R v Ha

[2019] NSWDC 572

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ha & Ors [2019] NSWDC 572
Hearing dates:	10 & 26 July 2019
Date of orders:	26 July 2019
Decision date:	26 July 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Ha – term of imprisonment of 6 years 9 months with a non-parole period of 3 years 6 months Le – aggregate term of imprisonment of 4 years 6 months with a non-parole period of 2 years 6 months Tran – aggregate term of imprisonment of 4 years 6 months with a non-parole period of 2 years 3 months Vu – term of imprisonment of 2 years 6 months with a non-parole period of 1 year 3 months
Catchwords:	CRIME — Drug offences — Supply prohibited plant — Knowingly take part in supply SENTENCING — Relevant factors on sentence — Form 1 offences SENTENCING — Relevant factors on sentence — General principles
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518 Bugmy [2013] HCA 37 Qutami [2001] NSWCCA 353
Category:	Sentence
Parties:	Regina (Crown) Thi Kim Dung Ha (Offender) The Giang Le (Offender) Thi Doan Trang Tran (Offender) Thi Lan Anh Vu (Offender)
Representation:	Ben Ng (Crown) Corrie Goodhand (counsel) (Vu) Greg Stanton (counsel) (Tran) John Peluso (counsel) (Le & Ha)       Director of Public Prosecutions (NSW) (Crown)
File Number(s):	Ha 2018/00203692 Le 2018/00104777 Tran 2018/00216812 Vu 2018/00216489
Publication restriction:	Non-publication order re name of child of offender tran, any information that will enable the identity or whereabouts of the child to be ascertained and any information referred to herein relating to the child

EX TEMPORE REVISED JudgEment

INTRODUCTION

1. I have before me today four offenders. These are Thi Lan Vu, The Giang Le, Thi Doan Tran and finally, Thi Kim Ha. All appeared before me in this Court on 10 July 2019 for the commencement of proceedings for the determination of sentence in respect of misconduct upon which they engaged in the supply of cannabis.

PLEAS OF GUILTY

2. Each pleaded guilty to the charges upon which they were presented in the Local Court. Each of them therefore will be entitled to a discount of 25% to the sentence that would have otherwise been imposed reflecting the utility of the pleas of guilty in each case.

3. The offenders Le and Tran face sentence upon two offences. The offenders Vu and Ha face sentence upon one offence each. The discount of 25% will be applied to each sentence which I find to be appropriate upon the synthesis of objective facts and the subjective facts relevant to the offenders, including the extent to which they have demonstrated contrition and remorse and my assessment of their prospects for rehabilitation.

4. They each spent time in custody before sentence is to be imposed. All but the offender Ha are currently at large having been allowed bail. The commencement of the sentence in each case will be backdated to reflect their pre-sentence custody.

5. In the case of the offenders Le and Tran upon the determination of appropriate sentences for the individual offences with which they are charged I shall impose an aggregate sentence.

6. The factual matrix upon which sentence is to be determined is quite complex and will take some little time to traverse. I propose to deal with the objective circumstances identifying the role played by each of the offenders and thereafter I shall deal with them individually and impose sentences. I shall deal with Ms Vu first in sequence, followed by Mr Le, then Ms Tran and then Ms Ha.

7. Ms Vu is charged with knowingly taking part in the supply of 38.736 kilograms of cannabis, which is more than the commercial quantity specified for that drug.

8. I observe at this point that in the schedule 1 Drug Misuse and Trafficking Act 1985 the quantities there specified for cannabis leaf are 300 grams for the trafficable quantity, 1 kilogram for the indictable quantity, 25 kilograms for the commercial quantity and 100 kilograms for the large commercial quantity.

9. The offence charged in each case is contrary to s 25(2) Drug Misuse and Trafficking Act 1985. In the case of all of the offenders the maximum penalty to which they are exposed is imprisonment for 15 years and a fine represented by 3,500 penalty units, except for Ms Ha because the offence in which she participated involved the supply of the large commercial quantity of cannabis, exposing her to a maximum penalty of imprisonment for 20 years and a fine represented by 5,000 penalty units. I do not propose to impose a fine on any of these offenders; the sentences of imprisonment that they will be required to suffer will be sufficient punishment in all the circumstances. There is no standard non-parole period specified for the purposes of Part 4 Division 1A Crimes (Sentencing Procedure) Act 1999 for any of the offenders and the offences upon which they are presented.

FORM 1

10. In the case of the offender Tran there is a Form 1 with the particulars of an offence of possessing 5.9 grams of cannabis to be taken into account when I determine sentence upon a charge of supplying the commercial quantity of cannabis, namely 71.393 kilograms, sequence 2 in the series of charges which were preferred against her. The Form 1 offence in her case will be brought to account in accordance with the statements of principle by Spigelman CJ in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518. Additional offences taken into account will impact upon the sentence for the principal offence in which it is to be taken into account requiring in the appropriate case an increase in the sentence that would have otherwise been applied to the principal offence standing alone, thereby to reflect the need for greater weight to be given to the aspect of personal deterrence arising from the full extent of the offender’s misconduct and the community’s entitlement to retribution for the offences.

11. The Crown concedes in written submissions that the Form 1 offence to be taken into account when I determine sentence for Ms Tran is in respect of that matter of limited significance. It will have some impact but nothing beyond marginal impact in the assessment of sentence for the serious charge of supplying more than the commercial quantity of cannabis found to be 71.393 kilograms.

THE EVIDENCE

12. The agreed statement of facts signed by each of the offenders and on behalf of the Crown is quite extensive. It is in relatively small font over 12 pages and describes a sophisticated enterprise in which Ms Ha was the wholesaler of the cannabis which she provided to the offenders Tran, Le and Vu, who in turn embarked upon transactions providing the cannabis to their clients or customers, with communications transmitted across what has come to be known as the Dark Web, with payment for the cannabis supplied in Bitcoin. The offender Ha received her reward or returns in traditional currency and did not involve herself in setting up the arrangements under which the other three offenders embarked upon their aspect of the enterprise. The entire enterprise was sophisticated and organised and the service that these offenders provided to their clients or customer base was extensive and provided them with significant reward.

13. I should make it clear at this point before I go through the facts that the offender in each case pleaded guilty early, although not all of them readily participated in the investigation process and co-operated with authorities. Ultimately, when the matter came to court, whether through recognition of the inevitable or a genuine desire to facilitate the process, they pleaded guilty and have come to court to accept the punishment that they have justly deserved.

14. I am satisfied in each case that they have demonstrated remorse and contrition for their wrongdoing. The case available to the Crown against each of them would seem to me to be compelling, the evidence extensive, but they would have been entitled to defend these charges if they chose to do so. Any trial that followed with matters being put in issue would have taken a significant period of time.

15. I have heard evidence from Ms Vu and Mr Le and Ms Ha but not from Ms Tran. I am conscious of the circumspection required when assessing representations attributed to an offender who has not entered the witness box and assisted the Court with those representations under oath or affirmation allowing them to be tested by cross-examination but the material before me by way of the evidence given by Mr Le in particular and elsewhere leaves me in no doubt that her (Ms Tran’s) expressions of remorse and regret should be accepted. I found those who gave evidence to be reliable and credible in their assertions. I shall comment upon each of them individually as I come through the subjective cases to be considered.

THE FACTS

16. But first of all, turning to the facts, the offenders Tran, Le and Vu together ran their drug supply syndicate providing cannabis throughout the Commonwealth of Australia by sending packages via Australia Post. The offender Ha was the supplier of the cannabis to the syndicate. The operation conducted by Tran, Le and Vu came to the attention of police as a result of the police investigation into the offender Ha in December 2017. The techniques engaged in the investigation included the interception of Ha’s mobile phone service ending in the number 655. Calls were intercepted between Ha and Tran, and between Ha and Le, and these revealed that Ha regularly supplied drugs to Le. Tran’s role was to negotiate price and quantity with Ha. Tran and Ha used multiple telephone numbers for that purpose. Ha would then physically supply the cannabis to Le.

17. The roles taken by Le and Vu were then principally to package the cannabis and distribute by way of Australia Post. Customers placed orders for cannabis with the syndicate via the Dark Web and this is further explained with reference to Dream, Alpha and Olympus markets, WhatsApp, Wickr with the user name lalaland99 and other platforms. The customers paid for the product in Bitcoin, a virtual or digital currency, in the form of a token or coin which can be generated, stored and exchanged securely and anonymously.

18. The review undertaken of the phones used by Tran, Le and Vu showed numerous photos of conversations from the syndicate’s Wickr account with the user name lalaland99. The account was used to manage the supply of the cannabis across the Commonwealth. The analysis of discussions on that account indicated that it was used not only for placing orders but for the management of the business generally, including the management of the money and enquiries about quality. The facts - at p 2 - include an example of such an exchange with reference to a customer communicating with lalaland99 wherein there is reference to the market being used such as when the customer asked, “Hey mate, what market are you using now? Alpha is down.” The response from lalaland99 was, “Dream market and Olympus market regard Orange Inc.” There is discussion about price and quantity. For example, an enquiry regarding whether cannabis was being shipped to Perth; in response to which lalaland99 advised in the affirmative by way of normal post only. When asked about price lalaland99 advised the customer 3,000 per pound.

19. When asked about the price for the 4 ounces, lalaland99 advised, “830 divided by 9580 equalling 0.0866 Bitcoin”. There was then a quotation in terms of a promise to reimburse 60 grams, apparently to do with the quality of product previously supplied.

20. The facts then proceed to deal with the misconduct of Tran, Le and Ha. Tran is charged with supplying greater than the commercial quantity at 71.393 kilograms between 30 January 2018 and 5 April 2018. That appears in sequence 2 in the series charged against Tran. In respect of Le, sequence 8 in the series charged against him, again the same quantity of cannabis between the same dates.

21. In respect of Ha, that quantity of cannabis is charged in sequence 2 in the series preferred against her, the charge of supplying greater than the large commercial quantity between 9 October 2018 and 3 July 2018. The explanation for that is that Ha is charged with one offence of supply more than the large commercial quantity accumulated from misconduct upon which she engaged over time, including provision of these 71.393 kilograms, between the dates specified in respect of her.

22. The facts relevant to these charges against these three offenders then describe how between 30 January 2018 and 5 April 2018 Ha supplied cannabis to Le on multiple occasions for on-supply by the syndicate operated by Le, Vu and Tran.

23. The supplies, which I shall detail in a moment, were discovered by the police through a combination of intercepted telephone calls, surveillance and closed-circuit television. The amount of the cannabis supplied was, as I have indicated, 71.393 kilograms. The value on a conservative estimate is said to be around $360,000. For Tran and Le these supplies gave rise to the charge preferred against each of them, as sequence 2 for Tran and sequence 8 for Le. As I have said, this supply is part of the overall supply included in a single roll-up charge brought against Ha for supply of the large commercial quantity involving other supplies in addition to these transactions, about which I am about to describe.

24. The first of those was the supply of 4.08 kilograms on 31 January 2018. Le sent a text message to Ha advising that he had only been supplied with 4.08 kilograms of cannabis that day. Thus, the case against them is developed upon the content of the text message and the inference available from it, that there had been that supply of that quantity of cannabis on 31 January 2018.

25. The next is the supply of 9.52 kilograms on 3 February 2018. Following the aforementioned exchange, Ha agreed to supply another 21 pounds or 9.52 kilograms to Le that night. The planned meeting did not occur. The meeting was arranged for 10am on 3 February 2018 at Bankstown Airport branch of Bunnings. At 2.55pm on that day Tran contacted Ha, asking if she had “Met my brother yet”. That was a reference to Le. The inquiry continued, that it was for the supply to him of the 9.52 kilograms of cannabis, which Ha confirmed, advising she had met with Le already in the morning and that she would again be seeing him that night. Once again, the conclusion drawn from that conversation is that there was the supply of that quantity of cannabis reflected in the exchange.

26. The next supply was of 18.14 kilograms on 4 February 2018. Later in the afternoon of 3 February 2018 Ha and Tran negotiated the supply of 40 pounds or 18.14 kilograms of cannabis. Le was told to drive to Bankstown Airport branch of Bunnings, to meet with Ha at 7.16pm and collect the cannabis. A few minutes later Le rescheduled the meeting for 8am the next morning, 4 February 2018. At 8.12am on that day Le messaged Ha to tell her he was stuck in traffic. At 8.47am he called Ha to tell her he had arrived and parked on the Bankstown Airport branch of Bunnings. The closed-circuit television footage from that car park about 8.50am on 5 February 2018 captured the meeting between Ha and Le.

27. I am not quite sure how to rationalise the difference between the 4 February 2018 and the 5 February 2018 referred to in that paragraph, but one way or another the formulation of that charge is, as I perceive it, upon the basis of the exchange captured and the observations by way of the closed‑circuit television footage.

28. The next supply was 544 kilograms on 8 March 2018 at 11.58am. On that day Ha contacted Tran and discussed the supply of cannabis. She indicated that she only required 5.54 kilograms of cannabis. Ha told her to tell her younger sibling, Le, that she would be there in another ten minutes. At 12.08pm, Ha arrived. Le met with her and was supplied with 5.44 kilograms of cannabis. An hour later Tran contacted Ha, referring to Ha then as “Aunty”, and said that she was not able to “Take that one - the 12 is full of leaves.” Ha told Tran that she would collect the cannabis and return it. She made arrangements with Le to meet her at Bankstown Airport branch of Bunnings in 45 minutes. About 12.15pm Le met with Ha at that location to return the cannabis due to the excess quantity of leaves. The closed-circuit television footage from that location captured the meeting between Ha and Le.

29. The next is the supply of 6.35 kilograms on 9 March 2018. Ha called Tran to organise the supply of 6.35 kilograms of cannabis. There was a conversation captured, in the course of which Tran asked what time Ha would hand the cannabis to her brother, Le. There was discussion confirming that arrangement. Ha reinforced that Tran had to tell Le to come and see her at Bunnings because, it would appear, it was in that direction of travel. Ha organised to meet up with Le at 11.30am at the Bankstown Airport branch of Bunnings. Le was not available but he arranged to pick up the cannabis directly from Ha. At 5.23pm Le told Ha that he had collected the cannabis and checked that there were 14 boxes, which was a reference to the weight 14 pounds.

30. The next was a supply of 4.53 kilograms on 12 March 2018, between the 10 and the 11 of March. Ha, Le and Tran corresponded in order to arrange a supply of ten pounds on 12 March 2018.

31. About 8.16pm on 11 March 2018 Le called Ha to organise a meeting the next day for 10am at the Bankstown Airport branch of Bunnings. About 11.09am on 12 March 2018 Ha called Le to tell him she was just turning into Bunnings. The closed-circuit television from Bankstown Airport branch of Bunnings car park captured the meeting between Ha and Le.

32. The next is a supply of 9.08 kilograms on 17 March 2018. On 15 March 2018 Tran contacted Ha and agreed to purchase 20 pounds of cannabis. Ha requested payment before she went to collect the cannabis. It was agreed that she would get the money from Tran. After a call from Ha saying she was at Broadway Tran left her apartment complex at Chippendale carrying a grey bag. This contained the money for the supply planned for 17 March 2018. Tran walked to where Ha’s car was parked and then at 4.17pm Tran returned from that car to her apartment without the grey bag. About 9.47pm Tran called Ha back. Ha told Tran she had to ask the up-line supplier to redo the cannabis; she continued, “It’s nice but it’s still sort of cool in the hand, you know.” She also confirmed that she would pick up the cannabis at noon on 16 March and bring it to Le. On 16 March 2018 Le contacted Ha and discussed a meeting at Bankstown Airport branch of Bunnings the next day. At 8.35am on 17 March 2018 Le called Ha to confirm what time she would be at Bunnings; Ha said 9.15am. CCTV footage from that location captured the meeting between Ha and Le on 17 March 2018.

33. The next is the supply of 907 grams on 18 March 2018. On that day Ha and Le corresponded in relation to a planned meeting at Bunnings at 9am the next day. Closed-circuit TV from Bankstown Airport branch of Bunnings at 9.17am captured the meeting between Ha and Le during which Ha supplied Le with two pounds or 907 grams of cannabis.

34. Then there is the supply of 4.53 kilograms on 20 March 2018. At 1.58pm on 19 March 2018 Ha contacted Tran asking if she required cannabis that day. Ha and Tran discussed the amount needed, the conversation captured is described with regard to delivery of the cannabis to Le, the quantity, there was reference to the supply of 907 grams before that occurred on 18 March 2018 and then arrangements were to meet that afternoon. Ha confirmed that she had supplied 200 pounds to Le the day before and that Tran would not have money until late that night and that the supply would occur the next morning.

16. At 4.08pm Tran left her apartment in Chippendale carrying a small child and a black Adidas bag containing the money for the supply planned for 20 March 2018. She walked to the motor vehicle driven by Ha. At 4.17pm she returned from the car to her apartment without the bag that she had given to Ha.

17. At 11.46am on 20 March 2018 Le contacted Ha to organise the drop off for the supply of 10 pounds, Le asked if they were to meet at Bunnings, Ha said yes and she would leave at 12pm. Le told Ha he was at the “Sefton house”. Ha asked to come down there and she thereupon attended those premises and supplied Le with 10 pounds or 4.53 kilograms of cannabis.

18. Then there is the supply of 4.53 kilograms on 23 March 2018. On 22 March 2018 Tran confirmed with Ha that she would be seeing Le the next day. At 10.52pm on 23 March 2018 Le contacted Ha and told her he would be over at 11.30. At 12.43pm he sent a message to Ha saying, “Uncle gave me 10 today, Aunty” referring to the supply of 10 pounds or 4.53 kilograms of cannabis by Ha’s husband Huu Anh Nguyen at the direction of Ha. At 12.56pm the same day Tran called Ha and said, “How many did you give to my younger sibling [a reference to Le] Aunty?” Ha responded “10”.

19. Then we come to the supply of 4.286 kilograms on 4 April 2018. On the morning of 3 April 2018 Tran told Ha she wanted 10, that is 10 pounds or 4.53 kilograms of cannabis, and that it should be given to Le the following day. Ha said she will give an extra 5, that is 5 pounds, as well. At 12.26pm Ha confirmed with Tran she would be giving Le 15 pounds of cannabis the following day. Shortly after Ha called Tran and said “Come down, I’m right at the door”. At 12.55pm Tran left her apartment complex at 18 Park Lane, Chippendale carrying a small child and a black bag containing the money for the supply planned for 4 April 2018. Tran walked to the car driven by Ha. At 12.57pm Tran returned from the car to her apartment without the white bag she had given to Ha.

20. At 4.07pm Ha contacted Le and said, “There’s 10 at home now, I’m on my way, come up to me and take this one home. It’s very beautiful, very delicious”. Le explained to Ha that he was busy. Le organised to meet her the next day at 9.30am at Bankstown Airport branch of Bunnings.

21. On 4 April 2018 police had under surveillance an address in Bexley North under where Ha lived.

22. About 9.05am Ha placed a medium-sized rectangle container into her boot and travelled to Bankstown Airport branch of Bunnings to the car park there. The police saw Le arrive at 9.39am and park in the car park. Le called Ha and she told him that she was shopping at Bunnings, two minutes later Le texted Ha telling her he was parked in the car next to a truck. Le left the car and waved to Ha who was exiting the nursery. Le returned to his car and parked next to Ha, she opened the boot of her car, he opened the boot of his car, Le carried a plastic medium-sized container containing cannabis from Ha’s boot and placed it into the boot of his car, they both then left. After this supply had taken place the police stopped Le’s car, searched it and found that Ha had just supplied him with cannabis weighing 4.286 kilograms.

23. Thus the offender The Giang Le was arrested. They found in his car in addition to the cannabis described items used to package cannabis and supplied by the Australia Post, there were two mobile phones, there were 33 Australia Post envelopes with pre-made recipient labels affixed to each, two boxes contained 100 cardboard sheets which could be folded to make a cardboard box, and there was industrial tape and Gladwrap. There were a number of Australia Post receipts detailing lodgements of parcels and purchases of Australia Post envelopes. There was a plastic bag containing two stretch and seal boxes with plastic wrapping.

24. During the search Le told police that he had made cannabis oil and used the Australia Post envelopes and boxes to send it to his customers. That, it would appear on the material I have, was a misrepresentation. He was then taken to Bankstown Police Station where he participated in an electronically recorded interview. He there admitted to using the Dark Web and Australia Post to supply cannabis to customers. A review of his phone revealed a number of photographs of Australia Post receipts and ledgers which indicated the syndicate had been operating since May 2017. These ledgers are identical to the ledgers that were found in Vu’s possession, discussed later, on 4 April 2018.

25. While Le was being arrested, searched and taken into custody, the police had the premises at Sefton under surveillance. There is a granny flat attached to the address, this was used as a safe house by the syndicate, it is also where Le and Vu who were and continue to be in a relationship resided.

26. At 11.17am Tran contacted Ha on the telephone number ending 655 to confirm that the planned supply to Le that morning had occurred. Tran was concerned though that she could not get in touch with him; he had of course by then been arrested. Tran and Ha agreed to go to the Sefton house. The police saw Vu arrive at the Sefton house in a Toyota motor vehicle; they also saw Ha drive past the address. About 12.42pm Tran arrived at the address in a Honda motor vehicle, about 12.43pm Vu entered Tran’s car and sat in the passenger seat, moments later Vu returned to her car, Tran and Vu then walked towards the safe house together. At 12.48pm Tran contacted Ha. In that conversation Tran confirmed that she was at the Sefton house with Le’s girlfriend and that she needed to go in and clean up because there was still “some in there”.

27. A short time later Tran and Vu exited the Sefton house, Tran carried a small child and a number of items in her right hand, and she entered her car and drove away. Vu carried a white, grey and pink coloured bag; she entered her vehicle and drove away.

28. The items that Tran and Vu were carrying had been taken from the Sefton house in anticipation that the police were about to arrive and search. They were both subsequently stopped and their cars were searched. In Tran’s car police located an Apple iPhone and a Samsung mobile phone. There were multiple drug ledgers identified on the iPhone identical to those found on Vu and Le’s mobile phones. In Vu’s car the police located a double-sided drug ledger listing 36 customers, as well as a handwritten smaller drug ledger detailing the same initial 12 customers as the typed document. This gave rise to the charges against Vu, Le and Tran and with specific reference to the offence charged as sequence 3 against Vu. Vu had removed this document from the safe house when she went there with Tran before they were stopped by the police.

29. The premises in Sefton were searched on 4 April 2018 when the police armed with a search warrant attended the granny flat described as the syndicate’s safe house. The second bedroom did not contain any personal items, only parcels and boxes. During the search the police located a number of items that the syndicate was using to send cannabis through Australia Post including a cardboard box containing a number of different sized satchels, a large plastic bag containing some resealable bags of cannabis, all with blank labels similar to those found in Le’s car, labelling machines, numerous vacuum sealers, packaging including various sized cardboard sheets which could be folded to make a box and envelopes and satchels, scales, a package containing plastic sleeves addressed to Vu and with telephone numbers ending in 545 used by Tran and 599 used by Vu on it. There were several vacuum sealed plastic bags containing cannabis and cannabis residue.

30. The offence charged against Vu, sequence 3, of knowingly take part in a supply greater than the commercial quantity namely 5.5 kilograms of cannabis between 11 December 2017 and 3 April 2018, relates to the following: 5.5 kilograms of cannabis was found individually packaged into various Australia Post parcels ready for sending. Vu is charged with knowingly taking part in the supply in relation to this amount of cannabis.

31. Le’s fingerprints were located on several items of packaging seized during the execution of the warrant.

32. We then come to offences against Tran, sequence 4, supplying more than the commercial quantity, 35.219 kilograms of cannabis between 11 December 2017 and 3 April 2018, against Le, sequence 6, supplying more than the commercial quantity in respect of the same amount in the same period, and Vu, sequence 3, that is the offence of knowingly take part in the supply of more than the commercial quantity of cannabis, this is the amount of 33.235 kilograms.

33. As with the offender Ha, the prosecution of Vu has involved a rolled-up charge combining the 33.23 kilograms I am about to deal with, between 11 December 2017 and 3 April 2018, with the 5.5 kilograms of cannabis that was found in the execution of the search warrant earlier described.

34. When the police searched the safe house, Vu’s car and mobile phones belonging to the offenders, they found multiple drug ledgers evidencing supplies by the drug syndicate operated by Vu, Le and Tran between December 2017 and 3 April 2018. The drug ledgers were found in Le’s phone, a photograph of which had been sent to Vu, in the Sefton safe house on two USBs and in Vu’s car. Tran and Le face a charge of supplying a commercial quantity of cannabis in relation to all of the drug ledgers found totalling 35.219 kilograms, Vu faces a charge of supplying a commercial quantity in relation to all found on the drug ledgers, except for the ledger dated 28 January because she was overseas, and thus the quantity with which she is charged is 33.235 kilograms, somewhat less by about two kilograms than the quantity with which Tran and Le were charged.

35. The ledgers which relate to the months of December 2017, January, March and April 2018 were either typed or handwritten. Examples of the ledgers are attached to the facts and marked annexure A. They include user names, addresses and amounts supplied, together with particulars in some instances of Australia Post tracking stickers. The facts then go on to describe the contents of the ledgers in further detail.

36. The drug ledger found on the USBs in the safe house involving the supply of the 33.239 kilograms relevant to the charge against all three offenders, Vu, Le and Tran, were found on the two USBs seized on 4 April 2018.

37. On USB 1 there were ten typed documents evidencing the supply of 30.039 kilograms of cannabis via Australia Post between 11 December 2017 and 28 January 2018. A ledger on USB 2 contained a typed document evidencing the supply of 3.2 kilograms of cannabis via Australia Post in March 2018. The drug ledger found in Vu’s car related to 1.98 kilograms in respect of all three offenders. The typed double-sided drug ledger listed 36 customers. It had been taken from the house by Vu when she went there with Tran after Le’s arrest. The ledger evidenced the supply of the 1.98 kilograms of cannabis. It included on-line user names, the drug weight, followed by a “g” to represent “gram” or “p” to represent “pound”, with a corresponding Australia Post tracking sticker. There is an example then described. Photos of these ledgers with tracking stickers would be sent between members of the syndicate by way of their phones.

38. Then we come to the next sequence of misconduct involving Ha, which is part of the supply of the large commercial quantity of cannabis - on this occasion 68.907 kilograms, between 9 October 2017 and 3 July 2018.

39. Between 2 February 2018 and 30 March 2018 the police monitored her phone, in the course of which she supplied the 68.907 kilograms of cannabis. She would obtain cannabis from an up-line supplier, and then deliver that to a purchaser at their home or another pre-arranged location. On occasions the purchaser would collect the cannabis from her house in Bexley North. She would correspond with the customers via phone. Code words would be used to describe the quantity of cannabis. There were some conversations from which quotations are offered in the facts. I do not intend to rehearse those for the purposes of the judgment.

40. In para 69, to which I shall refer because it was the subject of submissions in the course of the presentation of the matter, the following is written:

“During February and March 2018, on nearly a daily basis Ha supplied cannabis to eight different customers (each on multiple times) with a total of 68.907 kilograms of cannabis. Ha had access to large amounts of cannabis from her up-line suppliers. She was capable of supplying large quantities in one go. Her price per pound depended on the up-line supplier’s price, generally her price per pound ranged from $2,400 to $2,500. She supplied a conservative estimate of $624,000 worth of cannabis in two months.”

60. The Crown brought this to my attention because it was a sequence of supplying in addition to those arrangements whereby she provided cannabis to the other three offenders engaged in their syndicated exercise. It was, however, still part of the supply of the large commercial quantity with which the offender Ha is charged and upon which sentence is to be determined and so her sentencing will be approached on the basis that she engaged upon the large commercial supply of cannabis between the dates specified, in the quantities specified, with a qualification that predominantly the cannabis was provided to the other three offenders for their activities supplying to other purchasers, in addition to the provision of cannabis directly to clients or customers with whom the offender Ha had contact.

61. Ha was arrested on 2 July 2018. There was a telephone conversation intercepted where she proposed a supply to a customer at Belmore. The police stopped her en route and in her car they found two mobile phones, a box with a green garbage bag containing a vacuum-sealed plastic bag with ten smaller resealable bags, with a total of 4.479 kilograms of cannabis. On the same day they searched the address at Bexley North where she lived. They located numerous letters and documents in her and her husband’s names, there was clothing worn by Ha during the surveillance conducted by the police, there were mobile phones and SIM cards, drug ledgers, $3,500 in cash, some fluoro lights, heater sealer and scales and a white plastic container with green vents containing cannabis and 18 resealable bags containing cannabis head.

62. The cannabis found during the vehicle stop, the 4.47 kilograms, and execution of the search warrant, 7.1 kilograms, was subsequently sent for testing and confirmed to be 11.57 kilograms of cannabis and, as I said, these form part of the single charge of supply a large commercial quantity.

63. The police found evidence that on 9 October 2018 she effected a further actual supply of 18.14 kilograms. She participated in an ERISP and denied the allegations but has since then clearly taken a different course, pleading guilty to the charge in the Local Court and then continued with her plea in this Court.

64. The total weight attributed to her transactions rolled into the charge sequence 2 preferred against her is 170 kilograms.

65. On 13 July 2018 police searched premises at Fairfield, a second house occupied by Vu. Vu was arrested. During the arrest police located 15 mobile phones and SIM cards, envelopes containing $6,000 in cash with labels of the name and dates, USBs, a receipt for a vacuum sealer, scales, handwritten ledgers and handwritten notes regarding CoinSpot, which was the Bitcoin account, bank cards in Le’s name and letters addressed to Le, laptops, including a laptop with a photograph and name Lana Vu, Vietnamese currency of nearly $2 million VND and other foreign currency, numerous Auspost receipts for satchel bags and a small amount of cannabis in a rolled cigarette. That was the cannabis upon which the charge of possession was brought.

66. Vu was taken to Fairfield Police Station. She participated in an ERISP. She denied any involvement in the supply of cannabis. Once again she has taken a different course once the proceedings were continued in the Local Court by pleading guilty and continuing with that plea of guilty in this Court. The total weight of the cannabis attributed to her misconduct is 38.736 kilograms.

67. Tran’s arrest was on 13 July 2018. Upon the search of her home at Chippendale there were several mobile phones and empty phone and SIM packaging found, a notebook containing addresses and figures, $35 in Australian currency, foreign currency, and a small amount of cannabis in a glass jar and another small amount of cannabis elsewhere. She would not answer any questions in the course of an ERISP, again changing her position once the matter was brought to the Court and has continued with her plea of guilty in this Court.

68. I shall now deal with the individual offenders and I shall first deal with Ms Vu. I will first observe though that the Crown has made written submissions, to which he has spoken briefly, with which the representatives of the offenders, for the most part, agree. The submissions by the Crown on the nature of the offending include reference to the different quantity specified in schedule 1 Drug (Misuse and Trafficking) Act 1985.

THE OFFENDER VU

69. With regard to the offender Vu the Crown acknowledges that her participation is toward but not at the bottom range of objective seriousness for the following reasons. First, she is charged with knowingly taking part in the supply of a commercial quantity of cannabis and traditionally, although the offence is charged under the same provision with exposure to the same maximum penalty, courts have tended to impose lesser sentences for people charged with that level of participation.

70. She was involved in the packaging and distribution of the cannabis. She had a drug ledger in her physical possession. She was in possession of other indicia of supply, namely a substantial amount of cash and there was reference, as I noted in the facts to her custody of 15 mobile phones. That was the subject of evidence that she gave, to which I shall come, and which I accept. She also had scales, Bitcoin account details, located in the Fairfield West residence. She was a participant in the provision of what was described as the safe house, which is the granny flat, where she and her partner Mr Vu resided. The quantity of the cannabis involved in her offence was above the bottom threshold for commercial supply but not by very much.

71. It is submitted that her participation included supply to a substantial degree and that in the circumstances, notwithstanding the subjective cases that have been presented a sentence of imprisonment should be imposed. I have given careful consideration to that in light of the material tendered on behalf of the offender and the submissions made by her counsel and persuasive though they are I have come to the view that nothing other than full-time custody can be imposed in her case. But, there is ample material upon which to find special circumstances so as to reduce the custodial component of the sentence below the percentage specified in s 44 Crimes (Sentencing Procedure) Act 1999.

72. In terms of moral culpability, it is said by the Crown that Ms Vu attributed her misconduct of the financial distress that she and her partner experienced at the time. She gave evidence that she did not want to get involved in her husband’s cannabis activities and the argument presented implicitly by the Crown by way of the cross-examination was that although she might not have wanted to get involved at the outset once she participated she embraced the opportunity with some energy.

73. I took the evidence in another light and I find that her explanation was that throughout the process she was a reluctant participant but continued in the enterprise in the interests of her husband and the financial assistance that the misconduct would provide for the reasons he gave and which she supported in her evidence.

69. The evidence she gave satisfied me that she has demonstrated contrition and remorse. She is 27 years of age. She adopted the information provided in the report tendered from the psychologist. She has no criminal antecedents. She is pregnant and she is due to deliver in October of this year. As a consequence of the pregnancy she suffers from diabetes, which requires her to monitor her blood sugar levels each day. She came to Australia in 2012 and studied English and then enrolled in a Bachelor of Economics course. She finished a Diploma course first of all and then studied toward the Bachelor of Economics.

70. She is, as I said, in a relationship, whether by marriage or otherwise, with the offender Le. Her husband or her partner could not work. He was unable to get a job. His family had made a contribution to his presence in Australia financially and had borrowed money in Vietnam to support him here. His parents are aged. They had to retire from the workforce. There was a younger brother born to the offender Le’s parents, who suffers from Down Syndrome and they were, she said, having some difficulty. She said that she was married to Mr Le in May of last year.

71. Her parents were providing for her financial support. They paid for her tuition and her rent and also her day to day living expenses. When she was in the relationship with Mr Le prior to marriage there was no opportunity because they were not married, which is the effect of her evidence I should say, to have her parents provide further assistance to defray the financial burden that Mr Le was experiencing and, as I understood it, perhaps culturally there was no obligation for them to extend their resources to Mr Le notwithstanding that clearly he and Ms Vu were committed to each other and were anticipating marriage.

72. She expressed remorse. She recognised the harm that has been caused to other people by the distribution of prohibited drugs. At p 4 of the evidence, she said,

“I am remorseful for what I have done and what I have done caused harm to other people and the Vietnam traditions depicts (sic), that whatever the parent do will affect their off-springs so I afraid what I have done could affect my child.”

78. She accepted that what she did was harmful to people in the community, that she was part of the enterprise that provided drugs to the community. She continued with assertions of remorse. She spoke of the time in gaol, over 28 days in the Silverwater Prison. She learnt a lot. She saw people affected by drugs and the strange behaviour they exhibited causing her to be frightened. She recognises that her husband is likely to go to gaol for a period of time and she recognises that upon incarceration she might be separated from her baby. I expressed the view in the course of the presentation of the matter that one could take notice of the fact that the period of time from the point of birth and in the months following is critical to the development of the child. That can be beyond question in my view. I draw upon that from my own life experience and from what I have come to learn in various capacities practising in the law and sitting as a judge.

79. It would seem to me beyond question that when a child is born the opportunity to bond with the mother, and indeed the father, should not be taken away except in the most compelling of circumstances. With regard to this issue I note that there is material before me, speaking to arrangements within Corrective Services. Women who are in the predicament of this offender, who are about to give birth, can have the opportunity to go to a facility at the Emu Plains Correctional Centre but there are circumstances which might preclude that. The situation could arise whereby once the baby is born it will be separated from the offender until she is released from custody. In the meantime the baby would be put into care. Alternatively, depending upon when she goes into custody, as I understood the evidence, the opportunity is likely to be presented whereby she could be delivered of the child at the Nepean Hospital and then mother and child could move from there to Waratah Cottage, I believe it is called, at Emu Plains, where the baby can remain with her through the initial periods of its life. The custodial component of the sentence I am imposing from today I hope will facilitate that outcome.

80. She has limited family in this country who might be able to provide support for her baby and for her for that matter once she is released into the community. That sits in contrast, I might say, to something that is contained in the psychologist’s report speaking of her grandparents and extended family members in this community, but there was no amplification of those propositions in the course of the evidence as it was led either by examination‑in‑chief or cross-examination. Once she is free to resume her life in the community she said she will send her child into childcare so that she can work to earn money for their support until her husband is ultimately released into the community to spend their lives together.

81. The representations regarding her wish not to get involved begins at p 6 of the transcript and, as I say, I find that her assertions were in terms that she did not wish to participate, that state of mind continued notwithstanding the extent to which she involved herself, and thus I apply the term “a reluctant participant” in the criminal enterprise in which she joined with her husband and Ms Tran in their arrangements with the offender Ha. She had a business or has a business in a retail outlet in which her parents have assisted her; that is a continuing enterprise, as I understand it, which will need to be suspended or deferred until she finishes the custodial part of her sentence. She took the view that she had no other option but to participate in these events to address the financial difficulties of which she spoke. I do not accept that to be the case. I am satisfied there were other options, as there always are, and that she should not have been involved in this crime.

82. The evidence that fell in relation to the mobile phones and the Bitcoin account is found at p 8 of the transcript. She acknowledged her possession of the various items connected with the distribution of the cannabis and in the cross-examination commencing at line 10 on p 8 she acknowledged the 15 mobile phones that were found but denied that she in fact had them in her car which the question appeared to confuse. In any event at line 13 dealing with the cash and mobile phones found on the course of the execution of the search warrant, the Crown asked,

“Q. That was in your car, if I can put it that way, that was in your car?

A. No, the 15 mobile phones is not found in my car.

Q. That was at Fairfield West, maybe your house?

A. Yeah, that one is addressed but a lot of people live in my house, about ten people and we have another granny flat at the back so they collect all the mobile phone, all the mobile from the people who live in the granny flat, that’s why I have 15 mobile phone, not belong to me, and they have the evidence for that

Q. You had Bitcoin account details, that’s right, on your person, the police found some details about a Bitcoin account, Fairfield West?

A. It not belong to me.

Q. But they were found at Fairfield West, that’s right?

A. But I never used the Bitcoin account myself”.

83. First of all the representations regarding the Bitcoin account do not assist the offender. They might indicate that her level of participation might have been less because she did not transact using the Bitcoin account but the Bitcoin account was used to transact for this enterprise upon which he was jointly engaged.

84. With regard to the mobile phones, the implication that arises from the assertions regarding the mobile phones in those premises and the question put by the Crown is that the mobile phones, multiple as they were, had some connection with the enterprise upon which the offenders were engaged. It is common in a sophisticated activity such as this for the offenders to have either multiple phones or multiple SIM cards to facilitate the activities upon which they are engaged. But the suspicion that might attach from those bare facts I am satisfied has been displaced by the evidence given by the offender. I observed her as she gave that evidence and she was, I am satisfied, assertive, not in any way attempting to avoid responsibility for the phones but simply making clear that they were not her phones and were there because of the multiple occupants in those premises, and that so far as she was concerned there was no connection between those phones and the activities upon which she was engaged with her co-offenders.

85. I put in her case to one side the fact those phones were found there. Otherwise she admitted her participation, that it was for financial gain, and that she did so to assist her husband’s financial circumstances which by necessary implication would, of course, had assisted her.

86. With regard to the birth of the child there is another dimension that one ought to take into account and that is this: it is not the wisest decision to decide to fall pregnant at the stage of life when she did bearing in mind that she was facing consequences for the criminal misconduct upon which she engaged. It is not known whether this was a deliberate act or whether it was simply a consequence of the relationship without planning. I tend to the view that in the circumstances it was the latter because there is no evidence before me that would allow me to conclude otherwise. It is a significant circumstance that one has to bring into account and it does inform the question of special circumstances and perhaps, although care must be taken not to double count, the head sentence that the offender should suffer. Either way, although not sufficiently exceptional to justify other than a custodial sentence, it is a matter that impacts significantly upon the determination of the sentence and the custodial component which must be imposed.

87. Evidence tendered in the case in support of this offender includes an affidavit from a legal practitioner, Nadia Long, who is in Court today representing the offender, with attachments touching upon enquiries made to ascertain what is likely to occur with the offender and her baby if she suffers sentence. I have had regard to that material and I brought that to account.

88. The sentence assessment report that was prepared for her refers to her academic achievements, her business in retail, absence of any criminal record, her expressions of regret, her understanding of the seriousness of her actions, her willingness to undertake and complete any relevant directed intervention, there were no criminogenic factors identified requiring intervention in her case, she is willing to undertake community service, and has undertaken to make appropriate arrangements for childcare in the event the community-based option of community service is imposed. She has a low risk of reoffending according to the assessment made by the officer.

89. There is a psychologist’s report provided by Dr Ramony Chi Chan on 5 July 2019; this speaks of her presentation and mental state examination at the time of the assessment which occurred in the clinic at Wetherill Park over three hours with two hours of structured clinical interview and an hour of psychometric testing. The assessment was conducted in English, noting however that her first language is Vietnamese. She was reported upon her representation as anxious, stressed and depressed. She is attributed with the explanation for the offending as being under significant financial stress by reason of her husband’s circumstances, he is unable to work and they were without anyone to help, and at the time of the offending she was a student fully supported by her parents without any other income source. She is attributed with remorse and increased anxiety and stress and depression, loss of confidence and self‑loathing since the commencement of the prosecution. She has struggled to reconcile her involvement with her own family values. She has an Australian permanent residency visa and at the time of the assessment was six months pregnant. The reference to family in this country is at p 4 of this report; this includes her representation that she has a cousin and uncle and aunty and grandparents living in Sydney and that she has a good relationship with them, but there is no further evidence about what they could provide by way of assistance or the extent to which they could support her whilst she is in custody and might provide care for her child while she is custody.

90. She is the older of two children in her family; her father and mother reside in Vietnam; she has a younger sister aged 18. Her childhood was good; there is nothing in her background and her upbringing that might explain her participation in these activities. There are no learning difficulties or behaviour problems; there is reference to her academic achievement. She has never used drugs. Her reported symptoms are discussed: she is said to meet the diagnostic criteria of a major depressive disorder severe with recurrent episodes.

91. It would be hardly surprising in my opinion to find her experiencing these symptoms. She is a person who has not been to gaol before apart from the remand period to which I have referred. She committed a serious criminal offence and she is facing punishment for that and there can be no question that she would suffer at least a measure of distress as a result of it. I do not know how anybody in her circumstances would not experience those emotions.

92. Psychometric testing has been discussed. The results do not cause any concern, although the elevated scores in some contexts suggests a moderate risk of experiencing clinical problems of social withdrawal, negative effect, acting out and suicidal ideation. There is no expressed representation from the offender that she would be thinking in those extreme terms. Psychopathology was assessed consistent with the aforementioned diagnostic criteria to which I referred. There is no current drug-related problem. Risk assessment was made; again there is a low risk of recidivism. This leads me to the conclusion that the risk of re-offending is low and that the prospects of rehabilitation for this offender are high.

93. It is tragic that she is where she is. She is a person of otherwise good character participating in serious criminal activity. Indeed the sophistication and organisation of this enterprise is of high order. I accept the Crown’s observations though with regard to where she sits on the scale of seriousness and with regard to moral culpability. Ms Goodhand, I might say, advanced every submission that could be made on behalf of her client including the option of an intensive corrections order in place of full-time custody, of course the availability of that depends upon the sentence that is selected and if it is more than two years in this case she will be unable to be offered that option. The sentence that I have settled upon is more than two years and thus I am compelled to impose the custodial sentence.

94. Submissions on sentence in writing were provided by Ms Goodhand, to which she spoke. This matter resumed before me last week ahead of the other offenders who came back to court today because of counsel’s unavailability with commitments in this court complex before another judge, and as noted earlier Ms Long is here at present to attend to the matter. In her case therefore I am in a position to impose sentence.

95. She is convicted of the offence of knowingly take part in greater than the commercial quantity of cannabis. I impose a sentence of imprisonment consisting of a non‑parole period of 1 year 3 months, and I will ask you to just confirm these dates as I give them - this is the custodial component of one year and three months commencing on 3 July 2019. It is the custodial component of a head sentence of 2 years and 6 months. She will be entitled to be released to parole on 2 October 2020. I have allowed a discount of 25% for her plea of guilty attached to the sentence identified upon the synthesis of objective and subjective facts including her contrition and remorse and her strong prospects of rehabilitation. I have taken into account as special circumstances the fact that she is pregnant and her baby is due in October of this year. I have taken into account that she is a person of good character otherwise and has not been before any court, at least in this jurisdiction, in the past.

96. I will revise those orders.

97. I specify a non-parole period of imprisonment of 1 year and 3 months commencing on 28 June 2019 expiring on 27 September 2020. I specify a further period of imprisonment of 1 year and 3 months to commence at the expiration of the non-parole period and expire on 27 December 2021. Ms Vu, if you could come forward please, just come forward and come up to where this officer is and he will show you where to go.

98. THE OFFENDER LE

99. I will turn now to the Offender The Giang Le. In relation to Mr Le the Crown submission is that the offences upon which he is to be sentenced namely, the supply of 71.93 kilograms of cannabis and then 35.219 kilograms of cannabis, sequences 8 and 6 respectively, are to be found, in the case of sequence 8 close to the middle range of objective seriousness, and in the case of sequence 6 between the bottom and the middle of the range of objective seriousness. The reasons advanced for that proposition are his role as receiver, distributor and his awareness of the business of the operation; he was tasked with a critical role of receiving the cannabis from Ms Ha on behalf of the syndicate; he was involved in packaging, and distribution of the cannabis to customers around the Commonwealth of Australia. He had drug ledgers relating to the syndicate on his phone as well as photos of transactions from the syndicate Wickr accounts and he was, the Crown would submit, by way of inevitable inference more than a simple distributor and packager but had a measure of insight into the overall operation in which he was participating.

100. He allowed his granny-flat at the Sefton house to be used as a safe‑house for the conduct of the enterprise; he was supplying this cannabis between 11 December 2017 and 4 April 2018; he was aware of the drug activities since May 2017. He had photographs of Australia Post receipts and ledgers relating to the syndicate’s operation extending to that period. He supplied cannabis in respect of the offence charged in sequence 8 close to the upper threshold for the offence of commercial quantity supply, and also what was involved in the less serious offence was not insubstantial. His involvement was to a substantial degree reflected in the facts from which I have provided the summary earlier in these reasons.

101. As to his moral culpability he, with some commendable candour I might say, made clear that his offending was for financial gain. He made that assertion or representation in the course of evidence and in the course of the assessment for the sentence assessment report.

102. There is a psychologist’s assessment made by Ann-Marie De Santa Brigida dated 21 July 2019. I have had considerable experience with material provided by this psychologist and also have had the benefit of her giving evidence in proceedings before me on occasions and she is well qualified to offer the opinions given in this report. This notes he has no prior criminal record which is the fact. He was born in 1994 and so this year is 25 years of age and he has no antecedent records in this country. In other respects, apart from this misconduct, he is to be dealt with as a person of good character.

103. He was in this country on a student visa. Once he stopped studying his visa was revoked and there are Immigration issues alive in his case; they are matters that are not relevant to the determination of sentence; whatever the Commonwealth authorities decide to do in relation to him as a non‑citizen in this country is not a matter that is relevant to my task.

83. Thus, upon conviction for this offence, I specify a non-parole period of 3 years and 6 months commencing on 2 July 2018, expiring on 1 January 2022. I impose a further period of imprisonment to commence at the expiration of the non-parole period that shall expire on 1 April 2025, with a result that the offender is subject to an overall head sentence of 6 year and 9 months, including the non-parole period of 3 years and 6 months.

84. Pursuant to s 18(1) Confiscation of Proceeds of Crime Act 1989 I make the following order, by consent. Cash in the approximate sum of $3,500 found at 139 Kingsland Road, Bexley North on 2 July 2018 is forfeited to the State. I sign those orders and they shall be sealed and date stamped.

85. I shall leave the exhibits on file for such period as the parties might require.

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Amendments

16 October 2019 - Included spacing between file numbers

Decision last updated: 16 October 2019