Director of Public Prosecutions v Tran

[2016] VCC 1612

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01776

DIRECTOR OF PUBLIC PROSECUTIONS

v

TONY TRAN

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2016, 2 November 2016 (further plea)
DATE OF SENTENCE:	2 November 2016
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2016] VCC 1612

REASONS FOR SENTENCE
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Subject:Sentencing; trafficking commercial quantity drug of dependence (methylamphetamine)

Catchwords:  Plea of guilty; intention to steal money, subsequent intention to try to sell some but not whole amount; no actual sales; aged 25; promising prospects of rehabilitation; family ties

Legislation Cited:     Sentencing Act 1991 s 6AAA

Cases Cited:R v Markovic & Pantelic [2010] VSCA 105; DPP (Cth) v Thomas & Wu [2016] VCC 141

Sentence:                  TES: 20 months imprisonment followed by 12 month CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon (at plea) Mr G. Martin (at sentence)	OPP
For the Offender	Mr S. Tovey	Malkoun & Co Lawyers

HER HONOUR: 

1Mr Tran, you can stay seated.  I was still considering these matters raised this morning, and have been thinking about those now.  I have now decided on your sentence. I have to explain the reasons for your sentence before I impose it on you.  I will allow you to stay seated while I do that, while I explain these matters, but I will tell you when I require you to stand. 

2Tony Tran, you have pleaded guilty to a charge of trafficking in a drug of dependence, namely methylamphetamine, in not less than a commercial quantity.  You have also admitted a prior criminal history to which I shall refer later. 

3The maximum penalty for this charge is 25 years' imprisonment.  You will not be receiving a sentence anywhere near that severe, but that is the second highest maximum penalty under the laws of this state, and being so, it is a reflection of how very seriously offences of this nature are regarded by parliament on behalf of the community.  I must take that into account in assessing the objective seriousness of your offending, although as with all charges there is a broad range of circumstances that can constitute this offence, and I must also assess the seriousness of the circumstances of your actual offending. 

4You say that this offending arose from circumstances in which your intention was not initially to traffic in drugs but to steal money.  The background was that in an attempt to gain money quickly, you intended to try to steal cash from a man whom you knew to be a drug dealer and you had heard kept large quantities of cash.  You arranged to meet this man and took with you $5,000 in new $50 notes.  You told police that you thought that if you paid $2,000 to $3,000 to him for drugs, you could follow him to find where he kept what were reputed to be his large amounts of cash, and then steal from him. 

5This man directed you to meet him at a Footscray motel.  On the night of 18 February 2015 you went to that motel with a friend, and are shown on CCTV entering and leaving a guest room more than once with other men.  The man who had booked that room apparently gave you a duplicate card key to it, but when he left the premises, had the key cancelled, and you found that you could not re‑enter the room. 

6Later that night you and your friend burgled that room, with him breaking in through a window and opening the door to you, and you carried out some boxes.  You then, alone, took the boxes away.  You told police that you thought they would contain money but instead found they contained a large number of taped up balls.  You believed these contained drugs, but you did not know exactly what type, nor the purity, and thought they may be heroin, but then noticed on loosening a couple that the substance was crystalline. 

7You discarded the boxes but kept the balls of what you knew to be drugs.  You contacted your then girlfriend, asking her to book a hotel room, which she did under a false name, for two nights at apartments in East Melbourne.  You joined her on the second night there.  After you and she departed the next day, which was the last day for which she had booked the room, the manager entered the room and found some items left there, including shoes.  He then found a bag from which he saw some used bank notes protruding.  He removed that bag from the room and notified police. 

8When police arrived the apartment was searched further and in another cupboard a bag was found which contained 60 tape‑wrapped balls.  The bag which had been removed from the room by the hotel manager was returned there, and on formal search was found to contain $5,000 in new $50 notes, as well as old bank notes, which I gather totalled close to $2,000[1].  It also contained photos of you and your girlfriend, and the duplicate swipe key from the Footscray motel. 

[1] Corrected from $3,000

9Meanwhile, after the manager had rung police, your girlfriend rang and told the manager that you did not know you were checking out that day, and the manager told her that they had found a large amount of money and called police.  She asked him not to call police and said you would be there in 20 minutes.  Notwithstanding that you must have been told by your girlfriend that police had been called, you drove to the apartment complex.  By then police were present and detained you.  You told them where you had parked your car.  They searched the apartment in your presence where both the contents of the white bag, namely the new and old cash notes, photos of you and your then girlfriend, and the swipe key to the Footscray motel were found, and also the plastic bag containing 60 tape-wrapped balls.  They also searched your car in which they found your wallet containing $320. 

10On subsequent analysis the 60 taped balls were found to contain white crystals of methylamphetamine mixture, the total weight of which was 1,104.3 grams, or approximately 1.1 kilograms.  Its purity ranged from 85% to 92%, but the vast majority, that is almost 984 grams, was of 89% purity.  The threshold for a commercial quantity of methylamphetamine is 100 grams pure, or 500 grams of mixture containing that drug. 

11You were arrested and interviewed by police.  You made various admissions, although you also at first denied knowing the male from whom those drugs were stolen.  You told police that you had intended to steal cash, but when you opened the boxes and found the tape‑wrapped balls, you realised they contained drugs and thought they were heroin until you fiddled with some and saw some white powder. You told police that you decided that you could - what you called “offload” - some of it, but there was too much for you to have the contacts to be able to sell it all. 

12The prosecution does not allege that you intended to sell the entire 1.1 kilograms of high purity methylamphetamine. It does allege, and your plea of guilty accepts, that you had formed the intention to try to sell a lesser amount that was no less than the threshold for a commercial quantity, namely 100 grams pure or 500 grams of mixture. 

13I must assess the seriousness of this offending both objectively and subjectively as to your culpability in the circumstances.  As already mentioned, the maximum penalty of 25 years' imprisonment reflects objectively the very serious nature of trafficking in a commercial quantity of a drug of dependence.  The widespread distribution and use of the drug methylamphetamine is recognised as a serious and harmful problem in our community. 

14You had made contact with a drug dealer, and were in possession of $5,000 cash, and prepared to use at least $2,000 to $3,000 of it if necessary to buy drugs from him even though that was for the purpose, you say, of following him to find out where he kept his cash, which was your real target.  Further, on finding that the cartons you say you thought would contain cash but in fact contained drugs, you did not immediately discard or dispose of them.  You formed an intention to try to sell some for profit.  Although I am told that you were using drugs yourself at the time, this is not a case of trafficking only to pay for drugs for your own use. 

15On the other hand, there are some aspects which put this at a lower level of seriousness than many instances of this offence. 

16First, I accept that you did not intend to engage in a protracted or ongoing course of drug trafficking, and the allegations of your involvement are confined to a period of no more than one to two days.  Secondly, you were not part of an organised syndicate or chain of distribution.  Thirdly, there is no evidence that you actually sold any drugs, and although you had formed an intention to try to do so, there had been no practical steps taken to achieve that, or none of which I am aware, even to the extent that you did not know the nature or purity of the drugs you had.  This was not a sophisticated plan for acquisition and distribution of these drugs, although there was originally some forethought in how to try to steal cash from the known drug dealer. 

17Overall, these aspects, in my view, put this case at a relatively low level of seriousness for trafficking a commercial quantity of a drug of dependence, but not at the lowest conceivable level.  I note that being at a relatively low level certainly does not make it a minor offence, as even a low level of seriousness for this offence is still serious, being for a commercial quantity of a drug of dependence, as reflected in the maximum penalty. 

18After being interviewed by police you were remanded in custody, and I am told charged with trafficking in a large commercial quantity of methylamphetamine, as, if it were proved that you intended to traffic the whole of the quantity of drugs in your possession, it would have reached the threshold amount for that even more serious charge. 

19You remained in custody until granted bail on 14 October last year, which I am told was after the committal hearing, and that meant that there was a period of almost eight months that you spent on remand, which we will count as pre-sentence detention towards your sentence. 

20The second half of that period was affected by much more restrictive conditions which were introduced after disruptions at the Metropolitan Remand Centre where you were at the end of June 2015.  I am told, and the prosecution accepts, that you were subjected to at least a period of 23‑hour lockdown during part of that time, and you are entitled to some leniency for that to take into account that this portion of your pre-sentence detention was served in more onerous conditions than would normally apply on remand. 

21Having been granted bail on 14 October 2015, it was not until close to the scheduled trial date at the beginning of August this year that you agreed to plead guilty to the present charge.  This was by no means the first available opportunity, but you are entitled to some leniency for the utilitarian value, that is saving the time and cost of a disputed trial, and for accepting responsibility for your offending at that stage.  Objectively the timing of your plea of guilty is not a strong reflection of remorse, but many of the references tendered describe you as being remorseful, or at least regretting the situation into which you have put yourself and your family, and your girlfriend. I also take into account that you had been facing a more serious charge and that a plea may have been willingly given earlier, but apparently there was no such negotiation for the charge on which you are now being sentenced. 

22I have taken into account your plea of guilty for all of these reasons, and I will tell you later what your sentence would have been had you not pleaded guilty but been found guilty after a trial on this particular charge. 

23I turn now to your personal circumstances.  You are now aged 25 and were 23 years old at the time of this offending.  I am told that you are the second oldest of your mother's 11 children.  The four eldest, of whom you are one, were still young when your father was deported from Australia after criminal convictions, and you have had no ongoing contact with him, or at least he has had no significant input into your upbringing or life since.  Your mother repartnered some years after your father's departure, and has had seven further children, the youngest of whom is still only aged six.  Your stepfather apparently had alcohol problems and has not been part of the family for some years, nor does he provide financial support. 

24In your childhood you were raised between your mother's home, always in public housing, and your grandmother's home.  I am told that from a quite early age you started taking responsibility within the family as the eldest male, and are regarded as a father figure by most of your siblings.  You also started working whilst still at school and contributed what you could financially to your mother's household.  I am told that there was a period while you were still at school that you lived for a couple of years with an uncle as his carer.  I take that to be a further reflection of a difficult childhood with the many siblings and family responsibilities, and I accept that you accepted that you had particular responsibility within that family network from an early age. 

25Against that background, it is to your credit that you completed Year 12 at school.  I am told you then engaged in a variety of different jobs, maintaining at times up to three jobs at a time.  You clearly showed a strong work ethic, and a sense of responsibility in wanting to contribute financially to your mother and siblings' household. 

26When you were about 21 you obtained employment with a tiling company, which not only provided employment, but assisted you to obtain qualification in that field, and you are a qualified tiler. 

27However, over the period of your teenage and into your early 20s, you also used illegal drugs, apparently starting with cannabis from your teenage years.  By the age of 16 you had appeared before the Children's Court on a charge of shop theft, and the following year there was a charge of possessing cannabis, and charges relating to misuse of a motor vehicle, but also of assaulting police and dishonestly receiving stolen goods.  All of those matters in the Children's Court were dealt with by orders reflecting your youth, and did not attract a conviction, and I do not regard them as reflecting major criminal behaviour as part of your background. 

28However, prior to the current offending you had accumulated four court appearances in adult courts, that is Magistrates' Courts.  These commenced with one drink driving related, but also violence related offences, namely recklessly causing injury, in January 2011, for which you were placed on a good behaviour bond with a contribution to charity.  However, later that year you were dealt with for intentionally causing injury, affray, and stating a false address to police.  You were placed on a community corrections order for 12 months with some unpaid community work and rehabilitative therapeutic conditions.  However, you breached that CCO by further offending.  I am told this morning you had completed the rehabilitative conditions, although in the long run they were not particularly successful. 

29You were subsequently sentenced in the Magistrates' Court for the offending that breached the CCO, that is a charge of robbery in February 2013, to three months' imprisonment, which was wholly suspended for 12 months.  That sentence appears to have been completed a full year before the offending for which I sentence you, and shows that you were able to stay out of criminal trouble during that time, although ‑ and you were not charged with this ‑ I am told of ongoing use of illegal drugs. 

30Your prior criminal history does not include any charges as serious as the present one, and none of trafficking drugs.  Of some concern is that it reflects offences of dishonesty and of violence.  While those might not appear to be directly relevant to the current charge, that is of trafficking in a commercial quantity of a drug of dependence, I note that you say you stole the drugs that are the subject of this charge, so your prior offending, both as to offences of dishonesty and use of drugs does have some relevance in my view. 

31Your prior criminal history may well reflect, as I am told, a childhood of considerable stresses, with a rather chaotic family situation, and you having resorted to use of drugs and alcohol and mixing with youths in situations that led to violence, or instances of driving offences or dishonesty, as some escape from your family background. 

32Your criminal history is not so extensive or entrenched as to indicate that you were heavily involved in illegal activities.  However, you cannot claim to have led a blameless life until the current offending nor for the current offending to be completely out of character for you, although it is of a much more serious nature than the charges you have previously faced. 

33The description given to me is that you had reached a point of essentially daily use of illicit drugs, including methylamphetamine when you could obtain it, and even heroin, and I am told this morning using alcohol, namely whiskey, when methamphetamine was not available, or at least intermingling the use of that with some of the drug taking.  I am also told that you have continued to use cannabis.  All of this reflects to me that your lifestyle at the age of 23 was spiralling into more serious criminal offending than your prior criminal history reflects. 

34Notwithstanding that history, you had maintained employment after leaving school at the jobs I have mentioned, and as a tiler, although I am told that with increased drug use in the months leading up to the offence for which I sentence you, your ability to sustain full‑time employment had declined and you were apparently only working intermittently over the months before this offending. That may well have contributed to your perceived need to obtain more money in a hurry than you were earning at the time. Nevertheless, you say that the $5,000 in new bank notes that was found in your possession came partly from bank savings and partly from money earnt. 

35I am told and accept at that the nearly eight months that you spent in custody on remand from February to October last year had a very salutary effect on you.  It was of course your first time in prison.  It forced you to detoxify from the near daily drug use in which you had been engaging. It also gave you considerable opportunity to realise the impact on you and your family of your offending, and to resolve to commit to change your ways and the behaviour leading to offending once released. 

36Since being released on bail you have started your own tiling business with the assistance of a friend in the building trade referring some work to you.  You employ one or two, at least one full‑time man in that business, and I have read a reference from him as to what a good employer you have been, and that he is dependent on this job.  I have also been told that in June of this year you set up another business when seeing an opportunity to import and sell mechanisms called Segways.  I am told that you have committed 10 per cent of profits from that business to a charitable organisation, and I have read that you have loaned some of those items to youths in your area to encourage them to use such items sensibly and not to steal them. 

37I have read the considerable number of references tendered on your behalf.  Those from family, personal friends and even some from work associates, emphasise your strong sense of commitment to your family, your sense of responsibility to act as a role model to younger siblings as well as providing financial support for them and your mother.  Some also describe the stresses that have been placed on you through family circumstances.  I accept that your mother and siblings place much reliance on your presence in the family for emotional as well as financial support, although it seems that some of your siblings must have some income themselves, and at least one has children.  I infer that others can step up to take some of the responsibility you have been shouldering, and hopefully will do so in your absence.  I accept that you are concerned for all of them in your absence, in particular the youngest siblings who are still at school. 

38Also since being released on bail you have started a new relationship and that girlfriend is now eight months pregnant.  I read a letter from her and also a portion of a psychological report on her.  I accept that she is distressed about the prospect of your being sentenced to imprisonment, and the impact of that on her, including that you will not be present when the baby is born, nor during the following formative period for the baby's development.  She is also resentful of the time you devote to your mother and siblings rather than her, and I gather that you have continued to live in your mother's home and she with her parents.  The prospect of giving birth and raising her baby, at least initially without your presence, would inevitably be very stressful for her, and I also accept that it weighs heavily on you. 

39It is clear you both knew, however, when you started this relationship, that you were on bail facing trial on serious charges, which if found proven were likely to result in your serving further time in prison.  You had a life time of experience of both the emotional and financial strain on families where a father is absent.  She was training to be a nurse, and I assume would have realised the consequences of becoming pregnant in your uncertain circumstances. 

40That is not to say that the court is not sympathetic to this sort of situation.  Unfortunately, courts often hear of hardship on the family of offenders facing imprisonment, and it is only in exceptional circumstances that such hardship would be grounds for leniency.  I also note that your girlfriend has remained living with her parents, so I assume has some emotional and physical support available over the coming months.  Your counsel accepted that the case law indicates that exceptional circumstances of hardship would be required to be grounds for particular leniency, and that the circumstances here could not be fairly said to be of the exceptional level or type that would attract a more lenient sentence. 

41I have taken those circumstances into account in some mitigation, because I accept that your time in prison is likely to be more onerous for you due to concern and worry which I accept you will be likely to experience, about the two family situations that will be progressing during your absence; that is your girlfriend and the birth of your baby and the baby's early months of life, and also about your mother and siblings, especially the younger ones. 

42I have read a report from Dr Aaron Cunningham, forensic psychologist, who assessed you recently for this case.  On testing he found you to be in the average range of intelligence.  He did not diagnose you to be suffering from any mental health condition.  In these circumstances there is no basis to reduce your sentence for lowered moral culpability or responsibility for your offending, nor to moderate the application of either general or specific deterrence as sentencing factors. 

43Dr Cunningham described you as experiencing a great deal of stress at times, particularly because of your family circumstances, and gives the opinion that your drug use and perception of financial stress contributed to your offending.  Those cannot justify or excuse your offending, but are relevant to the circumstances in which it occurred, and therefore the likelihood of it occurring again.  Dr Cunningham considers you would benefit from engaging with supportive counselling to improve your ability to manage stress and cope with your life responsibilities.  That seems to me sensible, but is unlikely to fall within a Medicare funded mental health care plan on Dr Cunningham's findings. 

44Because of what was raised in the presentence report from a Community Corrections officer, the matter was further discussed this morning in submissions, and I have had tendered today and have now read, a letter from a psychologist you attended in June/July of this year.  Apparently there was an initial assessment and then three treatment sessions, but your attendances were not sustained by not attending some further appointments and also attending some late.  As a result, no formal diagnosis of any mental health condition could be reliably made, but you did present as warranting some practical assistance to deal with stress and signs of anxiety, and the practical assistance, it was felt, should deal with problem solving, ordering your time commitments, and setting boundaries to external influences in your life.  You were not assessed as representing with what were called “pro‑active offending tendencies”, but I note that the letter does not mention whether the author, Dr Stavropoulos, was aware either of your drug history or the circumstances of your offending.  Clearly, further counselling to assist you to deal with the stresses of your life, and ordering your life and controlling impulsive behaviour, would be of assistance, as indeed it is to many young men of your age. 

45I take Dr Cunningham's opinions to be relevant to your rehabilitation, but not specifically as mitigatory for your offending. 

46At the age of 25, as you are now, you are still to be regarded as a youthful offender for the purposes of sentencing.  As you are by no means a first‑time offender, I do not accept that your rehabilitation should be the predominant or principal sentencing factor, but I do accept that it is still a relevant sentencing consideration in your case. 

47I assess your prospects of rehabilitation as promising, as reflected in your motivation to work, to build your own business or businesses, and in your apparent refraining from drug use and avoidance of drug user circles over the past 13 months while you have been on bail.  You have also shown ongoing commitment to family, and have your own child due soon which presumably will increase your sense of responsibility.  I regard your rehabilitation as in not only your own and your family's best interests, but also in the best interests of the whole community, and take that into account.  At age 25, I am satisfied that these promising traits should be encouraged, and have decided that your sentence should reflect some real weight, but not principal weight, being given to your rehabilitation. 

48Finally, I must take into account current sentencing practices in relation to this type of offence.  As you entered your plea of guilty before the Court of Appeal decision in the cases of the DPP v Thomas & Wu[2], both sides urge, and I accept, that I should not be applying its findings as to the seriousness of drug‑related offending at the level of commercial quantity, to your case. 

[2][2016] VCC 141

49I was referred to the sentencing snapshots that are produced by the Sentencing Advisory Committee, but they are of limited overall assistance in this case for a number of reasons, including that they do not distinguish whether those sentences related to pleas of guilty or were imposed after trials, and also as they show a range over a very considerable spectrum of sentences which, as I say, limit their particular usefulness in this case. 

50I was referred by your counsel to a sentence that I imposed last year in the case of Cunanan.  Although that offender was significantly older than you, and had more relevant prior drug related criminal history, I do not regard the actual circumstances of his involvement in trafficking a drug of dependence as of quite as serious a level as yours, as it was intimately connected with his being found in possession of drugs partly for his own use and partly to sell for profit.  Nevertheless, I note that I saw fit in that case to impose a total effective sentence, because there were some other charges, mainly summary ones, and I imposed what is now available as a combined sentence of imprisonment to be followed by a community corrections order.  I was urged to impose a sentence of that type of structure in your case. 

51I regard the need for general deterrence, that is to send the message to others tempted, that offending of this nature will attract stern punishment, as of principal importance amongst the sentencing factors to be applied in your case.  The temptation you had to steal from a drug dealer and then try to sell the stolen drugs must be strongly discouraged.  In my view, this factor, together with the need for denunciation by the community and just punishment, requires that a sentence of imprisonment be imposed and one which is longer than the time you spent on remand.  However, I bear in mind that to also give some real weight to rehabilitation, which as I have said I find to be a promising prospect in your case, and taking into account your age, the sentence I impose, and particularly the time in prison, should not be so long as to crush your motivation to re‑establish a business and to keep away from drug use on your next release. 

52I was urged, as I have said, to impose a structure that combines some further imprisonment, then release on a community corrections order.    The prosecution submitted that immediate imprisonment was required but did not urge any particular structure of the sentence as to your release. 

53I requested a pre-sentence report, and take into account that to be done the day I requested it necessarily restricted the time for assessment.  It found you suitable for a CCO.  I had some reservations about its recommendations, which have been discussed, and on which your counsel has made further submissions this morning. It raised   the issue of whether you still had an alcohol problem in the lead‑up to the commission of the offence for which I sentence you. What has been confirmed this morning is that you apparently did, but that it was not an independent problem, but mixed or intermingled with your drug abuse. 

54I note that the assessment recommends you for treatment for mental health problems, but I have no material before me that confirms a diagnosis of any such condition.  The counselling that Dr Cunningham recommends to assist you to cope with stress is unlikely to fall to be classified as treatment through the Community Corrections approach of suggesting that a general practitioner be asked for a mental health care plan. 

55I finally note that the sentencing factor of specific deterrence is of some relatively low relevance in your case, as hopefully it has been significantly achieved already. That is, to discourage you from further offending, and hopefully your period on remand has already gone a long way to convincing you that you have to change and commit to not committing further offences of any type. 

56In the end, I have decided, having regard to your promising prospects of rehabilitation, and your age, and the fact that whilst on bail you established two new businesses - the fate of which was left unsure and may remain unsure while you are in prison - that I should structure a sentence that gives you a known release date to be followed by supervision under a Community Corrections Order. 

57Will you stand up now, please. 

58Tony Tran, on the charge of trafficking in no less than a commercial quantity of a drug of dependence, you are convicted and sentenced to a total of 20 months' imprisonment to be followed by a Community Corrections Order to last for 12 months. 

59The conditions I will come to shortly on the CCO.  I declare the period of ‑ I think it was 234 days of presentence detention ‑ ‑ ‑

60MR MARTIN:  236, Your Honour. 

61HER HONOUR:  236, I beg your pardon.  236 days of presentence detention as reckoned served.  That will be deducted administratively.  I direct that it be recorded in the records of the court. 

62As to the Community Corrections Order, it will commence immediately on your release from prison, and last for 12 months.  I impose conditions of supervision, and that you be referred for assessment and treatment as directed for both drug and alcohol problems.  I also impose a condition that you be assessed for suitable programs to reduce the risk of reoffending.  I realise that none were recommended, and as to these I can only make suggestions, but I would hope that programs will be considered for you addressing issues of impulsivity control in young men such as you, and also perhaps of controlling personal finances.  I note that anger management was part of previous offending, but it is up to Community Corrections officers as to whether they consider that you still display specific tendencies to violence through anger.  As your counsel appropriately suggested, it may more be programs to address impulsivity in your actions rather than actual violence. 

63In addition to those conditions, all usual terms of a Community Corrections Order will apply.  They were explained no doubt briefly to you, but I must repeat them again briefly now.  First, you will be required to report to the nearest Community Corrections office to where you will be living within two working days of your release from prison.  Once that date of release has been worked out and once it is known where you will be living, no doubt you will be told exactly where to go and by when. 

64You must, during the whole of the 12 months of the Order, submit to visits as required, that is to report for supervision or allow visits to your home to supervise you from Community Corrections officers, and you must obey all lawful directions of Community Corrections officers.  You must advise Community Corrections officers of any change in the address of where you are living or where you are working during the 12 months of the Order, and you must do that within two clear working days of any change of address of your work or of your home occurring. 

65You are not allowed to leave the State of Victoria during that 12 months without prior consent of Community Corrections officers. And, most importantly, you must not commit any further offences that could be punishable by imprisonment during the period of 12 months of the Community Corrections Order.  That not only includes not trafficking in drugs, but not using drugs, and certainly no offences of dishonesty, of theft, or of course of violence, or driving offences. 

66I know you have had past experience of what happens if you breach a Community Corrections Order, but I explain that to you again briefly here.  If you commit a breach, or do not comply with the Community Corrections Order, you can expect what are called contravention proceedings - they used to be called breach proceedings. These may be taken against you, and you may have to come back before this court before me.  Depending on the circumstances of the breach, this includes whether it is not complying with what you have been directed to do, or whether it is by further offending, I will take into account the circumstances of any breach or breaches and the circumstances in which you are living and quite possibly working at the time, but the powers of the court will include to confirm the order or to vary its terms, which might involve extending its duration, or imposing further conditions, or it is in the court's power to cancel the balance of the Community Corrections Order and to resentence you for the charge on which you were sentenced.  That will inevitably in your case take into account that by then you will have completed 20 months of imprisonment, so that would not mean I sentence you afresh for the whole sentence, but for the portion that was constituted by the Community Corrections Order and would depend on how much you had satisfactorily completed of it. 

67Mr Tran, I must ask, do you understand the terms and conditions of the community corrections order? 

68OFFENDER:  Yes, Your Honour.

69HER HONOUR:  Do you agree to comply with it? 

70OFFENDER:  Yes, Your Honour. 

71HER HONOUR:  All right.  As I have said, I have already declared the presentence detention reckoned served. 

72I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty but been found guilty of this offence after a trial, I would have sentenced you to five and a half years' imprisonment with a non‑parole period of three and a half years.

73I also was asked to make a disposal order for the drugs, which I will sign, and a forfeiture order in respect of the cash which totalled $7,143.50, which I am told was yours and not the result of trafficking drugs.  I accept that it was that, but in the circumstances it clearly came within the concept of tainted property because of the use of the main portion of it, or what may have been intended for it, and it was conceded by your counsel and there was no opposition to that order being made.  I have taken into account that I have no reason to believe it was not your money, that it does form a separate burden for you, but one that is warranted under the confiscations legislation, and I will sign that order also. 

74Have I covered everything I need to?  I don't think there was a 464ZF application made.

75MR MARTIN:  No, it's automatically retained, Your Honour. 

76HER HONOUR:  I see.  All right.  Thank you.  Today is 2 November.  Sorry, there were some other items as well as the 60 taped balls of methylamphetamine, there are some other items, but they have been checked and they are not opposed.

77MR TOVEY:  No, Your Honour.

78HER HONOUR:  That are so forfeited.  You can take a seat, Mr Tran, while I just amend a few things here.  The CCO has been produced through the system.  My associate will shortly bring it to both counsel just to check, and then if it's in order we'll ask Mr Tran to sign it. 

79MR TOVEY:  May I approach Mr Tran in order to have him sign it? 

80HER HONOUR:  Yes, my associate will go with you, but you are welcome to approach him to explain it.  Mr Tran, the CCO needs to be signed by you, and then I'll sign it.  And that's what is being brought to you now. 

81MR TOVEY:  That's been signed by Mr Tran, Your Honour, and in doing so he is essentially bound by the order. 

82HER HONOUR:  Thank you.  I will sign it also, and then it will be copied so that there's a copy for ‑ I don't know that he needs it to take with him ‑ ‑ ‑

83MR TOVEY:  No, it would be enough if we could ‑ ‑ ‑

84HER HONOUR:  You and your instructor can have a copy and get it to him in due course.  It won't come into effect until he's completed his term of imprisonment, and there will be a copy for the prosecution.  Mr Tran, the effect, as you will realise, is you have got just over 12 more months to do in prison, and then a 12‑month CCO on your release, but you will have a fixed date of release which will enable you to make your plans and your family to make plans.  All right.  I will ask Mr Tran to be removed from the court first, please. 

85(Prisoner removed.)

86HER HONOUR:  My associate is just copying the orders, and they will be provided if you just wait a few more minutes. 

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