Director of Public Prosecutions v Ta & Anor
[2012] VCC 1131
•10 August 2012
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AT MELBOURNE CRIMINAL DIVISION
CR-10-02029 and CR-10-02030
DIRECTOR OF PUBLIC PROSECUTIONS
v
TRUC TA ACCUSED
AND
TRINH BUI ACCUSED
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JUDGE: HIS HONOUR JUDGE STUART
WHERE HELD: Melbourne
DATE OF HEARING: 6 to 9 August 2012
DATE OF SENTENCE: 10 August 2012
CASE MAY BE CITED AS: DPP v Ta & Anor
MEDIUM NEUTRAL CITATION:
Catchwords:
[2012] VCC 1131
EX TEMPORE REASONS FOR SENTENCE
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CRIMINAL LAW – CONVICTION AND SENTENCE – One Charge of trafficking in a drug of dependence (diacetylmorphine) in relation to each Accused – Relatively minor involvement; third co-accused pleaded guilty to trafficking in a large commercial quantity of heroin, drug of dependence and other drug-related matters – All three Accused of Vietnamese origin – Significant Court delay of three years – Instinctive synthesis – Each Accused did not re-offend in the intervening period – Without prior criminal history – Good prospects of rehabilitation – Remorseful – General deterrence – Two year Community Corrections Order; with conviction.
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APPEARANCES:Counsel Solicitors
For the Crown Mr A. Moore (At Plea) Ms D. Tang (At Sentence)
Office of Public Prosecutions
For Accused Ta Mr J. Jassar Melasecca Kelly & Zayler Barristers and Solicitors
For Accused Bui Mr S. Lindner Slades and Parsons Lawyers
VICTORIAN GOVERNMENT REPORTING SERVICE
565 Lonsdale Street, Melbourne - Telephone: 9603 2403
HIS HONOUR:
1Truc Ta and Trinh Bui, you have each pleaded guilty to one Charge of trafficking in a drug of dependence, diacetylmorphine, heroin on the 7th of July 2009.
2The circumstances surrounding your offending are set out in the amended “Summary of Prosecution Opening” which became Exhibit 1 on the plea. This is a summary which deals with your offending as well as your co-offender, Phuoc Ly. He has pleaded guilty to much more serious offences than have you. Those offences included trafficking in a large commercial quantity of heroin, trafficking in a drug of dependence, methylamphetamine and other drug related matters. I mention that because it is essential in sentencing the both of you that allegations of wider criminality involving Mr Ly are not in any way visited against you.
3The Prosecution case against you is a confined one in the manner in which I will come to shortly. Without going into the detail of this offending as set out in Exhibit 1, a brief outline of your criminal conduct is as follows.
4On Tuesday, the 7th of July 2009, police set up covert surveillance at a residential address of 158 Jacksons Road, Noble Park North between 5.20 pm until 9 pm that night at which forced entry was achieved by the police into that residential address.
5Prior to that forced entry, at about 8.20 pm, police observed an Asian male who was later identified as a Mr Quach attend that address in a car, knocking on the front door of the premises, and was let into the premises by you, Mr Ta. He later left that address, was arrested a short distance away and found to be in possession of a two and a half ounces of heroin. It is that transaction and that transaction alone, that you, Mr Truc Ta, have pleaded guilty to.
6Upon entering into the premises, four police officers observed you, Ms Trinh
Bui, sitting in the front lounge room near a coffee table. On the coffee table were the accoutrements of a drug trafficker and drug user, including scales, smoking devices and the like. Of relevance, however, in relation to you, you were observed by the police using a playing card, mixing some white powder on a plate in front of you which was later found to contain some 73 grams of diacetylmorphine heroin. The allegation is that you were mixing that heroin. That and that alone, is the criminal conduct which constitutes the Charge of trafficking to which you have pleaded guilty.
7In the concluding part of the Prosecution Opening, the following is stated in relation to you, Mr Ta, and you, Ms Bui, and I quote:
Ta and Bui were involved in a relatively minor way as helpers on a single occasion. There is no evidence that they were involved in an on-going way. Ta conducted the transaction to Quach at the front door and Bui helped to prepare the heroin on the coffee table for sale.
8You were immediately arrested and you, Mr Ta, spent some 12 days in custody before you were bailed. You, Ms Bui, spent a longer period of time in custody of 21 days before you were bailed. The fact that you had no or, if any, little knowledge of English, seemed to have contributed to your period in custody before you were bailed. In each case, the fact that you have been imprisoned for all but a relatively short but doubtless salutary period of time is some punishment that you have already suffered.
9The maximum penalty for this offence is 15 years' imprisonment reflecting the grave and serious way in which the legislature views such offending. It is so often said in these courts that the drug trade is a pernicious one, reeking destruction on individuals and the broader community, corrupting and debasing parts of our society. Those caught engaged in trafficking drugs such as this must, in the ordinary course of events, expect stern punishment both to deter those involved and others who may decide to become involved.
10The conduct of you both must be denounced in engaging in the criminal activity which you did. Indeed, you, Ms Bui, arrived in Australia on the 23rd
of May 2009 and not two months later, on the 7th of July 2009, committed this offence.
11I have had the benefit in both your cases of thorough pleas. In each case, you have pleaded guilty. You, Mr Ta, at the very earliest opportunity. You, Ms Bui, earlier this week. It may be said that yours, Ms Bui, was a plea of guilty at the door of the Court and therefore a late plea of guilty. Ordinarily in such circumstances, you would nonetheless be entitled, and I would sentence you to a significant discounted sentence, albeit your plea was at a late point in time. However, the legislation is plain that I must take into account your plea in deciding whether it was, in the circumstances, at the earliest reasonable time. For the following reasons, I intend to treat your plea as perhaps not at the earliest reasonable opportunity but, for all intent and purposes, as if it were.
12You, Ms Bui, were 22 at the time of committing this offence and are now 25 years old. My observations of you are that you are an immature woman for your age, unsophisticated and in a country which is entirely foreign to you. My observations of you during the course of times that I have been in Court, and confirmed by your Counsel, Mr Lindner, and also the Learned Prosecutor, Mr Moore, is that you are indeed a person who has struggled with the process that you have found yourself involved in, the legal concepts that you would need to know to properly understand advice given to you by Mr Lindner, complicated by your still, basic knowledge of English and the attendant need for an interpreter to be used by you both in Court and in consultation with your barrister. Those circumstances explain why, in my view, your pleas were not offered at an earlier point in time.
13You, as with Mr Ta, were originally charged with very serious offences including all of the ones that I have, in brief, adverted to that Mr Ly has pleaded guilty to. In the event, I intend to give you both the full benefit of your pleas of guilty. You, Mr Ta, because it indeed was the earliest possible
time at which the plea could be entered, and you, albeit this week, Ms Bui, for the reasons I have articulated likewise, the earliest reasonable time.
14It has been argued before me that in this case, the delay in these matters coming to the Court of some three years is a significant one. I agree with that submission and your sentences have been reduced as part of the instinctive synthesis that I must undertake by reason of that significant delay. That delay, however, has had one positive result in that in the intervening period, neither of you has re-offended. Thus buttressing the submission made by both of your Counsel that you have demonstrated a capacity to rehabilitate yourselves.
15You both come before this Court without any prior criminal history. That, together with your subsequent good behaviour, does indeed speak strongly towards your rehabilitation and capacity to continue that process. I therefore assess your prospects for rehabilitation as good. Not only for those reasons but for reasons which I will come to when dealing with your other personal circumstances. Furthermore, it has been put, in particular in relation to Mr Ta, and also on your behalf, Ms Bui, as I understand it, that you are remorseful for what you have done. I accept those submissions.
16You, Mr Ta, were 25 years old at the time of the commission of this offence and are now 28 years old. You therefore are three years older than Ms Bui and you present as an intelligent and mature man. You were born in Vietnam, have proven yourself over the years to be a diligent student in Vietnam, Singapore and at Swinburne University in Melbourne, achieving good academic results. You have been in a stable relationship with your wife for seven years and married her in 2011.
17On the 7th of August 2011, your son was born stillborn. That tragic event greatly affected both your wife and yourself. Happily, this week, your wife gave birth to a healthy daughter. You, of course, were born in Vietnam. Your
wife, though of Vietnamese origin, was born in Australia and, as I understand it, has never lived in Vietnam. Hanging over your head, Mr Ta is the prospect of deportation. This, I accept, has been a heavy burden for you, were you to be deported; your wife would need to leave her home country to join you. Because of the uncertainty of those matters hanging over your head, I have also moderated the sentence I would otherwise impose upon you.
18You, Ms Bui, as I have said, came to Australia and within two months committed this offence. You were 22 years old at the time of the commission of this offence, and are now 25 years old, being, as I have said, three years the junior of Mr Ta. I have already noted for other purposes that you, in my view, are immature for your age. Since arriving in Australia, I glean that you have lived an isolated life. You are an only child and your mother lives in Vietnam. You miss her, as does she.
19You have endeavoured to improve your level of English by undertaking courses and you aim to start a course in business administration at Stott's College, you having, in Vietnam, passed the equivalent of our Year 12 examinations. You have worked in offices and administration. On the 3rd of July 2010, you married and unfortunately it appears that there are difficulties in that marriage which both of you are attempting to reconcile. It would seem to some degree, from what I understand, that you have been adrift whilst you have been in Australia.
20Having regard to the different and varying factors of personal and the other matters that I have adverted to thus far, it is my view that whilst there are different aspects of your backgrounds, pleas of guilty and the like, that the same penalty should be imposed on both of you. In this case, Mr Moore, on behalf of the Prosecution, has submitted in relation to each of you that a 12 month Community Corrections Order ought to be imposed as being within the range of sentences available in your cases. This submission as to appropriate range, I am told, and accept, comes from an extremely able and
experienced senior Crown Prosecutor.
21Both Counsel on behalf of each of you have urged me to adopt that course and consistent with the Crown’s submission as to a Community Corrections Order of approximately 12 months further submitted that such an order should be without conviction. It is my view that that sentencing disposition is towards the lower end of the sentencing range that is applicable in your cases. Nonetheless, having regard to all of the matters that I have adverted to so far in my sentencing remarks, I intend in the broad to do as is urged by all Counsel, the Prosecution and Defence. Given the gravity of the offending, however, I am of the view that a conviction ought to be recorded against both of you.
22Furthermore, I intend, subject to each of you agreeing, to impose a Community Corrections Order with conviction for a period of two years in each case. With, in each of your cases, a requirement that you do 240 hours unpaid community work and, in your case only, Ms Bui, that you agree to assessment and treatment conditions, including testing for drugs, and that you be under supervision for that period of time.
23For me to make that order, each of you must consent, that is agree, to enter into those conditions as part of a Community Corrections Order. I will permit each Counsel to attend the dock to obtain instructions and give advice, as required. If either of you require time, I will stand down.
24MR LINDNER: Thank you.
25MR JASSAR: Your Honour, could we have a printout of that so we can take it to our clients.
26HIS HONOUR: There is no order as yet so the only thing I can give you is what I think you have already got, which is the order which sets out - - -
27MR JASSAR: I have got the reports, yes.
28HIS HONOUR: Yes, the report. I will stand down for five minutes and that means you gentlemen have time to discuss the matter with them, so as they appreciate what the order proposed is, two years in each case, 240 hours and the other conditions in relation to Ms Bui, together with core conditions.
29MR LINDNER: Thank you, Your Honour.
30MR JASSAR: Thank you, sir.
31(At a later stage)
32HIS HONOUR: What is the situation?
33MR JASSAR: Consent, Your Honour.
34MR LINDNER: Yes, Your Honour.
35HIS HONOUR: Very well. Mr Ta, I intend, if you consent, that is if you agree, to release you on a two year Community Corrections Order with conviction, and a special condition that you do 240 hours unpaid community work. Do you consent? Do you agree to entering into that Order?
36OFFENDER TA: I agree, Your Honour.
37HIS HONOUR: Thank you. Ms Bui, if you consent, that is if you agree, I intend to release you on a two year Community Corrections Order with conviction, and with the conditions firstly, that you do 240 hours unpaid community work; secondly, that you undergo treatment and rehabilitation including assessment and testing for illicit drug use; and thirdly, that you be under supervision for that period of two years. Do you consent? Do you agree to entering into such an Order?
38OFFENDER BUI: (Through interpreter) Yes I do agree, sir.
39HIS HONOUR: Very well, the documents will be provided to you.
40HIS HONOUR: I will further point out to both Mr Ta and Ms Bui, that the basic - that is the core conditions - include the following: that during the period of two years you must not commit another offence for which you could be imprisoned during the two years; you must comply with any obligation or requirement to receive visits and report, as required; that you must report to a Community Corrections Centre within two days of today's date; you must not leave Victoria except with permission of the relevant authority; and you must comply with any direction given by the Secretary that is necessary to ensure that you comply with this Order. Do you understand those conditions?
41OFFENDER TA: Yes, Your Honour.
42HIS HONOUR: Do you consent?
43OFFENDER BUI: (Through interpreter) Yes, Your Honour.
44OFFENDER TA: Yes, Your Honour.
45HIS HONOUR: Thank you. Very well, the orders will be shown to you now if Counsel wish to approach the dock to assist their clients and they will, if appropriate, sign the orders and I will countersign them.
46MR JASSAR: Just a minor slip, Your Honour, the date of birth for Mr Ta should be 24 January 1984, not 24 October 1984, on both the orders - even the court orders and the Community Corrections Orders it is stated as the date of birth 24 October 1984.
47HIS HONOUR: I think we have had this problem before, Mr Jassar.
48MR JASSAR: Yes.
49HIS HONOUR: We will correct that.
50MR JASSAR: I was confused earlier in the plea, Your Honour, whether it was
October or January, but it is January.
51HIS HONOUR: Very well, we will get it right in the end. Yes, Mr Lindner?
52MR LINDNER: I have a document, Your Honour.
53HIS HONOUR: Thank you very much. What was the date again, Mr Jassar?
54MR JASSAR: 24 January. I didn't want to do it, sir; I thought it not appropriate for me to do so. There might be some other Truc Ta born in October.
55HIS HONOUR: I will tell you, Mr Jassar, being in a court of record has one advantage, that there are records, the trouble is that it is a laborious process. And changing things, they are writ in stone, unfortunately. With that alteration, if you would ask your client to sign that, Mr Jassar, thank you.
56MR JASSAR: Certainly. Thank you, Your Honour, that's done.
57HIS HONOUR: Thank you. Thank you, Ms Tang, for appearing today. Mr Lindner and Mr Jassar, I thank you very much for your endeavours and your assistance in this matter in particular you, Mr Lindner, if I may say, in achieving a very sensible outcome. I thank you all. I'm sorry, Ms Tang, is there something you wish to say?
58MS TANG: Yes, Your Honour, I was just going to bring up the question of the orders, Your Honour, have they been signed?
59HIS HONOUR: Did I sign them? I thought I did. That's the retention orders?
60MS TANG: That's correct, Your Honour.
61HIS HONOUR: The matter of the other paraphernalia that was seized is going to be the subject of orders in the matter of Ly.
62MS TANG: That's correct, Your Honour.
63HIS HONOUR: So I think we're all done.
64MS TANG: Thank you, is Your Honour going to give a s.6AAA indication?
65HIS HONOUR: I don't think I'm required to, in my recollection. My recollection is that only if there is a sentence of imprisonment that I must do so. Must state the sentence and the non-parole period, if any, that it would have imposed but for the plea of guilty. There is an ambiguity in it but that is as I understand it, Ms Tang.
66MS TANG: Yes, Your Honour.
67HIS HONOUR: Thank you, we will stand adjourned.
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