Director of Public Prosecutions v Tran

[2025] VCC 37

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00112

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRUNG TRAN

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January 2025
DATE OF JUDGMENT:	31 January 2025
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2025] VCC 37

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW    

Catchwords:              Sentence - two charges of traffick in a drug of dependence in not less than a commercial quantity - two charges of traffick in a drug of dependence – plea of guilty following sentence indication

Legislation Cited:      Drugs, Poisons and Controlled Substances Act 1981 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; Bui v The Queen [2015] VSCA 313; Bugmy v The Queen 249 CLR 571; DPP v Richardson [2023] VSCA 241; R v Pham [2015] HCA 39

Sentence:Total effective sentence of 3 years 9 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T. Crouch	Office of Public Prosecutions
For the Accused	Ms L. Dubroja	James Dowsley & Associates

HER HONOUR:

1Trung Tran, you have pleaded guilty to:

·Two charges of traffick in a drug of dependence in not less than a commercial quantity contrary to s 71AA(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic); and

·Two charges of traffick in a drug of dependence, contrary to s 71AC(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

2Traffick drug of dependence in not less than a commercial quantity is a Category 2 offence for which the maximum penalty is 25 years' imprisonment. Traffick in a drug of dependence carries a maximum penalty of 15 years imprisonment.

Circumstances of Offending

3The circumstances of your offending were outlined in a Summary of Prosecution Opening for Plea dated 24 January 2024, tendered as Exhibit A.

4On around 4 June 2023, you agreed to do work for a drug syndicate as a delivery driver. From this date, you communicated with members of the syndicate through the application Threema, discussing how you would be trained in delivering drugs. For example, you were instructed on how to switch off your personal phone and remove the SIM card, and received notes about deliveries performed by others. However, the prosecution does not allege you were involved in the actual transportation of drugs at any time prior to the acts for which you now fall to be sentenced.

5Early on the morning of 11 June 2023, Triple 0 calls were made concerning a man screaming words to the effect of 'help me' in the vicinity of Fernhill Street and O'Sullivan Road, Glen Waverley. At 4.30am, police were dispatched for a welfare check.

6Attending police observed you seated alone in the driver's seat of a car, wearing no clothes except for a fur coat draped across your lap. You spoke to police and identified yourself. You appeared to be drug affected.

7At this time, police observed a large zip lock bag containing what appeared to be a large quantity of a white crystalline substance resting between your feet in the driver's foot well. Police subsequently searched the car, locating numerous zip lock bags containing various crystalline and powdered substances, three mobile phones, a set of digital scales, and a full box of empty zip lock bags.

8Forensic testing later found the zip lock bags to have contained the following:

·931.8 grams of methylamphetamine (Charge 1) with a purity between 80‑86%;[1]

·758.4 grams of ketamine (Charge 2) with a purity between 78-84%;[2]

·19.6 grams of cocaine (Charge 3) with a purity between 74-79%;[3]

·87.8 grams of heroin (Charge 4) with a purity between 79-82%.[4]

[1]        A commercial quantity of methylamphetamine is 250 grams.

[2]        A commercial quantity of ketamine is 500 grams.

[3]        A commercial quantity of cocaine is 500 grams.

[4]        A commercial quantity of heroin is 250 grams.

9You were arrested and interviewed following this search. During the interview you made various comments and admissions, including:

·That your role was 'to deliver and collect stuff';

·That 'usually [you wouldn't] like, like, deliver that much';

·That you were affected by meth;

·That your previous meeting with the syndicate was about a week earlier;

·That your role is maintenance for the car;

·That delivery is part of what you did but only one time;

·That you only delivered 'one or two times'; and

·That the scales in the car were there 'in case I need to like weigh my weed.'

Procedural History

10The matter proceeded to this court by way of a contested committal on 2 February 2024. I note that this contest directly informed the charge negotiations which ultimately resolved the matter.

11A Case Assessment Hearing was held on 6 June 2024, followed by a Directions Hearing on 29 August 2024. After some delays (during which time there were discussions between your legal representatives and the OPP in an effort to resolve the matter), you applied for a Sentence Indication. This took place before me on 29 November 2024, which was granted on 5 December, and accepted by you on 16 December 2024. The matter proceeded to a Plea Hearing on 28 January this year.

Prior Criminal History

12You come before the court with no prior or subsequent criminal history.

Personal Circumstances

13You were 20 years old at the time of your offending and you are now 22 years of age. You were born in a small village in the north of Vietnam. You have one younger brother.

14Shortly after you were born, your mother relocated to Ho Chi Minh City due primarily to your father's involvement in a gang, his drug use and his subsequent imprisonment. You instruct that his behaviour caused you and your family significant social stigma from which your mother tried to escape.

15You instruct that your father primarily abused heroin and subsequently methylamphetamine, and that while your parents continued their relationship despite his significant periods of imprisonment, you frequently witnessed your father perpetrate physical abuse against your mother.

16Your relationship with your father has remained fractured, but he is said to have commenced abstinence from drugs only around two or three years ago. You instruct that your family has consistently supported your father with his drug rehabilitation through numerous in-patient programs.

17You report having a very close relationship with your mother, who as mentioned repeatedly relocated the family in the wake of your father's behaviour. She worked a number of different jobs, including working in a grocery store and a real estate agency. This caused you some social and educational difficulty as you were regularly shifting schools. I note that you did not complete formal high schooling in Vietnam. Instead, you began working as a waiter in a coffee shop.

18On several occasions, your mother organised and funded tertiary study for you. In 2018 you studied in the Philippines and Singapore, remaining in Singapore until the outbreak of the COVID-19 pandemic, during which time you lived in Vietnam and completed a Diploma in commerce.

19In March 2022, you arrived in Australia on a student visa to undertake a Bachelor of Hospitality and Tourism Management at the Kaplan Business School. You were still undertaking this degree at the time of your arrest and instruct that your student visa was due to expire in April 2024. As such, you believe you do not currently hold a valid Australian visa.

20You report that when you first moved to Melbourne, you were employed as a housekeeper at the Rydges Hotel in St Kilda, before moving to a Korean Barbeque restaurant in Glen Waverley. You worked there for 10 months prior to your arrest.

21Your first six months in Australia consisted primarily of work and study, and you report having been socially isolated. During this time, you began using cannabis, which you instruct escalated into a daily habit. Your usage frequency ultimately decreased when your girlfriend relocated from Vietnam to live with you.

22You report having experienced financial strain when your partner arrived in Australia. She was unhappy with your existing accommodation and requested that you both relocate to your own accommodation. In doing so, you faced a significant increase in rent and related bills. It was in this context that you report having been approached by a customer at your workplace - a member of the syndicate behind your offending - and offered a high paying role. It is submitted that you were somewhat lured into the syndicate and you were a vulnerable target having regard to your social isolation and financial strains.

23It is submitted that your decision to accept the offer was financially motivated. I note that counsel on your behalf, Ms. Dubroja, clarified that your financial circumstances at the time of your offending are relevant as context, and not in a mitigatory sense. Your relationship with your girlfriend came to an end when you were arrested.

24You report that the night of your offending was the first time you had consumed an illicit substance other than cannabis, and that you were severely drug affected at the time. Ms. Dubroja submitted that you had a curiosity in relation to the effects of drugs given your father's long standing addiction issues, and made a decision to pull over and try the product you were transporting.

25Ms Dubroja submits that in doing so, this caused you to experience a form of drug induced hallucination or psychosis, which led to a concerned member of the public contacting police.

Youth

26You fall to be sentenced as a youthful offender, having been 20 at the time of your arrest. It was submitted that your age positions rehabilitation as a significant factor informing the appropriate disposition in your case.

27Ms Dubroja submitted that your young age and consequent vulnerability were factors influencing your recruitment by the syndicate. Indeed, you instruct that the syndicate member who hired you was a semi-regular customer at your place of employment, who understood your youth, social and cultural isolation, and your limited financial means.

28In support of these submissions, it was argued that the delivery driver role offered to you was not initially represented as an unlawful one, and this remained unclear until you had liaised fulsomely with members of the syndicate. It is, however, conceded that you had gained this understanding some time prior to the night of your arrest.

29Your relative immaturity is said to be further evidenced by the circumstances of your arrest. Ms. Dubroja submitted, and the prosecution did not seek to prove otherwise, that the night of your arrest was the first time you had been directly involved in the delivery of drugs. That you were found heavily influenced by drugs, in a public area and behaving in a manner likely to draw attention, in the middle of a delivery ordered by an organised syndicate, is said to demonstrate your profound naivete as a vulnerable and misguided young person.

30In summary, Ms. Dubroja submitted, and I accept, that you were a young and vulnerable recruit occupying an expendable position within the syndicate, who acted naively. This imbues you with a stronger prospect of rehabilitation than someone of greater age with a significant criminal record.

31That being said, it is important to recognise that you acted for your own financial enrichment as part of what was, as you had come to understand at some point prior to your offending, an unlawful enterprise contingent on the trafficking of drugs.

32Although you are now 22, your age is still relevant. Your youth enlivens the principles enunciated in R v Mills.[5]  Accordingly, your rehabilitation assumes primacy in the sentencing process.  The community has a very strong interest in the rehabilitation of all offenders but especially of young offenders.

[5][1998] 4 VR 235.

33As Redlich JA recognised in Azzopardi v The Queen at [34]-[35] young offenders:

“ … may lack the degree of insight, judgment and self-control that is possessed by an adult.  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

… courts recognise the potential for young offenders to be redeemed and rehabilitated, and this potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour”. [6]

[6] (2011) 35 VR 43.

34Furthermore, it was discussed in Azzopardi that:

“… courts sentencing young offenders are also cognisant that the effect of incarceration in an adult prison on a young offender would more likely impair rather than improve the offender's prospects of successful rehabilitation, given the potential exposure to corrupting influences”.[7]

[7] Ibid [36].

35To that end, I am mindful of the fact that you have been in custody since you were 20 years old. It has now been 600 days. During that time, you have been somewhat isolated socially. You have no friends or family in Victoria and communicate with your mother as regularly as you can. Other than that, you have no social network.

36To your credit, you have put your time in custody to good use. As is evidenced by the many certificates obtained, you have engaged in as many courses as possible in order to keep yourself occupied and in an effort to rehabilitate yourself. Some of those may not have even had application to you personally, but you have undertaken those courses nonetheless. This is very impressive and I take this into account.

Disadvantaged Upbringing

37Ms Dubroja argued on your behalf that the trauma associated with your father's drug use, criminal history and family violence has impacted you psychologically and financially in a manner relevant to the present offending. Reference was made to the decision of the Court of Appeal in Bui v The Queen, which notes crucially that:

…an offender’s personal history, including deprived and isolated circumstances, are matters which inform the notion of individualised justice. [8]

[8]        Bui v The Queen [2015] VSCA 313 [44].

38Specifically, your father's addiction issues are said to have influenced your curiosity in trying some of the drugs in your possession at the time of your offending, as it gave you an opportunity to understand whatever 'allure' had been responsible for your father's extended absences from your family.

39However, you also report personal difficulty reconciling the trauma you suffered by way of your father's drug use with your decision to consume drugs yourself on the night of your offending, or indeed to become involved in an illicit drug enterprise in the first place.

40Ms Dubroja submitted that while your upbringing was not such as to enliven the principles enunciated in Bugmy v The Queen,[9] it does provide some context as to why a person of your particular background may become involved in this form of criminal offending more easily than someone who enjoyed a more stable upbringing.

[9] 249 CLR 571.

Australian Residential Status

41Ms. Dubroja noted that in addition to the standard difficulties experienced by offenders sentenced to terms of imprisonment, you face the additional stressor of uncertainty in your Australian residential status at the expiration of your sentence.

42As I have already noted, your Australian student visa expired in April last year. Of course, I cannot speculate any further about that. Ms. Dubroja explained that while you will not be applying for any further visas subsequent to your release from prison, it is presently unclear whether any grant of parole may have to be served in a detention facility, or whether you will be required to serve your entire sentence prior to deportation from Australia.

43To be clear, neither your future parole nor legal residential status are themselves relevant to the present sentencing exercise. Rather, I acknowledge that the uncertainty in your visa situation, which you report will remain undetermined until you become eligible for parole, would weigh upon you psychologically. As such, I accept it is a relevant stressor which would make imprisonment somewhat more onerous for you than for another person not faced with the same situation. Beyond this, however I have not heard any evidence as to why deportation itself would be particularly difficult for you, and I do not understand that that is what is submitted on your behalf in any event. Your circumstances are somewhat different to somebody who has made a life in Australia - whether that be by way of employment or family, who faces a similar prospect of deportation. Accordingly, whilst I take the burden that this may place upon you into account, it is not of significant weight.

Plea of Guilty

44I take into account your plea of guilty, which was entered at a relatively early stage in proceedings. The matter was never listed for trial and you accepted the sentence indication shortly after it was given.

45While the matter did proceed by way of contested committal, I accept that this progressed the prosecution position with respect to the most appropriate charges to be laid against you, and the matter resolved on that basis.

46There is clearly a strong utilitarian benefit in your plea of guilty, which has saved the court and the community a significant amount of time and resources which would have been expended in the running of a trial. Your plea also facilitates the course of justice and demonstrates your remorse. It entitles you to a significant discount in sentence.

47I also accept that there has been something of a delay in the resolution of this matter, which was not entirely of your own making. During this time, which you have spent on remand, you have put your time to good use whilst the uncertainty of the proceedings were hanging over your head.

Prospects of Rehabilitation

48Ms. Dubroja submitted that you present with excellent prospects of rehabilitation. To this end, she noted variously that:

(a)   You are young and have no prior criminal history;

(b)   You have a strong history of study and employment, especially within the hospitality sector; combined with your proficiency in English, this gives you good prospects of steady employment upon your return to Vietnam;

(c)   You continue to enjoy the financial and emotional support of your mother; and

(d)   You have remained actively engaged with various developmental courses whilst in custody (as evidenced by Exhibit 2 – Bundle of Prison Certificates), and you have demonstrated no behavioural issues in that time.

49At the plea, the prosecution agreed that you have sound prospects of rehabilitation.

50In the circumstances, I accept that you have excellent prospects of rehabilitation.

Objective Seriousness of Offending

51Ms. Dubroja appropriately acknowledged that these offences are inherently serious, as is apparent from the significant maximum penalties fixed by Parliament. She conceded that you were found with a significant quantity of a range of high-purity drugs.

52However, citing the Court of Appeal decision in Richardson,[10] Ms. Dubroja noted that while important, quantity is only one factor informing the objective gravity of a drug trafficking offence. She outlined other factors which serve to moderate the objective seriousness of your offending, including:

(a)   That you were only charged with a single trafficking incident;

(b)   That your role was to serve as a driver, as opposed to being further ingratiated in the trafficking enterprise itself;

(c)   Your involvement with the syndicate was short-lived;

(d)   You had never previously been involved in the transportation of drugs;

(e)   You received no payment or financial benefit from your offending; and

(f)    You acted with naivete and without sophistication, having been the subject of targeted recruitment into the syndicate.

[10]        DPP v Richardson [2023] VSCA 241 [81] citing R v Pham [2015] HCA 39.

53I take all of these matters into account when assessing the objective gravity of the offending.

54The prosecution took a contrary view, arguing that your offending was of high objective seriousness. The four charges taken together are said to constitute high-level trafficking, involving well in excess of a commercial quantity with respect to Charges 1 and 2.

55I agree that this was a relatively serious offence. There was a significant quantity of drugs found in your possession. In relation to Charge 1, the quantity of methamphetamine was almost four times the applicable commercial quantity. Charge 2 involved a quantity of ketamine that was well in excess of the commercial quantity threshold, and this remains a very relevant factor when sentencing you. Furthermore, in each instance the drugs were of high purity.

56The prosecution also characterises your understanding of the syndicate's operations as significant, and therefore indicative of a higher degree of moral culpability. Mr. Crouch at the sentence indication hearing, emphasised how you engaged in extensive text messaging with regard to 'training' prior to your delivery role, making your decision to become involved in drug trafficking more considered than naive. Further, the drugs located in your possession had been packaged into zip lock bags, clearly designated for wider distribution.

57The prosecution emphasised that this role was clearly performed by you in pursuit of financial reward. Mr. Crouch submitted that its occurrence in the context of broader financial stress is irrelevant; you are said to have engaged in criminal activity merely to fund a lifestyle that you could not afford through legitimate means. Again, I take each of the matters raised by the prosecution into account.

58Although it is not helpful to categorise the level of seriousness of the offending (but rather the court must look at the individual circumstances of the offence itself), having considered all relevant matters, I consider your offending as falling within the mid-range of objective seriousness. As I have said, the variety and quantity of drugs located in your possession was significant, and Ms. Dubroja appropriately conceded on your behalf that the only disposition on sentence is a head sentence with a non-parole period.

59It is often said that drugs are a scourge on society, and one that is inflicted by people such as yourselves, who traffick in illicit drugs. Every day people become addicted, turn to crime to fund their habits and sadly, many people die as a consequence of the grip that addiction has on them. You have already seen firsthand from your own experience with your father, the incredible damage that drugs can wreak. The social evil caused by drugs, in turn places a burden on the police force, legal system and prison system.

60However, I also accept that you were targeted for recruitment into the syndicate in large part due to your financial, social and cultural vulnerabilities; that your role within the syndicate was a basic one designed by your recruiters to insulate others from detection; and that you have only been charged with one specific trafficking incident.

Sentencing Principles

61There are a number of basic purposes for which a court may impose a sentence, namely just punishment, both specific and general deterrence, rehabilitation, denunciation and protection of the community. In determining an appropriate sentence, I am required to take into account these objectives as well as various other matters including the gravity of the offending, the maximum penalties applicable, your culpability, and your personal circumstances. I am to have regard to the principles of parsimony, and I do so.

62The prosecution argued, and your Counsel conceded, that the public must be deterred from engaging in the behaviour for which you now fall to be sentenced.

63Mr. Crouch on behalf of the prosecution submitted that this was a significant sentencing consideration, given syndicates such as the one that employed you are reliant on the willingness of people like yourself to accept the risk of detection to distribute drugs in exchange for financial reward. For this reason, he argues that you are a suitable vehicle for general deterrence.

64This is indeed a significant consideration, however as I have already noted, when dealing with young offenders rehabilitation must be given primacy.

65I accept that specific deterrence is less central a consideration in this sentencing exercise, given your prior good character and your excellent prospects of rehabilitation, especially regarding your capacity for gainful employment in the future and your continued enjoyment of family support in Vietnam. But specific deterrence is not entirely irrelevant.

Current sentencing practices

66Section 5(2)(b) of the Sentencing Act 1991 (Vic) requires the court to have regard to current sentencing practices. The court was provided with a number of comparable cases. Only limited assistance can be derived from comparing other cases, however I take these into account where it is possible to make comparisons.

Totality

67While conceding that you were in possession of several different drugs at the time of your arrest, and consequently that some degree of cumulation will be necessary, Ms. Dubroja argued that there is clear scope for the principle of totality in this sentencing exercise. In advancing this argument, she noted that the charges arise out of a single incident in the course of your first attempt at delivery. I take this into account.

68Charges 1 and 2 are clearly the more serious of the charges having regard to the applicable maximum penalty and the quantity of drugs involved. I intend to order some cumulation as between Charges 1 and 2. Charges 3 and 4 are also serious and warrant some measure of cumulation but to a lesser extent having regard to the principles of totality.

69I note that upon being convicted and sentenced to a term of imprisonment on Charge 1, you then fall to be sentenced as a serious drug offender on Charges 2, 3 and 4.

70This means that the Court must give greater weight to community protection.  I must also cause your status as a serious drug offender to be entered into the records of the court.

71As noted, I have given significant weight to your age, lack of prior convictions, your plea of guilty, your excellent prospects of rehabilitation, and balanced this with the objective seriousness of the offending having regard to the maximum penalties applicable.

Sentence

72On Charge 1, the charge of trafficking in a drug of dependence in not less than the commercial quantity, you are convicted and sentenced to two years and six months' imprisonment.

73On Charge 2, trafficking in a drug of dependence in not less than a commercial quantity, you are convicted and sentenced to two years and three months' imprisonment.

74On Charge 3, trafficking in a drug of dependence, you are convicted and sentenced to six months' imprisonment.

75On Charge 4, trafficking in a drug of dependence, you are convicted and sentenced to eight months' imprisonment

Orders for cumulation

76The sentence imposed on Charge 1 will be the base sentence.

77I direct that one year of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1.

78I direct that one month of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1 and other sentences imposed this day.

79I direct that two months of the sentence imposed on Charge 4 be served cumulatively with the sentence imposed on Charge 1 and other sentences imposed this day.

80The total effective sentence is therefore three years and nine months' imprisonment.

81I set the period before which you become eligible for parole as two years and six months.

82As noted, upon receiving a term of imprisonment on Charge 1, you fall to be sentenced as a serious drug offender on the remaining charges. Although there is a presumption of cumulation under the Sentencing Act 1991, for reasons that I have already explained, I intend to order some degree of concurrency having regard to the principles of totality and the fact that the charges arise from a single incident.

83I direct that the records reflect that you have been sentenced as a serious drug offender on Charges 2, 3 and 4.

Pre-Sentence Detention

84I declare 600 days of pre-sentence detention to be reckoned as time served.

Section 6AAA

85I indicate that but for the plea of guilty, I would have imposed a total effective sentence of four years and six months' imprisonment with a non-parole period of three years and two months' imprisonment.

Disposal Order

86I make the order for disposal in the terms sought, which is by consent.

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