CDirector of Public Prosecutions v Tran
[2025] VCC 1285
•1 September 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 23-01008
| DIRECTOR OF PUBLIC PROSECUTIONS |
| (CTH) |
| v |
| KHOI TRAN |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2025 | |
DATE OF SENTENCE: | 1 September 2025 | |
CASE MAY BE CITED AS: | CDPP v TRAN | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1285 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence upon plea of guilty
Catchwords: Attempt to possess a controlled drug – more than 370 times the marketable quantity of methamphetamine – consignment reconstructed by Australian Federal Police – arrested upon delivery – delay – limited role – general deterrence – late plea of guilty – first time offender – Verdins limb 5 enlivened – good prospects of rehabilitation
Legislation Cited: Criminal Code Act 1995 (Cth); Criminal Code Regulations 2019 (Cth); Crimes Act 1914 (Cth); Proceeds of Crime Act2002 (Cth)
Cases Cited: R v Verdins [2007] VSCA 102; Chuah v The Queen [2022] VSCA 51; Pell v The Queen [2011] VSCA 235; Teoh v The Queen [2018] VSCA 239; Musa v The Queen [2018] NSWCCA 192
Sentence: Total effective sentence of six years’ imprisonment, with a non-parole period of 3 years and 9 months.
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APPEARANCES: | Counsel | Solicitors | |
| For the Commonwealth |
| Commonwealth Department of Public Prosecutions | |
| For the Accused |
| Haines & Polites Solicitors |
HIS HONOUR:
1Khoi Tran you pleaded guilty to a charge that on 7 June 2022 you attempted to possess a substance being a border controlled drug, namely methamphetamine, the substance having been unlawfully imported and the quantity being a marketable quantity pursuant to the provision sub-s(11.1),
sub-s(1) and 307.6 of s1 of the Criminal Code (Cth).2The circumstances of your offending are outlined in a prosecution summary which was tendered upon the plea and is effectively an agreed statement of facts which was accepted by you. I will summarise these facts briefly.
3On 2 June 2022, a consignment which originated in Hong Kong arrived in Melbourne. It was addressed to Chong Yung Kong to an address in Middleborough Road, Box Hill South and it declared to contain a tea set. The address is a food factory where the named recipient worked. That day a search warrant was executed by Australian Federal Police officers on the residential address of Chong. The next day the tea set consignment was delivered to the Middleborough Road address and Chong was present. When it arrived he rang his girlfriend Tang and told her he was concerned about its contents and to notify the Australian Federal Police about the consignment and she did so.
4Both Chong and Tang agreed to assist the police investigation. He agreed to participate in the controlled operation and told the police the parcel had been sent by his friend, Nelson. Police examined the consignment's packaging and found methamphetamine in the corflute used. 749 grams were extracted from it. The marketable quantity of methamphetamine is 2 grams as defined in the Criminal Code Regulations 2019 (Cth).
5At the direction of police, Chong communicated with Nelson who directed Chong to deliver the parcel to another person, that is, you. Nelson was also in communication with another person who it was said on the prosecution case, was your 'handler' within a criminal syndicate.
6On 6 June 2022, Nelson sent an image of a $5 Australian bank note to Chong. On the same day the so called ‘handler’ referred to as Vang, sent you a photo of the consignment label which included the Middleborough Road address with instructions to pick up the consignment at 9 am. Vang asked you to provide the registration number of the car you would use for the pickup, so as to pass it onto the holder of the parcel, and you provided that number. Nelson then passed that number plate and car description to Chong for the pick up the next day. The Australian Federal Police provided Chong with a reconstructed consignment on 7 June.
7Nelson complained to Chong that he could not contact 'the man' and that he had 'asked that man to call Chong'. At 11.47 am on 7 June, Chong received a text message from the phone used by you which included you saying that you were going to pick up, and asking for the address. You arrived at the Middleborough Road address at 12.59 pm driving the vehicle described in Nelson's message to Chong. When you arrived, you rang Chong to tell him you were at the place. You approached him and when he walked towards your vehicle you handed him a $5 Australian bank note. Chong compared its serial number with the one depicted in the image sent to him by Nelson the day before and saw that they were identical.
8This was a way of identifying a member of the criminal enterprise which was concerned with the consignment. Chong handed the consignment to you and you put it in the boot of your car. You were then arrested by members of the Australian Federal Police. You were searched. You had a Samsung mobile phone with five SIM cards in the phone casing. You had called Chong with it. Another Samsung phone was located in the car.
9That evening after you had made a no comment record of interview with police, police executed a search at your home. The second Samsung phone found in the car contained two video files depicting the unpacking of a similar consignment of a decorative tea set packed in corflute, with the tube of packaging corflute appearing to contain a powdered substance in the air gaps to which the man unpacking it is pointing. The other phone yielded text messages and calls to Chong of that day, 7 June. You were charged and bailed the following day.
10A chronology is included in the opening at page 7. It notes a number of adjournments and committal mentions. In June of 2023 a contested committal hearing proceeded with cross-examination of the informant. The trial was listed in December 2023 for August 2024, and in July 2024, the parties confirmed their trial readiness. However later in July 2024 the prosecution sought an adjournment due to witness unavailability and the trial was relisted for March 2025.
11There had been discussions in relation to resolving this matter as of July 2024, and the matter ultimately did resolve in February 2025, shortly before the trial. The relevance of this chronology is twofold. It goes to the timing of the plea and the assessment of its value, and it explains the delay which has occurred in this matter. I should add that the further delay between your plea and this sentence has been due unfortunately to my illness for which I apologise. I will return to the issue of delay in a moment.
12It was submitted by the prosecution that you took possession of the consignment parcel at the behest of Vang with the intention of providing it to Vang for purposes of sale, and it is your dealing with the consignment which the charge concerns. The inherent seriousness of the offence is denoted by the applicable maximum penalty of 25 years’ imprisonment which provides the yardstick with which to commence any consideration of the appropriate proportionate sentence in your case.
13Sentences for Commonwealth offences are guided and determined by the provisions of part 1B, division 2 of the Crimes Act 1914 (Cth) (‘the Act’), together with State law and the common law. Section 16A(2) in particular sets out a non-exhaustive list of matters to which I am required to have regard where relevant and known. I have considered these aspects in detail as well as other core sentencing principles such as proportionality.
14It was conceded upon your plea that no sentence other than a sentence of imprisonment in the circumstances of your offending is appropriate; a concession which coincided with the prosecution's submission, and which I accept and with which I agree.
15The first matter to consider and of significance is the role that you played in the scheme of this importation. Attempts to categorise such participation are often reductive and attended by some vagueness and uncertainty because the full nature and extent of the organisation, the enterprise undertaken, and the participation of others are often not matters known or able to be clarified for the court.
16In this case the person Chong, Nelson and Vang were each linked in a chain of communications in relation to the consignment and its delivery. You also communicated with Chong and Vang in relation to delivery method. By use of the number plate of the car and the $5 note, there clearly can be inferred that you had some knowledge that your involvement was facilitating the secretive movement of the consignment. This subterfuge leads to the conclusion that you must have known the contents of the consignment, that you were in a relationship of trust with those communicating with you, and that your role appears limited to one of pick up and delivery.
17There is a degree of sophistication which however is limited in scope and does not appear to extend beyond that role. Whether you were subordinate to a 'handler' is unclear, but what is clear is that you leant yourself to this role probably for financial reward to facilitate the distribution of the substance, with which task you were not involved. The size of the importation is a relevant factor. 749 grams of methamphetamine is more than 370 times the marketable quantity of that drug, and that sits at the top of the range for that definition. Clearly in the sliding scale of that range this amount gives rise to a penalty towards the higher end of the appropriate penalty applicable to the cut off point for a marketable quantity, moving close to the starting point of a commercial quantity, the next quantity in the spectrum of offences.
18Yours was an attempt to possess a significant quantity amount, amounting to a marketable quantity, involving an important level of participation, involving drugs to your knowledge, to receive a not insignificant reward. In the context of these kinds of offences these considerations are relevant: the difficulty in detecting these kinds of offences; the grave social consequences that follow such offending which blight our community through the availability and consequence of illicit drug use; that an attempt to possess border controlled drugs as in this case are attended by serious moral culpability because of the role undertaken; and that principles which attach to importation of drugs apply with equal force to possession offending of the kind in this case.
19These matters indicate here, that the sentence must primarily focus on general deterrence. The sentence must signal that potential rewards are neutralised by the risk of severe punishment. Prior good character will generally be given less weight as a mitigating factor than might otherwise be accorded. Stern punishment will be warranted in most cases. You acted on instructions from Vang in the context of a criminal relationship involving some level of trust. You did not have a role in the importation and it is not suggested you were to have direct involvement in the distribution of the drug, but you undertook an essential step in its delivery, leading to its dissemination into the community.
20While it is not alleged you would have known the exact quantity or purity of the substance, you were aware it was not insignificant. Each of these matters, the participation of intermediaries including yourself, knowledge that drugs were involved, the methodology used to safeguard delivery, and the videos contained on your phone, all lead to an assessment of your state of knowledge and subsequent moral culpability.
21You must have, armed with this knowledge, anticipated a significant reward even without any proprietary interest in the drugs. Indeed, your personal circumstances related to your financial situation to which I will refer in a moment would confirm this inference.
22I take your plea into account. Under s16A(2)(g) of the Act, you are entitled to a reduction in penalty at least for the utilitarian value of the plea even if entered in the face of a strong prosecution case. Its timing is relevant, though the parties here describe this aspect differently, prosecution submitting it was entered at a late stage and the defence arguing it was given at the ‘first available forensic opportunity’ and therefore relatively early.
23Your police interview was on 7 June 2022 when you were arrested. A second committal mention was adjourned in November 2022 to allow you to consider some materials, and I have recited the chronology that proceeds from there. The matter resolved in February about two weeks before trial and the plea heard in April. I consider this a late plea. Nevertheless, the utilitarian value of having avoided a trial should be accorded some benefit. It is, I accept, some indication of remorse and an acceptance of responsibility which facilitates, even if late, the course of justice. I will assign your plea a reduction in your sentence.
24You have no criminal history by reference to s16A(2)(m) of the Act, and you are an Australian citizen. You are now 34 years of age. I will sentence you as a first-time offender, but your previous good character, though relevant, has slightly less value in these circumstances.
25It is accepted that you cooperated with law enforcement by consenting to police entering your residence prior to the warrant holder's arrival and voluntarily providing passcode access to your mobile phone a month after your arrest. Section 16A(2)(h) of the Act.
26In the context of remorse this is a difficult sentiment to assess. You told
Mr McKinnon, a Consultant Psychologist, that you felt that what you did was ‘stupid’ and you ‘wouldn't do it again’. It was just for the money. Mr McKinnon's opinion was that you appreciated the gravity of the offending and the predicament you now face. Remorse in my view requires further insight than that demonstrated in these utterances. Perhaps as in most cases it will fully develop with time. I am prepared to act on the plea as an indicator of some remorse as I have said: Section 16A(2)(n) of the Act.27I take your personal circumstances into account. You were born in Australia to parents of Vietnamese origin. You have a younger sister. You had an unremarkable childhood, not affected by violence or abuse. Your mother operated a clothing retail business and your father looked after you and your sister at home. He passed away in 2021, aged 72. You have always had a good relationship with your 60 year old mother and your sister who resides with her.
28When you were 22 years old you married Yen, your wife. You have two children aged six and three, and you have raised Yen's son now aged 16. Your six year old son has recently been diagnosed with autism and ADHD. You told
Mr McKinnon that your relationship with your wife deteriorated due to her gambling habit which placed the family finances under severe stress. She has recently stopped gambling. However, between 2019 and 2021 you had taken a second warehousing job on a casual basis to enable you to meet mortgage repayments. This was to supplement your wage from working at Supercheap Auto where you have worked for the last 13 years, and you were working there from 6 am to 10 pm during this period.29You told Mr McKinnon you were struggling financially to pay those from whom you and your wife had borrowed money, and that these difficulties were the primary motive for your decision to become involved in the offending. This motive might explain your participation. It does not excuse it in anyway and is not a mitigating factor.
30You were schooled to Year 12 and at 15 years of age you began working at McDonald's before securing a job at Supercheap Auto. You have never drunk alcohol to excess. In late teens you experimented with MDMA, cocaine, ice and heroin, but did not develop a habit. You did not inject drugs, you would smoke them. You have Type 2 diabetes, asthma, eczema and gout. You are medicated for these conditions and for high blood pressure. I take those conditions into account.
31Mr McKinnon opined in his report dated 13 April 2025 that you are not, nor were you at the time of the offence, suffering any major psychological disorders and that your general intellectual and cognitive functioning fell within the normal adult range. Despite describing the ongoing financial stress and marital friction you did not have any symptoms of clinical significance that might support a diagnosis of either depression or anxiety. You did not display anti-social or criminal entrenched traits and the offence appears in his view to be, 'an extreme aberration'.
32You are, according to the report, 'very unlikely to engage in recidivism of any kind'. He wrote that you appreciate the gravity of your offending and that you possess 'the competencies normally associated with effective and responsible adulthood'.
33Mr McKinnon concludes his report with opinions concerning any time in reclusion and its impact. As a first-time prisoner, he writes, you are unlikely to 'cope well enough' with prison. Your obesity and health issues increase the difficulty of imprisonment and its inherent stressors. In this context a brief medical history and current medication from Dr Nguyen at the Western Family Practice dated April 2025 was tendered. I accept this view of likely effect of detention as enlivening the fifth limb of Verdins.
34Mr McKinnon then continued in what I understand was addressing Verdins sixth limb considerations. It was said that separation from your children and inability to meet financial obligations will inevitably mount high a level of distress, being at risk of suffering a clinically significant level of depression and anxiety requiring crisis mental health treatment.
35Although in general terms I accept that these stressors may arise and persist during your reclusion, I am unpersuaded as to the “inevitability of distress rising to high levels of depression and anxiety leading to a mental health crisis”. This opinion appears in my view to run counter to the general tenor of the report and is proffered without reference to any testing and assessment. Such a crisis seems to arise from conditions and consequences of imprisonment which all prisoners, even first time prisoners, face in relation to their family and financial obligations.
36Although I repeat, concerns of this nature remain relevant to factor into the determination of an appropriate sentence by way of parsimony and proportionality, I do not accept that Verdins limb 6 has been specifically enlivened as invoked in the report or in defence submissions.
37I accept that psychological issues which fall short of those that would enliven these Verdin principles are still relevant in determining your moral culpability for your offending. I also accept that specific deterrence, although still relevant, can be significantly moderated given your lack of criminal history, criminogenic, psychological and social issues, and prospects of rehabilitation which I assess as good given your age, excellent work history, family background and future support.
38The prosecution submitted that Mr McKinnon's opinion of low risk of recidivism was expressed without taking into consideration your 'close connection with persons involved in the importation of drugs.' I do not share this criticism of the opinion. The involvement does not bespeak of a close connection, a term in my view suggestive of greater involvement and participation than your role properly suggests.
39I take into account under s16A(2)(p) your young son's diagnosis. Your absence will have an impact upon him and the family during this period. I take into account current sentencing practices, not as a controlling factor but as one factor to be taken into account, that is yardsticks that illustrate the possible range of appropriate sentences given the particular burden and circumstances of the offending and the offender. I have regard also to sentencing practices across the nation, to ensure sentencing consistency.
40I have specifically been referred to the cases which were provided as comparative and comparable cases. Chuah v The Queen [2022] VSCA 51,
Pell v The Queen [2011] VSCA 235, Teoh v The Queen [2018] VSCA 239 and Musa v The Queen [2018] NSWCCA 192. They have been instructive as to the approach taken by the relevant court and as to how the factors present in each case have been used and assessed in the determination of the sentences described.41This sentence will commence today. You will not be eligible to apply for parole before the expiration of the non-parole period. That non parole period of your sentence is the point at which you may be released subject to certain conditions of parole. Should you breach these conditions you may be returned to the court and be ordered to serve the remaining period of the imprisonment left to serve under this sentence.
42You have consented to the ancillary orders for forfeiture of the sum of $11,000 seized from your premises as proceeds of crime under ss48 and 59 of the Proceeds of Crime Act2002 (Cth). Under s320 of that Act the Court must have regard to this order or forfeiture of moneys and I have taken this matter into account upon the sentence.
43On the charge of attempting to possess a marketable quantity of an unlawful border controlled drug, you are convicted and sentenced to six years' imprisonment starting today.
44I order a non-parole period of three years and nine months before being eligible for parole. I declare that you have served 126 days as pre-sentence detention and will have that number noted in the court's records.
45But for your plea I would have sentenced to you to seven years' imprisonment with a non-parole period of four and a half years.
46Ms Mattea, I've signed the forfeiture order. I'll hand it down.
47MS MATTEA: Your Honour there is just one matter in relation to Your Honour's comments about the forfeiture application. If I'm not mistaken Your Honour may have referred to the application on the basis of being proceeds of crime. I understand the application was put on the basis that the currency was an instrument of crime.
48HIS HONOUR: Well, if there's a difference in relation to those, then certainly I will note that the forfeiture will be taken into account as the cash being instruments of crime.
49MS MATTEA: I'm grateful to Your Honour.
50HIS HONOUR: Thank you, Mr Nikakis. Thank you, Ms Mattea.
51MR NIKAKIS: Thank you, Your Honour.
52MS MATTEA: Thank you, Your Honour.
53MR NIKAKIS: May I be excused Your Honour.
54HIS HONOUR: Yes certainly. I'll just remain with the class that's in the room.
55MR NIKAKIS: Yes.
56HIS HONOUR: Thank you.
57MS MATTEA: If I might be excused also Your Honour.
58HIS HONOUR: Certainly.
59MR NIKAKIS: And might my client be excused?
60HIS HONOUR: Yes certainly. Thank you.
61MR NIKAKIS: I've organised to have a conference with him this afternoon, so I'll run through it then.
62HIS HONOUR: If you want to just speak to him now you could.
63MR NIKAKIS: No it's all right.
64HIS HONOUR: But you've organised a conference. That's fine.
65MR NIKAKIS: No, that's all right. Thank you.
66HIS HONOUR: Thank you, Mr Nikakis.
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