Director of Public Prosecutions v Tran

[2014] VCC 1305

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

AT GEELONG
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL TRAN

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Geelong
DATE OF HEARING:	20 June 2014
DATE OF SENTENCE:	20 June 2014
CASE MAY BE CITED AS:	DPP v Tran
MEDIUM NEUTRAL CITATION:	[2014] VCC 1305

REASONS FOR SENTENCE
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Subject:  Trafficking in a drug of dependence, carrying on the business of being a dealer in firearms, handle stolen goods, theft, obtain property by deception, burglary, attempt to commit and indictable offence, possessing a drug of dependence.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 3 years and 6months, non-parole period 20 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B.D. Nibbs
For the Offender	Ms C. Dunn

HER HONOUR:

CHARGES 

1Michael Tran, you have pleaded guilty to two counts of trafficking in a drug of dependence, cannabis and methamphetamine.  One count of carrying on the business of being a dealer in firearms, other than Category A or B Longarms.  Four counts of handling stolen goods.  Five counts of theft.  Two counts of obtain property by deception.  One count of burglary.  One count of attempting to commit an indictable offence and two counts of possessing a drug of dependence.

2The maximum penalty for traffic in a drug of dependence is 15 years.

3The maximum penalty for carrying on the business of being a dealer in firearms, other than a Category A or B Longarm, is four years' imprisonment, or 240 penalty units.

4The maximum penalty for handling stolen goods is 15 years.  Maximum penalty for theft, obtaining property by deception and burglary is ten years.

5For attempting to commit an indictable offence is five years and for possessing a drug of dependence, it is one year.

CIRCUMSTANCES OF OFFENDING

6The drug and firearm offences were connected to an operation whereby police lawfully intercepted phone calls and messages coming to and from your mobile phone.  Covert police operative then arranged to purchase drugs and firearms from you. 

7Count 1 concerned your actions on the 28th of August 2012, when you sold two ounces of cannabis to a police operative.  Count 2 relates to the sale of methamphetamines, on five occasions. The smallest amount was 0.5 grams and the largest 6.5 grams.  In total you received the sum of $8,200 from these transactions.

8With respect to Charge 3, carrying on the business of dealing in firearms without a licence, and counts 4, 5, 6 and 10, of handling stolen goods; these charges involve you facilitating the purchases of firearms from four police covert operatives.

9Count 4 relates to your actions on 8 September 2012, arranging for the purchase of a .22 Bruno rifle with a high range scope.

10Count 5 relates to a .45 Webley Service Revolver.

11Count 6 to a .222 Sawn-off Bolt Action Rifle; and

12Count 10 to a Beretta handgun.

13Charge 7 of theft, relates to your actions in attending at your ex-de facto's property on 14 January 2013, and stealing numerous items including a coffee machine, laptop computers, jewellery, passports, cash, a power drill and chainsaw.  The value of the items was $23,000.

14Counts 8 and 9 are charges of obtaining property by deception.  They relate to your actions in selling the gold chain you obtained in the theft to Cash Converters, and a drill that you obtained in that theft to Cash Converters.

15Count 11 of theft relates to your actions when you attended at a building site on 14 March 2013, and stole scaffolding valued at $2,500.

16Charge 12 of burglary and 13 of theft concern your actions in attending at a warehouse in North Geelong and stealing assorted power tools and computer equipment valued at $13,000.

17Charges 14 and 15 of theft, concern your actions in gaining entry to a car and stealing a wallet containing credit cards and driver's licence.  You then gained entry to a truck and removed a bow and arrow, a Leatherman pocketknife and coins to the value of $1,100.

18Charge 16 relates to you using one of the stolen credit cards at Kmart and attempting to purchase a Sony PlayStation.  However, that was unsuccessful as you did not have a PIN number and it was at that stage the police attended the store and arrested you.

19Charge 17 relates to the fact that when you were arrested you were found to be in possession of MDMA and Count 18 relates to the fact that when the police searched your house, they found a vial of steroids.

PRIOR OFFENDING

20You have two prior court appearances.  On the 2nd of the 10th 2012 at Geelong Magistrates' Court you were convicted of make threat to kill and contravene a family violence intervention order and placed on a community corrections order.

On the 4th of the 12th 2013, you were convicted of possessing prohibited weapon and convicted and fined $600.

PRESENT SENTENCE

21Your present circumstances are that you are serving a sentence imposed by the Geelong Magistrates' Court on 1 May 2014.  The sentence was one of 16 months with a non-parole period of eight months.

22It was imposed for some 14 offences apparently committed around the same time as the offences I am now dealing with.

PERSONAL CIRCUMSTANCES

23Your personal circumstances were outlined to the court by your counsel and further details were contained in a report from Carla Lechner dated 26th of February 2014.

24You were born on 12 March 1987, shortly before your parents came to Australia from Vietnam, so you are 27 years old.  You had three brothers and one sister, but, unfortunately, one of your brothers, who had a history of mental illness, committed suicide earlier this year.

25You left school in Year 11 and commenced working at the markets and then as a scaffolder.  Not surprisingly, given the nature of your offending, you have a history of drug use from the age of 16.  You have used a number of different drugs.  The ones which played a role in your current offending are methamphetamine, and predominately, Xanax.

26You have a two year old son from a relationship with Pamela Burley.  You have not seen your son for some time due to the acrimonious ending of that relationship.  You are apparently in a relationship with another lady who has three children.

27In Ms Lechner's report, she noted your relatively short prior criminal history. She was of the opinion that your offending appeared to be precipitated by the relationship break-up with the mother of your son.  She reported that this resulted in your suffering from depression and anxiety and increased drug use as a form of self-medication.

28Ms Lechner described you as an “emotionally immature man who tended to be easily led by others”.  Most importantly, however, she reported that you had expressed regret and shame for your actions.  You had informed her that you would be able to live with your parents on your release and that you would seek employment in the scaffolding industry again.

DEFENCE SUBMISSIONS

29In his plea on your behalf, your counsel submitted that your offending was opportunistic, and that the offences were committed to feed your drug habit.

30In relation to the drugs and firearm offences, it was submitted that but for the undercover police operatives approaching you, there was a strong likelihood that you would not have committed the offences.  It was also submitted that only small quantities of drugs were involved and that there was no evidence of any sophistication in the trafficking process.

31In addition, that you did not profit from the trafficking, but received payment in kind.

32Your counsel relied on Ms Lechner's report with respect to your cognitive and emotional immaturity and vulnerability to the influence of others.  In addition, on her observation that you had acknowledged your role in the offending and did not attempt to shirk from responsibility and deeply regretted your involvement in these matters.

33In mitigating of your offending, your counsel relied on your plea of guilty and remorse.  It is submitted that you had reasonable prospects for rehabilitation, given your strong employment history, family support and remorse.

34Your counsel realistically noted that there was a clear nexus between rehabilitation and your ability to remain drug-free when you released from custody.  Your counsel also submitted that consideration should be given to the principle of totality, given that you are currently serving a sentence at the present time for offences which took place at much the same time as the ones I am concerned with.

PROSECUTION SUBMISSIONS

35The main concern mentioned by the prosecutor was with regard to the offences involving you selling guns to covert operatives.  It was submitted that both specific and, in particular, general deterrence, was important in relation to those offences.

SENTENCING REMARKS

36In sentencing you I have taken into account all the mitigating matters raised by your counsel.  I have given you a discount for your plea of guilty and I accept that you are genuinely remorseful.

37While given the nature of your drug habit, I have some reservations about your prospects of rehabilitation.  At the end of the day I accept that they are reasonable, given your relatively short history of prior offending and your good work history.

38In sentencing you I have also taken into account the principle of totality.

39I must, of course, balance these considerations with the need for both specific and general deterrence.  Drug use is a real problem in the community and general deterrence must be given considerable weight with reference to those offences.

40With respect to the handling of stolen goods, they are related to you facilitating the purchase of stolen firearms.  As the firearms were sold to covert operatives, they did not end up in the community.  However, it is a matter of concern that you had access to such weapons and that you were prepared to sell them on an unknown person's behalf.

41Taking all these matters into account I will sentence you as follows.  Would you please stand up.

42On Count 1 of trafficking cannabis, you are sentenced to six months' imprisonment.

43On Count 2 of trafficking methamphetamine, you are sentenced to 12 months' imprisonment.

44On Count 3 of carrying on the business of dealing of firearms without a licence, 12 months' imprisonment.

45On counts 4, 5, 6 and 10, of handling stolen goods.  Eighteen months on each charge.

46On Count 7 of theft, 12 months' imprisonment. 

47On counts 8 and 9, of obtain property by deception.  Three months on each charge.

48On Count 11 of theft, four months.

49On Count 12 of burglary, six months.

50On Count 13 for theft, six months.

51On counts 14 and 15 of theft, three months on each charge.

52On Count 16, attempting to commit an indictable offence, two months.

53On Count 17, possess a drug of dependence, one month.

54On Count 18, possess a drug of dependence, one month.

55The base sentence is the sentence of 18 months on Count 4.  I cumulate two months of the sentences on counts 1, 3, 7 and 12, on Count 4 and on each other.  I cumulate one month of the sentences on counts 8, 9, 11 and 15, on Count 4, and each other.

56I cumulate three months of the sentences on Counts 2, 5, 6 and 10, on Count 4, and each other.  That should result in a sentence of three years and six months. 

57I fix a non-parole period of 20 months.  But for your plea of guilty, you would have been sentenced to five years' and six months' with a non-parole period of two years' and nine months'.  You may take a seat.

58If anyone has a calculator, you should check the calculations because of the number of charges, but we have checked them.

59MR NIBBS:  I think from my perspective, Your Honour, I'd need to see the ultimate order once it's given simply because there were so many that was given so quickly I'm not sure if I've got them down all right.

60HER HONOUR:  All right.  What we will do is - what time does the bus leave?

61PRISON OFFICER:  Some time this afternoon, Your Honour.

62HER HONOUR:  In that case he can be placed back in custody and we will just check that those orders are all correct before he goes back and if there is any need to amend them, we can amend them.

63I have also made the forfeiture order requested by the prosecution and I have made the 464ZF which was consented to.

64In relation to the fixing of the non-parole period, it appears that he has ‑ ‑ ‑ 

65MR NIBBS:  Expired.

66HER HONOUR:  Yes.  So I believe that that is appropriate.  He has already served pre-sentence detention has eaten up the non-parole period, is that correct?

67MR NIBBS:  Well, the 182 days is six months and I can't remember when - I had the extracts when he was sentenced.  No, I think there's a slight bit of the parole would be left.  He was sentenced on 1 May.  He had a non-parole period of eight months.  There was 182 days of PSD, so that would take it to two months to continue all of May and then it's now what, 20 June, so I think that he would have been eligible for parole in about a week.

68HER HONOUR:  I think what we need to do is get that confirmed so that we've got the right dates in terms of the parole, because we don't want there to be any errors, so perhaps we will stand the matter down and during that period the figures can be checked and we can make sure the situation is correct with respect to parole because the issue as to whether I have to fix a new parole period.

69MR NIBBS:  Correct.

70HER HONOUR:  We will see if we can sort those technical matters out and I will come back on the Bench when necessary.

71(Short adjournment.)

72HER HONOUR:  Yes, have you satisfied yourselves that the situation with the pre-sentence detention, parole, et cetera, is such that the sentence is appropriate?

73MR NIBBS:  Yes, Your Honour.

74HER HONOUR:  Yes, defence as well?

75MS DUNN:  Yes, Your Honour.

76HER HONOUR:  In that case, Mr Tran can be taken downstairs, thank you.

77(Offender removed.)

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