Director of Public Prosecutions v Tran

[2018] VCC 2195

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02314

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN TRAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 December 2018
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2018] VCC 2195

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lye
For the Accused	Mr A. Jackson

HIS HONOUR:

1Van Dao Tran, you pleaded guilty to one charge of attempting to import a border controlled precursor substance, pseudoephedrine.  The amount involved was not less than the commercial quantity.  The maximum penalty under the relevant provisions of the Commonwealth Criminal Code is 25 years.  That alone makes it clear how serious the Parliament and our community considers importation of substances, that ultimately have a detrimental effect on our community

2However beyond that, the circumstances of this particular example of an attempted importation, reveal this criminal enterprise to be a very serious example of the crime.  In brief compass, a number of men were involved in the arrangements to bring pseudoephedrine to Australia from Vietnam.  As your
co-accused are shortly to go to trial, I will not name them here.  What can be said is, that in August 2016 you, Mr Tran became the sole director of a company previously established and run by a co-accused.  The company operated an Asian grocery store in St Albans. 

3On 8 November 2016, a container left Vietnam bound for Melbourne.  The company was the consignee.  The delivery was to be to a warehouse in Tottenham.  Other co-accused were engaged in contacting other men in Vietnam who were sending the container.  The container had boxes of Omo washing machine powder.  On arrival in Australia what was found by the authorities, was a total of 190 kilograms of pseudoephedrine in pure form, secreted in Omo boxes.  It was substituted with inert substances and the container was ultimately delivered to that warehouse in Tottenham, on 31 December 2016.

4On 1 January 2017, to the arrest of you and other co-accused.  The police monitored the movements and phones as the criminal organisation went through the process of seeing if the drugs were in the container, and if the authorities had become aware of the drug importation.  The phone calls had coded messages.  Not all the co-accused went to the warehouse.  You, Mr Tran, were involved from 2 January to 7 January 2017, when you were arrested.

5You were involved at the lower levels of the organisation in terms of responsibility and role.  You were not said to be at the very bottom.  Another man is at that level, so it is said, and you gave him some brief directions as to what he was to do in that week, 2 January to 7 January.  Others were more involved than you and for longer.  As noted, you did go to the warehouse and inspect the goods, and then go to communicate with those higher up, to update them on progress.  You were one of those arrested at or near the warehouse on 7 January 2017.

6You made a no comment record of interview.  However at a later interview, with a medico-legal psychologist whose report I have read, after you had resolved this matter to a plea of guilty, you said to her that you expected a benefit of around $30,000 for your involvement in the enterprise.  The prosecution do not dispute this assessment or what you said to the psychologist, as to your benefit.  Also expressed to that psychologist and accepted by the prosecution, was your regret and remorse at becoming involved in this highly risky criminal behaviour. 

7In assessing the gravity of the crime, what is made clear by the appellate authorities, is the need to carefully consider the weight of the substance involved, combined with the role that an accused plays in the whole enterprise.  As already noted, this was 190 kilograms of pseudoephedrine.  That is a huge amount of precursor, with a capacity to be part of a colossal amount of manufactured methamphetamines.  The danger of that drug and the damage it wreaks is well known, but is not forgotten here.  The amount was 158 times the commercial quantity.  There is no category of large commercial quantity for Commonwealth offences involving precursors. 

8Your role has been touched on.  It was an important role in the enterprise, as were all roles.  But it was not at the decision making or key organising level, or for very long either as the director of the company, or more importantly, in the charged period which was less than one week.  Your penalty must acknowledge those facts and that assessment and conclusion by me. 

9As to your personal circumstances, you are now 50.  You came to Australia in 1989.  Your family originated from South Vietnam and your father was part of the South Vietnam army, thus following the war in that country, there were many difficulties which some of your large family head as refugees to America.  You came to Australia in 1989.  You remained working and learning English for about five years or thereabouts.  The tragic death of your father in the United States saw you head there in 1997.  You remained there until 2014.  You met your wife and have two boys, twins, who have remained in the United States.  I will return to that issue shortly.

10In the United States and in Australia you have a good work history.  You established businesses in both places and worked hard to support your family, including your elderly mother and other siblings.  All this is to your credit.  Here, as I have noted, the temptation was to get ahead or deal with financial difficulties by quick money, by becoming involved in this enterprise.   You have no relevant prior matters or any prior matters of note, at all.  And again that is a matter in your favour.  Generally your prospects for complete reform are good, if not better. 

11In respect of your physical and mental health, there are no significant problems.  One aspect of importance is your isolation and your risk of not seeing or being able to be with your wife and sons, as they grow older in the United States.  I accept you will find it near on impossible to travel to, let alone stay in the United States, due to the conviction for this serious drug trafficking.  That is an important consequence which will be an enduring punishment to you.  You are able, I am told, to talk from time to time to your family but that will always be a problem while you are in prison, in particular as a sentenced prisoner.

12In the prison you have done what you can to occupy yourself in the cleaning area.

13The key sentencing purposes here are deterrence to others and proper proportionate punishment for your serious crime.  It needs to be yet again emphasised, that those that take upon themselves to import or attempt to import large amounts of drugs that cause damage to our community, must understand that stern punishment awaits them.  By stern punishment, it must be understood that that means years of incarceration.  Also, there must be a proper punishment to acknowledge what you did was wrong and there must be a sense of denunciation and condemnation of this crime.

14Therefore you must be incarcerated for a long time.  There is no other option.  Your counsel, in a comprehensive written and oral submission did not contend otherwise.  The prosecution likewise, said that the only appropriate penalty was one involving a term of imprisonment with a potential for parole. 

15I have considered other cases referred to me by the prosecution, of importations of large quantities of precursor drug, pseudoephedrine.  Some are of accused who were more involved than you.  I must remember your role, when looking at other cases.  There must always be, as the High Court made clear in Dalgleish, individualised sentencing.  That is, that I must consider what you did, why you did it, who you are and what the future holds for you.  I have considered of course, all aspects of the Commonwealth Sentencing provisions as set out in the Commonwealth Crimes Act. 

16I will allow for a potential for parole, but whether you are granted parole is for others and not me.  It is necessary that upon your release, that there is some support to you, as this will be a time when you are in the community, but liable to be isolated yet again from your family, until things can be worked out with them.  You have been in custody now for ‑ ‑ ‑

17MS LYE:  711 days, Your Honour, not including today.

18HIS HONOUR:  711 days, since your arrest.  Thereby the sentence that I impose will commence from the time that you were brought into custody.  The sentence that I intend to impose, I will be assisted by the Commonwealth as to how it is articulated, is the following.  Can you please stand?

19Taking into account all aspects, importantly your early plea of guilty relative to others, it has been some time since you have been arrested.  Nonetheless you have endeavoured to negotiate a settlement of this matter in an authentic way and that must be acknowledged.  You have saved the community significant amounts of resources that can be dedicated to other cases, by not running a trial.  It is necessary that the community and others understand the value of a plea of guilty, in cases like this. 

20Therefore I sentence you to be imprisoned for a term of eight years and nine months and I fix a minimum non-parole period of five years and six months.  You have been in custody for 711 days.  Had you pleaded not guilty to these offences and been found guilty of them, given your role and the vast amounts involved, I would have imposed a sentence of 11 years with a minimum non-parole period of eight years and six months.  The articulation of when the sentence commences, Ms Lye, is?

21MS LYE:  Well, Your Honour has stated his pre-sentence detention ‑ ‑ ‑

22HIS HONOUR:  Yes.

23MS LYE:  ‑ ‑ ‑ so just from starting from today.

24HIS HONOUR:  All right.

25MS LYE:  Yes.

26HIS HONOUR:  So you have already served the 711 days.  It is part of the sentence that I have just imposed.  So the sentence that I have articulated of eight years and nine months with a minimum term of five years and six months, commences today.  Are there any other required?

27MS LYE:  None, Your Honour.

28MR JACKSON:  No, Your Honour.

29HIS HONOUR:  Thank you.  I am very grateful to counsel and their solicitors for their involvement in resolving this matter and their assistance to me through the plea and their patience in waiting for me this morning.  Is there anything further required?

30MS LYE:  No, Your Honour.

31HIS HONOUR:  So if Ms Tran can assist you, Mr Jackson and Mr Velos, downstairs it might - I would be grateful.  Is that possible?  (To interpreter)  You have to be in another court at 10 o'clock?

32INTERPRETER:  Yes, Your Honour.

33HIS HONOUR:  Well there it is.  I am going to stand down.  Can you just confirm he understands everything at the back of the court.  I will just allow that before I move to other cases.

34MR JACKSON:  I have already said that we will have a phone conference with him with an interpreter after today.

35HIS HONOUR:  All right.  Well, let us leave it at that.  People have to move and I have got to get on to other things.

36MR JACKSON:  Yes, Your Honour.

37HIS HONOUR:  Thank you.  I will just stand down for a moment.  Thank you.

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