Director of Public Prosecutions v Lee
[2018] VCC 1674
•12 October 2018
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for PublicationAT MELBOURNE
CRIMINAL JURISDICTIONCR 17-00123
CR 17-00619
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS V HUONG THANH LY
HOANG THI LEE---
JUDGE: HER HONOUR JUDGE WILMOTH WHERE HELD: Melbourne DATE OF HEARING: 14 September 2018 DATE OF SENTENCE: 12 October 2018 CASE MAY BE CITED AS: DPP v Lee MEDIUM NEUTRAL CITATION: [2018] VCC 1674 REASONS FOR SENTENCE
---Subject: Criminal law - sentence
Catchwords:
Ly pleaded guilty to one charge of importing a commercial quantity of a border controlled drug – heroin involving single parcel importation of heroin - approx $877,000 - other co-accused also pleaded guilty – parity - pathological gambling addiction - borrowed money and indebted to family and friends – vulnerable - no prior criminal history - major depressive disorder – delay - general deterrence important considerations.
Lee pleaded guilty to one charge of attempting to import a commercial quantity of a border controlled drug – heroin - Vietnamese refugee - limited drug history - diagnosed with major depressive disorder – post traumatic disorder - Verdins applies - low risk of reoffending- parity.
Cases Cited: Verdins v R [2007] VSCA 102
Sentence: Ly : 4 years imprisonment with 2 years 3 months to serve before being eligible for parole;
Lee 4 years imprisonment with 2 years 6 months to serve before being eligible for parole---
APPEARANCES:
Counsel Solicitors For the Commonwealth Director of Public Prosecutions Mr C. Mandy CDPP For Accused Lee Mr J. Jassar Theo Magazis For Accused Ly Mr I. McLachlan (Plea)
Ms J. Caligiore (Sentence)Blair Criminal Lawyers HER HONOUR:
1Huong Thuy Ly has pleaded guilty to one charge of importing a border controlled drug, namely heroin, in a commercial quantity. It occurred on or about 2 November 2015 with the co-accused, Hoang Thanh Lee, and with others, namely Dinh Cong Tran and Thien Thi Tran.
2Hoang Thanh Lee has pleaded guilty to one charge of attempting to possess a border controlled unlawfully imported drug, namely heroin, in a commercial quantity by aiding, abetting, counselling or procuring the commission of an offence by Thien Thi Tran. This was between 4 and 7 December 2015.
3Dinh Cong Tran and Thien Thi Tran were sentenced in March 2017. The maximum penalty for these offences is life imprisonment.
4The prosecution opening describing the events of the importation and the involvement of the accused and co-accused is a very long document and rather than repeat it all it will be appended to these sentencing remarks and I shall only refer to the following matters briefly.
5The offending relates to a single parcel importation of heroin which arrived in Australia on or about 2 November 2015. The total quantity imported was 3988.3 grams or almost 4 kilograms. The total estimated value was approximately $877,000.
6The two co-accused, Ms Tran and Mr Tran, were charged and pleaded guilty in relation to their involvement with the importation. Dinh Cong Tran's and
Ms Ly's roles occurred early in the importation process in the lead up to and during the arrival phase.7Ms Thien Tran's and Mr Lee's participation occurred later during the delivery phase.
Ms Ly’s role
8Ms Ly, who had previously had a relationship with Mr Dinh Tran coordinated the sending of the consignment from overseas and communicated that address to a third unknown person who ultimately arranged for the shipment.
9She provided details of the consignment to Mr Dinh Tran and she communicated with him as to updates about its progress while it awaited clearance. He provided the delivery address to her, taking part in these arrangements between about 25 October and 6 December 2015.
Mr Lee’s role
10Although Mr Lee pleaded guilty and by doing so has accepted the prosecution's summary, according to Mr Jassar of counsel, who appeared for him, his role was open to interpretation. Certain inferences have been drawn by the prosecution as to his role, including what he knew about the importation.
11It is put by the prosecution and accepted that Mr Lee provided advice and encouragement to Ms Thien Tran about the imminent arrival of the consignment, and told her not to tell Dinh Cong Tran about the arrival. Mr Lee told Ms Tran to wait until Mr Tran came up with a plan about receipt of the consignment.
12He received payments from Ms Tran before and after the arrival of the consignment, and although there is no evidence as to any link between those payments and the consignment, they were made in the context of the rest of his involvement.
13Mr Lee gave Ms Tran directions about getting the consignment into a house and questioned her as to whether all parts of the consignment had arrived. He provided directions to Ms Tran to test the substance for quality and received updates from her about the impending delivery and subsequent collection of it.
14Mr Jassar submitted that much or indeed most of this advice was minimal and that he only knew about the importation after Ms Tran told him about it, she being his girlfriend, and that his role was only to support her.
15Indeed Ms Tran accepted delivery of the consignment at the delivery address in St Albans, informed others about it and unpacked it. She verified its contents and prepared it for further distribution, having discussed it with Mr Lee.
16In fact the consignment was intercepted on 2 November, having been shipped from Thailand and the Australian Federal Police delivered a substituted consignment on 7 December. Ms Ly and Mr Dinh Tran flew to Melbourne and once here they exchanged details about the tracking of the package over several days.
17On 18 November the informant went to the delivery address and left there a delivery notice from the shipping company UPS for the consignment. On
4 December Ms Thien Tran called Mr Lee who was overseas and they discussed the delayed delivery.18Mr Lee told her that its arrival was imminent and he advised and encouraged her in effect to be calm and patient. That morning a covert operative told Vin Trang Nguyen, a person who has not been charged in relation to this matter, that the consignment would be delivered the following Monday at around 9 am.
19Mr Nguyen told Ms Tran shortly afterwards and she in turn advised Mr Lee. She told him he was the first person to know and they discussed what to do with the consignment. On 7 December the Federal Police began surveillance of Ms Tran at the delivery address in Moffat Street.
20She spoke with Mr Lee, noting that by 9.18 am the package had still not arrived. However, it was delivered at 9.22, comprising three large boxes. She advised Mr Lee of this and she went to her home. Mr Lee asked her if all three boxes had arrived and gave her directions regarding how to deal with it.
21Later in the day they discussed their disappointment at the quality of the contents after Ms Tran had tested it finding it had a "funny" aftertaste and no smell at all. Soon afterwards the Australian Federal Police executed a search warrant at the address and arrested Ms Tran.
22Mr Lee's involvement as disclosed by the intercepted telephone calls on which the case is based was more than peripheral. He had knowledge of the consignment and took a firm position on what Ms Tran should be doing and was acting jointly with her in a trusted role.
23Nonetheless his role was limited to communication with Ms Tran during the last few days of the enterprise. Mr Lee was located and arrested on 18 August 2016. Ms Ly was located and arrested in New South Wales on 10 November 2016.
24At a contested committal hearing in early 2017 Ms Ly and Mr Lee pleaded not guilty and the matters proceeded by straight hand up brief. A trial was listed for November 2017 but matters resolved with both accused being arraigned and pleading guilty. The plea was listed for 19 April 2018 but a judge was not available, in addition to which Mr Lee foreshadowed a change of plea application, although that did not occur. The matters were adjourned for a plea hearing on 14 September.
Parity
25Parity is a consideration common to each offender and is an important aspect of the sentences in this case. Dinh Cong Tran pleaded guilty to importing a commercial quantity of heroin and was sentenced to four years' imprisonment with a non-parole period of two and a half years.
26But for his undertaking pursuant to s.16AC of the Crimes Act to assist the authorities a sentence of eight years with a non-parole period of five years would have been imposed. Ms Thien Thi Tran pleaded guilty to attempting to possess a commercial quantity of heroin and was sentenced to eight years imprisonment with a non-parole period of five years.
27In the resulting appeal from Ms Tran's sentence the Court of Appeal dealt with the issue of parity by drawing little or no distinction between the two offenders, describing the charges as being essentially similar given their respective roles, with each charge carrying a maximum penalty of life imprisonment.
28The undertaking by Dinh Cong Tran was the only real differentiating factor. Accordingly both sentences provide a yard stick for determining the appropriate sentences for Ms Ly and Mr Lee, taking into account their individual roles and circumstances, and this was the view shared by the parties in this case. I was referred to a number of other cases but they were all able to be distinguished and should give way to the direct relevance of the sentences of the co-accused by His Honour Judge Montgomery.
Ms Ly’s personal background and circumstances
29Ms Ly, I now turn to your personal background and circumstances. Your involvement as an intermediary between Dinh Cong Tran and a person in Sydney ceased on 6 November. It was a very limited role. You were in a relationship with Mr Tran and he directed you to arrange the importation of the drugs, as I described earlier.
30You did not have any ownership of or any interest in the drugs and your involvement ceased when your relationship with Dinh Tran ceased. He was professing to help you in a time of trouble and you did as he directed. You were not involved in the progress of the imported drugs, nor their delivery or unpacking, nor in payment or further distribution.
31But at the time you had amassed considerable gambling debts arising from a gambling addiction, hence your involvement in arranging the importation through Mr Tran. You are aged 48, the mother of two adult daughters, both living in Sydney where you live. Their father, your former husband, also lives in Sydney and the four of you remain on close terms. That marriage had ended after ten years and sometime after that you had met a man in Vietnam who sponsored you to come to Australia. You married in 2001 but separated a few years later when you discovered that your husband had been in another relationship for some years.
32You completed secondary school in Vietnam, despite your family being poor and often short of food, with civil unrest often dominating and making life difficult. Your siblings and elderly parents remain in Vietnam. You are socially isolated in Australia with no close friends and only your immediate family for support.
33You ran a small business in Vietnam selling cloth and in Australia you worked in various unskilled jobs. You do not have any problems with alcohol or illicit drugs and you are in good health, although suffering from lowered mood and depressive symptoms due to being charged with this offence and having to face going to prison.
34You have had a gambling problem since 2007 when you first won some money using a poker machine. That gradually led to an addiction by about 2014. Friends and associates lent you money to gamble and so you became indebted to them. During those years you would gamble most days and you incurred debts eventually amounting to between $60,000 and $70,000. You continued to gamble hoping to repay the debts. When assessed by a forensic psychologist, Kathryn Wakeley, in April this year, you were found to be at the highest possible range of gambling involvement indicating in Ms Wakeley's words, "…negative consequences and possible loss of control".
35You met Mr Dinh Tran through friends who told him of your difficulties. He offered to assist you financially by setting up a small café or restaurant for you. By this time you had become romantically involved with him and you did what he told you to do. He told you not to ask questions but to do what he said.
36You came to Melbourne with him where you found he had another girlfriend, Thien Tran, and it was apparent he had lied to you. It was some time before you knew that the police were looking for you and you now feel you were taken advantage of by him and that you were too quick to trust him.
37Of course your pathological gambling had made you vulnerable to exploitation of this type. You expressed your remorse to Ms Wakeley saying you understood the harm done to people by drugs and you were very sorry for your behaviour.
38You do not have any prior criminal history and Ms Wakeley observed that you do not display any anti-social attitudes or beliefs and have generally led a stable life until gambling took hold. Ms Wakeley's opinion was that your prospects for rehabilitation are good if you can address your gambling through a treatment program, with management of symptoms of depression and support generally within an appropriate community organisation such as one comprising Vietnamese and Australian women.
39It seems that psychiatric treatment has been followed up and you are being appropriately medicated for a major depressive disorder, according to a letter from your treating psychiatrist. This enlivens limb five of the decision in Verdins and so I take into account that the state of your mental health will make the experience of prison more burdensome for you than for others, added to the fact that this will be your first time in prison apart from some time on remand.
40A lenient sentence is warranted not just by this circumstance but also because you have pleaded guilty and avoided the expense and inconvenience of a trial and you deserve credit for that by means of a discount on your sentence. A further mitigating factor to be taken into account is that of delay. The trial date was listed for November 2017 but due to no fault of yours a plea date could not be arranged until 14 September.
41You have provided an affidavit in which you explained how you became involved, just as you told Ms Wakeley. You expressed your sorrow and shame for your actions in the affidavit and added that you are committed to your daughters and your baby grandson and you will not let yourself be put in the same positon again.
42Your elder daughter, with whom you are living, has written to the court confirming this commitment and that you are no longer gambling. She added that the plan was for you to take care of your grandson when his mother returned to work to assist the family's financial struggles. He suffers from a chronic disease and so his parents are not comfortable for him to attend childcare. Instead they were relying on you.
43Your younger daughter has also written to the court confirming that gambling has been the only cause of your difficulties and that in every other respect you were a law abiding and honourable person who instilled in her daughters the dangers of drug use.
44While general deterrence is a most important sentencing principle in your case, the need for specific deterrence is less significant because of your good prospects for rehabilitation and the other social aspects of your circumstances, particularly your close family commitments which make re-offending unlikely.
45Your role was very limited but it played a part in the plan to distribute a considerable amount of drugs into the community with great potential for harm and the penalty I impose should reflect that.
46Mr Lee's role was similar in that respect. The other accused who were sentenced last year played far greater roles and had differing personal circumstances and I have taken those matters into account in determining your sentence.
47Would you stand now please, Ms Ly? I sentence you to four years' imprisonment. I order that you serve two years and three months before being eligible for parole.
48You have spent 81 days in pre-sentence detention and I declare that time to be reckoned as already served. I shall cause that to be noted on the court record.
49If you had pleaded not guilty I would have sentenced you to six years with a four year non-parole period. Be seated please, Ms Ly. Mr Lee, you can be seated for now.
Mr Lee’s background and circumstances
50Mr Lee, you are aged 57, born in Vietnam and one of 16 children of your parents growing up in rural poverty. Your father died when you were in your 20s and your mother is still alive living in Vietnam, as do most of your siblings. Several of your older brothers had died in the war.
51With your wife and children you fled from there in 1989 due to threats arising out of political opposition to the government. Your journey was hazardous, involving pirate raids and the capsizing of the vessel in which you travelled from Malaysia to Indonesia. You remained in an Indonesian refugee camp for four years. You eventually became an Australian citizen in 2000.
52Your first wife, your two children and three grandchildren all live in Australia and you are close to them. You have a six year old son from your second marriage but you are not in contact with him or his mother since your incarceration, a matter which has been very distressing for you.
53In Vietnam you had trained as a mechanic but in Australia you worked in various industries, eventually running a restaurant. In recent times you have been running restaurants in Vietnam and visiting Australia from time to time. Those restaurants have been sold following your incarceration with the result that you now have no assets and very little money.
54In 2003 you were convicted of trafficking and possessing heroin and were sentenced to a Community Based Order for six months. That was 15 years ago and it can be inferred from the penalty imposed that it was not a matter of great significance. I place little weight upon it in determining your sentence for this matter.
55In prison you have received limited visits from family members and you have taken English lessons and worked as a unit billet. Recently you were assessed by consultant psychologist, Mr Ian Mackinnon, who diagnosed mild anxiety and depression disorder linked to your current predicament. You told Mr Mackinnon that you disputed some of the allegations against you but you accepted that you had to plead guilty and expressed what was described as limited remorse, acknowledging that illicit drugs are a serious problems in the community.
56Mr Mackinnon thought that your prospects for rehabilitation depend on how you will be able to overcome the disadvantages of isolation in prison and being without a home to go to on your release. Neither drug nor alcohol abuse has been a problem for you apart from a short period of heroin use at the time of the breakdown of your first marriage over ten years ago.
57A few months ago you were assessed by another psychologist, Ms Carla Ferrari, who diagnosed a major depressive disorder of moderate degree and post-traumatic stress disorder. She thought your current extreme levels of distress are linked to your experience in custody and that you are likely to find serving a prison sentence more traumatic than others would and that this would be exacerbated by the language barrier. She described you has having a predisposition to mental health issues as a result of genetic and environmental factors including your upbringing during the Vietnam war.
58It is clear that limb five of the decision of Verdins[1] applies here, meaning that the impact of imprisonment on your vulnerable mental health should be taken into account in determining the length of your sentence.
[1] Verdins v R [2007] VSCA 102
59This predisposition may have led to a deteriorated mental state at the time of the breakdown of your second marriage following which you became involved romantically with Ms Tran leading to the involvement in the drug importation, influenced also by unemployment and financial hardship.
60Ms Ferrari considered you to be at low risk of reoffending as a man who does not hold any criminogenic beliefs and with a supportive family both here and in Vietnam. Based on her reading of the prosecution summary and what you told her Ms Ferrari stated that it appeared your involvement in the importation was opportunistic via your relationship with Ms Tran with whom you no longer have any contact.
61The focus of the sentencing task in this case is the quantity of the drugs involved and the need for the sentence to act as a deterrent to others. The potentially harmful effects on the community of the distribution of large quantities of drugs of dependence are obvious. This is a more important aspect of the sentence than the need to deter you from future offending, although that should carry some weight too.
62You pleaded guilty and you deserve a discount on your sentence for having avoided the expense and inconvenience of a trial and I take that into account. I also accept it as an indication of remorse which you have expressed elsewhere as well.
63As to parity your role is much lower than either of the co-accused sentence last March and comparable, although different, to that of Ms Ly.
64Your counsel submitted that you should be released forthwith on a recognisance release order having already spent sufficient time in custody. However, I take the view that the head sentence should be greater than the three years permitted by s.20 of the Commonwealth Crimes Act.
65Would you stand now please, Mr Lee? I sentence you to four years' imprisonment and I order that you serve a minimum period of two years and six months before being eligible for parole. You have spent 785 days in pre-sentence detention and I declare that time to be reckoned as already served. I shall cause that to be noted on the court record.
66If you had pleaded not guilty I would have sentenced you to six years' imprisonment with a non-parole period of four years. Be seated for the moment please, Mr Lee.
67Mr Mandy, I have not taken note of any ancillary orders. Are there any?
68MR MANDY: No, Your Honour, there aren't any sought, thank you,
Your Honour.69HER HONOUR: Is there anything I have omitted or neglected?
70MR MANDY: Not from my hearing of Your Honour's reasons.
71HER HONOUR: Thank you, Mr Mandy. Mr Jassar?
72MR JASSAR: No, Your Honour.
73MS CALIGIORE: No, Your Honour.
74HER HONOUR: Thank you. Officers, you may take Mr Lee and Ms Ly now, thank you.
75MR JASSAR: Your Honour, may I seek some indulgence with Ms Ly being here so that the interpreter is here? I won't be able to communicate with him downstairs. The English is very limited.
76HER HONOUR: I see. I'll wait here therefore while you speak to him briefly. I'll wait on the Bench. Would you like to approach the dock now?
77MS JASSAR: Thank you, Your Honour.
78MS CALIGIORE: Your Honour, I'd also be grateful for that opportunity.
79HER HONOUR: Yes, certainly, I'll permit that.
80MR JASSAR: Thank you for that opportunity, Your Honour.
HER HONOUR: Thank you, Mr Jassar. Mr Lee can go now, thank you, officer. Adjourn the court please.
-- -
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
IN ITS CRIMINAL JURISDICTION
CR17-00123
CR17-00619
THE QUEEN
v
HUONG THUY LYHOANG THANH LEE
Prosecution Opening For Plea -
Date of document: 13 September 2018
Filed on behalf of: Commonwealth DPP
Prepared by: Anthony Albore
for and on behalf of the Solicitor’s Code: 9570
Director of Public Prosecutions (Cth) Telephone: (03) 9605 4333
16th Floor, 460 Lonsdale Street Facsimile: (03) 9670 4295
Melbourne Vic 3000 Reference: MC15100823C&D
CHARGES
Huong Thuy LY
1.Huong Thuy LY has pleaded guilty to importing a commercial quantity of heroin on 2 November 2015 on a joint commission basis together with Dinh Cong Tran and Thien Thi Tran contrary to section 307.1(1) of the Criminal Code (Cth) by virtue of subsection 11.2A of the Criminal Code (Cth).
Hoang Thanh LEE
2.Hoang Thanh LEE has pleaded guilty to aiding, abetting, counselling or procuring the commission of an offence by Thien Thi TRAN between 4 December 2015 and 7 December 2015, namely attempting to possess a commercial quantity of heroin contrary to subsection 307.5(1) and subsection 11.1(1) of the CriminalCode (Cth) by virtue of subsection 11.2(1) of the Criminal Code (Cth).
3.The offending relates to a single parcel importation of heroin. That parcel arrived into Australia on or about 2 November 2015. The total quantity of heroin imported was 3,988.3 grams.
CO-ACCUSED
4.The police identified and charged two further co-accused in relation to this investigation. The remaining two co-accused are Thien Thi TRAN (female) and Dinh Cong TRAN (male). Both Mr Tran and Ms Tran have pleaded guilty in relation to their involvement with the importation.
OVERVIEW OF OFFENDING
5.Mr Dinh Cong Tran’s and Ms Ly’s roles in the importation occurred mainly earlier on, that is, in the lead-up to, and during the arrival phase. Ms Thien Tran’s and Mr Lee’s participation occurred later, namely, during the delivery phase.
6.A significant length of time (approximately a month) transpired between the consignment’s arrival into Australia and the consignment’s ultimate delivery.
RELATIONSHIPS BETWEEN THE CO-ACCUSED
7.Evidence obtained by the AFP in the course of the investigation reveals the following in relation to the relationships between the various accused:
a. Ms Thien Tran had a previous relationship with Mr Dinh Tran;[2]
b. Ms Thien Tran was in a current relationship with Mr Lee;[3] and
[2] ERI – Dinh Cong TRAN, Digital Evidence Package – Photos retrieved from Mr Dinh Tran’s phone. Mr Tran said at committal that he was friends with Ms Tran – Committal TT 17.14
[3] CSN24, p. 47 – Ms Thien Tran asks Mr Lee if he was tired of being with her
c. Ms Ly had a previous relationship with Mr Dinh Tran. [4]
[4] ERI – Dinh Cong TRAN and Digital Evidence Package – Photos retrieved from Mr Dinh Tran’s phone
ROLE OF MS LY
8.It is alleged that the accused, Ms Ly:
a) Along with others involved in the importation, coordinated the sending of the consignment from overseas, (after receiving the intended address for delivery from Mr Dinh Cong Tran) and communicated that address to a third unknown person who ultimately arranged for the shipment.
b) Provided details of the consignment to Mr Dinh Tran
c) Sought, provided and received updates to and from Mr Dinh Tran about the progress of the consignment, whilst it awaited clearance; and
9.Ms LY accepts her role as outlined in paragraphs 8(a) – (c).
10.Telephone intercepts capturing Ms Ly’s involvement, as outlined above, were captured from late October to mid-November 2015. The telephone intercepts concerned Mr Dinh Tran’s phone. Ms Ly’s phone was not subject of a warrant. All intercepted conversations involving Ms Ly are in Vietnamese.
ROLE OF DINH CONG TRAN
11. Mr Dinh TRAN performed the following roles:
a) Provided the address for the delivery of the consignment of border-controlled drugs to Ms Ly;
b) Checked upon the progress of the consignment upon arrival into Australia;
c) Provided updates to Ms Ly, about the progress of the consignment, in order to facilitate the ultimate collection of the consignment;[5]
d) Instructed Ms Tran to await arrival of the consignment and to take delivery; and
e) Arranged to, and met with Ms Tran in anticipation of delivery.
[5] CSN388, CSN392, CSN394
12.Mr Dinh Tran, performed these roles between on or about 25 October to 6 December 2015.[6]
[6] Most of the activities outlined above, with the exception of e) (i.e. planning to meet with Ms Thien Tran), occurred between late October to mid-November. The arrangements to meet with Ms Tran occurred on 5 and 6 December. Prior to that time, Mr Tran also met with Ms Ly in early November, at around the time the consignment arrived into Australia.
ROLE OF THIEN THI TRAN
13.Ms Thien Thi Tran performed the following roles:
a) Making payments overseas to Mr Lee (and another overseas associate) prior to, and after, the arrival of the consignment;
b) Receiving instructions from Mr Dinh Tran about the collection and delivery of the consignment;
c) Providing updates to and seeking updates from Mr Dinh Tran about progress of the consignment;
d) Tasking another person, namely, NGUYEN, to make enquiries with the consignment delivery company (UPS) about the progress of the consignment;
e) Providing updates to others (uncharged) about the progress of the consignment as it awaited delivery;
f) Discussing and planning with others, namely, Mr Lee and another uncharged female, about future plans and the involvement of others - in relation to the consignment;
g) Discussing payment of Mr Tran with Mr Lee;
h) Making arrangements to meet with Mr Tran in anticipation of the consignment’s arrival;
i) Accepting delivery of the consignment at the consignment’s delivery address;
j) Distribution / transportation of the consignment upon receipt;
k) Informing others about the successful delivery of the consignment;
l) Unpacking the (substituted) consignment and verifying the contents;
m)Informing others overseas (Mr Lee and an uncharged female) about the contents of the consignment;
n) Discussing with Mr Lee about what should occur in relation to the consignment; and
o) Preparing the consignment for further distribution.
14.Ms Thien Tran’s roles were undertaken predominantly during mid-November to early December 2015 (up to the date upon which the consignment was delivered).
ROLE OF HOANG THANH LEE
15.In relation to Mr Lee, his alleged role in the offending and involvement and with his co-accused, Ms Thien Tran included:
a) Provided advice and encouragement to Ms Thien TRAN about the imminent arrival of the consignment.
b) Instructed Thien Thi Tran not to advise Dinh Cong Tran about the arrival of the consignment and;
c) Instructed Thien Thi Tran to wait until he comes up with a plan about receipt of the consignment and uses the expression “we will plan;”
d) Provides Thien Thi Tran with directions about getting the consignment into a house and questions Thien Thi TRAN whether all parts of the consignment have arrived.
e) Provides Thien Thi Tran directions as to assistance and security.
f) Provides directions to Thien Thi Tran to test the substance for quality
g) Received updates from Ms Tran about the impending delivery of the consignment and the subsequent collection of it;
16.Mr Lee was overseas during the period of the alleged offending but despite this, during the delivery phase, Mr Lee and Ms Thien Tran discussed matters which revealed their ultimate interest in the importation.
CHRONOLOGY OF OFFENDING
Organising of address for delivery
17.Interception of two mobile services associated with Mr Dinh Tran commenced on 20 October 2015.[7]
[7] 0466883688 and 0411808388
18.On 21 October 2015, Mr Dinh Tran received a telephone call from Ms Ly, who asked Mr Tran to secure an address for delivery of the consignment by asking for a ‘mailbox.’ Ms Ly asked Mr Tran to secure the address by telling Mr Tran: "As I talked to you the other day, I intended to ask for your mailbox… but we can talk about it when we meet for a coffee on Friday." The call concluded with arrangements to meet on Friday.[8] The reference to a ‘mailbox’ is a reference to the house address for the eventual delivery of the consignment of heroin.
[8] CSN 19; p. 14 to 15
19.On 25 October 2015, at 12:50 p.m., Mr Dinh Tran called Ms Ly. Ms Ly told Mr Tran at the outset that she was going to send him “the address so you can drop the mail box for me.” In reply, Mr Dinh Tran promised to “drop the mail box for you later in the evening.” It is alleged that the reference to ‘address’ by Ms Ly is a coded reference to a new phone.
20.Shortly thereafter, between 12:53 to 12:55 p.m., Mr Dinh Tran and Ms Ly exchanged several nondescript messages; Ms Ly utilised a new number for this exchange.[9] Mr Tran has confirmed that the purpose of one of the messages was for Ms Ly to alert him about the [phone] number that he was to send the package address details to. [10]
[9] CSN 104 to 106; pp. 345, 18 and 19. New number used: 0415 696 637. Following this exchange, Ms Ly also sent a further message to Mr Tran using her ‘original’ number (0432 038 138) at 12:55 p.m., stating: “Hi I’ve just sent it thru.” (CSN 105, p. 18).
[10] Subsequent discussions between Ms Ly and Mr Dinh Tran regarding the consignment occurred via Ms Ly’s ‘original’ phone number. (Para 12c, statement of DCT)
21.The new number 0415 696 637 was used by Ms Ly.
22.On 25 October, at 21:51 p.m., Mr Dinh Tran sent Ms Ly a text message which stated: “39 moffat st albans vic 3021.” This message was sent to Ms Ly’s ‘new’ number. Following this message, Mr Dinh Tran made several unsuccessful attempts to call Ms Ly on her original phone number. This culminated in a text from Mr Tran asking: “It is you isn’t it [?]”[11]
[11] CSN125 to 127 (pp. 348 to 350), CSN128 (p. 201)
Involvement of Thien TRAN by Dinh TRAN
23.The address supplied by Mr Tran to Ms Ly was sourced from the co-accused, Ms Thien Tran. Mr Tran asked Ms Tran to obtain an address, which she provided at her house in Cairnlea, which was written down on an old, used envelope. Mr Tran did not know how Ms Tran arranged the address. [12] Mr Tran’s agreement with Ms Thien Tran was to let him know when the package was delivered.
[12] Para 7, statement of DCT
24.Sometime later in October 2015, Ms Ly travelled to Melbourne and met with Mr Dinh Tran and Ms Thien Tran at a restaurant.
Shipping of Consignment – Late October / Early November 2015
25.On 30 October, the consignment containing the border-controlled drugs was shipped from Thailand.[13] The consignment was addressed to “Sandy Tran” of “39 Moffat Stress St Albans VIC 3021 (sic).” [14]
[13] The consignor details were declared as: Consignor: LATHSAMY, 28/3 Moo 5 Udon-Nonsamrong, T Huatalay A. Muang, Udonthani 41000, Thailand, Tel: 5056228090
[14] Photos taken by WALTER – pp. 117
26.On 2 November 2015, ABF officers examined the consignment. X-rays revealed anomalies, resulting in the detection of the consignment.[15] This led to the referral of the investigation to the AFP on 5 November 2015,[16] and which culminated in the AFP delivering a substituted consignment on 7 December 2015.
[15] Pp. 106, 107, 111 to 113
[16] P. 104, 160
Arrival and tracking of consignment (3-6 November 2015) – Ms Ly and Mr Tran
27.On 3 November, several telephone calls between Mr Dinh Tran and Ms Ly were intercepted which related to, and culminated in Ms Ly attending upon Mr Tran at 11:47 a.m.[17]
[17] CSN313, 314 and 319 – the following day, Ms Ly also enquired about Mr Tran’s whereabouts, which appeared to culminate in plans to meet at Mr Tran’s home. Transcripts to be formally served.
28.Travel records obtained from Virgin Australia also indicate that, on 3 November 2015, 2 passengers identified as “Huong Ly” and “Tran Dinh” were scheduled to travel from Sydney to Melbourne (from 600 to 735). [18] Records obtained from Crown Casino Southbank (Melbourne) indicate that Ms Ly’s Crown Club membership was utilised for gambling at around this time (namely, between 5 to 7 November 2015).[19]
[18] Statement of RAY – Notice of Additional Evidence to be compiled – statement already served
[19] Statement of FIELDING – annexure (Notice of Additional Evidence to be formally compiled)
29.On 6 November, several communications were exchanged between Mr Dinh Tran and Ms Ly in relation to the consignment’s whereabouts.
30.At 14:25 p.m., Mr Dinh Tran contacted Ms Thien Tran and asked “Thuy” to talk to him. “Thuy” subsequently indicated that she was ‘here,’ and Mr Dinh Tran asked “Thuy” to ‘send me the bank details otherwise it will be closed.’ It is alleged that “Thuy” is Ms Ly and the reference to ‘bank details’ relates to the tracking details for the consignment.
31.Mr Tran has explained that he called Ms Tran because Ms Ly had not answered when he called. The previous night, Ms Ly had slept at Mr Tran’s house and Ms Tran had picked up Ms Ly in the morning so that they could go and visit the package address, to see if it had arrived. Mr Tran also recalled that Ms Ly had sent the package number to him again, because neither he nor Ms Tran had the package number anymore. Mr Tran recalled that Ms Ly was returning to Sydney and Ms Tran had wanted to make more enquiries about the whereabouts of the package.[20]
[20] Para 12d, statement of DCT
32.Five minutes later (at 14:30 p.m.), Mr Dinh Tran received the following message from Ms Ly which contained the tracking and delivery details for the consignment:
"Company UPS. Checking 17556 a- 720462657898. Sandy tran… mail box 39 moffat st. st. albans… ph no. 3218214848 or 131877." [21]
[21] P. 23 (CSN387) – “131877” is the contact number for UPS (Source: UPS website)
33.At 14:58 p.m., Mr Tran called Ms Ly and advised that: "Hey, the company('s) name is correct but are the numbers correct? It didn't appear, there's nothing at all." Mr Dinh Tran also indicated that: "I am sitting here with my nephew. He tries all means to look up in the computer." In reply, Ms Ly told Mr Dinh Tran that ‘they’ had advised that he should ring and ask instead. Ms Ly further asked Mr Dinh Tran if the tracking number was incorrect. The call concluded with Ms Ly indicating that she would ring and ask.[22]
[22] P. 24 (CSN388)
34.At 15:01 p.m., Ms Ly called Mr Dinh Tran and asked him to wait a little more and, to check again. In reply, Mr Dinh Tran indicated: “If you call them they will not know who we are as the number does not appear. I have checked it clearly. Need to find out what's happened [.]” The call concluded with Ms Ly and Mr Dinh Tran agreeing to wait and for ‘they’ to recheck. Mr Dinh Tran advised Ms Ly that: "Ya, they might have sent the wrong number as it doesn't have anything here at all."[23]
[23] P. 25 (CSN390)
35.Mr Tran recalled that the reference to ‘they’ to ‘recheck over there’ is a reference to checking the package number at a travel agent in Sunshine. That travel agent is named “Thien” and Mr Tran asked him to help check on the package number. Accept (Mr Tran had requested “Thien’s” assistance because he spoke and read English, and he had a computer).[24]
[24] Para 12f, Statement of DCT
36.At 15:07 p.m., Ms Ly sent Mr Dinh Tran a text message with amended consignment details, namely: “17556A720462657898 (emphasis added).”[25] These details matched, almost exactly, details for the consignment ultimately detected – but for the second numerical reference – the consignment label referred to “Z” instead of “7.”[26]
[25] P. 351 (CSN 391)
[26] See Photos of Consignment Label – i.e. 1Z 556 A72 04 6265 7898 - the consignment consisted of 3 x boxes in total (labels are not identical in relation to each box)
37.At 15:15 p.m., Mr Dinh Tran contacted Ms Ly again and advised that the consignment was ‘unavailable.’ Ms Ly subsequently spoke to another male, believed to be Mr Dinh Tran’s nephew, who outlined to Ms Ly the results of checks upon the consignment’s tracking details. Ms Ly queried if calls had been made to enquire about the consignment and, observed that ‘it was there this morning but not now, so it might have come out.’ The call concluded with Ms Ly asking Mr Tran to ask his nephew to ring and make enquiries about the consignment. [27]
[27] P. 26 (CSN 392)
38.At 15:44 p.m., Ms Ly called Mr Dinh Tran and asked for an update about ‘it.’ Mr Dinh Tran advised, “it is still there,” and, “called them. They said it is waiting for inspection.” [28] Mr Tran has confirmed that the reference to ‘it’ is believed to be a reference to the package (as he subsequently called “Thien” at the travel agency to check on the package). [29]
[28] P. 28 (CSN 394)
[29] Para 12h, Statement of DCT
39.Between 10 and 16 November, Mr Dinh Tran and Ms Thien Tran communicated several times regarding the progress of the consignment.
40.Mr Tran understood that Ms Tran would attend upon ‘the address’ to see if the package had been delivered. [30]
[30] Para 10, Statement of DCT
41.On 10 November 2015, at 16:55 p.m., Mr Dinh Tran called Ms Thien Tran and asked about her whereabouts. Ms Thien Tran advised that she was ‘still sitting there.’ In reply, Mr Dinh Tran asked her to ‘try to stay there for a little more’ and advised that, “I have just recently asked and [he or she] said [unintelligible] on Friday.” The call concluded with Ms Thien Tran confirming that she was ‘still sitting there’ and Mr Dinh Tran advising in reply, “Ok, ok, that’s good.”
42.On 12 November, Mr Lee arrived into Australia, via flight VN781.[31]
[31] P. 496
43.On 13 November, UPS (the freight company responsible for carriage of the consignment) received a call regarding the whereabouts of the consignment. UPS records indicate that the following message was received:
"Hi partner, shipment was hold and stuck in customs for long time, pls kindly advise the reason and when will be release? Thanks."[32]
[32] P. 29 (CSN466)
44.The contact number used to contact UPS was the same phone number utilised by Ms Ly in her dealings with Mr Dinh Tran (referred to above at paragraph 20). The contact number supplied to the UPS in this exchange was (614) 156 9663 x 7. The Crown does not allege that Ms Ly was the person who made contact with UPS on 13 November.
45.Later that afternoon, Mr Dinh Tran contacted Ms Thien Tran and asked about her whereabouts and, asked if she had seen anything. Mr Dinh Tran also indicated to Ms Thien Tran that he would come and see her a little later and, asked if she had ‘those letters.’ Ms Thien Tran confirmed that: “of course, those letters are obviously here for you.” [33]
[33] P. 30, 31 (CSN529)
46.Mr Tran has explained that the reference to ‘letters’ is a reference to money – which related to a gambling debt owed by Ms Tran to Mr Tran. Mr Tran has also explained that his reference to asking Ms Tran if she was ‘still there’ was an enquiry about whether she was still at the package address, awaiting delivery of the package. [34]
[34] Para 12i, Statement of DCT
47.On 16 November, Mr Dinh Tran contacted Ms Thien Tran and asked for another update about her whereabouts, whereupon Ms Thien Tran indicated that she was ‘still sitting there.’ The call concluded with Mr Dinh Tran asking Ms Thien Tran to ‘try to stay there a little more’ and ‘try to look after for me.’ [35]
[35] P. 32 (CSN583)
48.Mr Tran explained that the reference to ‘try to look after for me’ relates to him telling Ms Tran to ‘stay there to see if the package arrives,.” [36]”
[36] Para 12j, Statement of DCT
49.On 18 November, the informant attended upon the delivery address for the consignment and left behind a UPS delivery notice for the consignment. [37]
[37] P. 182
Attempts by Ms Thien Tran to enquire about consignment progress (Mid-Late November 2015)
50.On or about 18 or 19 November, Ms Thien Tran approached Vinh Trang NGUYEN at a coffee shop and asked for help in enquiring about a UPS package. Ms Thien Tran introduced herself as “Sandy Tran” and provided Mr Nguyen with the consignment’s address and delivery details. Mr Nguyen thereafter contacted UPS on Ms Thien Tran’s behalf.[38]
[38] NGUYEN, pp. 3, 4, 6 and 7
51.On 19 November, Mr Dinh Tran contacted Ms Thien Tran and asked for an update. During this conversation, Ms Thien Tran asked Mr Dinh Tran to “call them and ask what’s going on… Do we have to continue waiting? Then text me.” Ms Thien Tran also expressed frustration about being unable to call Mr Tran. The matter resolved when Mr Dinh Tran asked Ms Thien Tran to ‘try one more day.’[39]
[39] P. 33 (CSN648)
52.On 30 November, Mr Nguyen was contacted by “Sandy Tran,” who asked for help again with contacting UPS about the consignment.[40]
[40] NGUYEN, p. 4
53.On 3 December, Ms Thien Tran made a further approach to Mr Nguyen for help in tracking the consignment. [41] Mr Nguyen is not charged with any offence relating to this investigation.
[41] P. 34 (CSN52) and p. 35-26 (CSN64) – Ms Thien Tran referred to another number, ending in ‘178’ and asked Mr Nguyen to supply that number to UPS to contact her on. See also, pp. 3 to 8 – contact number noted by NGUYEN for “Sandy Tran” is 0413949178. Ms Tran was subsequently found in possession of a SIM card with that number (see p. 393 – PSR)
Notification of Delivery to Others by Ms Thien Tran (4 December 2015)
54.On 4 December, interception of two telecommunication services associated with Ms Thien Tran commenced.[42]
[42] Services intercepted: 0411157309 and 0432 689 367
55.At 11:30 a.m., Ms Thien Tran called Mr Lee, who was overseas (on 8412 230 29378).
56.At the outset, Ms Tran advised Mr Lee that she was ‘praying for it to come today.’ During this conversation, Mr Lee warned Ms Thien Tran not to make any mistakes and counselled Ms Thien Tran by advising: “must try to be calm… this is the opportunity for you.” He also advised Ms Tran to ‘try to take care of things there’ and ‘I will pray for you.’ In reply, Ms Tran told Mr Lee that “Ya I am praying for it to come today. Because it is the thing that people has thrown away, but I am sure that it’s still there.’[43] It is alleged that Ms Tran and Mr Lee were talking about the consignment and, how it had been abandoned by others, given the delay in delivery.
[43] Pp. 40 to 43
57.During this call, Ms Tran and Mr Lee appeared to speculate about the delay in the delivery. Ms Tran told Mr Lee that the ‘Post Office still told me to wait.’ She then told Mr Lee that when ‘he’ comes later, she will try to persuade him to get the accurate tracking number.[44] In response, Mr Lee reassured Ms Tran that: “[…] What Trang[45] has done was correct, he only briefed you but he must have told them lots of information. They would ask for name, address and Trang must have given them all. If the address was correct then nothing wrong.” Ms Tran then told Mr Lee “Trang” told her that “[…] it should take [a] few days. Not possible for immediately as we had asked around and whoever guy kept it would deliver to your Sister then, please tell her so.”
[44] On 3.12.15, TTT asks Vinh Trang NGUYEN to contact UPS to make enquiries about the consignment for her (p. 34) NGUYEN does so and calls TTT back to let her know that they couldn’t find the package, after referring to the tracking number (p. 35, see also p. 37)
[45] Vinh Trang NGUYEN was approached by TTT, as Sandy Tran, to make an enquiry about the tracking of the consignment (see above at para 50)
58.The call concluded with Mr Lee telling Ms Tran to be calm and that: “The longer it takes the better it will be for you … because thing will settle down […] This is the opportunity for you.”
59.At the time of the call on 4 December 2015, Mr Lee displays knowledge of all of the relevant circumstances about the consignment, that the consignments arrival is imminent and provides advice and encourage to Ms Thien Tran.
60.At 11:54 a.m., a covert operative contacted Mr Vin Trang Nguyen and advised that the consignment would be delivered the following Monday at around 9:00 a.m.,[46] Mr Nguyen contacted Ms Thien Tran shortly thereafter and advised Ms Thien Tran about the delivery package time.[47]
[46] Pp. 4, 128, 129, 344
[47] P. 38
61.After receiving notification of the delivery by Mr Nguyen, Ms Thien Tran called an unidentified female who also counselled Ms Thien Tran. The unidentified female advised: “if they don’t deliver on Monday you have to keep watch closely… Not to let it slip away.” [48]
[48] P. 45
62.Thereafter, Ms Thien Tran called Mr Lee again at 13:49 p.m. and advised him to ‘be calm and I give you this good news.’ Ms Thien Tran then provided Mr Lee with the anticipated consignment delivery time[49] and assured Mr Lee that he was the ‘very first one to know.’
[49] “Monday, 9 am delivery” – p. 48
63.Ms Tran sought advices from Mr Lee about what to do with the consignment, upon receipt. She asked Mr Lee: “now, do we let Cao to have it or I will have it?” Mr Lee advised Ms Tran to “Now… Not to let Cao knowing yet.” [50] In addition during this call, Mr Lee expressed to Thien Thi Tran to wait until he comes up with a plan about receipt of the consignment.
[50] P. 48
64.The call at 13:49 pm from Thien Thi Tran to Mr Lee can be summarised as Thein Thi Tran communicating that she wants to advise Mr Lee that Mr Lee is the first person to know about the consignment’s arrival. In addition, Ms Thien Tran is asking Mr Lee for Mr Lee’s opinion about whether Dinh Cong Tran should be advised about the arrival. Mr Lee instructs Thien Thi Tran not to advise Dinh Cong Tran that the consignment arrived.
Arrangements to Meet – Mr Dinh Tran and Ms Thien Tran (5-6 December 2015)
65.On 5 December, Ms Thien Tran called Mr Lee, who asked about “Bay” and whether he had seen him. Mr Dinh is alleged to be “Bay.” Ms Thien Tran advised Mr Lee that she intended to ask “Bay” if he was coming to see her, and if he had a ‘gift’ for her, then, he should come.[51]
[51] Pp. 54 to 56 (CSN91)
66.In this call, Ms Tran told Mr Lee that she was worrying about him – to which he replied: “[…] you should not worry for me, just take care of your business there, don’t leave any mistake… That’s all. Things over there are more important.” [52]
[52] P. 55
67.During this call, Ms Thien Tran suggested again that she would not let “Cao” know[53] and, subsequently asked Mr Lee if she was too ‘cunning’ with her planning. Mr Lee told Ms Thien Tran that there was ‘nothing cunning,’ and, he understood why Ms Thien Tran would think that having an extra person means an increased risk of ‘leaking.’ Mr Lee said that this was not a matter of “papers or money,” which Ms Tran appeared to agree with. Ms Tran indicated that it’s “just because you said he could not keep his mouth shut.” [54]
[53] Ms Thien Tran also told Mr Lee that she will call “Cao” tomorrow and say that she thinks it will be by the end of the week. It is alleged that this is a reference to the delivery of the consignment. As noted above, delivery of the consignment was anticipated for Monday 7 December.
[54] Pp. 54-56, CSN 91
68.At 21:15 p.m., Mr Dinh Tran called Ms Thien Tran. At the outset, Ms Thien Tran indicated that she waited all day (yesterday) for Mr Tran. At the conclusion of the call, Mr Dinh Tran indicated that he may come by the following day.[55]
[55] P. 57 (CSN143)
69.At 22:42 p.m., Ms Thien Tran called Mr Lee and talked about Mr Dinh Tran’s upcoming visit. Ms Thien Tran referred to Mr Dinh Tran as “just wanted money, that’s all.” Ms Thien Tran advised Mr Lee that she owed Mr Tran “… ah… 8 bucks or 9 bucks,” and that she had the money. Ms Tran indicated that she owed Mr Tran for ‘those small ones altogether.’ [56]
[56] CSN 151, p. 449A to 450
70.On 6 December, at 10:38 a.m., Mr Dinh Tran called Ms Thien Tran and advised that he was at her front door but Ms Thien Tran indicated that she was out, but she would call when she got home.[57]
[57] P. 60 (CSN156)
Collection and unpacking of consignment (7 December 2015)
71.On the morning of 7 December 2015, the AFP commenced surveillance upon Ms Thien Tran.[58] Ms Tran was present at the premises of 39 Moffat Street (the consignment’s delivery address) at the outset.[59]
[58] Surveillance Logs (from p. 355)
[59] From at least 8:41 a.m. onwards – p. 356
72.At 7:57 a.m., Ms Tran called one of her associates in Vietnam.[60] Ms Tran asked her associate if she had talked to the “Master” last night and, whether the “Master” had “said only me didn’t he?” Ms Tran’s associate confirmed: “Ya” and “No problem… nothing to worry…” In reply, Ms Tran said: “Yeah, only me is ok… don’t have to call other otherwise we have to give them money…” and, remarked that; “If we hire them then we have to pay them.”
[60] “UF2” in transcripts
73.At 8:31 a.m., Ms Thien Tran called her associate in Vietnam again[61] … I think it will be 9 or 10 o’clock… because Master had told that it would be early in the morning[…]” Ms Thien Tran referred to “Master’s hard times” and that she was praying for ‘it to be over then tomorrow I will get to send him some money … so he feel ok to live.’ [62]
[61] “UF2” in transcripts
[62] CSN 42 (pp. 66 to 68)
74.At 9:18 a.m., Mr Lee and Ms Tran spoke. Mr Lee asked Ms Tran if she was out – Ms Tran indicated that she was and speculated about the non-delivery of the consignment – by telling Mr Lee that: “It is now over 9:00 … and don’t know why… it’s 9:20 now” and that “they said 9:00 o’clock but it is now 9:20.” [63]
[63] P. 69
75.At 9:22 a.m., the package (consisting of 3 large cardboard boxes) was delivered (by an AFP officer) to Ms Tran, who identified herself as “Sandy Tran.” [64]
[64] P. 400, 407, 409, 278 and 356
76.After receiving the packages, Ms Tran left the premises of Moffat Street at 9:33 a.m.[65]
[65] P. 357 and 358
77.At 9:34 a.m., Ms Tran called Mr Lee and told him that she was getting in her car to go home. Ms Tran complained about feeling ‘exhausted as if I was to faint… because I had to carried by myself.’ Subsequently, Mr Lee warned Ms Tran to be careful, and to watch her back.[66]
[66] CSN 325 (p. 70)
78.A 9:36 a.m., Ms Tran called one her associates in Vietnam and advised: “Inform Master that I have received it.” [67]
[67] CSN254 (p. 71) – Associate is “UF2” in transcripts
79.By 9:49 a.m., Ms Tran had arrived at her rental property, 373 Ballarat Road, Sunshine.[68]
[68] P. 1 – rented in October / November 2015
80.At 9:52 a.m., Ms Tran called Mr Lee, referring to him at the outset as ‘hubby’ and that she had ‘arrived home safely.’ Mr Lee advised Ms Tran to reverse the cars out of the garage and ‘we sort out later’ and to ‘just get into the house, rest, then sort it out later.’ Ms Tran told Mr Lee that “I have carried them inside already, in already.’ Ms Tran advised Mr Lee that there were 3 packs. Mr Lee then told Ms Tran to ‘take it slowly. Let’s consider first…’ Ms Tran told Mr Lee that she knew this and that she was now ‘deadly tired’ and she had to rest. She concluded the call by telling Mr Lee that she just wanted to “just to let you know so you’d be happy that I am home.” [69] Mr Lee provided directions to Thien Thi Tran about getting the packages to the house and queried whether all three packages arrived.
[69] CSN258 (pp. 72 to 73), See also surveillance logs – p. 358
81.At 9:58 a.m., Mr Lee called Ms Tran advised her that, if necessary, she should bring “Brother 9”[70] for help that evening but, it was up to Ms Tran. Ms Tran then advised Mr Lee that it was “sent from Thailand. Thai, not Vietnamese.” In reply, Mr Lee indicated that it’s “probably from the other wing / group, Brother [2].” Ms Tran agreed that this was probably so. The call concluded with Mr Lee advising Ms Tran to call “’that’ guy to come watching it until evening.”[71] Mr Lee demonstrates his awareness of the contents of the consignment and knowledge of the likely source. Mr Lee Provided directions as to assistance and security.
[70] “Chin”
[71] CSN261 (p. 74)
82.At 12:31 p.m., Ms Tran left her rental property. Ms Tran was ultimately located at Market Place, Braybrook whereupon she was seen with a number of plastic shopping bags.[72]
[72] See pp. 359 to 362 and video of surveillance
83.At 13:45 p.m., Ms Tran returned to her rental property and she was observed removing a plastic shopping bag, along with a green coloured tub.[73]
[73] P. 362
84.At 14:24 p.m., Ms Tran called Mr Lee and advised at the outset: “Disappointed. It’s not the other thing[,]” and that it was ‘too sweet.’ Mr Lee and Ms Tran then speculated about why this was the case. Mr Lee asked Ms Tran to ‘try to search and look thoroughly,’ to which Ms Tran indicated that she had just finished doing that. Mr Lee commented that, “How dared he tell you that it was other thing but (now) it is not being this one.” He then expressed disappointment by swearing and asking Ms Tran about quantity.[74]
[74] P. 77
85.Ms Tran replied: “probably 5, 6 or so… Just ok… but not as expected.” The call concluded with Mr Lee and Ms Tran agreeing to wait until Mr Lee was back.[75]
[75] CSN291 (p. 76 to 77)
86.At 14:26 p.m., Ms Tran called her associate in Vietnam[76] and advised, at the outset: “Totally disappointed” and referred to “Just cheap stuff […] Only the cheap stuff so it doesn’t yield much.” After being comforted by her associate, Ms Tran said: “Nothing to be sad. Just a bit disappointed. Don’t know why he said (it was) one thing but it came another… Strange.” [77] The call concluded abruptly, as “Brother Muoi,” was calling Ms Tran.
[76] “UF2” in TI transcripts
[77] CSN 292 (p. 78 to 81)
87.The next call received by Ms Tran occurred at 14:32 p.m., and the other party was Mr Lee. He asked about the consignment, in vague terms. Ms Tran advised Mr Lee that she “couldn’t smell anything then I licked it to try.” Mr Lee then asked Ms Tran if it had a bitter after-taste; Ms Tran advised: “not so either” and “only the other thing.” Ms Tran then indicated that she was ‘[…] so upset.’
88.Mr Lee and Ms Tran then speculated about why the consignment was not as anticipated. Ms Tran remarked: “It’s the same quantity but why?” Mr Lee commented that this was strange and asked Ms Tran if she had looked into it thoroughly and, whether it was ‘anywhere else.’ Ms Tran confirmed that there was nothing else by stating: “No, I have torn up the boxes.” Ms Tran also indicated, subsequent in the conversation, that she had tried it, because she was wondering why there was ‘no smell at all.’ She indicated:
“Our is also looking fine… but without smell. Look exactly the same but no smell. So upset… but why did they have to do it so hard like this? Usually it was inserted differently, not like this (sic).”
89.Ms Tran also confirmed, in response to further questioning by Mr Lee, that the aftertaste was ‘funny’ but not ‘bitter.’[78] Mr Lee then asked “what did it have?” In reply, Ms Tran told him: “Only ‘shoes’” to which Mr Lee asked: “Female or Male?” Ms Tran’s reply was equivocal.[79]
[78] CSN 294 (pp. 82 to 84)
[79] P. 85, 84
90.Mr Lee also asked Ms Tran about quantity, and whether there were 10 in total; Ms Tran indicated that there were ‘probably 6 or 7, nearly the sums… it’s ok, better than nothing… I think it’s ok… but [….] a bit disappointed.’
91.The call concluded with Mr Lee asking Ms Tran about the remaining contents of the boxes; Ms Tran indicated that there were ‘shoes.’ The call concluded with Mr Lee suggesting to Ms Tran that she should give a little bit for a “skilled” guy to try. Ms Tran indicated that, “Oh, we should leave it until you being back here.” Mr Lee demonstrates he has knowledge of what the packages should contain, how many should have been received, and how the substance should taste. Mr Lee provided directions as to testing it for quantity.
92.At 14:36 p.m., Ms Tran called her associate in Vietnam again[80] and advised that “Mr Muoi,”[81] (Mr Lee) had called and asked about ‘why it was said of being one thing and becoming another.’ Ms Tran’s associate then asked her: ‘what now?’ In reply, Ms Tran indicated that she did not know. A discussion then ensued about Ms Tran’s level of disappointment. Ms Tran also indicated that ‘[…] Instead of being 10 out of 10, it was only 30 or 25%...’ Ms Tran’s associate then reassured Ms Tran by stating that she guaranteed that Ms Tran will have a good business.[82]
[80] “UF2” in TI transcripts
[81] “Muoi” means 10 in Vietnamese
[82] P. 451 (CSN 87)
93.At 15:10 p.m., Ms Tran called her associate in Vietnam again[83] and advised that, “There’s a tracking device in it’ and that she had ‘soaked them in water.’ Ms Tran indicated that she was not able to ring “Brother Muoi” and she had wanted to ask him about what she should do, or, if she should leave her home. Ms Tran then sought to reassure herself by speculating that:
“And should there were anything then the Master would have told me… I suspect it was only from the sender only to track where it was gone to.”
[83] “UF2” in TI transcripts
94.The call concluded with Ms Tran’s associate advising her that she will ring “Master” for Ms Tran. Ms Tran asked her associate to ask, on her behalf, if there would be any problem.[84]
[84] CSN303, p. 86
95.At 15:20 p.m., the AFP executed a search warrant upon Ms Tran’s rental property and arrested Ms Tran. During the search, the AFP located the substituted white powder in various locations.[85]
[85] See p. 168 and p.410 – Warrant Photos
96.The AFP also located a green tub and a pocket scale in the kitchen of Ms Thien Tran’s rental property. Earlier, Ms Thien Tran had been observed with a plastic shopping bag and a green coloured tub (after attending upon a shopping centre).[86]
[86] P. 363, 00024 (Surveillance Video) and photo 28 (1-50, 373 Ballarat Rd) and photo 1 (51 to 100, 373 Ballarat Rd)
ARREST – HUONG LY
97.Ms Ly was located and arrested by the AFP on 10 November 2016 in New South Wales.
ARREST – HOANG LEE
98.Mr Lee was located and arrested by AFP officers on 18 August 2016.[87]
[87] BRYCE, p. 498
FORENSIC ANALYSIS
99.Deconstruction of the consignment occurred shortly prior to the delivery of the substituted consignment by the AFP. The deconstruction revealed the following:
a. The consignment consisted of 3 cardboard boxes;
b. The 3 boxes, contained in total 32 further small cardboard boxes which each contained 4 individually packaged business shirts;
c. Each of the small brown boxes contained a false bottom;
d. Concealed under each false bottom was 1 x black carbon wrapped package (32 x in total). [88]
[88] P. 156
100.The combined gross weight of heroin located amounted to 5,601.6 grams; purity is assessed at 71.2%.
101.The total net weight of pure heroin located is 3,988.3 grams.
DRUG VALUATION
102.Pricing trends in Victoria (as at 9 September 2016) for heroin sold in bulk amounts (at the estimated average purity for imported heroin) is as follows:[89]
[89] P. 388
Metric Weight
Price
0.1 gram
$50
1 gram
$150 - $500
3.5 grams
$800 - $1500
28 grams
$11,000 - $13,000
175 grams (half block)
$55,000 to $75,000
350 grams (block)
$105,000 to $130,000
0.5 kg
$110,000 to $150,000
1 kg
$220,000 to $290,000
C0-ACCUSED SENTENCES
103.Mr Dinh Cong Tran pleaded guilty to importing a commercial quantity of heroin. Mr Tran was sentenced to 4 years imprisonment with a non-parole period of 2 and a half years. But for Mr Tran’s undertaking pursuant to section 16AC of the Crimes Act a sentence of 8 years with a non-parole period of 5 years would have been imposed.
104.Ms Thien Thi Tran pleaded guilty to attempting to possess a commercial quantity of heroin. She was sentenced to 8 years imprisonment with a non-parole period of 5 years.
PROCEDURAL HISTORY
105.On 30 January 2017, Ms Ly pleaded not guilty at a committal mention hearing and the matter proceeded by way of straight hand up brief. No witnesses were cross examined.
106.On 27 March 2017, Mr Lee pleaded not guilty at a contested committal hearing. Two witnesses were cross examined.
107.Ms Ly and Mr Lee’s charges were listed for a 15 day trial commence on 21 November 2017. On 23 November 2017, the matter resolved and both Ms Ly and Mr Lee were arraigned and pleaded guilty.
108.On 19 April 2018, the matters of LY and LEE were listed for plea hearing. The matters were adjourned as LEE foreshadowed a change of plea application.[90] The matters were adjourned for plea hearing on 14 September 2018.
[90] LEE’s matter was never in fact listed for a change of plea application.
PRE-SENTENCE DETENTION
109.Mr Lee has been remanded in custody since 19 August 2016. Mr Lee has served 2 years and 26 months (756 days) of pre-sentence detention.
110.Ms Ly was remanded in custody on 10 November 2016. She was granted bail on 30 January 2017. Ms Ly has served 81 days of pre-sentence detention.
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