The Queen v Hoang; The Queen v Dau
[2017] VCC 399
•12 April 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-01950
CR-16-02257
| THE QUEEN |
| V |
| QUYEN VAN HOANG |
| And |
| HUNG LY DAU |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2017 | |
DATE OF SENTENCE: | 12 April 2017 | |
CASE MAY BE CITED AS: | The Queen v Hoang; The Queen v Dau | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 399 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – attempt to possess a commercial quantity of a border-controlled drug - cocaine – traffick a large commercial quantity of a drug of dependence - cocaine – traffick a commercial quantity of a drug of dependence – cocaine
Legislation Cited: Criminal Code Act 1995 (Cth), s11.1(1), s307.5(1); Drugs, Poisons and Controlled Substances Act 1981 (Vic), s71 and s71AA; Crimes Act 1914 (Cth), s19AKA; Confiscation Act 1997; Criminal Code Regulations 2002 (Cth); Confiscation Act 1997, s77
Cases Cited:Nguyen v R; Phommalysack v R [2011] VSCA 32
Sentence: Hoang: Convicted and sentenced to a total effective sentence of 10 years’ imprisonment with a non-parole period of 6 years. Section 6AAA declaration: Conviction and sentence of 15 years’ imprisonment with a non-parole period of 10 years.
Dau: Convicted and sentenced to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 years. Section 6AAA declaration: Conviction and sentence of 6 years’ imprisonment with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions (Melbourne) | Mr A Dhillon | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Offender Hoang | Mr T Lavery | Access Law |
| For the Offender Dau | Mr M Reardon | Victoria Legal Aid |
HIS HONOUR:
1 Quyen Van Hoang, you have pleaded guilty to one charge of attempting to possess a commercial quantity of a border-controlled substance, namely, cocaine, contrary to s11.1(1) and s307.5(1) of the Criminal Code Act 1995 (Cth). Your offending occurred between 31 October 2015 and 18 November 2015. (Charge 1).
2 You have also pleaded guilty to one charge of trafficking a large commercial quantity of a drug of dependence, namely, cocaine, contrary to s71 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). This offence occurred on 18 November 2015. (Charge 2).
3 Hung Ly Dau, you have pleaded guilty to a charge of trafficking a commercial quantity of a drug of dependence, namely cocaine, contrary to s71AA of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). Your offending occurred on 18 November 2015. (Charge 3).
Circumstances of offending
4 A Prosecution Opening was tendered on the plea. It is an agreed summary.
5 Your offending conduct can be summarised as follows:
6 On 13 October 2015, the Joint Organised Crime Task Force comprising of investigators from the Australian Federal Police, Victoria Police and Australian Border Force commenced Operation Costena, which was an investigation into the activities of you, Mr Hoang, involving the possession and trafficking of cocaine in Melbourne. The investigation involved lawfully intercepted telephone communications and physical surveillance. Police identified that you were using six telecommunication services during the period of the offending.
Charge 1 – Hoang – attempt to possess a commercial quantity of a border-controlled substance
7 Charge 1 relates to two consignments containing cocaine, which you, Mr Hoang, attempted to possess between 6 October 2015 and 12 November 2015.
8 On 29 September 2015, you received a text message from an unknown person stating:
“The Post arrive first, then DHL after. But don’t know that sent by DHL.”
9 On 6 October 2015 at 9.24pm, you had a conversation with an unidentified male. During the conversation, you asked “I’ve got some work so I need it like before. Can I use your address?” The male replied that he was concerned that his sister may suspect what is inside, so could not assist. The male suggested that you should rent a house instead. You then said that you would look at newspapers.
10 On 31 October 2015, consignment number 1909006072 containing metal printing cylinders arrived at the DHL freight facility in Melbourne. The consignee details on the accompanying documentation were:
“Flint Group
Michael Lorenzo
Benrend Drive, 25-51
Melbourne
3175 Dandenong South AE
Australia
Contact: #### ### 608.”
(sic).
11 On that day, Diego Tam, who is an employee of the Flint Group, attended the office area of the business premises and appeared to be startled. His attendance was unusual, because his duties related to the warehouse and did not require him to be in the office area. Moreover, 31 October 2015 was a Saturday and office staff were carrying out a computer software update during the weekend. Diego Tam said that he was looking for something and then left the company premises.
12 Some days later, on 4 November 2015, DHL informed the Flint Group that a consignment containing metal printing rollers had arrived at its Melbourne facility. Staff at the Flint Group were surprised to learn of the consignment containing printing equipment of the type that it did not trade in. Moreover, the Flint Group did not employ anyone with the name of “Michael Lorenzo” who was named as the contact person on the consignment documentation. A staff member called the consignee’s telephone number, #### ### 608, but there was no answer, and the call went through to its message bank. The staff member left a message asking Michael Lorenzo to return their call.
13 On 4 November 2015 at 12.39pm, you, Mr Hoang, sent a text message to an associate, Ms Hoang Anh Pham, in which you said, “the other stuff hasn’t arrived yet sister … please tell diego …”. Later that evening, at 11.52pm, you sent another text message to the same associate saying, “sister tell d to see it tomorrow for me please”.
14 On 5 November 2015 at 2.35pm, you called Ms Pham using the “Michael Lorenzo” telephone number, #### ### 608, and told her that, “they” had asked you to call them but you were worried about doing so. Ms Pham told you not to worry and added that she did not want to discuss these matters on the telephone. She told you to check online.
15 Also on that day, you, Mr Hoang, communicated with another associate, Mr Hung Le Duy Nguyen (“Nguyen”), and sent him a photograph of Diego Tam in a text message. You asked Nguyen to prepare an identification card by 12.00pm the following day, using the photograph you had sent. Nguyen asked you to send him the relevant information such as name, address and a date of birth. You then sent a text message to Nguyen with the words “Michael Lorenzo”.
16 On 6 November 2015, the consignment was examined by officers of ABF and found to contain 4,924.7 grams gross of cocaine, which was ultimately analysed and found to be 2,681.4 grams of pure cocaine.
17 Also on that day, you and Nguyen discussed contacting DHL to enquire about the consignment. In accordance with your request, Nguyen called DHL using the Michael Lorenzo telephone number, #### ### 608. He provided the consignment number and said his name was “Michael”. A DHL staff member told him that the consignment was currently with Customs and that they would make further enquiries and call him later. Approximately two hours later, a DHL staff member left a message for “Michael” on the Michael Lorenzo telephone number, #### ### 608, and confirmed that the consignment was with Customs.
18 On 10 November 2015, you called a Vietnamese telephone number and spoke with a male about the contents of the first consignment. The male told you that if you are asked, you should explain that the contents of the consignment are samples to take to factories for marketing purposes.
19 On 11 November 2015, you and Nguyen discussed the contents of the consignment and complained that it was too difficult to assemble four forms of identification required to secure the release of the consignment from DHL by satisfying Customs requirements. You, Mr Hoang, complained that this would not have occurred if the consignors had not attributed such a high value for its contents, which are just a few steel blocks.
20 On 11 November 2015, you, Mr Hoang, received photographs of computer screens displaying the UPS website where visitors can track consignments. One of the photographs displayed consignment number CP975037750US.
21 On 12 November 2015, UPS consignment number CP975037750US containing a printer cartridge arrived at the Australia Post Gateway facility in Melbourne. The consignee details on the documentation were:
“Flint Group
Michael Lorenzo
Benrend Drive, 25-51
Melbourne
3175 Dandenong Sout AE
Australia
Contact: #### ## 608.”
(sic).
22 The contents of the consignment were described as “cartridge toner” but was also found to contain 997.4 grams gross of cocaine. Subsequent analysis revealed the pure weight of the cocaine was 693.2 grams.
23 On 18 November 2015, you, Mr Hoang, used the Google Translate application on your mobile telephone number, #### ###888, for the following:
“your package cp975037750us has been delivery in melbourne, australia on 11/12/2015 [US format date].”
(sic).
24 Also on 18 November 2015 at 7.23am, you and Nguyen had a conversation in which you again discussed the difficulty with producing sufficient identification to have the DHL consignment (“consignment 1”) released. Nguyen said that “Bringing fake documents to them is akin to committing suicide”. You replied, “If they ask us to fill out the forms then we’re stuffed”. You also said that you would speak with the “other side” to ask about the consequences if the consignment was not returned to them.
25 The aggregate amount of cocaine seized from both consignments is 3,374.6 grams pure.
Charge 2 – Hoang – trafficking in a large commercial quantity of a drug of dependence on 18 November 2015
26 Charge 2 encompasses two separate packages of cocaine that were located by police on 18 November 2015 at two separate locations. One package was in your car, Mr Hoang, while the second was located at your premises. Both packages were possessed by you for the purposes of sale.
27 In the weeks leading up to the seizure of the cocaine on 18 November 2015, you, Mr Hoang, communicated with a number of persons in which you discussed the extraction of cocaine from impregnation, the quality of cocaine and negotiated prices of quantities of cocaine.
28 Between 29 September and 19 October 2015, you, Mr Hoang, and Nguyen, engaged in a series of telephone communications in which you directed Nguyen about the process of extracting impregnated cocaine. The communications revealed that Nguyen sought instructions from you and, in turn, you received them from unknown persons overseas about the extraction process. Nguyen expressed frustration that the instructions that he had previously received were inaccurate or incomplete. He told you to purchase items such as distilled water, buckets, 5 litres of kerosene, the industrial chemical na2co3 (“sodium carbonate”) and hydrochloric acid.
29 On 8 October 2015 between 5.57am and 10.40pm, you, Mr Hoang, and Nguyen, exchanged a number of text messages in which you discussed processes involving chemicals. For example:
·At 5.24pm, you said:
“What’s the situation brother, be careful not to be any wastage, will affect company’s reputation.”
·At 10:13pm, Nguyen said:
“Frankly I suspect we’ve been bombed … The formula is copied from online but chopped and changed, doesn’t make sense … He said to let the oil evaporate in 12 hours, but how can 5 litres of kerosene dry up in 12 hours, I have already tried it … .”
·At 10.18pm, you, Mr Hoang, said:
“Be careful brother, it will be a big deal if it goes wrong.”
30 The pair of you continued to communicate about this issue during the following days. For example:
·On 10 October 2015 at 5.59am you, Mr Hoang, said:
“It is kerosene base now, u must separate the base now. R u going to wash it.”
·On 11 October 2015 at 12.25pm, you said:
“First time like this, next time we know we won’t need to ask anyone.”
·On 14 October 2015 at 1.55am in response to multiple queries from Nguyen about whether he had received further instructions, you said:
“Must go through different guys, please understand brother. Must go through different guys in different countries before it reaches him, hence have to wait.”
·Later, on 14 October 2015 at 4.46pm, Nguyen said:
“Yes mate, im at the point coke base need to convert to hel. But ‘next step’ in ur guide is ‘let it dry for 12hrs’. But how come u convert base to hel by just letting it dry? So something wrong with your guide right? What's next now?”
·On 19 October 2015 at 7.30pm you, Mr Hoang, said:
“Just take a little bit and try it brother … That’s also good … If you suspect there’s nothing you’ll know straight away … Because I have told the other mob that it’s been cut and they keep guaranteeing … Now they’ve said so … .”
During this period, you, Mr Hoang, also communicated with a number of other persons in which you discussed prices and quantities of cocaine that you were able to sell.
· On 7 October 2015 at 10.01pm and 10.17pm, you communicated with an unidentified female (using a telephone number ending in 956) who asked you about the availability of “the one that people took the other day”. You replied that you would ask. At 10.08pm, you said:
“At the moment not available yet, I will ask, tell people to wait will let them know when it’s available.”
The female asked:
“If available what’s the price brother.”
· On 11 October 2015 at 4.28pm, you called an unidentified female and told her that you were “expecting more of the stuff like the other day. If they want it let me know”. You described the substance as “99” and offered to sell it for “85”.
· On 14 October 2015 at 2.39pm, the pair of you had another conversation during which you, Mr Hoang, stated that in order to increase your profit you intended to increase the price. The unidentified female stated that she would be unable to pass on the price increase because her customers were regular buyers but that she may be able to increase the price for new customers. She added that she intended to place an order for the “99” in a week or two, but first her associates needed to see it.
31 You, Mr Hoang, communicated with various unidentified persons about the sale price of cocaine and the transfer of money to Vietnam. You provided a Vietnamese telephone number that you suggested be contacted in order to arrange payment via bank transfer. For example on 13 November 2015 at 12.23pm, you discussed selling 1 kilogram of “rice” for $200.
32 From mid-November 2015 onwards, you, Mr Hoang, communicated regularly with a Vietnamese female subsequently identified as “Lisa”, who offered to sell your cocaine to her network of customers. Lisa complained that the sale price sought by you was too high because the cocaine was of poor quality – it did not “sparkle” as it should. The pair of you negotiated over the sale price of the cocaine, requiring you to obtain instructions from its “owner” in Vietnam. The conversations reveal that each of you had a superior in Vietnam who negotiated with each other. On many occasions, you complained that you were under pressure from people overseas and that you needed to sell the cocaine at an acceptable price (“papers”). For example:
·On 15 November 2015 at 5.41pm and at 6.04pm, you informed Lisa that the owner did not want to sell the cocaine at the price offered by Lisa. Lisa replied that she had expected the stuff to sparkle but because it does not she would only pay “10” rather than the “15” she usually paid. This is believed to be a reference to $100,000 and $150,000 respectively; and
·On 15 November 2015 at 7.02pm and 7.14pm, you informed Lisa that your superior would not agree to sell the cocaine for “155” [$155,000] and wanted “16” [$160,000]. Lisa agreed to contact her associate in Vietnam to ask if he will pay “160” but that everyone had already agreed to “155”.
33 In the following days you, Mr Hoang, and Lisa, continued to negotiate the sale price. Lisa stated that she was doing her best to arrange purchasers for the cocaine in Melbourne, notwithstanding its poor quality. She stated that she was making this effort because she wanted to develop a business relationship with you.
34 Between 16 and 18 November 2015, you communicated with an unidentified male using a Vietnamese telephone number about the difficulties in negotiating an appropriate sale price with Lisa.
Charge 2 (cont) and Charge 3 – Dau trafficking a commercial quantity of a drug of dependence on 18 November 2015
35 On 17 November 2015 you, Mr Dau, communicated with Lisa in relation to the cocaine that was the subject of Lisa’s conversation with Mr Hoang. Lisa told you to call a “Mr An” (Lisa’s Associate in Vietnam) and to tell him to bargain directly with the owner to get a good price. You replied, “I’ve just started working for Quyen and haven’t got Mr An’s number. Quyen did all the contacting.” You also discussed the quantities of cocaine that was available for sale. Lisa asked you, “Did Quyen (Mr Hoang) ask you to move 10?”
36 Later that day at 6.50pm, you told Mr Hoang that Lisa wanted Mr Hoang to call “Mr An” and to ask him to pay Mr Hoang’s associate. Once payment was made, Lisa would collect the cocaine on the following morning.
37 During the evening of 17 November 2015, the pair of you communicated a number of times. You, Mr Dau, told Mr Hoang, “there are 4 here, and 1 is at the shop ...” before you handed the telephone to Lisa, who told you that one of her associates was hawking one at the Highpoint Shopping Centre.
38 On 18 November 2015 you, Mr Dau, and Mr Hoang, discussed moving the cocaine.
39 On 18 November 2015 at 4.33pm, both you, Mr Hoang and, you, Mr Dau, were observed travelling in Mr Hoang’s Holden Commodore in Sunshine North and St Albans. At 7:25pm, police intercepted the car and searched it. Police located the following:
·A white plastic bag containing 704.8 grams gross of cocaine in the front passenger footwell area. It was subsequently analysed and calculated to contain 499 grams of pure cocaine.
·Three mobile telephones in Mr Hoang’s possession.
·A Victorian drivers licence in the name of “Michael Lorenzo” bearing a photograph of Diego Tam. This was the same photograph that Mr Hoang had previously sent to Nguyen.
40 Thereafter, police executed a search warrant at 78 Stradbroke Drive, St Albans, where Mr Hoang resided. There they located:
·A shopping bag containing three heat-sealed packages of cocaine weighing 2,989.1 grams gross within the ceiling cavity. This was subsequently analysed to 2,104.3 grams of pure cocaine.
·Five fraudulent drivers licences, including one depicting you, Mr Hoang.
·A vacuum bag sealer.
41 You, Mr Dau, jointly possessed the 499 grams of pure cocaine located in the vehicle with Mr Hoang. The possession was for the purpose of sale (Charge 3).
42 You, Mr Hoang, possessed both the 499 grams of pure cocaine located in your vehicle and the 2,104.3 grams of pure cocaine located in your premises. Accordingly, you were in possession of an aggregate of 2,603.3 grams of pure cocaine for the purpose of sale (Charge 2).
43 In your interview with police on 18 November 2015 you, Mr Hoang, stated, inter alia, that:
·You owned the Holden Commodore in which you were arrested, but did not know if your friend had put anything in the car. You were driving the car.
·You were with Mr Dau in the car, who had asked to be picked up and driven home (Q36).
·You did not drive the car very often (Q50).
·Someone might have left something in the car (Q51).
·When you were in the car you did not see the package containing the cocaine, and only saw it when police found it – black bag (Q58).
·When asked if you had received a telephone message from Seetha Lyer (from the Flint Group) on the …608 mobile telephone number, you said you did not know anything about it and that maybe someone had borrowed your phone (Q104).
·You did not know anything about calling Hung Le Nguyen to ask him to make a false identification in the name of “Michael Lorenzo” (Q106).
·You did not send a photograph [of Diego Tam] to Nguyen on 6 November 2015 (Q118).
·You did not give your telephone to Nguyen to use to call DHL and that you leave your telephone out, so a friend could have used it (Q120 – 121).
·You had never before seen the “Michael Lorenzo” drivers licence that was found in the driver’s door of the Commodore (Q122 -124).
44 In your interview with police on 18 November 2015 you, Mr Dau, stated that:
·On 18 November 2015, Mr Hoang told you to take the bag and wrap it in a black colour and put it on the passenger side of the car (Q30, 33).
·You were on your way home when Mr Hoang asked you if you wanted to come along (Q38).
·After getting into Mr Hoang’s car, you took the bag and put it under the seat without opening it (Q40).
·You had known Mr Hoang between six to seven months, and you both are from the same province in Vietnam (Q52 – 58).
·When you entered the car, you saw a black nylon bag but did not ask anything about it. It belonged to Mr Hoang (Q90).
·The black bag was on the driver’s side of the car when you first got in. Then Mr Hoang passed the bag to you. You knew there was something in the bag, but didn’t pay any attention to it. It was “rather heavy” but you were not sure how heavy (Q100 – 101).
·When pulled over by police the bag was under your seat (Q104).
·You had some money saved from working on a farm and also borrowed money from Mr Hoang for rent and school fees (Q158 – 161).
45 On 27 November 2015, a search warrant was executed at your residence, Mr Dau, at 1 Bond Street, St Albans. There police located:
·A fraudulent drivers licence in the name of “Michael Lorenzo”.
·A set of digital scales.
46 The estimated value of the cocaine, the subject of charge 1, (3,374.6 grams pure), is:
·wholesale = approximately $1,264,800
·the retail (street) = $3,370,890 (low end).
47 The estimated value of the cocaine, the subject of charge 2 (2,603.3 grams pure), is:
·wholesale = approximately $1,360,800
·the retail (street) = $2,600,580 (low end).
48 The estimated value of the cocaine, the subject of charge 3, (499 grams pure) is:
·wholesale = approximately $200,800
·the retail (street) = approximately $498,390 (low end).
49 The maximum penalty for the offence of attempting to possess a commercial quantity of a border-controlled drug is life imprisonment or 7,500 penalty units, or both. A commercial quantity of the border-controlled drug, cocaine, is 2,000 grams, pursuant to s301.4 of the Criminal Code Act and item 67 of Schedule 4 of the Criminal Code Regulations 2002 (Cth).
50 The maximum penalty for the offence of trafficking a large commercial quantity of a drug of dependence is life imprisonment. A large commercial quantity of cocaine is 750 grams.
51 The maximum penalty for the offence of trafficking a commercial quantity of a drug of dependence is twenty-five years’ imprisonment. A commercial quantity of cocaine is 250 grams.
52 On 4 November 2016, at the Melbourne Magistrates’ Court you, Mr Hoang, pleaded guilty to Charges 1 and 2 on the Indictment and proceeded by way of straight hand-up committal.
53 On 16 December 2016, at the Melbourne Magistrates’ Court you, Mr Dau, pleaded guilty to Charge 3 on the Indictment and proceeded by way of a straight hand-up committal.
54 Both you, Mr Hoang, and you, Mr Dau, have been in custody since your arrest on 18 November 2015 and, accordingly, have served 511 days, excluding 12 April 2017 (one year, four months and twenty-five days), in custody.
55 On 23 January 2014 you, Mr Hoang, entered Australia pursuant to a Subclass 573 Higher Education Student Visa.
56 On 23 March 2014 you, Mr Dau, entered Australia pursuant to a Subclass 573 Higher Education Student Visa.
General sentencing principles – Charge 1
57 Section 16A of the Crimes Act 1914 (Cth) provides for a number of matters which a court is to have regard to when passing a sentence in respect of Federal offences. These matters include the following:
·That the Court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.
·The nature and circumstances of the offence.
·Your personal circumstances.
·The degree to which you have shown contrition for the offences.
·Whether or not you pleaded guilty to the offences.
·The degree to which you cooperated with law enforcement agencies in the investigation of the offence or other offences.
·The deterrent effect that any sentence or order under consideration may have upon you.
·The need to ensure that you are adequately punished for the offence.
·Your character, antecedents, age, means and physical or mental condition.
·The prospect of rehabilitation.
58 I am also conscious of the provisions of s17A of the Crimes Act 1914 (Cth) which provides that a court shall not pass a sentence of imprisonment on any person for a Federal offence unless the Court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
59 In this matter, your counsel has conceded that the offences are such that a period of immediate imprisonment is warranted. He did not suggest that any other sentence was appropriate in all the circumstances.
60 Both your counsel and the Prosecutor submitted to me that the principles laid down by the Court of Appeal in the matter of Nguyen v R; Phommalysack v R (2011) 31 VR 673 were applicable in determining your sentence. In that matter, the Court set out a number of propositions said to be applicable to sentencing for drug importation offences. I will set them out in full:
“1. The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
2. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court.
3. It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
4. Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
5. Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
6. As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
7. The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
8. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
9. Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
10. The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.
11. Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
12. Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.
13. Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.”[1]
[1]Nguyen v R; Phommalysack v R (supra) at paragraph [34]
61 It has also been said that the following are key reference points for sentencing in cases such as this. And they are:
·quantity
·the role played
·the reward
·assistance to authorities given
·the offender’s criminal history
·the offender’s prospects of rehabilitation.
General sentencing principles – Charges 2 and 3
62 In sentencing both of you, I must have regard to a range of different factors. I must give effect to the principles of deterrence, both general and specific. I must deter other people from behaving like you. I must deter you from repeating such behaviour, though, because of my findings with respect to your respective prospects of rehabilitation, specific deterrence carries less weight here. I must express the community’s denunciation of your conduct and promote your rehabilitation. I must also have regard to current sentencing practices for offences of the kind you have committed and I must balance your personal circumstances. I am also mindful of the principles of parity which concerns the relativities of your respective sentences and, indeed, the nature of the respective charges. With respect to your two charges, Mr Hoang, I am also mindful of the principles of totality.
Role in offending and gravity
63 Your role with respect to Charge 1, Mr Hoang, of attempting to possess a commercial quantity of unlawfully imported cocaine between 31 October and 18 November 2015, was pivotal. It was in furtherance of an enterprise concerning the illegal importation of cocaine inferentially for the purposes of sale in Australia. The circumstances are set out in full in paragraphs 4 to 24 above. It is clear that you were instrumental in arranging details concerning the attempt to possess the two consignments. You gave directions to a Mr Nguyen to prepare false documents to facilitate the gaining of possession, and it would appear from the accepted evidence, that there were no superiors to you in the organisation, at least in Melbourne. The scope of the enterprise can also be inferred from the wholesale and retail values of the two consignments as set out in paragraph 46.
64 Your role, Mr Hoang, with respect to Charge 2, is set out in full in paragraphs 23 to 48 above. It can be seen that your trafficking was conducted over a number of weeks prior to 18 November 2015, and in which time you communicated with a number of persons. The discussions included the extraction of cocaine from impregnation and the quality of cocaine, and you were heavily involved in negotiating prices and quantities of cocaine. Although the extraction process was seemingly new to you, you did state to Mr Nguyen on 11 October 2015 at 12.25pm:
“First time like this, next time we know we won’t need to ask anyone.”
65 It is clear enough that your trafficking was intended to become an ongoing and profitable enterprise. Once again, it would appear that there was nobody superior to you, at least in Melbourne, within the organisation.
66 You were integral to the importation, processing and converting the cocaine to its final selling form, negotiation with potential wholesale customers and the sale of the cocaine. You answered to no one in Melbourne and gave direction to others. It is clear from your communications with “Lisa” and your delegation and direction to Mr Dau, that you had a degree of autonomy and authority in your dealings and the way you operated within Australia.
67 While I accept that you did answer to the owner of the cocaine in Vietnam, clearly, you were in a position of power and trust in the operation and can be regarded not as a mere courier or middle man, as submitted by your counsel, but a principal in this offending.
68 In respect of these matters, I make the following comments concerning your offending, Mr Hoang. The offences of which you have been convicted are serious ones. They each involve the engagement by you at a high level of a sophisticated illegal enterprise concerning the importation and trafficking of large quantities of cocaine.
69 The maximum penalty for both Charge 1 and Charge 2 is life imprisonment. This reflects the relative seriousness of the offence of attempting to possess a commercial quantity of cocaine.
70 In assessing the overall gravity Mr Hoang, I take into account that Charges 1 and 2 are similar offences occurring within the same limited timeframe and are in furtherance of your leading role within the organisation in Melbourne of importing and trafficking in cocaine on a very significant scale.
71 Your involvement, Mr Dau, concerns trafficking a commercial quantity of a drug of dependence as compared to trafficking a large commercial quantity of a drug of dependence. The facts of your involvement are set out in paragraphs 35 to 48 above. The maximum penalty for this offence is twenty-five years’ imprisonment. Once again, this reflects the relative seriousness of the offence of trafficking a commercial quantity of a drug of dependence.
72 Your counsel, Mr Dau, submitted that your offending was limited to that of a courier and that you had only “just started working for Mr Hoang”. I will accept that you were unaware as to the contact details or the principals in Vietnam, that you were in possession of a lesser quantity of drugs and had a far less organisational role when compared to your co-offender. It is submitted, on your behalf, that your motivation for the offending was to receive $5,000 in payment for delivering the package containing the cocaine. I am told you intended to use the money to pay back your co-offender and to buy more methamphetamine with any remaining money. I am also told that you received no payment for the offending.
Mr Hoang – Personal and mitigating circumstances
73 I now turn to your personal and mitigating circumstances and to you, first, Mr Hoang.
No criminal history
74 You have no prior criminal history. You are, therefore, entitled to rely on your good character. It was put to me by your counsel that you have no criminal record in Vietnam and you have never been in trouble with the authorities. I sentence you upon that basis.
Personal background
75 Mr Hoang, you were born in a rural area in Central Vietnam on 17 March 1995. You are twenty-two years old. At the time of this offending you were twenty years old. You were raised on a small farm and lived with your mother and father, a brother and a sister. You completed secondary school, and I am told you were a good student. You had an ambition to travel overseas, having attended a local university in Vietnam. Your father funded your study in Melbourne, which commenced on 23 January 2014, when you entered Australia pursuant to a Subclass 573 Higher Education Student Visa.
76 In January 2014, you lived in a student house in St Albans, not knowing anyone residing there. It was submitted that you were a virtual recluse. You were enrolled in an English course at the Baxter Institute, funded by your father, but apparently your mastery of English did not progress well. In your first twelve months in Australia you had no income other than a $2,000 a month allowance provided by your father.
77 In 2015, an adverse weather event in Vietnam severely damaged the farm crop and your allowance was reduced. You told your parents that you were supplementing your income by working as a labourer in a rural environment picking fruit and vegetables.
78 You were working between 5.30am and 8.00pm, having been bussed to and fro from the farm. This did not help your development of English. You also obtained employment as a handyman, but this did not pay well.
79 In or about mid-2015, it was submitted that you were exploring ways of supplementing your income. It was not submitted on your behalf that you were on the ground floor of the enterprise, but that you were, in fact, running the business in Melbourne.
80 With respect to the State offences, it was submitted that you were clearly being directed from above in Vietnam and you were doing the bidding of that person.
81 More importantly, it was submitted that when you entered Australia in 2014, you were aged eighteen (scil nineteen) and that you were saddled with a lack of wisdom, an immaturity and a propensity to make bad decisions. It was further submitted that when you were engaged in this enterprise in 2015, you were only aged nineteen (scil twenty) and that you suffered from a lack of command of the English language.
82 It was further submitted that your time in custody has given you considerable opportunity to reflect on your decision-making process. I am informed that you are now learning English quite well and that you have been working in the kitchen in the gaol in a trusted position. You have undergone courses in English and kitchen operations, and have certificates which have been tendered on your behalf from the Box Hill TAFE.
Admissions and guilty plea
83 As your Record of Interview would demonstrate, you were not immediately forthcoming with the police; however, you pleaded guilty at the earliest possible opportunity, at committal mention, and the matter proceeded by way of a straight hand-up brief. Your early plea is evidence of remorse and acceptance of responsibility of your offending, and it also carries a utilitarian benefit in saving the community the time and expense of protracted legal proceedings.
Isolation in custody
84 I accept that custody, to some extent, will be more burdensome for you, given your isolation from your family in Vietnam and your limited English skills. As I said earlier, your family resides in Vietnam. Your family members are not able to assist you. You associate with fellow Vietnamese-speaking prisoners only. I take this additional burden into account.
Relative youth
85 At the time of offending, you were twenty years of age and I accept your counsel’s submission with respect to your immaturity and lack of wisdom in decision-making processes. The youthful offender principles apply. As such, rehabilitation remains an important component of any sentence.
86 Further, the total effective sentence I am about to impose will reflect an appropriate degree of leniency because of your youth.
Prospects of rehabilitation
87 I will accept that you are capable of achieving, once you put your mind to it, having completed secondary school in Vietnam. I will also accept that you have had time to reflect upon your decision-making in the past, and that you are maturing in this respect. You are not psychiatrically unwell and I accept, also, the submission made that you are not a drug user, having requested drug testing in gaol and having been found to be clear on at least four or five occasions. I accept that you are remorseful of having done “the wrong thing” and your choices were, to a large part, connected to your then personal financial circumstances. I will accept that you are likely to live a lawful and law-abiding life in Vietnam, as you did prior coming to Australia, once you are ultimately released from prison.
Mr Dau – personal and mitigating circumstances
88 Mr Dau, I now turn to your personal and mitigating circumstances.
No criminal history
89 You, also, have no prior criminal history and I accept the submissions that you have no criminal history in Vietnam and none in Australia and, therefore, you are entitled to rely on your good character.
Personal background
90 Mr Dau, you were born in Nghệ An, Northern Vietnam, the middle child of five children (four surviving children). You are currently twenty-one years old and, at the time of offending, you were nineteen years old. Both of your parents were labourers and the family were extremely poor.
91 Your father was typically forced to travel overseas to obtain employment, and you saw little of him as you were growing up. Your father passed away four years ago and, thereafter, your mother started a small grocery store.
92 You completed secondary schooling in Vietnam. You also worked at a local restaurant while completing school from the age of nine. Your intention in coming to Australia was to complete an English course before moving on to study medicine. Your twenty-two year old brother is a current medical student. You arrived in Australia on 23 March 2014 pursuant to a Subclass 573 Higher Education Student Visa.
93 You initially moved to Queensland, starting an ESL course at a TAFE institution. Unfortunately, you struggled with this education.
94 After about two months you moved to Melbourne, because the course fees were cheaper, and you believed it would be easier to get a job. You enrolled at Baxter College to continue your ESL study and you were living in a share house at this time, in St Albans. You worked for a short time as a handyman, and then fruit picking in Robinvale. This last job only lasted approximately two months as the employer no longer accepted international employees. You returned to Melbourne to work as a waiter in a restaurant seven days per week.
95 You first tried methamphetamine in 2015 and used the drug socially. Within a short time you started to use the substance every two to three days. You funded your usage through a combination of leftover money earned at work and borrowing money from your mother and co-offender. You borrowed approximately $2,300 from your mother, telling her it was for your tuition. You instruct you have paid back approximately $1,000. You have also borrowed between $4,000 and $5,000 from your co-offender over a six to seven-month period. You instruct that your motivation for the offending was to receive $5,000 in payment for delivering the package containing the cocaine, and you intended to use the money to pay back your co-offender and buy more methamphetamine with any remaining money.
Admissions and guilty plea
96 As to your admissions and guilty plea, you largely co-operated with police and made some admissions.
97 Like Mr Hoang, you pleaded guilty at the earliest opportunity at committal mention and the matter proceeded by way of a straight hand-up brief and, similarly, I take the view that your early guilty plea is evidence of remorse and acceptance of responsibility for your offending, and it also carries a utilitarian benefit in saving the community time and expense of a protracted criminal proceeding.
Isolation in custody
98 Like Mr Hoang, I also accept that custody, to some extent, will be more burdensome for you, given your isolation from your family in Vietnam and your limited English skills. Your family members are not able to visit you, given that they reside in Vietnam.
Young man
99 You are still a young man at age twenty-one. The youthful offender principles apply in your case. Similarly, your sentence will reflect an appropriate degree of leniency on account of your youth and immaturity.
Prospects of rehabilitation
100 I accept your counsel’s submissions that your prospects of rehabilitation can be said to be good. You have no prior convictions. You have shown, in the past, that you are capable of working for a living and, in fact, did so at a young age in Vietnam while studying.
Conditions on remand Mr Hoang & Mr Dau
101 You have both been on remand since the day after your arrest, 19 November 2015. Both of you have spent time during your remand at the Metropolitan Remand Centre. During this time the restrictions which were put in place following the riots in June 2015 have still been in effect. As a result of this you have been subject to a stricter and more onerous form of custody management. Counsel for both accused have submitted that I should take this into consideration in determining your respective sentences and I have done so.
Sentence
102 I now turn to sentence you.
Mr Hoang
103 Mr Hoang, would you please stand?
104 On Charge 1, attempting to possess a commercial quantity of a border-controlled substance, namely cocaine, you are convicted and sentenced to nine (9) years’ imprisonment. I direct that you serve a non-parole period of five (5) years.
105 On Charge 2, trafficking a large commercial quantity of a drug of dependence, namely cocaine, you are convicted and sentenced to eight (8) years’ imprisonment and I direct that you serve a non-parole period of five (5) years.
106 I direct that the sentence relating to Charge 1 should commence one (1) year from today.
107 The total effective sentence is, thus, ten (10) years’ imprisonment.
108 I direct that you serve a total minimum of six (6) years’ imprisonment before becoming eligible for parole.
109 In fixing the non-parole period I must pay regard to s19AKA of the Crimes Act (Cth) which sets out the purposes of parole, which are:
(a) the protection of the community;
(b) the rehabilitation of the offender;
(c) the reintegration of the offender into the community.
110 Pursuant to s16FCA of the Crimes Act, I am required to explain the impact of my Order.
111 The total effective sentence is ten years’ imprisonment. I have directed that you serve a total minimum period of six years before becoming eligible for parole. Accordingly, you will be required to serve a minimum period of imprisonment of not less than six years, and thereafter, if you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole and subject to any order for deportion. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison.
112 The prosecution at the Plea and further to the Plea have supplied the Court with “Yardstick” cases in respect of Mr Hoang’s Commonwealth charge. While all cases turn on their own facts, having regard to these cases I do find that this offending does fall within range due to the age of the accused, the antecedents of the accused, the gravity of the offence and the circumstances of the offence, including the role that Mr Hoang undertook in this enterprise.
Pre-sentence detention
113 You have been in custody since the date of your arrest on 18 November 2015 and, accordingly, you have served 511 days, excluding 12 April 2017 (one year, four months and twenty-six days).
114 Pursuant to s18 of the Sentencing Act 1991, I declare 511 days to be reckoned as the period of imprisonment already served under this sentence, excluding today.
Section 6AAA
115 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a total effective sentence of fifteen years’ imprisonment, with a non-parole period of ten years.
116 You can be seated Mr Hoang.
Mr Dau
117 Mr Dau, would you please stand?
118 On Charge 3, trafficking a commercial quantity of a drug of dependence, namely cocaine, you are convicted and sentenced to four (4) years’ imprisonment.
119 I direct that you serve a minimum of two (2) years before becoming eligible for parole.
Pre-sentence detention
120 You have also been in custody since the date of your arrest on 18 November 2015. You have spent 511 days in custody in relation to these matters, not including today.
121 Pursuant to s18 of the Sentencing Act 1991, I declare 511 days be reckoned as the period of imprisonment already served under the sentence.
Section 6AAA
122 Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a total effective sentence of six years’ imprisonment, with a non-parole period of four years.
123 You may be seated. Thank you Mr Dau.
124 HIS HONOUR: Gentlemen, I understand that no disposal order or forensic sample order is sought at the moment?
125 MR DHILLON: No, not at this stage, no.
126 HIS HONOUR: Are there any further matters that I need to attend to?
127 MR DHILLON: Nothing that comes to mind Your Honour.
128 HIS HONOUR: All right thank you. Sorry, yes?
129 MR KUEK: Sorry, Your Honour, I'm mindful that my client is someone whose English is second language.
130 HIS HONOUR: Yes.
131 MR KUEK: And that he might have some difficulties following the entirety of your sentencing remarks Your Honour.
132 HIS HONOUR: Yes.
133 MR KUEK: Would Your Honour in those circumstances be prepared to let us have a copy of your sentencing remarks?
134 HIS HONOUR: Yes you should have a copy there.
135 MR KUEK: Thank you Your Honour.
136 HIS HONOUR: Sorry after this. Yes certainly, that will be provided to you.
137 MR KUEK: Thank you, most obliged Your Honour, thank you.
138 HIS HONOUR: Anything further?
139 MR REARDON: No Your Honour, may it please the court.
140 HIS HONOUR: Thank you, you may remove the prisoners thank you. Yes could you please adjourn the court.
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