Director of Public Prosecutions (Commonwealth) v Tran&Anor
[2020] VCC 1748
•28 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-02367
CR 19-02368
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) |
| v |
| THUY THANH THI (PHUNG) TRAN KHOI PHAN |
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| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 September 2020 |
| DATE OF SENTENCE: | 28 October 2020 |
| CASE MAY BE CITED AS: | DPP (Commonwealth) v Tran&Anor |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1748 |
REASONS FOR SENTENCE
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| Subject: | trafficking controlled drugs contrary to the Criminal Code (Cth) |
| Catchwords: | guilty plea – mother (Tran) and son (Phan) – Phan delivered 1 kg of methamphetamine, supplied by Tran, to a customer – Phan stored 5 kg of methamphetamine and other drugs for others to sell – Phan also held $101,150, believed to be the proceeds of crime, for others |
| Legislation Cited: | Criminal Code (Cth); Crimes Act 1914 (Cth); Sentencing Act 1991 (Vic) |
| Cases Cited: | R v Hai Van Nguyen [2008] VSCA 235; R v Phuong Thu Thi Pham [2010] NSWCCA 238; Phommalysack v R (2011) 31 VR 673; Suky Lieu v The Queen [2016] VSCA 277; Verdins; R v Pham (2015) 256 CLR 550; Kleindyk v The Queen [2016] WASCA 123; Le v R [2017] NSWCCA 26; R v Ruzehaji (2018) 132 SASR 302 |
| Sentence: | Tran – 10 years and 6 months imprisonment, minimum non-parole period of 7 years; Phan – 12 years imprisonment, minimum non-parole period of 6 years |
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| APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr J. Manning | Office of Public Prosecutions |
For Accused Tran | Mr R. Melasecca | Melasecca, Kelly & Zayler |
| For Accused Phan | Dr D. Grace | Melasecca, Kelly & Zayler |
HIS HONOUR:
1Thuy Tran, you have pleaded guilty to one charge of trafficking a commercial quantity of a controlled drug (methamphetamine), on 18 December 2018, contrary to sub-s.(1) of s.302.2 of the Commonwealth Criminal Code. (Charge 9)
2Khoi Phan, you have pleaded guilty to:
· One charge of trafficking in a commercial quantity of a controlled drug (methamphetamine), on 18 December 2018, contrary to s.302.2 (1) the Commonwealth criminal code; (charge 9)
· One charge of trafficking in a commercial quantity of controlled drugs (methamphetamine, heroin and cocaine), on 8 January 2019, contrary to
ss.302.2 (1) and 311.2 (1) the Criminal Code; (charge 10)· One charge of dealing with property believed to be the proceeds of crime worth $100,000 or more, on 8 January 2019, contrary to s.400.4 (1) of the Criminal Code. (Charge 11)
3The circumstances of your offending are set out in the prosecution opening on plea dated 6 August 2020, [Exhibit A]. They are agreed facts.
4Thuy Tran, you were known as ‘sister Phung’. I will refer to you as Phung Tran.
5You knew a man named Kha Tien Ngo, who was a member of the transnational drug syndicate which imported and trafficked commercial quantities of heroin locally.
6In December 2018, in a side deal with one of his heroin customers, Ngo asked you to supply him with methamphetamine. You supplied him with a kilo of methamphetamine on 18 December 2018, (Charge 9), and you arranged for your son, Khoi Phan, to deliver it.
7Khoi Phan, you delivered the kilo of heroin to Ngo on 18 December 2018 for your mother, (Charge 9).
8On 8 January 2019, you took another five kilograms of methamphetamine to Ngo’s home, but did not deliver it. Police had arrested him before you arrived. Later on the same day, police arrested you at your home, where they found 4.79 kilograms of pure methamphetamine, (which included the five kilograms gross weight of methamphetamine you had taken to Ngo’s home), together with 401.1 grams of pure cocaine and 218.6 grams of pure heroin. You were storing the drugs for others to sell, (Charge 10). They also found $101,150 in cash, which was, and which you believed to be, the proceeds of crime. You are holding the cash for others. (Charge 11).
Circumstances
9On 10 December 2018, Ngo supplied a customer with a 1-ounce sample of methamphetamine for a proposed sale of a larger amount. Later on the same day, he spoke to you, Phung Tran, about obtaining the methamphetamine for the customer.. You told him, 'he' referring to your son, would deliver the methamphetamine in a few days’ time.
10On 12 December 2018, you spoke to Ngo again. You told him your daughter had 'scolded' you for involving your son and had begged you to stop. You warned Ngo to beware of a set up.
11On 13 December 2018, the customer told Ngo he was happy with the sample and ordered 1 kilogram of methamphetamine to be supplied on 18 December and another after Christmas. The price was $120,000 per kilo with a $2,000 delivery fee, which was to be paid to you, Khoi Phan.
12Over the next few days, you, Phung Tran, exchanged messages and calls with Ngo to arrange for your son to meet Ngo ahead of supplying the methamphetamine to him.
13On 17 December, you told Ngo if you made enough money to get a ring back you would quit. Ngo said, when the customer paid from the methamphetamine, he would probably give the money to your son to pass onto you.
14On 18 December, both Ngo and your mother were trying to contact you, Khoi Phan. When Ngo complained, your mother said you were only a kid. Eventually, Ngo made contact with you and you drove to his apartment. You met him in the carpark and he took you inside where he had the customer. You gave Ngo the methamphetamine and, when the customer paid for it, he gave you the money. You delivered the cash to a co-offender, who was subsequently convicted of dealing with cash suspected to be proceeds of crime.
15Later in the afternoon, you, Phung Tran, called Ngo. You asked whether your son had collected the money because you needed to pay some debts. Ngo agreed to lend you $2,000. You told him to offset it when the next drug deal was done.
16Next day, you confirmed 'the boy', a reference to your son, had given you the money and there were only 'two', a reference to 2 kilograms of methamphetamine left.
Khoi Phan
17In late December 2018, Ngo’s customer proposed buying 5 kilograms of methamphetamine a month. Ngo said he would call his contact and he spoke to you, Phung Tran.
18On 4 January 2019, Ngo agreed to supply the buyer 5 kilograms of methamphetamine on 8 January 2019. Ngo said he would ask 'the boy', referring to you, Khoi Phan, to bring the drugs to him on 8 January, for the customer.
19On 7 January 2019, Ngo messaged the buyer his 'friend', referring to you, Khoi Phan, was ready to deliver the methamphetamine at 10 am the next day. The buyer agreed to go to Ngo’s apartment to complete the deal.
20On 8 January, at 10.35 am, you arrived at Ngo’s apartment in your girlfriend’s car and parked it outside. You waited in your car for one or two minutes and then drove off and returned to your unit. Unbeknown to you, Ngo had been arrested by police.
Khoi Phan arrest
21At 12.15 pm, police arrested you at a unit where you lived with your partner and her mother. When they searched the unit they found:
· In the garage:
· Five bags containing 5 kilograms of methamphetamine (nearly 4 kilograms of pure weight) which was to be supplied to the buyer at Ngo’s apartment.
·In the master bedroom:
· Two bags containing nearly 1 kilo of methamphetamine (774.8 grams pure);
· A small bag containing half a gram of cocaine (about 0.1 of a gram pure).
·In a safe in the bedroom (and your fingerprints were found on it):
· A bag containing an ounce of methamphetamine (which contained 22.3 grams pure methamphetamine);
· A bag containing a little more than an ounce of cocaine (which contained 23.4 grams pure cocaine);
· Three bags containing 470.9 grams of cocaine (with a pure weight of 377.6 grams);
· Eleven bags containing 290 grams of heroin (218.6 grams pure heroin);
· $47,000 in cash;
· A bowl and spoon, a set of scales, a box cutter and powder residue with crypto currency hardware.
·Also in the bedroom was:
·A Rolex watch, a camera, two mobile phones, two laptop computers, your wallet and some cash.
22They also found $54,150 in cash in four other places around the property.
23When police questioned you, you said your fiancé and her mother lived at the unit. You said you lived with your mother at Deer Park. When you were asked about your drug trafficking activities, you exercised your right to remain silent. You were charged and remanded in custody.
24Phung Tran, on 8 March 2019, police arrested you at your Deer Park home. When they interviewed you, you told them you lived at home with your daughter and her boyfriend. You said your son had not lived with you for the last five or six years. You said you did not know where your son was.
25You denied any drug trafficking. When shown a photo of Ngo, you admitted you knew him. You said you used to gamble with him. You said he worked in finance and you referred people to him for loans and he paid you a $500 commission. When police played intercepted calls between the two of you, you claimed you were talking with him about finance. You said your son had wanted to borrow money from him. You said you yourself were very poor, very disadvantaged and very unfortunate. You said you had done nothing wrong.
26You have admitted a criminal record of 14 dishonesty convictions between
18 June 2004 and 1 June 2017.27Relevantly, on 28 February 2006, for handling stolen goods and dealing with property suspected of being proceeds of crime, you were sentenced to three months' imprisonment which was wholly suspended for 12 months.
28Khoi Phan, you have no criminal record.
Personal circumstances
Phung Tran
29I turn to your personal circumstances Phung Tran.
30Mr Melasecca, who appeared on your behalf, and also instructed Mr Grace QC, who appeared for your son, relied on the following documents in support of his submissions:
·outline of submissions
·report, dated 1 September 2020, of Sandra Nguyen, psychologist
·historical medical records of
·Dr Alexander Bach
·Dr Tracey Lam
·Dr Sant Khan
·Dr Preeti Khillan
·Dr Anthony Taranto
·Justice Health prison medical records
·Certificate of completion of gambling counselling program dated 20 October 2019
·letter, dated 31 August 2020 of Tien Truong, gambling counsellor
·letter from your daughter Tram Phan
·letter from your daughter Jennifer Nguyen
·letter from your son-in-law Quang Tran
·letter from your son-in-law Johnny Hua
31You were born on 21 April 1963 in Vietnam. You were 55 years old when you offended. You are now 57.
32You told a psychologist, Sandra Nguyen, you are one of six children. You grew up in a village where your parents were subsistence farmers. Your siblings live around the world. One of your younger brother lives in Australia.
33You married in Vietnam and two weeks after your older daughter, Jennifer, was born, your husband died in a motor car accident. Only weeks later, you fled Vietnam by boat to a refugee camp in Malaysia and arrived in Australia in November 1989 as a refugee.
34After living in Sydney for a short time, you moved to Melbourne with your daughter and found work as a sewing machinist.
35You met another man and with him, you had your son, Khoi Phan, who was born in 1992 and a second daughter, Tram, who was born in 1993.
36You told Ms Nguyen your partner was physically violent and emotionally abusive. At one time, Jennifer was placed in this foster care. Your partner often promised change, but he never did.
37In 2000, your relationship ended. As a single parent, you returned to work as a sewing machinist. Friends took you to the casino where you started gambling. When you lost money, you borrowed more from loan sharks to chase your losses.
38In 2004, you met and married a fellow gambler. He supported you through your gambling problems, but over time, you grew apart and the relationship ended in 2017.
39You told Ms Nguyen the need to repay your gambling debts led to your offending. To her, you expressed remorse and shame for your actions.
40In Ms Nguyen’s opinion, you meet the diagnosis for major depressive, gambling and illness, anxiety disorders. In her opinion, your depression, anxiety and stress affected your judgement when you offended.
41She stated:
'Based on Ms Tran severity of her major depressive disorder with anxious distress, gambling disorder and illness anxiety disorder, her mental functioning was impaired at the time of offending. Her mental condition:
a. Impaired her ability to exercise appropriate judgment and,
b. Causally contributed to her committing the offence'.'
42She described you as 'a mentally ill lady who is currently not coping in prison'. She said: '(your) functioning has had a significant impact on (your) physical health which has contributed to the escalation of (your) pain and other somatic complaints.'
43She also said, ' ... there will be a serious risk with the deterioration of (your) mental health if (your) continue to endure an extensive period of time in incarceration.'
44I have read your historical and current medical records. In February 2014, your GP, Dr Bach, referred you to a gynaecologist for abdominal pain. A scan showed you had a left ovarian cyst which was removed.
45You have a five year history of goitre.
46On 23 March 2017, Dr Bach referred you to Catherine Ly for counselling for depression due to marital problems and, in August of the same year, he referred you to an Endocrine surgeon, Dr Tracey Lam, in relation to your goitre. A scan showed nodules which were benign.
47Your prison medical records show, when you were admitted to custody, you looked 'generally well' and your chest and heart sounds were normal. In prison, you have had ongoing contact with nurses and medical officers for a number of complaints, including back and abdominal pain. You have had a number of investigations at St Vincent’s Hospital. None have revealed any negative findings.
48In October 2019, in prison, you completed the Gambling Counselling Program.
49You had told the counsellor, Tien Truong, your 2nd partner had abused not only you and also your daughter. You also told her loan sharks had threatened your children and you and “coerced (you) to commit crime”. These were not things you told Ms Nguyen when she spoke to you this year.
50Your daughters and their partners wrote references for you.
51Your daughter Jennifer wrote your second partner was violent toward you. She said your third partner treated you well until, ' ... after another decade... that relationship went downhill.' She confirmed she had taken you to doctors and other health professionals for all your ongoing medical complaints. She wants you to come home to take care of you. Her husband supports her to that end. He wrote that you have helped them with the care of your grandchild since his birth.
52Your daughter, Tram, who was the one who 'scolded' you when you got your son involved in drug trafficking, wrote you have made many bad decisions in your life. She saw you experience emotional and physical pain. She was aware you had a number of debts. She helped you repay some of them. She knew you were doing something wrong and she did not want her brother, your son, to be involved. She, too, wants you home to take care of you. And her partner is also supportive.
53Mr Melasecca submitted your offending, involving one transaction where you sourced 1 kg of methamphetamine for Ngo, was limited.
54He asserted you offended because you were unable to pay you gambling debts and you wanted to get back your engagement and wedding ring which you had pawned to pay some of those debts. He did not dispute “you were making significant profits”. In oral submissions, he told me you were paid “between 10 and $20,000” to source drugs.
55To my specific questioning, Mr Melasecca told me you accept your son’s contentions:
·you pressured him into delivering methamphetamine (charge 9) and
·similarly pressured him to allow his home to be used to store drugs and money
56In mitigation of penalty, he relied on the following factors:
1. your guilty plea, made at earliest opportunity, for:
a. its utilitarian value
b. your acceptance of responsibility and
c. as evidence of remorse
2. your expressions of remorse
3. your mental health, which, in his submission
a. reduces your moral culpability; and
b. is at risk of deterioration in prison
4. your isolation from your children and grandchild
5. the detrimental impact of Covid 19 on prisoners
57In written submissions, Mr Melasecca had contended, relying on Ms Nguyen’s opinions, Verdins principles were engaged.
58Her opinions are based on her assessment you are suffering ‘extremely severe’ anxiety and depression.
59Your historical medical records show, in March 2017, your GP referred you for counselling for depression related to your marital problems. There is no evidence before me that your depression was then extremely severe.
60Your current medical records do not support Ms Nguyen’s assessment you are suffering ‘extremely severe’ depression and anxiety in prison.
61When I informed him:
·without further material, I was not prepared to accept your anxiety and depression meaningfully contributed to the cause of your offending, when, on your own admission, your gambling did,
·but I accepted your depression, which Dr Bach noted in 2017, against a disadvantaged background, in Vietnam and Australia, is to be taken into account in consideration of your personal circumstances
Mr Melasecca did not persist with his reliance on the Verdins principles
62The prosecution referred me to 4 Court of Criminal Appeal decisions, from 3 states, in commercial quantity trafficking cases. The sentences imposed ranged between 8 years and 18 years.
63Mr Melasecca submitted the offending in each of those cases was more serious than yours.
Prosecution submissions
64Mr Manning, who appeared for the Crown, submitted your offending, as the maximum penalty of life imprisonment demonstrates, was serious
65He accepted the methamphetamine was not yours but you obtained it from others. Nevertheless, in his submission, your moral culpability was high, considering you:
· you had the capability to source methamphetamine in a commercial quantity
· the value of the methamphetamine you sourced was considerable
· you used a phone, subscribed in a false name, and spoke in codes with Ngo, to conceal your offending and
· you persisted with it despite your daughter’s protest
66He accepted your guilty plea was made at the earliest opportunity and has high utilitarian value. He also accepted it is some evidence of remorse.
67He submitted you have not demonstrated insight into your offending considering you told the gambling counsellor, implausibly, you had been coerced into committing crime.
68He also submitted, relevant to your complaints of various ailments, investigations in 2019 and 2020 have not revealed evidence of any diagnosed medical condition.
Khoi Phan
69Dr Grace QC, who appeared on your behalf, relied on the following documents in support of his submissions:
1. Outline of plea submissions
2. psychological report, dated 27 August 2019, of Luke Armstrong
3. psychological report dated 27 August 2020, of Luke Armstrong
4. urine screen results
5. bundle of the prison programs certificates
6. Port Philip prison, Penhyn youth unit presentation (and hooker, youth development officer)
7. your letter of apology
8. a letter from your sister, Tram Phan
9. a letter from your sister, Jennifer Nguyen
10. a letter from your cousin, Dr Nate Tran
11. a letter from your partner, Hana Kim
12. a letter from your brother-in-law, Quang Tran (Jennifer Nguyen)
13. the letter from Tram’s partner, Johnny Hua
14. a letter from Jennifer’s best friend, Cindy Nguyen
15. a letter from your partner’s cousin, Ivy Liew
16. a letter from a friend, Vivian Nguyen
17. a letter from your partner’s mother, Xuan Lam
18. a letter from your friend Joseph Le Doan
70Dr Grace also adduced evidence from Mr Armstrong, Ms Hooper and your sisters.
Personal circumstances
71You were born on 18 July 1992 at Melbourne. You were 26 years old when you offended and are now aged 28.
72You told a psychologist, Mr Armstrong, your parents gambled compulsively from as early as you can remember. You said it was common for your parents to leave your sisters and you in the Crown Arcade for many hours while they gambled and when you were older, around 12 to 13, they would leave your sisters and you at home for many hours while they went to the Casino to gamble. You described your father as a hard man with very high expectations and your mother is disinterested and completely permissive.
73You attended local schools and completed Year 11. When you left school, you worked at McDonald's for 18 months and then at a warehouse for a year. You have also worked at Toll Transport and with your brother-in-law, an NBN contractor. You said, during 2018, you were trading crypto currency.
74You told Mr Armstrong, when you were 15 years old, you started binge drinking. By the time you were 18, you were drinking heavily and started using ecstasy and cocaine. When you offended you were using a cocktail of cocaine, cannabis, MDMA and alcohol.
75You told Mr Armstrong your mother pressured you to courier drugs for her and you agreed to courier and store drugs on behalf of an associate of hers.
76On Mr Armstrong’s assessment, you meet the criteria for stimulant use disorder.
77In Mr Armstrong's opinion, because your parents could not provide a nurturing, safe and predictable environment, you became dis-regulated and personality disordered.
78In his opinion, your mother “promoted an enmeshed and parentified relationship with (you).” Specifically, the roles between your mother and your were reversed, on a material and emotional level. You felt compelled to protect your siblings and your mother, whereas in contrast, your mother exposed the children to neglect and later crime. He said the needs of your mother became your priority and like many neglected children, you dissociated yourself from this experience and in doing so, sacrificed yourself for the needs of your mother and sisters.
79On his assessment, you qualify for a diagnosis of borderline personality disorder, secondary to extreme emotional neglect and deprivation.
80Since he assessed you in August 2019, he has undertaken 20 hours of counselling with you, in prison contact visits and then by video conferencing. He said when he reassessed you, your mental health had improved. You had acquired insight into your personality disorder, your substance problem had improved through enforced remission and you have developed strategies to act pro-socially. However, you are having problems adjusting to incarceration and you were feeling considerable stress and suffering situational depression.
81Given your positive response to treatment, your enforced drug remission, your remorse and family support, and your lack of previous criminal convictions he assessed you as a low risk of reoffending.
82In his opinion, when your mother asked you to deliver drugs, your 'experience of severe parentification, in combination with the dissociative aspects of a borderline personality, compounded by substance abuse both:
a. impaired your ability to exercise appropriate judgment and,
b. impaired (your) ability to make calm and rational choices”
83In evidence before me, he explained you idealised your mother and you held a distorted belief you had to do whatever she wanted, so as not to let her down.
84He said you are labouring under that belief when you agreed to deliver drugs for your mother and it would have persisted as your offending continued.
85He also said because of your borderline personality disorder, prison will weigh more heavily upon you than it would for a person without the disorder.
86Your sister, Tram, also gave evidence before me.
87She said the childhood of the three children was unstable because your parents had many issues with each other. You had all seen mother get hurt and you felt like parents to her. Your father was violent towards all of you, especially your mother and Jennifer. She said the three of you were always really protective of your mother. She confirmed there were many times when your parents left you unattended at the casino and then at home alone, while they gambled. She said your mother continued gambling over the years and, twice people and come to the house looking for your mother. On one occasion, Tram called you after someone had smashed a front window. By the time you got to the house, the intruders had returned in their car but drove away.
88She has visited you in prison when visits permit and talks to you almost daily by phone. She is proud of your achievements in gaol.
89In relation to your offending, she said not only did she warn your mother about getting herself involved in illegal activity, she warned you too.
90I heard evidence from Anne Hooker who is the youth development officer at Port Philip Prison. She designed the specialist Youth Unit for offenders aged under 25. You were put in that unit and then returned, at her invitation, as a gardening mentor and prison mentor. You became involved in the leadership program and the Doing Time Project. She said, when she first met you, you appeared 'quite immature and not very worldly .....in some ways quite naive'. Since you have been in the unit, she feels 'as though (you have) matured and… developed some really good positive leadership skills'.
91She described you as a 'really good mentor… very good in the garden and having an excellent work ethic'.
92She also said you have developed an ability to take responsibility for your mistakes. She said, while you definitely still have work to do, she is very happy with your progress.
93In your letter of apology, you wrote you are very sorry for what you have done and ashamed for the harm your offending has caused. You said you have benefited from Mr Armstrong’s counselling and find the leadership and employment skills you are learning in prison fulfilling.
94I read a number of references from other family members and friends who regard you highly and will continue to support you while you are in prison.
95Your sister, Jennifer, wrote you parents neglected the 3 of you when you’re young and, while she was effectively the guardian for both Tram and you, she feels she didn’t do a good job. She wants to give you all the support she can when you are released.
96Your partner described you as kind and gentle. She has continued to support you since your arrest and remand. Your brothers-in-law will also remain supportive.
97Dr Nate Tran is your mother’s nephew. He saw the difficulties in your upbringing. He described you as “affectionate and caring”. He said he visited you in jail shortly before Christmas 2019. You told him, “I’m done Nhat. I’m in here for a long time. I deserve it”
98You have strong support from your partner’s family and friends and your own friends who regard you as generous and kind.
99Everyone who provided a reference wrote you are very sorry for your actions.
Defence submissions
100Dr Grace acknowledged the offences for which you have pleaded guilty are very serious.
101However, he submitted:
·as you were “pressured by your mother into delivering the methamphetamine (charge 9) and
·you were “similarly pressured to allow your home to be used to store drugs and money.
·and none of the drugs or the cash the subject of the charges 10 and 11 on the indictment, were yours
·the gravity of your offending is reduced.
102He acknowledged the importance of general and specific deterrence, denunciation and just punishment, for offending of your type.
103However, he submitted the following matters allow for significant moderation in their application, namely
·your guilty plea – for its substantial utilitarian value
·your demonstrated remorse and contrition
·your outstanding behaviour in prison
·your good prospects of rehabilitation
·your mental health
·the hardship of Covid-19 restrictions on prison life
104In relation to your mental health, he submitted I should find your borderline personality disorder and substance abuse disorder contributed to your inability to exercise appropriate judgement at the time you offended to the extent your moral culpability is reduced. He also submitted those disorders make prison more onerous for you.
105In oral submissions, he submitted Verdins principles 1 – 5 were engaged.
106He submitted, to give appropriate prominence to your prospects of rehabilitation, as a relatively young offender, I should impose a longer than usual period for parole.
Prosecution submissions
107Mr Manning, who appeared for the prosecution, in written and oral submissions, submitted your offending was very serious, involving substantial quantities of methamphetamine and other drugs of considerable value. He accepted, on 18 December 2018, you delivered the methamphetamine in your mother’s direction and, while it was not clear, it was open to find you were storing the drugs and money, found at your unit, for others for some reward
108He accepted your borderline personality disorder impaired your thinking when you made the decision to help your mother with her drug trafficking and, consequently limbs 1 – 4 of the Verdins are engaged.
109He submitted whilst your impaired thinking moderates your culpability for trafficking on 18 December 2018, your culpability for your continued offending in January 2019, calculated and premeditated, as it was, and involving, as Mr Armstrong agreed, consequential thinking on your part, is less reduced.
110He submitted, while your positive response to your time in custody shows you are remorseful and motivated to rehabilitate, it also suggests prison has not been harder for you than prisoners without your personality disorder.
111He accepted your guilty plea was made at the earliest opportunity and has significant utilitarian value.
Analysis
Maximum penalty
112The maximum penalty for trafficking a commercial quantity of a controlled drug is life imprisonment.
113The maximum penalty for dealing with money believed to be proceeds of crime worth $100,000 or more is 20 years' imprisonment.
114They demonstrate, with ‘unmistakable clarity' the seriousness of your offending.
115The sentencing principles in relation to commercial quantity drug trafficking are well-established:
·The offender’s role and involvement in the enterprise, the sophistication of the enterprise and the amount of drugs involved are relevant to the assessment of the seriousness of the offending;
·Because of the difficulty in detecting the offending, and the great harm stemming from the distribution of illicit drugs in the community, significant weight is attached to the principle of general deterrence;
·For involvement at any level, an offender should expect a significant sentence of imprisonment;
·As a matter of common sense, it should be inferred, unless there is evidence to the contrary, the person who is trafficking drugs is doing so for profit;
·Prior good character is generally to be given less weight as a mitigating factor.
See R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238, at [72]followed in Nguyen v R; Phommalysack v R (2011) 31 VR 673 at [34] and Suky Lieu v The Queen [2016] VSCA 277, at [41]-[43].
Phung Tran
116Phung Tran, you supplied Kha Ngo with 1 kilogram of methamphetamine which he sold for $120,000, plus a delivery fee of $2,000 paid to your son.
117You knew Ngo was a major drug dealer and you were in a position to supply him with a commercial quantity of methamphetamine.
118The pure weight of the methamphetamine was 798.2 grams which is 1.06 times the threshold amount for a commercial quantity under federal law. It had a street value between 200,000 and $460,000.
119While you are to be sentenced for obtaining 1 kilogram of methamphetamine for Ngo, that he was looking for you to supply further amounts, indicated that you occupied a position of some influence in the commercial drug-trafficking world.
120There was a reasonable degree of organisation and sophistication to your offending which involved:
· covert meetings with Ngo, and
· the use of codes and a phone subscribed in a false name
to conceal your illegal activities.
121Additionally, you not only pressured your son to assist you in your drug trafficking, you also ignored your daughter’s appeal that you stop.
122You said offended to get money to pay your gambling debts and to get your rings back from a pawnshop. There are no extenuating circumstances which explain why you took the considerable risk and offended as you did. The common-sense explanation is you did so for the opportunity to share in the substantial profits of the illicit drug trade. Considering Michelle Tran’s profit on a kilo of heroin was $20,000 or more, your account that you received a commission of between $10,000 and $20,000 is credible.
123Your moral culpability is high.
124You are entitled to a significant sentencing benefit for your guilty plea, and its early timing.
125In Suky Lieu the Victorian Court of Appeal said:
“drug importation and drug trafficking charges are notoriously difficult and expensive to prosecute. Contested trials on those charges can occupy the time of the courts, and of the law enforcement officers, for a considerable period, and can be a substantial burden on the community. It is for these reasons that it is important that sentences imposed in cases such as this, after a plea of guilty, are such as to reflect the value of those plays as mitigating circumstances.” At [56]
126I accept your guilty plea and expressions of guilt and shame are evidence of some remorse.
127While your personal factors carry less weight for offending of this type, I have nonetheless further moderated your sentence to take into account:
·The adversity you faced when you fled civil strife in Vietnam;
·The suffering you endured in an abusive and violent relationship with the father of your two younger children;
·The burden of your various medical ailments you suffer and the Covid-19 related anxiety and concern in prison.
128I have also had regard to your prospects of rehabilitation which I assess as reasonable, taking into consideration your daughters’ strong support.
Khoi Phan
129Khoi Phan, you were trusted to safely store and deliver drugs, methamphetamine, heroin and cocaine, with a street value between 1.5 and 3 million dollars.
130On 18 December 2018, you delivered 1 kilogram of methamphetamine to Ngo. It was 1.06 times the threshold amount for a commercial quantity. It had a street value between 200,000 and 460,000 dollars.
131You were to deliver another 5 kilograms of methamphetamine, under Ngo’s direction on 8 January. You went to Ngo’s address to deliver the heroin and left when he was not there. Police had arrested him about 15 minutes earlier.
132You went home and police arrested you an hour or so later. You had the five bags of methamphetamine, which you were to deliver to Ngo and you were also holding 401 grams of pure cocaine and 218.6 grams of pure heroin. In all, you were holding methamphetamine, cocaine and heroin, 6.72 times the threshold amount for a commercial quantity under federal law.
133The cocaine had a street value between $240,600 and $320,000.
134The heroin had a street value between $175,000 and $348,000.
135The methamphetamine had a street value of between $1m and $2.3m.
136You were holding drugs with a street value between 1.5 and $3m and $101,150 cash which was the proceeds of crime.
137Three weeks earlier you had delivered a kilo of methamphetamine (1.06 CQ) with a street value of between $200,000 and $460,000.
Explanation
138You said, and your mother accepted, that you were pressured by her into delivering methamphetamine on 18 December 2018 and you were similarly pressured to allow your house to be used to store drugs and money.
139You asserted none of the drugs or the cash found at your flat was yours. The prosecution cannot prove they were.
140Your role was to deliver the methamphetamine at your mother’s direction on 18 December 2019 and you had stored the drugs found at your unit on 8 January for others to sell.
141There was some planning and premeditation to your offending. You were involved in making arrangements for the collection and delivery of cash and drugs, although you were unreliable at times. You also were trusted to conceal very large quantities of drugs and a large sum of money at your home for others.
142You are to be paid $2000 to deliver the kilo of methamphetamine on 18 December 2019. It is not clear what you would be paid for the failed delivery on 8 January or for storing the drugs and cash at your home.
143Given the substantial quantities and value of the drugs involved, the common-sense inference is you were involved for profit.
144Your moral culpability is high. However, it is to be moderated.
Mitigating factors
145Like your mother, you are entitled to a significant sentencing benefit for your early guilty plea.
146I accept you are genuinely remorseful.
147Considering
·your remorse,
·your exemplary behaviour in prison,
·your strong family support,
·your lack of any criminal history and
·your relative youth when you offended,
I assess you have good prospects of rehabilitation.
148I accept Mr Armstrong’s diagnoses of your borderline personality and stimulant abuse disorders.
149I accept his opinions:
·your borderline personality disorder relates to your emotional neglect and deprivation;
·In your relationship with your mother, parentification and enmeshment were consequences of that emotional abuse; and
·when you agreed to help you mother, your experience of severe parentification in combination with the dissociative aspects of your borderline personality, impaired your ability to exercise appropriate judgement and to make calm and rational choices.
150I also accept, as you were a heavy polysubstance abuser when you offended, your drug use was a contributing factor.
151I accept Verdins principles 1 to 4 are engaged to moderate your sentence, more so in relation to your offending on 18 December 2018, than your continuing offending in January 2019.
152In assessing the extent to which your moral culpability is reduced and general deterrence and specific deterrence are moderated, I take into account the extreme nature of your personality disorder. I also take into account there was some consequential thinking attached to your offending which continued over a 3 week period until your arrest.
153I have moderated your head sentence and minimum term to take into account the mitigating factors I have identified.
154Given your impressive steps towards your reformation over the last 21 months in custody, I am satisfied I should fix a minimum non-parole period which allows for a lengthy period of parole supervision to advance your rehabilitation in the community.
Parity
155I have already sentenced Lina Tran who pleaded guilty to one count of unrelated trafficking in a commercial quantity of a controlled drug, which involved one sale of a 1-ounce sample of heroin and three sales of 1 kilogram of heroin. Police seized the sample and two of the kilograms of heroin sold. The total pure weight of the intercepted heroin was 1610.9 grams which is 1.07 times a commercial quantity under federal law. She collected and delivered heroin under the direction and supervision of the Melbourne-based heroin syndicate head, Michelle Tran.
156I sentenced her to 10 years and six months' imprisonment and fixed a minimum non-parole period of seven years.
157While her offending involved more episodes of trafficking, her position as a 'runner' was lower in the drug trafficking hierarchy than yours, as a methamphetamine supplier, Phung Tran.
158I regard your culpability as similar to hers.
159Khoi Phan, you had a subordinate role, like Lina Tran, and your anticipated rewards were relatively modest however, Your offending, Khoi Phan, includes two charges of trafficking, the 2nd involving a substantially larger quantity of drugs than either Lina Tran or your mother had trafficked.
Comparable cases
160I have read the cases to which the prosecutor, Mr Manning referred. They have guided me in the identification and application of relevant sentencing principles and, making appropriate adjustment for the differences in the circumstances of the offending and the offender, I have used them as a yardstick against which to measure the sentences for each of you. (see R v Pham (2015) 256 CLR 550 per French CJ, Keane and Nettle JJ at [26]).
161Of the cases Mr Manning referred me to, Kleindyk [2016] WASCA 123 concerned a significantly larger quantity of a border control drug and the offenders role was substantially more than those of you. I consider the cases of Hoang Le [2017] NSWCCA and, to a lesser extent, Ruzehaji (2018) 132 SASR 302, to be broadly comparable to the offending of each of you.
Federal offending
162As federal offenders, you fall to be sentenced under Part 1B of the Commonwealth Crimes Act 1914 (Cth).
163I must impose a sentence that is of appropriate severity in all of the circumstances (s.16A (1)).
164In determining your sentences, I have taken into account the matters listed in s.16A(2), insofar as they are relevant and known to the court.
165I must not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate, (s.17A). No other sentence is appropriate in the case of either of you.
166Considering the seriousness of your respective offending, I must impose a sentence of imprisonment which, under federal law, requires me to fix a non-parole period.
167By the sentences I imposed, I must denounce the conduct of each of you, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
168Taking into account the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you,
Phung Tran
Charge 8
169Phung Tran, for the offence of trafficking in a commercial quantity of methamphetamine (charge 9), you are convicted and sentenced to 10 years and six months' imprisonment, which is to commence today.
170I fix a minimum non-parole period of seven years.
171I declare you have served 600 days of your sentence by way of presentence detention.
172Pursuant to s.6AAA of the Sentencing Act, I declare, but for your plea of guilty, I would have sentenced you to 13 years and six months' imprisonment and fixed a minimum non-parole period of nine years.
Khoi Phan
173Khoi Phan, on the charge of trafficking a commercial quantity of controlled drugs, methamphetamine, cocaine and heroin (charge 10), you are sentenced to 10 years and six months' imprisonment which is to commence today.
174The charge of trafficking in a commercial quantity of methamphetamine (charge 9), you are sentenced to eight years' imprisonment which is to commence on
28 October 2024. (18 months' cumulation)175On the charge of dealing with cash in the sum of $101,150 believed to be proceeds of crime, you are convicted and sentenced to two years' imprisonment which is to commence on today. (Concurrent)
176It is my intention that the sentence of 10 years and six months' imprisonment, imposed on charge 10, is your base sentence and 18 months of the sentence I have imposed on charge 9 should be served cumulatively on the
sentence on charge 10. I intend the sentence I have imposed on charge 11 should be served concurrently with the sentences imposed on charges 9 and 10.177I have endeavoured to achieve that measure of cumulation and concurrency by fixing the commencement dates that I have identified.
178I declare you have served 659 days of your sentence by way of pre-sentence detention.
179Pursuant to s.6AAA of the Sentencing Act, I declare, but for your plea of guilty, I would have sentenced you to 14 years imprisonment and fixed a non-parole period of 9 years.
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