Director of Public Prosecutions v Tran

[2019] VCC 219

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00938

DIRECTOR OF PUBLIC PROSECUTIONS

v

THANH TRAN

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JUDGE:	HIS HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 February 2019
DATE OF SENTENCE:	1 March 2019
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2019] VCC 219

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Perry	OPP
For the Accused	Ms L. Ristvojevic	Sarah Triearico Lawyers

HIS HONOUR:

1Thanh Phung Tran, you have pleaded guilty to three charges of possessing a drug of dependence contrary to s.73 of the Drugs, Substances and Controlled Substances Act.

2The offending took place on 8 September 2017.  The maximum penalty for this charge under the Act in circumstances when it is accepted that the possession was for the purpose of trafficking is five years' imprisonment.

3The circumstances of your offending are set out in the summary of prosecution opening for plea, which was tendered on the plea hearing this morning and marked Exhibit A.

Circumstances of Offending

4You were born on 12 December 1973 and are currently 45 years of age.  You were 43 at the time of the offending. 

5As at 8 September 2017 your former partner and co-offender, Ms Hahn Thi Hong Le, owned a property at 61 Pandora Avenue, Thomastown.  Her three children also resided there.  A daughter named Phung Tran (who is your daughter), together with two boys from a previous relationship of Ms Le's, Long Le and Truong Quong Le.  Also residing there was Khanh Bang Tran, a daughter of yours from a previous relationship.  A family friend named Ly also lived at the property.  As at 8 September 2017, you were an occupier of the premises, living nearby in Thomastown, but as conceded by your counsel, attending at this property daily, and your plea of guilty to the charges is based upon your status as an occupier pursuant to s.5 of the Act.

6At approximately 6 pm on Friday 8 September 2017, when you were not then present, police officers from the Mill Park Divisional Response Unit and Greensborough Uniform attended the property and executed a search warrant issued pursuant to s.81(1) of the Act.  A search of the property by police revealed various items including:  a Louis Vuitton handbag in the master bedroom and $12,545 cash in Australian currency inside that handbag; $33,950 in cash in Australian currency concealed in a rice container in the kitchen area; a number of designer handbags totalling 43; ten purses; four pairs of shoes; a watch; three mobile phones; an Optus bag containing various receipts for designer items; and four Crown club cards, all located in the main bedroom.

A false ceiling was discovered in the roof area between the laundry and back porch.  Located within this compartment were four fabric bags.  Bag one was a paper bag with six deal bags containing what appeared to be heroin.  Bag two was a Louis Vuitton drawstring bag containing five small deal bags of what appeared to be methylamphetamine, two large parcels of what appeared to be methylamphetamine wrapped in brown paper and duct tape, 36 suboxone films which were later found to contain the substance Buprenorphine, two empty deal bags.   Bag three was a drawstring bag containing five clear bags of what appear to be heroin, large, clear deal bags of what appear to be heroin.  Bag four was a drawstring bag containing one small deal bag of what appeared to be heroin, one bag with three blocks of what appeared to be heroin, and one large bag with several small deal bags of what appeared to be heroin, and a set of digital scales.

7You were arrested by police later in the evening of 8 September 2017 upon your arrival at the property. 

8The various substances obtained from the hidden ceiling cavity were analysed by Mr Graeme Wilson, a scientist at the Victorian Police Forensic Services Centre.  They were determined to be 425.2 grams of combined substances including methylamphetamine with purity ranging between 76 and 87 per cent, 701.7 grams of combined substances including heroin with purity between 14 and 77 per cent.

9The drugs seized have an approximate minimum street value of between $234,040 and $335,315.  On any view, these were significant quantities of drugs (indeed, commercial quantities by virtue of the relevant definitions in the Act) with sizeable street values.

10Through your counsel you conceded, as I have said, whilst you did not reside at the property you were there on a daily basis, perhaps not surprising given your close proximity to the property and the fact that your children lived there.  You also conceded that prior to your arrest you had become aware that there were drugs at the property, though you denied knowledge of the precise type, quantity or location. Notwithstanding the prosecution assertion that your stepson, Long Le, had observed you accessing the cavity in the roof, I am not persuaded beyond reasonable doubt of this fact.  However, I am satisfied that, in addition to meeting the definition of possession through occupation under the relevant Act of the drugs in the property, you at least knew of the existence of the drugs, and you did not do anything about that fact, notwithstanding your connection to your co-accused, and your daily attendance at the property.  In my view, the fact that your criminality occurred in relation to a property where children, including your own daughters, resided, accentuates the gravity of your conduct.

Procedural chronology and plea of guilty

11On the date of your arrest, being 8 September 2017, you were not formally interviewed by arresting police due to the unavailability of an interpreter.  Accordingly, through no fault of your own, you were denied the potential of providing an early account of your involvement in this matter to police.  You were charged in relation to your conduct on 9 September 2017 and ultimately remanded into custody at the Melbourne Magistrates' Court.  You have not sought bail since your arrest, and have now been in custody in relation to this matter for 539 days.  The matter proceeded to a committal on 3 May 2018, followed by four directions hearings, before being listed for trial on 25 February this year.  On that day, I was advised that a sample of the CCTV footage of the property, said to show your attendances at the property, had been made available on the Friday before trial, and the matter was adjourned for one day to enable you and your legal representatives to view the footage.  The matter resolved later that day, after the footage had been viewed.  I note that you were originally charged with trafficking, and the trial indictment contained trafficking charges.  I also note that the charges to which you have now pleaded guilty could potentially have been dealt with summarily in the Magistrates' Court due to the maximum penalty available.

12Whilst your plea of guilty to the charges now before the Court was only entered on 26 February 2019, that came in circumstances in which you had not been initially formally interviewed by police, and substantial charges (carrying a much higher maximum penalty) were not proceeded with by the prosecution on
26 February 2019.  In terms of the timing of your plea, I have also taken into consideration the matter raised with counsel this morning, that is the CCTV footage.  I was told that this material containing 59,000 or more short videos taken from the CCTV, had been contained in the hand-up brief, but that a selection was provided to defence last Friday.  I accept that such material was provided to defence at an early stage but there is, in my view, some weight in your counsel's submission that it was not practicable in all the circumstances to consider such footage until the smaller selection was provided last week, at which point resolution discussions apparently were facilitated.  In all of the circumstances, I am satisfied that your plea, whilst not entered at an early stage, was entered in circumstance where a significant discount is warranted for utilitarian reasons. 

13In making an allowance for a sentencing discount by virtue of your plea of guilty, I have taken into consideration the principles set out in Cameron v. The Queen (2002) 209 CLR 339 and Phillips v. The Queen (2012) VSCA 140. In particular, I have considered the relevant matters which should inform a determination of the extent of the discount to be given for a plea of guilty, as set out in paragraph 36 of Phillips.  A discount for the utilitarian benefit of your plea of guilty is, in my view, certainly applicable in your case.  Your plea of guilty has saved the community the cost of a trial. 

14I also accept in these circumstances that your plea of guilty reflects a willingness on your part to facilitate the course of justice and an acceptance or responsibility.

Personal Background

15Your counsel has provided the Court with both a written and oral account of your background, and I do not propose to recite it in great detail here.  In summary, you were born in a small town in southern Vietnam.  Your father is deceased but your mother remains alive, as do two of your three younger siblings, sisters aged 41 and 36 respectively.  Your upbringing was uneventful, having been raised in a close and supportive family environment, where you were educated to halfway through Year 11 before obtaining work in the area of sewing and tailoring.

16You came to Australia in March 1998, having been married (through an arranged marriage of sorts to a woman named Thi Ngoc Thuy) in 1995, and in Australia lived with your wife and an aunt of yours and worked as a sewer, until your separation from your wife in 2000.

17You have a significant criminal conviction or prior conviction, a prior conviction from this Court on 16 April 2003 for trafficking in heroin for which you received a six year term of imprisonment with a non-parole period of four years.  This related to offending which I understand occurred in the year 2000 in the context of gambling, a gambling issue together with your motivation to send money to your ill father, who was then diagnosed with cancer and passed away in late 2000.

18You met your co-offender in this matter, as I understand, whilst on sentence when she came to prison to visit someone else. 

19Upon being paroled in 2006 you lived with your co-offender, her two boys and Phung Tran, your daughter, with your co-offender.  Your co-offender, as I understand it, had drug use issues throughout 2006 and 2007, such that you decided ultimately to relocate to a relative's place in Thomastown.  In 2008 I was told that your co-offender purchased the Pandora Avenue property, which I understand is only a few minutes' walk away from where you were residing at the time of this offence.

20I was told that you had a series of jobs after parole, by way of example, working as a trades assistant.  I was also told of some of the difficulties associated with your co-offender, for example, the intentionally damage property prior conviction dating from 6 August 2012 arising out of an angry confrontation between yourself and your co-offender when you were notified by the school that she had not picked up the children, leading to you damaging a car wheel.  After this incident I was told that you became more involved in the children's daily care. 

21Around this time in 2012, I was also informed that, sadly, you and your co-offender suffered the loss of a child just 28 days after the child's birth.

22From 2012 to 2016 you had casual employment at a friend's restaurant to enable you to assist in dropping off and picking up the children from school. 

23In 2016 your eldest daughter, Khang Banh Tran, relocated to live with you and as at the time of the offence, as I understand it, was residing at the Pandora Avenue property. 

24I understand that in the lead-up to this offence, you were playing a significant role in the children's lives.  By way of example, engaging in pick-ups and drop-offs from the local school.

25I understand and accept that your time in custody to date has been very difficult for you.  You have largely been placed at Fulham Prison and this has made it very difficult for your children to visit you given the geographical distance between Fulham Prison and Thomastown, and your contact with the children has therefore been sporadic.  I accept that this combined with your language difficulties, I understand you have no functional English, has made custody arduous for you.  You have also had to live with the knowledge that your co-offender and mother of your stepchildren is also in gaol and the resultant impact on the stepchildren.

Sentencing Factors and Principles

26In terms of the level of your criminality, the prosecution accepted that your involvement was significantly less than that of your co-offender Ms Le, and was largely based on you being an ‘occupier’ of the premises which were searched. 

27Nevertheless, you fall to be sentenced for possession of significant quantities of heroin and methylamphetamines, two drugs of dependence which have caused untold damage to members of the community, in circumstances where it is accepted that such possession was for the purpose of trafficking.  You have also pleaded guilty to possession of another drug of dependence, Buprenorphine.  I accept, however, that your offending only relates to one day, that being 8 September 2017.

28As I earlier indicated, the fact that the locale chosen for the possession involved a domestic property where children resided and were present at the time the police attended on the property on 8 September 2017 accentuates the seriousness of the criminal activity.

29In my view, taking into consideration all of the relevant factors including your criminal history, the circumstances of the offending, the nature and quantity of the drugs involved, it is not appropriate to describe your offending as falling at the lower end of the spectrum of offences of this nature.  In my view it is more accurate to describe it as falling in the mid-range of such offences.

30Whilst your criminal history is not extensive, your prior conviction and sentence of imprisonment of six years with a four year non-parole period for trafficking heroin from 2003, albeit of some antiquity, accentuates the gravity of your conduct here, involving yourself again in drug related activity.  There is a need for any penalty that I impose to particularly reflect the sentencing principles of specific deterrence, together with denunciation, just punishment and general deterrence.

31As stated earlier, your plea of guilty warrants a sentencing discount based upon the utilitarian benefit of the plea, that is the cost and time savings to the community, and the witnesses being spared from cross-examination.  It also reflects your willingness to facilitate the course of justice and an acceptance of wrongdoing on your part. 

32I accept that for you there has been hardship in custody by virtue of your language, your isolation and the anxiety which has no doubt occurred by virtue of your worries in relation to your children and stepchildren.  Whilst it does not reach the level of exceptional circumstances in order for me to take their hardship into account, I can and will take the hardship to you into account in terms of the general exercise of mercy in relation to the fixing of any penalty in relation to this matter.

33I accept that the possibility, perhaps even likelihood of deportation, is a matter which can be appropriately taken into account in terms of your hardship in custody, and anxiety regarding this issue, and I have done so.  However, there is no material before me regarding the certainty of deportation in the event of a sentence of imprisonment of 12 months or more, and in any event, in my view I am unable to reduce a sentence to an inappropriate term so as to permit an accused to escape liability to deportation.

34In formulating an appropriate sentence, I have taken into consideration all of the submissions and material provided on your plea.  The letters from your daughters, Khanh Bang Tran and Phung Tran, both of whom have been in Court for the duration of the plea hearing, the letter from Dr Sandra Nguyen regarding the personal difficulties of Khanh Bang Tran, and the report of Pamela Matthews in relation to Truong Le and Phung Tran.  I accept that your children have suffered as a result of your incarceration to date, and will likely continue to do so, particularly given that your co-offender is also serving a gaol term.  The demeanour of your daughters in Court today was reflective, in my view, of those hardships.

35I have also considered the matters set out in s.5 and s.6 of the Sentencing Act. In my view the only appropriate sentence in this case is a term of imprisonment. In all of the circumstances of this case I have determined that a combined sentence of imprisonment and community correction order is not appropriate.

Sentence to be Imposed

36Mr Tran, would you please stand.  In my view, it is appropriate to impose an aggregate sentence of imprisonment.  Each of the offences are founded on the same facts.  What that means is that I will be imposing one gaol term to reflect the criminality involved.

37On charges 1, 2 and 3 you are convicted and sentenced to one year and nine months' imprisonment. Having regard to s.11(1) of the Sentencing Act I am not required to fix a non-parole period. Having regard to s.11(2) of the Sentencing Act I have determined not to fix a non-parole period.

38Pursuant to s.18 of the Sentencing Act I declare that 539 days (not including today) have been served by way of pre-sentence detention.

39By my calculation your sentence will expire in just over three months.

40Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty, I would have sentenced you to three years' imprisonment with a non-parole period of two years and two months. That is the sentence of the Court.

41MR PERRY:  If it pleases Your Honour.

42HIS HONOUR:  Are there any ancillary orders that have been sought in this matter?

43MR PERRY:  No, Your Honour.

44HIS HONOUR:  Yes.  Are there any other matters?  Right.  Yes, thank you.
Mr Tran can be removed, thank you.

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