Director of Public Prosecutions v Tran

[2015] VCC 30

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01891

DIRECTOR OF PUBLIC PROSECUTIONS

v

PHUONG THAO TRAN

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January 2015
DATE OF SENTENCE:	28 January 2015
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2015] VCC 30

REASONS FOR SENTENCE
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Subject:Plea – sentencing

Catchwords:             Trafficking in a drug of dependence

Legislation Cited:     Sentencing Act 1991, Criminal Procedure Act 2009

Cases Cited:

Sentence:2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough	Office of Public Prosecutions
For the Accused	Mr A.D. Robertson	Defteros Lawyers

HIS HONOUR: 

1Ms Tran, you have pleaded guilty to one charge of trafficking in a drug of dependence.  This offence carries a maximum penalty of 15 years' imprisonment. 

2You also have a transferred summary charge pending, Charge 3, of dealing with property suspected of being the proceeds of crime.  I will deal with that charge at the end of the sentence. 

3You are now aged 34 years, having been born on 25 October 1980, and you were aged 32 at the time of offending. 

4You have no previous criminal history. 

5The circumstances of your offending are as follows. 

6On 27 May 2013 you were the lessee of premises in Ashton Avenue, St Albans. 

7On that day police attended those premises, looking for another person who did not have a valid visa to remain in Australia. 

8After being admitted inside the premises a search revealed a significant amount of cannabis in one of the bedrooms.  On the floor in that room were two vacuum sealing machines together with a charcoal filter.  Silver ducting extended from the top of the filter to an open cupboard door and to the roof plaster.  Cannabis was found in a plastic bag behind the charcoal filter and further bags were found in a cupboard.

9A further search revealed numerous space bags, oven bags and other storage boxes or bags. 

10Two of the three bedrooms in the house had no furniture, clothing or personal items. 

11The cannabis was analysed and is accepted as amounting to 25.81 kg.

12You were arrested and participated in a record of interview.  You made no admissions in the interview. 

13The matter proceeded to a contested committal and was listed for trial yesterday when this matter then resolved to a plea of guilty.  Previously there had been a prospective pre-trial issue concerning the legality of the police search.

14I now turn to your personal circumstances. 

15You were born in Vietnam and your parents still reside there.  You left school at 18 and travelled to Australia on a student visa to study English.  You studied in Sydney for two years and you are competent with conversational English. 

16Whilst in Sydney you married a Vietnamese man 17 years your senior.  There were no children to the marriage, which ended after two years in the context of his alleged infidelity.  When you discovered that your former husband had a child by another woman it broke your heart. 

17You re-partnered, lived in Queensland and had three children.  That partnership has also failed.

18In January 2013 you travelled to Melbourne.  You felt you needed a new start in the context of your partner seeking to control your life and your feelings that you felt mentally unable to care for the children. 

19Your former partner originally had custody of the three older children.  Your fourth child was born well after your separation and is the result of an allegedly forced conception when you visited the other children.  Subsequently your former partner has returned to Vietnam with his new partner and you are the sole carer of the four children.

20You have said that you have been very depressed for many years. 

21You spent 179 days in custody on remand following your arrest, but were granted bail on 25 November 2013. 

22Psychological reports tendered on your plea both confirm that you suffer from longstanding depression following your arrival in Australia as a vulnerable 19-year-old and two failed partnerships.  At times you have expressed suicidal thoughts. 

23Your counsel has submitted that in all the circumstances the purpose or purposes for which a sentence is imposed can  be achieved by a sentence that does not involve your further confinement in prison.  The prosecution accepts that submission in the context of a suitably directed Community Correction Order.  You have been assessed and found suitable for such an order.

24The quantity of cannabis seized was high and amounts to a serious example of possession.  Ordinarily an offender in such circumstances should expect an immediate term of imprisonment and for a substantial term.  Principles of specific and general deterrence are of particular importance.  However, in sentencing I must have regard to a range of matters including, as well as the seriousness of the offence and your culpability for it, your personal circumstances.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.

25In mitigation I accept the matters urged on your behalf by your counsel, including:

·   your plea of guilty,

·   the fact that you have already served 179 days in remand prison,

·   your psychological condition,

·   your lack of previous offending,

·   your circumstances of being required to care for your four children, including a four-month-old baby,

·   your lack of any known history of illicit drug use, and

·   your prospects of rehabilitation, which I regard as being good provided you take the opportunity of conscientiously applying yourself to the programs and conditions of the Community Correction Order.

26On balance, in the particular circumstances of this case I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your further confinement in prison.  You have already served one day short of six months in remand custody.  In my view you will benefit from the availability of appropriate programs in an atmosphere which is more conducive to your rehabilitation than if you were confined to a further period of imprisonment.

27In light of the particular extenuating circumstances of this case, a Community Correction Order would fall within the appropriate sentencing range and, as I have said, you have been assessed as suitable for such disposition. 

28On Charge 1 of trafficking in a drug of dependence you are convicted and ordered to serve a Community Correction Order for a period of two years. 

29The Community Correction Order commences today and ends on 27 January 2017.  The Corrections centre you will attend is the Sunshine Community Correctional Services at 10 Foundry Road, Sunshine, and you must attend there within two clear working days after the commencement of the order, that is by 4 pm this Friday, 30 January 2015.

30All the mandatory terms of the Community Correction Order apply, and the additional conditions I impose are that:

·   you be under the supervision of a community corrections officer,

·   you perform 100 hours of unpaid community work as directed by the regional manager, and

·   you undergo mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility.

31I will now explain the mandatory terms of the Community Correction Order.  The mandatory terms are that:

·   you must not commit another offence for which you could be imprisoned during the time that the order is in force; 

·   you must report to and receive visits from a community corrections officer; 

·   you must report to the community corrections centre, that is the Sunshine centre, within two clear working days of the order, and as I have already indicated, that is the starting date of this Friday, 30 January 2015;

·   you must notify a community corrections officer of any change of address or employment within two clear working days after the change;

·   you must not leave Victoria without first getting permission to do so from a community corrections officer; and

·   you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.

32Do you understand and agree to those conditions, Ms Tran?

33OFFENDER:  Yes.

34HIS HONOUR:   You will be given a form which you will have signed which will set out all of those in writing, which you should keep so you will understand what the conditions are.

35OFFENDER:  Yes.

36HIS HONOUR:  Do you understand that?

37OFFENDER:  Yes, I understand, Your Honour.

38HIS HONOUR:  One of the conditions is that you be under the supervision of a community corrections officer.  That officer will supervise you to make sure that you are able and are performing the various conditions that are necessary under the order. 

39If you get sick or if there are exceptional circumstances the order may be suspended for a period of time.  If your circumstances materially alter or change you may apply for a variation or cancellation of the order. In either case you must notify the Sunshine Community Corrections Centre and I recommend that you obtain legal advice if any of these things happen.  The important thing is that you communicate with people.  If you are having problems or difficulties, talk to them so that they can help you.  Do not just ignore it.

40OFFENDER:  Yes.

41HIS HONOUR:  I warn you that if you breach any condition of this order you will be brought back before court, and that will be before me.

42OFFENDER:  Yes.

43HIS HONOUR:  One of the options open to me is to cancel the Community Correction Order and re-sentence you on this charge, and I may also deal with you for any breach by sending you to prison for up to three months, simply on the breach.  So you understand the consequences of breaching a Community Correction Order?

44OFFENDER:  Yes, I understand.

45HIS HONOUR:  I will ask you to sign that Community Correction Order shortly.  You may remain seated for the time being. 

46At the plea hearing the prosecution sought an order for the taking of a forensic sample to which you consented, and I have made that order today for the reasons noted on the order, namely, that the seriousness of the circumstances of the offending warrants the order, the order is by consent and the granting of the order is in the public interest.  I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then police may use reasonable force to enable that forensic procedure to be conducted.

47The prosecution also sought a disposal order for the items seized by police.  Again, you have consented to the making of this order and I have made that order today. 

48As to the matter of the transferred summary charge, Charge 3, of dealing with property suspected of being the proceeds of crime, the prosecution now seeks to have that charge returned to the Melbourne Magistrates' Court. In my view this course is appropriate, and pursuant to s.242(5) of the Criminal Procedure Act I transfer the proceeding for Charge 3 back to the Magistrates' Court for hearing and determination.  The matter will be listed for mention at the Melbourne Magistrates' Court on 18 February 2015 at 10 am.

49Ms Tran, your bail is extended on the same terms and conditions to appear at the Melbourne Magistrates' Court  for the mention on 18 February 2015 at 10 am.  I ask that the practitioners for Ms Tran make sure that she clearly understands that requirement that bail is extended to that date at 10 am at the Melbourne Magistrates' Court where it should be listed for mention.

50If there are no further matters, this matter concludes, but the form has to be signed now and I will just get that handed to your instructing solicitor, who can take it down to you for signature, and when that is done I will countersign it.  Was there something else, Mr Goodenough?

51MR GOODENOUGH:  Your Honour, 6AAA of the Sentencing Act.

52HIS HONOUR:  I do not need to because she has not been sentenced to a term of imprisonment.

53(Order signed and acknowledged.)

54MR ROBERTSON:  Your Honour, on the conditions of bail she apparently reports twice a week.

55HIS HONOUR:  She does not need to do that, but the fact is it is only for a short time and if it is changed there has to be a whole procedure of going down to the Registry and doing all that, so it is probably just easier to leave it as it is at the moment, same terms and conditions.

56Ms Tran, this order in part is designed very much to help you.  I am very much aware that life is not easy for you: you have the four children, you are effectively on your own and it is going to be difficult.  You have some issues psychologically with depression, and what this order is going to do is enable you to get the assistance that you need to help you.  Do you understand that?

57OFFENDER:  Yes, I understand.

58HIS HONOUR:  Use that resource, use that facility, and you will find that you will be able to cope a lot better and you will have people you can speak to if you find yourself getting into difficult troubles.  But do not think getting involved with drugs is a way of getting out of your problems.  It is going to make a big mess of your life if you get back into that game again.

59OFFENDER:  Yes.

60HIS HONOUR:  Let us hope you do not breach that and you do not come back before me.  Can I just thank all the practitioners in this matter for the way in which this matter has resolved, which seemed to be a very sensible process.  Thank you both.

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