Director of Public Prosecutions v Tran

[2020] VCC 1631

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02300

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI THUY TAM TRAN

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2020
DATE OF SENTENCE:	9 October 2020
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2020] VCC 1631

REASONS FOR SENTENCE
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Subject:	Traffick a commercial quantity of a border control drug contrary to Criminal Code (Cth)
Catchwords:	Guilty plea – 1.56  x CQ trafficked over 3 week period - sophisticated drug syndicate – trusted aide to syndicate leader – high moral culpability - high utilitarian value of early plea – reasonable prospects of rehabilitation
Legislation Cited:	Crimes Act 1914 (Cth)
Cases Cited:	DPP(Cth) v De La Rosa (2010) NSWCCA 194; DPP(Cth) v Farig Omar [2019] VSCA 188; R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238; Nguyen v R; Phommalysack v R (2011) 31 VR 673; Suky Lieu v The Queen [2016] VSCA 277; Kleindyk [2016] WASCA 123; Hoang Le v R [2017] NSWCCA 26; R vRuzehaji (2018) 132 SASR 302
Sentence:	10 years and 6 months imprisonment, 7 years non-parole period

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APPEARANCES	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Manning	Commonwealth Director of Public Prosecutions
For the Accused	Ms C. Dwyer	Giorgianni & Liang Lawyers

HIS HONOUR:

1Thi Thuy Tam Tran, you have pleaded guilty to one charge of trafficking a commercial quantity of a border controlled drug, heroin, contrary to the Criminal (Cth). 

2Michelle Ngoc Tran was your friend.  She was a Melbourne based head of an international syndicate which imported heroin into Australia and trafficked it here.  She, herself, refused to handle any drugs or cash and kept her distance from suppliers and buyers, and used you to collect and deliver heroin and collect payment for her.  She referred to herself as 'the Queen', and to you as her 'soldier'. 

3Zailee Zainal was a cabin crew member with Malindo Air, an Malaysian airline.  While she was working on flights to Australia, she brought in heroin in one kilogram lots, known as 'tickets', concealed in her underwear. 

4Between 2 October and 24 October 2018, you collected tickets of heroin from Zainal three times, delivered them to buyers, collected payment for them and delivered cash for payment of the heroin to Zainal for Michelle Tran.  You were also involved in providing a 1 ounce sample of heroin to a potential buyer. 

2 October 2018 – 1 ticket

5On 2 October 2018, Ms Zainal arrived in Melbourne with a ticket of heroin and checked into the Melbourne CBD hotel where airline cabin crews stayed.  Around midday, with Michelle Tran, you went to the hotel and met Zainal, who referred to you as the 'rich aunty' in the level 1 toilets.  Inside a toilet cubicle, Zainal gave you the heroin and you gave her cash. 

3 October 2018 – 1-ounce sample – 20.1 g pure

6On 3 October, with Michelle Tran and Kha Tien Ngo ('Ngo'), a heroin dealer who sourced drugs from Michelle Tran, you met a potential buyer at a Richmond restaurant.  Michelle Tran offered the buyer a 1 ounce sample of heroin for $5000.  Ngo assured the buyer the heroin had come direct from overseas and no one had touched it.  Michelle told the buyer she received weekly 1 kilogram shipments of heroin and the price was $195,000.  She said she never touched the heroin and she had people who worked for her to do the deliveries and pick-ups.  When the buyer agreed to take the sample, she told you to walk to a nearby address to get the sample for her, and you did.  It was given to the buyer.  The sample contained 21.1 grams of pure heroin. 

10 October – 1 ticket – 750.8 g pure

7On 10 October 2018, Zainal arrived in Melbourne from Malaysia with another ticket of heroin. 

8With Michelle Tran, you went to Zainal's hotel.  You went into the hotel and met Zainal at the level 1 toilets, where you collected the heroin from her.  You took the heroin to Michelle Tran and, with her, you went to a Collingwood café where you met the buyer.  Michelle Tran told you to hand him the heroin.  When you did, he handed over payment.  Michelle Tran asked you if there was '20 in total', that is $200,000, $195,000 for the ticket and $500,000 for the 1 once sample. 

9The two of you left the café and went back to Zainal's hotel.  You went inside and gave her a bag of cash.

10The ticket weighted 1041.4 grams and contained 750.8 grams of pure heroin. 

24 October – 1 ticket – 840.0 g pure

11On 21 October, with Michelle Tran and Ngo, you met another buyer at a Richmond restaurant.  Michelle Tran asked the buyer how many tickets he would take a month.  When he told her two, she said she would make the necessary arrangements. 

12On 24 October, Zainal arrived in Melbourne from Malaysia with another ticket of heroin. 

13With Michelle Tran, you went to her hotel.  Again, you met Zainal inside a toilet cubicle, and she gave you the heroin. 

14With Michelle Tran, you took a taxi to Fitzroy to meet the buyer.  You waited on the footpath while Michelle Tran contacted Ngo, who let the buyer know that the heroin had arrived.  The buyer opened his front door and invited the two of you inside.  Michelle Tran declined and told you to go with him.  You did.  Inside, you gave him the heroin and he gave you $195,000 in cash, which you counted and put in a bag. 

15You left the buyer and went back to Michelle Tran, who was waiting outside.  With her, you went back to Zainal's hotel, where you met with Zainal again in the level 1 toilet and gave her $155,000 for the ticket of heroin.

16It had weighed 1056.7 grams and contained 840 grams pure heroin. 

Arrest

17Police arrested you on 14 January 2019.  You had been using a phone subscribed in a false name.  It appeared to have been reset to factory settings, which could have erased the data on the device. 

18When police interviewed you, you said

·Michelle Tran was your friend;

·the whole of Richmond knew of her arrest;

·you did not know she was involved in drug trafficking but had heard rumours;

·she was often lonely and sad and asked you to go out with her;

·each time you refused but she insisted.

19You denied helping her in her drug dealing business. 

20You denied you had collected 1 kilogram of heroin from Zainal on
10 October 2018.  When you were shown CCTV stills of you collecting the heroin, you said you could not see clearly in the photos.  Later in the interview, after you were shown more images of you collecting heroin from Zainal on
24 October, you broke down and said you were paid $3000 for your involvement each time. 

21After a break, when you were asked to confirm that, you said you did not know. 

22When the interview was concluded, you were remanded in custody. 

23You have admitted a criminal record.

24On 24 February 2005, in the Magistrates' Court at Melbourne, you were convicted of:

·knowingly dealing with proceeds of crime;

·dealing with property suspected of being proceeds of crime and

·possessing MDMA. 

A magistrate sentenced you to six months' imprisonment, which was wholly suspended for two years. 

25Your counsel, Ms Dwyer, in comprehensive submissions, relied, in mitigation of penalty, on:

1.her written submissions;

2.a psychological report, dated 29 June 2020, of Warren Simmons;

3.certificates of your completion of prison education and vocational courses;

4.certificates of your completion of drug and alcohol relationship and health programs in prison;

5.a letter of Thi Bich Kieu, who is looking after your daughter in your absence; and

6.a letter of a Amanda Najem, your daughter's counsellor. 

26You were born on 5 June 1971.  You were 47 years old when you offended and are now 49. 

27Mr Simmons interviewed you on 26 June 2019. 

28You told him you were born in Can Tho, a city in southern Vietnam's Mekong Delta region.  You are the middle of three children.  Your father ran a petrol station and your mother, a small grocery store.  Although your family was relatively poor, your home life was happy.  You completed Year 11 equivalent at school, and when you were 19 years old, you married.  Your husband arranged for you to come to Australia and you arrived in 1992.  You separated from him in 1995.  About 10 years later, you entered into a relationship with another man, which lasted seven or eight years. 

29In the late 1990s, you were introduced to heroin and soon became addicted.  You said you stopped using the drug when you daughter was born in 2009. 

30You said you have used methamphetamine recreationally from time to time at parties.  You denied any drug of mental health problem, and Mr Simmons did not find evidence of any. 

31You are coping quite well in prison.  Your sleep is regular, and your appetite and weight are stable.  You are the head cook for your unit.  You attend gym and religious services when they were available.  You have also completed a number of courses made available to you.  You have a weekly video call with your family in Vietnam.  Your daughter has been able to visit you since COVID-19 lockdowns; you have a weekly video call with her as well. 

32Your daughter is living with a friend and his mother, Thi Kieu, in Sydney. 
Ms Kieu has known you for more than 10 years.  She wrote as a single mother, you took good care of your daughter who is receiving counselling from Ms Najem to help her deal with her separation from you. 

33You told Mr Simmons, in 2005, uninvited guests arrived at a party at your flat and when a fight started, police were called and found the property and drugs, which gave rise to your Magistrates' Court convictions. 

34In relation to your current offending, you told Mr Simmons Michelle Tran was your friend and you helped her out, acting as her drug 'runner' for small sums, $50 or so. 

35In his conclusions, Mr Simmons suggested you would benefit from 'a brief episode of counselling, focussing on increased self-efficacy, harm minimisation and relapse prevention strategies'. 

36In his opinion, considering your lack of significant criminal history, that you have an 11-year-old daughter and few antisocial personality traits, your prospects for rehabilitation are good. 

37As Ms Dwyer properly acknowledged, trafficking heroin in a commercial quantity, contrary to federal law, is a serious crime. She also acknowledged deterrence is the primary sentencing consideration and stern punishment is required.

38She conceded a term of imprisonment requiring a non-parole period must be imposed. 

39She submitted yours was a low level example of trafficking, considering:

·the quality of drug trafficked was low in commercial quantity - that is a multiple of 1.56 times a commercial quantity;

·you did not know the specific weight involved;

·your role was not essential because Michelle Tran always accompanied you;

·your offending was limited to a 3 week period;

·you ceased offending voluntarily (Michelle Tran imported three more ticket of heroin in December 2018 and you were not involved);

·you received limited financial benefit and;

·there was no evidence of your enrichment. 

40She submitted I should accept your account to Mr Simmons, you received $50 each time you helped Michelle Tran.  She submitted I should not rely on your admission to police you were paid $3000 each time because, in her submission, police had unfairly pressured the admission from you.

41Ms Dwyer submitted I should attach minimal weight to your prior convictions because of their age. 

42In mitigation of penalty, she relied on:

·your limited role;

·your early guilty plea;

·your excellent prospects of rehabilitation;

·the additional prison hardship with separation from your daughter and isolation from your family;

·the additional hardship of COVID related restrictions and anxiety; and

·delay in between the time of your arrest and plea, some 20 months, but this factor, quite property, was not pressed in oral submissions. 

43Ms Dwyer provided me very helpful summaries of Federal commercial quantity drug cases, which she submitted were comparable to yours.  The sentences ranged between six years and eight years and six months.

44She also referred to the table of sentencing ranges produced by the Chief Justice of the New South Wales Court of Criminal Appeal, McClellan CJ, in the case of DPP(Cth) v De La Rosa (2010) NSWCCA 194 and submitted that your offending fell within the lowest sentencing range identified, that is, between six years, three months and eight years.

Prosecution submissions

45Mr Manning, who appeared for the prosecution submitted in the context of your involvement, limited, as it was, to sales of 3 tickets and a sample of heroin over a 3 week period, your moral culpability was high.

46He submitted you worked in a sophisticated drug trafficking business and Michelle Tran placed a high level of trust in you, sharing with you sensitive information, and using her to shield her from handling heroin or cash and distancing herself from suppliers and buyers.  He submitted your role was 'vital and indispensable'. He also pointed out that had used a mobile phone subscribed in a false name to try to avoid detection.

47He submitted I should not accept your assertion you received only nominal payment.  He submitted, given the substantial profits derived, your admission that you received $3000 each time is more likely true.  And, if in fact you were paid so little for acting as a 'runner' (as you described yourself), the importance of general deterrence is reinforced because it would suggest that the 'risk – reward calculus' is still not a sufficient deterrent to would-be drug traffickers (referring to DPP(Cth) v Farig Omar [2019] VSCA 188 at [12]-[13])

48He acknowledged your guilty plea was entered at the earliest opportunity and has high utilitarian benefit.

49He also accepted your guilty plea and commendable behaviour in custody are some evidence of remorse although the extent of your remorse, in his submission, is qualified by:

·your repeated denials of your obvious presence in incriminating images and your reluctance to disclose your involvement, in response to police questioning;

·your efforts to minimise your offending to Mr Simmons and to this court; and

·your unlikely assertion you are paid only $50 a time for your involvement

Comparable cases

50Mr Manning provided me with a useful table of four intermediate appellate court decisions concerning the offence of trafficking in a commercial quantity of a border controlled drug.  Three of the sentences ranged between eight years and six months and 13 years; the fourth, 18 years.

Analysis

51The maximum penalty of for the offence of trafficking in a commercial quantity of border controlled drug is life imprisonment.  It demonstrates, 'with unmistakable clarity', the seriousness of your offending

52The sentencing principles are well-established:

·The offenders 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 the 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 is attached to the principle of general deterrence;

·for involvement at any level an offender should expect a significant sentence;

·as a matter of common sense, it should be inferred, unless there is evidence to the contrary, the person who is trafficking drugs is doing so for profit; and

·prior good character is generally to be given less weight as a mitigating factor.

(See R v Hai Van Nguyen; R v Phuong Thu Thi Pham [2010] NSWCCA 238, at [72] followed in Nguyen v R; Phommalysack v R (2011) 31 VR 673 at [34] and Suky Lieu v The Queen [2016] VSCA 277, at [41]-[43])

Quantity of drugs and value

53The quantity and value of the drugs you trafficked was substantial.

·the wholesale value of the 3 tickets of heroin was around $600,000.  Its street value would have been around three to four times greater.

·the quantity of drugs you trafficked was 1.56 times a commercial quantity under Federal law.

Role and involvement

54You were engaged in a commercial activity which involved repeated acts of trafficking.  You played an integral role in the trafficking enterprise.

55You were a runner, as you described it, for a sophisticated transnational drug syndicate.  As the Queen's trusted aide, you had an important position in the hierarchy.  She shared the syndicate's supply and pricing information with you and trusted you to collect and deliver substantial quantities of drugs and cash for her.

56You knew she was operating a large-scale drug importation and trafficking business.  She boasted the heroin she sold was of the highest purity available in Australia.  You were involved at the top level of domestic distribution.

57There was a reasonable degree of planning, coordination and sophistication to your offending, which involved covert meetings with Zainal to collect the imported heroin, with Ngo to coordinate sales, and buyers, to deliver drugs and collect cash.

58It also involved the use of codes and phones subscribed in false names to conceal the illegal activities.

59Your moral culpability is high.

60You have offered no explanation for your involvement other than to say you were helping your friend.  There are no extenuating circumstances which explain why you took the considerable risk and offended as you did.  The common sense explanation is you did so for the opportunity to share in the substantial profits.  Michelle Tran paid $155,000 for each ticket of heroin and sold them for $195,000.  She took around half of the $40,000 profit for herself.  It seems Ngo received $5000 for his services.  In other syndicate transactions, a delivery driver, Khoi Phan, was paid $2000.  It defies belief you were only receiving $50.  Your admission to police you received $3000 for your involvement each time is more likely true.

61Ms Dwyer invited me to listen to the recording of your police interview, and I did.  While you were upset when you made the admission and the investigator was firm in his questioning, you were not unduly pressured nor overborne.  I consider your admission is reliable and accurate.  That you responded, 'I don't know', when the investigator asked you to confirm your admission does not cause me to alter my view.

Mitigating factors

62I accept your early guilty plea has significant utilitarian value.

63In Suky Lieu, the Victorian Court of Appeal said, at [56]:

'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.'.

64I accept your guilty plea, and your positive response to your time in custody is also evidence of remorse.

65However, the degree of your remorse is qualified by

·your false denials and evasive answers to police at interview;

·your efforts to play down your offending to Mr Simmons and to the court; and

·your implausible contention you were paid only $50 a time for your involvement.

66Your prior convictions for drug related offending, which warranted the imposition of a term of imprisonment for a first time offender, are relevant.  I find your explanation to Mr Simmons for the offences of knowingly dealing with proceeds of crime and dealing with property suspected to be proceeds of crime to be highly improbable.  While the weight I attach to the convictions is to be reduced because of the passage of time, your attempt again to understate your involvement is relevant to my assessment of your remorse and your prospects of rehabilitation.

67Mr Simmons considered your prospects of rehabilitation are good.  As you gave him the mistaken impression your offending behaviour was minimal, I hesitate to accept his finding.  Nevertheless, taking into account your creditable progress in custody towards your reformation and your desire to be a good mother for your daughter, I consider your prospects of rehabilitation are reasonable.

68I accept separation from your daughter and isolation from your family are making prison harder for you.  I also accept impact of COVID-19 has caused increased anxiety and concern for all members of the community, including prisoners.

69I have moderated your head sentence and minimum term to take into account the mitigating factors I have identified.

Parity

70I have already sentenced two co-offenders, Ms Zainal and Beng Goh.

71Accordingly I must have regard to the parity principle.

72Both Zainal and Goh were first offenders and foreign nationals.

73Ms Zainal pleaded guilty to a charge of importation of a border control drug.  Over a  three month period she brought eight tickets of heroin into Australia.  Her offending was more serious than yours.  She was able to point to genuine extenuating circumstances which explained a desperate need for money. I concluded, in sentencing her, there was a place for mercy which was reflected in both the head sentence and minimum term I imposed.

74Beng Goh pleaded guilty to a charge of trafficking a marketable quantity of a border control drug.  His charge involved in a single instance of trafficking of one ticket of heroin, which Ms Zainal had imported into Australia.  His offending was less serious than yours.  Mr Goh's progress to reformation in prison was exceptional.  To reflect his excellent prospects of rehabilitation, I imposed a shorter than usual minimum term.

Comparable cases

75I have read all the cases which both counsel have referred me to and have used them to identify the sentencing principles and, making adjustment for the differences in the circumstances of the offending and the offender, have used them as a yardstick to measure your sentence.

76In doing so, I recognise the limitations of the use of comparable cases which the High Court has identified.

77I find your offending is more serious than the offending identified in the cases Ms Dwyer referred me to, with one exception.  The intermediate appellate court decisions concerned a single episode of drug importation.  Of the sentences of this court, one, Kromah & Robinson, concerned a single importation; another, Kazemi and Shahbazi concerned two importations.

78In the third, where the offending was more serious than yours, there were exceptional features personal to the offenders, which distinguish it from yours.

79McLellan CJ's group 4 identified a range of sentences for the lowest examples of commercial quantity drug crimes.  Your offending is more serious.

80Of the cases Mr Manning referred me to, Kleindyk [2016] WASCA 123 concerned a significantly larger quantity of a border control drug and the offenders role was substantially more than yours. I consider the cases of Hoang Le v R [2017] NSWCCA 26 and, to a lesser extent, Ruzehaji (2018) 132 SASR 302 to be relatively comparable to yours

Federal offending

81Ms Tran, you fall to be sentenced under part 1B of the Crimes Act 1914 (Cth).

82I must impose a sentence that is of appropriate severity in all of the circumstances (s.16A(1)).

83In determining your sentence, I have taken into account the matters listed in sub-s.16A 2), insofar as they are relevant and known to the court.

84I 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.

85Considering the seriousness of your offending, I must impose a sentence of imprisonment which, under federal law, requires me to fix a non-parole period.

86By 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.

87Taking into account the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, for the offence of trafficking a commercial quantity of a border control drug, I sentence you to 10 years' and six months' imprisonment, which is to commence today.

88I fix a minimum non-parole period of seven years.

89I declare you have served 634 days of your sentence by way of presentence detention.

90Pursuant to s.6AAA of the Sentencing Act, I declare, but for your plea of guilty, I would have sentenced you to 13 years', six months' imprisonment and fixed a minimum non-parole period of nine years and six months.

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