Director of Public Prosecutions v Tran
[2019] VCC 1114
•19 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-02224
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JASON TRAN |
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JUDGE: | HIS HONOUR JUDGE HIGHAM |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 July 2019 |
DATE OF SENTENCE: | 19 July 2019 |
CASE MAY BE CITED AS: | DPP v Tran |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1114 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – plea of guilty – trafficking in a commercial quantity of a drug of dependence – methylamphetamine –prohibited person in possession of a firearm – possession of a drug of dependence
Legislation Cited: Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 71AA, 73(1); Firearms Act 1996 (Vic), s 5(1); Sentencing Act 1991 (Vic)
Sentence:Total effective sentence of five years and four months; non-parole period of three years and six months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T Saville (Plea) Ms T King (Sentence) | Ms A Hogan, Solicitor for Public Prosecutions |
For the Accused | Mr A Dickenson | Georgianna & Liang Lawyers |
HIS HONOUR:
1Jason Tran, you have pleaded guilty to one charge of trafficking in a commercial quantity of a drug of dependence, for which the maximum penalty is a term of imprisonment of 25 years; two charges of possession of a drug of dependence, for which the maximum penalty is 30 penalty units or one years' imprisonment; and one charge of being a prohibited person in possession of a firearm, for which the maximum penalty is 1200 penalty units or a term of imprisonment of 10 years. You have also pleaded guilty to Summary Charge 4, driving whilst authorisation suspended, for which the maximum penalty is 240 penalty units or a term of imprisonment of two years; and Summary Charge 10, committing an indictable offence whilst on bail, for which the maximum penalty is 30 penalty units or a term of imprisonment of three months.
2Tendered on your plea was a summary of prosecution opening(ex 1), wherein the details of your offending were set out. I annex a copy of that document to these sentencing reasons.
3In brief, the facts of your offending were as follows:
4On the morning of 8 June 2018, you hired a Holden Astra, which was due to be returned to the car company on 13 June. At approximately 12:25pm on that day, your vehicle was observed reversing down the cycle lane at the intersection of Swanston and Bourke Street in the Melbourne CBD. You were detained by police and searched. Police officers located 2.1 grams of methylamphetamine, with a purity of 82%, in the front pocket of your shorts. Evidently, as police approached you, you had hidden a glass ice pipe and further methylamphetamine, up your sleeve.
5In the course of the search of your person, the pipe fell to the ground and smashed. The total quantity of methylamphetamine located in your sleeve was 244.2 grams, with an approximate purity of 82%. The total quantity of methylamphetamine found in your person at 100% purity was therefore 202 grams, four times the threshold weight for a commercial quantity of the drug.
6Later that afternoon a search warrant was executed at your Westmeadows home address. In the living room police found cannabis, (Charge 4) and Alprazolam, (Charge 2). Located in a blue shoebox, wrapped in a blue cloth, at the rear of the living room, was a black Ruger .22 calibre handgun. This is (Charge 3). I was told that the firearm had not come to the attention of the police, was not wanted in relation to any past offence and had not been identified as a weapon of interest.
7In your record of interview, you admitted that the cannabis and handgun belonged to you and that you and your partner, Ms Stemmer, used the Alprazolam. You made 'no comment', as you were entitled to do, in relation to the methylamphetamine found when your vehicle was intercepted.
8The matter resolved at a further committal mention in October 2018 and was given a plea date in March 2019. Your plea hearing was not reached on that date and came on before me on 4 July. I regard your plea as having been entered at the earliest opportunity.
9I now turn to your personal circumstances. You were born in September 1989 and were 28 at the time of the offending and are now 29. You are first generation Australian, your parents having arrived in Australia in the late 1970s. You grew up in Broadmeadows, the middle of three children. Your eldest sister, younger brother and parents are all hard-working members of the Vietnamese/Australian community.
10Your parents separated when you were 11 and you have only had intermittent contact with your father since he left the family home. You have not spoken to him since 2004 and so during your formative adolescent years
,you lacked a suitable male role model.11You attended a local primary school and then Penola Catholic College. You were a reasonable student, but in Year 12, you were suspended for your part in a schoolyard fight and you did not return. There then followed a period where you sat at home, using cannabis, playing computer games and putting on weight. But you then worked in a factory and in quality control for a firm that built caravans. You left this employment around 2011, following the breakup of your first significant relationship.
12I am told that the breakup of that relationship challenged your emotional sense of wellbeing and led to reactive depression, which you unfortunately addressed by immersing yourself in ever greater drug use. You had used ice, methylamphetamine, on occasion before this time, but you now used it on a regular basis and quickly became addicted. In order to fund your own habit, you began to sell drugs. Thus began a cycle of offending which has led to the matters for which you fall to be sentenced today.
13You have appeared before the Magistrates' Court on four occasions between 2014 and 2017 in respect of 19 matters, including three charges of trafficking methylamphetamine, theft of a motor vehicle, possession of a weapon, reckless conduct endangering serious injury, various driving and Bail Act offences. You have been dealt with in the past by means of short terms of imprisonment and two community corrections orders, the most recent of which was a 12 month order imposed on 19 June 2017 for trafficking methylamphetamine and other charges. The offending for which you fall to be sentenced today occurred during the period of that order.
14Your counsel, Mr Dickenson, noted on the plea that despite previously being placed on a community corrections order, you had not completed any rehab program, or even a structured detox program.
15I am told that whilst on remand for these matters, you have kept yourself physically fit and you have worked as a gardener. You have completed various courses and perhaps most importantly, you have provided clean urine screens.
16Your partner has not been able to visit you, due to her being charged in relation to the substances found at your home and so you have had little contact with her save for over the telephone and little contact with your mother. You have had no contact at all with your father. You occasionally speak to your siblings on the telephone. Thus whilst on remand you have been isolated, not enjoying the familial visits that might have made your time less arduous.
17Exhibit 3JT on the plea was a letter that you had written to the court. I have read that letter on more than one occasion and in it you speak of the importance to you of your new relationship, of the hope you have for the future and of your determination to remain drug-free upon your eventual release from custody.
18Turning now to the submissions of counsel. Ms Saville for the prosecution, pointed to the maximum penalty set by Parliament of 25 years as an indication of the serious nature of such offending. She submitted that this was a serious example of trafficking in a commercial quantity, given that the amounts seized was over four times the threshold for the commercial quantity at 100% purity. The substance was concealed.
19She reminded me of the observations of more recent times from the Court of Appeal at the increased importance of general deterrence in offences involving the trafficking of methylamphetamine. She submitted there was an elevated need in your case for specific deterrence, in light of your relevant priors. She submitted that the only appropriate disposition was a significant and immediate term of imprisonment.
20Mr Dickenson, Counsel on your behalf, submitted that trafficking in a commercial quantity captured a large spectrum of offending, and acknowledged that general and specific deterrence were primary sentencing factors in relation to that charge. Whilst conceding there was a significant quantity of drugs involved, he submitted that your offending, fell in the low to mid-range of offending of this kind. In support of this submission, he relied upon the following factors.
21Firstly, your plea was on the basis of having 202 grams of pure methylamphetamine in your possession for the purpose of sale and in the context of your ongoing and chronic addiction. He noted that the charge covered a single day. There was no evidence of actual sales. There was no evidence of enrichment. You were found with $150 in your possession. Your offending, he said, was grossly unsophisticated. You had reversed down the cycle lane in the middle of the CBD, where you were bound to come to the attention of police officers, as indeed you did. The box with your ice pipe fell out and shattered and your drugs had been only hastily concealed.
22As to the firearm, Mr Dickenson informed me that you had been given the gun by your friend to mind on their behalf. No ammunition was found. There was no evidence of the firearm having been used in connection with your trafficking, nor was there any evidence it having been used in relation to ongoing criminal activity of others. I sentence you on that basis. I accept the submissions made in that regard by Mr Dickenson.
23Mr Dickenson urged upon me your plea of guilty as brining with it the utilitarian benefit of saving to the community the time and cost of a trial, but also as being an indication of your remorse.
24Mr Tran, trafficking in a commercial quantity of drug of dependence is serious offending, as is made only too clear by the maximum penalty of 25 years' imprisonment that Parliament has seen fit to impose.
25Those of us who sit in the criminal courts day after day are aware of this simple truth, Mr Tran. Drugs are tearing out the heart of our community and our community is losing a generation to methylamphetamine. Those who participate in this evil trade can expect to be severely punished, if and when they come before the courts. What might start out as a fun Saturday night, what might be regarded as recreational and consumption therefore that can be controlled, can quickly spiral into the horrors of addiction, as you, yourself, know only too well. Many people lose everything. Some indeed lose their lives. Indeed your own lived experience must show you how near you have come to losing everything.
26Your counsel submitted that you were keen to address your drug addiction. Your letter to the court echoes that determination. Given your age, that is a decision that, if I may say so, Mr Tran, you need to make sooner rather than later, otherwise you will continue in a cycle of offending and longer and longer terms of imprisonment and you will wake up at 50 and find that your life, should you of course be fortunate to still have one, has passed you by, lost in your midst of addiction.
27At the time of this offending, you were on a community corrections order for trafficking methylamphetamine. Whilst you are of course not to be punished again in respect of matters for which you have already been sentenced, your prior criminal history impacts upon my assessment of your prospects for rehabilitation. It elevates the need for specific deterrence and for protection of the community from those who would make drugs available.
28Possession of a firearm as a prohibited person is likewise a serios offences, as is clear by the maximum penalty of a term of imprisonment of 10 years set by Parliament. That maximum penalty reflects both the gravity of the offence, but also the purpose of ensuring and securing public safety and peace. Firearms can all too readily become available in the criminal community.
29Now as I have made clear, Mr Tran, I accept the basis upon which you have pleaded guilty, that you were looking after it for a friend. The firearm was not loaded, no ammunition was found, nor can the firearm be linked to any ongoing criminal activity. Nonetheless, it remains a serious offence and the courts will do everything they can to prevent the illegal circulation of firearms. Those who posses them will be punished, if and when they come before the courts.
30Mr Tran, in sentencing you, I must have regard to a range of different factors.
I must give effect to the principle of general deterrence, that is, I must deter other from behaving as you did and I must give effect to the principle of specific deterrence, that is, I must deter you from any repeat of this offending. I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation. I must have regard to current sentencing practices, as determined and described by the Court of Appeal for the kind of offence that you have committed and to the maximum penalty imposed by Parliament. I must try, in short, to balance your personal circumstances with the circumstances of your offending. I am required by law to pass no longer sentence than is appropriate in all of the circumstances of your case.31I have had regard to all of the matters urged upon me by your counsel. I have regard to basis of your plea, as identified above. I, of course, give you credit for your plea and I accept that you want to change and that you want to break the cycle of your addiction. Nonetheless, as you are only too well aware, the gravity of your offending is such that it can only be met by a substantial term of imprisonment.
32If you would stand up please, Mr Tran.
33On Charge 1, trafficking in a commercial quantity of a drug of dependence, you are sentenced to a term of imprisonment of five years.
34Charge 2, possession of a drug of dependence, you are sentenced to a term of imprisonment of one month.
35Charge 3, being a prohibited person in possession of a firearm, you are sentenced to a term of imprisonment of 12 months.
36Charge 4, possession of a drug of dependence, you are sentenced to a term of imprisonment of one month.
37On Summary Charge 4, driving whilst authorisation suspended, you are sentenced to a term of imprisonment of two months.
38On Summary Charge 10, committing an indictable offence whilst on bail, you are sentenced to a term of imprisonment of one month.
39I order that four months of the sentence on Charge 3 run cumulatively to the sentence imposed on Charge 1.
40This makes a total effective sentence of five years and four months.
41I am fixing a non-parole period of three years and six months. That is, you must served a period of three years and six months before you are eligible for parole.
42Pursuant to s 6AAA of the Sentencing Act, I declare that had you not pleaded guilty, you would have been sentenced to a total effective sentence of seven years, with a non-parole period of five years.
43Pursuant to s 18(4), I declare that you have served 406 days of the sentence that I have passed upon you today and direct that this be entered into the records of the Court.
44I am also signing the forfeiture order and the disposal order that was sought by the prosecution.
45Mr Dickenson, are there custody management issues?
46MR DICKENSON: No, Your Honour.
47HIS HONOUR: No. There is nothing you wish to raise – there is no medication that is being received or any other matters?
48MR DICKENSON: No, none.
49HIS HONOUR: All right then, thank you very much.
50Can I speak directly to Mr Tran?
51MR DICKENSON: Of course, Your Honour.
52HIS HONOUR: Yes. Now, Mr Tran, I have set that non-parole period to enable you, should you obtain parole, to have a period of – let me see, just under two years when you will be under the supervision of the Parole Board. And if you obtain parole, then that supervision could be used by you to really lock yourself in to taking the steps to free yourself of your addiction.
53All right, Mr Tran, I appreciate it is a difficult choice, but I probably said everything I should say in that regard.
54Ms King, any other matters?
55MS KING: Just one matter, Sir.
56HIS HONOUR: Yes, certainly.
57MS KING: I understand with respect to Summary Charge 4, an application was made on the last occasion with respect to licence cancellation.
58HIS HONOUR: Is it mandatory?
59MS KING: 'May suspend for such a time that the court thinks fit or cancel the driver's licence.'
60HIS HONOUR: Yes, my understanding was that it was not mandatory.
61MS KING: Yes.
62HIS HONOUR: And in light of the other sentence that I have passed, it may be described as academic or certainly having no impact. But I did consider it.
I actually went to the E Act and looked it up, Ms King, on the basis that we all need to carry on learning. All right, but certainly rest assured, I considered it.63MS KING: Thank you, Sir.
64HIS HONOUR: All right, thank you for doing that. So any other matters?
65MS KING: No, Sir.
66HIS HONOUR: No, all right, thank you very much, Ms King. Thank you, Mr Dickenson.
67MR DICKENSON: As it pleases, Your Honour.
68HIS HONOUR: Mr Tran, you can be taken down.
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