Director of Public Prosecutions v Tran

[2015] VCC 1896

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR-15-00836

DIRECTOR OF PUBLIC PROSECUTIONS

v

MEN TRAN

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JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	18 August and 27 November 2015
DATE OF SENTENCE:	15 December 2015
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2015] VCC 1896

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – traffick drug of dependence (heroin) – large commercial quantity

Legislation Cited:     Drugs, Poisons and Controlled Substances Act 1981 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:R v Pidoto & O'Dea [2006] VSCA 185; R v D'Aloia [2006] VSCA 237; Ibbs v The Queen (1987) 167 CLR 447; R v Wilson & Ors [2012] VSCA 141; R v Hasan [2010] VSCA 352; R v Verdins [2007] VSCA 102

Sentence:Convicted and sentenced to 7 years imprisonment with a non-parole period of 5 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Solicitor for the Office of Public Prosecutions
For the Accused	Mr A. Halphen (Plea) Ms M. Walker (Sentence)	Melinda Walker Criminal Law

HIS HONOUR:

1On 27 November of this year, Men Thi Tran, who is 39, having been born on the 15th day of October 1975, unemployed and currently at the Dame Phyllis Frost Centre, pleaded guilty to the one charge in Indictment No.E13375687.  That charge is one of traffic large commercial quantity of heroin.

2The period detailed in the particulars is from 6 June 2014 until 8 October 2014. The offence being an offence against s.71 of the Drugs, Poisons and Controlled Substances Act 1981, is one of utmost seriousness.  Such is demonstrated by the fact that Parliament has imposed a maximum penalty of life imprisonment and/or 5000 penalty units for this crime.

3The learned prosecutor also asked me to sign some disposal and forfeiture orders, which I have signed, and then to make an order under s.464ZF, although I think that will no longer be necessary, Mr Prosecutor, will it?

4MR PICKERING:  No, Your Honour.

5HIS HONOUR:  The only other additional matter was that I was advised that not counting today the period served by way of pre-sentence detention by Ms Tran is 432 days.

6The crime, as detailed by the High Court in R v Ibbs (1987) 163 CLR 447 [452], requires an objective analysis as part of the sentencing process. Police came to observe the actions of Ms Men Tran shortly after the commencement of the police Operation Isoleucine. She was placed under, as her family was, observation and surveillance, as were a number of other persons involved in the heroin trade in Melbourne.

7It is clear from that investigation and observation that the heroin was coming from Sydney.  It was supplied to Tran by an intermediary known as Uyen Thai, who would deliver the heroin to the house of Men Tran at the housing commission, Flat 13/106 Elizabeth Street, Richmond.

8Men Tran obtained during such period of observation deliveries of heroin on at least 21 occasions as detailed by her counsel during the plea, Mr Halphen.  Ms Walker appears for her today and I should have indicated Mr Pickering appeared on behalf of the Director.

9Those 21 occasions are all detailed in the Schedule A to Exhibit A, which was provided by the learned prosecutor and I thank him for that, and also more importantly in so far as the offence itself is concerned, are the sales to various co-conspirators or purchasers by Men Tran, as detailed in Exhibit B to the prosecution summary.

10To say the least during such period Ms Men Tran can only be described as a very active seller or dealer.  Again, as detailed by her counsel, there is some 87 transactions in that period.  The amount, which in total is summarised and for which the prisoner pleads guilty, is 84 ounces trafficked, being 2813 grams.

11It should be pointed out that the level under the Act for a large commercial quantity is 1 kilogram pursuant to Part 3 of Schedule 1 of the Act.  It is clear that the sales were conducted by Men Tran for the purpose of profit.  It was suggested by her counsel that there was very little benefit made by her.  I am unable to know whether that is true or not.

12Mr Halphen suggested that out of the total sales she only earned some $25,000 for herself.  It is particularly difficult when you work out the various 2 ounce lots.  If you do the maths, just the sales to the next persons in this organisation make up about, on my figures, $302,000 in sales, working out on 2 ounce lots at a sale of $7200.

13It could have been more or it could have been less, depending on how the drug was split.  Precisely how much Men Tran earned in regard to such sales when you take away what she had to pay for it, any other expenses, is again very difficult to be precise upon.

14However this is not a person who was dealing for a purpose of satisfying a habit.  She did not have such a habit.  The habit she was allegedly dealing to satisfy was one of gambling and it was alleged this is why she was involved in such serious criminality.

15A warrant was executed on the Richmond premises, and also on premises in Footscray on 9 October 2014, those premises being Gordon Street, Footscray.  Men Tran used those premises to cut and package.  At those premises was found a heroin press, which produces the various discs of heroin whereby it is sold, and electric mixers.

16Also as part of the process of observation and surveillance there were numerous recordings made between Men Tran and her customers which were recorded by the authorities.  On the day of which the warrant was executed at her home a cash sum of $11,500 was found.

17In so far as her assistants, her husband, Van Tran, and sister, Nhung Do were dealt with on 13 May of this year.  Van Tran pleaded guilty to traffic heroin simpliciter and was convicted and fined.  Her sister, Nhung Do, who had served a period of 217 days on remand, was fined $3000, without conviction.  The original plea of Men Tran was made at the committal on 14 May of 2015.

18In so far as the assessment of the objective criminality of this crime it must of course be seen at a very high level, not only by way of the amount but obviously given the circumstances surrounding such.  The consideration that one has to take into account in so far as offences of this kind are concerned was set out firstly by the Court of Appeal in the matter of R v Wilson & Ors [2012] VSCA 141 [21] where the following was said:

“In offending of this kind primacy must almost always be given to considerations of general and specific deterrence, protection of the community and denunciation of anti-social behaviour.”

19Then further at [26]:

“Trafficking in a large commercial quantity is an offence of utmost seriousness, as the maximum of life imprisonment unequivocally demonstrates”

20This is particularly so where you have deliberate and sustained offending in large quantities for profit.  It was just that kind of offending to which the quantity based sentencing regime is directed.  In regard to the quantity based regime imposed by Parliament, it is necessary to recall that where Parliament prescribes a maximum penalty of this type, as was said in Wilson, such shows unambiguously how seriously the community, through Parliament, views this particular crime.

21Indeed it is irrelevant what particular drug is involved.  The system essentially is quantity based and we have in regard to the criminal provisions in our State a quantity based sentencing regime.  I should point out that quantity as such has no arithmetical relationship to a sentence, but of course is a very significant matter in sentencing.

22Such regime was fully detailed by the Court of Appeal in R v Pidoto & O'Dea [2006] VSCA 185 [34], where four of the Appeal Court Justices noted that by such structure Parliament has adopted a hierarchy of seriousness defined by and only by the quantity of the drug of dependence that has been trafficked.

23Further in Pidoto & O'Dea at [62] the Court indicated the ultimate question for a sentencing Court to consider given such structure is not whether trafficking in one drug is to be viewed more seriously than trafficking in another, but what sentence should be imposed for the particular trafficking, bearing in mind the maximum penalty that may be imposed in dealing with the material involved.

24Ms Men Tran, as I have said, the maximum penalty in regard to your offence is one of utmost significance.  Further Nettle JA in R v D'Aloia [2006] VSCA 237 [56], set out the general approach for sentencing Judges. In that particular case he was dealing with MDMA, he said as follows:

“As far as the effects of MDMA are concerned the matter may still be approached on the basis that all of the drugs which are described have deleterious consequences of anti-social proportions, and that trafficking in any of them is therefore appropriate to be regarded as a serious criminal offence.”

25There is no doubt of course that your offence warrants a sentence of imprisonment.  On the plea on your behalf Mr Halphen realistically accepted that there was no argument with such proposition.  His submissions essentially involved the factors I should take into account in fixing both the head sentence and the minimum period you should serve before being eligible for parole.

26As to current sentencing range, to assist the Court, Mr Halphen gave the Court statistics.  I'm not too certain whether they were the up to date snapshot from which he quoted. I will quote from the latest snapshot which is No.163.  That of course indicates that you, Ms Tran, are somewhat unique, because people sentenced for this crime are almost exclusively male.

27The figures presented show a figure of 98.7.  In fact such criminality is so exclusively male there are no separate figures recorded in regard to women.  In the period analysed in such snapshot, from 2008/9 through to 2012/13, the median sentence for this offence was one of seven years with a median period of eligibility for parole being one of five years.

28It is clear that the range was obviously much broader than that given that I have referred only to the median sentence.  For example, as the head sentence the range went up to a period of 20 years.  It is important however when trying to assess current sentencing practice to remember the snapshots are, as the Court of Appeal says, just that, a snapshot.

29Such matters were considered by the Court of Appeal in R v Hasan [2010] VSCA 352 [43] to [54], under the topic "Consistency of Sentencing" there are a series of matters which are detailed which a Judge should consider in seeking to ascertain the appropriate sentence in a particular case, and by way of assessing the objective gravity of the particular offence.

30At [54] the Court said:

“The principles to which a sentencing judge must have regard include those laid down by the relevant legislation.  In Victoria the most important repository of sentencing principles is the Sentencing Act 1991 (Vic), in particular all of the provisions of s.5, in particular from sub-s.(2) through to (6). [Such] Act prescribes the matters to which a Court must have regard to when sentencing an offender. First amongst these is the maximum penalty prescribed for the offence. The second is current sentencing practice”

31In so far as to the issue of the objective assessment of this crime, given its totality, the period over which it took place, the degree of activity and the amount involved, I assess its objective criminality between mid and high on the scale of heinousness of such crime (see Ibbs).

32As to the plea conducted on behalf of Men Tran by Mr Halphen, Exhibit 1 was tendered, Mr Halpehn’s written submissions dated 18 August 2015.  I take into account and have read in particular the background factors that were detailed, not only in the report of Gina Cidoni psychologist, which is Exhibit 2, dated 16 July 2015, but particularly as detailed by Mr Halphen himself (Exhibit 1, pages 1-3).

33Those matters or background circumstances in fact started at p.1 and took the Court right through all of p.2 as to the particular circumstances, both in regard to her background, her migration to Australia in 2000 with her daughter by way of sponsorship, the fact that she has obtained permanent residency status and the birth of her further child in 2009.  It also stresses in particular that there are no illicit drug dependency issues.

34On page 3 is detailed the alleged personal pressures as at 2014, the amount of time that she was attending at the casino, the suggestion of debts being incurred, the borrowing of money to be able to continue gambling, the need to repay debts with high interest, and alleged threats made to her family.

35As I say, none of those factors provide any excuse for this criminality, but that is the explanation proffered.  It was, as I have already said, as to her role, suggested that she was simply one cog in the wheel.  Unfortunately for Men Tran she was a very important cog.  It was suggested that she was supplying street dealers.

36There is no doubt she was supplying.  Whether they in fact were pure street dealers or there was some further cutting down I am not sure.  However I have already detailed the numbers of delivery transactions, and in particular the sales which she was party to as detailed by her counsel, which are set out in the schedule to Exhibit A.

37I accept that the plea in this matter was made at the earliest of stages.  I accept such plea as amounting to genuine remorse and that it has utilitarian benefit.  We, as you may recall, adjourned this plea for particular reasons as the prosecutor was not happy with the assessment made by Ms Cidoni, as to Ms Tran’s intelligence quotient and its role so far as the submission made on the basis of R v Verdins [2007] VSCA 102.

38On 27 November 2015 the neuro-psychological report of Dr Christine Canti was tendered as Exhibit B.  Such report opined that the materials referred to by Ms Cidoni did not meet the criteria for intellectual disability.

39There was no dispute in regard to that assessment, and given Dr Canti’s qualifications there could not be.  Mr Halphen did not persist with the first three principles of Verdins, but relied on both the comments of Cidoni and of Dr Canti in so far at the issues of depression and anxiety and the difficulties that Ms Men Tran would suffer in prison.  I accept from a humane point of view the obvious difficulties that she will suffer from being separated from her family.

40One does as best one can, despite the seriousness of this crime, to be as merciful as possible in the circumstances, taking into account all factors.  The difficulty of course is the seriousness of this crime.  This is not an aggravating factor of her criminality because I have already assessed her criminality, but one notes, as I have said, that she is one member, albeit an important member, of this chain whereby heroin was coming from Sydney and ending up on the streets of Melbourne.

41It has been said on many occasions as to trafficking, that whatever role a party plays, especially when you get to this level, severe punishment must be metered out.  There is no reason why such a stand should not be effected in this instance, after taking account of all relevant particulars.  As I say, I take all such matters into account.

42Ms Men Tran, if you would stand up please?  In regard to the charge on this Indictment I sentence you to a period of imprisonment of seven years.  The period that you must serve before being eligible for parole is a period of five years.

43Pursuant to the provisions of s.18 of the Sentencing Act 1991 I declare that the 432 days that you have served on remand are declared as partial service of this sentence, and a declaration to that effect is to be recorded in the records of this Court.

44Pursuant to the provisions of s.6AAA of the Sentencing Act 1991, to the extent that I am able to comply with Parliament's wish that one provides an assessment of what would have been the result or what is the result of a person pleading guilty, that is what benefit do they achieve, the view of Parliament being that a statement as to what would have been the sentence otherwise, to the extent that I am able to comply with that I say that had you not pleaded guilty I would have sentenced you to a period of imprisonment by way of head sentence of eight years and six months with a minimum of six years and eight months.

45Madam Interpreter, it is important to point out to Men Tran that the sentence I have given her is seven years with a minimum period to serve of five, less the period that she has served already.  However had she not pleaded guilty the sentence she would have received is a period of eight years and six months with a minimum of six years and eight months.  So it is important to understand from her point of view what benefit there was in pleading guilty.

46Men Tran, it is not joyful for the Court to sentence a mother to this type of sentence.  However you have been involved in very serious criminality and there is no alternative unfortunately. One would hope that when you get out of gaol you will remember your obligation to your family and not be involved in criminality again.  Thank you, you can take the prisoner away.

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