Director of Public Prosecutions v Tran
[2025] VCC 101
•13 February 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR -23-00155
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIM TRAN |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 December 2024 |
DATE OF SENTENCE: | 13 February 2025 |
CASE MAY BE CITED AS: | DPP v Tran |
MEDIUM NEUTRAL CITATION: | [2025] VCC 101 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Trafficking in a Drug of Dependence - Knowingly dealing with proceeds of Crime, Failing to comply with an order to provide information or Assistance
Legislation Cited: Sentencing Act1991 (Vic).
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571, R v McKee & Brooks [2003] VSCA 16, R v Lacey [2007] VSCA 196
Sentence: 9 Years and 2 Months Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | Office of Public Prosecutions |
For the Accused | Ms J. Willard | McNally & Gleeson lawyers |
HIS HONOUR:
1Tim Tran, you have pleaded guilty to three charges of trafficking drugs in not less than a commercial quantity. You have also pleaded guilty to knowingly dealing with proceeds of crime and a charge of failing to comply with an order to provide information.
2Trafficking in a drug of dependence, not less than a commercial quantity, has a maximum penalty of 25 years' imprisonment. It is also a Category 2 offence and by virtue of that, when it comes to sentence on Charges 2 and 3 on the indictment, you are to be sentenced as a serious drug offender.
3Knowingly dealing with proceeds of crime has a maximum penalty of 15 years.
4Failing to comply with an order to provide information or assistance, has a maximum penalty of five years.
5You have admitted relevant prior convictions including a previous conviction for trafficking heroin.
6The circumstances of your offending are set out in Exhibit A, the Prosecution Opening for Plea which forms part of these Reasons for Sentence.
7One aspect of the prosecution opening is disputed and requires a finding by me to the requisite standard.
8The facts, in brief, are that your trafficking was detected during a controlled and prolonged operation commencing in 2021 that revealed that 'Manchester' brand cigarettes were being exchanged for drugs of dependence delivered by you. There were co-accused, Pham and Hoang.
9At the time of the offending you were aged 53 and lived at a rental property at Kynoch Lane, Maribyrnong. You were self-employed at the time, receiving payments for the repair and upgrade of computers and electronic devices. You are the father of two children who live with your ex-wife from whom you are separated.
10The investigation revealed that relevant actors communicated through the mobile phone application 'Ciphr' predominantly. The Ciphr platform offered privately encrypted communications between users with the capacity to securely store data on mobile handsets.
11Ciphr-enabled mobile handsets are identified by a numerical Ciphr identity (CID) which are then commonly attributed usernames referred to as a 'handle'. The handle is an alias by which the owner or controller of the device is known to other Ciphr users.
12It is alleged that investigators identified correctly the Ciphr handle utilised by you as 'Quebec', 'Bravo', 'Mike' and 'Sierra' variously.
13Throughout the course of the investigation Victoria Police covert operatives, it is alleged, engaged with you, Pham, Hoang and other unidentified users in several Ciphr chat groups, with new groups created each time cigarettes and/or drugs of dependence were to be exchanged.
14Common terminology used to describe the drugs of dependence in the Ciphr communications included methylamphetamine, referred to as 'cold' and 'eye', the reference to cocaine as 'coke' and 'nose'. The reference of heroin was 'hot' with a 'pair' referring to 700 grams of heroin packaged in two 350 gram blocks.
15It is accepted, and it is beyond doubt, that you delivered drugs in relation to a number of the surveilled transactions and surveilled conversations.
16The summary of prosecution opening sets out in detail all of the transactions you were involved in. I will not reproduce the same detail herein but that summary of prosecution opening forms part of these reasons for sentence.
17In relation to a commercial quantity of heroin, you were involved in the trafficking of approximately 2.2 kilograms between 30 December 2021 and 6 April 2022, comprising of 1.4 kilograms in Footscray on 30 December 2022 and 705 grams in Footscray on 14 January 2022.
18Charge 1 on the indictment is a rolled-up charge embracing these transactions and possession of traffickable quantities.
19Trafficking methylamphetamine in not less than a commercial quantity; you engaged in that conduct to a quantity of approximately 2.8 kilograms between 28 January 2022 and 6 April 2022, comprising of 1.9 kilograms in Footscray on 28 January 2022, and almost a kilogram, point nine of a kilogram in Footscray on 17 February 2022.
20In relation to a commercial quantity of cocaine, you were involved in the traffic of approximately three kilograms, comprising one transaction on 19 March 2022.
21Over the course of five transactions a total of 8.1 kilograms of drugs of dependence were sold to covert operatives with a total value, it is alleged - and these matters are always of course approximate - but a total value of $2,034,000.
22Search warrants were executed at your residential address on 6 April. Investigators located 59 grams of methylamphetamine, 124 grams of heroin, and there was $227,000 in Australian currency hidden at the premises and seized. Those quantities seized on the search warrant are included in the quantities I have referred to above.
23You were arrested and taken for interview on that day and you have been in custody on remand since that date, a total of 1,044 days.
Factual dispute:
24The factual issue in dispute is whether you operated a Ciphr mobile handset and whether you participated in the Ciphr chat groups directly, those Ciphr chat groups in the sense of you discussing and directing the trafficking of the substances. That is what is in issue factually.
25Your counsel submitted that the various handles said to be used by you in Exhibit A, being the prosecution opening, are entirely speculative.
26It is argued that investigators have been unable to identify a Ciphr handle, or CID utilised by you and there was no Ciphr data or Ciphr platform contained on any of the devices seized from you. There were a number of devices seized during the search and that is a point of some significance.
27The prosecution argues that there is a powerful circumstantial case that establishes you were identified in the Ciphr chat groups as alleged. In support the prosecution provided me with a list of Ciphr message references in the depositions that they contend proves you were in control of the handset, or in control of the Ciphr messaging, to be more precise.
28I have found that there are a compelling set of circumstances which in combination suggest you were sending and receiving Ciphr messages directly. These include:
·The proximity in time between messages describing actions and you engaging in those actions;
·Statements written by the handle operator attributed to you which support an inference that you are the author. By these I mean, as examples, the written message 'will it be the same person as I saw last time', or words to that effect, messages describing what you were wearing, messages saying, 'I am walking over now…' and you then being observed not long after, and so on;
·Also, messages confirming a transaction approximate in time to the transaction being completed.
29When I consider all of the circumstances of the transactions, I find that the only reasonable inferences open on the evidence are that you were either the holder and operator of the Ciphr device or you were present with another unknown individual who was the operator.
30It follows that I cannot be satisfied to the requisite degree that you were the Ciphr operator, but I am satisfied that if you were not the operator you were so connected and proximate to the operator that for sentencing purposes it makes little difference. Some difference in a hierarchy point of view but little difference.
31When police searched your premises - I have referred to the 227,000 that was inside a kitchen drawer and hidden behind the oven.
32You also admitted ownership of one of the mobile telephones seized by police, however, you failed to provide a passcode to the device when requested. You denied knowledge of how to access the remaining mobile devices located at your residence, and that is the basis of Charge 5, failing to comply with an order to provide information. As I understand it those devices were accessed by other means.
33On the date of your arrest, you were not interviewed in relation to the drug transactions conducted between 30 December 2021 and 19 March 2022, but you were given the opportunity to be interviewed on a later occasion and you declined that.
Objective Gravity:
34The objective gravity of your offending is at a serious level. Your offending constitutes a serious example of the offences of commercial trafficking of heroin, methamphetamine and cocaine.
35In each case it is multiple times the commercial quantity. In the case of Charge 1 it is many times the commercial quantity of heroin, it is multiple times in relation to Charges 2 and 3 also.
36Your involvement is deliberate, it is calculated, it is organised. You have been convicted of trafficking in the past, you know the risks and the rewards, you know what is at stake.
37It is trite to observe that the trafficking of substances such as heroin, methylamphetamine and cocaine through the community is of great public concern, it is a scourge on the community, and it must be denounced. The sentences I impose must strongly denounce the activity you engaged in and deter you, but in particular others, from seeking the rewards of engaging in this activity in the future.
Personal Circumstances:
38You are now 56 years of age.
39You married your former wife in Vietnam in 2004 and subsequently sponsored her to come to Melbourne. I was told you have two daughters aged 15 and 18. You and your wife divorced in 2021 and I was told your marriage ended because of your dependency on drugs and gambling.
40I do accept, based on the materials before me, the letter from your younger brother and your criminal history that addiction and gambling have been issues that have had a deleterious impact upon you, and they are compulsions that you have battled.
41You were born in South Vietnam. You have four brothers and four sisters, and I was told that none of your siblings have been in trouble with the law.
42Your early childhood was traumatic and deeply affected by events and experiences most of us in this country can only try and imagine.
43You were born as the Vietnam war was reaching its climax, or near its end, in South Vietnam that is, and the fall of Saigon would have occurred when you were around six years of age or so.
44I accept that your formative years were shaped by a backdrop of fear, violence, conflict, instability and insecurity, which has had a lasting effect upon you.
45I accept that as a young child you experienced the constant threat of bombings, military operations, displacement and fear and insecurity.
46Once South Vietnam fell and the Communist regime consolidated power, your father was arrested and spent 12 months in a re-education camp. Your family lost their farm and faced displacement, moving from place to place, relying on government-issued ration cards for food and essentials. You recall frequent gunshots and being told by your family to hide.
47At just 13 you fled Vietnam with your nine-year-old brother, just the two of you, on a small crowded boat, leaving behind your family. You experienced attack and capture by pirates on the seas and the horrors that that involved.
48You spent approximately nine months in a refugee camp in Malaysia. It was overcrowded with tens of thousands of people. There were food, water and medical shortages. Disease spread due to poor sanitation and malnutrition, intensifying the trauma of escape and uncertainty.
49At the young age of 15 you arrived in Australia on a refugee visa in the company of your younger brother. Your younger brother has authored a letter for the Court which I have read and accept and have taken into account in relation to your circumstances.
50Upon arriving in Melbourne you attended a language centre in Abbotsford before enrolling at Collingwood High School. You completed Year 12.
51You then pursued a Bachelor’s Degree in computer engineering at RMIT, graduating after four years.
52You worked as a computer repairer and service technician for small businesses for two years. You later founded your own computer business, Green Computers in Collingwood, operating it from the age of 25 to 40, employing four people.
Drug use:
53I accept that drug use has been a major issue in your life. You started smoking heroin in your late 20s in 1999 after a relationship breakdown.
54At the time of your arrest you were using three grams of heroin and three grams of cocaine per week. Gambling has also been an issue for you. You began gambling when Crown Casino first opened in Melbourne, around 1995, starting with Blackjack. Your long-term gambling issues led you to interstate trips for Blackjack and pokies, accumulating significant debts, and your offending in this matter came about due to your drug use and gambling debts.
55I was told that your offending should be categorised as that of a runner. I accept that you were not the principal offender in the syndicate.
56I accept generally what was summarised in the Jeffrey Cummins report, Exhibit 2 before me, that your primary motivation for the offending was it gave you the opportunity to obtain drugs at a discounted rate in exchange for offending, and as it was put on the plea, there was also the ability to sell cigarettes for money which would also fund drug use and gambling.
57I am satisfied, however, that your role should be characterised as higher than that of a mere runner.
58I accept on balance that your involvement and remuneration was related to your gambling and drug use compulsions, and your criminal history bears out this connection.
59I have had regard to authority referred to in the excellent submissions made on your behalf, particularly R v Lacey, also R v Brooks and McKee.
60Whilst I find your addiction history and experience and its links to your trauma background are a relevant circumstance to consider when assessing your moral culpability, I do not find that significant mitigation flows from your addiction history in the context of the breadth and seriousness of your offending.
61Your traumatic background does enliven Bugmy mitigation, and you are entitled to mitigation due to the application of this principle, and as I have noted, your addictions are on balance related to this history and holistically your moral culpability is assessed in light of all of these circumstances.
62You have pleaded guilty and accepted responsibility for this serious offending and that is a matter which entitles you to a significant discount in relation to sentence.
63I have referred to the letter from your younger brother which is a very positive and moving document as to your circumstances.
64The delay of the matter is a very long one, delay in resolving the matter. It is not an issue when we are dealing with delay of attributing blame, it is a delay that has seen you, as best you are able, to pursue rehabilitative courses and options whilst in custody, and I am satisfied that you have done that to the full extent. So, during a period of delay you have engaged in all of the certificates of completion that are before me - I will not list them all in these reasons for sentence - but they were tendered on the plea and they are indicative of someone who has endeavoured to do what you can on remand to contribute to your rehabilitation or to progress your rehabilitation.
65I also received testimonials from your mother and father, from Quac Tran, another brother. The letter I was first referring to was Tan Tran. And also the testimonial from Daidone Tran Vo.
66All of these matters I have taken into account to conclude that you do have prospects of rehabilitation, particularly given the work you have undertaken whilst in custody.
67The delay of three years has had that effect, and I take those effects into account. It has also had the effect of it hanging over your head for three years without knowing what the outcome would be for you. I also take that into account with mitigatory effect.
68General deterrence of course must be a significant factor for offending of this type, as is denunciation. Specific deterrence in your case also has some role to play.
69The Serious Drug Offender provisions are engaged when I am sentencing on Charges 2 and 3, and therefore I must regard community protection as paramount. I am satisfied that the sentencing considerations and penalties available to me are sufficient to ensure that without me giving a disproportionate sentence. And in relation to cumulation, the legislation provides that for Charges 2 and 3 they are to be served cumulatively unless otherwise ordered. I will be otherwise ordering in order to give effect to the principle of totality.
70I direct that the fact that you are sentenced as a serious drug offender on Charges 2 and 3 be entered into the records of the court.
71I sentence you as follows, Mr Tran:
72On Charge 1, trafficking a commercial quantity of heroin, you are sentenced to five and a half years' imprisonment.
73On Charge 2, five year's imprisonment.
74On Charge 3, four and a half years' imprisonment.
75Charge 4, the proceeds charge, is three years' imprisonment.
76Charge 5, failure to provide information, six months' imprisonment.
77All sentences are to be served concurrently save for the following orders for cumulation:
78I direct that 18 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
79I direct that 15 months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1.
80I direct that nine months of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 1.
81I direct that two months of the sentence imposed on Charge 5 be served cumulatively on the sentence imposed on Charge 1.
82That makes a total effective sentence of nine years and two months.
83I set a non-parole period of six years.
84The pre-sentence detention pursuant to s18 of the Sentencing Act is 1,044 days, and I so declare.
85Pursuant to s6AAA, were it not for your pleas of guilty, I would have sentenced you to 11 and a half years' imprisonment with a non-parole period of nine years.
86I make the forfeiture order that is sought in relation to the cash.
87There were no summary offences, were there.
88MR NIBBS: No, Your Honour. There also may be a disposal order in terms of drugs but we want to just double-check to see if that had already been made on one of the other matters. So if there's a requirement we will liaise with your staff.
89HIS HONOUR: Just email it through and I'll make that disposal order, if necessary. Ms Willard, does any of that need clarification.
90MS WILLARD: No, Your Honour, it doesn't.
91HIS HONOUR: All right. Thank you, we'll adjourn the court.
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