: 'One'.
KHA: 'This good?'
ORLIC: 'Yeah’.
KHA: 'Is it teabag or….?'
ORLIC: 'No'.
KHA: 'Ah fuck, pretty crummy, man'.
ORLIC: 'No, it's not'.
KHA: 'Yeah, so it's good?'
ORLIC: 'It's good, yeah, it's really strong though'.
12You were captured on the internal optical device smelling the contents of the plastic Ziplock bag, holding the bag up to the window and visually inspecting the contents during this conversation.
13You are then observed in the internal optical device placing the Ziplock bag in a black Platypus shoes carry bag and leaving the premises. You are captured on the external optical device carrying the same black Platypus shoes bag with you as you walk back across the road.
14Victoria police surveillance operatives observed you getting into a vehicle with registered No.YFH857 and drive to your home address at 6 Virgo Place, Wantirna South. You were not arrested at that time and the contents of the Platypus shoes bag were never seized by police but it is accepted by your plea and through your counsel that the contents of the bag weighed sufficiently to be a large commercial quantity of methylamphetamine of unspecified purity and nothing more.
15The prosecutor submitted the contents were 1 kilogram of methylamphetamine based on the conversations and the photographs and other samples taken at the scene from Orlic's place and the analysis of those samples.
16This is a single-day offence of drugs in possession for sale. The photographs were Exhibit “B”.
17The offending in Charge 2 occurred approximately one year after the offending in Charge 1. I note that your offending is captured by the standard sentencing provisions of the Sentencing Act which came into operation on 1 February 2018.
18In August 2018, investigators from the Victoria Police Drug Task Force commenced an investigation with code name Operation Neon which was focused on your activities. You used the vehicle No.1MA 4LI, a silver Mercedes sedan registered to your cousin, Mason Chan. Another cousin, Hsin Jacqueline Kha, resided in Doncaster East with her mother.
Telephone intercepts
19During the course of Operation Neon, investigators utilised a lawfully obtained telephone intercept and other investigative techniques to gather evidence in relation to your drug trafficking. Investigators intercepted a number of coded drug related conversations between you and your customers in relation to the supply of methylamphetamine which was referred to as ‘hoof’ or ‘shir’ and cocaine which was referred to as 'ratchet'.
Arrest and search warrants
20At approximately 7.14 pm on 6 February 2019, some 40 to 50 minutes after you had told Jacqueline Kha on the telephone intercept that you were coming over, investigators observed you arrive at Kha's address in Doncaster East. You arrived in your cousin's vehicle that is Mr Chan's vehicle, and parked in the front yard of the unit. Investigators observed you get out of your car empty-handed and walk into the unit.
21At approximately 7.18pm on that evening, investigators observed you walk out of the unit carrying a white plastic bag. The police approached you and placed you under arrest.
22After your arrest, pursuant to a search warrant, the vehicle you were driving was searched and inside the vehicle, investigators located a white plastic bag containing drugs which were later analysed to be 149.1 grams of methylamphetamine which is part of Charge 2. Furthermore, three mobile phones were located and later analysed to contain text messages between you and customers indicating large scale trafficking.
23In respect of the property in Doncaster East, at approximately 7.22pm, the investigators executed a search warrant on that premises and gained entry to the house with a key that you had provided them. There were no other occupants present in that unit at the time.
24You made admissions to investigators in relation to the location of more drugs inside the house. Inside the closet in bedroom 1 of the unit, you pointed to a brown bag containing a plastic bag containing approximately 972 grams of MDMA which is also a part of Charge 2.
25At approximately 8pm, Jacqueline Kha, your cousin, returned home and provided a written statement to the police indicating that the exhibit found inside bedroom 1 belongs to you and that she observed you bringing the bag to the unit. In her statement, Jacqueline Kha stated that she was unaware of the contents of the bag and that she had never touched the exhibit.
26At approximately 10.12 pm on that same evening, pursuant to another warrant that was executed at your home address in Wantirna South, the following matters were located, which is your family home;
·one small Ziplock bag containing 1 gram of green vegetable matter which was cannabis L, Charge 3;
·one bottle containing clear liquid which was butanol, that is Charge 4;
·aggregate of $42,280 AUD which was Charge 5; and
·a knuckle duster which is the relevant Summary Charge 12.
27On that day, you were interviewed by police in respect of Operation Neon regarding matters occurring on 6 February 2019. You exercised your right to remain silent. A DNA sample was taken from you on that day.
28On 22 February 2019, you were interviewed again whilst in custody in relation to Operation Webber, which is Charge 1. You exercised your right again to remain silent.
29There was a forensic analysis undertaken in respect of the drugs that were seized in your possession on 6 February 2019.
30On 19 March 2019, the drugs seized from you were conveyed to the Victorian Police Forensic Science Centre. The analysis of the exhibits established the following;
(1) that the exhibits seized from the car that you were driving, the plastic bag containing white crystal substance, was analysed and found to contain methylamphetamine with a total weight of 149.1 grams;
(2) the exhibits seized from the unit in Doncaster East in bedroom 1, was a plastic bag containing brown crystal substance was analysed as MDMA and the total weight of that was 929.7 grams;
(3) the quantity of drugs seized from you on the day, that is 6 February 2019, is an aggregate large commercial quantity as defined pursuant to s.70 of the Drugs Poisons and Controlled Substances Act.
31In the course of the plea, the certificate of analysis was tendered as Exhibit “C”. In that certificate, Mr Wilson, the analyst, sets out his findings in respect of the purity of each of the drugs, methylamphetamine and MDMA. The purity of the methylamphetamine was 88 per cent; the purity of MDMA was 12 per cent.
32Mr Wilson found that based on the mixed quantities of each drug, the combination of the drugs amounted to 1.1 of the large commercial quantity under the legislation.
33Mr Wilson states as follows,
'The total quantities of the substances containing 3,4-methylenedioxymethamphetamine and methylamphetamine determined as a fraction of the large commercial quantity specified in Column 1(b) of the Act is listed as follows'
34There is a table that sets out the quantities in more detail, which I will not verbally detail it, but will include the table within my reasons.
35If these calculations are based on pure quantities, the two drugs are as follows; in respect to the MDMA, in effect, the fraction is .1483. In respect to methylamphetamine, the fraction is .2624. The total of the fractions is .4007.
36On a mixed quantity basis for the measuring of large commercial quantity, you have pleaded to and accepted 1.1 large commercial quantity. On the basis of the calculations used in Mr Wilson's analysis and the method of calculation of your total drugs amounting, as in pure drugs, is .4 of large commercial quantity. Based on this combination of calculations, I find the offence for a single-day charge of drugs of possession for the sale is at the low-end for offending in respect of a large commercial quantity of a drug of dependence.
Your personal circumstances
37At the time of the Charge 1 offending, you were 25 years old. At the time of the Charge 2 offending, you were 26 years old. You are now 27 years old.
38Your mother died when you were three months old from medical complications arising from your birth. You have never known your mother. You have harboured feelings of guilt, grief and loss during your whole life as a result of that tragedy.
39You have had the benefit of a supportive and stable upbringing. Your grandparents, father and older sister all lived together providing a happy childhood for you. In your own words, “you could not ask for better circumstances”.
40You attended a Catholic primary school. Your father worked long hours to provide for the whole family. Your grandparents cared for you and your older sister. After successfully completing primary school, you went to the Knox School from Year seven to 10. You did not complete Year 10, so your formal education was really completed at Year nine level.
41After leaving school, you had spent a year, as you describe it, smoking weed. That was a description given by you to Mr Patrick Newton, forensic psychologist. You then obtained an apprenticeship as a motor mechanic. By the age of 20, you completed your apprenticeship as a motor mechanic.
42The references from Wing Hanh Yau, Kwok-Wai A Chang and Ricky Wong, which are all part of Exhibit “4”, all attest that you were a talented, hardworking motor mechanic who lost your way to drug addiction. Each of them gave you a chance to change your ways but you reverted to the drug culture and ceased work. I note you are engaged into work at the small motor section of the Fulham prison whilst you have been on remand.
43You have an established history of polydrug use. You started smoking cannabis at 15 years old. By 18 years old, you were using methylamphetamine two to three times a week and by 20, it was daily use. Throughout this period, you also used GHB or “juice" as you described it to Mr Newton.
44Mr Newton, in his report dated 26 September 2019, has diagnosed you as meeting the criteria for severe substance use disorder with regard to methylamphetamine, GHB and cannabis. This condition is in remission now that you are in the controlled environment of a prison. That is in Exhibit “2”. Mr Newton's opinion is that your insight into your drug addiction remains extremely limited. Mr Newton has assessed your mental state as normal.
45Your intimate relationships have all been in the context of mutual drug-taking. Upon your release from prison in July 2017, you commenced a relationship with Sorhana. She had two young children. Your drug-taking continued. Sorhana died of an overdose of GHB in mid-2018.
46You were dealing drugs to pay off drug debts and finance your own use of drugs according to your report to Mr Newton. After Sorhana's death, you sank further into the drug culture and criminal associations until your arrest in February 2019.
47You are a relatively young man who has experienced some tragedy in your life but who has an extremely supportive family. You have taken a path in life that you are now facing serious drug trafficking charges. I have read your letter dated 8 October 2019 and which was Exhibit “5” and noted its contents. Only you can do something about your drug addiction. Mr Newton's opinion is you have a long way to go on that issue.
Sentencing considerations
48The basic purpose for which a court may impose a sentence is just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
49I am also required to balance the interest of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
50I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and the current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would have been distinguishable from your case as indeed they are from one another.
51Of course, current sentencing practices is only one of the factors I must take into account when fixing your total sentence.
52In respect of Charge 2, trafficking in a large commercial quantity on 6 February 2019, enlivens the standard sentencing provisions of the Sentencing Act. The Sentencing Amendment (Sentencing Standards) Act 2017 came into effect on 1 February 2018 and applies in respect of offences committed after that date. This offence was committed within 12 months of the Act coming into effect.
53The standard sentencing prescribed by the amending Act for a large commercial quantity trafficking of drugs is 16 years' imprisonment. The amending Act also introduces a standard non-parole period which is 60 per cent of that 16 years.
54For Charge 2, the maximum sentence of life imprisonment and the standard sentence is 16 years. The standard sentence only takes account of the objective factors affecting the relative seriousness of the offence of large commercial quantity trafficking in the middle range of seriousness and together with the maximum penalty are properly to be regarded as legislative guideposts in the sentencing process. The Parliament has enacted s.6 and s.5B(3)(b) that the standard sentencing provisions are not intended to affect the approach to sentencing known as instinctive synthesis.
55It follows that standard sentencing does not assume a dominant role in the determination of the sentence to be imposed in respect of Charge 2 in your case for the standard sentence prescribed by Parliament for the offence is simply one of the relevant sentencing factors to which a court must have regard along with other sentencing factors identified and which are required to be taken account of in s.5(2) of the Sentencing Act.
56Further, so far as consideration of current sentencing practices are concerned, s.5B(2)(b) requires a court when considering current sentencing practices for a standard sentence offence to only consider sentences previously imposed where the relevant offence was subject to the standard sentence scheme.
57In respect of Charge 2, I was referred to by the prosecutor to a decision of my sister Hampel J in DPP v Quah which is reported at [2019] VCC 1158 for a similar case in large commercial quantity trafficking. It was a standard sentencing case and was put forward as a current sentencing practice precedent.
58The amount of methylamphetamine or ice in that case was 3.8 times the large commercial quantity. That factor alone distinguishes it from your case. In your case, the mixed amount calculation is 1.1 times the large commercial quantity on the mixed basis or on the pure drug calculation basis, it is .4 of a large commercial quantity.
59You have pleaded guilty to these charges. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and the resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
60Your plea also is a clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.
61In respect of Charge 1, your plea is significant because the prosecution case against you was circumstantial. You were not arrested on the day of that charge and the drugs in your possession were not seized nor analysed. Your plea to that charge is significant.
62In respect of Charge 2, and the other charges brought against you on 6 February 2019 is also significant. You cooperated with the police in the search of your cousin's premises and your own family home. In relation to Charge 2, your plea is significant in light of the two methods of calculation for the large commercial quantity of mixed drugs and the combination of drugs.
63The seriousness of your offending is indicated by the following factors;
(1) You were serving a CCO for drug trafficking when you offended in Charge 1;
(2) Of the two separate dates approximately one year apart you were trafficking in a large commercial quantity albeit in possession for sale;
(3) On the day of your arrest, you were seized with $42,280 which is Charge 5; you were unemployed at the time;
(4) You had a prior conviction for drug trafficking and had been incarcerated for it;
(5) In respect of Charge 1, the quantity was greater than the large commercial quantity;
(6) In respect of Charge 2, it was 1.1 times of the large commercial quantity for mixed drugs in combination, that is ice and MDMA;
(7) There are no hallmarks of lavish living and your motivation for offending was payment for your own drug debts in the past and to finance your drug addiction as it went along.
64You had a relevant prior criminal history of drug trafficking, possession of drugs and controlled weapons. These matters combined with your current offences indicate that your prospects of rehabilitation are assessed as guarded. However, you are relatively young, that is you are 27 years old now, and rehabilitation of you is the best protection the community can have in the future.
65You have skills in motor mechanics and a proven work capacity in the past. If you are going to address the issues driving your drug addiction whilst in custody, then your chances of rehabilitation will be enhanced. That process is up to you to deal with your drug addiction. You have a supportive family to help you and they have helped you over the journey today.
66I have fixed a non-parole period for the totality of your offending which is less than the “guidepost” non-parole period for the standard sentence Charge. In your case, it is Charge 2.
67I have done this so as not to impose a crushing sentence overall but also to encourage you to engage positively in rehabilitation whilst in custody. If you do that rehabilitation, then you may earn a chance at parole where your release will be closely supervised in the community. Community protection would be enhanced if you are rehabilitated in the community.
68The prosecution did not call for full cumulation of the sentences under the serious drug offender provisions of the Sentencing Act. The prosecution submitted this was not a case for a disproportionate sentence to be imposed.
69Your overall offending calls for a significant total sentence of imprisonment. The cumulation of the sentences has been moderated so as not to impose a crushing sentence upon you. Nevertheless, the principles of general and specific deterrence, just punishment, denunciation of your actions of your offending and the protection of the community dictate that a lengthy term of imprisonment is the only just sentence in your case.
70Would you stand please?
71In respect of Charge 1, you are convicted and sentenced to seven years' imprisonment.
72In respect of Charge 2, you are convicted and sentenced to nine years' imprisonment.
73In respect of Charge 3, you are convicted and discharged.
74In respect of Charge 4, you are convicted and sentenced to three months' imprisonment.
75In respect of Charge 5, you are convicted and sentenced to two years' imprisonment.
76In respect of the related summary charge, you are convicted and sentenced to three months' imprisonment.
77The cumulation of your sentences is as follows; Charge 2 is the base sentence, that is nine years. To be served cumulatively upon that sentence are the following; three years of the sentence in Charge 1; one month in the sentence in Charge 4; four months in the sentence in Charge 5; and one month in the sentence for the related Summary Charge 12.
78That is a total effective sentence of 12 years and six months' imprisonment.
79I declare that you serve eight years and nine months before you are eligible for parole.
80But for your plea of guilty, I would have sentenced you to 16 years and six months with a non-parole period of 12.5 years.
81I declare that you have served 251 days' imprisonment.
82I have signed the forfeiture order and the disposal order sought and I declare pursuant to s.6F of the Sentencing Act that you have been sentenced as a serious drug offender.
83Is there anything - do those figures first of all add up? Do you want me to go over them?
84MR TEHAN: On my account, Your Honour, they do add up.
85HIS HONOUR: Yes. Thank you.
86MR DEVLIN: They do, Your Honour.
87HIS HONOUR: Yes. Thank you.
88Is there anything further?
89MR DEVLIN: No further order is sought.
90MR TEHAN: No.
91HIS HONOUR: Thank you. You can remove the prisoner.
92Mr Kha, keep going to see him in prison.
93MR TEHAN: Thank you, Your Honour. He acknowledges that.
94HIS HONOUR: Yes. Everyone else is excused. I have got to see someone else. Thank you.
95MR TEHAN: As Your Honour pleases.
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