Director of Public Prosecutions v Tran
[2021] VCC 596
•13 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00899
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRIEN TRAN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2021 | |
DATE OF SENTENCE: | 13 May 2021 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 596 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Pleas of guilty – Negligently deal with proceeds of crime – Prohibited person in possession of a firearm – Trafficking in a drug of dependence – Possession of a drug of dependence – Failure to comply with order to provide information – Relevant criminal history – Serious drug problem – Offender taking rehabilitative steps in custody – Insight and genuine remorse.
Legislation Cited: Crimes Act 1958 s 194(4); Firearms Act 1996 ss 3, 5(1), 124(1); Drugs, Poisons and Controlled Substances Act 1981 ss 71AC, 73, 81; Sentencing Act 1991 s 6AAA, 18.
Sentence: Imprisonment for a period of 3 years with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Joosten (Plea) Mr B Nankin (Sentence) | Director of Public Prosecutions |
| For the Accused | Ms C Lynch (Plea) Mr J McKenzie (Sentence) | Leanne Warren and Associates |
HIS HONOUR:
Introduction
1Trien Tran, you have pleaded guilty to the following offences:
· one charge of negligently dealing with proceeds of crime, contrary to s 194(4) of the Crimes Act 1958, which carries a maximum penalty of five years imprisonment (Charge 1);
· one charge of being a prohibited person in possession of a firearm contrary to s 5(1) of the Firearms Act 1996, which carries a maximum penalty of 10 years imprisonment (Charge 2);
· one charge of trafficking in a drug of dependence, namely Methylamphetamine, contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 15 years imprisonment (Charge 3);
· one charge of possession of a drug of dependence, namely cocaine and heroin, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981, which carries a maximum penalty of 30 penalty units and/or one year imprisonment where the offence is not for any purpose related to trafficking and 400 penalty units or five years imprisonment in any other case (Charge 4); and
· one charge of failure to comply with an order to provide information contrary to s 465AA(9) of the Crimes Act 1958, which carries a maximum penalty of five years imprisonment (Charge 5).
2You have also pleaded guilty to the following related summary offences:
· one charge of possession of cartridge ammunition, contrary to s 124(1) of the Firearms Act 1996, which carries a maximum penalty of 40 penalty units (Summary Charge 3); and
· four charges of possess prohibited weapon without exemption or approval contrary to s 5AA of the Control Weapons of Act 1990, which carries a maximum penalty of two years imprisonment on each charge and they are Summary Charges 4, 5, 6 and 7.
3You have also admitted your prior Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5At the time of the offending you were 39 years of age and residing in a three‑bedroom house at 31 Novara Parade, St Albans which you rented privately. Your housemate Reece Whitworth occupied a self contained bungalow at the rear of the house. The house was fitted with an external and internal motion sensor closed circuit television (CCTV) and you could monitor the CCTV on your mobile phone.
6On 16 December 2019, at approximately 7.15am investigators from the Victoria Police Drug Taskforce attended at your address to execute multiple search warrants pursuant to s 81 of the Drugs, Poisons and Controlled Substances Act 1981 and s 465 of the Crimes Act 1958.
7Upon arrival, you were located in the driver’s seat of a 2016 white Porsche wagon registration AKW-479 (the Porsche) in the driveway. You had just arrived in the vehicle and were the only occupant. Police spoke to you and conducted a search of the premises and the Porsche.
8You exited the vehicle and were asked to remove all items from your pockets and place them onto the bonnet. You complied and removed the following items:
· $2040 cash which gives rise to Charge 1, negligently deal with proceeds of crime;
· a black Nokia mobile phone;
· silver knuckle dusters, which gives rise to Summary Charge 7, possess prohibited weapon; and
· a small utensil tool commonly for used for scooping and separating powder drugs in order to be consumed.
Items located in the Porsche
9Police located the following items within the Porsche:
· a cotton bag containing a silver handgun and two magazines containing ammunition rounds in the left-hand side panel of the boot, which gives rise to Charge 2, being a prohibited person in possession of a firearm;
· a zip lock bag containing four ammunition rounds under the front passenger seat of the vehicle, which gives rise to Summary Charge 3, possess cartridge ammunition;
· a black ‘Adaptor’ Taser in the main boot area, which gives rise to Summary Charge 4, possess prohibited weapon;
· a purple bag containing a Taser with three cartridges, in the left-hand side panel of the boot, which gives rise to Summary Charge 5, possess prohibited weapon;
· a black firearm holster in the left side panel of the vehicle which I think is Summary Charge - I will come back to that;
· a black phone wallet in the front passenger foot well containing a Samsung mobile phone and personal cards in your name; and
· a black pouch in the roof lining of the vehicle containing:
§multiple small plastic bags containing white and yellow crystals with a total net quantity of 56.1 grams later confirmed to contain methylamphetamine, which forms part of Charge 3, trafficking in a drug of dependence;
§a small plastic package containing a plastic bag containing a net quantity of white powder and compressed white powder with a net quantity of 0.8 grams, later confirmed to contain cocaine, which forms part of Charge 4, possess drug of dependence; and
§a plastic bag containing a plastic bag portion containing compressed white powder and a foil package containing off-white powder with a total net quantity of 6.3 grams later confirmed to contain heroin, which forms part of Charge 4, possess drug of dependence.
10Police located the following items within your premises:
· a small plastic bag with blue tape around it containing pressed white powder with a total net quantity of 3.5 grams, located on the couch of the lounge room, later confirmed to contain cocaine, which forms part of Charge 4, possess drug of dependence;
· a plastic bag containing off-white crystals with a total net quantity of 6.5 grams, located in the kitchen pantry, later confirmed to contain methylamphetamine which forms part of Charge 3, trafficking in a drug of dependence;
· a red-coloured Taser on the bedside table in your bedroom, which gives rise to Summary Charge 6, possess prohibited weapon; and
· a plastic bag containing four separate plastic bags of pale yellow crystals with a total net quantity of 111.1 grams later confirmed to contain methylamphetamine, which forms part of Charge 3, trafficking in a drug of dependence.
11At the time of the offending you were a prohibited person pursuant to s 3 of the Firearms Act 1996 as you had served a term of imprisonment for an indictable offence within the last five years. The firearm located in your possession was not registered and you had no licence to possess a prohibited weapon, which gives rise to Charge 2, being a prohibited person in possession of a firearm.
Arrest, Interview and Investigation
12You were arrested and interviewed by police on 16 December 2019 at the City West Police Station, making a ‘no comment’ record of interview. You were remanded in custody on the same day.
13During the interview, it was explained to you that the police were in possession of an order pursuant to s 465AAA of the Crimes Act 1958 which authorised a police officer to direct you to provide information or assistance to allow access to the data held on a computer or data storage device. You refused to provide information to access the data on the Nokia and Samsung mobile phones found in your possession when directed to do so by police. It is these facts that relate to Charge 5, failure to comply with an order to provide information.
14The substances located at your address and in the Porsche were tested and examined. In relation to Charge 3, the total net quantity of items containing methylamphetamine was 173.7 grams varying from 57 per cent to 87 per cent purity. The total approximate quantity of methylamphetamine is 144 grams. In relation to Charge 4, the total net quantity of items containing heroin was 6.4 grams varying from 74 to 89 per cent purity, and the total net quantity of items containing cocaine was 4.3 grams, varying from 46 per cent to 81 per cent purity.
15DNA analysis revealed your DNA profile as a contributor on a number of the items seized, including the firearm, which is detailed in the prosecution opening.
16The firearm was examined by Leading Senior Constable David Breer of the Ballistics Unit who observed it to be a 9 millimetre Luger calibre Wilson conversion, 1911A1 model, semi-automatic pistol. The pistol was incapable of discharge in its present condition due to a modification to the firing pin, however, it could have been made operable with a replacement firing pin.
Nature and gravity of the offending
17When consideration is given to the facts that give rise to all of the charges both indictable and summary, they reflect a person who is intimately involved in the drug world, at a relatively serious level. The combination of a number of different drugs together with weapons and ammunition, and the fact that a number of these items were concealed, in my view also demonstrates that you were operating a relatively sophisticated drug trafficking business. While I accept that you also were battling with a serious drug problem at the time, your conduct went well beyond that of a user seeking to maintain their own habit.
18In relation to Charge 3, the total amount of methamphetamine is 173.7 grams with an estimated purity of 144 grams which clearly exceeds the commercial quantity which is 50 grams. While you are not charged with trafficking in a commercial quantity, the amount of methamphetamine represented by Charge 3 clearly elevates that charge to a serious example of trafficking simpliciter.
19The firearm that was found in your possession was at that time incapable of discharge, however with a replacement firing pin it would have been fully operable. Further, I was told at the plea hearing that the magazines containing live ammunition that were found together with the firearm were able to be used with that firearm. The charge is made more serious by the fact that you were a prohibited person when in possession of the firearm. In my view despite the fact that the firearm was not operable at the time of arrest, I agree with the submission on behalf of the prosecution that it represents a ‘moderately serious example’ of the offence.
20In relation to Charge 4, possession of cocaine and heroin, in my view in the circumstances I am satisfied that the possession was related to the purposes of trafficking and thus the higher maximum penalty applies.
Personal circumstances
21You were born in Vietnam in 1980 and are now 40 years of age. You migrated to Australia in 1988 when you were around eight years of age and were granted Australian citizenship. You grew up in Melbourne’s west in a traditional and strict Vietnamese family of five siblings. Your father was a house re-stumper and your mother worked in textiles and restaurants. You were subjected to violent physical discipline by your father, your parents had high expectations of you, and you were encouraged to be stoic as opposed to express emotion.
22You attended Essendon Keilor College and then commenced a Bachelor of Science, majoring in Information Technology at Victoria University of Technology. You worked in factory and warehousing jobs. Whilst at university you met Ha Trinh and commenced a relationship with her in 2000. Your father did not approve of this relationship as Ms Trinh had a five year old daughter. As a result, your relationship with your father deteriorated and you left the family home to live with Ms Trinh. You lived in Sydney together for 12 months and then returned to Melbourne to live with Ms Trinh’s father. In 2003, your first daughter was born.
23After completing your degree, you worked in the industry you studied in and then opened a Karaoke bar in Footscray in 2006. This business was unsuccessful, and the resultant stress seemed to be the catalyst for a number of negative changes in your life. By 2009 you were using drugs, your relationship with Ms Trinh had broken down and you were involved in the criminal justice system.
24You commenced a relationship with another woman and in 2015, your second daughter was born. Whilst that relationship ended, you remain in contact with her and your daughter.
25In 2016 you served time in custody and upon release in 2017 on a community correction order, your life stabilised. You resumed your relationship with Ms Trinh, rented a house and worked as a manager in your brother’s bottle shop. You also had support through the community correction order.
26In 2018 Ms Trinh’s father passed away. He had become a father figure for you, and this event was a trigger to you relapsing into drug use and the associated lifestyle, ultimately leading to this offending.
27You have taken active steps to towards your rehabilitation whilst on remand for this offending, working as a spray painter and as a billet in the gym, as well as improving your fitness. A letter from Chanh Nguyen, a Buddhist Chaplain, was tendered on the plea indicating your involvement in fortnightly pastoral care and meditation sessions in custody, which involve self-reflection and mindfulness. You also engaged in education and treatment programs, completing a number of courses with the Box Hill Institute and a six hour Respectful Relationships course. A letter was tendered from Dr Sara Salessi of Caraniche Pty Ltd confirming that you have engaged in six individual counselling sessions since January this year and that you have engaged in the sessions, demonstrating motivation. Three urine screen results were tendered confirming that you have remained drug free while in custody.
28Your partner Ha Trinh provided a letter to the Court that provides further historical information about your family and your relationship with Ms Trinh. Despite the difficulties your relationship has suffered, Ms Trinh remains supportive of you and it is anticipated that you will return to live with her on your release. Ms Trinh has also offered to provide you with some employment within her business.
29You wrote a letter to the court where you acknowledge the poor choices you have made and the pain that you have created for yourself, your family and the wider community. You acknowledge your need to change and are committed to reconnecting with your family and remaining drug free.
Sentencing considerations
30Ms Lynch, who appeared on your behalf, highlighted a number of matters in mitigation. First is your plea of guilty. The matter resolved prior to a case conference before me on 29 March 2021, in circumstances where the primary issue in dispute was whether trafficking in a commercial quantity or trafficking simpliciter was the appropriate charge. Your plea has avoided the resources, time and expense of a jury trial in circumstances where a number of matters, including DNA evidence, were in issue. In the circumstances, I accept that your plea was at the earliest reasonable opportunity once the prosecution did not proceed with the commercial quantity trafficking charge.
31As to remorse, I refer to the letter you wrote to the court. While letters written by offenders to the court are often viewed with caution, in my view your letter demonstrates insight into your drug use and how it impacts those around you, including the effect on the community as a result of your related criminal conduct. You explain your desire to reconnect with family and be a better example to your daughter. The accompanying materials also demonstrate that you are making a genuine effort to understand your wrongdoing and make a change. In the circumstances I accept that you have demonstrated a degree of genuine remorse.
32As to your prospects of rehabilitation, it was submitted that given the progress you have made since being in custody, your prospects are positive. Despite restrictions as a result of the pandemic, you have engaged in numerous educational courses, completed drug and alcohol counselling sessions and produced clean urine screens. You have also engaged in pastoral care through the Buddhist Council of Victoria. Clearly, your prospects are dependent on you remaining drug free, which will be a difficult road once you are released and at some point, face the temptation of using. However, if you do remain drug free in my view, your prospects of rehabilitation will remain positive.
33Ms Joosten, who appeared on behalf of the Director of Public Prosecutions, submitted that general deterrence, denunciation of your conduct and protection of the community are important sentencing considerations. Ms Joosten also submitted that because the offending is of a similar nature to your most recent prior matter, specific deterrence must carry weight in the sentencing discretion. I accept and agree with those submissions.
Sentence
34Mr Tran, would you please stand.
35Trien Tran, on Charge 1, negligently dealing with the proceeds of crime, you are convicted and sentenced to 3 months imprisonment. On Charge 2, being a prohibited person in possession of a firearm, you are convicted and sentenced to 2 years and 6 months imprisonment. On Charge 3, trafficking in a drug of dependence, you are convicted and sentenced to 2 years and 6 months imprisonment. On Charge 4, possession of a drug of dependence, you are convicted and sentenced to 6 months imprisonment. On Charge 5, failure to comply with an order to provide information, you are convicted and sentenced to 3 months imprisonment.
36On Summary Charge 3, possession of cartridge ammunition, you are convicted and fined $500. On Charges 4, 5, 6 and 7, possession of the prohibited weapons, you are convicted on each charge and sentenced to an aggregate 3 months imprisonment.
37I direct that 6 months of the sentence on Charge 3 be served cumulatively on the sentence imposed on Charge 2. The remaining sentences will be concurrent. That makes for a total effective sentence of 3 years imprisonment. I direct that you serve 2 years before becoming eligible for parole.
38Pursuant to s 18 of the Sentencing Act1991, I declare that 514 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
39Pursuant to s 6AAA of the Sentencing Act1991, if not for your pleas of guilty, I would have sentenced you to 3 years and 9 months imprisonment, with a non-parole period of 2 years and 6 months.
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