Director of Public Prosecutions v Tran
[2019] VCC 1077
•17 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00913
Indictment No. H13148949
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANH TRAN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 5 July 2019 | |
DATE OF SENTENCE: | 17 July 2019 | |
CASE MAY BE CITED AS: | DPP v Tran | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1077 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Two charges of trafficking in a drug of dependence, one charge of possession of a drug of dependence, one charge of being a prohibited person in possession of a firearm – prior offending for trafficking but many attempts at rehabilitation and evidence of good work capacity and family support – total effective sentence 6 years and 7 months – non-parole period 3 years – one summary charge of possession cartridge ammunition without being the holder of a relevant licence – fine $300.
Legislation Cited: Sentencing Act 1991; Confiscation Act 1997; Firearms Act 1996
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z Menow | Solicitor for the Director of Public Prosecutions |
| For the Offender | Mr L Hartnett | Papa Hughes Lawyers |
HER HONOUR:
1 Anh Tran, you have pleaded guilty to four indictable offences: Charges 1 and 2 are trafficking in a drug of dependence, each of which carries a maximum penalty of 15 years’ imprisonment; Charge 3 is possession of a drug of dependence, which carries a maximum penalty of 5 years’ imprisonment or 400 penalty units; and Charge 4 is being a prohibited person in possession of a firearm, which carries a maximum a penalty of 10 years’ imprisonment or 1,200 penalty units.
2 In addition to the indictable charges, you have consented to a summary charge being transferred to this Court from the Magistrates’ Court and have pleaded guilty to it. This is Charge 23, possessing cartridge ammunition without being the holder of a relevant licence. It carries a maximum penalty of 10 penalty units.
3 The circumstances of your offending are set out in the amended prosecution summary for plea hearing (Exhibit “A”). On 14 November 2017, police executed a search warrant at a Southbank apartment for which you had signed a lease on 31 October 2017. Police arrested and searched you in the foyer of the property. You were found to be in possession of $23,150 cash, which was separated into three quantities, and also had keys to the Southbank apartment and a Toyota Aurion motor vehicle. When police searched the apartment, they found multiple drugs of dependence in various quantities, a money counting device, zip lock bags and a set of digital scales. Your mobile phone was seized and analysed and indicated evidence of trafficking communications. After obtaining a search warrant for the Toyota Aurion, police located in it a firearm, some ammunition and a small quantity of drugs of dependence, which were in a cavity beneath the gear box.
4 Charge 1 relates to 329 grams of total pure quantity of methylamphetamine. This is over 100 times the traffickable quantity of 3 grams.
5 Charge 2 relates to 35 grams of total pure quantity of 3,4‑methylenedioxyamphetamine (MDA). This was 10 ½ times the traffickable quantity of this drug, 3 grams. Charge 2 also includes a total pure quantity of 4 grams of 3,4‑methylenedioxy-N-methylamphetamine (MDMA). This is just over the traffickable quantity of 3 grams relating to this drug. It also includes a total pure quantity of 74 grams of heroin. This is 24 ½ times the trafficable quantity for this drug, 3 grams. This charge also includes a total pure quantity of 104 grams of cocaine. This is 34 ½ times the trafficable quantity of this drug, 3 grams.
6 Charge 3 comprises possession of 1.4 grams of Alprazolam in the form of Xanax tablets. There were 706 whole tablets and 24 tablet portions. It also includes less than 2 grams of morphine and 32.4 grams of cannabis, which is a small quantity of cannabis as it is under 50 grams.
7 Charge 4 relates to a 9 millimetre Luger Tanfoglio handgun found in the Toyota Aurion vehicle. As a period of less than five years had expired since you had served a term of imprisonment, you were prohibited from possessing a firearm.[1] The handgun was capable of being fired. Three magazines of ammunition and some loose 9 millimetre ammunition were located with it capable of being fired from that handgun. The Summary Charge 23 relates to this ammunition.
[1]Firearms Act 1996 s3 and s5(1)
8 For completeness, I note that other Summary Charges numbered 11, 24, 25, 26 and 27 have been withdrawn.
9 After you were arrested, an interview was conducted during which you gave “no comment” answers, as is your legal right. You were remanded in custody and there is a period of 580 days’ pre‑sentence detention to be reckoned as served up to and including yesterday. You did serve another month on remand for an unrelated matter.
10 You are aged 37 years today, having been born on 17 July 1982. You come before the Court with a significant criminal history, primarily for drug and dishonesty offences dating back to 2001 when you were aged 18 years. It is of particular concern that your prior convictions include three offences of trafficking in heroin in 2001, 2005 and 2014. Over the years, you have been given suspended sentences of imprisonment, which you have breached, and also a Community-based Order in 2001 and 2011, each of which you appear to have completed. However, you were given another Community Correction Order on 8 February 2016, which you breached. This breach was dealt with in the Magistrates’ Court on 6 April 2018 and accounts for the extra month which you have spent in custody to which I earlier referred. Interestingly, you did not serve an immediate custodial sentence until 2016. In that year you served two custodial sentences of 6 months’ imprisonment and 115 days’ imprisonment. It would appear that you were released from custody in or about September 2016 and the offences for which I must sentence you were committed in November 2017.
11 In a plea on your behalf by Mr Hartnett, the Court was told that you were born in Footscray of Vietnamese parents. It appeared that your father was involved in trafficking heroin and you were introduced to the use of heroin by your older brother when you aged approximately 12 years. Both your parents were gamblers and a report from Ms Gina Cidoni, psychologist, dated 26 March 2019 (Exhibit “1”) refers to your background of disadvantage. This includes some sexualised touching by a family friend when you were only five or six years old. Ms Cidoni noted that you had a full scale IQ in the low-average range, although your verbal comprehension index is borderline, but your perceptual reasoning and working memory are average. She noted that your verbal knowledge was reduced and likely to be the result of lack of education. Apparently, you attended three primary schools as your family frequently relocated, and in your first year of high school, you began to supply older students with heroin which you stole from your father. You ultimately left school partway through Year 8 at Maribyrnong College. Having begun use of heroin at age 12, you were smoking it daily by about age 14, at which stage you left home. You apparently left home to go to live with an associate who was older than yourself. He was also a heroin user and trafficker. Your high school girlfriend also moved in with you. Mr Hartnett’s written submissions stated that all three of you used heroin on a daily basis and that you trafficked in heroin in order to support your habits.
12 On the face of it, your prospects of rehabilitation do not look good. In particular, I note that the offending for which I must sentence you has escalated in seriousness from your prior offending in terms of the quantity of drugs being trafficked. It is also deeply concerning that you should have been in possession of a firearm and ammunition.
13 I had the benefit of hearing evidence at the plea hearing from Mr Richard Tregear, who has worked at an outreach worker with troubled youth for in excess of four decades. This has been in both Sunshine and St Albans, and with Bob Maguire’s Open Family Foundation and, for the last 12 years, with the Les Twentyman Foundation. He gave evidence that he first met you when you were 15 years old and using heroin. He had also met your older brother who has a long history of drug addiction and has recently been released from prison. Mr Tregear stated that you had really tried very hard on numerous occasions to detoxify yourself and get away from a life of addiction. It would appear that your family sent you to Vietnam when you were 16 years of age for your first period of detoxification. Mr Tregear was involved in organising another period of detoxification in Vietnam when you were 24 years old, during which you went for a time to live with family members in South Vietnam. Mr Tregear stated that, by this stage, you had met your now wife, Shirlynn, whom you married in 2012 and by whom you have a daughter, Vera, aged 7 years. Mr Tregear described your wife, who is from Singapore, as having no history of drug use and being “as straight as a dye” and someone who had strongly encouraged you to try to rehabilitate yourself. Indeed, he stated that, on three occasions, she had encouraged you to go to Singapore to detoxify, which you did. In addition, in late 2015 you and your wife paid $17,000 to the Raymond Hader Clinic for the purposes of you undergoing detoxification. However, you lasted only four days and no money was refunded to you. You subsequently made an application for another private rehabilitation program at Refocus in Toorak, which was slightly less expensive than the Raymond Hader Clinic, but you were arrested on the subject matters while still waiting for a bed at that facility.
14 Other factors in your favour are that, since you were remanded in custody on 14 November 2017, you have abstained from taking illicit drugs. Evidence in support of this was tendered as Exhibit “2”, being 13 negative drug screens taken between 2 February 2018 and 24 May 2019.
15 Further, you have utilised your time in custody to undertake three 24 hour drug rehabilitation programs, relapse prevention, managing ice addiction and a drug and alcohol treatment program, each of which were conducted over a number of weeks. A letter from Dr Sara Radovic, clinical psychologist with Caraniche Drug and Alcohol Services at Barwon Prison, was tendered as Exhibit “4”. This exhibit contains two references dated 12 January 2019 and 4 June 2019 respectively. Dr Radovic mentions that you have attended all scheduled group sessions and participated appropriately throughout the programs. Certificates relating to completion of those programs were also tendered as part of that exhibit.
16 Another matter to your credit is that, whilst in custody, you have applied yourself to programs endeavouring to improve your standard of education which, according to Dr Cidoni’s report, was sadly lacking. Tendered as Exhibit “3” were a variety of certificates for courses which you have undertaken. These include vocational pathway programs in reading and writing, kitchen operations and hygiene, traffic management, environment and gardening and construction pathway courses concerning the use of tools and equipment and the reading of plans and specifications.
17 Also, in custody, you have been approved recently to undertake a “peer listener” course. A letter from Denise Reid, psychologist with the Department of Justice and Regulation, dated 25 February 2019 confirmed that you had made application to become a peer listener representative (Exhibit “5”). You explained personally to the Court that this could not have occurred unless you were clear of drugs and that it is necessary for you to undergo 20 hours of education on drug use and support over and above what you have already taken in other areas. This occurs once per week for a period of two hours. Your role as a peer listener is to support prisoners who may have mental health problems. Thus, you meet new prisoners who are being admitted to Barwon Prison and let them know of facilities, such as psychological counselling and rehabilitation programs which may be of assistance to them, or simply make yourself available to listen to them if they need to talk to someone. You stated that you consider that your life experience as a drug addict, who has spent time in prison, means you are qualified to try to urge others to stay away from drugs and get assistance.
18 Mr Hartnett stated that your advice to anyone who is going to take drugs or continue to take drugs, is “Don’t do it, it’s not worth it”. He submitted that this shows that you have now developed insight into your problems after a protracted period of abstinence and are serious about wanting to focus upon your rehabilitation. Thus, although your lengthy criminal history does not, on its face, bode well for rehabilitation, I accept that your behaviour in custody, coupled with repeated attempts to try to detoxify and rehabilitate yourself over a period of some two decades, does show a preparedness to try to assist yourself, which is not always present where people have led a life of crime through drug addiction.
19 I also take into account thatyou have shown yourself to be capable of holding down employment. You held a position as a spray painter at Toyota for six months in 2011, but this employment ended when you returned to use of methylamphetamine and trafficking. However, in 2012, you returned to full time employment with Toyota which lasted until 2016. Unfortunately, you again started using drugs and ended up with your first term of imprisonment in February of 2016. Given your very lengthy period of drug use and your dysfunctional and criminal lifestyle, I consider that the latter period of sustained employment is of significance in showing your capacity to apply yourself when not in the grip of addiction.
20 In sentencing you, I take into account that drug addiction, particularly when it is from such a very young age, namely 14 years, can mitigate the sentence to be imposed because of the very debilitating effects it has on development and the making of sound moral choices. However, your counsel has acknowledged that your offending for which I must sentence you was not solely driven by your drug addiction which you needed to fund through trafficking, but you were also making a profit. Thus, while your lengthy history of addiction is relevant to sentencing as part of your personal circumstances, the serious nature of your trafficking, involving possession of substantial amounts of money and significant quantities of drugs well above a trafficable quantity, coupled with the serious factor of possessing a firearm and ammunition, meant that it would be wrong of this Court to regard your drug addiction as being so mitigatory as not to give appropriate emphasis to denunciating your conduct as well as general and specific deterrence.
21 The fact is that illicit drugs are a scourge on our society, as you well know. They destroy lives, relationships and are responsible for much criminal offending, as well as creating a burden on our health system, the police force, criminal justice system and prisons. Trafficking in drugs for profit is an evil thing to do because it creates such misery and destruction in so many lives. Had the amounts of the drugs involved on Charge 1 and Charge 2 found their way into the community, the potential for adverse effects upon the community was significant. Moreover, the fact that you had leased an apartment and had a money counting device, zip lock bags and a set of digital scales, together with the large amounts of cash found on you, the drug transactions detected on your phone, show that this was no street level dealing in which you were engaged. It was a serious enterprise, which was well organised and responsible for significant amounts of money changing hands. Moreover, the fact that you possessed a firearm and ammunition, albeit not armed with it when you were arrested, is indicative of the unenviably dangerous milieu in which you were committing your crimes.
22 Your counsel has acknowledged that the gravity of your offending justified that an immediate custodial sentence involving a head sentence and a non-parole period. I note that Ms Cidoni’s report refers to you being depressed, stressed, scared and worried, but it was not suggested that the principles in Verdinsi[2] case should apply in your case. It would appear that generally speaking, these psychological symptoms relate to your legal situation and being imprisoned. However, I do take them into account as part of your circumstances generally, although it is troubling that Ms Cidoni describes you as having a profile which demonstrates elevated scores in antisocial behaviours and a tendency to blame others for your difficulties, albeit that she states that your antisocial traits do not fulfil the diagnostic criteria for an antisocial or other personality disorder. I do take into account in a general way that your anxiety and mood symptoms can be associated with your disadvantaged upbringing to which I have previously referred, but Ms Cidoni acknowledges that symptoms of these conditions would be exacerbated by you using drugs.
[2](2007) 16 VR 269
23 Clearly, you are entitled to a discount on the sentence which would otherwise have been imposed by reason of your pleas of guilty. You had originally been charged with even more serious offences than those to which you have pleaded guilty and conducted a contested committal hearing. Following that committal in May 2018, negotiations were conducted between the parties and the matter resolved into a plea to the current charges in March 2019. The prosecution accepts that the timing of your plea has utilitarian benefit in that a trial has been avoided and that should be given mitigatory weight. In all of the circumstances, I consider that your pleas of guilty and acceptance of responsibility, coupled with your fairly exemplary behaviour whilst in custody, demonstrating a preparedness to try to rehabilitate yourself, do show remorse. In these circumstances you are entitled to a meaningful discount on the sentence which otherwise would have been imposed.
24 Mr Tran, you should be in no doubt as to the gravity of the offending for which I have to sentence you. You are particularly fortunate to be charged with trafficking simpliciter on Charge 1, relating to the methylamphetamine. As I stated at the outset, the quantity involved was 329 grams, which is over 100 times the trafficable quantity of 3 grams and is, in fact, over six times the commercial quantity of 50 grams. Presumably, the prosecution considered that there was some difficulty in proving a charge of trafficking in a commercial quantity, which would have carried a maximum penalty of 25 years’ imprisonment, rather than 15 years’ imprisonment. Charge 2 is also a serious example of trafficking in a cocktail of drugs. In particular, the quantity of 44 grams of MDA was over fourteen times the trafficable quantity (3 grams), the quantity of 35 grams of cocaine was over ten times the trafficable quantity (3 grams), and the quantity of 74 grams of heroin was over twenty-four times the trafficable quantity (3 grams).
25 In my view, you are also fortunate to have been charged with mere possession, rather than trafficking, on Charge 3, given that you had possession of 1.4 grams of Xanax, which is nearly three times the trafficable quantity of half a gram, as well has having some Morphine and cannabis.
26 Charge 4, being a prohibited person in possession of a firearm, shows a very serious aspect to this offending compared with your earlier offending. I note that you have no prior firearm offences but, here, you were found with a handgun hidden in a cavity under the glovebox. Although it was not loaded, ammunition found with it fitted that handgun. Unhappily, firearms and drug offending so often go hand in hand, and this Court must denounce this offending, along with your other offending. Australia is a wonderful country and we do not want to go down the path of other countries, where people feel compelled to own a gun for their protection. Unhappily, once you start dealing with drugs at the level with which you have been dealing, you enter a very ruthless demimonde. This is the world into which you had sunk.
27 There can be no doubt in sentencing you that emphasis must be placed on general deterrence. A message must go out loud and clear to the community that trafficking in these pernicious substances will not be tolerated and must be punished. In light of the fact that you have prior convictions for trafficking, and this offending represents a significant escalation in seriousness compared with your prior offending, there must also be emphasis upon specific deterrence. It is also an aggravating feature of your offending that, at the time of it, there was an outstanding warrant for your arrest in relation to breach of a Community Correction Order.
28 You have been given multiple changes in the past to rehabilitate yourself, but have not succeeded in doing so. However, I must say that I am impressed, in your case, at the number of times you have tried seriously to detoxify from drugs and embark upon rehabilitation. This is an unusual feature of your case and you are fortunate to have had Mr Tregear come along to give evidence on your behalf about how hard you have tried. You are also very fortunate to have the ongoing support of your wife and 7-year-old daughter. Your wife has never been a drug user and, according to Mr Tregear, has always been committed to trying to persuade you, and encourage you, to undertake rehabilitative treatment and get away from a lifestyle of drug taking. Your sister, Hong, is also a responsible person, who has a good job working at a bank, and is supportive of you.
29 There can be no doubt that you had a disadvantaged start in life. Your father was not a drug user, but he trafficked in drugs and was an appalling example to you. He ultimately served a term of imprisonment in 2011 for trafficking in drugs. Your older brother, also with such poor example, was a drug user, who has been in and out of prison for criminal offending. He was the one who introduced you to drug taking in your early teens. In addition, both of your parents were gamblers. Thus, you were not reared in a healthy, moral way and lacked role models. Nevertheless, all of your family were present in Court for the plea hearing to support you.
30 Today you have turned 37 years of age. In my experience, if someone of your age does not give up taking drugs, he will either die or end up committing more and more serious offences which will result in him being imprisoned for a very long time. I agree with your counsel that, given that you have had the longest period of abstinence from drugs in over two decades of taking them, you are in the best position that you have ever been to try to rehabilitate yourself. You spoke directly to me in the Court and you did impress as someone who has reflected very seriously on the bad choices that you have made in your life. I believe that you are genuine in expressing your wish to get away from a life of drug taking and criminal offending, but you know, and I know, how very hard it is to do that. You can have the best will in the world but that addiction is never far below the surface. You can never afford to take another illicit drug again. So, whilst I think that your chances of achieving rehabilitation are probably, now, as good as they ever have been, and Mr Tregear commented upon how very healthy you looked and sounded compared to in the past, it would not be realistic if I did not express reservations about how optimistic your chances of rehabilitation are. Although I think you are well motivated and you have a number of supports and good qualities, like a capacity for hard work, I still regard your prospects of rehabilitation as guarded.
31 The head sentence which I impose must reflect the gravity of this offending, but I consider that your counsel’s submission urging a lower than usual non-parole period to try to capture this time in your life where your prospects of rehabilitation are at their best, is a reasonable submission and no issue was taken with it by the prosecution. In the circumstances, the non-parole period which I intend to impose is disproportionately low compared to the head sentence that would usually be the case. However, whether you are granted parole is not a matter for me. That is an administrative decision to be made by the Parole Board.
32 On Charge 1, trafficking in a drug of dependence, methylamphetamine, you are convicted and sentenced to be imprisoned for a period of 5 years.
33 On Charge 2, trafficking in drugs of dependence, namely cocaine, heroin, MDA and ecstasy, you are convicted and sentenced to be imprisoned for a period of 30 months.
34 On Charge 3, possession of drugs of dependence, namely Xanax, a small quantity of cannabis and Morphine, you are convicted and sentenced to be imprisoned for a period of 15 months.
35 On Charge 4, being a prohibited person in possession of a firearm, you are convicted and sentenced to be imprisoned for a period of 12 months.
36 On the Summary Charge 23, possessing cartridge ammunition, you are convicted and fined $300.
37 The base sentence is that of 5 years imposed on Charge 1. I order that 10 months of the sentence on Charge 2, 5 months of the sentence on Charge 3 and 4 months of the sentence on Charge 4 be served cumulatively upon the sentence imposed on Charge 1 and upon each other. The total effective sentence is thus 6 years and 7 months.
38 I order that you serve a period of 3 years before becoming eligible for parole.
39 I direct that a period of 580 days pre-sentence detention be reckoned as time already served under the sentence imposed this day.
40 Pursuant to s6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 8 years with a non-parole period of 6 years.
41 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the property referred to in the Schedule and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed. This order relates to 24 seized items comprising all of the drugs seized, a satchel bag, treatment box and contents, digital scales, various “count team” [is this correct?] paper slips and ice pipes.
42 Pursuant to s33(1) of the Confiscation Act 1997, I order that the property referred to in the Schedule be forfeited to the Minister. This relates to the amounts of cash seized, along with an Esky, money counter and mace spray.
43 Mr Tran, this Court wishes you well with your rehabilitation. You are doing well to abstain from taking illicit drugs while in custody which, unfortunately, they are available, due to the actions of unscrupulous criminals. If you continue your diligent behaviour while undergoing your sentence, you should have good reason to expect to be released back into the community on parole. I urge you to keep up your determination to remain drug-free and to use the support and supervision that will be available to you on parole to turn your life around. Do not even consider contacting anyone from your past life who has been associated with drugs. When you do, the chances that you will be lured back to drug-taking and crime are very high. If that happens, you will be throwing away what rehabilitative gains you have made and you most likely will go on being a menace to society and your life will be a wasted one, and you will cause enormous heartache to those who love you and have stood by you, and to whom you owe an enormous debt.
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