R v Victor Hoang Tran NGO [2022] NSWDC 271 | Case summary

Count 3- Supply Large Commercial Quantity of Heroin (6.9233kg)

On 25 June 2020 the offender said he had heroin. He sent a photo of 2 packages. The purchase price for the 7kg was $1.95 million. The UCO organised for the transaction to occur in a hotel room. Within days the offender organised for 'the boys' to attend. Tang arrived and counted the money. Hung Quoc Nguyen then attended with the heroin. The 6.9223kg of heroin supplied had a purity of 72%. The heroin was a sole supply of a large amount and highly valuable.
In addition to matters commented on previously, in assessing the seriousness of the individual offences I note the following. I observe the weight range for the offences is well above 500g for MDMA and 1kg for heroin. I acknowledge the Crown's concession on count 2 that it could not prove an intention or capability to supply that amount and that it involves an offer and not an actual supply of 118kg. For count 1, I take into account the 911g supply although purported to be MDMA was not of a drug. The MDMA for count 1 was of varied purity, with some not being a drug. The heroin was of a high purity. The amount involved for all offences is well above the minimum. As the drugs were seized as part of a police operation drugs were not disseminated into the community. This is not attributable to any act of the offender or concern held by the offender.
The value of the MDMA if sold individually was $20 per tablet or $28,000 per kilogram. Heroin was sold for $300 per gram or $170,000 per kilo. The negotiated price for the MDMA in 4.5kg weight was averaged at about $80,000. The negotiated price for the heroin was $1.95 million. During the pandemic prices were inflated.
The offender performed a managerial role in a business that was well staffed and organised. There may well have been others involved including at a higher level. Evidently OM666 was involved and initially performed a supervisory role. The offender may not have been at the top of an organisation, but it was a sophisticated operation using encrypted phones and separate message trails for individual supplies. His role was important. He responded quickly to messages and monitored supplies via CIPHR. Those employed to deliver supplies attended on time. He, rather than OM666, deleted the messages upon completion of a supply.
The offender orchestrated the actions of others and he dealt with the UCO. He evidently initially was introduced by someone else, not claimed by him to be a boss when interacting with the UCO. He was evidently working with upline supplier[s] but also had control over the supplies he was engaged in. He was intrinsically involved in negotiating and organising. He could readily access large quantities of drugs at short notice and had drivers available to conduct deliveries. On his own representations, he dealt with other persons domestically and internationally. He had access to different drug types. He was professional. Each actual supply entailed others performing a role. The offender, consistent with his statement to the UCO, did not directly supply any of the drugs. He was able to remain removed from exposure and risk.
He was more than a mouthpiece or shield as suggested on his behalf. OM666 was the original contact, and the offender initially deferred to him, but this did not appear to continue. It is not evident on the agreed facts if OM666 continued to play any role. Certainly, the offender represented he was sourcing drugs from different locations. The offender's evidence was that he was required by OM666 to falsely represent he was in control of the supplies. I do not accept this account.
I am to assess his role based upon what he said and did and what is contained in the communication informed by his further evidence. The offender was not an impressive witness. His version in evidence must be assessed against other aspects of his evidence that demonstrate inconsistency or implausibility.
He was evidently involved to obtain money although his share is unknown. Given the level he operated at, it would not be insignificant. I reject his evidence of limited benefit. Senior Counsel for the offender submitted there was no evidence he stood to make a profit, and no evidence other than the offender's that he received any money. It is not at all clear who used a money counter. The offender gave evidence it was not him. I don't determine who had the money counter on the evidence. I confidently infer, and am satisfied beyond reasonable doubt, that the offender was involved for not insignificant financial benefit. It was submitted on his behalf he did not have unexplained wealth or an extravagant lifestyle. He was not engaged in any legitimate employment. Even maintaining accommodation and a car, and the incidentals that accompany those, requires reasonable financial resources. In his evidence he advanced his living expenses were paid by OM666. Such a limited benefit does not reconcile with his role over 18 months.
I do not accept his account that he was not an organiser of the individual supplies. I accept he performed the role reflected by the evidence. He was directly involved and acting of his own accord. He was not a mere mouthpiece acting on command and under direction. Nothing about his conduct reflects drug issues impeding his work ethic or organisational skills. He conducted a business utilising staff as required. His ability to organise deals by sourcing drugs and organising supplies demonstrates commitment and attentiveness. He was responsive to the CIPHR communication. The evidence of his illicit use of prescription drugs does not sit comfortably with his conduct. It did not hinder his ability.
On balance, I accept the evidence, supported by more than the offender, that he was a user of illicit drugs and an abuser of prescription drugs at the time of offending to varying degrees. It did not hinder his ability to conduct aspects of the supplies. The issue of drug use does not mitigate the offence but it in part explains his offending. He was not a street dealer selling to support a habit.
The Crown submitted that the offences fell above the mid-range of objective seriousness. Senior Counsel for the offender submitted all offences fell in the mid-range of objective seriousness. Despite the different factors, and not ascribing undue weight to the quantities involved, I determine that all offences fall above the mid-range of objective seriousness.
The offender has three entries on his criminal history of note.
In 2000 he received a sentence of imprisonment for a 1999 offence of maliciously inflicting grievous bodily harm with intent. The facts are tendered. The offender attacked another person whilst armed with a machete and in the company of another juvenile who was also armed. He entered a plea of guilty. He was a juvenile at the time of offending and sentence. There is no reference to gang affiliation in the facts. The offender now seeks to rely on this offending supporting his gang affiliation. His solicitor provided a book extract linking the offender and this offending to gang conduct. An extract from a book does not alone establish the fact.
A 2000 Juvenile Justice report records a denial of associating with an Asian gang. He described being close to his parents. There is no reference to him living on the streets prior to offending, in years 7, 8 and 9 of school as he suggested occurred to Dr Furst. His mother advanced a close and supportive family background with no reference to the offender living on the streets for periods over three years. In his evidence he clarified that he was not homeless but spent time on the streets and mostly slept at home. There is no suggestion his mother intentionally misrepresented the family dynamics.
There are historical COPS entries tendered demonstrating the offender's interaction with police commencing in 1997 when the offender was aged 13. It is stated that there appeared to be no gang affiliation. In 1998 he was with other boys, some of whom were known to police. Two other boys said the offender and others were part of the 14K Asian crime gang. When arrested for the machete offence the entry records suspicion that he was a member of the 14K Asian crime gang. In 2001 this information is elevated to the offender having a 'record for Asian gang activity'. There is nothing on the offender's record confirmative of this assertion. I accept his evidence, supported in part from documents, that he associated with organised crime gangs intermittently.
In 2006 the offender was sentenced by Judge Coorey for a 2004 offence of supplying a commercial quantity of prohibited drugs. The remarks on sentence are tendered. The offence involved the supply of 313.4g of heroin by the offender, with others, to an undercover operative. He entered a plea of guilty. The facts suggest he was involved on the day of the supply. He was supported by his parents and sibling at court, and his wife from whom he was separated, gave evidence. There was no evidence that the offender was a user of drugs at the time of offending. He received a sentence of 4 ½ years imprisonment with a non-parole period of 20 months. He was released to parole on 6 January 2007. He reoffended within the year.
The custodial records from 2006 and 2007 indicate the offender stated he had never used illicit drugs and alcohol, and gambling had not been issues. Urinalysis was noted as clear. The pre-release report refers to the denial of illicit drug use. In a 2007 report there was an acceptance of amphetamine use.
In 2008 he was sentenced by Judge Morgan for a 2007 offence of importing a commercial quantity of a border-controlled precursor. 100kg was imported of which 21.47kg was pure. The value was $860 000. The remarks on sentence are tendered. There was a plea of guilty. The offender was residing with a girlfriend at the time of the importation. He said he commenced using 'ice' and gambling within months of his release from gaol. He said he was to receive $15 000 for his role of collecting the mailed package. He indicated he did not intend to use drugs further. His family remained supportive. Dr Nielssen documented depressive illness and substance abuse, both in remission. He received a sentence of 8 years imprisonment with a non-parole period of 5 years. He was released to parole on 18 December 2012.
The 2010 custodial records refer to the offender advancing a relatively brief period of drug abuse in the community. He stated on another occasion at the time of that offending he had a bad drug problem. Elsewhere he stated he stopped using ice months before the offending. A 2012 pre-release report refers to drug use commencing in late teenage years involving social use of ecstasy and ice. Drugs were said to have become problematic in 2007 although he stopped prior to his 2007 offending. The notes record conflicting accounts of drug use.
There was a seven year hiatus before his involvement in the index offending.
In the 2020 custodial records the offender declined drug and alcohol intervention. He described that both ice and cocaine contributed to his offending. However, he only claimed intermittent cocaine use to Dr Furst, advancing a reliance on Xanax and Valium as informing his offending. In evidence he said he used cocaine intermittently and abused both Xanax and Valium in the offending period.
The impression is that he is unreliable in detailing his historic drug use and that he is likely exaggerating aspects.
The offender gave evidence of his involvement with the organised crime group, the Madonna Boys, which was an offshoot of the 5T gang. He said he became involved with the gang and with OM666 when he was 12 or 13 through dating OM666's younger sister. He said OM666 was 3 -4 years older. He declined to identify OM666. It was suggested by the Crown Prosecutor that he was aware police knew the real identity of OM666. He disclosed his drug use over the years and his gang affiliation. He attributed his juvenile offence to gang affiliation.
He said he was kidnapped and severely bashed when he was aged 13 and it was through the intervention of the Madonna Boys that he was released. He said this engendered a lot of love and respect for the gang. He abided by the gang rules of respecting hierarchy and not divulging gang information. He said he committed the juvenile offence at the direction of the gang as an act of revenge. This elevates the seriousness of that offending beyond what was placed before the sentencing court. The non-disclosure of this circumstance assisted to mitigate his offending. The offender gave evidence he was sentenced to a mental ward in detention at Reiby despite there being no suggestion of any mental health issue. He described the circumstances experienced and the fear he felt whilst detained there. He said there was an improvement for the final months when he was transferred to Cobham. In cross-examination he was questioned about being classified based on the seriousness of the offence rather than mental health concerns. He said he participated in rehabilitation courses but lacked the maturity to benefit.
He said he reunited with his gang associates immediately upon release as he regarded them as family. He said despite the support he received from his own family, he was searching for a father figure through his gang membership. He partnered with the mother of his child, and they abused poly substances.
The offender said both previous drug offences occurred as part of his gang affiliation and that OM666 was involved in each. He said after his release in 2012 he did not see OM666 and the Madonna boy gang except on birthdays and special occasions. However, in 2015 the offender was kidnapped and bashed requiring hospital admission. He attributed this to retaliation from the 5T gang over the juvenile assault offence. He said this event mentally weakened him and when OM666 visited him he recommenced associating with him. He also felt fear for his family. Friends died. He commenced cocaine and ice use. He used drugs to numb his brain.
The offender described the mental health issues experienced in serving each adult gaol sentence. The offender gave evidence of hearing his toys talk when he was young and then voices from the age of 17, 18 or 19.
The offender said about 18 months before his arrest he returned to criminal activity with OM666 paying him money and providing drugs. He said he collected debts, talked to drug buyers, and sometimes delivered what he assumed was drug parcels.
The offender is now aged 37.
The offender was arrested on 2 July 2020 and released from custody on 1 October 2020. This is a period of 92 days.
He was released to residential rehabilitation and has remained on bail. Two different residential locations were involved, and both entailed bail of remaining on site. This is a form of quasi custody. The first accommodation, at Niagara Lodge, ceased when it became known drugs were being supplied. This reflects some lax conditions. A reference refers to the offender being able to leave the premises by a few hundred metres. At Connect Global, where he commenced on 20 August 2021, he was allowed to cohabit with his partner and even progress medical intervention for IVF. He is required to wear an electronic monitoring device. This is not reflective of restrictive conditions.
The tendered material provides limited information as to the conditions and the level of restriction beyond the restriction on leaving. I accept that counselling and treatment has been utilised. The offender gave evidence of the benefit received from rehabilitation engagement. He documented his attendance at NA and AA meetings and the valuable support of his sponsor. He said although he sometimes still felt suicidal, he had improved. He stated he considered he would require psychological assistance indefinitely. He said he now had the tools to not revert to gang association.
I note that the offender is supported by neighbours close to Niagara reflecting that the offender was able to engage with the community. Ms Eakins wrote of her hour long conversations and of the offender's partner visiting twice daily. Another neighbour, Mr Wootten also spoke of his lengthy conversations with the offender and the offender's partner's multiple daily visits and weekend visits from family. Another neighbour, Mr Livette-Vial also wrote of deep and meaningful discussions with the offender. He stated the offender could leave the property up to a few hundred metres. Mr Hill, a staff member, also wrote a letter of support referring to the offender's work in the local community. It is unclear if this is the residential community or beyond. These provide some insight into the absence of restrictive conditions but also support that the offender was perceived to demonstrate positive attributes consonant with the goal of rehabilitation.
It was submitted on behalf of the offender, supported by authority, that he should receive a 50-75% allowance for his time in residential rehabilitation. There is a total of 527 days; 322 days at Niagara and 205 days at Global.
The bail conditions imposed for both addresses required that the offender remain on site except for legal or court attendances. The Global letter authored by Mr Pene states he was also allowed to leave the property with an employee to attend rehabilitation programs. I note Mr Pene documents what may be offered by the facility but not what is offered to the offender. This is accepted to be quasi- custody. Despite this restriction, he presents as having regular on-site visits with family and regular interaction with neighbours.
I do not consider the quasi- custody warrants more than a credit of 50%. I will allow 264 days. In total, with the remand custody, the period of 356 days applies.
The offender's partner, Thi Kim Phuong Nguyen, swore an affidavit, setting out what she was told and what she observed. She confirmed that the offender told her he was kidnapped in 2015. She confirmed he was hospitalised. She confirmed prescription drug abuse from 2017. She said he reconnected with people from his old life and resorted to drugs after this time. She described paranoid hallucinations in 2019. She described the benefit to the offender from being in residential care.
The offender's brother, Michael Ngo, swore an affidavit. He is 8 years younger than the offender. Some aspects of family life he describes were at a time after the offender was an adult. He describes his father as being verbally abusive to his mother. It is noted in 2007 the offender told a psychologist his childhood was good, fun and enjoyable and that he was lucky to have a close relationship with his parents and siblings. In a 2012 pre-release report the offender described his family as very close and only referred to his father's gambling. The deponent describes hearsay accounts of experiences. He described prescription drug use by the offender at the time of offending and hallucinations. He referred to the observations of the offender's improvement resultant from attending residential rehabilitation.
These descriptions of the offender do not accord with his ability to operate within a sophisticated drug operation. He set up and maintained supplies and deleted chains of contact immediately after successful transactions.
Ross Pene, from Global Connect, referred to the offender's regret for making wrong decisions and the desire for change. It is stated he is determined to recalibrate the direction of his life. It is opined returning to custody may undo the positive work and achievements made.
The offender gave evidence on the sentence proceedings.
Over a month after being bailed to residential rehabilitation, the offender commenced a journal with entries recorded, not on a daily basis. He made various entries including references to suicidal ideation, anxiety and the benefits of rehabilitation. He chose when and what to write as the proceedings were pending. The offender gave evidence he made the entries to assist him to look back on events and to understand how hard it had been. It is submitted on his behalf that the journal contains no self- serving motivation. It is stated sentence proceedings were not contemplated by the offender when he wrote it. I accept that the initial entry predates the entering of pleas in the Local Court. The absence of self- serving contents cannot be accepted given he was bailed to undertake the two residential programs with surely some understanding that the progress could inform sentence proceedings. He reported to Dr Furst high levels of anxiety in part due to pending sentence.
The offender gave evidence of his father being absent and leaving him devoid of a father figure. He accepted he obtained support from his mother who had an evident moral compass. He accepted his father visited him regularly in juvenile detention and organised a monk to visit. The offender was questioned about differences in reports to what he now ventilated. He said he did not recall many aspects that he had previously asserted. It is observed he had a good recollection of historical events that he sought to rely upon but a poor recollection of those that contradict his current version. He said on occasion he lied such as denying gang affiliation including lying about the involvement of others as part of the gang code but also lying about his own conduct.
There are no drug use or possession offences on the offender's record. The custodial report does not include any drug offences and the various entries note the denial of drug issues. In the sentence proceedings in 2006 it was advanced by the offender in evidence that he was residing with his family and had his former partner's support. There was no suggestion he required any assistance with substance issues. In the 2008 proceedings his strong family support was pressed, as was his private education. There was reference to the violent offence and then a return to family, work and marriage. His departure from home in 2007 and subsequent depression was used to explain why he started using ice. There was no reference to any earlier drug use and the psychiatric opinion was of substance abuse in remission with the disorder not being regarded as particularly severe.
The offender relies upon reports of a forensic psychiatrist and his treating psychologist. Both were required for cross-examination.
I am assisted by the psychiatric report authored by Dr Richard Furst and his evidence. Within the report the offender's parents' refugee background is documented. He received a sound education until high school. He then associated with poor peer influences and left school. The offender said he was in a gang. After juvenile detention he returned to school briefly. Although not raised in earlier reports provided for earlier sentences, Dr Furst advanced a likely diagnosis of ADHD. In his evidence he noted aspects of the offender's history may have been exaggerated and embellished. He indicated based on juvenile detention records he did not know if he would advance the diagnosis of ADHD. Although not documented in earlier proceedings, the offender now detailed hearing voices from the age of 18 or 19. It appears Dr Furst was not provided with the earlier reports to assist him. In evidence, Dr Furst stated that he would have expected an earlier disclosure of hallucinations. He said if they existed it was possible they were drug induced.
The offender also said he commenced substance abuse at 13, including cannabis and heroin. There is no note of substance abuse until the last sentence proceeding. It is stated that the offender completed a drug program during his last sentence. The offender stated he was using Xanax and Valium and intermittent cocaine during his index offending. The offender stated the index offending was related to his continuing gang affiliation that commenced as a teenager. He explained his involvement as entailing 'doing what he had been told to do' by the gang. He stated he did not think he had a choice. Although adopting the accuracy of the contents of the reports, the offender has not given evidence of this. He gave extensive evidence of many other aspects of lesser significance. I would not accept that he acted under any pressure or duress absent direct evidence. The thrust of his other evidence is that he felt loved and supported by the gang.
Although not earlier documented, the offender said he was kidnapped and severely beaten as a teenager. He also said during his last parole period he was kidnapped again. This account is supported in other material tendered.
The offender stated to Dr Furst that he resided in Katoomba alone for 2 years leading up to his arrest, and therefore, at the time of his offending. At this time his partner lived with his son and mother. However, the tendered supplementary Crown documents suggest he indicated he was in shared accommodation. His evidence established he lived in numerous places all funded by OM666.
The offender told Dr Furst he was suicidal when on remand.
Since entering residential rehabilitation it is recorded he has been involved in counselling and NA. He reported high levels of anxiety in part due to pending sentence.
Dr Furst referred to the psychological assessment positing various psychiatric conditions. He did not endorse those options. He opined that the offender's background as advanced by the offender, including gangs, fighting, violence and criminal activity, drugs and kidnappings precipitated his depression, anxiety and dependence on drugs. This anxiety and depression are stated to make conditions in custody more onerous. In his report he stated the offender met, at the time of offending and presently, the criteria for the disorders of substance abuse, anxiety and depression and ADHD.
The offender's background, as outlined to him by the offender, is opined by Dr Furst in his report to place him in the moderate to high risk of reoffending although it is said the risk would improve if he removed himself from pro-criminal associates and abstained from drugs. Despite being engaged in residential rehabilitation for close to 18 months, with intensive psychological treatment, Dr Furst describes it as still in the 'transitional' period.
Dr Furst opined that the offender has remained drug abstinent whilst bailed and appears to have made significant changes in his attitude. However, he did not explore remorse with him.
Dr Furst addressed recommendations for custodial and community based sentences. He opined custody would be more onerous given the levels of anxiety and depression and emotional dysregulation.
He opined in his report that it was likely that the offender's childhood trauma informed his drug use, and that this together with his gang affiliation and ADHD was causally connected to the offending.
Dr Furst's evidence in the proceedings on sentence included he was informed Dr Nielssen had previously not been advised of a history of hallucinations. He reported a concern that a complaint was not made more contemporaneous to the experience. He accepted that the described adult hallucinations may be indicative of drug use. The varied accounts about drug use was accepted to raise the spectre of an issue with honesty. Similarly, he was not informed of the previous accounts of family support and juvenile exposure to counselling. He commented on the ability to sustain focus to complete the school certificate.
Vanessa Kmet, psychologist, provided two reports and gave evidence on sentence. Her initial report was completed after that of Dr Furst. She observed she had access to far more history elicited during treatment than was available to Dr Furst to warrant her additional diagnoses. She diagnosed substance use disorder, anxiety disorder, depressive disorder, ADHD and PTSD and also symptoms consistent with a psychotic disorder.
Ms Kmet stated she was better placed to assess treatment needs. She opined the offender was in the first stage of treatment. She addressed trauma focussed treatment and intensive drug treatment. She commenced treating the offender in May 2021. There were 7 in person and 39 phone treatment sessions at the time of her report. A subsequent letter noted continued telephone sessions once or twice per week. He is said to be still in distress. She added there has been insufficient time for treatment although he has responded well to the treatment provided. Although the offender's parents are both pro-social, Ms Kmet opined the history of involvement in the Vietnam War would predispose the offender to psychological distress. The most that the offender stated was that his father was strict and utilised physical punishment. In his evidence the offender described his father as considerate and supportive although he was flawed in that he gambled and drank. He said his father was present, but not there in the sense of helping with the children. The offender told Ms Kmet he experienced auditory hallucinations from the age of 10. He said he was exposed to violence in the community and was on the street more than home. He described his gang affiliation from the age of 12 and his heroin and cannabis use. He described the fear of juvenile detention and his use of ice upon release. He detailed command auditory hallucinations. She accepted his history as one marred with significant drug use. He detailed only one kidnapping. He attributed his pathway to the unfairness of inadequate support as a juvenile. Ms Kmet reiterated the offender's account of his circumstances whilst in residential rehabilitation. Ms Kmet added the offender could not receive appropriate trauma treatment in a custodial setting and that he does not have sufficient coping strategies to re-enter custody.
Ms Kmet suggested that the offender did not seek to minimise his involvement. I have made a contrary determination.
In evidence Ms Kmet was taken to suggested inconsistencies between matters advanced to her and historical documents. She mostly did not accept that there was inconsistency and offered various explanations including historical lack of disclosure in departmental documents being incorrect or unreliable. She impressed as mostly accepting what the offender told her, making assumptions to fill in gaps and relying on those factors to form her opinions. She did not appear to question or challenge information provided by the offender. She said her continued interaction with him led her to believe he was honest and open with her. She said she formed the opinion he was telling her accurately what he believed and what was true for him. This philosophical view on truth allows for his account to be believed by him to be true now but entirely false or distorted. This makes reliance on his current account difficult where it fails to accord with contemporaneous documents recording his account and those of others. Ms Kmet said based on the degree of contact and that she monitored for deception and impression management she could confidently rely on aspects of his account and offer the opinions expressed.
There are undoubtedly differences in historical accounts and what was divulged to Ms Kmet. That he was consistent to her does not undermine the overall inconsistency. As indicated there are aspects of his version of the truth now advanced that I accept. There are others that have not been accepted.
I observe the material both corralled for this sentence and historical presents as exhibiting inconsistencies between accounts. He presents as an unreliable historian. There is a strong impression that in earlier proceedings the source material and disclosures have been manipulated to better assist the offender.
There is evidence available of difficulties in his childhood and some disadvantage. Senior Counsel for the offender combined the source material to submit that the offender had an 'unusual and harrowing' background based on: 1. Psychological vulnerability from birth due to trans-generational refugee and war trauma (his father was an untreated prisoner of war, and his parents were Vietnam War refugees). 2. Childhood exposure to the "normalisation" of violence and drugs in the Vietnamese refugee community. 3. A childhood "on the street more than at home". 4. At age 12, recruitment into gangs who "fed me drugs" followed by being kidnapped and assaulted by a rival gang at the age of 12/13. 5. In the absence of other positive or present influences, vulnerability to the gang who cultivated a distorted perspective that they were his saviours and deserved his loyalty and unconditional love in return. 6. Noting his undiagnosed ADHD, impulsivity leading to violent gang behaviour. 7. Institutionalisation as an adolescent, with no rehabilitation or psychological support during or after his first custodial sentence, causing a "negative turning point in his life" and setting him on track for an adulthood marked by further gang violence, becoming the victim of further kidnapping and assaults, and drug dependency.
The offender had stable family influences, even if his father presented as absent. He may have been exposed to anti-social activities in his community and gang activity. His early gang affiliation corrupted his youth and led him to form a long term alliance with misplaced loyalty. I do not accept this is derived from ADHD or impulsivity. I do not accept the belated diagnosis of ADHD. I defer to the psychiatric opinion. The tendered material does not support the degree of drug use in his youth as now advanced. I suspect there is some exaggeration. Reliance was placed on Ms Kmet's opinion that this background rendered him susceptible to gang recruitment. This was submitted to enliven the Bugmy principles. It is difficult to determine what aspects of his background may be relied upon given inconsistency in complaint. It is only belatedly that there has been a disclosure of long term gang affiliation and of being left to live on the streets in his formative years as a person using poly substances. Although I accept gang affiliation, much of his account does not readily reconcile with the contemporaneous accounts, from the offender and his family, of a stable homelife. The degree of neglect advanced is not supported by contemporaneous accounts. He had and has familial support. I do accept he formed gang affiliations and felt a sense of acceptance and loyalty. This association continued intermittently over decades. I do not accept he acted without thought or individual determination and that he was only following orders akin to a child soldier.
With the more recently surfacing evidence of the offender's background including poor peer associations and substance abuse during his formative years and beyond, I proceed on the basis that previous courts may not have been appropriately informed. I do accept that there is gang affiliation of many years likely commencing in his adolescence. The extent of his immersion is difficult to determine given the inconsistency. There is likely to have been associated drug use to some degree. He was brought up in a supportive home that may not have been ideal but which embraced pro-social attitudes. Any choices were poor choices he made as a juvenile due to poor peer influences.
In addition to background, the offender seeks to rely upon his mental health conditions to inform moral culpability [and deterrence and conditions in custody].
The evidence of hallucinations is questionable given the belated airing. ADHD is no longer supported by Dr Furst. Although Dr Furst does not advance a diagnosis of PTSD, Ms Kmet opined this diagnosis. I defer to the opinion of Dr Furst.
Dr Furst draws a causal connection between the offender's background of trauma, leading to the mental health issues and the offending. This of necessity proceeds upon an acceptance of those aspects of background and the degree of those aspects now asserted.
I do accept that there are mental health issues including substance use disorder, depression and anxiety in existence, now and at the time of offending. I do not assess them as 'so severe'. I accept that they in combination inform his involvement in drug use and the correlation with drug supply. I do accept that his teenage gang affiliation, informed by aspects of his background, continued to operate. He formed a gang affiliation as a teenager. This was at a time of immaturity. This poor decision impacted on his juvenile decisions and its consequences continue. There was evidently disadvantage experienced through exposure in his community that informed this earlier offending and his choice of associates. Whether he joined a gang through background and disadvantage or merely immaturity does not alter his choice and its impact on culpability. Any would lessen his culpability. His involvement in gang crime and resultant kidnappings support early and continued affiliations. This informed the continued gang affiliated associations and his continued preparedness to demonstrate loyalty and participation in shared offending.
These factors warrant a consonant lessening of moral culpability and consequent amelioration to sentence.
The offender has a long-term partner and one adult child from his previous partner. There is continued support in the community from his wider family. This was present previously and proved insufficient.
The offender expressed remorse. This expressed remorse must be viewed through the kaleidoscope of attempts to moderate his role and limit responsibility.
This is his third serious drug offence. He has previously expressed a desire to move away from offending. I accept however that with age, and accessing extensive counselling, he has gained a more informed understanding of his offending. With this understanding comes insight and remorse. I accept there to be some genuine remorse. His rehabilitation efforts, which do not exclusively align with remorse and connote a component of personal benefit, are commendable.
It was submitted on the offender's behalf that "the unusual nature and extremity of Mr Ngo's deprived background gives general deterrence much less weight, especially when considered in combination with his mental health condition". Further, that his mental health diagnoses lessened the importance of personal deterrence.
I accept there to be a modest moderation to general deterrence. General deterrence and denunciation remain important sentencing considerations given the prevalence of these offences and the harm occasioned to individuals and the community.
The offender previously committed drug offences and has reoffended. I accept that he was at liberty for 7 years before he this offending; although on his own evidence he was offending earlier. His unreliability prevents making any reliable finding on the extent of his drug use. If his evidence is accurate then he did offend because of drug use and he is at risk of relapse. He has previously indicated a desire to be drug free and be a positive role model to his son. He repeats this goal again. He has undertaken extensive counselling. I accept this is a positive marker of rehabilitation. This is his third drug offence demonstrating an elevation in his role. Statements to avoid relapse have been embraced by counselling and increased insight, but not tested in the community. Those who know the offender speak of his remorse and positive attributes. He had previously expressed remorse. I accept that the offender has diligently applied himself to counselling and the benefits are noted personally, by other lay persons and professionally. Dr Furst placed his risk at an elevated level. Senior Counsel for the offender submitted his prospects of rehabilitation are remarkable, for seven nominated reasons. I do not accede to this submission. His prospects of rehabilitation and of not reoffending are at most reasonable. Given his history, even with his progress, personal deterrence is of continuing significance.
I am mindful of the progress obtained through exposure to counselling. Rehabilitation is an important sentencing consideration but it must be evaluated with other competing sentencing principles.
I am mindful of not imposing a sentence that creates a legitimate sense of disparity with co-offenders. I have sentenced four others who performed different roles in relation to the offences for sentence. I am cognisant of the sentence imposed upon the co-offenders Tang, Nguyen, Zahariadis and Hermiz. Each was less involved than this offender by virtue of the role played and the level of participation. All entered pleas of guilty and received reductions of 25% in acknowledgment. This offender is older than all the co-offenders.
Anmar Hermiz was sentenced for participation in one supply of a large commercial quantity of MDMA, being the fourth act of supply supporting this offender's count 1. The 4.4576kg of MDMA was of lower purity. He was the person involved to hand over the drugs. I determined the offence to fall towards the lower end of the range of objective seriousness. He had limited antecedents. There was a compelling subjective case. The indicative sentence was one of 2 years and 10 months imprisonment with a non-parole period of 1 year and 8 months.
Christopher Zahariadis was sentenced for participation in one supply of a large commercial quantity of MDMA, being the second act of supply supporting this offender's count 1. The 4.5146kg of MDMA was of high purity. He was the person involved to hand over the drugs. I determined the offence to fall well below the mid-range of objective seriousness. He was a person of prior good character. There was a not unusual subjective case. The indicative sentence, including other offences on a form 1, was one of 3 years imprisonment with a non-parole period of 1 year and 11 months.
Hung Quoc Nguyen was sentenced for one supply of a large commercial quantity of heroin, being the act of supply supporting this offender's count 3. The 6.9223kg of heroin was of high purity. He was the person involved to hand over the drugs. I determined the offence to fall well below the mid-range of objective seriousness. He was a person of prior good character but for traffic offences. Given his age rehabilitation was of greater significance. There was a strong subjective case. The sentence was one of 3 years imprisonment with a non-parole period of 2 years.
Van Vinh Tang was sentenced over two supply offences, one of a large commercial quantity of MDMA, being the third and fourth acts of supply supporting this offender's count 1. He supplied the glucose on the third occasion and employed Hermiz to supply the drugs on the fourth occasion. The 4.4576kg of MDMA was of lower purity. The second offence was for his role in the supply of the heroin, this offender's count 3. He attended to count the money. I note the first supply in count 1 for the index offender was included on a form 1. I determined both offences to fall at the bottom of the mid-range of objective seriousness. He had a prior offence of importation for which he received full time imprisonment. There was a not unusual subjective case. The indicative sentences were, for the MDMA, including other offences on a form 1, one of 4 years imprisonment with a non-parole period of 2 years and 8 months and for the heroin, one of 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months. The overall sentence was one of 5 years imprisonment with a non-parole period of 3 years and 4 months.
This offender has prior offending for two drug offences each of which resulted in a term of imprisonment. There are different subjective cases. There was a finding of special circumstances in each case.
This offender is placed higher in the organisation than any of the four offenders sentenced. He negotiated directly with the UCO. He was an organiser for each of the supplies and provided a role that kept him physically distant from the actual exchanges. He was never directly involved in the supply or receiving of money. This exposed him to less risk. He was involved in more offending, with count 1 supported by four separate supplies.
The threshold has been passed and the only appropriate sentence is one of fulltime imprisonment. The sentence commencement will be backdated to reflect pre-sentence custody and quasi-custody. As previously indicated, sentence will be backdated by 356 days prior to entering custody on 11 March 2022. I propose sentence to commence on 20 March 2021.
I am to sentence on three separate offences, occurring over months and involving the same UCO but different drugs. There is separate and distinct criminality. This speaks of the need for appropriate accumulation. I note the submission on behalf of the offender that count 2, entailing an offer to supply, should be subsumed within another sentence. I do not accede to that submission. There is still separate serious conduct. However, I need to consider the imposition of an appropriate sentence overall. It was submitted on behalf of the offender that the Court should not impose a crushing sentence; with the subjective nature of crushing being noted. The factors supporting this submission have been addressed elsewhere. It is one of a number of sentencing considerations to be taken into account.
Suggested comparable cases were provided with submissions by both parties. They are to be assessed for the range with an acceptance no one case provides guidance. They provide some guidance allowing for the different objective seriousness and differing subjective cases.
There is evidence of extra-curial punishment. An affidavit of the solicitor for the offender was read in which observations of injuries to the offender observed on 6 April 2022 were noted, about 3 weeks after entering custody. There is no information as to the reason for an apparent assault. It is an unfortunate fact that assaults occur within gaol. This is not to be condoned. An offender is placed into custody as punishment not for punishment. There has been no repetition in the subsequent month and it is speculative as to whether this incident was isolated or not. I shall take this incident into account in determining sentence.
If it was suggested that there was a reprisal for the evidence given by the offender then that is of considerable concern. The offender did not inculpate or nominate any offender not already before the court. The only persons who were aware of his evidence are those involved in the proceedings and those family members provided with a link to view the proceedings remotely.
Within the same affidavit it is claimed that the offender has not received the medication he was receiving upon entering custody and has not seen a psychiatrist. It is stated that one medication is not prescribed within the gaol and the other not in the same dosage. Evidently it is highly preferrable that any medication appropriately prescribed be continued. Justice Health has a statutory obligation to care for the offender. The suggestion that the offender is experiencing increasing night sweats, said to be related to the absence of medication, is of concern. This situation should be remedied as a priority. The offender is listed for a psychiatric appointment on an unknown date. It is contemplated that this situation will be redressed.
I make a finding of special circumstances. This is based on an acceptance of the more restrictive conditions in custody during the continuing COVID health concern; the longer periods in cells, the lack of personal visits and reliance on AVL/ phone contact and the more limited access to courses. The offender has experience in custody from prior sentences, and the short period on remand. I accept his mental health issues are exacerbated by the concern about returning to custody. He has fortunately progressed with his rehabilitation and is better placed to enter custody than when he entered residential rehabilitation. Justice Health may be provided with the suggested focussed treatment plans. I accept that his mental health issues will elevate the onerous nature of his custody. Given his previous reoffending upon release, he would benefit from an additional period on parole. These factors warrant an adjustment to the ratio.
The offender is convicted of all three of the offences for sentence.

R v Victor Hoang Tran NGO

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