The Queen v Ta
[2019] VCC 1257
•9 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-17-02313
CR-17-02326
CR-17-01954
CR-17-01952
| THE QUEEN |
| v |
| QUYNH TA CONG DAU |
---
| JUDGE: | HER HONOUR JUDGE DAWES |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 29 & 30 April 2019 |
| DATE OF SENTENCE: | 9 August 2019 |
| CASE MAY BE CITED AS: | The Queen v Ta & Anor |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1257 |
REASONS FOR SENTENCE
---
Subject: State Indictment – Traffick large commercial quantity methylamphetamine and other offences
Federal Indictment – Attempt to import commercial quantity border controlled precursor chemical, pseudoephedrine
Catchwords:
Legislation Cited: s.16B of the Commonwealth Crimes Act
Cases Cited: Ben Kim v The Queen [2019] VSCA 149; DPP (Cth) v Brown [2017] VSCA 162.
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth | Mr J. Dickie | Commonwealth Director of Public Prosecutions |
| For the Director of Public Prosecutions | Mr S. Devlin | John Cain, solicitor for Public Prosecutions |
| For Accused Ta | Mr M. Thomas (For Plea) Ms E. Byrt (For Sentence) | Valos Black & Associates |
| For Accused Dau | Mr L. Barker | Papa Hughes Lawyers |
HER HONOUR:
1Mr Ta and Mr Dau, I would like to acknowledge that you have waited several months to be sentenced for these offences. Unfortunately, due to matters that were out of my control, I was unable to work for some time earlier in the year and that is the reason for the delay in sentence. I do apologise.
2I will give a general summary of both the state and federal matters. Then I will deal with Mr Ta and then Mr Dau.
3Quynh Ta and Cong Cao Dau, you have pleaded guilty to offences on a state indictment, including trafficking in a large commercial quantity of methylamphetamine. You have also pleaded guilty to one charge on a federal indictment, being attempting to import pseudoephedrine.
4A general summary of the facts in the state matters is as follows.
5On 8 July 2016 Anh Luong Nguyen rented a house on Duncans Road, Werribee South. On 19 October 2016 the owners of the property and their real estate agent inspected the property. No one else was present. They contacted police immediately. It was apparent to all that the house had been used to establish and operate a clandestine drug manufacturing laboratory.
6The walk through video tendered by the prosecution depicts the size and extent of the drug enterprise. It is undisputed that the laboratory was elaborate, sophisticated and used for the manufacture of methylamphetamine.
7A search of the house revealed that it had been occupied very recently (a candle was burning and a rice cooker was in use) and the quantity of drugs that was located was subsequently identified. In total 1.7 kilograms of methylamphetamine (100 per cent purity) was seized. I shall refer to this as the Duncans Road methylamphetamine.
8Also seized was a large quantity of waste or refuse material from the manufacture of methylamphetamine. It was analysed and contained
1.3 kilograms of pseudoephedrine (Charge 3).
9A large amount of glassware, equipment and chemicals, including
14,049.6 grams of iodine and 12.5 litres of hypophosphorous acid were also located (Charge 2).
10Anh Luong Nguyen was arrested and remanded in custody on 19 October 2016. Charge 1 against him relates to his possession of 1.7 kilograms of methylamphetamine at the Duncans Road property.
11The police undertook further investigations, including lawfully intercepting telephone conversations. These investigations disclosed the involvement of other men. On 25 October 2016 Thang Dang Bui was apprehended by police whilst driving his car. Police located 989.7 grams of methylamphetamine, at
85 per cent purity, in his possession. A search at his address at Tudor Road, Sunshine North, revealed 9,986.5 grams of methylamphetamine at 83 per cent purity locked in his bedroom.
12In the intercepted conversations, on 24 October 2016, a transaction relating to 11 kilograms of methylamphetamine had been discussed. The prosecution contend that the total of methylamphetamine that was recovered from Bui's car and room was the subject of that transaction. Thus, Bui was charged with trafficking in a large commercial quantity of methylamphetamine with an aggregate weight of 12.7 kilograms. This was comprised of 1.7 kilograms seized at the Duncans Road address and the proposed 11 kilograms for sale, being the methylamphetamine that weighed just under 10 kilograms seized from the Tudor Road address and just under 1 kilogram that was seized from Bui himself. The search of Bui's bedroom also revealed 34.5 grams of cocaine at 92 per cent purity and 52.5 grams of pseudoephedrine at 75 per cent purity.
13Thang Dang Bui was remanded in custody on 25 October 2016. Telephone intercepts had demonstrated Bui's involvement in the Duncans Road manufacturing enterprise and also demonstrated the involvement of
co-accused in the Duncans Road methylamphetamine and the Tudor Road methylamphetamine, and the methylamphetamine found in Bui's actual possession.
14Thus Cong Cao Dau, Luc Ky Phan and Quynh Ta were apprehended and charged with offences relating to the drug enterprise.
15The prosecution contend that Quynh Ta occupied a high level role in the enterprise. Cong Cao Dau and Luc Ky Phan were below him, and that Thang Dang Bui was a considerable level below Dau and Phan. Anh Luong Nguyen's role was different to the other accused.
16PRISON OFFICER: Tell her you can't hear. You need to tell her, you need to tell her you can't hear.
17I shall examine each accused's particular role in more detail in a moment.
18OFFENDER DAU: (Direct) Excuse me, Your Honour.
19HER HONOUR: Yes?
20OFFENDER DAU: I can't - I can't hear ‑ ‑ ‑
21The ‑ ‑ ‑
22OFFENDER DAU: I can't hear what this - before ‑ ‑ ‑
23PRISON OFFICER: No volume.
24OFFENDER DAU: No - no - no volume, Your Honour.
25HER HONOUR: Just try and reconnect the link.
26OFFENDER DAU: Your Honour.
27HER HONOUR: Thank you.
28OFFENDER DAU: (Through interpreter) Your Honour, I only didn't hear the last ten second. Before that I was able to hear everything.
29HER HONOUR: All right, I will just repeat that last paragraph. Thank you.
30OFFENDER DAU: (Direct) Thank you, Your Honour.
31HER HONOUR: The prosecution contend that Quynh Ta occupied a high level role in the enterprise. Cong Cao Dau and Luc Ky Phan were below him and that Thang Dang Bui was a considerable level below Dau and Phan. Anh Luong Nguyen's role was different to the other accused. I will examine each accused's particular role in more detail in a moment.
32A large commercial quantity of methylamphetamine is 750 grams pure or
1 kilogram mixed. As I have said this was a significant drug manufacturing and distribution enterprise.
33The owner of the Duncans Road property has provided a victim impact statement. It was read to the court. He and his family are distressed that their house was used as a clandestine laboratory. The damaged caused by the illegal activity was significant. He fears that the lingering effects of the clandestine laboratory will never be rectified. His plans for his family to live at that house in the future have been all but destroyed. The conduct of each accused has caused his family a great deal of stress and unhappiness. He also believes that his reputation has been tarnished by his ownership of the property used for this criminal enterprise. I have read the victim impact statement and I take into account the relevant portions.
34Drug trafficking is a scourge on our community. As the Court of Appeal have recently stated in Ben Kim v The Queen [2019] VSCA 149, at paragraph 31,
'We wish to make it clear once more that long prison sentences await those who participate in this pernicious trade. Those lengthy sentences are the occupational risk of the drug dealer and with modern policing techniques, that risk becomes greater by the day. Should that risk become reality, the principles of general deterrence and denunciation will normally be accorded particular prominence in the sentencing mix. Those who choose to embark on the business of drug trafficking must understand that they will lose their liberty for an extended period. It is only in this way that the courts can discourage those lured by greed into an enterprise that is so harmful to our community'.
35Identical expressions of principal apply to all serious Commonwealth drug offences, including the importation of border controlled substances. In the decision of the DPP(Cth) v Brown [2017] VSCA 162, at paragraph 9, the Court stated,
'There needs to be a clear signal to would-be offenders, motivated by the potential financial rewards of drug importation, that detection will inevitably lead to very lengthy terms of imprisonment'.
36I will now summarise the general facts for the federal offence.
37Quynh Ta, Cong Cao Dau and Van Hau Ta have pleaded guilty to one charge of attempting to import a border controlled precursor substance, pseudoephedrine, in an amount that was not less than a commercial quantity. Their offending occurred between 31 December 2016 and 7 January 2017. Ngoan Van Tran has pleaded guilty to the same offence, but between 2 January and 7 January 2017.
38A prosecution opening has been provided, which outlines the facts relied on. Each accused has agreed through his counsel that the summary is an accurate account of events.
39Another co-accused, Van Dau Tran, has already pleaded guilty to the same offence. On 19 December 2018 he was convicted and sentenced to a term of imprisonment of eight years and nine months, with a non-parole period of 5 years and six months. He was sentenced as someone with a low-level of responsibility and role in the hierarchy. I have been provided with and read the sentence imposed by His Honour Judge Mullaly and take that into account.
40On 8 November 2016 a large container, which held a total of 972 boxes of OMO washing powder, was sent from Vietnam. The consignee of the delivery was the company Dac Thang of which Van Dau Tran was the sole director and which Ngoan Van Tran had previously owned.
41Concealed with 57 boxes were plastic packages containing pseudoephedrine. The pseudoephedrine had a purity of between 18.6 per cent and 20.1 per cent. After analysis it was determined that the total quantity of pure pseudoephedrine was 190 kilograms.
42The container arrived in Melbourne on 9 December 2016 and was intercepted prior to its delivery. The bags of pseudoephedrine were removed and substituted with legitimate bags of OMO, which were taken from the consignment. Those bags were in turn replaced with packets of brown sugar. The container was delivered to a warehouse in Tottenham on
31 December 2016. Photographs tendered depict the vast size of the delivery.
43Quynh Ta directed Cong Cao Dau to open the warehouse to accept the delivery. Cong Cao Dau attended and assisted by moving the boxes into the warehouse using a forklift that had been hired by Ngoan Van Tran.
Van Hau Ta arrived at the warehouse later that afternoon and inspected the contents of a pallet. Cong Cao Dau and Van Hau Ta liaised with
Quynh Ta later that afternoon.
44On 1 January 2017 Quynh Ta, Van Hau Ta, Cong Cau Dau and Van Dau Tran all met. Van Hau Ta, Cong Cau Dau and Van Dau Tran then attended the warehouse where they inspected the delivery. Quynh Ta contacted
Cong Cau Dau in the course of that afternoon. Van Hau Ta then went to
Quynh Ta's house later that day to discuss their progress in checking the contents of the container. Quynh Ta updated the contacts in Vietnam of the progress inspecting the boxes.
45On 2 January 2017 Quynh Ta and Van Hau Ta spoke to their contacts overseas about the expected content of the delivery. Later that day Van Hau Ta,
Cong Cao Dau and Van Dau Tran attended the warehouse, again inspecting the boxes of OMO. Ngoan Van Tran joined soon after and assisted in the unpacking, inspecting and repacking of the boxes. Van Hau Ta, Van Dau Tran and Cong Cao Dau updated Quynh Ta on their progress, or lack of progress, later that afternoon.
46On 3 January 2017 Van Hau Ta, Cong Cao Dau, Van Dau Tran and
Ngoan Van Tran all attended and continued to inspect the boxes of OMO at the warehouse. Again, Quynh Ta had discussions with contacts in Vietnam about the content of the delivery. The anticipated pseudoephedrine had not be located and so Quynh Ta then decided to lock up the warehouse and leave it unattended for several days to see if anything would transpire.
47At that time Van Hau Ta returned to Sydney. The parties did not attend the warehouse again until he had come back to Melbourne. Van Hau Ta spoke to a contact in Vietnam on 4 January 2017. Van Hau Ta returned to Melbourne on 6 January 2017.
48On 7 January 2017 Cong Cao Dau, Van Hau Ta, Van Dau Tran and
Ngoan Van Tran continued unpacking and inspecting the content of the boxes in the warehouse for several hours. Nguyen Van Tran located one of the packets of sugar that had been substituted for the OMO washing powder. This was the first time that it was clear that the contents of the delivery were not as anticipated. Various bags were removed from the boxed and photographed by Cong Cao Dau. A small bag of sugar was also placed in the van that
Van Dau Tran had driven to the warehouse with Van Hau Ta.
49Police attended the warehouse that afternoon, arresting Van Hau Ta,
Cong Cao Dau, Ngoan Van Tran and Van Dau Tran in the car park. Quynh Ta was also arrested at a different address.
50The estimated value of the pseudoephedrine, if sold in 1 kilogram blocks, was between $6.6m and $20m. A commercial quantity of pseudoephedrine is
1.2 kilograms. There is no category for a large commercial quantity involving this substance in Commonwealth offences. The quantity of pseudoephedrine in this case is more than 158 times a commercial quantity.
51This type of offending is serious and is often difficult to detect. The effort that was made to avoid detection in this case was significant. This was a sophisticated and organised importation. The harmful effects that flow from the importation and distribution of pernicious substances on our community are well known.
52I will now deal with Quynh Ta.
53Quynh Ta you have pleaded guilty to three charges on the state indictment:
1) Trafficking in a large commercial quantity of methylamphetamine from 8 July to 25 October 2016, (12.7 kilograms)
2) Possession of substances, materials and equipment for trafficking in a drug of dependence, including iodine and hypophosphorous acid, scientific glassware and apparatus on 19 October 2016;
3) Possession of a precursor chemical, namely pseudoephedrine, on 19 October 2016.
54In relation to the state matters.
55The summary of prosecution opening is accepted. Exhibit D outlines the evidence that confirms your role in this offending. There is no dispute about the circumstances as alleged. You admit to being complicit in the offending of your co-accused, Anh Luong Nguyen, Luc Ky Phan, Cong Cao Dau and Thang Dang Bui.
56The charge of trafficking in a large commercial quantity of methylamphetamine is an inherently serious one, (Charge 1). Your culpability is illustrated by the fact that the quantity here is more than 12 times a large commercial quantity of that drug. You have pleaded guilty to the possession of the chemicals and equipment that made up the clandestine laboratory at the Duncans Road property (Charge 2). You have also pleaded guilty to the possession of pseudoephedrine that was located at Duncans Road, being part of the refuse from manufacturing the methylamphetamine (Charge 3).
57Your role is characterised as a high level role. This description is not in dispute, although you do not agree that your position was above that of Cong Cao Dau. You contend that it was more akin to being in partnership with him. I have examined evidence relating to your role and do not accept that characterisation. It is conceded that you did not receive instructions or directions from any of your co-accused. You directed others as to the movement of methylamphetamine, the movement of money and to ways in which the offending could be concealed. You provided instructions to Cong Cao Dau and Luc Ky Phan throughout the relevant period. These conversations were often in code.
58On the day that the clandestine laboratory was discovered, being
19 October 2016, you had direct or indirect contact with all four co-accused. This included a number of phone calls. You spoke to Luc Ky Phan and
Cong Cao Dau. They reported the attendance of the real estate agents to you. You advised Phan that Anh Luong Nguyen had already told you about that.
59You had a further conversation with Phan, when Thang Dang Bui was present, about moving the storage of items. You directed Cong Cao Dau to look after the business well whilst you were overseas. You spoke to Anh Luong Nguyen on two separate occasions that day.
60A number of phone calls on the following day indicate that you were directing
Luc Ky Phan about the movement and the price of drugs that were for sale. In particularly, Phan contacted you about the sale and purchase price of 11. You told Phan to do it all and go ahead. Approximately “11” kilograms of methylamphetamine were located in Bui's car when he was arrested on
25 October 2016. Those 11 kilograms form part of Charge 1.
61On 25 October 2016 you were contacted by Phan about the disappearance of Bui and discussed ways to reduce the risk of discovery.
62In my view, you had a high level role in this offending and held a more senior position than any of the other accused. There does not appear to be evidence that you directly assisted in the setting up of the laboratory. I consider it unlikely that you would do so, given your place in the hierarchy of this substantial criminal enterprise.
63Now I will deal with the federal offence.
64You have pleaded guilty to the charge of attempting to import 190 kilograms of pseudoephedrine between 31 December 2016 and 7 January 2017. The quantity is one where the amount of precursor substance is more than 158 times a commercial quantity. This illustrates your high level of culpability.
65The prosecution content that you had a central role in organising, facilitating and supervising the attempted importation. It is conceded that you were at the top of the hierarchy. Your counsel submitted, however, that your role was not necessarily above Van Hau Ta or Ngoan Van Tran.
66The evidence reveals that you directed others to attend the warehouse. Unlike your co-accused you did not go to the warehouse yourself. I consider that this supports the proposition that you were alone at the top of the hierarchy.
67As your co-accused looked for the pseudoephedrine you liaised with them regularly. You were kept updated about the contents of the consignment. You spoke in code with others about the importation. You did not receive instructions or orders from anyone else. You had direct contact with the suppliers overseas. When the pseudoephedrine was unable to be located you spoke to the suppliers about your concerns. No other offender appears to have had this level of contact with them. Other than Van Hau Ta, no other offender is recorded making any contact with anyone overseas about the consignment. You decided to lock up the warehouse and leave it for a few days when the pseudoephedrine had not been found in any of the boxes. Whilst the charge dates on the indictment are restricted to an eight day period, you spoke to others in Vietnam many times about the anticipated arrival of the container prior to its delivery.
68It is conceded that you played a central role in the attempt to important pseudoephedrine. In my view, the evidence supports the prosecution's position that your role was above your co-accused.
69There is no evidence of the benefit that you were to receive or that you had already received from your involvement in either of these sets of offences. Given the quantity of drugs seized and the sheer size of both operations I am satisfied that you would have received a very significant financial benefit. Your counsel concedes as much. The telephone intercept evidence demonstrates that your drug trafficking enterprise was active and lucrative.
70You are a 50 year old man with no prior criminal convictions. You have one prior matter relating to a driving offence, although that is not relevant here. Evidence of good character, however, has considerably less significance in serious cases such as these and in the context of your offending.
71Your plea of guilty to the state indictment was not entered at an early stage. You were charged with these offences on 27 April 2017 and declined to be interviewed by police. You participated in the contested committal in September 2017. The trial was due to commence on 4 February 2019. Your plea of guilty was entered on 7 February 2019. I am told that the prosecution agreed to amend the way the case against you was put, so facilitating a guilty plea.
72Your plea of guilty to the federal indictment was not entered at an early stage either. You were arrested on 7 January 2017. In your record of interview you admitted that you knew some of your co-accused. You denied speaking to anyone or knowing anything about the container that was delivered. You participated in the contested committal in November 2017 and were committed to stand trial.
73Your guilty plea to the federal indictment, however, came at an earlier stage than the plea in the state matter. Negotiations between the parties took place and your plea was entered on 22 March 2019. This was after the resolution of the offences on the state indictment. Your guilty plea was entered in advance of the Commonwealth trial date. It has been submitted that in those circumstances your plea of guilty is consistent with remorse.
74Your pleas of guilty have a significant utilitarian benefit. You have saved the court and the community the time and expense of running two lengthy trials. In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.
75It is submitted that remorse can be inferred from your late pleas of guilty. As a result of a request by your solicitor, clinical psychologist Alison Mynard has prepared a report for court, dated 14 April 2019. She reports that in the course of your assessment you “evaded eye contact for the majority of the interview,” “with a strong sense of shame about” your “body language and emotional state”. You expressed “sadness” and your “guilty feelings” to Ms Mynard.
76Your two children have written letters to the Court. Your daughter writes that you have told her that you are not proud of your criminal conduct and that you are sorry about your current predicament in letting your family down. Your son confirms that you regret your actions and are sorry for your behaviour.
77The Commonwealth and State prosecutors agree that those sentiments are consistent with the observations of the psychologist and can be taken into account as evidence of remorse. I accept that this is so and I am prepared to moderate your sentence to reflect an element of remorse.
78It has been submitted that you have good prospects for rehabilitation and that your prior good character is relevant to that consideration. I have difficulty accepting that submission in light of the chronology of events.
79When the clandestine laboratory was located at the Duncans Road property you were not contacted by police, nor spoken to about this offending. You were aware, however, that the house had been raided and that others may be in custody. Despite the discovery of this criminal enterprise you became involved in the federal matter soon after. You played a central, high level role in each separate example of extremely serious criminal offending. The fact that you were prepared to be involved in the importation of pseudoephedrine so soon after walking away from the Duncans Road operation is relevant when considering your prospects for rehabilitation. In those circumstances, notwithstanding your prior good history, I find that your prospects for rehabilitation are guarded.
80At the time of your offending you were 47 years of age. You were born in 1966 in Vietnam. Your formative childhood years were traumatic. You father was killed when you were a baby. Your mother gave you to another family and you were raised by them. You lived through the horrors of the Vietnam War and recall being the subject of bombings, gunfire and shelling attacks. Your family would hide under the floor of your house in a large water tank during air raids. Sometimes you would be hidden for hours and you recall a feeling of claustrophobia when there.
81When you were eight years old, your house was bombed, you were injured and your five year old brother was tragically killed. Your family experienced severe hardship, often going without food. You were required to engage in manual labour when you were a child. In 1975 the war ended. You were not permitted to continue in your education after Grade 3 for political reasons.
82In 1988, when you were 22 years old, you escaped from Vietnam by boat. You resided in a refugee camp in Malaysia for approximately two years before obtaining refugee status and becoming a permanent resident in Australia in 1990.
83OFFENDER DAU: (Direct) Excuse me, Your Honour.
84HER HONOUR: Yes, Mr Dau.
85OFFENDER DAU: My volumes - can't hear again.
86HER HONOUR: All right, we'll cut the link and start again. I do apologise, we'll just cut and start again, thank you.
87OFFENDER DAU: I'm sorry, Your Honour.
88HER HONOUR: Thank you, Mr Dau. Can you hear us now?
89OFFENDER DAU: Yeah, I - I can hear you now, yeah.
90HER HONOUR: All right, thank you.
91In 1988, when you were 22 years old you escaped from Vietnam by boat. You resided in a refugee camp in Malaysia for approximately two years before obtaining refugee status and becoming a permanent resident in Australia in 1990.
92In 1992 you met and married your wife. Your children were born in 1995 and 1997. Your family were present in the course of the plea hearing and you have a good relationship with them. Your children have both undertaken tertiary education and live in the family home.
93In the past you have worked running a sewing business from home with your wife. You then went into a joint venture, opening a clothing factory. The business had limited success and closed in 2011. I am told that you ended up with a debt of several hundred thousand dollars. In 2014 or 2015 you were involved in another joint venture developing land. That was not successful either, increasing your level of debt. Prior to these offences you also had a legitimate hydroponic business. Whilst in custody you have worked both as a laundry billet and as a cleaning billet.
94Ms Mynard described you as having a high level of post-traumatic stress disorder, relating to the severe poverty and hardship that you experienced as a child and the trauma of your life as a refugee. She confirmed that you suffer from distress when speaking about these experiences, as well as suffering from severe anxiety. Your mental health issues have been ongoing throughout your life.
95You were remanded in custody on 7 January 2017 on the federal offence. It is the first time you have been incarcerated. Ms Mynard described you as being very depressed and having great difficulty coping with stressors whilst in custody and facing court proceedings. You told her that you have had panic attacks when locked in your cell. At times you feel very claustrophobic, reminding you of the times when you hid under the house when under attack in Vietnam.
96It was submitted that in light of these issues and your mental health diagnosis the fifth and sixth limbs of Verdins are enlivened due to the increased level of hardship you will suffer in custody. I accept that incarceration would be more difficult in light of these circumstances. I take that into account.
97You have been on remand for a period of approximately two and a half years. Whilst there has been a delay between arrest and sentence, your pleas of guilty were not forthcoming until more than two years into that period. Nevertheless, I accept that the delay has been a source of anxiety for you, particularly in light of your mental health. I take that into account in your favour.
98Ms Mynard is concerned that your mental health will deteriorate whilst in custody. There is a reference to your taking medication, which does assist you, but you are not seeing a psychologist for treatment at the moment.
99Ms Mynard states that you have the capacity to rehabilitate yourself and that your risk of reoffending is low. It would be further reduced if your psychological issues are able to be addressed. Ms Mynard also suggested that the receipt of financial counselling would be of benefit to you so that you could obtain a better understanding of business finances.
100There is no suggestion that your offending was motivated by substance abuse, excessive alcohol use, problems with gambling or any other behavioural or medical problems. I consider that there is, however, a nexus between your conduct and your experience of extreme poverty as a child, together with your financial predicament at the time of your offending. You were in financial debt and your desperation to repay these debts was a motivating factor in your participation in criminality.
101It was submitted on your behalf that your financial situation was not mitigatory, but distinguished your level of culpability from someone who is purely motivated to offend by greed. The extent to which your offending was not motivated by greed may been an absence of an aggravating factor. I am unable, however, to quantify this extent. Clearly, the nature and extent of the criminal enterprise here and your offending as a whole indicates that enrichment was at least a part of your motivation.
102I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment. The community expects that those who elect to engage in serious drug enterprises be denounced and punished for this offending. A substantial term of imprisonment is the only appropriate disposition.
103Whilst the sentence I impose will be long, I consider that I must give specific deterrence some weight in this process in relation to the federal offence. Both sets of offending involved you at the head of organised criminal enterprises. There was nothing spontaneous about your offending and the attempted importation of pseudoephedrine took place not long after the detection of the state offending.
104I take into account the principle of parity when fixing sentence for you and your co-accused. You had a high level role in both criminal enterprises.
105I take into account the maximum penalties for each offence and current sentencing practices. The principle of totality needs to be considered in the sentences for the state offences.
106I have decided that there needs to be some, but not total cumulation in the sentences I impose. I have taken care not to doubly punish you for the offences.
107I have also considered the principle of totality and s.16B of the Commonwealth Crimes Act when imposing an appropriate sentence for the state offences and the sentence for the federal offence.
108Mr Ta, would you please stand.
109Balancing these factors as best I can, I sentence you as follows:
1)Charge 1, you are convicted and sentenced to 14 years' imprisonment;
2)Charge 2, you are convicted and sentenced to 2 years and 6 months' imprisonment;
3)Charge 3, you are convicted and sentenced 2 years' imprisonment.
110I direct that Charge 1 be the base sentence and that one year of the sentence on Charge 2 be cumulative upon that. The sentence imposed on Charge 3 will be concurrent with the sentences imposed on Charges 1 and 2. A total effective sentence for the state offences is 15 years' imprisonment and I fix a
non-parole period of 10 years.
111In relation to the state matter, the 6AAA declaration is had the matter not proceeded as a plea of guilty, the sentence I would have imposed would be a sentence of 18 years' imprisonment, with a non-parole period of 12 years.
112The application for compensation will be granted and fixed in the amount of $63,571.
113In relation to the Federal offence, you are convicted and sentenced to 11 years and 6 months' imprisonment. I fix a non-parole period of 7 years and
6 months'.
114The declaration under s.6AAA is had the matter not proceeded as a plea of guilty I would have imposed a sentence of 14 years' imprisonment with a
non-parole period of 10 years and three months.
115I enter in the records of the court that you have served 944 days by way of
pre-sentence detention for the federal sentence.
116I direct that the state sentence is to commence today. The federal sentence will commence six years and six months after the commencement of the state sentence. Overall, the effect across both the state and federal sentences is a total effective sentence of imprisonment of 18 years, with a non-parole period of 14 years.
117You may be seated.
118Mr Dau, I will now deal with your matters.
119OFFENDER DAU: Yep.
120HER HONOUR: You have pleaded guilty to three charges on the state indictment.
1)Trafficking in a large commercial quantity of methylamphetamine from 8 July 2016 to 25 October 2016, being 12.7 kilograms.
2)Possession of chemicals, glassware and equipment, including iodine and hypophosphorous acid, with the intention of using these to traffic in a drug of dependence on 19 October 2016.
3)Possession of the precursor chemical, pseudoephedrine, on 19 October 2016.
121The summary of prosecution opening is accepted and Schedule C outlines your involvement in this offending. You admit that you were complicit in the offending of your co-accused, Anh Luong Nguyen, Quynh Ta, Luc Ky Phan and Thang Dang Bui.
122The charge of trafficking in a large commercial quantity of methylamphetamine is an inherently serious one (Charge 1). Your culpability is illustrated by the fact that the quantity here is more than 12 times a large commercial quantity of that drug.
123You have pleaded guilty to the possession of the chemicals and equipment that made up the clandestine laboratory at the Duncans Road property (Charge 2). You have also pleaded guilty to the possession of pseudoephedrine that was located at Duncans Road, being part of the refuse from manufacturing the methylamphetamine (Charge 3).
124The specific role that you played is that you assisted in the setting up of the laboratory in Duncans Road and you were involved in the movement and storage of methylamphetamine. You had an intimate knowledge of the location, amounts and movement of the methylamphetamine and of the money. Telephone intercept material reveals that you actively participated in this organisation. Many conversations you had with co-accused were in code. Your involvement in this offence is described by the Crown as a “lieutenant style” role, where you would report information to Quynh Ta and carry out his instructions.
125In your conversation with Quynh Ta and Luc Ky Phan you would often speak in code. It is not alleged that you were the principal offender. You received instructions from Quynh Ta and acted on those instructions. You reported information back to him. You had frequent contact with Luc Ky Phan, you also passed on direction to Thang Dang Bui when required.
126INTERPRETER: Excuse me, Your Honour.
127HER HONOUR: Yes?
128INTERPRETER: Can I have just a five minute break?
129HER HONOUR: Certainly. We'll take a break for five minutes. I'll just step down, thank you.
130(Short adjournment.)
131On 19 October 2016, Mr Dau, you were in the vicinity of Duncans Road when the real estate agent attended the premises. You contacted Bui and told him to “drive straight past” rather than go into the premises. You then contacted
Anh Luong Nguyen and also had conversations with Quynh Ta and Luc Ky Phan about the discovery of the clandestine laboratory. Quynh Ta told you not to return to the premises that night. Both you and Phan made contact and gave instructions to Bui.
132It has been submitted on your behalf that your role was one of an “underling”, a messenger or an errand boy. I consider that this undervalues your role. As I have noted, you had a close working relationship with Luc Ky Phan. I consider your role to be at about the same level of the criminal hierarchy as that of Phan. In other words, you occupied a senior management position, trusted by your superior and important to the criminal enterprise.
133It is clear that you were a trusted member of the syndicate and relied on by Quynh Ta. On 19 October 2016 he told you to look after the business well when he was going overseas. I do not accept that you played the role of underling to anyone but Quynh Ta. Your role in the offending is significant and the offending itself is of the upmost seriousness. As I have said, I do not accept in light of the level of trust and knowledge that was invested in you, that your role could be accurately described as an “errand boy”.
134I will now deal with the federal offence.
135You have pleaded guilty to the charge of attempting to import 190 kilograms of pseudoephedrine between 31 December 2016 and 7 January 2017. The quantity is one where the amount of precursor substance is more than 158 times a commercial quantity. This illustrates your high level of culpability.
136Your role was at the lower end of those involved in the offending in the federal offence. You and other accused organised the delivery of a forklift to the warehouse in Tottenham before the delivery was received. You were entrusted to open the warehouse on 31 December 2016. You used the forklift to move the boxes, unpacking the pallets when they were first delivered. You attended at the warehouse on five occasions over the relevant period. You participated in the unpacking, inspection and repacking of the OMO boxes. You took photographs of the content of some of the boxes to show Quynh Ta. You communicated regularly and had ongoing contact with him and with the other co-accused. Your role was not dissimilar to that of Mr Van Dau Tran and I consider your objective criminal culpability to be roughly the same as his.
137You were born on 26 July 1989 in Vinh City, Nghệ An Province in central Vietnam and are now aged 30 years. Your family lived on a small farm owned by the government, but licenced to them. Recently your parents relinquished the farm to the government and they now live in a modest home in the same area. Both your parents are in poor health, with little or no income or savings. They have written to the court confirming their support of you, even though they have no seen you for more than six years. Your father's medical records have been provided. You have three older siblings, none of whom reside in Australia.
138You completed your secondary education and then a Bachelor of Information Technology at university in Vietnam in 2012. You planned to undertake a Masters of Information Technology at university in Ballarat. Your parents obtained a loan, funding your student Visa and travel to Australia. You arrived in Australia on 14 January 2013. You completed a preliminary course in English soon after and then a Certificate II in Business at the Della International College in Melbourne. You were part way through a Certificate III when you could no longer afford your tuition fees, so were unable to complete the course. You took one year off to work part time, before completing a diploma of business at the Cambridge International College.
139Throughout your time as a student you have worked fruit picking, working in a grocery store and doing some minor IT work. Of the money that you earned the majority was sent back to your parents in Vietnam. You were introduced to Quynh Ta and offered work in his hydroponic supply shop. It was through that employment that you became involved in your criminal offending.
140You were in a personal relationship in 2016. That relationship ended in
July 2017, after you had been on remand for approximately six months.
141Whilst in custody you have undertaken a number of vocational courses through the Box Hill Tafe and the Kangan Institute, including courses to improve your written and spoken English. You have also been employed as a cleaner of the offices and at the visits centre at the Fulham Correctional Centre.
142OFFENDER DAU: Excuse me, Your Honour.
143HER HONOUR: Yes, Sir?
144OFFENDER DAU: (Indistinct words.)
145HER HONOUR: All right, we'll have to stop the link.
146OFFENDER DAU: Sorry, Your Honour.
147HER HONOUR: That's all right, can you hear, Mr Dau?
148OFFENDER DAU: Yeah, I can hear now.
149HER HONOUR: Thank you. I'll just go back a little bit.
150You have also been employed as a cleaner of the offices and at the visits centre at the Fulham Correctional Centre.
151At the request of your solicitors, you were assessed by consultant psychologist Carla Ferrari. In a report provided to the court dated 10 April 2019, she confirms that you motivation for offending appears to be directly related to your family's difficult financial circumstances, caused by your father's deteriorating health and the treatment he required. You told Ms Ferrari that you were offered financial support if you assisted in these operations, although no specific monetary figure had been agreed on.
152In the course of the plea, you were not prepared to provide any further information about the amount of money you expected to receive, other than the reason for your participation in both matters was financially motivated. There is no evidence that you accumulated any wealth as a result of your offending.
153You were remanded on 7 January 2017 and it is the first time that you have been incarcerated. You have very few friends in Australia and do not receive any visitors. Your family reside in Vietnam and there is little prospect of them visiting you. I accept that the isolation from your family means that any sentence of imprisonment will be more onerous than it might be for other people.
154You also speak limited English. The difficulty that results from your ability to communicate with others is also relevant and I take these factors into account.
155You have been on remand for a period of approximately two and a half years. Whilst there has been a delay between your arrest and sentence, the entry of your pleas of guilty were not forthcoming until more than two years into that period. Nevertheless, I accept that the delay has been a source of anxiety for you and is relevant.
156In the course of your consultation with Ms Ferrari, you said that at first you had little idea of the sinister nature of the substances involved in the operation. You believed that pseudoephedrine was a chemical that was not much stronger than cigarettes. You soon realised that there was more to the operation than you had believed. You chose to continue your involvement in the criminal enterprise.
157In October 2016 your communication with your co-accused was in code. In attempting to disguise the true nature of your conversations at that time, you illustrated an understanding of the nature of the transactions being discussed.
158You say that you asked your co-accused of the potential consequences of your involvement in a matter such as this and that they continually minimised the seriousness of the operation. They assured you that you should not be concerned. It is hard to accept that you believed this assertion was realistic. Even if it is correct, you became involved in the Commonwealth matter when you were aware that two co-offenders in the Duncans Road property had been placed in custody. You could not have been so naïve about your actions and the possible consequences at that time.
159Your plea of guilty to the state indictment was not entered at an early stage. You were charged with these offences on 27 April 2017 and declined to be interviewed by police. You participated in the contested committal in September 2017. Your trial was due to commence on 4 February 2019. Your plea of guilty was entered on 7 February 2019. I am told that the prosecution agreed to amend the way the case against you was put, so facilitating a guilty plea.
160You were arrested on 7 January 2017 in relation to the Federal offence and participated in a record of interview. You admitted that you were present at the warehouse when the container arrived. You said that you were helping
Van Dau Tran with the boxes and you denied any knowledge of the content of the delivery. This was not the truth. You took part in the contested committal in November 2017 and were committed to stand trial.
161Your guilty plea to the Commonwealth indictment was entered at a much earlier stage than the plea in the state matter. In November 2018 your representatives indicated that this matter would not go to trial. Negotiations between the parties were ongoing and your plea was entered on 8 February 2019. It has been submitted that in those circumstances your plea of guilty is consistent with remorse.
162Your pleas of guilty have a significant utilitarian benefit. You have saved the court and community the time and expense of running two lengthy trials. In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.
163You have written a letter to the court indicating that you understand the seriousness of your predicament and expressing remorse for your conduct. In your consultation with Ms Ferrari you also expressed remorse, guilt and shame for your actions. You have developed an insight into the effect of drug use on individuals and on the wider community while you have been in custody. It is submitted that remorse can also been inferred from your plea of guilty. It is conceded by the prosecution that your remorse is genuine. I am prepared to moderate your sentence to reflect an element of remorse.
164You have no prior convictions and no matters outstanding. The issue of good character is of limited mitigation in serious cases such as this. It is however relevant when considering your rehabilitation prospects. You have no history of abusing drugs or alcohol, nor do you have any antisocial behavioural issues. You have a tertiary education, improving your prospects of future employment.
165You are anxious to leave the jurisdiction and to return to your family in Vietnam at the earliest opportunity. I am told that you will be deported at the conclusion of your sentence of imprisonment.
166You motivation for participation in the criminal activity was directly related to your financial circumstances and that of your family. Mr Ferrari believes that you are a low risk of reoffending. All these factors augur well for your rehabilitation.
167However, those facts must be tempered when considering the chronology of your offending. Despite the discovery of the criminal enterprise at
Duncans Road you became involved in the Commonwealth matter within months. The fact that you were involved in the importation of pseudoephedrine so soon after the Duncans Road operation was discovered is relevant when considering your prospects for rehabilitation.
168I can consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment. The community expects that those who engage in serious drug enterprises are punished and denounced for this offending. A substantial term of imprisonment is the only appropriate disposition.
169Whilst the sentence that I impose will be long I consider that I must give specific deterrence some weight in this process in relation to the federal offending. There was nothing spontaneous about your participation in that offending and the attempted importation of pseudoephedrine took place soon after the detection of the state offending.
170I take into account the principle of parity when fixing sentencing for you and your co-accused. I take into account the maximum penalties for each offence and current sentencing practices.
171The principle of totality needs to be considered in the sentences for the state offences. I have decided that there needs to be some, but not total cumulation in the sentences I impose. I have taken care not to doubly punish you for the offences.
172I have also considered the principle of totality when imposing an appropriate sentence for the state offences and the sentence for the federal offence. In particular, as I am sentencing you for state offences at the same time, I have moderated the non-parole period in the federal sentence, having regard to that principle of totality and to s.16B of the Crimes Act (Cth).
173Mr Dau, you can remain seated.
174Balancing these factors as best I can I sentence you as follows:
1)Charge 1, you are convicted and sentenced to 11 years' imprisonment;
2)Charge 2, you are convicted and sentenced to 2 years and 6 months' imprisonment;
3)Charge 3, you are convicted and sentenced to 2 years' imprisonment.
175I direct that Charge 1 be the base sentence and that 1 year of Charge 2 be cumulative upon that. All other sentences to be concurrent.
176The total effective sentence is 12 years, with a non-parole period fixed at 8 years.
177The declaration I make under s.6AAA is had the matter not proceeded as a plea of guilty I would have imposed a total sentence of 14 years' imprisonment, with a non-parole period of 9 years and 3 months.
178I make the order for compensation in the amount of $63,571.
179For the federal offence you are convicted and sentenced to 9 years' imprisonment. I fix a non-parole period of 5 years.
180I enter in the records of the court that you have served 944 days by way of
pre-sentence detention.
181I declare under s.6AAA that had the matter no proceeded as a plea of guilty I would have imposed a sentence of 12 years' imprisonment, with a non-parole period of 9 years.
182I direct that the state sentence is to commence today. The federal sentence will commence 5 years after the commencement of the state sentence. Overall, the effect across both state and federal sentences is a total effective sentence of 14 years' imprisonment, with a non-parole period of 10 years.
183Thank you, I will excuse Mr Ta and Mr Dau.
184OFFENDER DAU: Thank you, Your Honour.
185HER HONOUR: Next week my associate will make available a list of all the sentences for all the accused and email it to all the parties, so that there is a record for everyone. I've split the sentencing, given the circumstances of the offenders. I'll stand down now.
‑ ‑ ‑
3
2
0