DPP v Le

[2019] VCC 583

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-00920
Indictment No. C1711393

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN ANH LE

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JUDGE:	HIS HONOUR JUDGE TRAPNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	18-20 July 2018
DATE OF SENTENCE:	12 April 2019
CASE MAY BE CITED AS:	DPP v Le
MEDIUM NEUTRAL CITATION:	[2019] VCC 583

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Trafficking in a drug of dependence

Legislation Cited:     

Cases Cited:

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Pickering	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr C Nikakis	Haines and Polites

HIS HONOUR:

1       Tuan Anh Le, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence, namely Cannabis L.[1] The maximum penalty for this offence in the circumstances of this case is 15 years’ imprisonment.

[1] Contrary to s 71AC Drugs, Poisons and Controlled Substances Act 1981.

2       The prosecution filed a summary of prosecution opening dated 12 July 2018 which I have been told by your counsel I can treat as a statement of agreed facts.[2]

[2]     Exhibit P1.

The Facts

3       In March 2017, police commenced ‘Operation Tropics’ which targeted the cannabis trafficking activities of your co-accused, Nejat Sazimanoski. This operation was concerned with his trafficking operations, his customers, distributors and suppliers. Police used tracking devices and surveillance to track you, your co-offenders and others caught up in the operation, as you were all involved in the distribution and sale of cannabis to or from Sazimanoski.

4       You and Ha Huu Nguyen and Oanh Nguyen supplied cannabis to Sazimanoski in return for payment. Sazimanoski and his wife, Gezime Sazimanoska, then distributed the cannabis to others, including Frank Margariti, John Taouk and Stuart Wicks for on-sale.

5       Police telephone intercepts and surveillance disclose that your involvement in the operation and your offending took place between 30 April and 1 August 2017, a period of some 3 months.

6       The prosecution allege that your offence involved the supply of cannabis to Sazimanoski for on-sale to his customers. Police telephone intercepts and surveillance show the extent of your involvement in these trafficking activities. Annexed to the amended summary of prosecution opening as ‘Schedule B’ is a detailed chronology of your drug-related activities, commencing on 30 April 2017 and concluding on the 31 July 2017.

7       On 1 May 2017, you received a delivery of an unknown quantity of cannabis you had arranged the previous day. The price you paid for this was agreed to be $2,100 per pound.

8       On 9 May 2017, you offered to sell cannabis to Sazimanoski, who said you were his only supplier at that time and when it is ready he would take delivery.

9       On 15 May 2017, you told Sazimanoski you can no longer supply the cannabis as you had ‘family issues’ as your partner was pregnant.

10     On 18 June 2017, you told Sazimanoski you could not deliver cannabis that night, as it was not yet dry and ready.

11      On 24 June 2017, you telephoned Sazimanoski and told him you had 15 pounds of cannabis for sale. Sazimanoski said he wanted to inspect it first.

12     On 1 July 2017,  you telephoned Sazimanoski to discuss prices. Sazimanoski asked multiple times to pay $1,950 (presumably per pound of cannabis), to which you said you paid $1,900, so you wanted more. You mentioned a figure of $2,000 and Sazimanoski agreed. You said you had about 10 pounds for sale. Sazimanoski said he wanted to see it first, to which you agreed.

13     On 2 July 2017,  you telephoned Sazimanoski and spoke to his wife Gezime Sazimanoska who said her husband wanted to see a sample of the cannabis. She agreed for you to come around at 10 am. You arrived in your vehicle and delivered cannabis to Sazimanoska’s home.

14     On 4 July 2017, Sazimanoski telephoned you asking for cannabis. He wanted it that night and asked for ‘a lot’. You agreed a price of $2,050 per pound. You said you will  source the cannabis by ringing around to see who has stock.

15     On 5 July 2017, Sazimanoski told you he needed some cannabis as soon as possible. He asked whether you even had a small amount to sell, for example, three, four or five pounds. You replied maybe in a few days but not now. Sazimanoski was not happy and abruptly ended the call.

16     On 6 July 2017, you telephoned Sazimanoski and told him you had about 25 pounds you could supply to him. Sazimanoski declined, mentioning recent police actions involving the arrest of a person named ‘Robinson’.

17     On 11 July 2017, you delivered a 1 pound sample of cannabis to premises at 31 Louise St, Lalor and you left a further 20 pounds at a property in Wollert owned by Sazimanoski’s daughter, Semije.

18     On 18 July 2017, you telephoned Sazimanoski and you discussed prices. Sazimanoski wanted to pay $1,950 per pound for 50 pounds of cannabis. You said you will have to call him back, however, you said you wanted $2,050 per pound. You confirmed you could supply the cannabis by 6 pm that day. Sazimanoski said he was busy and he would call you later.

19     On 21 July 2017, you telephoned Sazimanoski and asked him whether he ‘needs help’. He replied, ‘not at the moment’. You said, ‘Call me when you need some’.

20     On 25 July 2017, Sazimanoski called you and asked for 30 to 40 pounds of cannabis. You discussed prices, but could not agree a price. Sazimanoski said he would obtain supply elsewhere, where he could get it more cheaply.

21     On 31 July 2017, Sazimanoski called you and you bartered over price for the supply by you of  20 to 25 pounds, however, you could not agree on the price.

22     The prosecution allege that the quantifiable amount of cannabis trafficked by you to Sazimanoski during the charged period was approximately 32 kilograms, which is more than the commercial quantity threshold. Nonetheless, you fall to be sentenced on a charge of trafficking ‘simpliciter’. These facts give rise to charge 11 on the joint indictment.

23     You were arrested on 16 August 2017 at your home in Caroline Springs. You were interviewed in a tape recorded record of interview. You denied all allegations of trafficking cannabis and claimed that all police recordings of you referring to prices and materials were genuine quotations for building materials and work contracts.

24     You have remained in custody on remand since your arrest, a period of 604 days not including today.

25     It is clear that you engaged on a regular basis in cannabis trafficking activities with Sazimanoski throughout the charged period. It is also clear that there was a degree of organisation and sustained effort on your part.

Offence seriousness

26     Trafficking in a drug of dependence is a serious criminal offence as indicated by the maximum penalty of 15 years’ imprisonment. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have engaged in charge 11.

27     Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking of cannabis by modern methods.[3] The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[4]

[3]     Nguyen v The Queen (2016) 311 FLR 289, 331 [142] (Redlich JA, Tate and Whelan JJA agreeing) (‘Nguyen’).

[4]     See Nguyen 326 [123].

28     You played a significant role in a highly sophisticated criminal enterprise. You were an integral part in an extensive and successful business of trafficking in cannabis. Schedule B to the Crown Opening demonstrates the extent of your involvement in this nefarious trade.

29     Your role was to supply relatively large quantities of cannabis to Sazimanoski, a middle man, who on sold the cannabis to street level traffickers. I do not accept you counsel’s description of your role as being ‘limited’. Throughout the charged period you were actively and regularly engaged with Sazimanoski in actual sales and proposed sales of relatively large quantities of cannabis. You were able to source this cannabis from multiple suppliers further up the line. Moreover, it is clear from the summary of agreed facts that you were a price setter in the negotiations with Sazimanoski. Nonetheless, whatever descriptor is used to characterise your role must not obscure my assessment of what you actually did.[5]

[5]     See R v Olbrich (1999) 199 CLR 270, 279 [19] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

30     The period charged covers some three months. During this period you were actively involved in the ‘business of trafficking’ in cannabis in the Giretti sense.[6] It is agreed that I should sentence you on the basis that the total quantifiable amount of cannabis trafficked by you during this period is at least 32 kg, or about 1¼ times the commercial quantity threshold. Although, once again, I observe you fall to be sentenced for the lesser offence of trafficking ‘simpliciter’.

[6]     Giretti v The Queen (1986) 24 A Crim R 112.

31     While the sentencing regime for trafficking offences is essentially quantity-based,[7] the amount you trafficked is not determinative of my assessment of the objective gravity of this offence. Nonetheless, the weight of drug you actually trafficked, falling as it does at the very top of the trafficking ‘simpliciter’ quantity, remains a relevant factor in assessing the objective gravity of your offending conduct.

[7]     Adams v The Queen (2008) 234 CLR 143; R v Tsolacos (1995) A Crim R 434, 436; Gregory v The Queen [2017] VSCA 151 [23].

32     Clearly general deterrence must be given primacy in sentencing you for these offences. Your counsel accepted this was so. In Djordjic v The Queen,[8] Beach and Kaye JJA (with whom Whelan JA agreed) said:

[8] [2018] VSCA 227.

In light of the large profits that may be derived by those who engage in trafficking such quantities of drugs, it is recognised and accepted that the principles of general deterrence must be given particular emphasis. In Nguyen v The Queen,[9] Priest JA and Coghlan JA quoted with approval the following passage from Dawid v DPP:

The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs, that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.[10]

[9] [2017] VSCA 262 [36].

[10][2013] VSCA 64 [35].

33     During the period of your involvement with Sazimanoski’s business, you were knowingly part of the conduit between the grower of the cannabis and the final purchaser on the street. In this sense, your played a critical part in the success of his overall operation.

34     I find that your offence falls at the upper end of the range of seriousness for offences of this kind. Whilst the incremental uplift in sentences for offences in the mid-range of commercial trafficking and for trafficking in a large commercial quantity recently prescribed by the Court of Appeal[11] does apply to the offence with which you are charged, in my opinion, given your offending falls at the very top of the traffickable quantity threshold, an incremental increase in sentences imposed for this category of offending is warranted in order to retain relativities.

[11]    See Nguyen v The Queen (2016) 311 FLR 289, 333 [152] (Redlich JA); Stanley v The Queen [2017] VSCA 54; Gregory v The Queen [2017] VSCA 151 [100]–[102]; Quaresima v The Queen [2017] VSCA 687 [15] (Weinberg and Priest JJA).

35     I was told by your counsel that you were paid a commission by persons further up the line than you based on the amount of cannabis you sold. While it appears that financial gain was your sole motivation, I accept there is no evidence of enrichment or a grandiose lifestyle in your case. Overall, I assess your moral culpability in relation to this offending as being high.

Personal circumstances

36     You were born in Hanoi in Vietnam on 29 March 1986 and you are now aged 33 years. At the time of the offending you were aged 31.

37     You are the youngest in a sibship of three. The rest of your family live in Hanoi. In Vietnam, you completed a TAFE-like course in information technology.

38     You arrived in Australia from Vietnam on a student visa on 21 December 2011 and you remained on that visa while you were studying a business course at the Holmes Institute in the Melbourne central business district. That visa expired on 30 September 2015, by which time you had applied for an onshore partner visa, which was eventually granted and continued until it was cancelled in early 2017. You then applied for a bridging visa which was granted. That visa was cancelled in June 2018. In all likelihood, upon the completion of this sentence, you will be deported back to Vietnam. I address the significance of this circumstance later in these Reasons for Sentence.[12]

[12]    Below [48]–[49].

39     Before your arrest, you were living with your partner Ms Nguyen, who is a permanent resident of Australia. You now have a daughter together who was born in December 2017.

40     You were not allowed to work while you were on the student visa, but once you were placed on the partner visa you gained employment in a bakery, where you worked hard from 2015 to 2016.[13] At the time of your arrest, you had been working as a labourer for a short time in a furniture factory. You have the offer of a job as a waiter at the Vinh Thuan Restaurant in Deer Park upon your release from custody.[14]

[13]    See exhibit ‘L2’.

[14]    Letter dated 2 July 2018 from Thai Trinh (exhibit ‘L4’).

41     Whilst in custody you have attained qualifications in digital technology in the workplace, traffic control and workplace safety arrangements and you have participated in courses on substance and alcohol abuse.[15]

[15]    See exhibit ‘L5’.

Mitigating circumstances

42     You conducted a two-day contested committal hearing in May 2018, as was your right. It appears the main issue at committal was whether the Crown could establish trafficking in a commercial quantity in your case. You always accepted that you were at least guilty of trafficking ‘simpliciter’. Your matter resolved at the conclusion of the committal hearing to a plea of guilty to one charge of trafficking ‘simpliciter’. Accordingly, I accept that yours is a plea of guilty at the earliest forensically reasonable opportunity.[16]

[16]    Atholwood v The Queen (1999) 109 A Crim R 465, 468 (Ipp J); Cameron v The Queen (2002) 209 CLR 339, 345–6 [20]–[22] (Gaudron, Gummow and Callinan JJ).

43     Your pleas have utilitarian benefit in saving the time and cost of a relatively lengthy trial. They also indicate an acceptance by you of responsibility for your offending conduct and your willingness to facilitate the course of justice. However, whilst you are undoubtedly regretful for the situation in which you find yourself, there is no evidence before me of genuine remorse beyond what is reflected in your pleas. There is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse.[17] Your counsel did not submit otherwise.

[17]    See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).

44     You are a person of otherwise good character, having no prior convictions or findings of guilty. You have no subsequent matters and no matters outstanding. In these circumstances I need give very little, if any, weight to specific deterrence and protection of the community.

45     I accept that you have reasonably good prospects of rehabilitation. You have a good work history since becoming legally permitted to undertake employment in the Australian community. You have undergone further training and education courses whilst in custody.

46     You are currently in custody on remand for the present offence at Ravenhall Correctional Centre. As I earlier indicated, in all likelihood once you have completed the sentence I am about to impose on you, you will be deported back to Vietnam. This is a mitigating circumstance which I must take into account in your favour.[18] The law recognises that the possibility of deportation may be relevant to the hardship that will be felt by an offender, uncertain as to whether at the end of his sentence he will be required to leave Australia and return to his country of origin. Moreover, it is additionally punitive because it destroys the opportunity to settle permanently in Australia.[19] This is particularly harsh in your case because you have a wife and a young child both living in Victoria. I take these matters into account in your favour.

[18]    See Guden v The Queen (2010) 28 VR 288, Konamala v The Queen [2016] VSCA 48 and Da Costa Junior v The Queen (2016) 307 FLR 153.

[19]    Allouch v The Queen [2018] VSCA 244 [39]; Loftus v The Queen [2019] VSCA 24 [79].

47     Exacerbating this situation is the fact that your partner is suffering from clinical depression and clinical anxiety for which she is on medication and is being treated by a psychologist.[20] Moreover, she has a baby and she is lacking the financial and emotional support you would otherwise have been able to offer her. Whilst these circumstances are not exceptional such as to give rise to the principles discussed in cases such as Markovic v The Queen,[21] I accept that they will add to the burden of custody in your case and I take this factor into account in mitigation of penalty.

[20]See the psychological reports in exhibit ‘L3’.

[21] (2010) 30 VR 589.

48     There has been some delay in dealing with your matter, which is no fault of yours.  You have had these proceedings hanging over your heard for some time. No doubt this has caused you some anxiety and has added to the burden of your incarceration up until this time. I have taken these effects of the delay into account in sentencing you.

Parity

49     Parity is a significant consideration in this case in relation to others involved at your level in the syndicate, as well as a need for me to pass a sentence on you which is not unfairly disparate from the other sentences I have passed on members of this syndicate and others caught up in ‘Operation Tropics’.

50     I sentenced Sazimanoski on a commercial trafficking charge arising from this police operation to 4 years’ imprisonment[22] and I sentenced Wicks on a commercial trafficking charge arising from this police operation to 42 months’ imprisonment and on a negligently possess proceeds of crime charge, involving only $1460, to 14 days’ imprisonment. His total effective sentence was 42 months’ imprisonment with a non-parole period of 21 months.[23]

[22]    DPP v Sazimanoski [2018] VCC 973.

[23]    DPP v Wicks [2019] VCC 135 (1^st revision).

51     As I explained in my reasons for sentence in Wick’s case,[24] for reasons apparent from my sentencing remarks in Sazimanoski, I imposed a very lenient sentence on him considering the objective seriousness of his offending conduct, because of circumstances personal to him. This significantly distinguishes his case from yours.

[24] Ibid [49]–[53].

52     Wicks is in a similar position to you. While he faced the more serious charge of trafficking a commercial quantity of cannabis, like you he trafficked 32 kgs of cannabis during a similar period of time. Like you he was a first offender, which I held at his age to be ‘a significant factor’ in his favour.[25]  Like you, in sentencing Wicks, I gave ‘very little, if any weight’ to specific deterrence and protection of the community.[26] Like you, I accepted that he had ‘very good prospects of rehabilitation’ if he remained drug free on release from custody.[27] There were also a number of protective factors present in his case which I accepted reduced the risk of him reoffending.[28]

[25] Ibid [44].

[26] Ibid.

[27] Ibid [45].

[28] Ibid [46].

53     Taouk, who also pleaded to trafficking simpliciter, is distinguishable from you on the basis of his serious and highly relevant prior criminal history; however he was lower down the supply chain, buying cannabis from Sazimanoski, which he on-sold to users at street level.

Application of sentencing principles

54     I have had regard to current sentencing practices in relation to the charge of trafficking in a drug of dependence in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym).[29] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to this offence.

[29](2017) 91 ALJR 1063.

55     It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.

56     Parity is a significant consideration in this case, as also is the need for me to pass a sentence on you which is not unfairly disparate from the other sentences I passed on those caught up in ‘Operation Tropics’.

57     The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.

58     I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.

59     General deterrence is a very important sentencing consideration for the offence charged in charge 11.[30] The offence is prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[31]

[30]    Nguyen 330 [139]–[140].

[31]    Nguyen 331 [141].

60     Whilst just punishment, general deterrence and denunciation must be given primary consideration in the instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community need be given very little weight.

61     In my opinion, you have received a salutary lesson from the detection of your crimes and the consequent criminal proceedings. I accept the likelihood is that you have learned your lesson and you are unlikely to reoffend in the future. Your risk of deportation must also be given weight for the reasons I previously discussed. I accept that you have good prospects of rehabilitation.

62     Nonetheless, trafficking in cannabis at the level and in the quantities you did in this case is a serious crime and your moral culpability is high. Consequently, I am of the view that a sentence of imprisonment with a non-parole period is the only sentence which will give appropriate weight to the purposes for which this sentence is imposed.[32]

[32]    Sentencing Act 1991 (Vic) s 5(4).

63     Your counsel urged me to impose what he described as a ‘straight sentence’, by which he meant a sentence of imprisonment with no non-parole period fixed. I have a discretion to do this, but only where I consider ‘the nature of the offence or the past history of the offender make the fixing of a non-parole period inappropriate’.[33] You have no past criminal history and there is nothing I can detect about ‘the nature of [your] offence’ that would give rise to a proper exercise of this discretion.

[33]    Sentencing Act 1991 (Vic) s 11.

64     Your counsel submitted that your immigration status and the unlikelihood of your being paroled at the completion of any non-parole period I may fix, were reasons for me to exercise my discretion in the manner sought. However, as I pointed out during the plea hearing, in sentencing you for this offence I am forbidden by the Sentencing Act 1991 from having regard to ‘any possibility or likelihood that the length of time actually spent in custody by [you] will be affected by executive action of any kind’.[34] Executive action includes any action the Adult Parole Board might take in respect of you sentence[35] and any action the Commonwealth Department of Home Affairs might take in respect of your immigration status.

[34]    Sentencing Act 1991 (Vic) s 5(2AA).

[35]    See the explanatory detail 1 to Sentencing Act 1991 (Vic) s 5(2AA).

Stand up Mr Le

On the charge of trafficking in a drug of dependence, namely cannabis, (charge 11) you will be convicted and sentenced to be imprisoned for 3 years.

I order that you serve a minimum of 2 years’ imprisonment before becoming eligible for parole.

I declare 604 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct  the fact that declaration was made and its details be noted in the records of the court.

Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a sentence of 4 years’ imprisonment with a non-parole period of 32 months’ imprisonment.