Solicitors:
AKN & Associates (for the offender)
Ms T Lasschuit (for the Director of Public Prosecutions)
File Number(s): 2019/00039952
[2]
SENTENCE - EX TEMPORE REVISEd
On 5 February 2019 Tang Xuan Phouc, also known as Peter Tang, was with his family at the Star City Casino when he was arrested by police for supplying a cannabis leaf quantity. He has been in gaol since 5 February 2019.
When he was brought before the Local Court he accepted that he was guilty of, and responsible for, 21 transactions involving the sale of cannabis leaf to a downline supplier in the Illawarra area, Goran Despotovski; who is to be sentenced in April 2020. It was agreed between the defence and prosecution that rather than proceed with 21 separate charges the total quantity supplied would be rolled up into one charge, which could be laid pursuant to s 25(2) Drug Misuse and Trafficking Act 1985, as a commercial supply matter.
A commercial supply involves quantities between 25 and 100 kilograms. The process of accumulation is an appropriate way of dealing with matters such as this: see Hamzy v R (1994) 74 A Crim R 341; Jadron v R [2015] NSWCCA 217; Cicciarello v R [2009] NSWCAA 272. I take into account the multiple transactions and the period over which they took place; 22 June 2018 to 21 August 2018. In dealing with such a matter it is implicit that there were multiple transactions. For that reason I need not turn to s 21A (2)(m) Crimes (Sentencing Procedure) Act 1999: see Cicciarello at [19].
Twenty of the transactions involved between 4 (1.81kg) and 10 pounds (4.53 Kg); one was 19 pounds (8.6kg). Each followed a similar pattern. There would be a phone conversation between Tang and Despotovski, a price and amount would be negotiated and an arrangement made for Despotovski to pick up the bulk cannabis leaf at locations in Heathcote or Bankstown. I have no information before me as to exactly how much profit Tang sought to make from these transactions. He did not give evidence. The agreed facts do not contain sufficient material for me to conclude beyond reasonable doubt that he was a principal; that is a person who contributed financially to the costs of setting up the operation who sought to share in the profits, as distinct from either, receiving a payment or taking a percentage of the price negotiated with the downline recipient, Despotovski.
Given Mr Tang's history, which is before me, including his; education levels, prior occupation as a process worker in a chicken processing factory and family background, there is nothing to indicate that he was a "king-pin" or principal. That said, he obviously had access to, at relatively short notice, significant sums of cannabis leaf. He actively assisted in the distribution of that drug in our community. He did so because he needed the money in amounts that must have been significantly more than he could have made as working in a chicken factory.
There is material before me that the motivation for his involvement was to repay significant gambling debts. It is not unusual for people with his background to be trapped into repaying such debts by getting involved in the cannabis supply industry. In my experience, it is all too common, but a gambling debt is not, nor can it ever be, an excuse for engaging in any criminal activity. While a gambling addiction and gambling debts may explain why an offender has committed an offence, in the same way as a drug addiction might, it does generally not warrant the extension of leniency. However any efforts to overcome such an addiction can be taken into account in an assessment of favourable prospects of rehabilitation: Siwek v R [2017] NSWCCA 178.
The quantity of illicit drug supplied is a significant factor. The potential harms arising from distribution of such an amount within the community is a relevant factor. There is a community interest in appropriate and just punishment of such offences. Where such large sums are distributed for some form of monetary profit, it is necessary that Courts reflect the seriousness of the offence by imposing significant sentences. Those sentences are imposed in the hope that if people like Tang are tempted to engage in such activity they might be encouraged to think again. They must be encouraged to consider the consequence if they are caught. Those consequences include; separation from their family and being locked away in a gaol where they do not have access to their wife and children, where English is the predominant language and where all of their liberties are taken away.
I am prepared to sentence Tang on the basis that he was a middle level distributor, taking his share, and playing his part in a transaction between an up-line supplier and a distributor in this area. He was obviously trusted by those above and below him in that drug distribution network. If it were not for people like Mr Tang those networks would collapse. The drugs were distributed by him in bulk so that he could make money. He was not in direct contact with the users of the drug and obviously sought to avoid such direct contact and the risks associated with such direct contact.
The material set out in the report of Mr Green, psychologist, tendered as part of exhibit 1, while not supported by evidence on oath, was helpful. It did not go in any significant way to my assessment of the objective seriousness of what was done. The material about the offender's background, work, study, his history and family is uncontroversial. That material is supported by the references and the other material before me. It enables me to have some understanding of what brings Tang, who has never been before a Court before, for sentence before me today.
In his report Mr Green sets out a family history and how Tang came to Australia in 2008 when he was 16 years old. His father arrived in Australia soon after and is still in Australia with his new family. He here today to support him. While Tang had studied English in Vietnam and Australia he has found learning the English language very difficult. His lack of English restricted his employment and study. He has had two significant relationships. He is presently supported by his wife. He said in his letter to me "I have three children. My four year old daughter Ivy now lives with the mother, my ex-partner, my 18 month year old daughter and my four month old son are now living with my wife." He has never been able to be a father to his young son who was born while he has been in custody. He would dearly like, I am sure, to be a proper father to all his children.
Mr Green sets out Tang's history gambling. Tang says that that has been put behind him. If it has, his prospects for resuming normal community life will be so much better as Mr Green's opinion is that the main risk factor for reoffending would be relapse and a resumption of gambling.
Although Tang has worked only in unskilled occupations he has a capacity to make a contribution to the community. His family need him. The reports and material indicates that his wife is not coping well with the pressure of being a single mother to two children, whose husband is in gaol. She is doing her best but struggles, as one would expect anyone to do in such a situation. Courts are told that we must harden our hearts to the hardship to family and dependents because where someone is gaoled such hardship is an unavoidable consequence of going to gaol; which is an unavoidable consequence of being caught committing such a serious offence.
The current circumstances are all too common and do not fall into the wholly highly or truly exceptional one: R v Edwards (1996) 90 A Crim R 510, Gleeson CJ; Hoskins v R [2016] NSWCCA 157 at [63]. That said, when I come to analyse all relevant factors I do take into account that his family are without a breadwinner and father and I do take into account that his time in custody will be so much harder on him because he is separated from them knowing that that separation is entirely his fault.
The material before me indicates that he is doing everything he can while he is in custody to prove himself to the community. I will take that into account. His prospects for rehabilitation in our community are good if he can stay away from gambling.
His letter to the court indicates a level of understanding of the problems that drugs cause to our community. That the harm is two-fold, first to users and their families, but secondly, in matters such as this there is also the harm to the community in general. The enormous profits that can be obtained by the sale and distribution of cannabis in our community damage our economy. A large number of crimes are committed by those who either need funds to purchase drugs or are involved in criminal activity surrounding the distribution of drugs, and the crimes associated with the enormous sums of money that are often generated by such supply.
It is for that reason that Parliament has said that the maximum penalty for this matter is 15 years' imprisonment. I must have proper regard to it.
I have to reduce all of these matters ultimately to a period of time that must be spent in the community for the reasons outlined. It is accepted by the Crown that a finding of special circumstances can be made but the minimum term in custody must still reflect what was done and all the purposes of sentencing.
I have been greatly assisted in this matter by the careful submissions of both Ms Lasschuit, solicitor for the Director, and Mr Steward who appears, instructed by Ms Vu for the offender. I hope these brief remarks do justice to them.
Mr Tang had you not pleaded guilty I would have sentenced you to six years' imprisonment. I have reduced your sentence to take into account your early plea of guilty. I will make a finding of special circumstances.
[3]
Orders
The non-parole period will be two years and eight months. It will date from the date of arrest on 5 February 2019. You will be eligible for consideration for release to parole on 4 October 2021. The balance of the sentence, one year ten months could, if you are granted parole, be spent in the community. Your total sentence of four years six months will expire on 4 August 2023. What happens on that parole expiry date is not a matter I can or should take into account.
The matters on the s 166 will be marked withdrawn and dismissed.
[4]
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Decision last updated: 09 April 2020