R v Dao

[2023] NSWDC 351

District Court

New South Wales

Medium Neutral Citation:

R v Dao [2023] NSWDC 351

Hearing dates:

31 August 2023

Date of orders:

31 August 2023

Decision date:

31 August 2023

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

1. Offender convicted of the offence of supply prohibited drug indictable and commercial quantity, being sequence 9. Offender sentenced to a term of imprisonment of two years, commencing 31 August 2023.

2. The imprisonment term to be served by way of an Intensive Corrections Order.

Catchwords:

Supply Prohibited Drug – Prior Criminal History – Breach of Intensive Correction Order – Time in Custody

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Crimes Act 1900, s 193

Drug Misuse and Trafficking Act 1985, s10(1)

Road Transport Act 2013 (NSW),s 54(3)(a)

Crimes (Sentencing Procedure) Act 1999, ss 3(A), 66(1) and 66(2)

Cases Cited:

Callaghan v R (2005) 160 A CRIM R 145

Hutchen v R [2015] NSWCCA 101.

Melikian v R [2008] NSWCCA 156

R v Bristow (1982) 7 A Crim R 36

R v Dang [2005] NSWCCA 430

R v MacDonnell [2002] NSWCCA 34

R v Sarikaya NSWCCA, 21 June 1985 (unreported)

Category:

Sentence

Parties:

Rex (Crown)
Tri Huu Dao (Offender)

Representation:

Counsel:
C Shaw (Crown)
R Steward (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
AKN & Associates (Offender)

File Number(s):

2022/238455

Publication restriction:

None

JUDGMENT: EX TEMPORE

1. HIS HONOUR: The Offender Tri Dao was born on 26 September 1984. He is currently 38 years of age and was 37 years old at the time of the offending.

2. The Offender is before the Court to be sentenced in relation to one set of offending which occurred on 11 August 2022. I set out below the offence the subject of the charge, together with the Form 1 matter.

Offence

3. Sequence 9, supply prohibited drug indictable in commercial quantity T1 (135.65 grams of methamphetamine) s 25(1) Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 15 years imprisonment and 2000 penalty units.

Form 1

4. The Offender has also asked me to take into account a series of related offences, all of which occurred on 11 August 2022 on Form 1. They are:

• Sequence 1, deal with property proceeds of crime (less than $10,000) dollars pursuant to s 193 Crimes Act 1900, for which the maximum penalty is 3 years imprisonment.

• Sequence 6, possess prohibited drug (1.05 grams of methamphetamine) s 10(1) Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 2 years imprisonment and/or 20 penalty units.

• Sequence 7, possess prohibited drug (0.33 grams of ketamine) s 10(1) Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 2 years imprisonment and/or 20 penalty units.

• Sequence 8, possess prohibited drug (11.6 grams of butanediol) s 10(1) Drug Misuse and Trafficking Act 1985 (NSW), for which the maximum penalty is 2 years imprisonment and/or 20 penalty units.

• Sequence 11, drive motor vehicle while licence suspended (section 54(3)(a) Road Transport Act 2013 (NSW), for which the maximum penalty is 12 months imprisonment and/or 50 penalty units, together with 12 months automatic licence disqualification.

5. I understand the approach that I should adopt to those matters on the form 1 is that they are taken into account with a view to increasing the penalty that would otherwise be appropriate for the particular offence. I do this by giving greater weight to two elements that must always material to the sentencing process, that is the elements of personal deterrence and retribution.

6. For the purpose of my consideration of the appropriate sentence for the offence that is before me. I will take into account the matters set out in the form 1 document. But I also understand and accept the Offender’s submissions that all of the offences can only really be seen sensibly as part of a single act of criminality, and that to try and differentiate between the various matters the subject of the various charges, would be, in my opinion, entirely artificial and inappropriate.

The plea of guilty

7. The Offender entered a plea of guilty for the offence on 24 May 2023 at Burwood Local Court, which was the first reasonable opportunity for him to do so. As such the Offender is entitled to the maximum benefit for the utilitarian value of the plea of 25% and I would allow him that benefit when determining the totality of an appropriate sentence.

Time in custody

8. The Offender who was arrested on 11 August 2022 has remained in custody since that date. That is because he has been bail refused for these offences since that time but his custody is by no means solely referable to the present charges.

9. This is because the Offender committed a series of offences of a very similar nature in either 2009 or 2020, for which he was sentenced by Hanley DCJ on 11 August 2022 to a period of imprisonment of three years to be served in the community by an Intensive Corrections Order subject to conditions which unsurprisingly included that he not commit any offence, he stay drug free and that he attend various counselling and rehabilitation programs.

10. The State Parole Authority, as a consequence of the offences that are before me revoked his ICO and as a consequence, he has been in custody since 11 August 2022.

11. That time in custody, whilst it is not solely referable to the present matters is relevant to my consideration as to an appropriate sentence in accordance with principles found in cases like Callaghan v R (2005) 160 A CRIM R 145. There is a discretionary matter for me to evaluate as to how much of that custody should be taken into account when assessing an appropriate sentence in this matter, see for example, Hutchen v R [2015] NSWCCA 101.

12. As has been submitted by the Offender, there are a number of ways of looking at this, but it seems to me the most rational is to accept the proposition that the primary cause of the custody since 11 August 2022 was the offences before me for the simple reason that, but for those offences, the Offender would not have been in custody.

13. Accordingly, when I come to assess an appropriate sentence, I will take into account a significant proportion of the time that the Offender has spent in custody since 11 August 2022.

Aggravating factor

14. As I have already alluded to there is in this case a significant aggravating factor to be considered. At the time of the offending the subject of the charges, the Offender was serving a term of imprisonment by way of an Intensive Corrections Order and in committing the offences that are before me, he breached the terms of that order which at a series of levels of my consideration is obviously a relevant factor.

The agreed facts

15. Having said all of that by way of introduction, I now set out the agreed facts which give rise to the matters before me. They are in summary:

16. At approximately 9.20pm on 11 August 2022 the Offender was seated in the driver's seat of a white Mitsubishi Triton in a parking spot in Burwood.

17. The Offender drove the vehicle onto John Street, Burwood, where uniform police in an unmarked vehicle stopped him for a traffic matter.

18. The Offender provided his driver's license to police. They conducted checks which revealed his licence was suspended. (Sequence 11)

19. The Offender was asked about his licence suspension and unpaid fines and he replied, “Yes. I fixed this with and paid them but after I was stopped before.” His licence was suspended from 4 May 2022 to 17 August 2022.

20. The police then searched the vehicle and located in the driver's side door a bag containing drug paraphernalia.

21. A black backpack was removed from the rear driver's side window of a vehicle, the Offender admitted the bag and contents were his.

22. Inside the bag was a Tupperware container containing a large quantity of a clear crystal substance later identified as 132.92 grams of methamphetamine (sequence 9). The Offender was arrested and cautioned and immediately made admissions that he owned the bag removed from the vehicle and that the substance contained in the Tupperware was ice.

23. The following items were also located in the black backpack owned by the Offender. These were seized by the police and later analysed as follows;

24. Plastic container with purple lid containing 3.73 grams of methamphetamine (sequence 9).

25. Resealable plastic bag containing brownish powder being 0.21 grams of 3,4-methylenedioxymethamphetamine (sequence 6).

26. Clear bag containing smashed blue tablets and powder being 0.84 grams of 3,4-methylenedioxymethamphetamine (sequence 6).

27. Small glass container with a crystal substance being 0.33 grams of ketamine (sequence 7).

28. Four glass vials of clear liquid containing 11.6 grams of 1.4-butanediol (sequence 8).

29. A plastic bag was located in the passenger side seat of the vehicle that contained $9,600 in Australian currency. The Offender concedes for the purpose of the matter before me that he had those moneys in his possession as they were located in the vehicle.

30. Following the seizure of the items in the bag, the Offender was conveyed to Burwood Police Station, he later participated in a forensic procedure by way of buccal swab. He declined to participate in an interview with the police.

Objective seriousness

31. I turn now to the objective seriousness of the matters.

32. In relation to offences of this kind, it is established that the following are relevant considerations. First the role of the Offender and level of participation (see for example, R v MacDonnell [2002] NSWCCA 34 at [33] and Melikian v R [2008] NSWCCA 156 at [42]). Secondly, the quantity and purity of the prohibited drugs, although these may not be the principal determinative factor – see, for example R v Dang [2005] NSWCCA 430 at [24]. And thirdly, other factors such as the number of occasions on which the drug was supplied and the planning involved, again see Dang at [24].

33. I have set out the facts upon which I will proceed above.

34. There is no evidence of the Offender’s role in in the hierarchy of the drug supplier, and or his level of participation on any other occasion, other than the date of his arrest. The quantity of drugs, according to the Crown, is described as the middle-range for an offence of this kind. The Crown has submitted that this offence falls within the mid-range of objective seriousness.

35. The Offender contends that he is best described as a courier who was involved in the supply of drugs, not for commercial gain, but to feed his reoccurring drug habit, and therefore contends that the objective serious of the offence falls below the mid-range of objective seriousness.

36. I have to say that I find the difference between a description “within the mid-range” and “below the mid-range” illusory and unhelpful.

37. I propose to proceed upon the basis that the Offender was involved in the supply of drugs at a low level as a courier and had no parts to play in the organisation of the criminal enterprise and was not seeking to increase his wealth as a result of his activities, rather he was seeking to raise money so as to use to spend on drugs himself.

38. As far as the proceeds of crime money is concerned, as I have said, I consider this to be entirely wrapped up in the criminality of the supply charge. But if I had to consider it as a standalone matter, I would accept the Crown’s submission that it is in the low-range of objective seriousness for offences of this kind.

39. As far as the other three offences of possessing various prohibited drugs, I generally accept the Crown’s submissions that each of those offences is within the mid-range of objective seriousness, although some are more towards the upper end of that mid-range and some more towards the bottom. Again, I do not find this a helpful process because, as I have said, it seems to me that all of the criminality ought to be considered together.

40. As far as the drive motor vehicle whilst licence is suspended, the Crown has submitted that this is in the lower end of subjective seriousness. Most certainly, that is right if one looks at that offence in the context of the other offences. But nonetheless, as far as traffic offences are concerned, it is a tolerably serious offence.

Aggravating / mitigating factors

41. Dealing then with the s 21A aggravating and mitigating factors that can be identified, there is obviously the aggravating factor of the Offender’s prior criminal history, which I have identified, together with the fact that he was acting in breach of his conditional liberty at the time of these offences, and because drug supply is inherently dangerous to the public, was acting in a way that showed a disregard for public safety. All of those matters are identified by the statute as aggravating factors and I will take them into account as such.

42. There are, however, also mitigating factors, which I will now seek to identify. For reasons I will come to, I am satisfied that there is a reasonable prospect that the Offender is unlikely to reoffend and that he has reasonably good prospects of rehabilitation. The Offender has shown considerable remorse, guilt, and insight into his offending, and seems to, in my judgment, have a clear understanding as to why he reoffended. Again, I will come to this shortly.

43. He has provided evidence, which I accept, that he accepts responsibility for his actions and has acknowledged the injury and damage for supplying drugs for use by other people and cause. And as I have said, he pleaded guilty to the offence at the first possible opportunity. Moreover, as the agreed facts disclose, he admitted his guilty immediately to the police.

The Offender’s subjective case

44. Turning then to the subjective case of the Offender. I have before me a report of David Green, psychologist, dated 25 August 2023. To say it is comprehensive would be to do it a disservice. It is extremely lengthy and detailed.

45. Mr Green firstly provides evidence of statements of contrition, remorse, and insight made to him by the Offender, which Mr Green accepts as genuine. He also recounts the Offender’s history with drugs, dealing first with what led up to the first offence, the subject of the Intensive Corrections Order sentence by Hanley SC DCJ, which was, in short, that he was introduced to Ice by a friend, became addicted, and was asked by a friend to hold a quantity of illicit drugs for him, which he agreed to do, which led to his arrest and sentencing.

46. Since then, as part of the terms of the ICO, or on his own initiative, the Offender has made significant attempts which, in part, have been successful, to get himself drug-free. He attended drug and alcohol counselling at the St George Hospital Drug and Alcohol Services facility. He entered the GROW residential program at Hodgkin Park. He participated in the Relapse Prevention Program run through Odyssey House. It seems some of these programs were difficult for him because they were being conducted during the COVID pandemic, and I get the impression that large amounts of the sessions might have been over Zoom, which I could imagine would not have been nearly as satisfactory as in person.

47. However, it is important to notice, and I give weight to the fact that the Offender, on the evidence before me, did not use Ice from the time of his arrest in 2019 until a couple of weeks prior to his arrest for the matter that is before me. Why then did he start using ice and dealing in drugs after such a long period of abstinence? It would seem that, firstly, he was not at the time being supervised at all by any drug counsellor or Community Corrections. Second, his relationship with his partner underwent significant stress as she had a miscarriage, which seems to have caused the Offender, who has had a long history of mental health issues, to go into some sort of spiral, which led to his relapse, which in turn led to the offending.

48. Mr Green summarises his opinion on the 25th page of his report as follows, and I quote:

“He (the Offender) was introduced to ice when he was 15 years of age and has had periods in his life where he has taken ice, most often when it was given to him by others wanting to advantage themselves at his expense. He has been dependent upon ice. He desperately wanted to have a family with his partner, but she miscarried. The miscarriage was traumatic, his partner was highly distressed, and he interpreted the miscarriage as the loss of their opportunity to have children. He was in a highly distressed state following the miscarriage, and two weeks later he was offered ice at a party. He had been three years without taking ice and had a false sense of confidence that he could take it as a one off. He relapsed, became dependent upon it and involved himself in this offence. It is my opinion he has benefited from the counselling he has done in the past, but I would like him to consult a psychologist in private practice, whereby he can return to see the psychologist when he faces crises in his life. It is my opinion that if the risk of relapse is managed appropriately, his risk of reoffending would be ‘low’.”

49. There is a Sentencing Assessment Report of Talia Cable dated 21 August 2023, wherein Ms Cable, having outlined the Offender’s history, statements of contrition and remorse largely consistently with what Mr Green has said, assesses the prospect of the Offender reoffending at medium, and has suggested a supervision program, which Community Services would be prepared to supervise. She has also assessed the Offender as suitable to undertake community services work.

The purpose of sentencing

50. Section 3(A) of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes of sentencing and the matters which the Court needs to take into account when considering an appropriate sentence. They include specific deterrence, general deterrence, protection and protection of the community.

51. It has been repeatedly stressed in the Courts of this state that when sentencing for this type of offence, general deterrence is a weighting factor, see for example R v Bristow (1982) 7 A Crim R 36, R v Sarikaya NSWCCA, 21 June 1985 (unreported).

52. Specific deterrence is applicable where an Offender has a prior criminal record which manifests a continued attitude of disobedience such that more weight should be given to retribution, personal deterrence or protection of the community.

Consideration

53. In considering an appropriate sentence I take into account the following;

1. The Offender appears to me to be, other than the offences to which I have referred in these reasons, to be of good character and a reasonably productive member of society. He has a supportive family and ongoing employment in the family business.

2. There is a prior criminal history, but I do not think in all the circumstances, it manifests any attitude of disobedience of the law or is something that I will give too much weight to. The reason for that is the history of criminality of the Offender strikes me as being entirely as a result of his drug addiction. The history demonstrates what common sense would probably dictate in any event, that the reason the Offender breached the earlier ICO and the reason he has reoffended is the same reason that he offended in the first place, that is that he has a terrible addiction to ice.

3. His prospects of rehabilitation in the sense of his prospects of not breaching the criminal law in the future are to my mind, entirely wrapped up with his prospects of becoming drug free. I am aware and take into account that addiction to drugs is just that, it is an addiction, and it is very difficult for people, no matter how hard they try, to become drug free. The fact that the Offender has tried and was successful for nearly three years before falling from grace is obviously not a positive matter, however, it is by no means unusual. There are many people in our society who, despite a number of attempts resulting in failure, ultimately have managed to get themselves free of drugs and become more productive members of the community.

1. I also take into account the 385 days the Offender has already spent in custody, although it would be wrong for me to allocate all of that time for this offence, but I do take into account when coming to an evaluative judgment as to an appropriate penalty a large portion of that time. I have also taken into account the undisputed fact that he has been the subject of at least one violent attack whilst in custody. I have already said that I will take into account the 25% discount that is mandated by the statute, and I also give significant weight to what I think is real contrition and remorse and insight by the Offender, mostly because to my mind, the insight makes me more confident that I might otherwise be in his prospects of rehabilitation, which as I have said, and at the risk of repetition, are entirely wrapped up with the prospects of him becoming drug free.

54. As I said, the Offender is currently in custody, subject to the jurisdiction under the control of the State Parole Authority, so that absent a positive order in his favour by that Authority, he will remain in custody until 8 April next year.

Section 5 threshold

55. Notwithstanding the fact that I am prepared to acknowledge that a large portion of the time the Offender has spent in custody to date should be allocated to this offence and seen as punishment for this offence, I have formed the view that the threshold imposed by s 5 of the Act has been crossed, and the only appropriate punishment for the Offender is a term of imprisonment.

Decision

56. Taking into account all of the matters I have mentioned, I think an appropriate term of imprisonment is a fixed term of two years, commencing today.

57. The next question becomes whether that term of imprisonment should be served in gaol or served in the community, pursuant to an Intensive Correction Order.

58. I am required to consider whether such an order would imperil the safety of the community (s 66(1)) of the Crimes (Sentencing and Procedure) Act 1999 and if it would more effectively address the Offender's risk of reoffending (s 66(2)) of the Act.

59. For the reasons I have already given, it should be obvious that it is my view that any period that the Offender can spend working constructively on trying to beat his drug habit will ultimately be the most effective method of reducing his risk of reoffending.

60. The Offender has made arrangements (and at the financial cost of his family) to enter into a residential drug and alcohol rehabilitation program conducted by Connect Global Limited at its facility at Swan Bay in New South Wales.

61. That program is for a period of between six to 12 months. My understanding being it is up to the people who run the program to determine how long a person spends in that program.

62. If the Offender had been in such a program prior to sentencing, because it involves a deprivation of the person's liberty, it would undoubtedly have been taken into account as a period of quasi‑custody.

63. That being said, it seems to me that the best thing for this Offender and the community is for him to enter that program as soon as is practicable.

64. Of course, if he remains incarcerated until April next year, he will be unable to make use of the space of the position that is available for him commencing on 14 September this year. However, that is a matter over which I have no control but is perhaps something that the State Parole Authority will take into account if and when they consider his ongoing status, consequent on his earlier sentence.

65. The other conditions I intend to impose are that the Offender remain drug free and that he submit himself to the supervision of the Community Corrections Office, and take part in a program along the lines set out on p 4 of the report of 21 August 2023. Mr Dao, can you hear me?

OFFENDER: Yes, your Honour.

Orders

1. HIS HONOUR: I convict you of the offence of supply prohibited drug indictable and commercial quantity, being sequence 9, and have taken into account the five offences listed on the form 1. For the sequence 9 offence, I sentence you to a term of imprisonment of two years, commencing today.

2. I make an order that that term be served by way of an Intensive Corrections Order. The conditions of which are as follows;

1. That you are to be of good behaviour and must not commit any offence;

2. You must submit to the supervision of a Community Corrections officer, and undertake any supervision plan that officer thinks appropriate;

3. You are to undertake the next available full-time residential rehabilitation program conducted by Connect Global Limited upon your release from custody;

4. You are not to take any illicit drugs.

Mr Dao, I think I am required under the statute to explain to you the consequences of breaching the conditions of the order I've just made.

OFFENDER: Yes.

HIS HONOUR: I should not need to do that, because I think you know full well from experience what the consequences are. It is why you are in gaol. You have experienced them. If you cannot maintain your drug free status, or if you breach the terms of any of the programs that you become part of, you will be sent back to gaol. In a way, the price of an intensive corrections order is that there is no parole period set, so you are then in the hands of the State Parole Authority, like you are now, which, of course, is a very bad, bad situation.

So, can I just make it as clear as I can to you that what I have done today could perhaps be described as a lenient sentence. I want to give you another opportunity to get off drugs. This is probably, though, your last opportunity. So, please don't find your way back into the criminal justice system, and please stick with the conditions that I just imposed.

OFFENDER: Yes, your Honour.

HIS HONOUR: Do you understand?

OFFENDER: Yes, sir. Thank you.

Decision last updated: 01 September 2023