DPP v Vo

[2018] VCC 450

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00954

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON VO

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	22 March 2018
DATE OF SENTENCE:	12 April 2018
CASE MAY BE CITED AS:	DPP v Vo
MEDIUM NEUTRAL CITATION:	[2018] VCC 450

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Buckland	OPP
For the Accused	Mr C Farrington	Stephen Andrianakis & Associates

HIS HONOUR:

Introduction

1Simon Vo, you have pleaded guilty to the following charges contrary to the Drugs Poisons and Controlled Substances Act 1981:

·Charge 1 - Trafficking in a commercial quantity of a drug of dependence contrary to section 71AA, which carries a maximum penalty of 25 years imprisonment;

·Charges 2, 3, 4, and 5 - Trafficking in a drug of dependence contrary to section 71AC, which carries a maximum penalty of 15 years imprisonment; and

·Charge 6 - Possession of a drug of dependence contrary to section 73(1)(c) which carries a maximum penalty of 5 years imprisonment.

2You have also pleaded guilty to related summary charges as follows:

·Charge 8 – Dealing with property suspected of being the proceeds of crime contrary to section 195 of the Crimes Act 1958, which carries a maximum penalty of 2 years imprisonment;

·Charge 9 – Possess prohibited weapon contrary to section 5AA of the Control of Weapons Act 1990, which carries a maximum penalty of 2 years imprisonment; and

·Charge 10 – Possess cartridge ammunition contrary to section 124 of the Firearms Act 1996, which carries a maximum penalty of 40 penalty units.

Circumstances of offending

3A prosecution opening was tendered on the plea which may be summarised as follows:

4At the time of these offences, you Simon Vo were living with Christina Bates at 83A Copernicus Way, Keilor Downs. You and Ms Bates had been in a de facto relationship since July of that year. The property you were living in together was a rental property. Both you and Ms Bates were recorded as tenants of the property. Ms Bates’ daughter Sienna who was aged six at the time, lived with you at the property.

5On 21 November 2016, you and Ms Bates had an argument. Fearing for her safety, Ms Bates called 000 and attended Keilor Downs police station arriving at approximately 9pm. Ms Bates told the police that you had firearms, cash and drugs at the house at 83A Copernicus Way.

6At 1:01 am on Tuesday, 22 November 2016, Senior Constable Scott Sheedy and Sergeant Chris White conveyed Ms Bates to your home where search warrants were executed.

7Soon after entering the address, Ms Bates showed Sergeant White a blue shoebox which was in the garage of the property. The box contained a number of bags, seven of which contained a rock substance later discovered to be cocaine, and six bags which contained a white powder, later discovered to be heroin. The total weight of the cocaine was 181.7 grams which is 60 times the traffickable quantity for cocaine. The total weight of the heroin was 154.8 grams which is 51 times the traffickable quantity of heroin. The discovery of these drugs relate to charges 2 and 3 on the indictment.

8In four locations throughout the house various amounts of methylamphetamine were found. The total quantity of the methylamphetamine that was found in combination was 143.1 grams which is 57 times a traffickable quantity for methylamphetamine. The discovery of the four amounts of methylamphetamine in combination relate to charge 4 of the indictment.

9During the search police also located a total of 11.3 kilograms of 1,4-Butanediol in 13 bottles. Ten of those bottles were located on a shelf in the garage, one was located inside a fridge on the rear veranda, and two were located in the kitchen pantry. A commercial quantity of 1,4-Butanediol is 2.0 kilograms. These facts relate to charge 1 on the indictment.

10Found on top of the fridge located on the veranda, were eight bags of cannabis weighing 3.55 kilograms, which is 13 times a traffickable quantity. These facts relate to charge 5 on the indictment.

11In a walk-in robe of the master bedroom, police located one Suboxone film and three bags of white pills. These had a total weight of 19.2 grams and contained buprenorphine hydrochloride which is a salt of buprenorphine, a drug of dependence. The discovery of these items constitute charge 6 on the indictment.

12Other items located during the search included a blender and plastic jars, a cash counting machine, a notebook containing handwritten notes, a locked grey safe containing a box of assorted ammunition (summary charge 10), three Samurai swords (summary charge 9), a computer hard drive connected to a CCTV system, a large red mechanical pill press device, $2190 in cash (summary charge 8) and various mobile phones. Ms Bates provided police with a Blackberry mobile phone and an Apple iPhone.

Arrest and interview

13On 1 December 2016, you presented yourself at the Sunshine police station and were arrested. You were interviewed and answered ‘no comment’ to all allegations put to you. You consented to a forensic procedure and provided a DNA sample. You were charged and remanded in custody and have remained in custody since.

14Upon review of the contents of the Blackberry mobile phone, police found chains of emails negotiating the purchase of methylamphetamine and MDMA in kilogram quantities. The seized hard drive contained CCTV footage overlooking the driveway of the 168A Copernicus Way, Keilor Downs depict you coming and going from the address numerous times between 20 and 22 November 2016.

15Ms Bates was also arrested and pleaded guilty to one charge of trafficking in a drug of dependence between dates. She too was arrested and interviewed at the Sunshine police station.

16Following the record of interview Ms Bates made a brief statement to police confirming her responses in the record of interview.

17On 7 September 2017, Ms Bates made a further detailed statement in relation to the matters disclosed in her record of interview and first statement, and agreed to give an undertaking to give evidence in your trial.

18In her statements Ms Bates stated amongst other things: that you and Ms Bates lived at the address with her daughter; that there were firearms and amounts of cash at the address; that you spent significant amounts of time in the garage; that people constantly came to the house to buy drugs from you; that you sell Ice, Cannabis and 1,4-Butanediol from the house for money; that she could not account for the financial expenses of the household; that she had seen a large amount of cash in the house in excess of $50,000 and that you own expensive vehicles and property that are not registered in your name.

19At the plea hearing for Ms Bates, the prosecution conceded that she did not have knowledge of the extent of your trafficking. Ms Bates also gave an undertaking on oath at her plea hearing to give evidence against you.

Objective seriousness of the offending

20The charges on the indictment to which you pleaded guilty, reflect trafficking on a single day being 21 November 2016. The indictment contains charges of trafficking 1,4-Butanediol, cocaine, heroin, methylamphetamine and cannabis.  When consideration is given to the items that were located at the house including the various drugs, the items that were found such as weapons and a pill press, together with your activities as described by Ms Bates, it is self-evident that you were running an organised drug dealing business from the house at 168A Copernicus Way, predominantly from the garage at that property.

21I am satisfied that you were involved in a serious drug trafficking enterprise for profit. You drove a Mercedes-Benz vehicle and Ms Bates was provided with a BMW vehicle both of considerable value. You provided cash to Ms Bates in order to pay for household expenses. You were not working nor was Ms Bates.

22Charge 1 is of course the most serious charge as it represents trafficking in a commercial quantity of 1,4-Butanediol. However it was submitted that the commercial return from this drug is relatively low and that this is a matter that can be taken into account in assessing the seriousness of the charge. I will return to this later.

23The fact that you ran your drug trafficking business from a suburban home where you lived with your partner and her young daughter demonstrates the brazen nature of your offending. You also offended in circumstances where you had been recently released from prison after serving a sentence for other drug trafficking offences.

24Therefore, in all the circumstances in my view, your offending represents a serious example of trafficking in drugs of dependence.

Personal circumstances

25You are now 30 years of age. You were born in Perth on 11 November 1987.

26Your parents fled Vietnam and arrived in Australia via Malaysia having been granted refugee status. At the age of two your parents moved to Melbourne where you remained. You have two sisters aged 31 and 28 from your parents union. Your parents separated when you were about seven or eight. Your mother re-partnered on several occasions and you have two half-sisters aged 21 and 13.

27Following your parents separation you remained with your mother. However because of her lifestyle which involved a gambling addiction you were, on a number of occasions, placed in State care. It was submitted that your mother has re-partnered on various occasions with unsavoury individuals exposing you to drug use as a teenager. In fact one partner that your mother was with, supplied you with drugs.

28You were educated at Deer Park primary school up until the time your parents separated. What then followed was attendance at a number of different primary schools including a period in Queensland.

29You attended Kings Park secondary school from Years 7 to 12. It would seem that despite your difficult circumstances you were able to complete school and gained entry into a Liberal Arts course at Victoria University, however you did not complete that course.

30In 2007, you worked for a period of time at a printing company. Unfortunately, because of your increasing drug use, that employment was unable to be sustained. At this point you moved to Western Australia to live with your father however again you were unable to maintain employment due to your drug addiction. You returned to Victoria where you worked for a period of time at Village Cinemas. By this stage however you had already spent some time in custody and you were returned to prison making it impossible for you to continue any employment.

31In 2016, you started a relationship with Ms Bates. You began to live together in July 2016. Ms Bates became pregnant and your son was born in May 2017 while you were in custody for these matters. She supports a relationship between you and your son and it was submitted that the birth of your son has become the catalyst in your motivation to rehabilitate yourself.

32You have had a long history of illicit drug use. You began smoking methylamphetamine at the age of 18 and you have continued to use that drug.  It was submitted that at the time of these offences you were using a significant amount of methylamphetamine in addition to using 1,4-Butanediol in the amount of 20 mls per day.

33In the early part of your detention in relation to these offences you produced a dirty urine screen however in the 15 tests up until the time of the plea the results have been negative and it would seem that you are currently free from your drug addiction and making efforts to remain drug free.

Sentencing considerations

34Mr Farrington, who appeared on your behalf, submitted that in relation to charge 1, trafficking in a commercial quantity of 1,4-Butanediol, consideration should be given to the fact that that substance is not a drug that attracts a large commercial benefit to the trafficker. In support of this submission I was referred to the decision of DPP v Maxwell.[1] There the court having analysed decisions of Pidoto[2] and Adams,[3] concluded that those cases do not suggest that the financial reward anticipated by the offender was irrelevant to sentencing.[4]  Further the court said at paragraphs [29] and [30]:

Ordinarily, of course, it is unnecessary for the prosecution to prove - and it may in any case be difficult or impossible to prove - what the anticipated return for the offender was.  But, on ordinary principles, it is open to a person convicted of involvement in a drug importation to seek to mitigate his/her culpability by establishing on the balance of probabilities that he/she stood to derive little or no benefit personally.

Likewise, in a case such as the present, it must be open to the offender to prove that a commercial quantity of the particular drug imported had a fraction of the wholesale or retail value of a commercial quantity of another drug.  Put another way, by this means the offender seeks to establish that – contrary to the legislative presumption – the importation of a commercial quantity of the drug in question was not ‘truly commercial in nature’ but could only ever have produced a relatively small return.

[1] [2013] VSCA 50.

[2]R vPidoto and O’Dea (2006) 14 VR 269.

[3]Adamsv The Queen (2008) 234 CLR 143.

[4]DPP v Maxwell [2013] VSCA 50 [28].

35In DPP v Bugeja,[5] a sentence of this court, the offender was sentenced in relation to trafficking a commercial quantity of 1,4-Butanediol, in that case 12 litres which is not substantially different from the amount involved here. The amount paid for the drug in that instance was $11,800. 

[5] [2017] VCC 782.

36While there is not a great deal of established case law in relation to 1,4-Butanediol, and it is difficult to make comparisons with other cases, it would seem on balance that the profit to be made in this case from the amount of the drug found in relation to charge 1 was not significant and I take this matter into account. That said, I am mindful of the fact that parliament has determined that a commercial quantity of 1,4-Butanediol is 2.0 kilograms and that you were in possession of 11.3 kilograms of that drug.

37The indictment however, also contains four other charges of trafficking in a drug of dependence relating to cocaine, heroin, methylamphetamine and cannabis (charges 2, 3, 4 and 5). Whilst these charges relate to traffickable and not commercial quantities, what was discovered were not small amounts – cocaine (60 times the traffickable quantity), heroin (51 times the traffickable quantity), methylamhetamine (57 times the traffickable quantity – although I note that the combined purity was quite low) and cannabis (13 times the traffickable quantity). When taken into consideration with the other items that were found in the house, already referred to above, charges 2, 3, 4 and 5 demonstrate and support the conclusion that you were operating a drug trafficking business providing a wide variety of drugs to your customers.

38Mr Buckland who appeared on behalf of the Director of Public Prosecutions, submitted that the offending is of a serious nature and that principles of general deterrence and denunciation assume substantial prominence. In your case because of your extensive prior history involving other drug offences, specific deterrence also must play a part in the sentencing exercise.

39As to other sentencing considerations, I take into account the fact that you have pleaded guilty to these offences. While you ran a contested committal, your plea has saved the State time and money but more significantly, it has avoided the need for witnesses to give evidence at your trial most particularly Ms Bates who gave an undertaking to give evidence against you.

Prospects of rehabilitation

40You have prior criminal history dating back to 2008 in Victoria and 2005 in Western Australia. In November 2013, you were sentenced by this court for trafficking and related offences where you received a two year sentence with a non-parole period of 12 months. The rest of your criminal history corroborates your long history with drugs and related offending.

41It was submitted that the birth of your son has been an important life changing event for you. Because of your offending, you have been in custody and have been unable to play a part in the early part of your son’s life. However it was submitted on your behalf that you do want to be a responsible father and play a part in your son’s life. As such since being in custody you have begun to address your long-term drug problems which motivated you to become involved in this offending. Nevertheless, given your long history with drug use and your long criminal history, your prospects of rehabilitation could only be considered as guarded. It is up to you to demonstrate upon your release on parole that you are committed to changing your life by becoming a responsible father and a contributing member of the community.

Sentence

42Mr Vo please stand.

43Simon Vo, in relation to the charge 1 on the indictment, you will be convicted and sentenced to 3 years and 6 months imprisonment.

44In relation to charges 2, 3 and 4 you are convicted and sentenced to 2 years imprisonment.

45In relation to charge 5 you are convicted and sentenced to 18 months imprisonment.

46On charge 6 you are convicted and sentenced to 8 months imprisonment.

47I direct that 3 months of charges 2, 3 and 4 and 2 months of charge 5 be served cumulatively on each other and on charge 1.

48That makes for a total effective sentence of 4 years and 5 months imprisonment. I direct that you serve a period of 3 years before becoming eligible for parole.

49Pursuant to s 18 of the Sentencing Act 1991, I declare that 497 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

50In relation to summary charge 8, dealing with property suspected of being the proceeds of crime, you are convicted and sentenced to 3 months imprisonment.

51In relation to summary charge 9, possessing a prohibited weapon, you are convicted and sentenced to 3 months imprisonment.

52In relation to summary charge 10, possession of cartridge ammunition, you are convicted and fined the sum of $800.

53Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 6 years with a non-parole period of 4 years.

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