Director of Public Prosecutions v Tran

[2016] VCC 1514

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00567

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRIEN TRAN

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JUDGE:	HIS HONOUR JUDGE M. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 October 2016
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2016] VCC 1514

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	Mr J. Saunders
For the Offender	Ms J. Kennedy

HIS HONOUR: 

1Trien Tran, you are to be sentenced for two charges of trafficking in and four charges of possessing a drug of dependence.  The applicable maximum sentences are 12 months' imprisonment for possession of a drug of dependence and 15 years for trafficking in a drug of dependence. 

2You are also to be sentenced for the summary offence of possessing a prohibited weapon,  which attracts a maximum sentence of two years. 

3When interviewed by police on 15 October 2015, you made some denials but mostly exercised your right to silence.  After a short committal in April of this year, you entered pleas of not guilty.  When the trial was listed before me,  on 10 October, it settled and you have pleaded guilty to these offences.  I take into account as to the timing of your plea that the final position was to some extent a negotiated one.

4You receive  the benefit of your pleas of guilty and the level of cooperation that short history of the proceedings shows. 

5At your plea hearing yesterday, Mr Saunders for the Crown tendered a written Crown opening and opened those parts relevant to these offences.  The summary was originally filed in respect of a trial.  He also tendered a floor plan and interior photographs of the premises at which you were offending. 

6Mr John Lavery for you tended negative drug testing results and certificates related to work and rehabilitation programs completed by you at the Melbourne Remand Centre. 

7The circumstances of your offending are comprehensively set out in the tendered Crown opening which is Exhibit A.  My own summary may therefore be short. 

8On 15 October 2015, following investigation, police conducted a raid upon premises in Westmoreland Road, Sunshine North.  You and co-offender, Jessica Truong were arrested inside.  As to you, search revealed various drug paraphernalia consistent with trafficking and also the following drugs.

9(1)      Approximately 220 grams of heroin relavent to charge 1 on your                    indictment  (trafficking in that drug).

10(2)       Approximately 105 grams of methylamphetamine relavent to charge 2          (trafficking).

11(3)       0.5 grams of alprazolam,  relevant to charge 3 (possession of that drug           of dependence).

12(4)       About 230 grams of cannabis, relevant to charge 4   (possession of                  a drug of dependence). 

13(5)       0.7 grams of MDMA,  relevant to charge 5  (possession).  

14(6)       0.2 grams of diazepam relevant to charge 6   (possession).

15Charges 3, 5 and 6 relate to very small amounts of those drugs.  The summary offence of possess a prohibited weapon relates to a crossbow found in the lounge room of the house. 

16You are a 36 year old man presently in remand custody awaiting this sentence.  You came to Australia with your family as refugees in 1998.  Two years earlier, the family had fled Vietnam to Hong Kong.  You were six.  After those two years in a camp there, the family came here to the western suburbs of Melbourne.  You have an older brother and sister and a younger brother.  Two older brothers died in Vietnam.

17That family has done well.  Your parents worked hard and the children, including you, did well.  You completed Year 12 and then whilst working part time obtained a bachelor of computer science at Victoria University.  You were employed in factory work in IT support and then ran your own business in hospitality,  also assisting your partner's business in beauty treatment.  You have a 13 year old daughter of that relationship.  You keep contact with her. 

18You had begun using drugs,  so called recreationally.  Mr Lavery stated that your business closed and that that relationship failed in the period around 2007.  Your drug use escalated.  You are in another relationship now two to three years old,  and have a 16 month old daughter.  You have been in custody since she was four months.  There has been limited visitation because your present partner was placed on a community corrections order which ended in May of this year.  It was for drug related offending. 

19Your criminal record filed in the indictment states,  between September 2008 when you were 28 years of age and November 2012, five prior court appearances.  One is an appeal from the Magistrates' Court.  Those of particular relevance are in August 2009 and July 2010 for offending which included drug possession offences.  There were also offences of dishonesty. 

20Mr Lavery explained your history of custody after arrest for these matters in October 2015.  There was a subsequent sentence on appeal in April of this year,  but a large proportion was already served.  The s.18 pre-sentence detention declaration for this, my sentence, is 353 days. 

21When you are released from prison, you will live with your partner, your child and your partner's mother.  Two of your brothers own businesses in hospitality and thereby employment will be available to you. 

22Drug trafficking is a serious offence.  That trade is seen to be a serious community problem.  In your case, you are to be sentenced for trafficking simpliciter in that you possessed the approximately 220 grams of heroin and 105 grams of methylamphetamine for sale by you or others.  As raised in the plea hearing, those quantities fall short of the so called commercial quantity of the drugs,  but are well above the legislative trafficable quantity.  They are  considerable quantities.

23You have relevant prior convictions;  I bear in mind, not for trafficking.  Such offending and circumstances make relevant sentencing considerations of deterrence,  both specific and particularly general deterrence, your moral culpability, the sentencing purpose of denunciation and the need to impose a proportionate sentence.  That must be or at least include a sentence of imprisonment. 

24There are mitigating and/or moderating factors.  They include the following.

25(1)       Your plea of guilty.

26(2)       Your personal history and circumstances,  which include that you have         served almost 12 months in remand custody and that has included the              difficult situation of several months in lockdown conditions arising out of           MRC riots in June/July of 2015.

27(3)       Your prospects of rehabilitation are not clear or certain.

28However I do not    utterly discount them.  On release, you will have family support, available   employment and you have work qualifications and capacity.  As for your co-offender, whom I also sentenced this morning, the risk will be return      to drug use. 

29Mr Lavery argued for a period of imprisonment of or not much greater than the period you have served, followed by a community corrections order.  The Crown has not argued against that.  I see a community corrections order with appropriate punitive and rehabilitative conditions to be consistent with the community's interest and its protection. 

30Before I go into sentence, I omitted to confirm that both you have received the suitability reports?

31MR SAUNDERS:  Yes, Your Honour.

32MS KENNEDY:  Yes, Your Honour.

33HIS HONOUR:  You have been found suitable for such an order upon release from prison. 

34After considering what I see to be the relevant matters, both adverse and favourable to you, I sentence you as follows - stand up please.

35On Charge 1, trafficking in heroin - 12 months' imprisonment.

36On Charge 2, trafficking in methylamphetamine - nine months' imprisonment.

37On Charges 3, 5 and 6 - one month's imprisonment.

38On Charge 4 - two months' imprisonment.

39On the summary offence, possessing a prohibited weapon - two weeks' imprisonment. 

40I direct that three months of the sentence on Charge 2 be served cumulatively upon the sentence for Charge 1.  That is a total effective sentence of 15 months.  In addition on all charges, I impose a community corrections order running for two years after your release.  The usual terms apply.  The additional or special conditions are that you perform in that time 250 hours of unpaid community work; that you be under supervision; and that there be assessment and treatment including testing, for drug dependency.  Are there other orders?

41MR SAUNDERS:  There are Your Honour, thank you.  Your Honour, I seek intimate forensic sample pursuant to s.464ZF(2).

42HIS HONOUR:  He hasn't given one before?

43MR SAUNDERS: I don't believe so. I seek a disposal order for the drugs and related paraphernalia pursuant to the Confiscation Act.

44HIS HONOUR:  I'll sign the disposal order now.

45MR SAUNDERS: I also seek a disposal order pursuant to the Control of Weapons Act in respect of the crossbow which is a separate order.

46HIS HONOUR:  Are there two orders, are there?

47MR SAUNDERS:  Yes, there are.

48HIS HONOUR:  I'll sign both of those now.

49MR SAUNDERS:  And can I hand Your Honour at least the 464 at this time.

50HIS HONOUR:  Yes. 

51MR SAUNDERS:  Thank you.

52HIS HONOUR:  Now, I need to say that had you not pleaded guilty for these matters, I would have imposed a sentence of four years with a minimum term of two and a half years.  So that would have been an additional 15 months in prison. 

53MS KENNEDY:  If Your Honour pleases.

54HIS HONOUR:  I will sign these orders first.

55MS KENNEDY:  I've been through those orders, Your Honour, they're not opposed.

56HIS HONOUR:  Thank you.

57MS KENNEDY:  Can I just approach him about the 464, Your Honour?

58HIS HONOUR:  I'll speak to him now. 

59MR SAUNDERS:  I think my learned friend wants to speak to him about consenting to that, Your Honour.

60HIS HONOUR:  All right.

61MR SAUNDERS:  It hasn't been raised with him at this stage.

62HIS HONOUR:  Yes. 

63MS KENNEDY:  That 464 is not opposed either, Your Honour.

64HIS HONOUR:  Thank you.  I am making an order that you supply a sample of your saliva.  I believe that your solicitor has just been speaking to you about it but I'm obliged to say something.  I'm doing that because of the seriousness of the offending, particularly the trafficking charges.  Such forensic material can be of assistance in the investigation of such matters.  I also take into account your prior convictions that you don't oppose it.  I see the order as in the public interest. 

65That means this, that at some stage to be arranged, you will be asked to pass a cotton swab inside your mouth.  I have not seen it but it does not sound difficult.  If you do that cooperatively, that is the end of it.  If you do not cooperate, a blood sample may be taken by injection and reasonable force used to do that.  So I have signed those orders and I will hand them back.  Just take a seat.

66Stand up.  I want to tell you what the community corrections order means.  That will run for two years and starts upon your release from prison which I estimate to be in three or so months.  You will be contacted by Community Corrections about it as the time approaches.  The usual terms that apply to all orders are these, that you do not commit another offence for which you could be imprisoned during that time.  Now, what you need to know is this, that you do not have to get imprisonment to come back before me for breaking this order.

67Most offences are punishable by imprisonment and in fact being found in possession of a very small quantity of any of the drugs that were in this premises, would mean you would come back before me.  You must comply with something called Regulation 17 of the Sentencing Regulations which I understand to be that you do not attend at any program, work site or appointment affected by alcohol or drugs or in possession of illegal drugs. 

68You must report to and receive visits from Community Corrections.  You must report to Community Corrections within two clear working days of the order starting.  That means, within two days of leaving prison.  You must let Community Corrections know within two clear working days of a change of address or job.  You must not leave Victoria without getting permission from them to do so.  You must obey all of their lawful instructions. 

69Now, the special conditions that apply in your case are these.  That you perform 250 hours of unpaid community work over the period of two years as you are directed by Community Corrections.  That you be under the supervision of a Community Corrections officer for the time and that you undergo assessment and treatment including testing for drug abuse or dependency as you are directed.

70Do you understand all of that?

71OFFENDER:  Yes.

72HIS HONOUR:  Do you consent to the order?

73OFFENDER:  Yes.

74HIS HONOUR:  I will get you to sign the document and then I will sign it.

75(Community correction order signed and acknowledged.)

76Where do your parents think you are now?

77OFFENDER:  I'm not really sure.

78HIS HONOUR:  Well, they're in their seventies, aren't they?

79OFFENDER:  M'mm.

80HIS HONOUR:  If I were you, I'd aim to give them a few good years, all right.  Good luck to you when you do leave prison.  I hope you go all right.  I will adjourn until 9.30 tomorrow.  Thank you, Mr Saunders for your assistance.  Thank you, Ms Kennedy.

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