Director of Public Prosecutions v Tran

[2019] VCC 1942

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01407

DIRECTOR OF PUBLIC PROSECUTIONS

v

KY BOI TRAN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2019
DATE OF SENTENCE:	22 November 2019
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2019] VCC 1942

REASONS FOR SENTENCE
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Subject:  (Commonwealth) Dealing proceeds of crime.
Sentence:  3 years' imprisonment. Released on recognisance after 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Sagnelli
For the Accused	Ms D. Caruso

HIS HONOUR:

1Ky Boi Tran, you have pleaded guilty to each of six Commonwealth charges contained in indictment CR-19-01407.  Charge 1 is a charge of dealing with reasonably suspected proceeds of crime of more than $100,000.  The maximum sentence for this offence is imprisonment for three years.

2Charges 2 and 3 are similar charges.  They are charges of dealing with reasonably suspected proceeds of crime of less than $100,000 respectively.  The maximum sentence for each of these offences is imprisonment for two years.

3Charge 4 is a charge of trafficking in a controlled substance, heroin.  For this offence the maximum penalty is imprisonment for 10 years.

4Charges 4 and 5 are also drug related charges.  They are charges of possessing controlled drugs, methamphetamine in Charge 5, and cocaine in Charge 6.  In each of these charges the prosecution concedes you possessed these drugs for self-use.  The maximum penalty for each of these charges is imprisonment for two years.

5The circumstances of your offending are contained in a Crown Opening Upon Plea dated 31 October 2019.  That document was tendered and read in open court by the learned prosecutor Ms Bruhn.  Your counsel Ms Caruso accepted that the opening was accurate and forms a proper basis upon which I can proceed to pass sentence for your crimes.  In those circumstances it is not necessary that I here again repeat that which is set out in the opening except in an abbreviated way.  These sentencing remarks should however be read in conjunction with what is contained in the opening.

6On 13^th March 2019 police executed a search warrant at your home.  There they found 8.1 grams of heroin about four times the threshold traffickable quantity.  The drug was contained in a number of foils and resealable small plastic bags suggestive of trafficking.  (Charge 4)  That charge proceeds on the basis of the quantity in your possession and you possessed this for trafficking.  You were also found to be in possession of small amounts of the drugs cocaine and methamphetamine.  The prosecution proceeds on the basis you possessed these drugs for self-use.  A search of the house also uncovered $15,460 cash and this forms the basis of Charge 3.

7Subsequent inquiries revealed that you had been unemployed and in receipt of Centrelink payments since 2012/13.  Yet notwithstanding that, the previous day you had paid $48,150 cash to purchase a car.  That sum forms the basis of Charge 2.  Investigations into your financial transactions showed that you had an account at Crown Casino in your name and that on the 17^th September 2016 you deposited the sum of $575,000 cash into that account which you then transferred to another account said to have been controlled by a Crown Casino “High Roller”.  Charge 1.

8Self-evidently Charges 1 to 3 are each serious examples of what are serious offences.  The amount in Charge 1 makes this especially so.  That matter was separate from the other charges by about two years.

9When arraigned you admitted prior convictions from nine previous court appearances.  Relevantly to sentencing on Charge 4 is the fact you have four prior convictions for trafficking.  Most serious of these was in September 2001 when you were sentenced in this court to a term of imprisonment of three and a half years for trafficking heroin.  In sentencing you on Charge 4 especially I must have regard to both general and specific deterrence.  Your other prior convictions are for drug offences and dishonesty.  I note that until this offending was detected you have not re-offended since being sentenced in this court in 2001.

10You have pleaded guilty to the charges, and that is to your credit.  By your pleas of guilty you have saved the time and costs of a trial and you have admitted responsibility for your crimes, and you have facilitated the administration of justice.

11Here, the matter proceeded to this court by way of hand-up brief.  You entered a pleas of guilty at an early time.  I treat you as having pleaded guilty at the earliest opportunity.  Because you have pleaded guilty at an early time the law provides that you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.  I accept you are remorseful for your offending.  Prior to the execution of the search warrant you requested to speak to police and assisted with the search and providing access to some devices.

12I accept there is no evidence you received a benefit from the transaction that amounts to Charge 1.

13You have been in custody since the time of your arrest on 13 March 2019, a period of 254 days excluding today.

14You are now aged 44 and you are an Australian citizen having migrated to Australia with your parents at a young age.  Your counsel submitted and I accept that this offending occurred in a context of loss of employment and of a broken relationship both of which led you to relapse back into drug use.  You were educated to Year 11.  You are the youngest of four boys to your parents.  Your parents are still alive and supportive of you.  You lived with your parents from 2015 providing them both with support and daily care.  Both of your parents are elderly and frail.

15You were in a long term stable relationship between about 2008 and 2017.  You and your partner built a home together but the relationship failed due to financial stress.  You have re-partnered and your new partner is working and studying.  Upon release you plan to again live with your parents and you have good support from your siblings.

16You suffer from a back injury for which you are treated with anti inflammatory drugs and you are seeing a physiotherapist in custody.  As your prior convictions suggest you have long suffered from heroin addiction.  After your release from custody in 2003 you managed to stay drug-free until 2017 until the events which I have referred to above.  You are on the methadone program in prison.  You have a reasonably good record of employment up until about 2016 when you began to relapse back into drug use.

17In prison you work in the kitchen and you are regarded as an “essential worker”.  You have availed yourself of every prison course available to you and you have acknowledged and expressed a desire to stay drug-free.  Whether you can do this outside of a prison setting remains to be seen.  I assess your prospects for rehabilitation as being guarded.  I acknowledge you managed to stay offence free for about 13 years but you relapsed suggesting to me any predictions about your use of drugs must remain guarded.

18In sentencing for Commonwealth offences I must and do have regard to the matters listed in s.16A(2) of the Crimes Act 1914 as well as all of the facts and circumstances pertinent to you. In this case the sentences imposed must have regard to deterrence, both general and specific and to denunciation. I must especially impose a just punishment. Your counsel submitted that I should impose a sentence of imprisonment that provides for your almost immediate release, about 8 and a half months. In my view your offending is too serious to impose such a disposition.

19On Charge 1 you are convicted and sentenced to a term of imprisonment of two years to commence immediately.

20On Charge 2 you are convicted and sentenced to a term of imprisonment of six months to commence at the completion of the sentence imposed on Charge 1.

21On Charge 3 you are convicted and sentenced to a term of imprisonment of two months to commence immediately.

22On Charge 4 you are convicted and sentenced to a term of imprisonment of six months to commence at the completion of the sentences imposed on Charges 1 and 2.

23On Charge 5 you are convicted and fined $200.00.

24On Charge 6 you are convicted and fined $200.00.

25This makes a total effective sentence of three years imprisonment.  I direct you be released on a recognizance release order to be of good behaviour for a period of two years upon serving two years of the total effective sentence.

26I declare that 254 days pre-sentence detention be reckoned as having been already served of the sentences passed this day, and that be entered into the records of the court and be deducted administratively.

27For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your plea of guilty to the charges I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years.

28Now, Mr Tran, the effect of that sentence is you have been sentenced to a total effective sentence of three years' imprisonment but you will be released after having served two years on a recognizance release order to be of good behaviour.  Do you understand?

29OFFENDER:  I understand.

30HIS HONOUR:  During that two-year period, you must not commit any offence punishable by a term of imprisonment.

31OFFENDER:  I understand.

32HIS HONOUR:  Very well.

33Now, I have been asked to sign a forfeiture order which was not opposed and I have signed it.

34MS CARUSO:  As Your Honour pleases.

35MR SAGNELLI:  If the court pleases.  Your Honour, if I could just confirm with the court, has an amount for the recognizance been set?  I missed that if it has been announced.

36HIS HONOUR:  It will be in the amount of $2,000.

37MR SAGNELLI:  Thank you, Your Honour.  I am just completing the forms.

38HIS HONOUR:  Mr Sagnelli, do you have the forfeiture order?

39MR SAGNELLI:  Yes, Your Honour.

40HIS HONOUR:  Thank you.  Would you take Mr Tran into custody please?  Just a moment.  Can we have it, Mr Sagnelli?

41MR SAGNELLI:  Yes, Your Honour.

42HIS HONOUR:  Have you got it there?

43Ms Caruso, could you get your client to sign the recognizance release order?

44MS CARUSO:  Yes, Your Honour.  May I approach?

45HIS HONOUR:  Yes, certainly.

46Thank you.  Would you take Mr Tran please now?  Thank you.  Feel free to leave the Bar table, Mr Sagnelli.

47MR SAGNELLI:  Thank you, Your Honour.

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