R v Vu
[2021] ACTSC 347
•4 August 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Vu |
Citation: | [2021] ACTSC 347 |
Hearing Dates: | 14 May 2021, 30 July 2021 |
DecisionDate: | 4 August 2021 |
Before: | Refshauge AJ |
Decision: | 1. Minh Tuyen Vu be convicted of trafficking in a controlled drug other than cannabis and be sentenced to 18 months imprisonment, to commence on 2 August 2021 and end on 1 February 2023. 2. The Court declines to make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT). 3. An Intensive Correction Order under s 11 of the Crimes (Sentencing) Act 2005 (ACT) be made and Minh Tuyen Vu be directed to serve the sentence of imprisonment that has been imposed by an Intensive Correction Order. 4. In addition to the core conditions of the Intensive Correction Order under s 42 of the Crimes (Sentence Administration) Act 2005 (ACT), the following conditions be made under s 11 (5)(c) of the Crimes (Sentencing) Act 2005 (ACT): a. Minh Tuyen Vu not consume alcohol; b. Minh Tuyen Vu engage in drug rehabilitation with or as directed by the Alcohol and Drug Services of Canberra Health Services; c. Minh Tuyen Vu undertake urinalysis if required by a Corrections Officer; d. Minh Tuyen Vu engage with a financial counselling service as directed by a Corrections Officer; e. Minh Tuyen Vu attend a medical practitioner as directed by a Corrections Officer and adhere to the medication regime prescribed by that medical practitioner. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Trafficking a Controlled Drug Other Than Cannabis – Rehabilitation – Drug and Alcohol Treatment Order Application – Application Denied – Intensive Correction Order |
Legislation Cited: | Crimes (Sentencing Administration) Act 2005 (ACT) s 42 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 12A, 33, 46J, pt 4.2A, Table 46D, 63 Magistrates Court Act 1930 (ACT) s 90A |
Cases Cited: | Bui v R [2015] ACTCA 5 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Wong v The Queen [2001] HCA 64 |
Parties: | The Queen (Crown) Minh Tuyen Vu (Offender) |
Representation: | Counsel C Muthurajah (14 May 2021); M Lucero (30 July 2021) (Crown) G Miekle (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 71 of 2021 |
REFSHAUGE AJ
Introduction
The common conception of a drug dealer is of a brutally violent man, often tattooed, with a well-known and serious criminal record, who is dealing purely for riches with little care or regard for those whom he entangles in the trap of drug use.
The reality is, however, often quite different. Many are users of drugs themselves, who are often supplying others with drugs to earn enough to feed their own dependency.
The law criminalises the supplying of illicit drugs. Some discrimination has been introduced to distinguish between levels of supply: a trafficable quantity, a commercial quantity and a large commercial quantity.
The courts, however, have recognised some distinctions, also, differentiating between those who sell illicit drugs to feed their own habit and dependence (R v Haidar [2004] NSWCCA 350 at [42]–[46]), and those who are engaged in selling drugs for pure profit.
Similarly, while “supply”, which is the basis of the offence, is interpreted according to its ordinary meaning (R v Coles [1984] 1 NSWLR 726 at 733), it has been accepted as not including mere delivery to the actual owner or a deposit for safekeeping (R v Carey (1990) 20 NSWLR 292 at 294–5), nor an offer which is not intended to be regarded as genuine by the offeree (R v Dendic (1987) 34 A Crim R 40 at 44). The definition in s 602 of the Criminal Code 2002 (ACT) is, however, very wide and may narrow some of these exclusions. Thus, “supply” is a very wide concept, including much more than the stereotypical so called “drug pusher”.
In this context, Minh Tuyen Vu appears before the Court for sentence for an offence of trafficking in a controlled drug other than cannabis, namely heroin. He has pleaded guilty to the offence and has asked that a Drug and Alcohol Treatment Order (Treatment Order) under s 12A of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) be made.
In the proceedings, the Crown has tendered its Sentencing Tender Bundle, which tender was not opposed, and the documents in it were not subject to any challenge to their contents.
The Tender Bundle included the Certificate of Committal, which under s 90A of the Magistrates Court Act 1930 (ACT) effectively acts as the indictment for the purpose of this Court dealing with the matter: s 90A(8)–(13). Also included were the Agreed Statement of Facts, Mr Vu's Criminal History and a certificate from the ACT Government Analytical Laboratory, which examined the drugs found in Mr Vu's possession.
The Tender Bundle further included a Drug and Alcohol Sentencing List Suitability Assessment Report dated 5 May 2021 of the Alcohol and Drug Service, together with a Case Plan and a Drug and Alcohol Treatment Assessment Report dated 4 May 2021 of ACT Corrective Services. These were the Drug and Alcohol Treatment Suitability Assessments (Suitability Assessments) required under s 46J of the Sentencing Act.
Also tendered without objection or challenge was an Intensive Correction Order Suitability Assessment dated 20 July 2021.
Mr Vu’s counsel tendered a letter from his wife, which was admitted without objection and not challenged.
The Court was also favoured with thoughtful and valuable written submissions from counsel for both parties, which were usefully supplemented by oral submissions.
The following findings are made from this material.
The facts
At about 8:00 am on 3 December 2020, police saw Mr Vu driving his vehicle along Callam Street, Phillip, ACT. They followed him along Athllon Drive and into a carpark at the Mawson shops.
A few minutes later, another vehicle drove into the carpark directly next to Mr Vu with an occupant, a woman, who alighted and approached the passenger side of Mr Vu’s vehicle. She opened the front passenger side door and leaned into the vehicle.
Police then approached her and explained that she was suspected of selling or buying drugs and she was cautioned. The woman told police that she was there “to pay off a debt”. She consented to police searching her vehicle. She told police that she had spoons and needles which she used to consume heroin. The police search did not locate any prohibited substances.
At about 9:00 am, police detained Mr Vu. He, too, was cautioned and also consented to a search of his vehicle. In the search, police located two white coloured packages on the floor of the driver’s footwell, which police suspected contained heroin.
Police also located two further white coloured packages secreted behind the electronic cover in the footwell. These were also suspected of containing heroin. Police further located $1,500 in Australian currency within the pages of a book inside the glove compartment of the car.
Mr Vu was arrested. He was interviewed by police and made full admissions that the packages contained heroin and that he was the sole owner of the packages. The packages were analysed by the ACT Government Analytical Laboratory, where they were determined to contain heroin. The weight of the four packages was 0.28 grams, 9.145 grams, 7.421 grams, and 8.838 grams, a total of 25.684 grams. Three of the packets were tested for purity, ranging between 23.7%, 25% and 24.7%, the average being 24.47%, which, if applied to all the packages tested for purity, would show that the packages contained a total of 6.28 grams of pure heroin.
The proceedings
Mr Vu appeared before the ACT Magistrates Court on 4 December 2020 and was charged with trafficking in heroin. He was granted bail. After a number of adjournments, he pleaded guilty on 19 March 2021 at the fourth mention, but had indicated at the third mention and prior to preparation of the prosecution Brief of Evidence that he was prepared to plead guilty. He was then committed for sentence to this Court, with an expectation that he would seek a Treatment Order. Eligibility Assessments were ordered.
He appeared in this Court on 19 March 2021, when the Eligibility Assessments recommended that he was eligible for Suitability Assessments to be prepared. The preparation of Suitability Assessments was ordered and the matter was listed for sentence on 14 May 2021. He continued on bail.
At the end of the hearing, the sentencing proceedings were further adjourned. As there was a concern about Mr Vu's capacity to participate in a Treatment Order, the Court also ordered that he be assessed for suitability for an Intensive Correction Order and the matter was adjourned to 30 July 2021 for completion of the sentencing hearing.
He has spent only two days in pre-sentence custody.
The offence
Section 33(1)(a) of the Sentencing Act requires the Court to consider, when sentencing an offender, the nature and circumstances of the offence. The latter is largely determined by the facts.
The nature of the offence is determined by a number of considerations. First and foremost, the maximum penalty prescribed for the offence is a critical matter, as noted in R v Oliver (1980) 7 A Crim R 174 at 177.
Trafficking in heroin is an offence under s 603(7) of the Criminal Code 2002 and attracts a maximum penalty of 10 years imprisonment or a fine of $160,000 or both. It is, thus, a relatively serious offence.
The other matter is to consider how the courts have viewed such offences, which is part of the requirement in s 33(1)(za) of the Sentencing Act to consider current sentencing practice, as this will show aggravating and mitigating features.
Such an offence as this has been subject to considerable consideration over time. In Bui v R [2015] ACTCA 5 at [41], the Court of Appeal identified the following matters highly relevant to the sentencing of drug traffickers: the role of the offender, the weight and purity of the drug, and the motivation for committing the offence. Save as legislatively mandated, the nature of the drug is not a particularly relevant consideration: R v Massey (No 2) [2016] ACTSC 278 at [19].
In general terms, the High Court has pointed out that the weight or quantity of the drug is not to be given “chief importance” (Wong v The Queen [2001] HCA 64; 207 CLR 584 at 609; [67]–[70]), but it is not irrelevant, as noted in Bui v The Queen at [41]. It is relevant, but not determinative: Pham v The Queen [2013] NSWCCA 217 at [27].
In this case, Mr Vu reported to both the reporters preparing the Suitability Assessments that he was engaged in trafficking to support his own drug habit. There was no commercial motive of greed. This was not challenged, and it is accepted. It renders the offence somewhat less serious.
Clearly, Mr Vu was a drug dealer with a somewhat more significant role than being merely a street level dealer, but it cannot be found on the evidence that he was, by any means, a significant participant in an organisation or distribution operation. He might appropriately be called a mid-level dealer, perhaps at the lower end of seriousness. This means that the offence was one of a lower level of seriousness.
The Crown appended to its written submissions a very useful table, summarising some 89 previous decisions of this Court at first instance regarding the charge of trafficking in a controlled drug other than cannabis. Without doing an extensive analysis, a general assessment was that, of those cases where the weight was identified, 43 of them involved only drugs other than cannabis, and were of amounts greater, some significantly greater, than those for which Mr Vu was arrested.
The purity of the drug can be relevant also. Here, the purity was around 25%, which is relatively low, though not the lowest seen in the cases to which the Court has been referred. This is a marker of the level in any distribution chain that Mr Vu occupied. It is, it appears, about the medium range of purity shown by the Illicit Drug Data Report: see R v Harmouche [2020] ACTSC 194 at [10]. Many of the cases referred to by the Crown involved drugs which were of significant levels of purity greater than in this case: see, for example, R v Walters, [2017] ACTSC 177 at [26]; R vKhoder (No 2) [2020] ACTSC 76 at [4]. Thus, greater purity would be an aggravating factor because of the increased damage from the wider consumption of the drug: R v Johnston [2017] ACTSC 280 at [17].
Subjective circumstances
Mr Vu was born in Vietnam 59 years ago, the third child of his parents' six children. His father was a naval captain and his mother engaged in home duties, but also farmed rice. His parents are both deceased.
His upbringing was negative, especially due to the environmental and social factors consequent upon the Vietnam War. He completed Year 10 schooling in Vietnam and then completed a certificate in architecture.
His eldest brother was a heroin user, spending two years in prison as a result, and has since died of a heroin overdose. That brother also introduced him to heroin at age 15. At the time, heroin was rife in Vietnam. His brother had a son, who is also a heroin user. His two sisters remain in Vietnam.
At 25 years old, Mr Vu left Vietnam and found himself in a refugee camp in Hong Kong. He met his first wife there and initially reduced his use of heroin, which he hid from his wife.
He migrated with his wife to Australia in 1991. They have three children aged between 31 and 18 years old. His firstborn was born in the refugee camp, but the other two children were born in Australia.
His house was raided by police in 2005 and, as a result, his wife left him, ending their relationship. This led him to be homeless for a time, until he gained ACT Housing accommodation in 2012.
He later re-partnered and has two children by his second partner, a two and a half year old and a four year old. His partner has not presently got permanent residency and so does not have access to Centrelink benefits. She currently works in a restaurant as a waiter up to six days a week, often with split shifts.
Mr Vu is eligible for Centrelink benefits. As a result, he has had the main responsibility for the care of his children. He was, for a while, employed in a bakery and also as a lawn mower, gardener and physical labourer, but has not been employed recently, largely, it appears, from the need to care for his children. The family are struggling somewhat with their current financial circumstances.
Mr Vu has had some physical health issues with significant pain difficulties. He also suffered a stroke in 2008. He often uses illicit drugs to manage the pain, as well as some prescribed anti-inflammatory medication.
He has also suffered from anxiety and depression and has difficulty in sleeping.
Mr Vu has had a 25 year history of illicit drug use. He first consumed alcohol when he was 14, beginning with a few drinks with friends, but he has not used recently. He also uses tobacco, smoking a pack a day. He has tried to give up smoking, but has not yet been successful.
As noted above (at [36]), he was introduced to heroin by his eldest brother at age 15. He has only smoked it, not injected it. He started using more regularly while in the refugee camp in Hong Kong. He has, unsuccessfully, tried to manage his intake to meet his family obligations. It is not entirely clear, but he appears to smoke approximately one quarter to half a point daily. He has tried to keep his use to a minimum, but has had mixed success.
He did not start using cannabis until he came to Australia. He started to use it on a roughly weekly basis, but appears to use it two or three times a week now.
He has also used benzodiazepines, using around six to eight tablets of an unknown strength at a time, ceasing use recently as a result of the assessment for a Treatment Order.
Mr Vu has used MDMA a few times and, although he started using methamphetamine 15 years ago, he has not used that drug for about a year now.
He has also had a serious gambling problem for about 30 years, but he has given it up upon his recent arrest.
Mr Vu has not undergone alcohol or other drug treatment in the past. He has, however, since his arrest, been subject to bail conditions requiring regular urinalysis, which tests have been negative for illicit drugs. He and his wife live in premises in Chisholm, ACT, where he has been residing for the last six years. The premises are assessed as having no significant adverse findings by ACT Police and were assessed as suitable following a home visit by ACT Corrective Services Officers.
Mr Vu has a very short criminal history. He was convicted of trafficking in heroin in 2008 and sentenced to a suspended term of imprisonment for 18 months, with the necessary Good Behaviour Order requiring him to attend and complete programs to address his gambling and drug use. There is no evidence before the Court about what, if anything, he achieved during that period, or indeed whether he did attend any such programs or whether he was directed to do so.
In 2013, he was convicted of possession of heroin and fined $750, and in 2015 convicted of unlawful possession of stolen property, for which he was sentenced to a 12 month Good Behaviour Order.
When he was being assessed for a Treatment Order and an Intensive Correction Order, it was found that sometimes he required assistance from the Telephone Interpreter Service, though some agencies did not seem to experience communication difficulties.
He was also referred to agencies, including CatholicCare, with which he seemed to engage well, and Care Financial Services, which he engaged with partially. It appears that, because he did not fully understand the reason for the proposed second appointment with Care Financial Services, he did not keep it. He was offered assistance through emergency childcare, but rejected it because of the difficulty in the logistics of getting the elder child to school and the younger child to childcare.
His partner, in her letter to the Court, confirmed that she would support him if he were to engage in treatment. She did indicate that, if necessary, she would take care of the children when he was required to attend programs, though it would appear that this would provide some stress for the family, with, obviously, less income and possibly some risk to her employment.
Mr Vu has acknowledged that his offending was unlawful, but he is said to have minimised his offending.
Sentencing practice
In order to craft a just and adequate sentence through an instinctive synthesis, it is, as well as the matters already considered, helpful to take into account current sentencing practice. As noted above (at [27] to [33]), the general principles of current sentencing, especially relating to the particular offence for which Mr Vu must be sentenced, have been addressed earlier. This is, of course, mandated by s 33(1)(za) of the Sentencing Act.
This can be further addressed in two ways: firstly through statistics, such as those available through the ACT Sentencing Database. A table of comparable cases has been helpfully set out in the annexure to the Crown's submissions, as noted above (at [32]). As indicated, this helpfully summarises 89 cases of sentence for drug trafficking offences. They show a range of sentences of imprisonment from six months to five years and nine months. While there were sentences of imprisonment for three years, three years and three months, four years and five months, five years, and five years and nine months, these were rare. Most of the sentences of imprisonment were between about 11 months and two years and a few months.
Of course, such statistics provide relevant information, but they are very raw and provide only generalised information and, unless the sentencing remarks are read, there is no clarity about how the sentence is crafted. The summaries of the sentences and the circumstances attached to the Crown's submissions are, however, helpful also.
The other way to deal with current sentencing practice is through consideration of comparable cases and an assessment and understanding of the sentencing remarks. The Crown suggested that four decisions might be considered comparable: R v Hoang [2020] ACTSC 62, R v Zhao [2017] ACTSC 385, R v BM [2019] ACTSC 281, and R v Davidson [2018] ACTSC 227.
It is very difficult to reconcile these decisions or perceive any kind of pattern as to the way in which the sentences were constructed.
On his plea of guilty, Mr Hoang was convicted of supplying heroin to a police undercover operative on five occasions, the single offence being a “rolled up plea”: see R v Forrest (No 2) [2017] ACTSC 83. He supplied a total of 130.572 grams for a total of $35,000. The percentage purity was in the mid-70s. The fact that the supply was to a police officer was significant and appears to have moderated the sentence based on the principles in Kada v The Queen [2017] VSCA 339.
The methods used for supply were not particularly sophisticated. Mr Hoang was 47 years old and had an impoverished upbringing in Vietnam. He had a gambling problem, but no alcohol or drug problems. There was no reference to any prior criminal offences, but he was earlier convicted of similar offences in R v Hoang [2016] ACTSC 183. Mr Hoang was sentenced to 21 months imprisonment.
Mr Zhao sold methylamphetamine on three occasions and heroin on one occasion and pleaded guilty, though in this Court. When police executed a search warrant at his home they found 191.7 grams of heroin, as well as 358.9 grams of methylamphetamine. They had also found him selling 665 grams and in possession 521.9 grams of methylamphetamine.
There was no information as to the value or purity of the heroin. Mr Zhao was motivated by profit. He was 40 years old and born in China, but with no negative events in his childhood. Mr Zhao had no “relevant convictions”. He was sentenced to a total of five years imprisonment, but for the trafficking in heroin a period of 18 months imprisonment.
Ms BM pleaded guilty to an offence of trafficking in heroin in the Magistrates Court. A search of her vehicle by police located 28.880 grams of heroin, which she admitted intending to distribute for sale, though the Court did not find it was for “pure greed” as she was a heroin user herself, which began in her early twenties. She did not have a significant criminal record, apart from some traffic offences.
She was sentenced to imprisonment for two years and seven months, to be served by way of an Intensive Correction Order. It was not entirely clear why a sentence of such length was imposed.
Finally, Mr Davidson was convicted of five offences of receiving stolen property, two offences of trafficking in methylamphetamine, an offence of trafficking MDMA, one of trafficking in cocaine and an offence of trafficking in heroin. In a search of his residence, police located 117 grams of heroin. They also located $89,080 in the freezer of the residence. Mr Davidson entered pleas of guilty in the Magistrates Court.
The Court found the offences were committed for the purpose of financial gain. He was, however, also a drug user. He was 34 years old and had a childhood history of emotional and physical abuse. The sentencing remarks did not make clear his criminal history, though there were references to earlier sentences, particularly that he was subject to an Intensive Correction Order when he committed the offences and was on bail at the same time. He was sentenced to a total sentence of six years and eight months imprisonment and, for the trafficking in heroin, a sentence of one year and 10 months imprisonment.
These sentences are taken into account.
Consideration
Sentencing an offender is a complex and difficult exercise, as it requires the Court to ensure that the sentence is just and adequate, is suitable and appropriate for the circumstances of the offender and meets the objectives and purposes of sentencing. As well as the matters required to be considered, which are set out in s 33(1) of the Sentencing Act, the objects and purposes of sentencing are helpfully set out in ss 6 and 7 of that Act.
Trafficking in illicit drugs is a serious matter and can often have disastrous effects on those to whom the drugs are supplied. Thus, in this case, punishment is required in the sentence to reinforce the norms of the community. Similarly, it is desirable that the sentence makes clear to others who might engage in similar criminality that it is not permitted.
As Mr Vu has already been sentenced before for the same offence, it is necessary to impose a sentence that is designed to deter him from continuing such activity, including denouncing his conduct and making him accountable for his actions.
It is, of course, desirable to impose a sentence that will, if possible, also encourage his rehabilitation.
Mr Vu pleaded guilty in the Magistrates Court, a relatively early plea, which should be taken into account and moderate the sentence to be imposed. Although not entirely clear, it does appear that he pleaded guilty before preparation of the Brief of Evidence. The evidence against him was strong, so that moderates the discount which, nevertheless, the utilitarian value of the plea entitles him to receive.
One of the factors which must be considered is hardship to third parties caused by the sentence: s 33(1)(o) of the Sentencing Act. As was explained in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 316; [82], this will moderate the sentence only if it is a more severe or prejudicial hardship than would be inevitable and the usual consequences of the imposition of a proper sentence.
In this case, Mr Vu’s family circumstances will mean that a sentence of immediate imprisonment will provide significant hardship that should be taken into account.
While Mr Vu has expressed some ambivalence towards the making of a Treatment Order and so an unclear commitment to rehabilitation, at the end of the day and after some discussion he does recognise the need for rehabilitation and is committed to it and it is a proper way forward, especially for his family. His partner has made it clear that she will support him in this.
The nature and circumstances of the offence as they have been described are taken into account, both in the facts as found and the seriousness of the offences. Mr Vu's personal circumstances, as they have been described, have been carefully considered. The remorse, though somewhat limited, that Mr Vu has shown, and that he has accepted responsibility will be taken into account. He has also sought rehabilitation. All the other matters which have been referred to above are taken into account.
In all the circumstances, however, no other sentence than a sentence of imprisonment is appropriate: s 10 of the Sentencing Act.
In imposing the sentence, the two days he has spent in pre-sentence custody will be taken into account and addressed under s 63 of the Sentencing Act.
[His Honour then spoke directly to the offender]
Mr Vu, please stand.
The orders of the Court are as follows:
(1) You are convicted of trafficking in a controlled drug other than cannabis, namely heroin, and sentenced to 18 months imprisonment to commence on 2 August 2021.
You may be seated.
Drug and Alcohol Treatment Order application
Mr Vu has asked the Court to make a Treatment Order, as noted above (at [6]), and that request shall now be considered. In the first place, the Court must consider whether he is eligible for such an order and those requirements are set out in s 12A of the Sentencing Act.
The sentence for trafficking in heroin is of imprisonment for 18 months and so is greater than the minimum period of 12 months imprisonment to which he must be sentenced in order to be eligible, but not greater than the maximum for which such an order may be made, namely four years imprisonment.
Mr Vu is not presently subject to any other Treatment Order within the meaning of s 12A of the Sentencing Act and the Court is satisfied that he will be residing in the ACT for a period of at least 18 months.
The Suitability Assessments satisfy the Court that Mr Vu is dependent on illicit drugs, namely heroin, and that his dependency is the main, and therefore substantial, contributor to his offending.
The Court is also satisfied that he has had the Treatment Order regime explained to him and that he has had an opportunity to ask any questions about it and that any such questions have been answered. The Court is also satisfied that he has given informed consent to the making of the Treatment Order.
Accordingly, he is eligible to be subject to a Treatment Order. The question, however, is whether it is appropriate to make one.
The Suitability Assessments have been prepared with care and set out in detail, thoughtfully and expertly, his circumstances and have carefully assessed whether it is appropriate for such an Order to be made. The Court has carefully considered them and the recommendations they have made. The Care Plan prepared by the Alcohol and Drug Services also appears to be appropriate for a Treatment Order for him.
The Suitability Assessment prepared by the Alcohol and Drug Service has recommended that he is suitable for a Treatment Order, while that of ACT Corrective Services has recommended that he is not suitable.
The main reasons for the recommendations of ACT Corrective Services are that “Mr Vu's unique individual family circumstances may make compliance with a Drug and Alcohol Treatment Order impracticable” and “[t]he assessor expressed significant difficulties conversing with the offender without the use of an interpreter”.
This is somewhat reinforced by the difficulty he had in understanding the purpose of his second appointment with Care Financial Services. Nevertheless, the assessor for the Alcohol and Drug Service did not express any difficulties, nor was that evidenced in any of his interactions with the agencies to which he was referred, namely CatholicCare, although it did remark, “the language barriers and cultural differences were relevant”.
As to the family challenges, Mr Vu's partner has indicated that she is very supportive and that she “will take care of the kids” on the days that he is required to attend as required by a Treatment Order program. That may well be true, but his attendance will be more than one day per week. Indeed, the program will require two days a week for two hours, as well as weekly appearances in Court for judicial supervision and three days for urinalysis. Together, these will be a significant impost on him and his wife, particularly as there will be not insignificant travelling time since he has no transport other than public transport to come from his home in Chisholm into town. This will also be at lunchtime, when his partner would also be working, making the care of the children a challenge. It will also create difficulties for their financial situation if his partner has to reduce her work hours or is at risk of losing her job.
While that is a matter which is apt for them to decide and challenges they must accept, it is concerning that this may well be setting Mr Vu up to fail in the program, as he has already expressed some concerns about the cost.
The Court is also concerned that the language barrier will be a significant challenge for him in the group sessions, which are an essential part of the day program for his 13 week program at Canberra Recovery Services.
In all the circumstances, the Court is not satisfied that a Treatment Order is appropriate for Mr Vu. Mr Vu has, however, made his keenness to rehabilitate quite strong and obvious and, had there been no other options, this may have justified an attempt at a Treatment Order.
Nevertheless, he has been assessed as suitable for an Intensive Corrections Order. Such an order was described in R v Ngerengere (No 3) [2016] ACTSC 299 at [17]–[28], though the provisions, especially in relation to unsuitability, in table 79 of the Sentencing Act have since been relocated as table 46D of that Act.
Such an order can be made if Mr Vu has, as is the case, been sentenced to a term of imprisonment for not more than two years, other than in special circumstances, when it can be up to four years.
Mr Vu has been assessed under an Intensive Correction Assessment under part 4.2A of the Sentencing Act and has been found suitable.
In table 46D of the Sentencing Act, it is mentioned that it is a matter of unsuitability that an offender has a “major problem with alcohol or controlled drug”. While Mr Vu has a severe drug dependency, as found in the Suitability Assessments, he has been able to abstain from cannabis and heroin and all other drugs after his arrest. Indeed, he was, during that time, subject to urinalysis and he has not returned any positive results for illicit drugs.
There was no cross-examination of the assessor, nor any request for it.
There has been no Pre-Sentence Report prepared, but the Suitability Assessments, which contain much of the information that would be included in such a Report. The Court is also satisfied that Mr Vu has given consent to serving his sentence by an Intensive Correction Order.
The Court has further considered the engagement that Mr Vu has had with CatholicCare and with Care Financial.
Mr Vu has been assessed as not suitable for a community service work condition. It has, however, been recommended that the following matters should be targeted if an Intensive Correction Order is made: illicit substance misuse, financial stresses and his physical and emotional health. No submissions were made contrary to this and they are accepted.
Accordingly, the Court will make a number of conditions under s 11(5)(e) of the Sentencing Act to deal with these matters.
[His Honour then spoke directly to the offender]
Mr Vu, please stand again.
The orders of the Court are as follows:
(1) The Court declines to make a Drug and Alcohol Treatment Order under s 12A of the Crimes (Sentencing) Act 2005 (ACT).
(2) An Intensive Correction Order be made for you under s 11 of the Crimes (Sentencing) Act 2005 and it is directed that you serve the sentence of imprisonment imposed by an Intensive Correction Order.
(3) In addition to the core conditions of the Intensive Correction Order under s 42 of the Crimes (Sentencing Administration) Act 2005 (ACT), the following conditions are made under s 11(5) of the Crimes (Sentencing) Act 2005:
(a)a condition that you not consume alcohol;
(b)a condition that you engage in drug rehabilitation with or as directed by the Alcohol and Drug Services of Canberra Health Services;
(c)a condition that you undertake urinalysis if required by a Corrections Officer;
(d)a condition that you engage with a financial counselling service as directed by a Corrections Officer; and
(e)a condition that you attend a medial practitioner as directed by a Corrections Officer and adhere to the medicated regime prescribed by that medical practitioner.
[His Honour then spoke directly to the offender]
Mr Vu, that is the sentence I have imposed and I have had to explain it in legal terms, but it is important that I now explain it to you in a way that, I hope, is easier for you to understand. If there is anything you do not understand, you can ask, but you have got a very competent counsel who will assist you in that.
I have said that trafficking in and selling drugs is a bad thing in our community, and you should be punished for it. You have already been punished once, some years ago, with 18 months imprisonment. You have done basically a similar thing on this occasion and I think 18 months imprisonment is, again, an appropriate sentence.
I do not, however, require you to go to gaol at this stage. I think it is important that you remain connected with your family and support your wife. Obviously she has a risk of being homeless with the children if you go to gaol. That lenience, however, will not last forever. At some stage, if you do not learn these lessons then you will have to go to gaol, even if that troubles your partner and the children.
In order to assist you to do that, I have made a number of conditions and requirements. There are a whole range of things, a whole list of them, and they will be explained to you. The particular ones I am making are, in addition to the legal requirement that you not use drugs, also that you not drink alcohol because that can also lead you back into drugs. You have got to do urinalysis when directed to check that that is not happening.
You also need to engage in rehabilitation. CatholicCare might be the right place, or ACT Corrections will arrange for you to get counselling from them together with CatholicCare.
You have really got to take this opportunity. You have been able to stop using drugs while on bail. I know you have been using drugs for a long time. Twenty-five years, that is a long time. If you really want to look after your family, however, you need to get off the drugs.
I think your financial situation is pretty challenging and I think some more assistance would be helpful so that you could manage it better. Also your health is not very good, so I want you to go to a medical practitioner and do what the medical practitioner tells you to do — medication, other therapy, perhaps fitness, exercise and so on.
Now, what is important is that if you do not do those things, if you do not keep in contact with your Corrections Officer, then that is a breach. That is breaking this Order. If you do breach the Order, you will have to come back before the Court. It depends what the breach is and why you have done it and so on, but we can do anything, including send you to gaol.
It is pretty important that you understand these things and if you do not understand then your lawyer will tell you. The Alcohol and Drug Service people will also assist you in doing that, and you need to speak to them before you leave.
This is an opportunity for you. You seem to feel that you are ready for it, as long as your children are looked after and as long as your wife can continue to work and you can continue with your Centrelink. If you want that to continue, take this opportunity.
| I certify that the preceding one hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Refshauge Associate: Date: 12 December 2022 |
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