R v Vang Vinh Tang

[2021] NSWDC 729

District Court

New South Wales

Medium Neutral Citation:

R v Vang Vinh TANG [2021] NSWDC 729

Hearing dates:

8, 9, 10, 30 November 2021; 14 December 2021

Decision date:

14 December 2021

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Aggregate sentence. Each indicative sentence is reduced by 25% to reflect the pleas. Indicative sentences:

1. Supply not less than the large commercial quantity of MDMA, taking into account the offences listed on the form 1: 4 years imprisonment with a non-parole period of 2 year and 8 months;

2. Supply not less than the large commercial quantity of heroin: 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months.

The sentence imposed is 5 years imprisonment with a non-parole period of 3 years and 4 months to date from 1 July 2020. The offender is eligible for release to parole on 31 October 2023. This is a variation to the statutory ratio to 66% to give effect to my finding of special circumstances.

Catchwords:

SENTENCING — Penalties — Imprisonment – Supply prohibited drug not less than large commercial quantity

Legislation Cited:

Drug Misuse and Trafficking Act 1985 (NSW)

Category:

Sentence

Parties:

R;
Vang Vinh TANG

Representation:

Counsel:
Crown: K. Nightingale
Defence: A Djemal

File Number(s):

2020/194876

Judgment

1. The offender, Vang Vinh Tang, is to be sentenced for his role in supplying a large commercial quantity of MDMA and also his role in supplying a large commercial quantity of heroin.

2. The offender pleaded guilty and is to be sentenced for:

1. Between 16 February 2020 and 28 February 2020 he supplied 911g and 4.4576 kg of the prohibited drug 3,4-methylenedioxymethylamphetamine [MDMA], being an amount not less than the large commercial quantity.

2. On 1 July 2020 he supplied 6.9223 kg of the prohibited drug heroin, being an amount not less than the large commercial quantity.

3. Both offences are contrary to s.25(2) Drug Misuse and Trafficking Act 1985 (NSW) with a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Both the maximum penalty and the standard non-parole period operate as legislative guideposts and represent the Legislature’s assessment of the seriousness of the offence.

4. The pleas were entered in the Local Court. The appropriate reduction to apply is 25% to reflect the timing of the pleas.

5. The offender asks that two offences listed on a form 1 be taken into account when I sentence on the MDMA offence. I consider it appropriate that this occur and I will take these matters into account in accordance with the guideline judgment. They are offences of supplying the prohibited drug MDMA in an amount of 3.29g on 17 December 2019 and possessing the prohibited drug cannabis on 1 July 2020. If prosecuted separately the maximum penalties that would apply are 15 years imprisonment and 2 years imprisonment respectively. There will be an adjustment made to reflect this additional criminality, more so the additional supply offence as it reflects an extended period of involvement and a greater need for personal deterrence.

6. I have had regard to the entire facts document and only recite some parts in identifying the offences for sentence or on the form 1 and in addressing the objective seriousness.

7. From late 2019 police conducted a controlled operation involving two undercover operatives. Contact was established with Hoang Ngo and continued between December 2019 and July 2020. Communication was made involving encrypted Cipher phones. Ngo organised for others to make deliveries he negotiated.

8. The supply offence on the form 1 arises out of Undercover Operative (“UCO”) 675 exchanging cipher messages with an unnamed person from 9 December 2019. Ngo became involved in the messaging with Ngo agreeing to provide a sample of MDMA in the context of the UCO suggesting a supply of 5kg. On 16 December 2019 Ngo set up a group Cipher chat headed “4 grams mdma sample”. The offender was included in the group chat. Ngo indicated the offender would provide the sample. The offender liaised with UCO 646 on where to meet for the exchange. On 17 December 2019 the offender contacted the UCO about the meeting. The offender personally delivered the drugs to UCO 646 in her car. The offender texted on the chat “all done” and the chat was immediately deleted by Ngo. The bag supplied contained 3.29g of 76.5% pure MDMA.

9. UCO 675 met Ngo on 17 February 2020 and they discussed the supply of 118kg with a 1kg sample. It is not suggested the offender had knowledge of this discussion. Ngo said he would send one of his drivers with the sample.

10. Ngo set up a new Cipher group chat including the offender and titled it “+T22M sample”. Arrangements were made on the chat for the offender to meet UCO 646 at the same place on 19 December 2019. Ngo sent a message on the chat that they would be ‘passing 900g plus sample” The offender met up shortly after and delivered a bag purportedly containing MDMA. In fact, it contained 911.1g of glucose.

11. On this evidence the offender was involved in the chat and the planned delivery for 2 days. This was an agreement to supply and a purported supply.

12. There was a disputed fact about what the offender said to the UCO. She said she asked if “this is the same as last time” and that the offender replied “nah, its different”. The first supply had used a clear sandwich bag containing a crystal substance. This bag was in another bag and it contained brown rocks. The UCO was required to give evidence. She said the offender did make the comment attributed to him. The witness recorded this version in her statement made the following day when the conversation would have been fresh in her mind. Other parts of her account are consistent with the recording. She did not have access to the recording when she made her statement. The recording was tendered. Although I cannot hear the entire response, I am confident the word “different” is said. The offender did not give evidence. I accept beyond reasonable doubt the evidence of the UCO as to what was said. This indicates an awareness of the appearance of the drugs on each occasion and an appreciation that there was a difference. It does not mean he was aware that one was glucose.

13. When the offender left the car he sent a group chat message that all was done and Ngo said he would delete the chat. This was done. This supply of a substance held out to be MDMA is one of two supplies supporting the offence.

14. The offender denies he was aware of the quantity being supplied. He was in the group chat that identified 900g and he carried the bag. I am satisfied beyond reasonable doubt he was aware of the quantity.

15. Ngo and UCO 675 agreed for the substance to be returned as it was ‘rubbish”. Ngo set up a group chat titled ‘return mdma’ on 18 February 2020 including the offender. The offender met UCO 646 on 20 February 2020 to retrieve the substance. He shrugged when told it was not a drug. He gave her $1000 although he said he did not know why. The group chat was deleted.

16. On 21 February 2020 UCO 675 negotiated with Ngo for the supply of 4.5kg of MDMA for $78, 750. On 24 February 2020 it was arranged that the delivery would occur on 27 February 2020. On 26 February 2020 Ngo indicated the offender would coordinate this supply. A group chat including the offender was set up titled “4.5kg Thursday”. Ngo sent a message to the group that 4.5kg was to be delivered for ’78.75” and that “super [the offender] coordinate this drop”. UCO 646 and the offender exchanged messages. On 27 February 2020 the offender and UCO 646 settled on a meeting place and time of 2pm. At 1.46pm the offender sent a message to UCO 646 that the driver would be about 5 minutes late. Anmar Hermiz was the delivery driver. At about 2pm Hermiz arrived in a van. He opened the door of the front passenger seat, as had been agreed. He threw the drugs in a backpack in the car and asked “if there was anything else’. The UCO handed him the money, $78, 750, in a bag and Hermiz left. The offender sent a message soon after to the UCO saying “all good?” The cipher chat “4.5kg – Thursday” was then deleted.

17. The MDMA weighed 4.4576kg, there were 5 bags with four each of 1kg, and the purity was 35-35.5%.

18. On this evidence the offender was involved in the chat and the planned delivery from the day before the planned supply.

19. The offender denies he was aware of the quantity being supplied. The message title indicated the quantity and there was a message with the monetary value. I am satisfied beyond reasonable doubt he was aware of the quantity to be supplied. I note that this dispute was not ultimately maintained in submissions.

20. This count is supported by two discrete supplies. In total over two occasions, 5.3694kg of MDMA was agreed to be supplied or supplied.

21. From 25 June 2020 Ngo and UCO 675 commenced negotiations for the supply of heroin. It was agreed that ’20 plates’ would be supplied for ‘1.95m”. On 29 June 2020 Ngo created a new cipher chat titled ’20 plates- COD 1.95 Wednesday” that included himself, UCO 675, this offender and two other names. The following day UCO 675 added UCO 646. UCO 675 confirmed the deal would occur the following day between 1-2pm at a location to be advised. On 1 July 2020 Ngo advised one boy would come to count the money and a second boy would bring the drugs and then both boys would leave with the money.

22. At 12.21pm UCO 675 advised the chat group of the hotel name and location. This offender responded “Ok bros”. Ngo advised at 1.15pm the boys were on the way and would be 10-15 minutes. The offender texted at 1.25pm that he had arrived. At 1.27pm UCO 675 advised the chat of the room number. The offender entered at 1.30pm and he commenced counting the money. He used his phone to send and receive messages. A co-offender, Hung Quoc Nguyen, then arrived with the drugs in 20 separate bags contained in a sports bag. 6.9223kg of 72% pure heroin was supplied. They were both arrested.

23. On this evidence the offender was involved in the chat and the planned delivery for 2 days.

24. It is a disputed fact that the offender knew of the quantity. The group chat referred to ’20 plates’. There is no specific evidence of what a plate is. However, the value was 1.95 million and this was indicated in the title. I am satisfied beyond reasonable doubt that the offender knew he was supplying a quantity of drugs valued at close to $2 million. I note that this dispute was not ultimately maintained in submissions other than that it was precisely 7kg. The offender told the UCO’s that another person was arriving soon after him with the drugs. He was evidently aware of the arrangements that had been made and that they would leave together.

25. After arrest, police located 11.6g of cannabis in the offender’s home. This is an offence on the form 1.

26. In assessing the drug supply offences, I am cognisant to consider the role played by the offender and whether others were involved, the type of prohibited drug involved, the amount of the drug and the purity. I appreciate that no drugs were supplied for one of the supplies supporting the MDMA offence.

27. The offender’s role was evidently a trusted role. He was included in the cipher messages and he communicated with the purchasers. He was the delivery person entrusted with drugs and money. He was stated to be the co-ordinator of the 4.5kg supply. He utilised Hermiz to be the actual front person for one supply. His role was important within the group. He was exposed to detection on the two occasions he was involved in the meetings. I note that his offence on the form 1 demonstrates his offending was not isolated in time. Others were involved including Ngo who was at a considerably more involved and elevated level.

28. The offender was involved with an awareness of what he was delivering either by weight or value. He was not a mere delivery person or conduit.

29. There is no evidence, other than unsworn or hearsay accounts, of how he came to be involved.

30. I observe the weight range for the offences is well above 500g MDMA and 1kg for heroin. The amount involved is well above the minimum. As the drugs were seized no drugs were disseminated into the community. This is not attributable to any act of the offender or concern held by the offender. The MDMA was of a lower purity. The heroin was of a high purity.

31. The value of the MDMA if sold individually was $20 per tablet or $28,000 per kilogram. Heroin was sold for $300 per gram or $170,000 per kilo. During the pandemic the prices were inflated. The MDMA offence occurred pre-pandemic.

32. The offender told Dr Ram, psychologist, that he was a regular drug user of cocaine for years and increasing at the time of offending. He said he became involved in the offending to reduce his drug debt and to obtain cocaine for his personal use. He said he received no money. He said whilst still drug affected he was required to count the drug money. No cocaine was located on him or at his home upon arrest. He said his partner had located a plate of cocaine and this caused a fight. This account is not supported. Further, he advanced an account that on the day he wasn’t thinking straight at all, he was not prepared to go out and that he was on call and instructed to attend the hotel. This overlooks his involvement from 29 June 2020 in the group chat when the supply was organised.

33. Historical COPS entries are provided. In 2005 he was in the company of other juveniles, two of whom appeared influenced by cannabis. Later in 2005 he was found is possession of cannabis. In 2006 he was caught with two other juveniles smoking cannabis. These records accord with his account to Dr Kam of using cannabis at 15 or 16 on weekends. A small amount of cannabis was located on arrest. No cocaine was located. There is no support for a significant use of drugs at the time of offending.

34. The custody management record from the day of arrest reflect the offender denied using drugs. The custodial documents tendered by the Crown reflect the offender indicated not to have a substance use issue and to not have used drugs in the previous 4 weeks.

35. Based on the conflicting versions, and there being no sworn evidence I am unable to make any determination as to whether he was a user of drugs at the time or the extent of that use.

36. He was involved in the offending for some unknown benefit. He was not a principal and would not have been remunerated on that basis. The actual benefit cannot be divined.

37. The issue of drug use does not mitigate the offence but it explains his offending. It would be relevant in assessing what he was to gain from participation. This inability to determine this aspect has limited impact.

38. Although different in respects, both offences fall at the bottom of the mid-range of objective seriousness.

39. The offender is now aged 31. He was therefore 29 at the time of offending.

40. The offender has limited criminal antecedents. His adult offending of concern is drug offending involving importation of a marketable quantity. For offences committed in July, September and November 2008 he received sentences of 5 years with a non-parole period of 4 years on each, with each sentence term accumulated by a year. Overall, the sentence was 7 years with a non-parole period of 4 years. He was released to parole on 18 December 2012. This is serious offending although committed as an 18 year old, and it does not disentitle him to some component of leniency. He was sentenced after trial. I am assisted by the remarks on sentence of Judge Zahra. There were issues with his truthfulness. I observe he was found to have a different date of birth to that nominated in this matter, and to have been born on 1 January 1990.

41. The offender has been in custody since his arrest on 1 July 2020.

42. I am assisted by the psychological report authored by Dr Kala Ram. I also have the historic reports from 2009 and note inaccuracies between accounts. He is an unreliable historian. In 2009 he advanced a happy home life and no use of drugs or alcohol. He now advances using alcohol from 14 and then cannabis from 15-16. He also advances that he moved to cocaine in his 20’s and a significant drug habit from 2019. He states he has been abstinent from his arrest. The offender told Dr Ram that he lied in 2009 to avoid disclosing his drug use to his family. He did not provide an account of why he denied being a drug user when entering custody in 2020. A COPS entry was tendered that may reflect domestic violence between this offender and a sibling, based on the age. It is not clear which was the victim and which was the perpetrator but the female reported the matter to police. I accept that one of his sisters supported his account of a difficult home life with an authoritarian father.

43. Dr Ram opines the offender meets the criteria for a major depressive disorder, trauma and stress disorder, cocaine use disorder and sedative disorder. The offender was already offending prior to the loss of his friend to a drug overdose. The supply on the form 1 occurred the previous year. There is reference to PTSD in both this report and the GP note. The offender was assessed as being of low intellectual functioning for his earlier sentence. There is no suggestion any cognition limitations inform this deliberate offending.

44. There were difficulties in his childhood and some disadvantage.

45. I am unable to determine that any of the features inform offending to warrant anything other than modest amelioration to sentence and the lessening of moral culpability.

46. The offender has a long-term partner, one child and a step-child. He was in stable employment working in a gym at the time of his offending. He held the position of manager. This presents as not readily correlating with a drug addiction to the extent suggested.

47. The offender did not give evidence on sentence. The offender wrote to the court of his remorse. He addressed his substance issues with cocaine, alcohol, cannabis and Valium whilst working in his satisfying job. He said he became involved because he as vulnerable and easily influenced. He said he didn’t realise how serious his actions were. This lack of insight is surprising as he was involved in drugs offending previously.

48. The character references support the offender’s work ethic. His employer of 3 years does not allude to any performance issues related to substance abuse. Quite to the contrary.

49. There are hearsay representations of remorse. The offender sought to limit his knowledge of the offending. He did not accept aspects of the facts. I accept there is some remorse but limited insight.

50. He received and continues to receive family support.

51. General deterrence and denunciation remain important sentencing considerations given the prevalence of these offences and the harm occasioned to individuals and the community.

52. The offender previously committed drug offences and has reoffended. I accept that he was at liberty for 7 years before he reoffended. On the differing evidence before me, I have not made any finding about drug use. If he did offend because of drug use and his account of drug use was accurate then he is at risk of relapse. He has undertaken courses and is desirous to undertake chromogenic specific courses. This bodes well. Dr Ram assessed the offender as falling in the low/ medium risk of reoffending. I am unable to confidently gauge his risk of reoffending. I accept there are positive markers of rehabilitation including undertaking courses. Personal deterrence is of continuing significance.

53. A sentencing schedule, statistics and asserted comparable cases were provided.

54. I am to sentence on two offences separate in nature and committed 5 months apart. There is separate and distinct criminality. This speaks of the need for appropriate accumulation. However, I need to consider the imposition of an appropriate sentence overall.

55. The threshold has been passed and the only appropriate sentence is one of full time imprisonment. The sentence commencement will be from when he entered custody on 1 July 2020.

3. I am mindful of the sentence to be imposed upon the co-offenders Nguyen and Hermiz who participated in an act of supply with this offender. Each was less involved than this offender. I have also considered the sentencing outcome for Zahariadis, not strictly a co-offender, but operating in the same group who performed supplies on other unrelated occasions. His involvement is considerably lower. This offender has prior offending for drug offences and the findings on his subjective case are less favourable.

4. I make a finding of special circumstances. This is based on an acceptance of the more restrictive conditions in custody during COVID; the longer periods in cells, the lack of personal visits and reliance on AVL/ phone contact and the more limited access to courses. As I have not accepted the history of drug use I am unable to determine the need for an extended period to assist rehabilitation on the basis. However, there is evidently some force that informs offending that would benefit from extended supervision.

5. The offender is convicted of both of the offences for sentence.

6. Sentence:

I intend to impose an aggregate sentence. Each indicative sentence is reduced by 25% to reflect the pleas. I nominate the following indicative sentences:

1. Supply not less than the large commercial quantity of MDMA, taking into account the offences listed on the form 1: 4 years imprisonment with a non-parole period of 2 year and 8 months;

2. Supply not less than the large commercial quantity of heroin: 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months.

The sentence imposed is 5 years imprisonment with a non-parole period of 3 years and 4 months to date from 1 July 2020. The offender is eligible for release to parole on 31 October 2023. This is a variation to the statutory ratio to 66% to give effect to my finding of special circumstances.

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Decision last updated: 07 February 2022