Director of Public Prosecutions v Tran

[2016] VCC 760

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00818

DIRECTOR OF PUBLIC PROSECUTIONS

v

MANH HUNG TRAN

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JUDGE:	SMALLWOOD
WHERE HELD:	La Trobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	2 June 2016
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2016] VCC 760

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr A. Moore
For the Accused	Mr C. Terry

HIS HONOUR: 

1Manh Hung Tran, you have pleaded guilty to one charge of possessing a drug of dependence, namely cannabis.  That crime carries a maximum penalty in these circumstances of five years' imprisonment.

2You pleaded guilty at the earliest reasonable opportunity and you have been in remand since your arrest.  As I understand the materials before me, that remand has included you being in 22 hour lockdown for something in the order of five-and-a-half months, and I take that into account.

3Insofar as your plea of guilty is concerned, I give you the benefit of the doubt insofar as the remorse aspect of it, but you certainly must get the utilitarian benefit of it.

4You have one prior conviction, but it is of no relevance to these particular proceedings.  Of real importance is that you have given assistance to the authorities, and that is confirmed by the learned prosecutor, and there has to be a demonstrable discount for that.  I do not, in these circumstances, propose to enquire as to the detail of it all, just simply accept the assurance of the Crown that that is so.

5You have also undergone this period of imprisonment under the risk of deportation.  Again I can take it no further than that, other than to take into account your fears for that.  You have a partner and a small child, and you at real risk, I would have thought, of being deported. 

6Next, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes. That order having been made, you must provide such a sample to police, or they may use reasonable force to take it from you.

7The circumstances of the offending can be described in very brief compass.  At around midday on 11 November 2015 you were travelling in a westerly direction on the Princes Freeway in Drouin.  You were intercepted by police.  You were driving a Hi-Ace van registered in your name, and search of the van located 15 large bags containing cannabis.  The total weight of that wet cannabis was later established as 137.65 kilograms.

8You were arrested by police, taken to Warragul for interview, and other than the assistance I have referred to, gave a no comment record of interview, as you were perfectly entitled to do.  As I have indicated, you then proceeded to plead guilty at the earliest reasonable opportunity, and you must get the benefit of that.

9In most situations where there is a case of possession of cannabis simplicita, it would be dealt with in the Magistrates' Court, and the odds are that a custodial sentence would not be imposed.  However, the situation where is such that, whilst the Crown accept that they are not proceeding with commercial quantity, I suspect it is probably one of the largest possession simplicitas I have ever seen, and a custodial sentence, in my view, is inevitable.  You have now done 204 days.

10In then look at matters personal to you, and a very helpful set of submissions was provided by your counsel. 

11I have already indicated the basic matters of mitigation, but in simple terms you are of Vietnamese origin.  You come from the north of Vietnam, and your parents and a young brother still live there.  Apparently they are not fully aware of what is occurring out here.  They run businesses there.

12You are clearly an intelligent young man, and attended Maritime University in Haiphong.  You came to Australia in 2008 on a student visa with the intention of studying English and studying from there.  That visa was valid from 2008 until 2012, but lapsed.  You met your partner at the end of 2010 and at the end of 2011 had a baby girl.

13Whilst you were studying here, you were working on a casual basis and when your visa expired, you were unable to continue that employment.  You then applied, as I understand it, for a spouse visa on the basis that your wife and daughter are Australian citizens.  You were then involved in an incident which ultimately resulted in you being given a six month suspended sentence for violence.  Police were looking for you in relation to that, and you were arrested.  It then became clear that your visa had expired. This was in late 2013, and you were kept on remand for a month prior to being released on a bridging visa.

14You have been, as it stands at the moment, denied the spouse visa that you seek to stay here, but you hope to be in a process of appealing that.  You were working at the time all this occurred as a handyman.

15As indicated to your counsel, I do not take a lot of notice of explanations as to how offending came about in these circumstances; I simply sentence you on the basis that you came down to the La Trobe Valley to collect a very significant quantity of cannabis and you were intercepted, obviously, taking it back to Melbourne.

16In any event, they are the circumstances surrounding you.  You are 30.  You have got no relevant priors.  You have nothing pending, and you do have the stability of a wife and a child.

17The offending itself has to be regarded as serious.  In the normal course of events, that calls for the application of general and specific deterrence, as well as denunciation and appropriate punishment.  In your situation, the prospects of your rehabilitation should be good, and the risk of your reoffending should be low.

18Taking all those matters into account, on the charge of possess cannabis, you are sentenced to be imprisoned for a period of 204 days, and I direct that 204 days be reckoned as having been served under the sentence.

19Insofar as s.6AAA is concerned, the matter is compounded because of the assistance that you have given to police, but I simply say that without that assistance, and without your plea of guilty, you would have been sentenced to be imprisoned for a period of 12 months.

20There are no orders I have to make, gentlemen?

21MR MOORE:  That completes the matter, Your Honour.

22HIS HONOUR:  Just for completeness, I have assumed that he did not lose the van?  Normally in that situation, they would ask for confiscation of the van, but if that has not happened?

23MR MOORE:  No, it hasn't.

24HIS HONOUR:  No, all right, I've assumed that, so, I was sure of that.  I will just get this done so the police can take it back with them.

25MR TERRY:  Your Honour, I'm not too sure what's the - I know it's not really a matter the court has to be concerned with, but ‑ ‑ ‑

26HIS HONOUR:  Sorry, I cannot quite hear you?

27MR TERRY:  I'm not too sure what's going to be happening with Immigration.

28HIS HONOUR:  Yes, I cannot do anything about that.

29MR TERRY:  That's right, so I've explained to my client that what will be, will be.

30HIS HONOUR:  Yes, I am just about to sign it, sorry.  Just wait a sec.  Sorry, what is happening?

31TIPSTAFF:  The police officer knows what's going to happen, Your Honour.

32HIS HONOUR:  All right, what is going to happen?

33VOICE (from the body of the court):  We've spoken to Immigration regarding it.

34HIS HONOUR:  Yes.

35VOICE:  The Border Force have an interest in Tran, so he'll have to stay in custody until they get back to us with further details.

36HIS HONOUR:  Well he cannot.  Hang on.

37VOICE:  Yeah.  That's what I've just been told.  They want us to hold onto him until they can come down.

38HIS HONOUR:  Have you got a warrant to do that?

39VOICE:  We're still trying to find out more details on it.

40HIS HONOUR:  Well, I do not know about this.  The situation was it is that he was clearly at liberty on the day he was arrested.  Normally what would happen is that they would be here, and that they would take him into custody if they were going to do that.  I am not keen on them making you guys do it.  I am seriously concerned about that, as to whether they are not putting you in a difficult situation.

41VOICE:  Yeah, they've been informed that's what going to happen - I've informed them that he was going to get released today, so they should be aware of that.  So they shouldn't ‑ ‑ ‑

42HIS HONOUR:  What is concerning me is that I have imposed a sentence, which I have declared to have been served, and the PSD that I have declared does not include today.  So on the face of it, he is entitled to walk out of this courtroom.  What I am very concerned about is that, if Immigration are just simply asking you to hold somebody who I have sentenced and has completed that sentence, you have no power to hold him.

43As you know, I always get the accused to go back to the station with you as a courtesy, to complete your paperwork.  But that is not the legal situation, and I would be very, very unhappy if he went back and was just simply held on some notional, non-existent warrant.  Do either of you gentlemen know anything about it?  Normally they are here, and they arrest him when he walks out the door.

44MR MOORE:  I don't, Your Honour, but my first reaction is the same as Your Honour.  I mean there's just no power to hold him.

45HIS HONOUR:  No, that is why I am concerned that the police have been put in a difficult situation with this.

46MR TERRY:  Your Honour, what I propose to do is, I'll wait for him at the police station, if he's still there in an hour I may bring the matter back before Your Honour, because I can't see how, unless Border Force can ‑ ‑ ‑

47HIS HONOUR:  No.  All right, well that is what we will do.  And I am doing this not just because of his situation, but to protect you blokes as well.  Well, not you blokes, you would just say, "The sergeant made me do it".  But there is somebody.  So what we will do is this.  How long does it normally get you to get clear with central records?  It only takes one phone call, doesn't it?

48VOICE:  Yeah, it shouldn't take too long.  Probably 20 minutes.

49HIS HONOUR:  Look, what I will do is this.  I have the power to just let him walk out that door.  I will not do that.  What I will do is, as it stands at the moment, he can go back with you guys for that courtesy aspect of it and I will stand the matter down until 12 o'clock.  And I want him back in this courtroom at 12 o'clock, at which point they know he is getting released.  That is their problem.

50I am not having someone held on remand where there is no power to do it, and in fact they may not have revoked his visa in any event.  All right?  That is what I will do.  I will stand the matter down until 12 o'clock.  They will be sent straight to central records here so they will have it, but we will bring him back at 12 o'clock.  If it has not been sorted, I will just let him go.  But you can tell your sergeant, that is not your blokes' problem, all right?  I will take that decision, if need be.  All right, thank you for that.  So you will have him back at 12, no matter what?

51VOICE:  Yes.

52HIS HONOUR:  Thanks.

53(Short adjournment.)

54HIS HONOUR:  I have been given this letter.  Who is J. Tindal.  Is that one of the sergeants or something, is it?

55VOICE:  That's our custody sergeant.

56HIS HONOUR:  All right.  Have you seen this?

57MR MOORE:  No.

58HIS HONOUR:  Central records have got no problem with him being released?

59VOICE:  I don't believe they've checked yet.

60HIS HONOUR:  Apart from these people.  I am not talking about Commonwealth.

61VOICE:  Yeah, I don't think they've got an issue with that request at all.

62HIS HONOUR:  Do you want to say anything at this stage, Mr Terry?  What are you looking up there?

63MR TERRY:  I'm just having a look at s.189.  No, I don't seek to say anything about this case at the moment.  It's a matter for the - there's powers under that, and whether they're exercised is beyond our control, I think.

64HIS HONOUR:  Well I do not know about that.  I mean, I am more concerned about the court.  I mean, for obvious reasons, we in these courts in this situation send the accused back to the police station.  We do not do it in Melbourne.  They do not go back downstairs in Melbourne; they walk out the door in Melbourne.

65Because of the difficulties that country police stations have, I always have, on a courtesy of the accused, going back to the police station for them to take them through the records.  Now, if they know he is unlawfully in the country, they must have known he was in custody.  How would they not know he had been ‑ ‑ ‑

66MR TERRY:  I've never done a case where they haven't come along.

67HIS HONOUR:  That is exactly what I am saying.  I reckon this has taken them by surprise.

68MR TERRY:  And it shouldn't have.

69HIS HONOUR:  Well, it does not tell you why he is unlawfully in Australia.  There is no deportation order that has ever been served on him, is there?

70MR TERRY:  All I know is that, as I say, I think he was told that his application had - his bridging visa was cancelled while he was in custody, currently on this period of remand.

71HIS HONOUR:  All right.  I will not do anything then.

72MR TERRY:  Immigration came and saw him, apparently, and said that that's the case.

73HIS HONOUR:  I have never known them not to turn up.

74MR TERRY:  Nor have I.

75HIS HONOUR:  But if your instructions are that the visa has been cancelled, I am not going to have a circus, I let him out the door and they have to chase him down the street.  I know who is the quickest.

76MR TERRY:  I think that's what's - the one with the greatest incentive is probably the quickest, Your Honour.

77HIS HONOUR:  Hear the sounds of the sandshoes.

78MR TERRY:  I think that's the situation I'd be placed it.

79HIS HONOUR:  No, look, if your instructions are that they have told him that his visa has been cancelled.

80MR TERRY:  We just (indistinct).

81HIS HONOUR:  I am content with that.  What I was concerned about here is that one, I have never seen them not turn up before; and two, he would be at liberty if the court had not followed its courtesy of sending him back.

82We had one of those Immigration blokes try to actually arrest him in the courtroom in front of me a few months ago, and that ended in tears, I can tell you.  I pointed out to him, he would be in the cells with him, if he wanted to be.

83MR TERRY:  Your Honour, that's what I - I might just confirm those instructions, it's pretty important.  That's what I took from my conference with him yesterday.

84HIS HONOUR:  Well I do not want to make a circus of it, because the difficulty is this, that now that the police at this station have been informed that he is unlawfully in Australia, and your understanding is that his visa has been revoked, then I do not want a situation where the police are being put in a situation where they have to chase him down the street, basically.  Because it says "must".

85MR TERRY:  Yes, it does.

86HIS HONOUR:  It does not say "may", it says "must", and either way I do not want to put the police in that situation. 

87MR TERRY:  May I just briefly approach my client, Your Honour?

88HIS HONOUR:  Yes?

89MR TERRY:  If I could just briefly approach him?

90HIS HONOUR:  Yes.  Sorry to detain you like this, Mr Moore.

91MR MOORE:  It's all right?  I was going to be around for hours, anyway.

92HIS HONOUR:  It is immigration.

93MR MOORE:  Yes.

94MR TERRY:  That is correct, Your Honour, the bridging visa was cancelled.

95HIS HONOUR:  All right.  Well in that case, I suppose I will simply do nothing.  He is in your custody, I guess, and it is a matter for the sergeant to work out.  Unless you want me to remand him to Manus Island or something?  Or Lakes Entrance and they can take him over on one of the boats.  Anyway, yes, all right.  Thanks for investigating that.  It just made me feel uncomfortable with a bloke being taken like that, but it is obviously lawful so that is fine.  Your sergeant can worry about it, not me.

96(At this stage the court proceeded with another matter.)

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