Director of Public Prosecutions v Tran

[2019] VCC 211

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01185

DIRECTOR OF PUBLIC PROSECUTIONS

v

QUOC TRAN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2019
DATE OF SENTENCE:	1 March 2019 (as amended 10 April 2019)
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2019] VCC 211

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:             Trafficking in a drug of dependence (commercial quantity) - possession of a drug of dependence - possession of prohibited weapon

Legislation Cited:     Sentencing Act 1991

Cases Cited:

Sentence:23 months' imprisonment plus 2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee	Office of Public Prosecutions
For the Offender at hearing For the Offender at sentence	Mr R. Nathwani Mr T. El Amine	Elamine Lawyers

HIS HONOUR:

1Quoc Tran, you have pleaded guilty to one charge of trafficking in a drug of dependence (commercial quantity), two charges of possession of a drug of dependence and one transferred summary charge of possession of a prohibited weapon.

2The maximum penalty for trafficking in a drug of dependence (commercial quantity) is 25 years' imprisonment.  The maximum penalty for possession of a drug of dependence is, in your circumstances, 30 penalty units or imprisonment for one year, and the maximum penalty for possession of a prohibited weapon is 240 penalty units or imprisonment for two years.

3You are presently 23 years of age, having been born on 7 June 1995, and you were aged 22 when this offending occurred in October 2017.

4You have a prior criminal history comprising one appearance at the Sunshine Magistrates' Court in September 2017 - less than a month before this offending - where, for various drug, driving, dishonesty and weapons offending you were convicted and fined an aggregate of $1,500.  I will refer more to this aspect later in these remarks.

5You are unemployed and at the time of the offending you resided at a house in Delahey with your pregnant girlfriend, your parents and your siblings.

6At approximately 6 am on Monday 16 October 2017 police executed a search warrant at your address.  This warrant was issued as a result of ongoing investigations into the trafficking of drugs of dependence in the Brimbank area. 

7You were located in a bedroom at the rear of the property with your girlfriend. 

8Police searched the property and located and seized the following items in that rear bedroom:

-cash to the value of $53,910;

-a purple notebook containing a list of persons’ names and dollar amounts totalling $86,500;

-two extendable batons;

-a notepad containing persons’ names and dollar amounts totalling $5,800;

-personal papers and bank documents in your name;

-two machetes;

-a piece of paper with persons’ names and dollar amounts totalling $7,800.

9The police continued the search and, in the garage, located and seized the following items:

-   31 zip-lock bags containing substances later found to be methylamphetamine, ecstasy tablets and cannabis;

-   one Samsung mobile phone belonging to and unlocked by you;

-   an extendable baton.

10Police searched the pergola area and other rooms within the property and located the following items:

-   a sword (located in the front room in a wardrobe under a shelf);

-   an extendable baton (located under the mattress in a bedroom);

-   three CED Taser devices (located in a bag under the pergola);

-   one closed circuit TV hard drive (located in the living room).

11The methylamphetamine was weighed at the Sunshine police station and totalled approximately 461.2 grams.  Subsequent Forensic Services analysis identified that the methylamphetamine quantity was 435 grams. 

12The total amount of ecstasy, or MDMA tablets, was 17 tablets, with a total weight of powder of approximately 2.47 grams.  Forensic Services analysis indicated the MDMA quantity as 4.39 grams. 

13The total weight of cannabis was approximately 4.39 grams.

14During a recorded interview you admitted that much of the money seized by the police was received by you in the course of trafficking in drugs of dependence.  You also claimed to have won approximately $15,000 of this money gambling online.  You admitted that the zip-lock bags of crystal substance were yours and that they contained approximately one ounce of methylamphetamine each, and you stated that you sold the bags for $5,000 each.

15The commercial quantity for methylamphetamine is listed in Schedule 11 of the Drugs, Poisons and Controlled Substances Act as 500 grams.  Overall your trafficking occurred over a period of some five and a half months, from
1 May 2017 to 16 October 2017.  The commercial quantity has been assessed at over 500 grams based on the quantity seized by police at your home on 16 October 2017 together with admissions you made and evidence that you provided to police as to your activity. 

16You admitted ownership of the extendable batons and the sword but claimed that unknown persons had left the Tasers at your address on unknown dates.  That relates to the summary offence, Charge 6: possession of prohibited weapon.

17You have no history of previous offending apart from one matter noted in November 2016 for possession of methylamphetamine, cannabis, and other matters, and upon which you were sentenced on apparent breach on
26 September 2017.  You were also convicted and sentenced on that same day for further offences involving road traffic breaches.  The convictions fell just within the offending period for the current matters.

18Of further note, however, is the record that when you were before the Sunshine Court in November 2016 you were remanded to appear at a later date with diversion pursuant to a requirement to comply with a Youth, Community and Law program.  I note the irony of the glowing report of 10 May 2017, which refers to your "enormous commitment" to treatment, maintaining abstinence, motivation to change lifestyle and insight into the negative effects of amphetamines when, at the same time, you were committing the current trafficking offences.  This is something that has concerned me when considering your prospects of rehabilitation.

19I now turn to your personal circumstances.  As I noted earlier, you are presently 23 years of age and you were 22 when this offending occurred in 2017. 

20You were born in Australia to hardworking parents who had arrived here as refugees.  You were raised in normal circumstances and still maintain a good relationship with your parents.  You have six siblings.

21You regarded yourself as something of an outsider at primary school.  You said you had few friends and suffered some bullying.  Your academic and social difficulties in primary school continued through secondary school; however you were able to manage through until Year 11.

22After leaving school you have worked variously in carpentry, fast food services and motor mechanics.  You had not worked for two years prior to your arrest for the current offending.

23You have reported a history of significant drug abuse going back to your late teens.  You began with cannabis and escalated to methylamphetamine, which you used on a daily basis.  Your drug use made it impossible to work and had a negative effect on your relationship with family members and others.  You were, however, able to keep your drug use hidden from your partner.

24You have been in a close and committed relationship for two and a half years and have a son aged about nine months.  You were in custody when your son was born and your contact with him has been limited to visits.  Your absence, as a consequence of your offending, has apparently had a significant effect on you, and you have had said that you are determined to compensate for this by playing a more constructive role in your son’s life in the future.

25Your mental health was the subject of a report from Mr Patrick Newton, clinical and forensic psychologist.  Mr Newton reported that :

·    you presented as being very immature for your age and your intelligence was towards the low end of the average range;

·    you suffered strong physical dependence on cannabis and methylamphetamine such that you warranted the diagnosis of severe substance use disorder;

·    your gambling behaviour was sufficient to meet the criteria for a gambling disorder;

·    you recognised that your drug addiction had caused noxious impacts on your life; and

·    you repeatedly and emphatically expressed to him your determination to eliminate substance use from your lifestyle once and for all.

26In his opinion Mr Newton considered that:

·    you remain at risk of relapse into substance abuse in the period after your eventual release into the community - in particular, given that substance-related problems are considered to be the most salient criminogenic risk factors extant in your case; and

·    from a clinical perspective your rehabilitation would be assisted by a lengthy period of supervision in the community with intensive substance rehabilitation, gambling counselling and assistance with re-integrating into society.

27The seriousness of the offence of trafficking in a commercial quantity of a drug of dependence is in part reflected by the maximum penalty imposed by Parliament of 25 years' imprisonment.  Illicit drugs such as those in which you trafficked are responsible for much damage, both directly to the personal health of the people that use them and from the crimes which are often committed by addicts seeking the money to pay for the drug.  It is a cruel form of exploitation to be facilitating the supply and advancing the use of such a dangerous commodity.

28Your offending was not an isolated incident but extended over a period of five months.  Whilst I accept the evidence that part of the money seized by police was attributable to gambling returns, it is clear that your trafficking returned significant financial reward.

29In mitigation I take into account the matters urged on your behalf by your counsel, including:

·    your early plea of guilty, both for its utilitarian value as well as expression of remorse;

·    the assistance you provided to the police investigation - this is particularly relevant in that the full seriousness of your crime was only able to be shown by your own frank admissions, including by providing relevant factual evidence from your mobile phone;

·    that your offending at this level began after a traumatic break-up from a close relationship and you quickly fell into a combination of chronic drug use and gambling in order to assuage your distress - I accept the likelihood that the two behavioural problems mutually reinforced and exacerbated each other, sabotaging and complicating any fleeting efforts you might make to bring either under control;

·    the support you have from your partner and from your family;     

·    the insight that you have into your offending that you have expressed and the efforts you have made towards your rehabilitation whilst in custody;

·    your youthfulness; and

·    that this offending has resulted in the first time that you have been in custody.

30Ordinarily an offender in your position should expect a sentence of immediate imprisonment, and for a significant period.  In light of the time you have already spent in remand custody the option is open for you to be sentenced to a combination of custody followed by a community correction order.  You have been assessed as suitable for such an order.

31Whilst rehabilitative processes together with supervision can be provided under the terms of a parole order, I accept that the process of having a determined date for your early release together with a community correction order is, in the particular circumstances of your case, the most efficacious option to facilitate your rehabilitation.

32Because of the custodial component of your sentence I do not propose to direct any unpaid community work condition.  Your compliance with the proposed order will be facilitated by you being able to concentrate on the directed reform programs and hopefully maintain the paid employment offered by your brother or otherwise.

33On Charge 1 of trafficking in a drug of dependence (commercial quantity), you are convicted and sentenced to 20 months' imprisonment.

34On each of Charges 2 and 3 of possession of a drug of dependence, you are convicted and sentenced to two months' imprisonment.

35On Summary Charge 6 of possession of a prohibited weapon, you are convicted and sentenced to three months' imprisonment.

36Charge 1 is the base sentence. 

37I direct that one month of each of the sentences imposed on Charges 2 and 3 and one month of the sentence imposed on Summary Charge 6 be served cumulatively on the sentence imposed on Charge 1.  The sentences are otherwise concurrent.

38The total effective sentence is 23 months' imprisonment.

39Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 541 days, not including today, be reckoned as time already served under this sentence, and I direct that the fact of this declaration and its details be noted in the records of the court.

40On Charges 2 and 3 on the indictment you are also ordered, with conviction, to serve a community correction order for a period of two years.  The community correction order commences immediately upon your release from prison and ends two years from that date.

41The Corrections Centre you will attend is the Sunshine Community Correctional Service at 10 Foundry Road, Sunshine, and you must attend there within two clear working days after the completion of your imprisonment term.

42All the mandatory terms of a community correction order apply, and the additional conditions I impose are that:

·    you be under the supervision of a Community Corrections officer;

·    you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;

·    you participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation, and that may include employment, educational, cultural and personal development programs, as directed by the regional manager.

43I realise you have already had the mandatory terms of the community correction order explained to you, but I will go over them again now.  The mandatory terms are that:

·    you must not commit another offence for which you could be imprisoned during the time that the order is in force;

· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, and they essentially set out your obligations as to your attendance at the Community Corrections centre - such things as not attending drug or alcohol affected;

·    you must report to and receive visits from a Community Corrections officer;

·    you must report to the Community Corrections centre - that is, the Sunshine Centre - within two clear working days of the order starting, and as I have already indicated, that means within two clear working days after the completion of your imprisonment term;

·    you must notify a Community Corrections officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a Community Corrections officer; and

·    you must obey all lawful instructions from, and directions of, Community Corrections officers - such directions may be given either orally or in writing. 

44Do you understand and agree to those conditions, Mr Tran?

45OFFENDER:  Yes, Your Honour.

46HIS HONOUR:  If you get sick, or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Sunshine Community Corrections Centre and I would recommend that you obtain legal advice if any of these things happen.

47However, I want to directly warn you that if you breach any condition of this order you will likely be brought back to court, and that will be back before me.  One of the options open to me is to cancel the community correction order and then re-sentence you on the original charges, and I may also deal with you in addition to that for any breach, which is an offence itself, by sending you to prison for up to three months - that is on top of any new, different sentence that might be imposed if the order is cancelled. 

48So do you understand the consequences of breaching a community correction order?

49OFFENDER:  Yes, Your Honour.

50HIS HONOUR:  I will ask you to sign the order shortly.

51Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty the total effective sentence that would have been imposed is five years' imprisonment with a minimum period of three years to be served before eligibility for parole.

52At the plea hearing the Crown sought an order to which you consented for the taking of a forensic sample, and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.

53Now, I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  So do you understand that?

54OFFENDER:  Yes, Your Honour.      

55HIS HONOUR:  At the plea hearing the Crown also sought forfeiture and disposal orders to which you consented, and I have also made those orders today. 

56My associate will now pass to you the Corrections order, through your counsel, and you may sign that if you agree to the making of that order.

57MR EL AMINE:  As the court pleases.

58HIS HONOUR:  Well, that order is signed.  Thank you both for your assistance.  Is there anything else from either counsel?

59COUNSEL:  Nothing, Your Honour.

60HIS HONOUR:  All right, thank you.

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