The offender is to be sentenced having pleaded guilty to an offence that between 5 January 2021 and 18 March 2021, at Mount Pritchard, she supplied an amount of a prohibited drug, namely 915.88 grams of methylamphetamine, being an amount which was not less than the large commercial quantity applicable to that prohibited drug. That is an offence under s 25(2) of the Drug Misuse and Trafficking Act. It has a maximum penalty of life imprisonment and/or a fine equivalent to 5000 penalty units. There is an applicable standard non-parole period of 15 years in prison.
When sentencing the offender for that offence, she acknowledges her guilt in relation to a further offence that is on a Form 1, being an offence that on 18 March 2021 at Cabramatta, the offender dealt with the proceeds of crime, namely $7,050 in Australian currency, knowing that it was the proceeds of crime. That is an offence under s 193B(2) of the Crimes Act.
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The facts
Turning then to the facts.
The facts are agreed and extend to some 28 pages. The following is taken from the agreed facts, but I have had regard to all the agreed facts in determining the appropriate sentence.
The police established a police strike force in December 2020 to investigate the distribution of methylamphetamine throughout the south-west metropolitan area of Sydney. During the course of a police investigation between 5 January 2021 and 18 March 2021, the offender supplied a total quantity of 915.88 grams of methylamphetamine to an undercover officer on eight separate occasions. The particulars of the individual supplies which make up the charge are as follows.
1. On 5 January 2021, the offender supplied 27.5 grams of methylamphetamine with a purity of 79.5% to an undercover officer for $6,300.
2. On 16 January 2021, the offender supplied 55.7 grams of methylamphetamine with a purity of 80% to an undercover officer for $12,200.
3. On 21 January 2021, the offender supplied 55.5 grams of methylamphetamine with a purity of 79.5% for $12,200.
4. On 29 January 2021, the offender supplied to the undercover officer a total offender 55.1 grams of methylamphetamine, 27.5 grams was of a purity of 80% and 27.68 grams had a purity of 79%. The total price was $12,200.
5. On 5 February 2021, the offender supplied to an undercover officer a total of 161.1 grams of methylamphetamine with a purity of 80% for $36,300.
6. On 15 February 2021, the offender supplied to the undercover officer a total of 165.7 grams of methylamphetamine with a purity of 81% for $36,300.
7. On 22 February 2021, the offender supplied to the undercover officer 166.9 grams of methylamphetamine with a purity of 80.5% for $36,300.
8. On 18 March 2021, the offender supplied to the undercover officer 223.3 grams of methylamphetamine for $46,600. The purity of the drug supplied on that occasion was not tested.
The agreed facts deal with the circumstances of each of the eight supplies by the offender to an undercover police officer.
In the main, the supplies occurred when the offender got into the undercover officer's motor vehicle and exchanged the relevant drugs for cash. Each supply was generally organised by way of a text message exchange between the offender and the undercover officer. The exchange of drugs for cash generally took place in the vicinity of an address at 7 Granger Avenue, Mount Pritchard. The text messages suggest that the offender may have had some ability to negotiate the price at which the drugs were sold, see for example, the text messages set out on p 5 of the agreed facts. During the course of negotiations between the offender and the undercover officer, the offender indicated that a kilogram of the drug could be supplied for $130,000. However, none of the supplies were for that amount.
The agreed facts indicate that in relation to the fifth supply on 5 February 2021, two co-offenders were involved and there is an inference that they provided the drugs to the offender so that she could supply them to the undercover officer. The agreed facts also refer to the co-offenders in a similar way in the 6th, 7th and 8th supplies. The agreed facts refer to the offender using an encrypted messaging service referred to as the Signal App to communicate with the undercover officer.
On 18 March 2021, after a supply had occurred on that day, the offender was observed by the police to attend the Commonwealth Bank at John Street, Cabramatta. She was arrested and cautioned. The offender told police that she had $5,000 with her that her brother had given to her. A search of the offender by the police located $1,800 in her front pocket. That money was derived from the "buy" money used by the undercover officer on 18 March 2021, 5 February 2021, 22 February 2021 and 21 January 2021. Located with the offender's handbag was $5,250 in $50 notes. 96 of the 105 $50 notes were derived from the "buy" money used by the undercover officer during the supply on 18 March 2021.
During the interview with the police the offender told them the $7,050 found upon her "was her money and that her friend previously borrowed from her and returned back". The $7,050 cash is the subject of the Form 1 offence.
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Objective seriousness
Turning then to my assessment of the objective seriousness of this offence.
The amount of drug and its purity are always relevant, but not determinative factors when sentencing for drug supply offences. Here, the amount of the drug that was supplied was almost twice the minimum amount that constitutes the large commercial quantity under the Drug Misuse and Trafficking Act. The drug was supplied in significant amounts during each of the eight individual supplies and over time the amount supplied increased. The drug that was supplied was of a relatively high purity. The drug was supplied to an undercover officer so that fortunately the drug did not enter the user market. It is trite to observe that the offender did not know that. The fact the drug was supplied to an undercover officer is not a mitigating factor, however.
The offender's role is also another relevant factor when sentencing for drug supply offences. Here, it was the offender who was in direct contact with the undercover officer to arrange for the supplies to occur. She arranged the date and where the supplies were to occur. Some of the text messages suggest that she may have had some authority to negotiate the price of the drug. The offender clearly arranged to obtain the drug on occasions from her co-offenders for the ultimate supply to the undercover officer. It was the offender who met with the undercover officer in order to effect the supplies and consequently took the risk associated with doing so. Her involvement in the offence was clearly for financial gain. There was some planning involved in the offence, but not above that normally associated with this type of offending.
I do note the use of an encrypted messaging service when communicating with the undercover officer. The Crown in its submissions accepted that the offender's role was less than that of her co-offenders. I do not, however, consider the offender's role is correctly described as simply a "street dealer", as that term is frequently used. While she was the person exchanging the drugs for cash with the undercover officer, the amounts involved in each supply show that the supplies were above what might generally be considered "street level supplies". The quantities and level of purity suggest that the supply here was in the nature of a low level wholesale supply.
In assessing where on the range of objective seriousness this offence lies, it must be remembered that this offence encompasses a large range of offences, encompassing on occasions, the supply of multiple kilograms of prohibited drugs by very sophisticated criminal organisations engaged in the business of drug supply. (See in that regard the discussion by Dhanji J. in Mitchell v R [2021] NSWCCA 306). I have also had regard to the observations by Bellew J. in Valetta v R [2021] NSWCCA 208 in paras 43 to 51 about the approach to be taken to assessing objective seriousness of this type of offence. The current offence does not fall within that category. The type of supply engaged in here cannot be said to be overly sophisticated.
Given the role of the offender the amounts and purity of the drugs supplied I assess the level of objective seriousness as being below a notional midrange offence, but not towards the bottom of the range.
In my opinion, the offence on the Form 1 has no impact on the sentence to be imposed here, that is because the cash concerned was essentially generated by the supply transactions that form the basis of the overall supply charge.
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The offender's subjective case
Turning then to the offender's subjective case. Her date of birth is July 1966, so she is 55 years of age. The offender has a criminal history with one very significant and relevant matter on it.
On 21 June 2013, the offender was sentenced in this Court sitting in Sydney, for offences of supply large commercial quantity of prohibited drug, supply commercial quantity of a prohibited drug with supply prohibited drug on a Form 1.
On the supply large commercial quantity offence, the offender received a sentence of 11 years imprisonment with a non-parole period of seven years. The sentence commenced on 17 February 2013 and expires on 16 February 2024. The offender was released to parole on 16 February 2020. The offender received a sentence of five years on the supply commercial quantity offence and that offence expired on 16 February 2017. The offender's record disentitles her to leniency here. The fact that this offence was committed while on conditional liberty is an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act.
The offender did not give evidence on sentence and the only documentary evidentiary material I have is as follows:
A sentencing assessment report dated 16 March 2022, and the letter from the offender's daughter dated 17 February 2022. The following is taken from that material.
In terms of her family background. The offender prior to her arrest resided with her daughter in Fairfield and upon her ultimate release from custody she plans to reside with her brother in the same area. The offender told the author of the Sentencing Assessment Report that she maintains a close relationship with her daughter and brother and that they are her only family contacts in Australia, and they are said to be prosocial contacts. Her daughter, through her letter, makes it clear that she remains supportive of her mother. The offender's daughter and brother are her only family contacts in Australia and are strong prosocial supports for her.
The offender's social history is somewhat concerning. She noted to Community Corrections being surrounded by a number of antisocial influences, associates and "debtors" which is intended to refer to creditors, as I understand it, whose presence seems to have had a contributing influence in relation to this offending.
It is unfortunate that I have little evidence about the offender's background. Her solicitor put submissions about her earlier life as a refugee from Vietnam, arriving in this country in 1978. Without any actual evidence as to those matters it is difficult to give the submissions any significant weight when sentencing the offender.
In terms of her employment, at the time of her offending behaviour the offender was unemployed and reliant on social assistance. She claimed it was unusual for her to be unemployed and stated her employment opportunities were limited due to the Covid-19 pandemic.
It is noted that the pandemic had an exacerbated impact on the offender's previous industry, being hospitality. The offender said in her Sentencing Assessment Report that she, "committed her offence out of desperation for a financial gain and she stated this was the sole motivating factor for her to commit the offence."
I am somewhat sceptical about the offender's comment concerning financial desperation, especially given she has a history of similar type of offending, although there is no doubt that the offence was committed for financial gain. There is no material before that comments on the offender's substance use or psychological and psychiatric history.
The offender has been supervised by Community Corrections in the past, most recently in February 2020. Supervision was focused on addressing substance use and driving behaviours and the Sentencing Assessment Report notes her compliance and behaviour on parole was described as satisfactory. Supervision for parole was suspended in October 2020.
In the sentencing assessment report, the offender has demonstrated a self-focused insight into her offending. She described the immediate impact on herself and her family and clearly has rationalised her behaviour in terms of a calculated risk. She described to Community Corrections a number of times that she "felt the benefits of committing her offence outweighed the risk".
Again, she described engaging in the offending behaviour "after a conversation with a friend who proposed it as a solution to her financial issues".
The offender's financial issues have reportedly flowed from a gambling addiction over many years. The sentencing assessment report notes she "owed significant debt to an associate", who was a negative antisocial influence with the offender saying, "she felt if she attempted to avoid this she may be hurt or killed". The offender gave no evidence on sentence, so those statements about her motivation for committing the offence remain untested.
In my opinion, the offender shows little insight or remorse for her offending particularly in relation to the effects of drug use in our community. The Sentencing Assessment Report specified her insight was largely self-focused, speaking about the impacts of her offending on herself as an individual and her family. She required prompting to consider the effects on others.
I noted earlier the offender committed this offence whilst on parole for a similar offence which she was sentenced to in 2013. She was assessed in the Sentencing Assessment Report as having a medium risk of reoffending.
The offender entered her plea of guilty in the Local Court and I will allow her a 25% discount of her sentence for the utilitarian value of the plea in accordance with the Crimes (Sentencing Procedure) Act.
In my opinion, there is no evidence of genuine remorse here apart from the early plea of guilty. Given the offence was committed while on parole for a similar offence, the offender's prospects for rehabilitation are no better than guarded, in my view.
I have had regard to the fact that the offender is being sentenced during the Covid-19 pandemic. It is well known that conditions in custody are more arduous for inmates during the pandemic, as inmates are spending longer periods of time in their cells receiving few, if any, in-person visits and there has been a reduction of rehabilitative programs available to them.
I was not asked to find special circumstances when fixing the non-parole period. I propose, however, to make a limited finding of special circumstances to reflect the fact that I am sentencing the offender during the Covid-19 pandemic and I will be partially accumulating the sentence on the balance of the parole the offender was currently serving.
The offender was arrested on 18 March 2021 and has been in custody since then. I mentioned earlier that this offender was on parole at the time of the commission of that offence. As a consequence of the commission of the offence her parole was revoked. The offender was ordered by the State Parole Board to serve the balance of parole between 18 March 2021 and 29 April 2024. In such circumstances, I have a discretion as to when I commence this sentence from. (See Callaghan v The Queen [1952] 87 CLR 115).
Having regard to s 47 of the Crimes (Sentencing Procedure) Act I consider the appropriate date on which to commence the sentence is today. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act.
General deterrence must always feature significantly when sentencing for drug supply offences, like the offence here. Prohibited drugs are destroying lives, families, and the very fabric of our community. Those who seek to make a financial gain from selling large commercial quantities of prohibited drugs must expect to receive significant sentences in order to deter them and others from engaging in such serious criminal activity. Given the offender's criminal history a component of specific deterrence must also be reflected in the sentence.
The maximum penalty and standard non-parole period have been taken into account as legislative guideposts. It will be seen I have departed from the standard non-parole period and that is because of my assessment of objective seriousness and the plea of guilty.
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Imposition of sentence
The offender, Ms Vuong, is convicted of the offence to which she has pleaded guilty.
On the offence of supply not less than the large commercial quantity of prohibited drug, and having regard to the offence on the Form 1, I impose a sentence consisting of a non-parole period of six years imprisonment and a balance of term of three years imprisonment.
That is a total sentence of nine years imprisonment. It commences today 25 March 2022 and expires on 24 March 2031. The non-parole period expires on 24 March 2028.
The earliest date that Ms Vuong is eligible to be released to parole is the date of the expiry of the non-parole period which is 24 March 2028. Whether she is, in fact, released to parole that day is a matter for the State Parole Authority which will no doubt take account of her behaviour in prison in determining whether she is released then or on another date.
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Orders
1. Impose a sentence of imprisonment of 9 years. Consisting of a non-parole period of 6 years and a balance of term of 3 years.
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Decision last updated: 24 June 2022