Director of Public Prosecutions v Tran
[2020] VCC 1825
•19 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 20-00032
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHELLE TRAN |
---
| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 September & 15 October 2020 |
| DATE OF SENTENCE: | 19 November 2020 |
| CASE MAY BE CITED AS: | DPP v Tran |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1825 |
REASONS FOR SENTENCE
---Subject: Importing and trafficking a commercial quantity of a border control drug contrary to the Commonwealth Criminal Code
Catchwords: Melbourne-based head of large-scale transnational drug syndicate – imported 4 x CQ and trafficked 1.07 x CQ over a 3-month period – early guilty plea – high utilitarian value – remorse
Legislation Cited:
Cases Cited: Phommalysack v R (2011) 31 VR 673; Suky Lieu v The Queen [2016] VSCA 277; Kleindyk v The Queen [2016] WASCA 123; De La Rosa (2010) 79 NSWLR 1; R v Pham (2015) 256 CLR 550
Sentence: total effective sentence of 18 years imprisonment, minimum non-parole period of 13 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Manning | Office of Public Prosecutions |
| For the Accused | Mr C. Nikakis | Haines & Polites |
HIS HONOUR:
1Michelle Ngoc Tran, you have pleaded guilty to one charge of importing of commercial quantity of a borer control drug, heroin, and one charge of trafficking a commercial quantity of a controlled drug, heroin, contrary to the Commonwealth Criminal Code.
Background
2You were the Melbourne-based head of an international syndicate which imported heroin into Australia. You were notorious within the drug trade and were known as 'the Queen of Richmond”. Your heroin supplier in Malaysia was Mr Hanoi. You dealt with him through two overseas intermediaries; one was your ex-husband's Vietnamese nephew, Johnny, and the other his associate, whom you called 'the Manager'.
3The syndicate used cabin crew members of Malaysian airlines to import 'tickets' of heroin concealed in their underwear. One ticket of heroin weighed approximately 1050 grams, split into three packages, containing 70 to 80 per cent pure heroin. When the heroin landed, it was sold locally.
4You boasted the heroin was of the highest purity available in Australia.
5You kept yourself removed from the couriers who brought the heroin into Australia and the domestic buyers who bought it. You used other people:
•to find purchasers for your heroin;
•to collect the heroin from couriers and deliver it to buyers (Lina Tran and Dep Mong Ta); and
•to collect cash from the buyers and remit payment to the couriers (Lina Tran & Ta).
6You directed and supervised their activities, to keep control over the supply and sale of the heroin.
7Kha Ngo introduced heroin buyers to you and made arrangements to complete deals with them. He was arrested on 8 January 2019 and charged with importing four tickets of heroin and trafficking two tickets and a sample for the syndicate.
8Lina Tran was your trusted aide for a period in October 2018. Under your direction and supervision, she collected heroin from the courier, when it landed in Melbourne, delivered the heroin to buyers and collected payment, and paid the courier for the heroin supplied.
9Lina Tran was arrested in Melbourne on 14 January 2019 and charged with trafficking a commercial quantity of heroin for the syndicate.
10Dep Ta performed a similar role for you until she was arrested on
14 November 2018 in Western Australia.11You also implemented codes to discuss your drug-related activities and used 6 different mobile phones all subscribed in false names to minimise the risk of your detection.
12Importation (eight tickets)
13Zailee Zainal was an international courier for the syndicate. She was a cabin crew member with an international Malaysian airline. She brought eight tickets of heroin into Australia on flights from Malaysia between 2 October 2018 and
7 January 2019 when she was arrested.14Between 2 October 2018 and 25 December 2018, you imported eight tickets of heroin. Zainal brought in six of them. Other flight attendants, McMillan Solibun and Audra Yeang, brought in the others.
15Authorities intercepted four of the tickets, which weighed 4208.9 grams and contained 3225.5 grams of pure heroin
16The four tickets which were not intercepted will also have weighed around 4 kilograms and contained between 2.8 and 3.2 kilograms of pure heroin.
17You imported approximately 6 kilograms of pure heroin in the eight importations.
18Under federal law, a commercial quantity of heroin is 1.5 kilograms.
19Generally, you paid $155,000 for each ticket of heroin and sold them for $195,000.
20The wholesale value, here, of the imported heroin was around $1.2 to $1.6m. Its street value was at least three to four times greater, that is, somewhere between $3.5m and nearly $5m.
Trafficking (two tickets and 1 ounce sample)
21Between 3 October 2018 and 24 October 2018, you sold two tickets of heroin and a one ounce sample.
22The total quantity of heroin that you trafficked was 2124.8 grams gross weight and 1610.9 grams pure.
23During those three weeks, you trafficked heroin which weighed 1.07 times a commercial quantity.
24The wholesale value of the heroin was around $400,000. Again, its street value was three to four times greater, somewhere between $1.2 and $1.6m.
Circumstances of offending
25On 25 September 2018 you met Kha Ngo at a café to arrange a meeting to discuss a prospective sale. When you wanted to meet the buyer, a meeting was arranged for 1 October. When the buyer cancelled the meeting you complained that heroin was due to arrive from overseas on 2 October. You agreed with Ngo to supply the buyer a sample.
26On 2 October, Zainal flew into Melbourne from Malaysia with the ticket of heroin. With Lina Tran, you went to her hotel, where Tran collected the heroin from Zainal and gave her cash, for you.
27On 3 October 2018, with Ngo, you met a prospective customer. You told him you would supply him with a 1 ounce sample of heroin for $5000. You said it had come from the last shipment on 2 October. You told him you got weekly 1 kilogram shipments and the next was due on 10 October. You said the price was $195,000. You told him you never touched the heroin and you had people who worked for you to do the deliveries and pickups.
28Next day, the customer placed an order for 1 kilogram of heroin.
29On 7 October, with Ngo, you met the customer again. You told him the heroin came direct from overseas, through you, to him. You told him a kilogram was to be referred to as a 'ticket'. You said you had one ticket arriving on the morning of 10 October 2018 and another in the evening. You asked the buyer for the address where your 'soldier', referring to Lina Tran, would deliver the heroin. You confirmed prices of $195,000 for the ticket and $5000 for the sample. You said you had been in the drug business for nearly 30 years, your name was very famous and one of your soldiers held the phone for you when you were talking.
30Zainal arrived in Melbourne from Malaysia on the morning of 10 October 2018 with another ticket of heroin. With Lina Tran, you went to her hotel, where Tran went into the hotel, collected the heroin and returned to you. The two of you went Collingwood, where you met the customer. Lina Tran handed him the heroin and he gave her the money. You had provided him with 1041.4 grams of heroin with a pure weight of 750.8 grams. With Lina Tran, you returned to Zainal's hotel, where Lina Tran gave cash in payment to Zainal.
31In the evening of 10 October 2018, another international flight steward, MacMillan Solibun, arrived in Melbourne with a ticket of heroin. Dep Ta collected it for you at Solibun's hotel and gave him some cash.
32On 15 October 2018, Zainal arrived in Melbourne with another ticket of heroin. Ta collected the heroin from Zainal at her hotel for you.
33On 21 October, with Lina Tran, you met Ngo and the customer. The customer had not bought the 15 October ticket as you expected. However, he said he would take two tickets a month in future.
34On 24 October, Zainal arrived in Melbourne from Malaysia with another ticket of heroin. You went to her hotel with Lina Tran, where Tran collected the heroin from Zainal. The two of you went to Fitzroy, where Tran took the heroin to the customer and collected cash for payment while you waited for her nearby.
35During November you discussed further importations with the customer. You told him, after expenses, you made $20,000 from each ticket sold.
36In November 2018, your activities were disrupted when Ta was arrested in Western Australia and when Border Force officials questioned Solibun at Sydney Airport. He had escaped apprehension because, suspecting you might be caught, you had cancelled the importation he was to make.
37You proposed to your customer he deal directly with your overseas supplier provided he paid you your usual profit of $20,000 as a commission for each ticket supplied.
38On 4 December 2018, with Ngo, you met the customer and gave him the number for your overseas contact, Johnny. At the meeting you called Johnny and introduced him to the customer.
39On 5 December 2018, the customer paid you $70,000 as a cash advance on your commissions for future imports.
40You arranged the importation of a ticket of heroin brought into Perth by a Malaysian flight attendant, Audra Yeang, on 6 December. The customer had someone collect the ticket from Yeang and pay her $155,000.
41In mid-December, in a series of messages and calls between the customer, Johnny, Ngo and you, arrangements were made for further heroin importations.
42On 22 December 2018, Zainal brought another ticket of heroin into Melbourne from Malaysia. The customer arranged to collect the heroin from Zainal and paid her $155,000. Your commission was $20,000.
43On 25 December 2018, Zainal brought another ticket of heroin into Melbourne from Malaysia. She met another of your customers and gave him the heroin you had agreed to supply.
44Early in the New Year, you spoke to a friend about your future plans. You told her about the nail salon you had set up and said you would 'still do the other work', referring to the heroin trade, but earning less.
Arrest and interview
45Police arrested you on 8 January 2019:
•You said you had recently set up a nail technician business with six staff;
•when you were shown a photograph of Dep Ta, you said the two of you were friends; and
•when you were shown a photograph of Kha Ngo, you said he was your friend; and
•when you were shown a photograph of Lina Tran, you said she was your friend and you had known her for a long time;
•when you were shown a photo of Zainal, the courier, you said you did not know who she was.
46You exercised your right to remain silent when police asked you questions in relation to importing and trafficking drugs.
47When you were asked whether you owned a house in Richmond you said it was your daughter's. You said you won $200,000 at the casino which you gave her for a deposit to purchase the property. You said you stopped gambling around 2012 after the casino banned you.
48Police asked you how you could afford two cars and the rent on your home in Richmond and the nail business, and you said one car belonged to your husband, who you described as 'on and off'. And you otherwise exercised your right to remain silent.
49When they asked you about a phone they found in your bag, you said a friend had left it with you.
50You have admitted one court appearance on 25 May 2017 in the Melbourne Magistrates' Court, when you were fined $100 without conviction for entering a casino complex contrary to an exclusion order.
51You were born on 3 November 1971. You were 47 years old when you offended and are now aged 49.
Defence submissions
52Mr Nikakis, who appeared on your behalf, told me you were born in Saigon, Vietnam. Your parents separated when you were very young. When you were four years old, your mother died and your father left for the United States. Your grandmother subsequently raised you.
53You completed schooling to Year 9 equivalent and then worked in a government owned cigarette manufacturing company. You married in Vietnam and, in 1991, your husband and you emigrated to Australia.
54You lived in Collingwood and worked sewing garments for a number of years.
55You have a daughter, Jenny, who was born in 1995. Not long after her birth, you separated from her father.
56After your divorce, between taking care of your daughter and working to support her, you started gambling. It turned into a problem for you. Mr Nikakis told me you tried to stop but did not succeed until you were eventually banned. He said, prior to this offending, you owed up to $800,000 to loan sharks. He told me, twice, persons you believe to be associated with the loan sharks tried to intimidate you with threats of violence to enforce payment.
57He said your offending was partly motivated by the need to pay your gambling debts.
58Your daughter was living with you when you offended. She now lives on her own. She has kept regular contact with you in prison and continues to support you.
59Mr Nikakis told me that Kha Ngo encouraged you in your offending, boasting he had customers ready to purchase the imported heroin. He introduced you to customers who, through him, bought heroin from you.
60Mr Nikakis accepted, as the head of a sophisticated enterprise which imported and trafficked heroin costing more than $1m, your offending was extremely serious. And your culpability very high.
61In mitigation of penalty he relied on:
1.your guilty plea which was entered at an early stage for its high utilitarian value and as evidence of your acceptance of responsibility for your crimes;
2.he also relied on your remorse; and
3.your very limited criminal history; and
4.as well, the burden of your separation from your daughter, who is your only family; and
5.the additional hardship suffered by remand and serving prisoners due to the COVID-19 pandemic.
Prosecution submissions
62Mr Manning, who appeared for the prosecution, submitted, as the person at the apex of command in Melbourne of a transnational drug syndicate, who directed and watched over a business which, over three months, turned over $1.5m in heroin trade, your moral culpability was very high.
63He submitted, because each of the eight imports involved in Charge 1 and the three sales involved in Charge 2 constitutes a single offence, the criminality in each of the two charges against you is greater than for a charge which involved only one episode of criminal conduct.
64He submitted because your trafficking activities involved additional criminal conduct in supplying heroin to customers and obtaining payment for it, there should be some degree of cumulation of the sentence I impose on the trafficking charge upon the sentence I impose for the importation charge.
65He acknowledged your guilty plea was made early and, because it has avoided a potentially lengthy and complex trial, has great utilitarian value.
66While acknowledging no two cases are alike, he referred me to Paul Kleindyk [2016] WASCA 123 and Suky Lieu [2016] VSCA 277 as comparable cases.
Analysis
67The maximum penalty of life imprisonment for each of the two charges clearly demonstrates the seriousness of your offending.
68The sentencing principles for large-scale drug importation and trafficking are well-established:
•an offender's role and involvement in the enterprise, the sophistication of the enterprise and the amount of drugs involved are relevant to the assessment of the seriousness of offending;
•because of the difficulty in detecting the offending and the great harm stemming from the distribution of illicit drugs in the community, significant weight must be attached to the principle of general deterrence;
•for involvement at any level an offender should expect a significant sentence of imprisonment;
•as a matter of common sense, it should be inferred, unless there is evidence to the contrary, the person who is importing and trafficking drugs is doing so for profit; and
•prior good character and personal circumstances are generally to be given less weight as a mitigating factor.
69As the Melbourne-based principal of a highly sophisticated international drug consortium, you made arrangements to bring heroin into Australia from overseas and to sell it here. You gave directions to others who dealt with the heroin and the customers for you and, to keep control of operations, you oversaw their activities.
70You were very aware of the risk of detection but not deterred by it. You were cautious and took steps to minimise the risk. You:
•used others to shield yourself from suppliers and customers and to handle heroin and cash on your behalf;
•you used six different phones in false names to conceal your identity; and
•in November 2018 you cancelled an importation when you feared authorities might discover your criminal activity.
71There was a high degree of planning and coordination to your offending. You boasted about your long-standing experience in the drug trade and the high quality of the drugs you imported. You were selling heroin at the top level of domestic distribution.
72You have said you offended, in part, to get money to pay your gambling debts. That fact does not moderate you culpability to any great degree. Your primary motivation for doing so was for profit and, shortly prior to your arrest, you told a friend, notwithstanding you had set up a legitimate business, you would continue to make illicit profits from your heroin trade. And those profits were substantial, $20,000 for each importation,
73Your moral culpability is very high.
74You are entitled to a significant sentencing benefit for your guilty plea and its early timing.
75In Suky Lieu, the Victorian Court of Appeal said:
'Drug importation and drug trafficking charges are notoriously difficult and expensive to prosecute. Contested trials on those charges can occupy the time of the courts, and of the law enforcement officers, for a considerable period, and can be a substantial burden on the community. It is for these reasons that it is important that sentences imposed in cases such as this, after a plea of guilty, are such as to reflect the value of those plays as mitigating circumstances.'
76I accept your guilty plea and your acceptance of the prosecution case against you are evidence of remorse.
77While your personal factors carry less weight for offending of this type, I have nonetheless further moderated your sentence to take into account:
•your remorse;
•your separation from your daughter; and
•the burden of COVID-19 related anxiety and concern.
78Because of the sophistication of your offending and your readiness to persist, despite the substantial risks, I find it difficult to assess your prospects of rehabilitation. However, your remorse is a positive sign for your reformation, and I have had regard to your rehabilitation in sentencing you, as I must.
79Each of the two charges incorporates a number of incidents of the same offence over a three-month period. The criminality of each charge is greater than a charge of a single episode of an importation or trafficking. I must sentence you within the maximum penalty for each charge, but the overall sentence must reflect the whole of your conduct.
80Because your trafficking offending involved additional criminality, there must be some degree of cumulation of the sentence I impose on the trafficking charge upon the sentence I impose on upon the importation charge. I have moderated the degree of cumulation to ensure your total effective sentence is a just and appropriate measure of your total criminality.
81I also must have regard to the parity principle.
82I have already sentenced one of the couriers, Ms Zainal, and your trusted 'soldier', Lina Tran. Both played roles subordinate to yours and their expected rewards were less.
83Ms Zainal pleaded guilty to a charge of importation of a commercial quantity of a border control drug. I sentenced her to 10 years' imprisonment. Over a three-month period she brought 8 tickets of heroin into Australia. She was able to point to genuinely extenuating circumstances which explained her desperate need for money.
84Lina Tran pleaded guilty to one count of trafficking in a commercial quantity of a control drug over a three-week period, which involved one sale of a one ounce sample and two sales of heroin which are covered by the trafficking charge against you and, additionally, an earlier sale of one ticket of heroin on
2 October 2018.85I sentenced her to 10 years and six months' imprisonment.
86I regard your culpability as considerably higher than both those women.
Comparable cases
87I have read the cases to which Mr Manning referred.
88Kleindyk [2016] WASCA 123 concerned trafficking commercial quantities of methamphetamine and MDMA in quantities larger than the quantities involved in your offending. However, unlike you, the offender was not a principal in the drug trafficking enterprise. The Western Australian Court of Appeal dismissed an appeal against a total effective sentence of 18 years' imprisonment.
89Suky Lieu operated two substantial illegal drug businesses over an eight-month period. In one, he trafficked 10.7 kilograms pure methamphetamine and 3.5 kilograms pure PPMA, quantities larger than yours, and in the other he agreed to import heroin in a commercial quantity; pursuant to the agreement slightly less than 1.5 kilograms was actually imported. The Court of Appeal held prison sentences for the commercial quantity trafficking, 20 years, and the conspiracy to import, 16 years, and a total effective sentence of 25 years with a non-parole period of 18 years were not manifestly excessive.
90I have also had regard to the New South Wales Criminal Court of Appeal decision De La Rosa (2010) 79 NSWLR 1, which was followed in Victoria in Nguyen v R; Phommalysack v R (2011) 31 VR 673.
91I have used these decisions as a guide in the identification and application of the relevant sentencing principles and, making appropriate adjustment for the differences in the circumstances of the offending and the offender, I have used them as a yardstick against which to measure your sentence (see R v Pham (2015) 256 CLR 550 per French CJ, Keane and Nettle JJ at [26]).
92As a federal offender, you fall to be sentenced under part 1B of the Crimes Act 1914 (Cth).
93Accordingly, I must impose a sentence that is of appropriate severity in all of the circumstances (s.16A (1)).
94I must not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate (s.17A). No other sentence is appropriate in your case.
95In determining your sentence, I have taken into account the matters listed in s.16A(2), insofar as they are relevant and known to the court.
96By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
97For the offence of importing a commercial quantity of a border control drug, you are convicted and sentenced to 16 years' imprisonment, which is to commence today.
98For the offence of trafficking in a commercial quantity of a border control drug, you are convicted and sentenced to 11 years' imprisonment, which is to commence on 19 November 2027.
99Your total effective sentence is 18 years' imprisonment.
100I fix a minimum period of 13 years before you are eligible for parole.
101I declare you have served 681 days of your sentence by way of pre-sentence detention
102Pursuant to s.6AAA of the Sentencing Act, I declare, but for your plea of guilty, I would have sentenced you to 22 years' imprisonment and fixed a minimum non-parole period of 16 years.
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