District Court New South Wales Medium Neutral Citation: R v Vo [2018] NSWDC 81 Hearing dates: 23 February 2018 Date of orders: 23 February 2018 Decision date: 23 February 2018 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is granted bail for the purposes of being assessed as to his suitability to serve his sentence by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – Form1 – Supply prohibited drug – Offender retains support of his family - Significant period in custody already. Category: Sentence Parties: The Crown Tony Vo Representation: Solicitors: Director of Public Prosecutions – The Crown Legal Aid Commission – The offender File Number(s): 2016/350975; 2017/47901 Judgment 1. HIS HONOUR: Many drug dealers come to Court and when I look to the public gallery there is no one sitting there in their support. In such cases family members have long since given up coming to Court on a regular basis to watch their child or sibling or parent get sent to gaol yet again. But Mr Vo, the offender facing sentence today is in a very fortunate category. He retains the support of his parents. His sister is also in Court today. They have plans that Mr Vo is apparently willing to fulfill. 2. Mr Vo is facing sentence for one offence of supplying a prohibited drug. When I sentence him for that matter he asks that I take into account another offence of supplying a prohibited drug. 3. On 23 November 2016 police saw some people acting suspiciously. They eventually approached the offender who was seated in the driver's seat of a parked car and asked him if he was in possession of a prohibited drug. He said in response that he had some ice on him, telling police it was about an 8‑ball. Hoping that police would not notice, he threw a plastic freezer bag containing a brown crystal substance through the front passenger window of the car. Police were somewhat surprised at the brazenness of this activity, one saying to the offender "mate are you serious, I just saw you throw it out the window". Subsequent analysis showed that the bag contained 15.2 grams of methylamphetamine with a purity of 68.5%. 4. He asks that when I sentence him for the offence I have just described, an offence of supplying a prohibited drug I take into account two other offences, the first relates to a prepaid MasterCard and a prepaid gift card that were found in his possession on his arrest. The MasterCard was in the name of Michael Tran, and when police asked who that was he said he did not know. 5. The more serious matter on the Form 1, and a serious matter indeed, is another offence involving supply, this time knowingly taking part in the supply of prohibited drug. Mr Vo drove another man by the name of Lee to a location where Mr Lee could supply some drugs to a person. Fortunately that person was working for the police. That person supplied Mr Lee $4,000 in cash and received 10.25 grams of heroin. 6. It is notable that Mr Vo was on bail for the offence for which I must specifically sentence him by the time he committed the supply matter on the Form 1. 7. He was granted bail after his arrest on the supply matter but refused bail after his arrest on the knowingly taking part in the supply matter and has thus been in custody for one year and ten days. 8. He has caused a lot of problems for his family in the past because he is a drug user, or at least he was a drug user until his arrest. 9. Mr Vo was born in Vietnam and he is the oldest child in the family. He came to Australia when he was around five with the rest of his family and received a great deal of support as he was growing up. He described to a psychologist that his parents were both high achievers. His father was a police officer in Vietnam and his mother was a lawyer. 10. One area where Mr Vo experienced a bit of trouble as he was growing up was that he felt that he had failed his parents by not achieving what he thought were their expectations. 11. Mr Vo left home at the age 17 but then moved home after he became the sole carer for his son. Let me speak about his son for a while. Mr Vo had a very brief relationship with a young woman. She became pregnant as a result. Mr Vo tried to establish a relationship with this woman because she was pregnant with their son but this was not successful, she being focussed apparently on partying rather than parenting. She died when their son was only six months of age following a drug overdose. Mr Vo then moved back to live with his parents. His parents have been looking after his son whilst he is in custody. 12. As is distressingly common Mr Vo's life has been significantly affected by the circumstance that he is a, or at least was a, drug addict. 13. After leaving school Mr Vo began working in his father's tiling business, he having taken up that occupation upon leaving Vietnam where he worked, as I have mentioned, as a police officer. His father employed him for 14 years which is quite some time but it was of course drug use which led to him leaving that job. He got work stocking shelves at Woolworths, but again his drug use caused problems in going to work and he has been unemployed since. 14. Mr Vo has a criminal history. As is almost invariably the case where people are involved in the use of drugs, it includes the usual sort of relatively minor offences drug users commit but also offences which resulted in suspended sentences of imprisonment, such as dealing with the proceeds of crime. 15. He has, as I think I have mentioned, spent one year and ten days in custody awaiting sentence. He pleaded guilty at the earliest opportunity and so the sentence I impose upon him will reflect the utilitarian benefit of his plea. I am not going to quantify the discount because the plea of guilty is one of a number of factors which have led to me deciding to impose a different form of sentence from that I would otherwise have imposed. 16. Given that it is clear a custodial sentence of some sort is required the question becomes what form that sentence should take. 17. I am satisfied that especially given Mr Vo has spent slightly more than a year in custody I could, especially if I did not backdate it, impose a sentence of less than two years. Indeed such a sentence would be likely. That means that I could if it were appropriate refer Mr Vo for assessment as to his suitability to serve his sentence by means of an intensive corrections order. In some senses that actually might be harder for Mr Vo than if I were to simply require him to spend a bit more time in custody before he would be released on parole but it is not for Mr Vo to decide how he wishes to serve his sentence. 18. It is clear that Mr Vo is not one of those people who we should simply throw our hand up over and say there is nothing we can do. Mr Vo, as I began these remarks on sentence, retains the substantial support of his family. Indeed upon his release from custody he intends, and so do his family, to live at home with his son, his parents and his sister Anne. They have a job lined up for him. 19. He says that he has not used drugs since he went into custody and his custodial history contains nothing to indicate that that is untrue, so Mr Vo is very much a person upon whom substantial efforts should be made to assist him to rehabilitate himself. An intensive corrections order would do much more, I am satisfied, than a period on parole. When I raised these matters with Mr Leary he indicated after conferring with his client that his client would seek an ICO. The Crown did not oppose that order. 20. I will indicate, for my benefit as well as Mr Vo's benefit and the lawyers as well, what I propose in the event that Mr Vo is found suitable. It would be quite wrong for me to impose a longer sentence of imprisonment anticipating that it would be served by an ICO than if I were to impose a sentence of full-time custody. Taking into account that he has already served more than a year in full-time custody I was contemplating imposing a sentence of imprisonment of somewhere in the range of 12 months to 18 months depending of course on what further I learn about Mr Vo in the ICO report. The orders I make therefore are these: 21. Mr Vo is granted bail for the purposes of him being assessed as to his suitability to serve a sentence of imprisonment by means of an intensive correction order. I order that such assessment be made. * Mr Vo is to live at XXXX. * He is to use no illegal drugs whatsoever. 1. They are the only two conditions of bail I really want your client to follow. I think, Mr Leary, if he is going to take this opportunity that I have given him he'll take it whether I impose conditions of bail or not. If he's not going to take it then whether I make it a condition of bail or not he's not going to take anyway. Unless you Madam Crown, or you Mr Leary, want anything further, specific bail conditions? 2. I will say without it being a condition of his bail that he should contact the Fairfield Probation and Parole office within seven days of his release in order to ensure that the ICO assessment is done as efficiently as possible. 3. Mr Vo, I have given you a chance, right, but you can still, if I can use the vernacular, stuff it up, and if you were to not take advantage of the opportunity I have offered you, if for example you were to use drugs between now and when I next see you, not only are you not going to get the benefit of an intensive correction order which keeps you out of gaol, you will end up getting a longer sentence because you'll prove to me that you're not really as capable of rehabilitation as I thought you were. Do you understand what you've got a head of you? 4. OFFENDER: Yes, your Honour. 5. HIS HONOUR: Right. It's up to you really to prove to me that you can give up your life of drugs. If you can do that with assistance then you're going to get a shorter sentence and a less severe sentence than if you say to yourself well I'm out of gaol now I think I'll go back and using drugs. If you use drugs you're going to go to gaol for a significant time, significantly longer than you already have. Do you understand that, sir? 6. OFFENDER: Yes, your Honour. 7. OCONNELL: Your Honour, I'd just ask as well that the backup offence on the s 166 sequence to be withdrawn. 8. HIS HONOUR: Right. I will note that that is withdrawn. I will order my remarks on sentence for the next occasion. Thank you, I will now adjourn. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2018