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Duong v DPP (Cth) [2021] VSCA 136

The offender was sentenced following pleas of guilty to 1 count of trafficking a commercial quantity of a controlled drug (methamphetamine) contrary to ss 302.2(1) and 311.1(1) of the Commonwealth Criminal Code, 1 count of trafficking a marketable quantity of a controlled drug (heroin) contrary to ss 302.3(1) and 311.2(1) of the Commonwealth Criminal Code and 1 count of failing to comply with an order to provide telephone passwords contrary to s 3LA(6) of the Crimes Act 1914 (Cth). Count 1 related to 2747.2g pure methamphetamine. Count 2 related to 324.1g pure heroin. Original sentence imposed 10 years and 9 months imprisonment with a 6 year and 9 month non-parole period. The offender appealed on the basis that the sentences imposed offend the principle of totality and/or doubly punish the offender, that the sentencing judge erred in failing to take into account the heightened utilitarian value of the offender’s guilty plea due to consequences of COVID-19 and that the sentences were manifestly excessive.  

Totality: Sentencing judge was entitled to treat offender as having engaged in substantial drug trafficking business involving both heroin and methamphetamine. Sentencing judge was not obliged to aggregate quantity of drugs and sentence as if offender were only engaged in the sale of a single drug. It was open to the judge to treat the sale of heroin and methamphetamine as distinct. The offender in effect operated both at a wholesale and user level and diversity of drugs was an aspect of the business. The quantity of heroin was substantial in itself and does not indicate that it was merely an incidental aspect of the business. It is not arguable that the sentencing judge must have failed to reflect overlap in offending or given disproportionate sentence merely because two drugs were involved. It was well open to the judge to order a degree of cumulation in relation to the heroin and the duration of two years was not manifestly excessive.  

Guilty Plea: Sentencing judge did not undervalue utilitarian value merely because they did not explicitly refer to the benefit that a plea of guilty has in the current context. Sentencing judge would be acutely aware of burdens and delays that the pandemic has caused to the judicial system. With the inability to hold jury trials for an extended period, the backlog has grown. Equally, it is obvious that a plea of guilty relieves some pressure on the system.  

Deportation: The risk of deportation can be a significant matter. When offender was last convicted, permanent residency was revoked but offender was able to have decision reversed. As a result of current conviction, permanent residency will be cancelled and offender is understandably pessimistic about having that reversed a second time. More importantly however the risk of deportation has not in the past deterred the offender from substantial criminal conduct.  

Application for leave to appeal against sentence refused.
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