Director of Public Prosecutions v Tran

[2016] VCC 747

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01955

DIRECTOR OF PUBLIC PROSECUTIONS

v

TUAN TRAN

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:	11, 19, 25 Maya 2016
DATE OF SENTENCE:	1 June 2016
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2016] VCC 747

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh	Office of Public Prosecutions
For the Offender	Mr R. Melasecca	Melasecca, Kelly & Zayler

HIS HONOUR: 

1Mr Tran, you have pleaded guilty to one count of trafficking in a drug of dependence, being a commercial quantity; one count of trafficking in a drug of dependence, I add there was no commercial quantity allegation on that count; three counts of possessing a firearm; and one count of possessing a silencer. You have further consented to two summary offences being dealt with by this court, pursuant to s.145 of the Criminal Procedure Act, those summary offences being one count of possessing cartridge ammunition and one count of dealing with property suspected of being the proceeds of crime.

2The prosecutor was not Mr Singh on that occasion when the plea was done, it was Ms Parkes.  You heard the learned prosecutor, Ms Parkes, tell this court that the various maximum sentences that may be imposed for each of the following offences are as follows:  For trafficking in a drug of dependence being a commercial quantity, the maximum gaol sentence is 25 years' imprisonment.  For the offence of trafficking in a drug of dependence, not being a commercial quantity, the maximum sentence is 15 years' imprisonment.  You have three counts of possessing a firearm, on each count the maximum sentence for each count is ten years' imprisonment.  The count of possessing a silencer, the maximum gaol sentence that can be imposed is that of eight years' imprisonment.

3In relation to the two summary offences, the possession of a cartridge ammunition is 40 penalty units.  Forty penalty units is about 40 multiplied by something like 130, 140.

4These maximum sentences should indicate to you that these offences are indeed very serious matters, in particular the trafficking in a drug of dependence being a commercial quantity.  Again, I do not wish to harp on it, but the maximum sentence is 25 years.  That in itself is indicative of how serious that offence is.

5For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words you receive a discounted sentence for having pleaded guilty.

6Mr Tran, the facts in this case are set out in the prosecution opening.  That prosecution opening was marked Exhibit A.  I will not refer to, or if I do only very briefly refer to those facts, because I intend to exhibit the entire summary of the opening to these sentencing comments, again as Exhibit A if you like, or Annexure A.  That then enables any interested party who is entitled to look at the file to have a complete background of what the allegations were and what you have pleaded guilty to.

7At the beginning I also make this comment because of the unusual nature of the way the entire matter was conducted, but I make this comment at this time.  As you well know you have seen Ms Sandra Nguyen, a counselling psychologist.  Ms Nguyen has supplied a very useful and informative report to this court.  The date of that report is 8 May 2016.  On two or three occasions I refer back to it, but I am introducing it now so you know that is the report I am speaking of.

8Mr Tran, you escaped Vietnam when aged 13, going to Malaysia where you spent approximately three years in a refugee camp.  You came to Australia as a refugee in 1987.  You came with an older cousin.  On arrival in Australia you attended school and completed Year 9.  Not surprisingly you struggled at school because of your lack of English.  As I am informed, I believe by Ms Nguyen, if not by Ms Nguyen, by Mr Melasecca, both of your parents are now deceased.  You have two sisters.  You do not have an ongoing relationship with either of those women.

9You met your wife, Tham, through her brother.  You have two children from this union, two boys whom you are justifiably proud of.  I hope I do justice to the pronunciation.  Phu is 16, Tien is aged 18.  Tien has given evidence on your behalf to this court, an impressive young man.  He remains supportive of you.  As you well know, your wife also gave evidence on your behalf at this court and she too remains supportive of you.  She has attended, to my knowledge, this court on at least three occasions demonstrating that support.

10You left school during Year 10 and commenced work with Ford.  For several years you worked there, before then commencing your employment as a delivery driver, then as a machine operator and subsequent to this employment you have worked as an odd job man and handyman from home.

11Your significant health problems led you to this type of work.  You were working for yourself, that being more manageable as your health problems were debilitating and disabling.  As I understand, you have had what I will call genetic gout, because apparently it is within the family and is extremely debilitating and you have been wrestling with it for many years, in excess of 20 years.  This sad state of affairs led you to being placed on a disability support pension in 2014.  So serious is your health you find it difficult to even move about, let alone to be gainfully employed like others out in the community.

12Again, and only because of the unusual occurrence, and I will say so there is no mystery about it, the plea was conducted.  I am going to repeat this, where the prosecution presentation was given, the plea presentation was given and then before the sentencing comment that was supposed to occur about a week or ten days ago, you had another hearing commence. 

13Ms Nguyen has seen you on two occasions whilst you have been on remand at the Melbourne Remand Centre.  The first occasion that Ms Nguyen saw you out at the prison was on 16 May last year and then she saw you again on 4 May of this year.  I do not usually quote that, but for reasons that become obvious I am raising it now.  I quote directly from Ms Nguyen's useful report.  This is what she said about you.

"Mr Tran explained that he has been diagnosed with gout for the past
20 years.  The condition affects his feet, hands, arms, neck and body.  He described being able to manage the condition with medication for many years.  However, he reported that the gout has become so debilitating in the past five years which has led to him having to cease work.  Mr Tran reported difficulties in walking, dressing, showering and general difficulties attending to his personal care.  He explained that the swelling and pain has resulted in him being unable to move and is bedridden on occasions for many days.  He described having to crawl on his hands and knees on occasions when he wanted to attend the toilet, as his feet were too painful to weight bear.

Mr Tran was able to show me the effects that his gout had caused to his body.  It was observed on both occasions when I assessed him that both his feet were severely swollen, black in colour across parts of his feet, sores which were open and several raised lumps were evident throughout his arms and fingers.  His gout has caused him to be extremely debilitated, deformed and disabled."

14Your counsel, Mr Melasecca, prior to the plea, had photographs taken, all indicative of what is said by Ms Nguyen in her report.  Then, again, as a result of the unusual happening of a second presentation midst the hearing of this matter, further photographs were taken of your feet and hands and other body parts here in this court room whilst you were in the dock.  All of those photographs have been exhibited.  The prosecution and the court has seen them.

15To this date you are burdened with this disability.

16Not surprisingly, your self-esteem and self-confidence has taken a beating.  You withdrew from family and friends.  You have had self-hate towards yourself due to the disfigurement.  You distanced yourself from your wife and two sons.  You stated to Ms Nguyen that you felt ugly and repulsive, leading to you hiding away from the world in general.  Mr Melasecca informs me in his plea that there were occasions where you even removed yourself from within the house, sleeping in an outdoor shed or something of that nature.

17It was in this state that an acquaintance introduced you to heroin.  The documents said "a friend."  I have removed that word.  That person is no friend, I call that person an acquaintance.  I will repeat, it was in this state that your acquaintance introduced you to heroin.  To put it bluntly, it has all been downhill since then. 

18As an aside and connected with your difficulties, your wife encountered her own difficulties at this time.  You know of what I am talking.  I do not wish to embarrass her by raising them publicly.  You wife has attended to her problems and issues and, as I said earlier, she remains supportive of you and she has given evidence on your behalf.

19I again return to Ms Nguyen's report and quote yet again from that report. 
Ms Nguyen says this of you:

"Mr Tran stated that he felt very responsible and partly blamed himself for causing his wife to gamble.  He felt at fault with her and stated that he was very disappointed with himself for the pain he has caused his wife.  He recalled withdrawing further and relying more on heroin to cope with this emotional distress.  He further reported to Ms Nguyen his continuing use of heroin up until his incarceration."

20Since being remanded in custody, you have ceased using any illicit substance.  Not surprisingly, and matters I address in a moment, you have become more depressed now that you find yourself in custody.  Being separated from your wife and children you find to be extremely difficult.  You do not wish for either of your sons to visit you whilst in prison and have resisted family visitations for that reason.  You would be surprised how often I have heard that said by people such as you, Mr Tran, not wanting to cause further distress to your sons in particular.

21I refer to the material that was introduced in between the original plea and summary of the prosecution and this date.  In this case the prosecution have chosen to call two witnesses to either refute or further explain matters raised by defence, that is your counsel, in the plea presented on your behalf to the various counts on this indictment.

22The summary of the prosecution evidence, together with the plea, were completed.  The hearing was then adjourned for a result to be announced by the court.  As I recall the date for that sentencing was fixed as at 25 May, but then on that day further evidence from the prosecution was called. 

23The first witness was the operational manager from the Melbourne Remand Centre.  His name was Mr James O'Dowd.  He was a senior prison officer.  I accept the evidence of James O'Dowd, that is that as at the date of him giving evidence, that the restrictions and discomfort that flow from lockdown within a prison and had occurred at the Melbourne Remand Centre have substantially eased.  That is from the time you went into the custody until the time that O'Dowd gives evidence, there has been a substantial easing of the lockdown status.

24I accept that you, Mr Tran, have been assigned to tasks within the prison to accommodate your significant health problems.  You, sir, had been assigned to the position of a billet.  That enables prisoners who have the status of being billets more time out of the cell than that of prisoners who are not billets or similar.  To further assist you, Mr O'Dowd said that you were changed from the position of a billet to that of what I will call a gardener.  I accept that that gardener's position allowed you to manage your health problems to a significant degree.  You heard Mr O'Dowd say he could move around and rest, be seated, stand up at his will.

25The prison management are to be commended for these decisions. 
I acknowledge they have endeavoured to assist you in your difficult health problems.  I must say having recognised these concessions, if I may call them that, I further acknowledge that whatever arrangement was made for you, the fact that the riots at Melbourne Remand Centre did occur. 

26You, Mr Tran, took no part in those riots and for some period of time thereafter, but you, like many prisoners, found themselves in lockdown, where those prisoners spent 23 hours in 24 locked in their cell each day.  Happily, once time passed, that one hour per day out of the cell has substantially changed until now I have even had barristers in this court room in the last day or so saying it is almost 12 hours in, 12 hours out, so it has changed, but at the beginning you were in lockdown for 23 out of 24 hours.

27I intend to take into account the fact that through no fault of your own you,
Mr Tran, did encounter the additional stress and inconvenience that follows lockdown.  That fact will be taken into account in sentencing.  You, Mr Tran, have experienced stress additional to that of the other prisoners who do not find themselves in lockdown, again that is what I am saying and that is what I am talking about and recognise at least at the very beginning and until some time later when you got the position as a billet, at least in that period of time you were the same as any other prisoner.

28The second witness called caused me some concern.  The second witness called was Dr Turnbull.  This doctor was the officer-in-charge of Health Services at the Melbourne Remand Centre and, as I understand his appointment, being an outside contractor that outside organisation has responsibility for other Victorian prisons.

29I found the evidence of Dr Turnbull to be quite astounding, those reasons being, of the many questions and issues put to Dr Turnbull, particularly in
cross-examination, that this doctor was evasive.  For that reason I say he is lacking in credibility.  An example of Dr Turnbull's avoiding or ducking the issue was frequently adopted by that witness in the transcript shows that he often "responded in this way".  I was watching the prosecutor, I think she was as equally frustrated as the defence counsel, Mr Melasecca, because the responses were the same to both.

30The examples were, and I am not going to give them all, he said, "That question is for the podiatrist to answer."  Obviously questions about your feet.  Secondly, "That question is for a rheumatoid arthritis practitioner to answer."  Again speaking of your gout.  In yet another example, "That issue or question is to be explored with Community Corrections, not me."  And so it went on.  These responses or similar were frequently given displaying a reluctance of the witness, in my view, to grasp the nettle.  He was a qualified general practitioner and yet he avoided answering.

31The nature of Dr Turnbull's evidence was evasive and in that sense I have no confidence in his responses.  An example of this evasion caused me concern.  The evasive answer was taken when the doctor was being cross-examined as to your state of depression.  As you well know, big thick health reports were supplied by way of subpoena to Mr Melasecca and page after page after page of reports were given of various persons within the medical industry, being doctors and nurses, recording whatever the treatment was that was being given, with one exception, Dr Turnbull failed to find evidence recorded in those records satisfactorily confirming whether you, Mr Tran, were burdened with or treated for depression.

32Referring back to the evidence produced at the plea hearing, there is a report produced from Premium Care Medical Group, dated 9 May 2016.  I am not going to read all of that report, but I make this comment.  In this report Dr Hoang Huy Huyn records that you have been treated by that medical group for the past ten years.  Dr Huyn notes that you, among other things, "Also has had sleeping problems and depression and then being treated with antidepressants and psychological counselling."  The consulting psychologist, Ms Nguyen, who I have quoted at length already and, as I said earlier, has seen you on two occasions whilst at the Melbourne Remand Centre.  I gave the actual dates, one in May of last year and one in May of this year.  I have referred to her reports and I will refer to them again.  I am not going to re-read them, but she speaks of, in those reports, of your depression.

33I will leave that for the moment and make this comment.  It is patently obvious to the casual bystander that your physical presence exhibits many and numerous health issues.  The photographic exhibits show what is obvious to the naked eye.  That is all I intend to say about those witnesses that were called back on 25 May.

34Ms Nguyen reports that you have expressed remorse for your actions, that you feel ashamed about your behaviour, particularly the effect of this behaviour upon your wife and more particularly your children.  Mr Tran, I assure you that I have taken into account all that has been said on your behalf by Mr Melasecca.  I take into account your plea of guilty.  This plea is an indication of your remorse and I have just quoted from Ms Nguyen's report who endorses your remorseful state.

35Mr Tran, your rehabilitation is guarded in that your parlous state of health or serious state of health will need much support for you to return to some level of personal comfort.

36Previously to going into custody you and your wife had not sought counselling of any kind, despite your personal difficulties.  Simply because I sit in these courts so frequently, I can say there are excellent services provided by the Vietnamese community to those in need, particularly those with a Vietnamese background.  It is imperative that you access these organisations to advance your prospect of rehabilitation. 

37Despite all of the evidence that I have been speaking of, I say in addition to your substantial physical health issues, you are further burdened with depression.  Again I quote Ms Nguyen.  She says this of you:

"Mr Tran is currently struggling psychologically to manage his emotions and worrying thoughts which are having a significant impact on his depression and anxiety.  His current incarceration has exacerbated his depression and anxiety which is detrimental to his mental health.  He has reported increased insomnia, frequent headaches and ruminating negative thoughts, flat effect and loss of self-confidence and self-esteem.  He has made wrong decisions and is remorseful for his actions.  Mr Tran wants to rebuild his life and repair the effects that his gout and subsequent behaviours have had upon his wife and children."

38Mr Tran, I say this, at arriving at an appropriate sentence, I take into account your state of depression at this time when tested by Ms Nguyen.  Ms Nguyen in fact reports that your score on that test that she tested you with placed you in the severe range of depression, anxiety and stress.  Mr Tran, in light of the reports of Sandra Nguyen, the counsellor, particularly touching upon your depressive state and further your appalling state of general health, it may well be that any given sentence may weigh more heavily upon you compared to an individual in good mental and physical health.  Consequently, and if necessary Mr Melasecca will explain this to you, I am conscious of the Verdins principles and modify the sentence I may otherwise have imposed.

39Mr Tran, your counsel, Mr Melasecca, in his eloquent plea conceded that these are very serious offences.  You have prior convictions for similar offending, not many but one or two.  Your offending is aggravated in this sense by the number of sophisticated and clever hiding places created by you so as to conceal the drugs that were found by the investigating police officers.  In addition, you had rigged up an early warning system to alert you to any intruder.

40When examined as a whole, you have created a sophisticated secret repose for the various illicit substances seized on this day.  That is better understood of course when one reads the summary of the prosecution produced and called Exhibit A.  It is obvious that you have got skills as a handyman because some of those hiding places I have never heard of before in the effective concealment of this material.

41This type of offending endorses the importance of general deterrence.  The court must seek to stop others from committing this type of offence or offending and for that reason general deterrence is and must be taken into account.

42As to specific deterrence, so that you understand what that means, that refers to you personally, it must be sufficient, to put it bluntly, so as to dissuade you from returning to such criminal activity.  At the same time in the legislation that directs courts to take specific deterrence and general deterrence into account, just punishment is also used.  I have turned my mind to that because of your health and the various things I have raised so far.

43I accept that since going into custody you have remained drug-free.  You are anxious to rehabilitate yourself and reconnect with your wife and children. 
I also take into account the difficult circumstances of the riot at the Melbourne Remand Centre, as I have gone to some length to explain.  I assure you the lockdown that followed from the riot is now well understood by the judiciary, certainly in this court.  There are many prisoners such as yourself who were innocent of this riotous behaviour who then however suffered the consequences of lockdown.  That is many hours confined in the cells that otherwise would not have occurred.  To further complicate this state of affairs you have little or no English and, as I have gone to great lengths to explain, you have significantly compromised health. 

44I assure you that I take all of these matters into account in arriving at the appropriate penalty, and I will say this again in a few moments.  I believe in my mind in arriving at what I believe to be a just sentence, I have given a discount that I may not have otherwise given for all the various reasons I have canvassed this morning.

45Mr Tran, in relation to the various counts on the indictment:

46On Charge 1, that is the trafficking of a commercial quantity, you will be convicted and sentenced to 18 months' imprisonment.

47In relation to Charge 2, which is the trafficking count not being a commercial quantity, you are convicted and sentenced to six months' imprisonment.  That six months to be served concurrently with the sentence imposed on Charge 1.

48Mr Singh and Mr Melasecca, I am not sure of the count number, I think it is the second summary offence, it may have been the first, on that charge being a fine only he is convicted and discharged.

49MR SINGH:  The first one.

50HIS HONOUR:  The first one.  The first summary offence for which a fine, that is the penalty units matter, convicted and discharged.

51On all the remaining offences, that is the firearms offences, to put it in a nutshell, and the one remaining summary offence, you are to be convicted and released on a community corrections order for a period of 18 months.  I will come back to these.  This might sound confusing but I will come back and explain it to
Mr Tran.

52Firstly, I say this, he must report to the Office of Corrections within two days of being released from custody.  The address and so forth will be on a piece of paper that he will get shortly.  Mr Melasecca will help him there if he needs it as well.

53I will come back and explain this, I do not expect him to understand what I am saying in the beginning, but I will say it and then come back to it.  Pursuant to s.48D(3)(a), Mr Tran is to be assessed and treated, if necessary, for drug addiction and drug problems.  Section 48D(3)(d), assessment and treatment for medical matters relating to his offending.  Of course he has got medical problems, he is going to continue with the treatment for the rest of his life.  Section 48D(3)(e), assessment and treatment for mental health issues.  Section 48D(3)(f), to undergo any assessment and rehabilitation programs at the direction of the Corrections officer.  Section 48E, to be subject to supervision of a Corrections officer.

54I return to put it this way.  In terms of his drug assessment and treatment, he will be assessed by the treating authorities.  If they say he needs no further treatment that is the end of it.  If he requires treatment he must comply with the directions given.  If he does not, he is in breach of his community corrections order. 

55The same applies with the medical.  I understand that Corrections will not become involved in a major way with your personal health problems because you have got many, but so far as they relate to they will have you assessed and treated, if necessary, so as to assist you to not re-offend.  If they say you need no further assessment or treatment at their level then that is the end of it.  If he does not comply with what they say, assess and direct, well then he is in breach if he does not comply.

56The assessment and treatment for mental, that highly probably, I cannot say it will, but highly probably will be supervised by Ms Nguyen.  Corrections usually keep the same professionals involved if they are available.  You must obey all directions for assessment and treatment.

57The rehabilitation program is really a way of, putting it bluntly, learning how to count to ten, that is how do I avoid getting involved again.

58The supervision element is reasonably straight forward, you will have a professional, if you like, Corrections officer available, so you have got an extra counselling service available.  If you have got problems that you do not understand anything, particularly to do with the community corrections order, well then speak with the Corrections supervisor.

59Pursuant to s.18 of the Sentencing Act the prisoner is to be given credit for having served 407 days of imprisonment.

60There is a forfeiture order in relation to firearms and other material and a disposal order in relation to the drugs.

61Because of the quantity of drugs, because of the quantity of money, because of the sophisticated hiding places, were you a man in fit and good health, I believe pursuant to the provisions of the Act I would have imposed a much more substantial prison sentence of at least five years with a minimum of three and a half years.  You have got, from my perspective anyway, a substantial deduction because of all of the various inhibitions and problems you have with your mental and physical health.

62I do not think there is any other orders sought, is there, Mr Singh?

63MR SINGH:  No, Your Honour.

64MR MELASECCA:  No, Your Honour.

65HIS HONOUR:  Thank you.  Ms Tran, thank you for your help.  Can I ask you not leave too quickly because Mr Melasecca may need to speak to
Mr Tran before you leave.

66INTERPRETER:  Yes.

67HIS HONOUR:  I will leave the Bench.  Adjourn temporarily.

68(Community corrections order signed and acknowledged.)

69(Forfeiture order signed and acknowledged.)

70(Disposal order signed and acknowledged.)

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