CRIMINAL LAW - Sentence - particular offences - drug offences - trafficking in heroin.

Makarian v R [2005] HCA 25

**1. On 4 August 2014, Van Hieu Truong, the offender, was arrested for trafficking in methylamphetamine and also trafficking in heroin.

2. The offender had been under surveillance by police as a result of intercepted communications. On 4 August 2014 the offender was observed selling heroin to a woman who had earlier telephoned him to arrange the purchase. She was a regular customer of his. That telephone call was the subject of surveillance and following this transaction the offender was arrested.

3. On the offender's arrest, police conducted a search of the car he had been driving and discovered a clip-seal bag containing a crystalline substance.

4. Police then executed a search warrant at the offender's premises. During this search they found the following items:**

(a) 10 mobile phones in a bedside drawer

(b) Three sets of scales;

(c) Several empty clip-seal bags;

(d) Six clip-seal bags containing a crystalline substance;

(e) Two clip-seal bags containing a crystalline substance;

(f) A clip-seal bag with a smiley face motif containing a white powdery substance;

(g) A large 'Glad' clip-seal bag containing a white crystalline substance;

(h) A large number of mobile phone SIM cards;

**5. An analysis of substances found during the search of the offender's premises concluded that they contained 11.465 grams of methylamphetamine and 6.065 grams of heroin.

6. An analysis of the substance found in the car revealed 0.501 grams of methylamphetamine.

7. An analysis of the substance sold to the purchaser showed that it was 0.339 grams of heroin.

8. The offender stands for sentence in relation to two offences, namely:**

(a) Trafficking in methylamphetamine, on 4 August 2014 in contravention of s603(7) of the Criminal Code. This offence encompasses the methylamphetamine discovered in the car driven by the offender, and the premises of the offender, a total quantity of 11.966 grams.

(b) Trafficking in heroin on 4 August 2014 in contravention of s603(7) of the Criminal Code. This offence encompasses the heroin sold to the purchaser, and the heroin found in the premises of the offender, a total quantity of 6.404 grams of heroin.

**9. The offender appears to have had a troubled upbringing. He was born in Vietnam in 1971. At the conclusion of the Vietnam War in 1975 the offender's father was executed and his mother was stripped of many of her assets. During the 1980s the offender spent a period of time in a refugee camp, before migrating to Australia in 1988.

10. The offender has limited contact with his immediate family. His mother and one sibling are deceased, and he told the author of his Pre-Sentence Report that he has little contact with his surviving sibling. The offender appears to enjoy a stable long-term relationship with his current partner and he has three children.

11. The offender was educated to year 10 level. Upon leaving school he began working in a bakery, he has told the author of his Pre-Sentence Report that he continued in this line of work for 15 years. The Offender claims that he is currently employed in a Vietnamese restaurant.

12. The offender has a history of illicit drug use. He told the author of his Pre-Sentence Report that he had been using heroin daily in the two months leading up to the subject offences.

13. Of particular concern is the fact that the offender appears to have continued using illicit substances following his arrest for these offences, as demonstrated by his urinalysis tests returning positive results for heroin on 18 August 2014, 26 August 2014, 13 October 2014, 10 April 2015 and 29 May 2015. The offender additionally returned positive urinalysis results for methylamphetamine on 26 August 2014 and 29 May 2015.

14. The offender's counsel submitted to me on instructions from the bar table that the offender is not currently using illicit substances. In light of the above-mentioned urinalysis results, and the fact that he has not, to my knowledge, undergone further drug testing since May 2015, I am sceptical of this proposition and will not act upon it.

15. The offender has been taking Suboxone for 10 months, although he has missed a number of doses during this period. Beyond this measure, the offender does not appear to have taken any positive steps to address his drug addiction.

16. There is no evidence before me of the offender engaging in any drug rehabilitation programs. He was to receive treatment in the form of counselling from ACT Health's Court Alcohol and Drug Assessment Service; however it appears that he has not been able to avail himself of this opportunity. He attributes this to the long hours he is working in his current job. Again, this was said from the bar table on instructions.

17. Having considered these subjective matters, and the offender's criminal history, which I will outline below, I am not confident that he has even average prospects of rehabilitation. His risk of recidivism is above average.**

**18. It was common ground between the parties that the offender should be treated as a "low level street dealer", and I do so for the purposes of sentence. It was further common ground that the offender was selling drugs to finance his own addiction. The amounts of illicit drugs in his possession on 4 August 2014 were over the trafficable quantity, but not double that quantity in terms of presumptions under the Criminal Code Regulations for controlled drugs.

19. The offender has relevant entries on his criminal record which reduce the leniency which could be shown to him and signal a need to consider personal deterrence.

20. In 1997 he was sentenced in the New South Wales District Court for supplying a prohibited drug. In November 1998 he was sentenced in the ACT Supreme Court for possession of a trafficable quantity of heroin for supply, for which he received a sentence of 5 years imprisonment with a non-parole period of 2 and a half years.

21. In August 2009 he was convicted of possession of heroin.

22. The offender did not plead guilty at an early stage despite what appeared to be a strong Crown case on both counts.

23. The subject offences first came before the Magistrates Court on 5 August 2014. The matters were subsequently committed to the Supreme Court for trial. The offender entered pleas of guilty on 5 June 2015, three months after his committal.

24. I allow a discount of approximately 10% for these pleas on the basis of their utilitarian value and not upon any basis of contrition or remorse.

25. Each offence carries a maximum penalty of 10 years imprisonment. I take note of this in accordance with Makarian v R [2005] HCA 25 at [30] - [31].

26. I note that the offender is to be sentenced for trafficking total quantities of 11.966 grams of methylamphetamine, and 6.404 grams of heroin. Both quantities which exceed the trafficable amount to invoke the presumption.

27. Of course, I do not have to ignore the fact that the offender was engaged in an on-going and established commercial operation. The result of the search at the offender's premises, detailed at [4] above, means that the offender cannot claim that the actual offending was an aberration, out of the norm or a one-off event.

28. Nevertheless, the offender is to be sentenced for what is alleged in the two counts, and not for uncharged acts.

29. I have considered whether I should accumulate any portion of the second count. I have decided not to do so for I consider the sentence on the first count reflects more or less the criminality involved.

30. I am satisfied that no penalty other than imprisonment is appropriate.**

(c) For the offence of trafficking in 11.966 grams of methylamphetamine, on 4 August 2014 in contravention of s603(7) of the Criminal Code, the offender is convicted. I sentence him to imprisonment for a term of 11 months, reduced from 12 months on account of his plea of guilty. This sentence will commence from 20 August 2015.

(d) For the offence of trafficking in 6.404 grams of heroin on 4 August 2014 in contravention of s603(7) of the Criminal Code, the offender is convicted. I sentence him to imprisonment for a term of 5 months, reduced from 6 months on account of his plea of guilty. This sentence will commence from 20 August 2015.

**31. This provides for a total effective sentence of 11 months imprisonment, commencing on 20 August 2015 and expiring on 19 July 2016.

32. Having regard to the need for specific deterrence and the offender's relatively modest prospects of rehabilitation, I have determined that a non-parole period of 7 months is appropriate. Accordingly, I order that the offender will eligible for parole from 19 March 2016, this will be the earliest date on which he can be released**

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson