Director of Public Prosecutions v Duong and Tran
[2015] VCC 1842
•14 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00795
CR-12-00796
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VAN CUONG DUONG |
| and |
| HIEP TRAN |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Melbourne | |
DATE OF TRIAL HEARING: | 13, 14, 15, 16, 17, 20, 21, 22 July 2015 | |
DATE OF PLEA HEARINGS: | 23 July and 27 November 2015 | |
DATE OF SENTENCE: | 14 December 2015 | |
CASE MAY BE CITED AS: | DPP v Duong & Tran | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1842 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – sentence following conviction at trial for trafficking in a large commercial quantity of cocaine and trafficking in a commercial quantity of heroin (Duong) - plea of guilty to trafficking in a commercial quantity of cocaine and heroin (Tran) – serious offending – need for immediate imprisonment – Duong: TES 8 years’ imprisonment with minimum of 5 years – Tran: TES 4½ years’ imprisonment with minimum of 3 ½ years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P D’Arcy | Office of Public Prosecutions |
| For the Accused/offender Duong | Mr J McQuillan | David Barese & Associates |
| For the offender Tran | Ms E Turnbull (plea) Mr M Brennan (sentence) | Turnbull Lawyers |
HIS HONOUR:
1 Van Cuong Duong, following an eight day trial, you have been found guilty by a jury of trafficking in a large commercial quantity of cocaine (charge 1), the maximum penalty is life imprisonment; and of trafficking in a commercial quantity of heroin (charge 2), for which the maximum is 25 years' imprisonment.
2 Hiep Tran, on a separate plea indictment, you have pleaded guilty to a single rolled-up count of trafficking in a commercial quantity of the same cocaine and heroin, for which the maximum penalty is 25 years' imprisonment.
3 I must now sentence each of you on behalf of the community.
Circumstances of offending
4 The circumstances of offending are as follows. On 11 July 2011, you were both under suspicion and a number of coded telephone calls between you were lawfully intercepted. An unknown person texted Tran’s mobile number to Duong that afternoon. Mr Duong, you called Tran and the two of you arranged to meet near a cinema at Highpoint Shopping Centre. You were both monitored by police at that location. You, Tran, were seen with three unidentified males while you were waiting for Duong to arrive. You, Duong, handed to Tran, either personally or by leaving them in his car, a large quantity of cocaine and heroin contained in a red plastic shopping bag. You both then departed the scene, as did the three other men who were clearly also involved in the enterprise. You, Tran, then drove to your home and parked your vehicle in the driveway.
5 Shortly after the exchange, there was a call between you in which it was agreed that the price of the drugs was $600,000. The prosecution is unable to say that you, Tran, actually gave Duong any money, but it is clear from another call between you about an hour after the exchange that money had in fact changed hands, either between you or others connected with the enterprise. In the call you, Duong, told Tran that there was a shortfall of $25,000 paid for the drugs, and you, Tran, agreed by responding “okay. Yeah, thank you” (call 846).
6 Later that evening police intercepted you, Tran, driving your second vehicle. A large quantity of cocaine was found in a red plastic shopping bag inside the locked glove box of your car. In light of the evidence of the phone calls and your joint movements at the shopping centre, I am satisfied beyond a reasonable doubt that the jury verdicts should be interpreted as meaning this was the same red bag exchanged between you earlier that evening. Police later found two blocks of heroin under the front passenger seat of the vehicle you, Tran, drove at the centre and parked in your driveway. They also found $28,000 cash in the master bedroom (the subject of an agreed forfeiture order).
7 Analysis of the seized drugs revealed that there was a total of 998.2 grams of cocaine in a mixture which was 80% pure (almost 1kg). This meant there was 798.6 grams of pure cocaine. A large commercial quantity of pure cocaine is not less than 750 grams. So the pure cocaine was 1.06 times or just over the large commercial quantity threshold. An undisputed valuation statement from a police expert indicated that 1 kg of cocaine with purity at the “upper most end” (as here) was worth $100,000 to $200,000 if sold wholesale in one lot, or worth $400,000 to $800,000 if sold in street level caps at 40% purity.
8 As to the heroin, there was a mixture of 701.7 grams at 80% purity, hence 561.4 grams of the pure substance. A commercial quantity of heroin is not less than 500 grams in a mixture or 250 grams pure. Hence, there was 1.4 times the commercial quantity in the mixture and 2.2 times the commercial quantity pure. Based on a 700 gram lot, this cocaine was valued at between $256,000 and $360,000 if sold wholesale, or $466,650 if sold in street level caps at 20% purity.
9 In each case you were trafficking because you possessed the drugs for sale.
Police and court process
10 You, Tran, were arrested on 11 July 2011 and made a no comment interview. You were charged and held in custody until 17 December 2012. You conducted a contested committal in May 2012; accepting possession but disputing you intended to traffick in a large commercial quantity of cocaine. In May 2013, you indicated your willingness to resolve the matter on the present basis but the Crown did not agree to do so until February 2015 when it conceded it may have difficulty proving such intent and you pleaded guilty to the present charge. There is now 673 days pre-sentence detention up to, but not including, today.
11 You, Mr Duong, were arrested the next day, 12 July. You made a no comment interview, you were charged and held in custody until 24 October, then bailed. You gave evidence at trial disputing possession of the drugs. You claimed you gave Tran some CDs. Following the verdicts on 22 July last, bail was revoked. There is now 250 days’ pre-sentence detention up to, but not including, today.
Duong – background and personal circumstances
12 I will now turn to your individual backgrounds and circumstances. First to you, Mr Duong. You are now 54. You have no relevant prior convictions. I disregard for present purposes the conviction and fine you received in 1992 for being present in a common gaming house, although your past gambling is relevant.
13 You were born in Vietnam in 1961. You were brought up in a simple rural lifestyle in the South with your parents and eight siblings. You were and are a close family. Regrettably in 1972, when you were 11, your father died fighting in the war. You completed the equivalent of Year 12 but you were prevented from getting a good job because of your father’s allegiances. You worked making brooms whilst your mother ran a family canteen. In 1985, aged 23, you escaped from Vietnam on a boat and ended up in a refugee camp in Malaysia for about nine months. This was after many attempts, two of which involved imprisonment. You ultimately arrived in Australia in 1986 and now all of your siblings live in Melbourne. Your mother also came here but died in 2013. None of your family have ever been in trouble. Initially, you worked in a clothing factory and then as a waiter and head waiter for 15 years.
14 You married and have two children who supported you at court. Your daughter 21 is studying youth work at university and your son 19 is training for the hospitality industry. He suffers from a significant learning disability which may be autism. By 2005, you had become particularly involved with gambling. You won $30,000 at one sitting, gave up restaurant work and became a full time gambler playing throughout Australia. You won some substantial amounts, but, as so often happens, you developed a gambling addiction. In 2008 you purchased a new home with some of your winnings but the next year your wife left you because you were never home and not caring for the children. You ultimately divorced and hardly spent any time with the children in Melbourne.
15 Following your release on bail in 2011, you returned to live in the family home with your children and re-established a meaningful relationship with them. Over the past four years you have successfully complied with a bail condition that you not attend Crown Casino. You have now lost all property you owned.
16 Since you were convicted by the jury, you have been employed in the prison laundry five days per week. You have had a long standing problem of Gouty Arthritis and occasional stomach upset from Gastritis but each of these conditions are well managed in prison with medication.
Duong – mitigating circumstances
17 The mitigating circumstances in your favour, Mr Duong, are that you are now a mature person who is to be treated as a first offender with no subsequent matters. Your early life was characterised by dislocation and struggle but having arrived in Australia as a young man, you worked hard and productively for many years. Ultimately you developed an addiction to gambling which compromised your family and social life. Your marriage broke up and you lost contact with your children. Once released on bail, you have re-established important family relationships and have been an industrious prisoner. You have family support and concern for your children.
18 Next, there has been considerable delay in this case, none of which was of your making. The trial was first listed in 2013 but there was no judge available. Then in May 2014 the matter was adjourned on the application of the prosecution, which was connected with a secret affidavit the contents of which were not disclosed to you, your legal representatives or me. Then the matter was due to commence in March this year but further adjourned because the Crown wished to conduct DNA testing using a new technique. This delay is all the more significant because there has been rehabilitation in the meantime.
19 I agree with your counsel that in all the circumstances you should be treated as having good prospects of rehabilitation and that it would be appropriate to impose a lengthier than usual parole period.
Tran – background and personal circumstances
20 Next, to you, Mr Tran. You are now 40. You were also born in South Vietnam, the fifth of seven children. In 1978, when you were 3, your family fled from your homeland as boat refugees. After a short time in a refugee camp in Indonesia you were sponsored as a family to come to Australia. Your siblings all live in Melbourne and have not been in trouble. Your mother is 69 and is a machinist. Your father passed away in 2008, having operated a small transport business from home. You dropped out of education around Year 9 after getting in with a bad crowd and drugs. By 17, you were heavily addicted to heroin.
21 Regrettably, you have had a disturbing and persistent criminal history. Between 1992, when you were 17, and 2008, when you were 32, you have been convicted or found guilty of 37 offences from 12 separate court appearances. There have been a number for assault and possessing weapons, reckless conduct endangering life, and many for dishonesty. Significantly, you have been convicted of drug involvement, first, in 1994 for using heroin, for which you received a community-based order; then in 2004 for possessing heroin and ecstasy. Whilst you were on bail for those matters, you trafficked heroin, for which you were sentenced in this Court in 2005 to 4 years' imprisonment with a minimum of 3 years. Hence, you have a prior conviction for the same offence you stand to be sentenced upon. I received the sentencing remarks in that case. You were in possession for sale of a mix of 88 grams of heroin worth about $90,000, which equated to about 1,800 street deals. You contested the matter at trial. The sentencing Judge said you had no drug problems and that your offending was profit-driven. He had little confidence that your prospects of rehabilitation could be described as good. How prescient his Honour was. You unsuccessfully appealed your conviction and sentence and the Court of Appeal considered that the penalty was well within range, if not merciful.[1]
[1]R v Tran [2007] VSCA 19.
22 In the midst of your early drug problem, you established a relationship from which you have a son, now 19; and a daughter, now 10. The birth of your son led to some reduced drug usage and the obtaining of an apprenticeship as a diesel mechanic, which you successfully completed. In 2001 your relationship broke down. You recommenced heroin use, culminating in the sentence you received in 2005. By that time, you had established another relationship with an accountant with no police history. Regrettably, in 2010 you returned to significant cocaine and heroin use, which you hid from your partner. It was said that you had run into debts which led to the present offending.
23 Whilst incarcerated, from July 2011 to December 2012, you were a model prisoner involved in the skills mentoring program, occupational courses for which you obtained certificates, and a peer education training program; you produced clean urine samples and were polite, cooperative and compliant.
24 Since your release from prison in December 2012, your rehabilitation continued. You worked at a panel shop, you assisted your partner to renovate her café and then worked there as a chef. You are a good hardworking, honest employee. References from those who know you well indicate you are a decent and trustworthy person who assists others in need and who is community minded. They speak of your remorse and regret for your offending. Your partner says that you are a great mentor and a very good father to your two children. There are 3 additional clean urine screens.
Tran – mitigating circumstances
25 There are a number of mitigating circumstances in your favour. The first is that you also come from an early family background of dislocation and struggle. Unfortunately your schooling was cut short, probably connected with bad associates and drug-taking. You completed an apprenticeship and worked hard but ultimately your drug trafficking led to significant incarceration.
26 Since your arrest, you have demonstrated commendable rehabilitative tendencies. The delay in the proceedings which I have explained is in your favour and all the more significant given your rehabilitation in the meantime.
27 You have pleaded guilty to the offence and offered to do so at the earliest time. By that plea, you have saved the community significant time, cost and inconvenience. Hence, your plea has been of utilitarian benefit and served the ends of justice, and for that alone there should be a significant discount in penalty. I am satisfied that your plea is also associated with remorse, regret and insight into the seriousness of your offending. You have family support and concern for your children.
28 It is not possible for me to reach the conclusion that you have positive prospects of rehabilitation, as submitted, because you have significant past involvement with drug offending. You have truly escalated that situation with the present matter and I remain guarded as to your prospects of rehabilitation.
Other sentencing considerations
29 There are, of course, other important sentencing considerations. The first is that I must have regard to the maximum penalties provided for your offending. These figures stand as the yardstick for the worst possible cases and clearly neither of you fall into that category.
30 I must also have regard to current sentencing practice. I have considered recent Sentencing Snapshots for these offences but it is unnecessary in the circumstances to analyse this material further.[2] Ultimately, every case, including your individual cases, must turn on their own facts and circumstances. No comparable cases were provided to me.
[2]Sentencing Advisory Council, Sentencing Snapshots of August 2014, for trafficking in a large commercial quantity of drugs (No. 163) and trafficking in a commercial quantity of drugs (No 162).
31 Obviously, the amount of drugs you each trafficked was very significant.[3] You, Mr Duong, trafficked just above the threshold for a large commercial quantity of cocaine and 2.2 times the commercial quantity for pure heroin. You, Mr Tran, are to be sentenced on the basis that you trafficked a commercial quantity of each drug at the same time, at the upper end of the commercial range for cocaine and just above the commercial threshold for heroin.
[3]See the High Court’s statements last November 2015 as to the significance of the quantity of a relevant drug in The Queen v Pham [2015] HCA 39, [36] and [45].
32 Additionally, you both dealt in a very valuable commodity - for the purchase price of $600,000 there was a potential maximum sale price of $1.27m, a profit of more than 100%. Your offences are serious. Your possession of the drugs for sale meant that you both anticipated the drugs would ultimately be released into the community. Trafficking those insidious substances into the community is a social evil which strikes at the very foundations of our democratic society. Much harm and tragedy comes from the consumption of such drugs.
33 Whilst I must have regard to the mitigating circumstances in your favour and the desirability of achieving your rehabilitation, which is in your interests and that of the community, the principles of general deterrence, protection of the community and just punishment are all very important here.In your case, Mr Duong, you are not to be punished for contesting the matter, but you have shown no remorse. On your conviction and sentence to imprisonment on charge 1, you are to be sentenced as a serious drug offender on charge 2. This brings into play the operation of s6D and s6E of the Sentencing Act 1991, however, the prosecution, correctly in my view, does not seek a disproportionate sentence, nor an increased sentence to protect the community nor full cumulation of the sentence on charge 2. The totality and proportionality principles should generally apply in your favour as you were trafficking both lots of drugs at the same time, but there should be some cumulation on charge 2 because it concerns a different offence and a different drug. A sentence of imprisonment must always be a disposition of last resort and I am conscious you have never been sentenced to imprisonment before.
34 It was submitted on your behalf, Mr Duong, that whilst I should conclude that you were enriched in some way by your involvement in this matter, it cannot be concluded what form or manner that enrichment consisted of, particularly that I could not conclude that you were involved for financial gain. It was but faintly speculated by your counsel that your involvement may have resulted from a desire to help another unidentified person or even because you were “love struck” for a woman involved. I made it clear I would not accept that in the absence of evidence. I cannot make such a mitigatory finding.[4] You gave no initial explanation to police; and although you were not obliged, you chose not to give or call evidence at your plea hearing. Of course, at trial you gave a sworn account to the jury which was disbelieved. This was hardly surprising given the contents of the coded conversations and the implausible story you mounted that you merely gave Tran some CDs he might like. In the real world, drug traffickers are usually involved to make money by their involvement. The profits of such trafficking are immense and traffickers do not usually risk exposing themselves as you did to the penalty of life or 25 years’ imprisonment without making a financial gain. You were involved in discussing and fixing the price for the purchase of the drugs you supplied and you played an authoritative role in the enterprise. I am satisfied beyond a reasonable doubt that you were not just a mere courier and that your involvement was for financial gain, but it is impossible for me to reach a conclusion as to what that actually amounted to. I agree with the prosecution submission that you bear an onus on the balance of probabilities to demonstrate a lesser mitigatory involvement than that. I do agree, as the prosecution conceded, that I ought to fix a longer parole period than might be usual, given that you are to be treated as a mature first offender.
[4]Dao v The Queen [2014] VSCA 93, [17], per Nettle JA (with whom Redlich and Priest JJA agreed).
35 Turning to your position, Mr Tran, it is clear that, comparatively, you are to be treated differently and more leniently than your co-offender. You do not face a large commercial quantity trafficking charge, you only face one charge (albeit that it concerns two separate drugs), and you have pleaded guilty. However, I reject the submission that you were a “mere courier” of the drugs. It was suggested by your counsel that - you were working with others who told you to park your vehicle in the shopping centre; that the drugs would be put into your car; that they were to be collected at a later time, including that you left a second set of keys in your letter box so that other offenders could access the heroin in your parked vehicle; and that you were motivated to be involved because of a debt of $50,000. I cannot make such a mitigatory finding.[5] Of course, you provided no initial explanation to police of your involvement even though you were caught red-handed and, whilst there was no obligation to do so, you gave and called no evidence on the plea hearing to prove any such mitigatory matters. The submission that you played a relatively peripheral role, that you were just a “cog in the wheel” as it was put, is quite at odds with the evidence that you engaged in direct discussions with Duong to arrange the meeting at the shopping centre; that you were waiting for him with the three other unidentified persons; that, following the exchange of drugs - which you didn’t then hand over to others involved - you engaged in coded conversations with Duong in which the purchase price was settled and you accepted the purchase moneys were $25,000 short; and that you then obviously split up the two lots of drugs and had the cocaine in one vehicle and the heroin in the other. All this points to you having a much higher, responsible and trusted involvement than acting as a mere courier or bit player.
[5]See footnote 4.
36 Another feature is that you have a bad criminal history with past involvement with drugs and significantly, drug trafficking. Clearly in your case there is a need for a sentence that will specifically deter you from such future offending.
37 It was submitted that given the period of about 22 months' pre-sentence detention, coupled with the significant delay and your rehabilitative effort, it was appropriate to ignore PSD and impose a gaol penalty of two years or less and to then release you on a community correction order. Particular reliance was placed on the guideline judgment of Boulton[6] which emphasised the punitive and rehabilitative nature of a CCO disposition. It is unnecessary for me to articulate the Court’s well-known and oft-cited observations in that regard.
[6][2014] VSCA 342. Reliance was also placed on Sherritt v R [2015] VSCA 1 at [46]; and McAleer v R [2015] VSCA 4 at [23] – [25].
38 The prosecution argued that your offending was far too serious to adopt that approach. I agree. As the Court of Appeal recently said, “…it should not be thought that Boulton offers a ‘Get Out of Jail Free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.”[7] Given your drug prior convictions I am not satisfied that, as submitted, a longer than usual parole period ought to be fixed in your favour.
[7]Hutchinson v R [2015] VSCA 115, [17], per Priest JA, with whom Ashley JA agreed. This passage was recently cited with approval by the Court of Appeal in Ellis v R [2015] VSCA 320, [42], per Whelan JA and Cavanough AJA.
39 Of course, I accept that imprisonment must be imposed as a last resort and that any sentence imposed must respond to the principle of proportionality and I must avoid the passing of crushing sentences upon each of you.
40 Finally, on behalf of the community I strongly denounce your offending.
Sentence
41Mr Duong , please stand up. On both charges, you are convicted. On charge 1 you are sentenced to 7 years' imprisonment. On charge 2 you are sentenced to 4 years' imprisonment. The sentence on charge 1 is the base sentence. You have been sentenced as a serious drug offender on charge 2 and that will be noted in the records of the Court. I order that 3 years of the sentence imposed on charge 2 be served concurrently upon the sentence imposed on charge 1 (that is an effective cumulation of 1 year).
42 The total effective sentence is 8 years’ imprisonment. I order that you serve a period of 5 years’ imprisonment before which you shall not be eligible for release upon parole.
43 I declare that the period of 250 days’ pre-sentence detention be treated as having already been served by you on that sentence and direct that that declaration be entered into the records of the Court.
44 I shall make the forfeiture order which is sought by the prosecution and consented to by you. Please sit down for the moment. I hand that order down.
45 Mr Tran, please stand up. On charge 1 on your indictment, you are convicted and sentenced to 4½ years' imprisonment. I direct that the period of 3½ years' imprisonment be served by you before which you shall not be eligible for release upon parole.
46 I declare that the period of 673 days’ pre-sentence detention be treated as having already been served by you on that sentence and direct that that declaration be entered into the records of the Court.
47 But for your plea of guilty, I would have sentenced you to 5½ years' imprisonment with a minimum of 4½ years' imprisonment.
48 I will make the forfeiture and disposal orders which are sought by the prosecution, to which there is no objection. Please sit down for the moment. I hand those orders down.
49 I ask counsel whether there are any matters arising?
50 COUNSEL: No, your Honour
51 HIS HONOUR: Mr Duong and Mr Tran, you need to go with the prison officers now. Thank you, please remove the offenders. [Offenders removed.]
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