Director of Public Prosecutions v Tran
[2022] VCC 142
•16 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-21-00203
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH TUAN LE TRAN |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 February 2022 |
DATE OF SENTENCE: | 16 February 2022 |
CASE MAY BE CITED AS: | DPP v Tran |
MEDIUM NEUTRAL CITATION: | [2022] VCC 142 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Traffick heroin; possession of a drug of dependence
Legislation Cited: Sentencing Act 1991 (Vic); Drugs, Poisons and Controlled Substances Act 1981 (Vic)
Cases Cited:
Sentence:Total effective sentence 6 months imprisonment & Community Correction Order (2 years duration, 150 hours community work, drug treatment); fines.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Paganis | Office of Public Prosecutions |
For the Offender | Mr H. Moodie | James Dowsley & Associates |
HER HONOUR:
1Anh Tuan Le Tran, you have pleaded guilty on indictment to one charge of trafficking in a drug of dependence, namely heroin, and three charges of possession of a drug of dependence.
2You have also pleaded guilty to three summary offences: being a non-prohibited person possess an imitation firearm; deal with property suspected of being the proceeds of crime ($2,470.30 in cash); and committing an indictable offence (trafficking heroin) whilst being on bail.
3In sentencing you for your crimes I am obliged to consider the maximum penalties for the offences which you have committed. The maximum penalty for trafficking in a drug of dependence is 15 years' imprisonment. For the charges of possess a drug of dependence the maximum penalty is one year in circumstances where the court is satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking and, in any other case, to a penalty of five years' imprisonment. In your case it is conceded that the maximum penalty is one year.
4For each of the related summary offences of non-prohibited person possess imitation firearm and deal with property suspected to be the proceeds of crime the maximum penalty is two years' imprisonment. Committing an indictable offence whilst on bail carries a maximum penalty of three months' imprisonment.
5These maximum penalties reflect the seriousness with which Parliament regards the offences you have committed.
The offending
6The circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 7 December 2021. This is an agreed document and reflects your acceptance of the elements of the offences to which you have entered your guilty pleas as well as the factual basis on which you fall to be sentenced. I have had regard to the entire document.
7In short compass, at approximately 4.10 am on Wednesday, 25 December 2019 you were a passenger in a 2003 Toyota Camry being driven by your associate Phuong Tranh Huynh.
8Police officers First Constable Alexander Urano and Senior Constable Marcus Nosek were on duty in the Richmond area when First Constable Urano observed the Toyota Camry being driven in Lennox Street, Richmond without operating tail lights.
9First Constable Urano directed the Camry to pull over in Elizabeth Street, Richmond. Your identities were confirmed. You were in the front passenger seat and informed First Constable Urano that you and Huynh had just come from Mr Huynh's residence in Highett Street, Richmond and were on the way to a brothel.
10You and Mr Huynh were directed to exit the vehicle so that the police could search it pursuant to the Drugs, Poisons and Controlled Substances Act 1981. You each complied.
11Inside the Toyota Camry, Senior Constable Nosek located a brown Gucci bag with a red strap on the rear passenger seat. Inside that bag was a small zip-lock bag containing a brown crystalised substance. You admitted that the Gucci bag was yours and that the zip-lock bag contained MDMA. You were placed under arrest.
12The search continued with Senior Constable Nosek locating a red and black backpack in the footwell behind the front passenger seat. An imitation firearm was located inside the backpack - forming the basis for the summary charge of non-prohibited person possess imitation firearm. $2,400 in cash was located in the rear left pocket of your jeans and 90 cents in the rear right pocket, forming, in part, the basis for the charge of deal with property suspected to be the proceeds of crime.
13The red and black backpack was further searched at the Richmond police station. Items located included:
· three packages, each containing a brown compressed powder containing 84.1 grams of heroin with a purity at 0.5 per cent;
· three snap-lock bags, each containing a white compressed powder containing heroin in the amount of 4.12 grams with a purity ranging from 84 per cent to 86 cent;
· two snap-lock bags each containing a crystal substance of 0.7 grams identified as being methylamphetamine with a purity ranging from 83 to 84 per cent;
· a zip-lock bag containing brown crystals containing 3,4‑methylenedioxy-N-methamphetamine (MDMA) in the amount of 0.2 grams with a purity of 81 per cent;
· seven diazepam tablets; and
· a further $69.40 cents in cash, which also forms part of the summary charge of deal with property suspected to be the proceeds of crime, totalling $2,470.30 cents.
14I note that a traffickable quantity of heroin is 3 grams. You were found with a total of 88.2 grams, forming the basis for Charge 1 on the indictment, trafficking in drug of dependence.
15Your possession of methylamphetamine, MDMA and diazepam forms the basis for Charges 2, 3 and 4 on the indictment respectively, possess drug of dependence.
16You were on bail at the time of the offending, forming the basis for the summary charge of committing an indictable offence whilst on bail.
17On interview with police you denied being in possession of any of the items located by police in the Toyota Camry and told police you won the cash located on your person at Crown Casino. Subsequent investigation revealed that position to be false.
Gravity of offending
18In terms of the gravity of the offending, there is no challenge to the proposition that the MDMA, methylamphetamine and diazepam were not for the purposes of trafficking in those drugs, and I accept this is so.
19On any view of it, the most serious of the offences before this court is clearly Charge 1, trafficking in a drug of dependence, in this case heroin.
20Whilst it is submitted that the bulk of the drug was of low purity, therefore lessening the seriousness of your offending, this does little in my view to lower the gravity of your offending in what is a quantity-based sentencing regime - the quantity of drugs being an indicator of the seriousness of the offence. You had approximately 26 times a prima facie traffickable quantity of heroin. Observationally, you had approximately three ounce bags of low purity heroin and three smaller bags of high purity heroin. The Crown case is put on the basis that you had these drugs packaged in this way for the purposes of sale. The recipient of these drugs would be unaware of the purity.
21It is axiomatic to say, and a fact well known to you when I come to your personal circumstances, that drugs such as heroin wreak havoc in the lives of those who succumb to addiction.
22For your own needs at that time you were prepared to be involved in the pernicious trade of drug trafficking. It is a lucrative business with enormous negative and devastating impacts on the community through the offending that results from drug addiction, the physical and mental health impacts, and the behaviours drugs then produce.
23General deterrence, denunciation and community protection are important parts of the sentencing mix and the message needs to be clear to those who may be tempted to engage in such activities that stern punishment will result, in an effort to deter others.
24I do accept overall that your offending is not at the higher end. In written submissions dated 4 February 2022, the prosecution contend that your offending is 'a lower range example of the offence of trafficking in a drug of dependence'. The same submissions were made on your behalf.
25In your case the drugs located by police were also located with a not insignificant amount of cash, the subject of summary charge, and an imitation firearm, also the subject of summary charge. As already outlined, you were on bail at the time of this offending, also the subject of summary charge.
26On 17 November 2021 you failed to attend this court in relation to this matter and a warrant had to be issued for your arrest.
27There is obvious concern from that chronology about what would appear to be an inability to abide by court orders. I turn now to your personal circumstances.
Personal circumstances
28Whilst appearing younger than your stated age, you are presently 33 years and were born in Vietnam. You are the middle child of a sibship of three and report a positive relationship with your siblings and your parents.
29You immigrated to Australia with your mother when aged 13 years. Your father followed shortly thereafter. You found your transition to the Australian way of life initially difficult due to language barriers and cultural differences. You also found it difficult to adjust to your parents' separation, which occurred when you were around 16 years of age. Each of your parents have repartnered and you describe a positive relationship with your respective step-parents.
30To your credit you completed a Year 12 education, although your grades suffered in the final two years as you had already resorted to drug use. On leaving school you initially did well, working in a retail store for a number of years, and you obtained a real estate licence, working in that industry for some time.
31You commenced your drug use shortly after your parents' separation, smoking 2 to 3 grams of heroin per day. You subsequently began to use methamphetamine. You have used other drugs such as cocaine, MDMA and GHB on a more casual basis. During your early 20s you managed to abstain from drug use whilst working in retail; however, on partnering with another drug user you quickly resumed substance abuse.
32You now share an 18-month-old daughter, Rachel, with your now former partner Suzannie. Your daughter is presently in the care of your sister and the Department of Families, Fairness and Housing is involved. At the time of the offending before this court in December 2019 you were still in your relationship with Suzannie and your drug use was at its height. You were also unemployed at that time.
33These factors in no way excuse your offending but do set the context for how it came to occur. I accept that your resort to drug trafficking was at least in part related to funding your habit and that of your then partner. This is perhaps further supported by what is a limited and unrelated criminal history.
Prior criminal history
34On 4 September 2012 you appeared at the Sunshine Magistrates' Court in relation to a single charge of recklessly cause injury. You would have been in your early 20s at that time. You were convicted and sentenced to six months' imprisonment, which was wholly suspended for a period of 12 months. It appears that you did abide by that court order.
35Apparently on 7 January 2020 you were fined $500 without a conviction being recorded for a charge of possession of methamphetamine.
36You have one pending matter listed in the Magistrates' Court on 17 February 2022, which you hope to resolve.
Psychological assessment
37Tendered on your behalf is a psychological assessment of you conducted by Ms Carla Ferrari, forensic psychologist. The report is dated 20 January 2022. The report sets out much of your personal circumstances, including your resort to offending in the circumstances of you and your then partner having heavy drug addictions.
38It appears that you present with a poor history of coping skills when faced with stress, which has seen you take refuge in drug use. Ms Ferrari does see benefit in you receiving psychological assistance to develop, in her words:
'Skills to regulate [your] emotions, tolerate distress and to develop appropriate strategies to manage stressful situations in the future'.
39On her findings there was no evidence of any psychological disturbance, personality or depressive disorder. You have no identified cognitive difficulty. Ms Ferrari reports that you have good insight into your poor coping, substance use and the connection to offending. Combined with your limited history and available family support, these factors would appear to auger well for your rehabilitation.
40Indeed, in her unchallenged report Ms Ferrari does not assess you as having a criminal belief system; rather, your offending was related to your excessive drug use in circumstance of distress and maladaptive coping. She assesses your risk of reoffending at this time as low.
41In these circumstances it would appear that less weight need to attach to both specific deterrence and the need to protect the community from you.
Rehabilitation
42As to your prospects for rehabilitation, as a direct result of your offending you have experienced two periods of remand. It is certainly a shame you did not learn your lessons from the first one. Initially this was between your arrest on 25 December 2019 and release on bail on 31 March 2002, after serving some 98 days on remand. I am told that you resumed your relationship with Suzannie upon your release and returned to drug use.
43You were again remanded on 18 November 2020 in relation to separate matters and granted bail on 21 December 2020.
44On 17 November 2021 you failed to attend mention proceedings in the County Court and a warrant was issued for your arrest. You were arrested on 23 November 2021 and presently remain in custody.
45Not including today, you have some 182 days available as pre‑sentence detention.
46In the context of your prior history these periods reflect your first time in custody.
47The majority of your remand has been during the Corrections response to the COVID-19 pandemic. This has required remanded prisoners to be isolated for the first 14 days, which you have experienced twice, and has also meant more limited access to rehabilitative programs, direct contact with friends and family and general movement within the prison system. In my view this makes both the remand and sentenced prisoner experience more difficult than it would be at other times.
48That context also includes the current reality that COVID-19 has now been identified in the prison system. Accepting that appropriate protective interventions are in place, I also accept that any prisoner may have additional concerns for their well-being.
49Your experience overall and the time you have served thus far is capable already as acting to a degree as both sanction and a deterrent.
50After your period of remand you are now motivated towards a different way of life. In December 2020 you terminated your relationship with Suzannie, recognising that it was not a relationship which was conducive to reform. You apparently ceased drug use in November of that year. I am told you have provided negative urine screens whilst in custody.
51Importantly, you want to repair relationships with family and develop a meaningful relationship with your daughter Rachel. You are prepared to work with the Department of Families, Fairness and Housing. I accept that these are both potentially powerful motivators for you to change.
52You are able to return home to live with your mother and stepfather, and your stepfather may be able to offer you employment. You will therefore be able to access supports upon your release. I encourage you to take up Ms Cidoni's recommendations to obtain psychological assistance. You obviously need to remain abstinent from drugs.
Plea of guilty
53The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea.
54On 29 September 2021 you made an application to exclude evidence alleged to have been illegally obtained, that being the drugs located by police on you on 25 December 2019. The challenge was to the circumstances of the search of your vehicle by police on that day.
55Ultimately I ruled that the evidence located by police from the search of your vehicle on 25 December 2019 should be admitted in any trial. At that point, and after further discussions with the prosecution, you determined to plead guilty to the current indictment and related summary offences.
56Whilst your plea in this context is not at an early stage, you cannot be criticised for running a legitimate argument on legal advice. Some relevant documentation was only revealed through the committal process. The ruling sought essentially facilitated the next stage resolving to your plea of guilty.
57Your plea does have utilitarian benefit. It has saved the court the time and expense of contested proceedings. This has occurred at the same time in the context of the court needing to respond to the impact of the COVID-19 pandemic.
58Whilst a defence have been difficult to mount once the search by police of your vehicle was ruled as admissible, your plea provides still certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed. In that sense it has additional utilitarian value.
59In her report, Ms Ferrari describes you as appearing genuinely remorseful for your conduct. The same utterances were made to the assessor for your community corrections order. I do accept that you are remorseful. These factors will all be taken into account in your favour.
Submissions
60In terms of the parties' submissions, your counsel contends that all relevant sentencing considerations can be reflected in the imposition of what is referred to as a combination sentence - that is, a term of imprisonment in combination with a community corrections order.
61Your counsel has provided a helpful range of comparative cases. The prosecution do not take issue with the sentencing submission made on your behalf.
62Section 37 of the Sentencing Act obliges me to seek an assessment when considering the imposition of such an order. The making of any order also requires the consent of the offender.
63I sought that you be assessed as to your suitability for a community corrections order. An assessment outcome report dated 7 February 2022 assesses you as suitable for such an order. You presented to the assessor as forthright, to be planning positively for your future and as remorseful for your wrongdoing.
Sentencing
64I do make the three ancillary orders as sought for forfeiture and disposal of scheduled items.
65The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
66I must also balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure where possible that offenders are rehabilitated and are reintegrated into society.
67I have taken into account the relevant sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality.
68In terms of Charges 2, 3 and 4 on the indictment, bearing in mind the relatively small amounts and your limited history, I propose to impose an aggregate fine, given the like nature of that offending which occurred at exactly the same time. On those three charges you are convicted and fined the amount of $1,500.
69For Summary Charge 7, non-prohibited person possess imitation firearm, you are convicted and sentenced to three months' imprisonment.
70For Summary Charge 8, deal with property suspected to be the proceeds of crime, you are convicted and fined the amount of $1,000.
71For Summary Charge 9, commit indictable offence whilst on bail, you are convicted and sentenced to seven days' imprisonment.
72Bearing in mind the principle of totality, your limited history and the interrelationship of your offending, the terms of imprisonment on Summary Charges 7 and 9 are concurrent with the sentence I am about to impose on Charge 1 on the indictment.
73It is Charge 1 which is the most serious. For that offence you are convicted and sentenced to six months' imprisonment. I reckon 182 days as having already been served pursuant to s18 of the Sentencing Act 1991.
74The term of imprisonment on Charge 1 is in combination with a community corrections order of two years' duration. During that order you are to be supervised by the Office of Corrections, complete 150 hours of community work, be assessed and treated for drug use and abuse and for programs to reduce offending. Seventy-five hours of treatment is to be offset against the community work component.
75In addition to the conditions that I have imposed there are standard conditions. The first and foremost of those is you must not commit any other offences during the two-year period which could be punished by imprisonment. You must also report within two working days once released into the community to the nearest community corrections office. You are required to advise your supervising Corrections office of any change of address of where you are living and working and you must do so within two clear working days.
76It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising community corrections office.
77In my view this order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available. The order can be breached if you do not comply with it in terms of the conditions or reoffend whilst it is in place. If you do you will have to appear before me for contravening the order and I may have to resentence you on the original charges and to sentence you for contravening the order.
78Now, I can only place you on such an order if you agree, and I will give you the chance to speak to Mr Moodie about that, independent of the wrap-up at the end, Mr Moodie. Before I give you a chance to speak to Mr Tran about that I just want to check if there's anything I missed from your end, Ms Paganis.
79MS PAGANIS: I'll just unmute. No, Your Honour, that's everything, thank you.
80HER HONOUR: All right. Mr Moodie?
81MR MOODIE: No, Your Honour.
82HER HONOUR: All right. Well, I'll stand down temporarily so that you can take Mr Tran through the order and answer any questions he has about the order and then I'll check whether or not he consents to being placed on it. I'll finalise that aspect and then, as I said, I'll give you the opportunity to speak to Mr Tran privately. All right?
83MR MOODIE: Yes, Your Honour.
84HER HONOUR: I'll stand down temporarily, thank you.
(Short adjournment.)
85All right, thank you, Mr Moodie, have you had the chance to speak with Mr Tran?
86MR MOODIE: Thank you for that time. I have had a chance. He understands the order and he will consent to it, Your Honour.
87HER HONOUR: All right. Now, that will be sent through, is that right, Ms Ransom or Mr Atkins?
88ASSOCIATE: Yes.
89HER HONOUR: All right. Just out of abundance of caution, Mr Tran, even though I gave Mr Moodie the opportunity to get your instructions and he tells me you agree to the order in those terms, do you agree to the order in those terms?
90OFFENDER: Yes, Your Honour
91HER HONOUR: Thank you. I'm not second-guessing you, Mr Moodie. It's just, in case something goes wrong with getting the documents through, we've got his verbal consent.
92MR MOODIE: Yes, Your Honour.
93HER HONOUR: All right. Well, that in effect completes the matter, does it not, apart from the 6AAA? Thank goodness for that reminder from my associate, for which I'm very grateful.
94Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for your pleas of guilty, Mr Tran, you would have received a total effective sentence of 12 months' imprisonment in combination with a two-year order, two-year corrections order.
95All right. Now I think that completes the matter. So thank you to counsel very much for their assistance. Good luck, Mr Tran. In the nicest possible way, I don't want to see you again.
96OFFENDER: Thank you, Your Honour.
97HER HONOUR: I'll leave you to speak with Mr Moodie. I'll close the court till 9.30 tomorrow, thank you.
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