R v HUNG; R v DUONG

[2022] NSWDC 501

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v HUNG; R v DUONG [2022] NSWDC 501

Hearing dates:

3 June 2022

Date of orders:

9 June 2022

Decision date:

09 June 2022

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Hung

Six and a half years imprisonment, consisting of a non-parole period of three and a half years, and a balance of term of three years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 September 2024.

Duong

Six and a half years imprisonment, consisting of a non-parole period of four years, and a balance of term of two and a half years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 March 2025.

Catchwords:

CRIME — Drug offences — Supply prohibited drug

SENTENCING — Relevant factors on sentence — Co-offenders — Parity

SENTENCING — Subjective considerations on sentence — Health issues

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

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

Cases Cited:

Mitchell v R [2013] NSWCCA 318

Valetta v R [2021] NSWCCA 208

R v Achurch [2011] NSWCCA 186

Category:

Sentence

Parties:

Office of the Director of Public Prosecutions (Crown)
Mai Van Hung (Offender)
Thanh Quang Duong (Offender)

Representation:

Counsel:
Mr Singh (Offender Duong)

Solicitors:
Ms Nguyen (Offender Hung)
Mr Bucksath (Crown)

File Number(s):

2021/00077449
2021/00077673

SENTENCE

Introduction

1. The offender Thanh Quang Duong is to be sentenced having pleaded guilty to the following offence: that between 5 January and 18 March 2021, he supplied an amount of a prohibited drug, namely 915.88 grams of methylamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. That is an offence under s 25 subs (2) of the Drug Misuse and Trafficking Act, it has a maximum penalty of life imprisonment, and there is an applicable standard non-parole period of 15 years imprisonment. He acknowledges his guilt in relation to two offences on a form 1 and asks that I take them into account when sentencing him on the principal offence. Those offences are an offence that, on 18 March 2021, at Mt Pritchard, he supplied a prohibited drug, namely 29 grams of methylamphetamine, and an offence that on the same date he dealt with the proceeds of crime, namely $5,600 in Australian currency, knowing that it was the proceeds of crime.

2. The offender Mai Van Hung stands to be sentenced having pleaded guilty to an offence that between 5 February and 18 March 2021, he supplied an amount of a prohibited drug, namely 722 grams of methylamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. That too is an offence under s 25 subs (2) of the Drug Misuse and Trafficking Act and has a maximum penalty of life imprisonment, and there is an applicable standard non-parole period of 15 years imprisonment. The offender Hung acknowledges his guilt of, and asks that when sentencing him on the principal count I take into account the following offences: on 18 March 2021 knowingly deal with the proceeds of crime, being $4,750 in Australian currency; knowing that it was the proceeds of crime; on the same date have in his possession a prohibited drug, being 5 grams of heroin; on the same date have in his possession a prohibited drug, being 5 grams of methylamphetamine; and on the same date have in his possession 5 mLs of gamma-butyrolactone.

The facts

Duong

3. Turning then to the facts, the facts concerning the offender Duong are essentially as follows: in December 2020, police established a strike force to investigate the supply of prohibited drugs throughout the southwest metropolitan area. On eight separate occasions, a co-offender whom I have already sentenced, Lee Thanh Vuong, was contacted by an undercover officer for the supply of methylamphetamine. And after the amount of drug to be supplied and the price was agreed upon, a meeting was arranged with the undercover officer for the delivery of the drugs to occur. On the date of the prearranged meeting, the co-offender Vuong met with the undercover officer for the supply of the methylamphetamine to occur at the agreed price. During the police surveillance for the period 5 February to 18 March 2021, once a meeting was arranged between Vuong and the undercover officer, and the amount and price agreed, on the day of the transaction and prior to the transaction, police observed a Daniel Wong, who on the Crown case is another co-offender, drove to the residence of the offender Hung with the amount of the methylamphetamine and then left.

4. Shortly after that the offender Duong was observed to drive to Hung’s premises; he entered those premises, and then returned back to his residence at 7 Grainger Avenue, Mt Pritchard with the drugs for the co-offender Vuong to supply to the undercover officer. On each occasion, Vuong asked the undercover officer to park close to the residence of the offender Duong by sending him a text message. The offender Duong was then the boyfriend of Vuong. After the undercover officer parked the vehicle, Vuong was observed to leave the offender Duong’s residence at 7 Grainger Avenue, Mt Pritchard, and walk to and enter the undercover officer’s vehicle. The undercover officer was observed to drive a distance away from that address and Vuong then supplied the undercover officer with the drug for the agreed price. Vuong then left the vehicle and walked back to Duong’s residence.

5. On each occasion, a proportion of the money paid by the undercover officer was provided to the offender Hung by the offender Duong and the co-offender Vuong after taking an amount from the buy money. The offender Hung then gave that money to the person Wong, who paid the offender Hung from the money collected by Vuong from the undercover officer.

6. The offender Duong is to be sentenced in relation to eight such supplies of methylamphetamine, the particulars of which are as follows: 5 January 2021, 27.5 grams with a purity of 79.5% for $6,300; 16 January 2021, 55.7 grams with a purity of 80% for $12,200; 21 January 2021, 55.5 grams with a purity of 79.5% for $12,200; 29 January 2021, 55.1 grams made up of 27.5 grams having a purity of 80%, and 27.68 grams having a purity of 79% for $12,200. During this supply the co-offender Vuong discussed with the undercover officer the possible supply of a kilogram. 5 February 2021, 161.1 grams with a purity of 80% for $36,300; 15 February 2021, 165.7 grams with a purity of 81% for $36,300; 22 February 2021, 166.9 grams with a purity of 80.5% for $36,300. 18 March 2021, 223 grams for $46,600, the purity of that amount was not tested. The specific details of the supplies are set out in the agreed facts; I do not propose to read them onto the record, but I have considered all of the agreed facts in arriving at the appropriate sentence. The total amount of methylamphetamine supplied in the eight supplies that the offender Duong involved himself in was 915.88 grams.

7. On 18 March 2021, the offender Duong was arrested; a search warrant was executed at his residence at 7 Grainger Avenue, Mt Pritchard, and the police located 29 grams of methylamphetamine, which is the subject of one of the form 1 offences. The police also located $5600 upon the offender Duong, that amount is also the subject of an offence on the form 1 of knowingly deal with the proceeds of crime. Ninety-five $50 notes were from the buy money used in the 18 March supply, one note was from the 5 February supply, and two were from a supply said to have occurred on 16 December 2020.

8. The police also located multiple pages of a ledger and a number of mobile phones, which is consistent with the offender Duong being actively involved in the supply of prohibited drugs. The offender Duong declined to participate in a record of interview with the police.

Hung

9. In terms of the offender Hung, the agreed facts concerning him detail four supplies involving in total 722 grams of methylamphetamine. Those supplies are chronologically the last four supplies I set out from the agreed facts concerning the offender Duong, and occurred on 5 February, 15 February, 22 February, and 18 March 2021.

10. The mechanism by which those supplies occurred are as I set out from the agreed facts concerning the offender Duong. The amount of drug agreed between the co-offender Vuong and the undercover officer was delivered by the person Wong to the offender Hung’s residence. Shortly after that occurred, the offender Duong would attend Hung’s residence and return to his own residence with the drugs for the co-offender Vuong to supply to the undercover officer. On the occasion of each supply a proportion of the money paid by the undercover officer was provided to the offender Hung, who then gave the money to the person Wong. Wong then paid the offender Hung for his contribution from the money collected from the undercover officer. The agreed facts in relation to the offender Hung state that at about 1.45pm on 18 March 2021, the co-offender Vuong and the offender Duong were observed to leave Duong’s address in Mt Pritchard and attend the residence of the offender Hung.

11. They remained in Hung’s premises for several minutes and then left and returned to Duong’s premises. At about 1.55pm that day the person Wong attended and entered Hung’s premises for a short time before leaving. About 2pm that day Wong was arrested in his motor vehicle and $24,000 in cash was located in the centre console. $23,250 of that sum was matched to the buy money paid to the co-offender Vuong by the undercover officer earlier that day. Police later that day executed a search warrant at the person Wong’s premises and the police located a dismantled clandestine drug laboratory. At 2.25pm on 18 March 2021, the police executed a search warrant at the premises of Hung and located a total of $4,750 in cash, which is the subject of one of the form 1 offences. $3,900 of that cash was found to match the buy money used by the undercover officer to buy the methylamphetamine from Vuong on 18 March 2021. Police also located 5 grams of heroin, 5 grams of methylamphetamine, 5 mils of gamma-butyrolactone and three mobile phones. Those substances are each the subject of an offence on the form 1 concerning the offender Hung.

12. Police also located a bum-bag in the premises which contained $750, one note from that amount was found to match the buy money used to buy drugs from Vuong on 22 February 2021.

13. The offender Hung swore an affidavit which in part dealt with the circumstances of his offending. He was not required for cross-examination on his affidavit by the Crown. According to the offender Hung’s affidavit, he knew the person Wong, and in the year prior to the offending by chance saw Wong in Cabramatta. The offender Hung deposes that Wong gave him a small amount of ice and heroin to take for “pain” he says he was experiencing. Hung deposes that Wong said to him to let him know if he “knew anyone who wanted drugs”, and that Hung would receive “a payment” for doing so. The offender Hung deposes to having known the offender Duong since 1988. Hung’s affidavit states that in early February 2021 he was aware that Duong was looking for drugs and advised Wong. He further deposed that Wong would drop the drugs off to his home and that Duong would pick up the drugs, and come back with the payment, which Hung would give to Wong.

14. According to Hung’s affidavit he received $500 from Wong for the first supply, $1,000 for the second and third supply, and $4,000 for the supply on 18 March 2021. He states that in his affidavit that he “did not know” the co-offender Vuong. The Crown chose not to cross-examine the offender Hung on his affidavit, and what is contained in his affidavit about his involvement in the offending is not, on the face of it, inconsistent with the agreed facts on which he is to be sentenced and I consider I should accept the truthfulness of his evidence in that regard.

Objective seriousness

15. I will now consider the objective seriousness of the offences. As I said when sentencing the co-offender Vuong, the amount of drug and its purity are always relevant, but not determinative factors when sentencing for drug supply offences. Here the amount of the drug that was supplied in relation to the offender Duong was almost twice the minimum amount that constitutes the large commercial quantity under the Drug Misuse and Trafficking Act.

16. The total amount involved in the supplies by the offender Hung was almost 200 grams less than the total amount involved in the supplies that Duong involved himself in. The drug was supplied in significant amounts during each of the individual supplies, and over time the amount increased. The drug that was supplied was of a relatively high purity. The drug was supplied to an undercover officer so that the drug did not enter the user market; it is trite to observe that the offenders did not know that. The fact the drug was supplied to an undercover officer is not a mitigating factor in my opinion. There was some planning involved in the offences, but none above that normally associated with this type of offence. The amounts involved in the supplies are indicative of those involved in the supplies being above the level of what is sometimes called “street dealers”.

17. The quantities and level of purity suggest that the supply here was in the nature of a low-level wholesale supply. The offender’s role is another relevant factor when sentencing for drug supply offences. Here the offender Hung’s role appears to be that of someone who takes possession of the drug from the person Wong until it is collected by the person Duong so it can be delivered by Vuong to the undercover officer. Hung is also involved in providing to Wong the funds that are received by Duong and Vuong from the undercover officer. The facts suggest that Hung only had the drugs on his premises for a relatively short time before they were collected by Duong, so that Vuong could complete the supply to the undercover officer. Hung’s involvement in the offence was clearly for financial gain, which is the usual reason a person involves themselves in the supply of a large commercial quantity of prohibited drugs, although on the evidence the financial gain by Hung was modest.

18. Duong is to be sentenced for involving himself in eight supplies. His role seems to be that of collecting the drugs from Hung’s premises, transporting them to his own premises, providing them to Vuong so that she could complete the supply to the undercover officer. Duong, together with Vuong, provided Hung with the balance of the purchase money received from the undercover officer after deducting what would appear to be their fee for involving themselves in the particular supply.

19. In terms of the supply on 18 March 2021, an analysis of the amounts in the agreed facts for both offenders suggest that the person, Wong, received $23,250, the offender Duong $5,600, the offender Hung $4,750 and I recorded in my remarks when sentencing Vuong that she had received $4,800. I do not think much can be inferred about the respective roles from the evidence concerning the finding of buy money on their personal premises except that it is consistent with the person, Wong, being further up the hierarchy than anyone else involved in the supply.

20. I am satisfied that the offender Duong also involved himself in the offence for financial gain. I consider that the evidence establishes that Hung’s role was quite limited having regard to the amounts involved, the number of suppliers and what he appears to have received by way of payment for involving himself in the offence. I consider his offence is towards the lower end of the range of objective seriousness, but not at the bottom.

21. I consider Duong’s role to be greater than that of Hung, and similar to that of Vuong, but a little below her role. I assess the objective seriousness of his offence as considerably below the mid‑range of objective seriousness for such offending. In assessing where on the range of objective seriousness these offences lie, it must be remembered that this offence encompasses a large range of offences encompassing on occasions the supply of multiple kilograms of prohibited drugs by various sophisticated criminal organisations engaged in the business of drug supply. See in that regard the discussion by Dhanji J in Mitchell v R [2013] NSWCCA 318.

22. I have also had regard to observations made by Bellew J in Valetta v R [2021] NSWCCA 208 in paras 43‑51 about the approach to be taken to assessing objective seriousness of such an offence. The type of supply engaged in here cannot be said to be overly sophisticated.

The Offender’s subjective case

Duong

23. I turn then to consider the offender Duong’s subjective case. The offender Duong’s date of birth is 10 October 1969, so he is 53 years of age. I said he is 53. He is 52 turning 53 this year. He has a very limited criminal history. In 2018 and in 2021, he has been fined for offences of possess prohibited drug and goods in custody. His lack of a criminal record entitles him to some leniency here, there being no evidence suggesting that his lack of a criminal record somehow facilitated the commission of the offence.

24. The only documentary material I have in relation to the offender Duong is the Sentencing Assessment Report dated 13 May 2022. The offender Duong did not give evidence on sentence. In relation to his family background, prior to his arrest, the offender Duong was living with his mother and intends to live at the same address when released from custody. He has two adult daughters from his first marriage and retains the support of his ex‑wife. He remarried four years ago but was estranged from his wife as at the date of the offence, and is unsure of the status of that relationship.

25. He hopes he will be able to reunite with his wife when he is released. The offender Duong reported to the author of the Sentencing Assessment Report a strong employment history but was unemployed at the time of the offence. While in custody he is currently in the Corrective Services Food Services Unit and has received no adverse reports.

26. The offender Duong told the author of the Sentencing Assessment Report that he was introduced to the drug “ice”, by an associate about four years ago. He reported that around the time of the offending he was using one gram of “ice” per day. The offender Duong is recorded in the Sentencing Assessment Report as telling the author that he had a significant history of problematic gambling. The Sentencing Assessment Report records that the offender Duong minimised the severity of his gambling addiction and his willingness to address that issue was said to be unclear.

27. The offender Duong told the author of the Sentencing Assessment Report that his offending was attributed to the need to fund his drug and gambling addictions. The Sentencing Assessment Report records the offender as accepting responsibility for his offending but commented that he only became involved in the supply of drugs after meeting his girlfriend, the co‑offender Vuong, at the time.

28. He claimed to have approached an associate who he knew was already involved in the supply of prohibited drugs because he could not afford his own drug habit. The Sentencing Assessment Report records the offender Duong as expressing regret and remorse for his actions although that appears to have been focused upon feeling embarrassed for his family, wife and children and that he struggled to identify any further insight in relation to impact on the general community of his offending. The Sentencing Assessment Report assessed the offender Duong as having a medium risk of re‑offending.

Hung

29. I turn then to the subjective case of the offender Hung. The offender Hung’s date of birth is 29 September 1959, so he is currently 62 years of age, not what I would consider to be an elderly offender given the age of many offenders in our gaol system. The offender Hung has a criminal history. The entries on it of some significance are as follows: In 1990, he was sentenced in this court sitting at Sydney for offences of possess prohibited imports and attempt to obtain possession of prohibited imports and received a sentence of 13 years imprisonment with a minimum term of 10 years.

29. He has a number of more recent driving offences on his record, the most serious of which is a high range PCA which was first dealt with in 2006, and ultimately dealt with by way of an intensive correction order in 2019; it would appear because he absconded to Vietnam, not having completed a community service order. There is a very significant gap in his criminal record as far as drug offending is concerned, however, given the serious drug offence in the past, I consider his record does not entitle him to significant leniency in this sentence. It is not, however, an aggravating factor.

30. The offender Hung tendered the following documents, to which there was no objection by the Crown: an affidavit by the offender dated 30 May 2022, an affidavit by the offender’s wife dated 28 May 2022, 51 pages of medical records obtained from Justice Health, a letter dated 1 June 2022 by Professor Zoltan Endre, together with an article on chronic kidney disease dated 21 July 2021. Both affidavits were formally read and the deponents were not required by the Crown for cross‑examination.

31. In terms of the offender Hung’s background, he was born in Vietnam to a family of nine children. He left school at only 11 years of age and was sent to board with another family in a nearby town. After the end of the Vietnam War the offender returned home and found work in nearby provinces. When 18 years of age, he was part of the crew on a vessel which mutinied and he ended up in Singapore.

32. He was granted refugee status by Australia and travelled here in June 1978. He has lived in a number of different states over that time. In his affidavit the offender Hung provides background to the circumstances in which he came to engage in the drug offence for which he was sentenced in the 1990s. According to his affidavit, he did so in order to raise funds to clear a gambling debt.

33. The offender deposes to in 2002, being shot in the leg while working in a restaurant in Cabramatta which resulted in a fracture. He has experienced pain in that leg since that time. In 2006, the offender returned to Vietnam to visit his ailing mother. While back in Vietnam, the offender commenced a relationship with his wife and in 2011 they moved to Ho Chi Minh City and had two children born in 2013 and 2014. In 2017, while in Vietnam, the offender became ill and I will discuss his health conditions a little later in these remarks.

34. On 2 May 2017, the offender returned to Australia to seek medical treatment. In 2018 his wife and children arrived from Vietnam to live with him. He was receiving the Disability Pension at that time and was said to be having financial problems. On 27 September 2018, the offender and his wife married. The offender’s wife in her affidavit states that the offender engaged in the offending “because he wanted to earn money to provide for the children” and her.

35. Since entering custody on this occasion, it would appear that his relationship with his wife is over, although she remains supportive and according to the Sentencing Assessment Report, is willing to accommodate him upon his release from custody. His wife states in her affidavit that she will continue to support the offender once he is released from custody and notes that he also has the support of a younger brother.

36. While in Australia, the offender Hung has engaged in a number of forms of employment including working in factories and the steel industry. After a period of time in custody he worked in a restaurant. According to the Sentencing Assessment Report, the offender has not worked since 2005 due to medical issues. The Sentencing Assessment Report records the offender attributing his offending behaviour and his drug use to the stress and physical pain he was experiencing as a result of his medical conditions.

37. According to the Sentencing Assessment Report, the offender reported that he commenced daily “ice” use in the year leading up to the offences. That report records that he was smoking between one and three grams of “ice” per day depending upon what he could afford. The offender in his affidavit disputes this and says that he used about one gram of “ice” every fortnight.

38. The Sentencing Assessment Report indicates that the offender has had issues with alcohol in the past, but denied he was using alcohol as at the time of the offence. According to the Sentencing Assessment Report, the offender told the author that he had received approximately a thousand dollars per week in cash from his involvement in the offending and that the majority of his earnings were used to fund his personal drug habit. In his affidavit, the offender disputes that the Sentencing Assessment Report accurately records what he said about the money he derived from his offending. The offender deposes that he obtained $500 from the first supply, $1,000 from the second and third supplies, and $4,000 from the fourth supply that he involved himself in.

39. The Sentencing Assessment Report notes that Justice Health records indicate that the offender Hung has been diagnosed with a number of serious medical conditions. The material before me is to the effect that the offender became ill in 2017 in Vietnam and was diagnosed with end stage renal failure and was required to commence dialysis three times a week. On 2 May 2021, the offender returned to Australia to seek medical treatment. He was further diagnosed with ischemic heart disease, diabetic retinopathy, neuropathy, and hypertension. The medical records show that he suffers from end stage kidney disease and is required to have dialysis three times a week, which is administered in the prison hospital. That material shows he also suffers from coronary artery disease and severe diabetic retinopathy, which is controlled with injections. The medical records also show that on 1 April 2021, the offender was admitted to the emergency department of Westmead Hospital complaining of shortness of breath, mild chest pain, and nausea.

40. The records establish that the offender suffered a fall when leaving the hospital after dialysis had been performed on that occasion. A report dated 2 June 2021, from the renal clinic at the Prince of Wales Hospital states the offender was generally stable while on his dialysis regime, although needed better management of his calcium and phosphate balance, and required ongoing management of his anaemia. A report dated 19 August 2021, recalls the offender as reporting that he had been “feeling well”, although noted that there had been some swelling of his lower limbs and recorded significant hypertension. It was also noted that his phosphate control had improved significantly. The records before me establish that the offender is on the transplant list for a kidney.

41. A letter dated 2 June 2022, from professor Sultan Andre indicates that the offender was last reviewed medically on 21 April 2022, and no issues of concern were identified. The letter records that the offender is tolerating his dialysis treatment well. The letter, consistent with other records, notes that the offender suffers from hypertension, ischemic heart disease, and has a previous left femoral fracture from a ballistic injury. He is considered to be “an ideal candidate for a renal transplant”. The letter notes that the expected overall waiting time for a kidney is about six to eight years because of the offender’s blood type. The letter records that the offender may receive a kidney within the next 12 months given the length of time he has already spent on a haemodialysis.

42. The letter also notes that a patient with the offender’s condition aged between 45 to 64 years has a five-year mortality risk of over 25%. An article tendered before me on chronic kidney disease authored by Dr Pradeep Aurora states,

“At every age, patients with ESRD - end stage renal disease - on dialysis have significantly increased mortality when compared with non-dialysis patients and individuals without kidney disease. At 60 years a healthy person can expect to live for more than 20 years, whereas the life expectancy of a patient aged 60 years who is starting haemodialysis is closer to four years. Among patients aged 65 years or older who have ESRD mortality rates are six times higher than the general population.”

44. The relevance of an offender’s significant medical conditions to sentencing were extensively considered by the Court of Criminal Appeal in R v Achurch [2011] NSWCCA 186. The weight to be given to an offender’s medical condition when sentencing is to be assessed in light of all of the circumstances of the case and an appropriate balance has to be maintained between the criminality of the offender and any damage to health or shortening of life.

45. Generally speaking, an offender’s medical condition will only tend to mitigate punishment when there is evidence to show that there is a serious risk that imprisonment will be a greater burden on the offender by reason of ill health, or where there is a serious risk that imprisonment will have a grave adverse effect on the offender’s health. It is of course a matter for Corrective Services to provide appropriate care and treatment for inmates in our gaol system. Factors which are relevant to an assessment as to what weight to give to an offender’s medical conditions when sentencing include the level of seriousness of the offence, whether the medical conditions existed as at the time the offender engaged in the criminal conduct for which he is to be sentenced, and whether the medical condition of the offender has deteriorated since the commission of the offence.

46. Ill health cannot be allowed to become a license to commit crimes, nor should offenders expect to escape punishment because of the condition of their health. Common humanity will operate in the sentencing discretion, but the welfare and protection of the community is paramount, as is the need for adequate punishment to be imposed for serious crimes. Where an offender with serious health problems engages in serious and protracted criminality knowing that the consequences of detection is a substantial period of imprisonment, then that is also a consideration to have regard to. Here the offender had his serious medical conditions as at the time of the commission of the offending, which was a serious large commercial supply of prohibited drugs.

47. In the past, he had received a significant sentence of imprisonment for involving himself in the drug trade, and he must have known that involving himself in the offending would lead to a significant sentence being imposed if he was caught. There is no suggestion that the offender Hung’s medical condition has significantly deteriorated since the commission of the offence, and overall the evidence supports a finding that Corrective Services are ensuring that his medical conditions are being appropriately treated. I do find, however, that the offender Hung’s medical conditions make his time in custody more onerous than it would be for an offender who does not suffer his medical conditions. He would also appear to be particularly vulnerable given his medical conditions and the COVID-19 pandemic. I also note that he has a reduced life expectancy as a consequence of the time he has been on dialysis, although that would have occurred whether or not he was in prison.

48. There is no suggestion in the material before me that he is less likely to be the recipient of a kidney transplant because he is in custody. I have mitigated the offender’s sentence to some degree due to his health in accordance with the principles discussed in Achurch, which I have just outlined. The offender Hung has been supervised by Community Corrections in the past; the Sentencing Assessment Reports records that his overall response to supervision is considered to have been mixed. In 2002 he successfully completed his parole period, however, in 2006 he only completed 180 hours of community service work before absconding to Vietnam prior to completing the outstanding 20 hours of community service work.

49. The offender Hung, in his affidavit, deposes that since his incarceration he has kept a note of the days he has spent locked in his cell as a consequence of the COVID-19 pandemic. The days concerned are set out in para 67 of his affidavit, and at times he has been locked in his cell for up to 14 days straight. It is well known that inmates are spending longer in their cells, have fewer in-person visits, and fewer programs available to them as a consequence of the pandemic. According to the Sentencing Assessment Report, the offender, Hung, accepted that he gave no consideration to the implications of his actions and was driven by self‑interest. The Sentencing Assessment Report also states that the offender, Mr Hung, displayed, "some insight into the impact drugs have on the community by acknowledging his role in the cycle of drug supply and the impact drugs have not only on those that become addicted but also their families".

50. The offender Hung's wife in her affidavit, states that she speaks with the offender on the phone regularly, and that the offender has expressed regret for his offending, and has apologised to her for his offending. The offender, in his affidavit, states that at the time of the offending, he was "deeply affected by the state of my family finances and my deteriorating pain", and that he wanted to provide for his wife and children. He also states that "my poor health and a desire to try and provide better living conditions for my wife and children led me to participate in illegal activity".

51. The offender, Hung, also states in his affidavit that he apologises for his offending and is aware that his "assistance in the supply of drugs destroys families and society". The Sentencing Assessment Report assessed the offender, Hung, as having a medium risk of re‑offending.

Imposition of sentence

52. Both offenders, Hung and Duong, entered pleas of guilty in the Local Court and I will allow them a 25% discount of their respective sentences for the utilitarian value of their pleas, in accordance with the Crimes (Sentencing Procedure) Act.

53. In relation to the offender, Duong, I do not consider that the evidence supports a finding that he has insight into the serious nature of his offending and its potentially adverse impact upon the community. His remorse appears to be self‑focused. Coupled with his plea of guilty, there is some remorse here but it is not as fulsome as that displayed by the offender, Hung. The early plea of guilty and the statements of remorse contained in the offender Hung's affidavit, and to other persons, satisfies me that he has some genuine remorse in relation to his offending.

54. The offender, Duong, has essentially no prior criminal record. He is in his fifties and has some support in the community. I consider that overall, he has reasonable prospects of rehabilitation. Despite the offender Hung's prior record, I consider that he has reasonable prospects of rehabilitation. He is in his sixties, has significant health issues and will have support in the community when ultimately released from custody. I also note that in the past, there appears to have been a significant gap in his offending. While I have found that both offenders have reasonable prospects of rehabilitation, I am not in a position to make a finding that neither will re‑offend. Much will depend upon their ability to stay away from those involved in the supply of prohibited drugs when next in the community.

55. In relation to the offender Duong, I make a finding of special circumstances when fixing the non‑parole period for the following reasons in combination: this is his first time in custody, he will need an extended period of parole in order to assist his rehabilitation of his drug misuse, and because he is being sentenced during the pandemic. In relation to the offender Hung, I make a finding of special circumstances when fixing the non‑parole period for the following reasons: his medical conditions mean that his time in custody will be more onerous than it is for persons who do not suffer those conditions, the fact that he is being sentenced during the pandemic which means that the conditions of custody are more arduous, and he is particularly vulnerable in custody, given his illnesses.

56. Both offenders have been in custody since 18 March 2021, and their sentences will be backdated to that date to take account of the pre‑sentence custody.

57. The offences on the Form 1 that relate to Mr Duong have a limited impact upon the sentence to be imposed on the principal count concerning him. The subject of the proceeds of crime offence involved cash, the majority of which was derived from the supply count on which he is to be sentenced. The supply drug offence on the Form 1 related to the 29 grams of methylamphetamine found at the offender's premises, it has a limited impact on the sentence to be imposed, given the quantity of drug involved.

58. The offences on the Form 1 that relate to the offender, Hung, are not such as to have any real impact upon the sentence to be imposed on the principal charge. The majority of the cash, the subject of the proceeds of crime offence, was derived from the supply count on which he is to be sentenced. The possess prohibited drug matters on the Form 1 are for relatively small amounts. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act. As I said, when sentencing the co‑offender, Vuong, general deterrence must always feature significantly when sentencing for drug supply offences like the offences here.

59. Prohibited drugs are destroying lives, families and the very fabric of our community. Those who seek to make a financial gain from selling large commercial quantities of prohibited drugs must expect to receive significant sentences in order to deter them and others from engaging in such serious criminal activity. The maximum penalty and the standard non‑parole period have been taken into account as legislative guide posts. It will shortly be seen that I have departed from the standard non‑parole period, and I have done so due to my assessment of the objective seriousness of the offences and the pleas of guilty and the finding of special circumstances.

60. There is an issue of parity in this sentence, in particular, having regard to the sentence I imposed on the co‑offender, Vuong. I sentenced Vuong for the same offence that these two offenders are to be sentenced for, although the amount of drug the subject of her sentence was the same as in relation to the offender, Duong, and less, therefore, than the amount of drug the subject of Hung's offence. Vuong also had a proceeds of crime offence on the form 1. I found that offence had no impact on the sentence to be imposed on the principal count. I noted when sentencing the offender, Vuong, that the Crown had accepted that her role was less than her co‑offenders. Based on the material I now have before me, I am not satisfied that concession was an appropriate one.

61. Given what appears to be the limited roles of the offenders, Hung and Duong, as revealed in the material before me on their sentence, I consider that although Vuong's role involved her meeting with the undercover officer, and therefore, having the risk associated with doing so, she appears to have had more of an organising role than either of the two offenders I am to sentence today. As explained earlier when discussing the objective seriousness of the offences, I consider that Hung's role is a limited one. He receives the drugs from Vuong for a relatively short time. Vuong and Duong collect them, and return with the buy money which Hung holds until it is collected by Wong. Duong's role is closer to that of Vuong, in my opinion.

62. In terms of the subjective cases, all three offenders pleaded guilty in the Local Court. Vuong had a relatively poor subjective case. She committed the offence while on parole for a similar offence for which she had been sentenced in 2013. Her criminal record disentitled her to leniency and the offence was committed on conditional liberty which was an aggravating factor. I found that the offender, Vuong, had little insight or remorse in relation to her offending, and had a medium risk of re‑offending. I found that the offender, Vuong, had no better than guarded prospects of rehabilitation. I made a limited finding of special circumstances when fixing her non‑parole period.

52. Given my findings as to the role of each of the offenders in these remarks, and the different subjective cases, in my opinion, the offenders, Hung and Duong, should receive a considerably lesser sentence than Vuong received, although I am conscious of not imposing sentences which create a justifiable sense of grievance for any of the offenders.

53. The offender, Duong, is convicted of the offence of supply a large commercial quantity of prohibited drug, and having regard to the offences on the Form 1, I impose a sentence consisting of a non‑parole period of four years imprisonment, and a balance of term of two and a half years imprisonment. That is a total sentence of six and a half years imprisonment. It commences on 18 March 2021 and expires on 17 September 2027. The non‑parole period expires on 17 March 2025. The earliest date the offender Duong is eligible to be released to parole is 17 March 2025.

54. The offender Hung is convicted of the offence of supply large commercial quantity of prohibited drug, and, having regard to the offences on the Form 1, I impose a sentence consisting of a non-parole period of three and a half years imprisonment, and a balance of term of three years. That is a total sentence of six and a half years imprisonment. It commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 September 2024. The earliest date that Mr Hung is eligible for parole is 17 September 2024.

Orders

Duong

1. Six and a half years imprisonment, consisting of a non-parole period of four years, and a balance of term of two and a half years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 March 2025.

Hung

1. Six and a half years imprisonment, consisting of a non-parole period of three and a half years, and a balance of term of three years. The sentence commences on 18 March 2021 and expires on 17 September 2027. The non-parole period expires on 17 September 2024.

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Amendments

15 November 2022 - Title

Decision last updated: 15 November 2022