R v Duong

[2018] NSWDC 447

District Court

New South Wales

Medium Neutral Citation:	R v Duong [2018] NSWDC 447
Hearing dates:	6 August 2018
Date of orders:	28 September 2018
Decision date:	28 September 2018
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	See [74]
Catchwords:	CRIME – SENTENCE – guilty plea – drug supply – Form 1 matters – history of drug use – questions of rehabilitation
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	R v Henry (1999) 46 NSWLR 346 R v McNaughton (2006) 66 NSWLR 566
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Thien Duong (Offender)
Representation:	Counsel: Ms Lin (Offender)   Solicitors: ODPP (Crown) Legal Aid (Offender)
File Number(s):	2017/377544
Publication restriction:	None

REMARKS ON SENTENCE

INTRODUCTION

1. The Offender appears before the Court for sentencing after pleading guilty to the charge on the Crown Sentence Summary, namely supply prohibited drug, being 37.17 grams of heroin, in breach of s25(1) of the Drug Misuse and Trafficking Act 1985. The offence carries a maximum penalty of 15 years imprisonment and/or 2,000 penalty units, which is equivalent to $220,000.00. There is no standard non-parole period. It is a serious offence and one which causes great concern and harm to the community.

FORM 1 or section 166 matters

2. There are an additional five matters on a Form 1.

3. In the present matter, the following additional charges appear on the Form 1:

1. possess a prohibited drug, being 0.87 grams of methylamphetamine, in breach of s10(1) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of 2 years imprisonment and/or a fine of 20 penalty units;

2. possess a prohibited drug, being 4 Oxycontin pills, in breach of s10(1) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of 2 years imprisonment and/or a fine of 20 penalty units;

3. possess a prescribed substance, being 3 Diazepam pills, in breach of s16(1) of the Poisons and Therapeutic Goods Act 1966, which carries a maximum penalty of 6 months imprisonment and/or a fine of 20 penalty units;

4. possess a prohibited drug, being 0.02 grams of cannabis, in breach of s10(1) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of 2 years imprisonment and/or a fine of 20 penalty units;

5. deal with property proceeds of crime value of property less than $10,000, being $3275, the suspected proceeds of crime, in breach of s193C(2) of the Crimes Act 1900, which carries a maximum penalty of 3 years imprisonment.

4. I have taken into account these matters in determining the sentence

procedural history

5. The offending was committed on 13 December 2017 and the Offender was arrested and charged on this date.

6. On 30 May 2018, the Offender was committed for sentence in the District Court after pleading guilty. This was at a relatively early stage of these proceedings which will be taken into account in assessing the utilitarian value of the guilty plea.

7. The Offender has been in custody for this matter from 13 December 2017 until 31 May 2018 and from 6 August 2018 until now.

the evidence on sentence

8. The Crown relied upon the following material at the sentence hearing:

1. the Crown Bundle (Exhibit A);

2. the Pre-Sentence Report (Exhibit B);

3. a further Pre-Sentence Report (Exhibit C); and

4. Submissions on Sentence (MFI 1).

9. The Offender relied upon the following material:

1. email from Daniel Betteridge, Assessments and Admissions Officer from the Salvation Army dated 2 August 2018 (Exhibit 1);

2. completion of detoxification letter from Fairfield In-Patient Withdrawal Services, dated 13 July 2018 (Exhibit 2);

3. a letter from Margaret Noonan, COO at Odyssey House, dated 26 June 2018 (Exhibit 3);

4. the Offender’s bail conditions (Exhibit 4);

5. the Offender’s Submissions (MFI 2);

6. a Comparative Cases Document (MFI 3); and

7. sentencing statistics (MFI 4).

10. Additionally, when the matter was last before the Court on 6 August 2018 the Offender was called to give evidence and was the subject of cross-examination.

the agreed facts

11. The Statement of Agreed Facts provides as follows:

12. On Wednesday, 13 December 2017, police officers in an unmarked vehicle observed suspicious activity occurring in the car park at the Bonnyrigg Shopping Centre. The police formed a suspicion that three vehicles were involved in the supply of prohibited drugs. As a result, the Offender’s car was followed when it left the carpark and stopped a short time later.

13. Police approached the driver’s side of the vehicle and introduced themselves to the Offender. The officers informed the Offender they had formed a suspicion that the Offender might be in possession of prohibited drugs.

14. The officers searched the Offender’s vehicle and located a number of plastic bags containing blocks of white substance and small different coloured water balloons containing powder within the driver’s door.

15. The officers searched the Offender. Also found within the vehicle were fifty-seven (57) $50 notes, twenty-one (21) $20 notes, and one $5 note, totalling $3,275 in Australian currency, and a mobile phone.

16. The Offender was placed under arrest by Senior Constable Hazleton and cautioned. Upon questioning, the Offender denied knowledge of the currency, the prohibited drugs and the mobile phone.

17. The exhibits retrieved during the searches were conveyed to Fairfield Police Station. The contents of the bags were searched and the following was found:

1. Two larger resealable plastic bags and one large knotted plastic package containing 28.01 grams of heroin;

2. Three smaller knotted plastic packages containing 2.86 grams of heroin;

3. Seventeen balloon-wrapped foil packages containing 2.49 grams of heroin;

4. Four further knotted plastic packages containing 3.81 grams of heroin; and

5. Three resealable plastic bags containing 0.87 grams of methylamphetamine.

18. The above comes to a total of 37.17 grams of heroin and 0.87 gram of methylamphetamine.

19. The mobile phone was examined by police. Discovered within the ‘images’ folder of the mobile phone were a number of photos of ‘tick lists’. Also found were a number of photos of the Offender and his family.

20. Senior Constables Dunn, Holbutt and Breen then attended the Offender’s home at 55A Wyong Street, Canley Heights, where they conducted a search of his bedroom. During the course of that search, the police discovered 2 Oxycontin pills, 3 Diazepam pills, and 0.02 grams of cannabis.

OBJECTIVE FACTORS

Generally

21. A predominant factor relevant to the sentence is, of course, the objective seriousness of the offence. It is not, however, necessary nor indeed always possible to articulate a determination by placing the offence along a hypothetical range. It nevertheless remains the task of the Court to undertake an evaluative assessment of the objective seriousness of the offence.

22. The starting point is the legislative guideposts which I have already identified.

23. Next, one has regard to the particular circumstances of the offending in assessing the overall criminality.

24. The Crown submits that due to the amount of drugs being involved, being over seven times the indictable quantity, the seriousness is just below the mid-range.

25. It is submitted on behalf of the Offender that the objective seriousness was about the same, that is just below the mid-range, although it was urged upon the Court that it was not open on the evidence to find supplying to a substantial degree.

26. The circumstances which exist here demonstrate and I, accordingly, find that the objective seriousness falls just below the mid-range of offending of this type.

27. The Court may also have regard to any aggravating or mitigating circumstances, particular to the Offending and the offending. The former to be proven beyond reasonable doubt and the latter on the balance of probabilities.

28. The aggravating factors which that are relevant and exist here include:

1. the Offender has an unfortunate record of previous convictions, which I will turn to in a moment; and

2. the offending was committed for the dual purpose of financial gain and also to fund his own drug habit.

29. The mitigating factors that exist here and are relevant to this exercise include:

1. the remorse shown by the Offender; and

2. a plea of guilty entered by the Offender at a relatively early time.

THE SUBJECTIVE CASE

30. The Offender is 40 years of age, soon to be 41.

31. There was no documentary evidence submitted in this matter concerning the Offender’s upbringing, education, employment history or psychiatric condition. He did, however, give sworn evidence in Court.

32. The Offender reported that he first started using drugs at the age of 15 with marijuana, progressing to cocaine and later heroin. At this point in time the Offender’s parents separated and at 17 years of age the Offender stated that he left home and lived on the streets, where he recalled being robbed and assaulted on a number of occasions. After a year living on the streets the Offender moved back home to live with his father whom I note is in Court again today.

33. The Offender recalled that after finishing his Higher School Certificate, he was employed in a number of jobs, including in the real estate industry and in fast food restaurants. The majority of his employment has been doing odd jobs for his father in a clothing manufacturing business.

34. Up until the time of the subject offending, the Offender recalled that he was using approximately a gram of heroin per day. When the Offender was granted bail by the Supreme Court on 31 May 2018, the Offender attended Odyssey House for a number of weeks. There was some confusion over the circumstances in which he left Odyssey House and the treatment which he obtained whilst an impatient at Odyssey House. It appears indisputable that he self-discharged from Odyssey House before later attending a detox program at Corella Lodge, for a period of eight days. He resided at Corella Lodge from 30 July 2018 to 6 August 2018, the date upon which his bail was revoked.

35. There was a curious gap in the history after the offender left Odyssey House. He told the Court that he told the staff that he was leaving and they would ring the police to inform them of that fact. Whether or not that occurred is unknown. Whilst at Odyssey House he was in breach of his reporting obligations imposed as a condition of bail by the Supreme Court. He told this Court that he was not aware of the fact that he had to report.

36. He said that on the first day after leaving Odyssey House he started making enquiries about other rehabilitation programmes. He said that from 18 June 2018, when he left Odyssey House, through to 5 July 2018 when he entered Corella House, he was making enquiries on a daily basis. The curiosity arises by reason of the evidence about which the offender was cross-examined on the last occasion: he told the Court that he was living with his father for the period from 18 June to 5 July, although I note that police attended the father’s house looking for the offender and he was not then present. I am also aware of the fact that on 21 June 2018 Community Corrections were told by the offender’s father that he was never aware of his son’s departure from Odyssey House.

37. There appears to be a period of time, albeit short, in which the whereabouts of the offender were unknown following his self-discharge from Odyssey House.

38. I have also had regard to the both Pre-Sentence Reports (Exhibit B and C). The first report noted that when Community Corrections contacted his father, his father was not aware that the offender had exited the programme at Odyssey House and contact made between Community Corrections and New South Wales Police indicated that the offender was not complying with his bail conditions.

39. The second Pre-Sentence Report is more informative as to the subjective matters arising in this case. It was prepared following an interview with the offender, as well as contact with the offender’s father, at which time an interpreter was used to ensure translation. There was also contact with the custodial officers of the offender’s residential unit.

40. The second Pre-Sentence Report refers to a history of gambling and drug addiction. When visited in prison he was polite and respectful to the person preparing the report although at times he was said that he can become embroiled in inappropriate activities with other inmates. Precisely what is meant by that is not clear from the report.

41. There is reference also to the fact that the offender’s father has confirmed that he is supportive of his son and will assist him upon discharge from prison. The Pre-Sentence Report author noted that the offender is single, not responsible for any dependents and depicted a fairly isolated lifestyle lacking in pro-social socialisation, which I take to mean positive influences. There was history of bouts of depression for which treatment was not sought. There is also a history of gambling to which I have referred as well as a history of drug use to which I have already made reference.

42. The offender’s attitude to offending, recorded in the Pre-Sentence Report, was that he accepted full responsibility for his offending and he had told the author that he committed the offences in order to fund his drug and gambling habits. He expressed a willingness to undertake targeted interventions and to comply with Community Corrections should a supervision order be imposed. He was assessed as being at medium risk of reoffending.

43. Ms Deller made a number of suggestions as to management strategies moving forward which seem appropriate but would require compliance. The offender’s self-discharge from Odyssey House raised doubts about his actual willingness to engage in rehabilitation and compliance with any programme which may be imposed upon him.

44. I have also had regard to an email from Daniel Betteridge, the Assessments and Admissions Officer from William Booth House, dated 2 August 2018 (Exhibit C). That note confirmed that the offender had been assessed and approved for admission into William Booth House Detox and Rehab Program which is known as the Bridge Program. At that time an expected admission date of 13 August 2018 was foreshadowed with a length of treatment of between three and nine months.

45. Counsel for the Offender also tendered a Completion of Detoxification letter from the Fairfield In-Patient Withdrawal Services dated 13 July 2018 (Exhibit 2), confirming that the Offender completed an In-patient Detoxification Program at Fairfield Drug Health Services between 5 July 2018 and 13 July 2018.

46. I have also had regard to a bundle of documents produced by Odyssey House (Exhibit 3), which enclose case notes of the Offender’s stay in that programme. The case notes are generally unremarkable, with the Offender reported of presenting with common withdrawal symptoms.

47. Previous Convictions

48. Previous convictions is a matter to which the Court can have regard as an aggravating factor under s21A(2)(d) of the Crimes (Sentencing Procedure) Act in determining what an appropriate sentence would be for the Offender.

49. In the matter of R v McNaughton (2006) 66 NSWLR 566 the Court of Criminal Appeal sat as a bench of five to determine how a criminal record should be used by a sentencing judge. They espoused seven propositions in that judgment to which I had regard in considering the prior convictions in this case.

50. Here, the previous offending includes the following:

1. supply prohibited drug, having occurred on 6 July 1999. The Offender received a fine;

2. supply a prohibited drug, having occurred on 22 September 1999. The offender received a periodic detention period of 16 months;

3. possess prohibited drug, having occurred on 17 April 2000. The Offender received a fine;

4. possess prohibited drug, having occurred on 8 September 2000. The Offender received a term of six months imprisonment;

5. possess prohibited drug, having occurred on 8 August 2005. The Offender received a fine;

6. supply prohibited drug, having occurred on 31 July 2008. The Offender received a term of imprisonment of 4 years, with a non-parole period of 1 year and 11 months;

7. supply prohibited drug, having occurred on 19 May 2009. The Offender received a term of imprisonment of 1 year and 11 months;

8. supply prohibited drugs on an ongoing basis, having occurred between 1 October 2012 and 30 October 2012; and

9. supply prohibited drug, 2 counts having occurred on 8 November 2012. For the last two offences, the Offender received a term of imprisonment of 5 years, with a non-parole period of 3 years and 4 months.

51. Remorse

52. Evidence of contrition or remorse in respect of the subject offending is also a relevant consideration and of course the Offender’s history of offending suggests that he has an ongoing problem and that the genuineness of any remorse may be questionable. Remorse is but one feature of post-offence conduct upon which an offender may seek to rely as a matter which has the potential to mitigate penalty. Ordinary human experience would suggest that it is only natural that a person who has committee some misdeed would wish to make the most favourable impression possible in seeking to make amends for it.

53. Here, the evidence of remorse is the plea of guilty in the Local Court and the evidence given by the Offender in the course of the sentencing hearing.

54. History of Addiction

55. There is a history of addiction of course which should be factored into the exercise of the Court’s sentencing discretion; in particular in determining whether the Offender should spend or part or all of the sentence in the community. The evidence clearly established that the offender has been addicted to illicit drugs since his teenage years, specifically the drug heroin.

56. Drug addiction, of course, is not a mitigating factor but a relevant sentencing consideration which may bear upon both the objective criminality as well as being a relevant subjective factor. As stated by Spigelman CJ in R v Henry (1999) 46 NSWLR 346 at [185] self-induced addiction at an age of rational choice establishes a moral culpability for the predictable consequences of that choice. It was further stated at [185] that drug addicts who commit crime should not be added to the list of victims; their degree of moral culpability will vary just as it varies the individuals who are not affected by addiction. Persons who choose a course of addiction must be treated as choosing its consequences.

57. There is nothing in this case to suggest that the taking of illicit drugs, namely heroin, was not a matter of choice by the Offender, nor was there any suggestion that the sale or supply of drugs was anything other than a matter of choice driven by his gambling habit and addiction to drugs.

58. Rehabilitation

59. Rehabilitation, as I have mentioned, is problematic in this case given the history. Having given careful consideration to the evidence already referred to, I find the prospects of successful rehabilitation can be assessed only as guarded.

60. Re-offending

61. Accordingly, the risk of reoffending must be assessed as being at least moderate, particularly in view of the history of offending.

62. This increases the need for specific deterrence.

approach to sentencing

General Principles

63. Section 3A of the Crimes (Sentencing Procedure) Act 1999 sets out the purposes for which the Court may impose a sentence on an offender and they are punishment, deterrence, protection, rehabilitation, accountability, denunciation and recognition. Those purposes generally reflect the position at common law and in this case are all relevant to the sentence to be imposed. In particular, there is a need for deterrence both in relation to this particular offender, but also for the community at large engaging in drug supply of the nature involved in this case.

PROPORTIONALITY

64. In coming to the sentence, I have had regard to the principles of proportionality and I am satisfied that the sentence to be imposed ensures that the offender is adequately punished. The sentence neither exceeds or is less than the gravity of the crime having regard to the objective circumstances with the background of the subjective case. I am satisfied the sentence to be imposed carries reasonable proportionality between the sentence and the circumstances surrounding the offending.

IMPRISONMENT

65. Imprisonment is obviously a sentencing option which looms large in cases of this nature, particularly given the maximum sentence that may be imposed in cases of this type; that is a period of imprisonment of 15 years. Before imposing a sentence of imprisonment, however, I must be satisfied having considered all possible alternatives that no sentence including non‑custodial sentences other than imprisonment is appropriate.

66. In this case, the Crown contended that the threshold under s5 is met and imprisonment is warranted.

67. The legal representative for the Offender submitted, however, that a sentence would best be served by a deferred sentence or a s11 adjournment, in order for the offender’s rehabilitation to be best addressed. Given his non‑compliance with rehabilitation in the past, I have reservations about adopting such a course and I find that, after considering alternatives, imprisonment by way of fulltime custody in this case appropriate.

Guilty Plea

68. As noted previously, the offender has pleaded guilty to these charges. He is entitled to have that taken into account in the sentencing exercise. In my view, the timing of the guilty plea ought to attract the maximum discount of 25% on sentence and that finding accords with the submissions of both parties.

special circumstances – s44

69. On the question of special circumstances, it is agreed that special circumstances exist so as to justify a departure from the ordinary statutory ratio for parole and non-parole primarily in this for the need of rehabilitation. Accordingly, I find that special circumstances do exist.

consistency

70. Consistency in sentencing is important and for that purpose regard has been had to the statistical material provided by the legal representative for the offender. Of course, statistics are by no means binding for the Court and only provide a very broad indication as to the range of sentences which in other like cases has been imposed. Of course, the details of those other cases including the objective seriousness and the subjective case are unknown and therefore a proper comparison can never be made. However, I am satisfied that the sentence which I am about to impose is generally consistent with sentencing trends.

the sentence

71. Taking into account the time spent in prison prior to today, the sentence will commence on 17 February 2018 which I understand includes the 170 days from 13 December 2017 to 31 May 2018 and the time since 6 August 2018.

72. For the head sentence I have determined a period of four years is just and appropriate in the circumstances. After a discount of 25% this results in a reduced head sentence of three years and I intend to adjust the statutory ratio for the non-parole period.

pronouncement of conviction and sentence

73. Would the Offender please stand?

74. Mr Duong, you are convicted of the charge which appears on the Crown Sentence Summary; that is supply prohibited drug in breach of s 25(1) of the Drug Misuse and Trafficking Act. I impose a sentence consisting of a non-parole period of two years commencing 17 February 2018 and expiring 16 February 2020 at which time you will be released on parole. I impose a head sentence of three years.

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I certify that these are the reasons for the Judgment

of his Honour Judge D Wilson SC

Associate

Last Revised 13 February 2019

Decision last updated: 13 February 2019