Director of Public Prosecutions v Tran
[2019] VCC 1373
•30 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01074
Indictment No. C1711393
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THONG VAN TRAN |
JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 to 20 July 2018 | |
DATE OF SENTENCE: | 30 August 2019 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1373 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – Trafficking in a commercial quantity of a drug of dependence – Possession for sale – 71 kgs of cannabis possessed on a single date – Complicit in co-offender’s activities – No evidence of actual intention to sell – No evidence of financial gain – Early plea of guilty – No prior convictions – Mandatory deportation – Family living in Vietnam – Custodial hardship – Loss of opportunity to settle in Australia with girlfriend
Legislation Cited:
Cases Cited:
Sentence: 4 years’ imprisonment with a 2 year minimum term before becoming eligible for parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P J Pickering | Mr J Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr H A Rattray Mr A J Patton | Stephen Andrianakis & Associates |
HIS HONOUR:
1 Thong Van Tran, you have pleaded guilty to an indictment containing one charge of trafficking in a drug of dependence in not less than a commercial quantity (charge 8). The maximum penalty for trafficking in a drug of dependence in not less than a commercial quantity is 25 years’ imprisonment.
2 The prosecution filed a summary of prosecution opening dated 12 July 2018 which I have been told by your counsel I can treat as a statement of agreed facts.[1]
The facts
[1] Exhibit P1.
3 In March 2017, police commenced ‘Operation Tropics’ which targeted the cannabis trafficking activities of Nejat Sazimanoski. This operation was concerned with his trafficking operations, his suppliers, distributors and customers. Police used tracking devices and surveillance to track those involved in the distribution and sale of cannabis to and from Sazimanoski.
4 Ha Huu Nguyen, Oanh Nguyen and Tuan Anh Le supplied cannabis to Sazimanoski in return for payment. Sazimanoski and his wife, Gezime Sazimanoska, distributed the cannabis to Frank Rocky Margariti, Stuart Thomas Wicks and John Francis Taouk. They on-sold the cannabis purchased to other buyers.
5 On 1 August 2017, police arrested you and Ha Huu Nguyen in Craigieburn Road East, Wollert. Sazimanoski had just purchased 13.6 kgs (30 pounds) of cannabis from Nguyen at Sazimanoski’s daughter’s property in Wollert. This transaction was monitored by police, who intercepted a vehicle driven by you, in which Nguyen was a passenger, as you drove away from the property. In the car driven by you Police located and seized $60,000 cash which was payment for the cannabis purchased by Sazimanoski from Nguyen.
6 These facts were provided by way of background and do not form part of the circumstances giving rise to charge 8 on the indictment. The prosecution do not allege that you were involved in that transaction or that you were intending to sell the cannabis that day, or that you knowingly transported the cannabis to Wollert.
7 Police subsequently searched the home you shared with Ha Huu Nguyen and Oanh My Nguyen in Cairnlea. They located 70.81 kgs of cannabis together with documents related to the growing, distribution, sales and profits/expenditures of trafficking cannabis. Accordingly, the prosecution allege that your offending took place on 1 August 2017, when you were found in possession of 70.81 kgs of cannabis for sale at your home. This quantity is just under three times the commercial quantity threshold. These facts give rise to charge 8 on the joint indictment.
8 You were interviewed in a tape-recorded record of interview and made no admissions in relation to the alleged offending.
Offence seriousness
9 Trafficking in a commercial quantity of a drug of dependence is a serious criminal offence as indicated by the maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This shows, unambiguously, how seriously the community, through the Parliament, views the conduct you have committed in charge 8.
10 Whilst the legislation is quantity-based and not harm-based, it is nonetheless relevant to observe that grave harm is inflicted on the community by offences involving the trafficking of cannabis by modern methods.[2] The harmful effects of cannabis and the seriousness of the offence have been emphasised numerous times in recent decisions in the Victorian Court of Appeal.[3]
[2] Nguyen v The Queen (2016) 311 FLR 289, 331 [142] (Redlich JA, Tate and Whelan JJA agreeing) (‘Nguyen’).
[3] See Nguyen 326 [123].
11 While the sentencing regime for trafficking offences is quantity-based,[4] the amount you trafficked is not determinative of my assessment of the objective gravity of this offence. Nonetheless, the weight of drug you actually trafficked remains a relevant factor in assessing the objective gravity of your offending conduct.
[4] Adams v The Queen (2008) 234 CLR 143.
12 By possessing a commercial quantity of cannabis for sale you were knowingly part of the conduit between the grower of the cannabis and the final buyer on the street, although I sentence you on the basis that the prosecution agrees there is no evidence you intended to sell the cannabis yourself or that you were involved in transporting the cannabis to your home.
13 I find that your offence falls in the mid-range of seriousness of offences of this kind. It follows that the warning given by the Victorian Court of Appeal in Nguyen v The Queen[5] that in future sentencing courts should, by increments, increase the sentences for offences against s 72A of the Drugs, Poisons and Controlled Substances Act in the mid-range of seriousness, applies to you, albeit yours is an offence against s71AA of the Act. For the purposes of the application of the principles espoused in Nguyen, I consider it is artificial to draw any distinction between a mid-range commercial cultivator and offending committed by a mid-range commercial trafficker, who provides at least part of the conduit between the cultivator and the ultimate end user.
[5] Nguyen 296 [4 iv], (Redlich JA), 358–9 [245], 365–6 [272] (Whelan JA).
14 Accordingly, I sentence you on the basis that this is mid-range offending and that the principles laid down by the Court of Appeal in Nguyen v The Queen[6] apply in sentencing you. Overall, I assess your moral culpability as being lower than a number of others involved in Operation ‘Tropics’. Nonetheless, as your counsel accepted, your offence is ‘serious’.
Personal circumstances
[6] (2016) 311 FLR 289.
15 You are 30 years old. You were born and raised in Vietnam and travelled to Australia to study in early 2014. You are not an Australian citizen.
16 You have a long term girlfriend, Ms Thuy Dung Nguyen, and you have no dependents. You had planned to make a life for yourself and your girlfriend in Australia. You now realise that is impossible as you expect that you will be deported immediately upon the completion of the sentence I impose on you for this offending.
17 I accept the potential for you to be deported at the completion of your sentence is relevant to my sentencing you in two ways. First, imprisonment is more onerous on you because you face the prospect of deportation. This, in turn, may render your incarceration more burdensome.[7] Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity you had prior to being sentenced to settle permanently in this country.[8] I take both these matters into account in your favour.
[7] Allouch v The Queen [2018] VSCA 244 [39] (Beach and Weinberg JJA) (‘Allouch’); Loftus v The Queen [2019] VSCA 24 [65], [79] (Whelan and Niall JJA).
[8] Allouch 10 [39].
18 Your mother and father reside in Vietnam. You have nine siblings comprising three older brothers, three older sisters, one younger sister and two younger brothers. All of your siblings reside in Vietnam. None has been in trouble with the law. Your family know you are in custody in Australia, but you have not disclosed the reason for your confinement. You have weekly telephone contact with your parents and occasional telephone contact with your siblings. You hope to marry your girlfriend in Vietnam when you return there at the conclusion of this sentence.
19 You describe your parents and siblings as ‘good people’. Your father works in the construction industry and your mother attends to the needs of her large family. When you were aged 6 you were sent to live in a monastery or convent because your home was too crowded. You initially struggled to deal with this transition but after you settled in you did quite well. You lived at the monastery with 45 other children.
20 You remained living there until you were 18 years old. You successfully completed your secondary schooling at the monastery and attained a grade that allowed you entry to university.
21 At the age of 18, you were accepted into university in Da Nang. You remained there for 4 years and successfully completed an economics degree. At the age of 22, you returned home and lived for a time with your parents while you looked for work.
22 You found it difficult to find work in Vietnam and in 2014 you decided to travel to Australia to learn English. You hoped to then study for a degree in accountancy. You set off for Australia on your own with nothing much more than the name and address of someone you could stay with in Sunshine. Your enrolment in an English course conducted at the Holmesglen TAFE had been paid for prior to your departure from Vietnam.
23 After arriving in Australia you commenced the English course and paid for your board and transport by doing odd jobs for a handyman business run by people you met through the Vietnamese community. After a short time, you moved from Sunshine and lived with friends in St Albans.
24 You did not successfully complete the English course and consequently, you did not go on to undertake any further study in Australia. For the duration of your time here you have worked as a home handyman, working between 20 and 40 hours per week. You have sent what little money you earned, over and above your living expenses, home to your family.
25 You began living with your co-accused Ha Nguyen approximately five months before your arrest. You met in late 2014 and developed a friendship through a mutual interest in playing soccer.
Mitigating circumstances
26 You pleaded guilty to the present charge at the earliest reasonable opportunity. Your plea has utilitarian benefit in saving the time and cost of a relatively lengthy trial. It also indicates an acceptance by you of responsibility for your offending conduct and your willingness to facilitate the course of justice.
27 However, whilst you are undoubtedly regretful for the situation in which you find yourself and the effect this has had, and will continue to have, on you and your girlfriend in particular, there is insufficient evidence before to make a finding in your favour that you demonstrate true contrition and remorse beyond what is reflected in your plea.[9]
[9] See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).
28 You have no prior convictions or findings of guilt and you have no matters pending. Accordingly, I accept you fall to be sentenced as a person of otherwise good character.
29 Your offending is more limited than that of a number of others caught up in this drug operation. On a single date you were found by police in possession of drugs at your property in circumstances where you knew they were to be sold by others. Nonetheless, nearly 71 kgs of cannabis is a sizeable quantity of that illicit drug to possess for sale. I accept there is no evidence that you profited from your offending conduct or that you expected to do so.
30 As I said earlier, I accept the fact you will be deported back to Vietnam upon your release from custody is a mitigating circumstance in your favour.
31 I also accept that there has been some delay in finalising this matter, which is through no fault of yours. I take into account the fact that you have had these matters hanging over your head for some time and this would have caused you some anxiety.
32 I have had regard to the contents of the letter written by your father dated 7 July 2018.[10] I have also had regard to two certificates tendered on the plea evidencing your attendance whilst you have been in custody at a problem gambling course and a cross cultural awareness program.[11]
[10] Exhibit TT2.
[11] Exhibit TT3.
33 I accept you have good prospects of rehabilitation given your lack of prior convictions and the protective factors which appear to be present in your case.
34 I accept that you have learnt a salutary lesson from your current experience with the criminal law and that you are unlikely to reoffend in the future. Accordingly, I need give little weight to specific deterrence or protection of the community in your case.
Application of sentencing principles
35 I have had regard to current sentencing practices in relation to the charge of trafficking in a commercial quantity of a drug of dependence in light of the decision of the High Court of Australia in DPP v Dalgliesh (a Pseudonym)[12] and the Victorian Court of Appeal decision in Nguyen v The Queen.[13] Neither the Crown nor your counsel put material before me concerning current sentencing practices in relation to this offence.
[12](2017) 91 ALJR 1063.
[13] (2016) 311 FLR 289 (‘Nguyen’).
36 It is difficult to gauge more than a very general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct which can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent that I have been able to gain any assistance from comparable cases, I have sought to do so in your case.
37 The parity principle is a significant consideration in this case, as is the need for me to pass a sentence on you which is not unfairly disparate from the sentences I passed on others involved in Operation ‘Tropics’. I have had regard to these other sentences in determining what is an appropriate sentence your case.[14]
[14] See DPP v Le [2019] VCC 583; DPP v Margariti [2019] VCC 1218; DPP v Sazimanoska [2019] VCC 617; DPP v Sazimanoski [2018] VCC 973; DPP v Taouk [2109] VCC 582; DPP v Wicks [2019] VCC 135.
38 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
39 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
40 General deterrence is a very important sentencing consideration for the offence charged in charge 8.[15] The offence is prevalent in the community and, as the Court of Appeal has observed, the link between prevalence and general deterrence is self-evident.[16]
[15] Nguyen 330 [139]–[140].
[16] Nguyen 331 [141].
41 Whilst just punishment, general deterrence and denunciation must be given primary consideration in my instinctive synthesis, I am of the view that, in your case, specific deterrence and protection of the community need be given very little, if any, weight. As I said earlier, I accept that you have good prospects of rehabilitation.
42 Nonetheless, trafficking in a commercial quantity of cannabis is a serious crime and your moral culpability is relatively high. Consequently, as the Court of Appeal has observed on numerous occasions, immediate imprisonment should ordinarily be regarded as virtually unavoidable in cases of this type.[17] I am, therefore, of the view that a sentence of imprisonment with a non-parole period is the only sentence which will give appropriate weight to the purposes for which this sentence is imposed.[18] I consider it would be inappropriate to impose a ‘straight’ sentence on you without fixing a non-parole as was submitted by your counsel. Neither the nature of the offence nor your past history justifies me adopting such a course.[19]
[17] Nguyen 330 [140].
[18] Sentencing Act 1991 s 5(4).
[19] Sentencing Act 1991 s 11(1).
43 I consider it is appropriate in your case to impose a sentence which will allow for your release on parole earlier than might otherwise have been the case.
Stand up Mr Tran
On the charge of trafficking in a commercial quantity of a drug of dependence, namely cannabis (charge 8), you will be convicted and sentenced to be imprisoned for 4 years.
I order that you serve a minimum of 2 years’ imprisonment before becoming eligible for parole.
I declare 759 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct that the fact that declaration was made and its details be noted in the records of the court.
Mr Tran this declaration means that you are now eligible for parole. Whether you receive parole will be a matter for the Adult Parole Board and in any event, you are likely to be taken into immigration detention immediately upon your release from custody.
Pursuant to s 6AAA of the Sentencing Act 1991 I state that the sentence I would have imposed on you but for your plea of guilty would have been a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years’ imprisonment.
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