Director of Public Prosecutions v Tran

[2013] VCC 2145

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

AT MELBOURNE
CRIMINAL JURISDICTION

TRAN CR -11-02082
NGUYEN CR -10-01955

DIRECTOR OF PUBLIC PROSECUTIONS

v

THI LOAN TRAN
VAN THEN NGUYEN

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	10 December 2013, 11 December 2013.
DATE OF SENTENCE:	11 December 2013
CASE MAY BE CITED AS:	DPP v TRAN & ANOR
MEDIUM NEUTRAL CITATION:	[2013] VCC 2145

EX TEMPORE REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW: Sentence, traffick in a large commercial quantity of heroin, 1.8kg heroin, 4 year delay, disparate sentences, general deterrence the primary consideration.

Cases cited: R v Andrew Arthars [2013] VSCA 258; R v Cockrell (2001) VSCA 239, R v Tiburcy & Ors [2006] VSCA 244, R v Verdins (2007)16 VR 269.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J Singh	Office of Public Prosecutions
For Accused TRAN	Mr J Saunders	Valos Black & Associates
For Accused NGUYEN	Mr R Edney	Robert Stary Lawyers

HIS HONOUR:

1

Thi Loan Tran and Van Then Nguyen, on 23 October 2013 you were found guilty by a jury of trafficking in a large commercial quantity of heroin over a period of approximately three months, between 22 January 2009 to

27 April 2009.

2A large commercial quantity of heroin consists of a kilo or greater, dilute.  Here the prosecution contend, and it was not disputed, the amount you trafficked over that period was in excess of one kilo but less than two kilos, being in the vicinity of roughly 1.8 kilo of heroin dilute. 

3Parliament has set a maximum penalty of life imprisonment thereby demonstrating Parliament's view of the gravity of this kind of offending. 

4

I do not intend to rehearse the facts upon which you were found guilty by the jury in these sentencing remarks in any detail.  I attach as an appendix to my reasons a copy of the most recent summary of prosecution opening in lieu. 

I will, however, from time to time address various aspects of your offending. 

5Thi Loan Tran, it is plain from the evidence which I heard over the course of the last of four trials, (three earlier trials being aborted through no fault of your own, nor of your co-accused, Mr Nguyen) which clearly demonstrates you brought your not inconsiderable skills as a business woman to your business of trafficking in heroin. 

6I advisedly say your business, for you were the principal, you were the directing mind, you were the one who organised the purchase of heroin for its later onsale.  You were responsible for directing the financing of that business.  You enlisted from time to time your daughter for that purpose and in particular Van Then Nguyen, who was your confidant.  He did as you bid.  He was fully appraised of your business because you told him from time to time what the state of the business transactions were.  He facilitated the financial arrangements and from time to time provided other necessary services as required by you. 

7Your trafficking in heroin as a business deserves the denunciation of this court.  It is an evil trade.  It is a trade which causes great hardship to those who become addicted to heroin, their families, their friends, and to society itself.  Every day these courts deal with people who commit offences in order to purchase heroin to satisfy their addiction. 

8General deterrence, that is deterring others who might be like minded to engage in this perfidious trade, is the primary consideration in sentencing the both of you.  Specific deterrence, that is deterring you from re-engaging in this trade upon your release is also a consideration in this case, though to a lesser degree in relation to you, Mr Nguyen. 

9

This case is noteworthy for the considerable delay for which has attended these proceedings.  Now in December 2013, I am to sentence you for an offence which occurred in early 2009.  In your case, Mrs Tran, a delay in excess of four and a half years, and in your case, Mr Nguyen, a delay of a little less than four and a half years.  That delay is through no fault of either of you.  In relation to you, Mrs Tran, you were arrested on 27 April 2009, the same date as the concluding period on the indictment.  In your case,

Mr Nguyen, you were arrested on 26 August 2009.

10It is necessary to set out a chronology of the history of this matter.  The matter proceeded by way of contested committal hearing on 24 and 25 August 2010.  Mrs Tran was presented on indictment for trial on 9 August 2011 in relation to an unrelated matter of conspiracy to import heroin.  That trial was discontinued two days later.  A second trial relating to another charge of conspiracy to import commenced on 22 August 2011.  On 19 September 2011, Mrs Tran was acquitted.  This third trial was then listed but the parties were not ready to proceed with the matter and it was further adjourned to 22 July 2013 and came before me. 

11Before me there have been four trials in relation to this one matter, again through no fault of either of you.  There has therefore been a very considerable delay and in addition you have both had to weather the lengthy process of repeated court appearances, which doubtless was an arduous experience for both of you.  Delay therefore in this case is a mitigating circumstance of considerable moment. 

12In R v Andrew Arthars 2013 VSCA 258, in a joint judgment of Redlich, Coghlan JJA  and T Forrest AJA, their Honours, at paragraph 25, observed,

"The justification for taking delay into account as a mitigating factor, rests upon the twin considerations of rehabilitation and fairness." 

13Chernov JA in Cockrell (2001) VSCA 239, in a statement subsequently affirmed in R v Tiburcy & Ors [2006] VSCA 244, expressed these principles,

"First and perhaps foremost, though there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation.  Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the manner has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her.  Further, as Vincent AJA has pointed out in Schwabegger, there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely process of the prosecution on the other, leading to a justified sense of unfairness in the offender." 

14Given in particular the lengthy delay since your respective arrests and your good behaviour during that period of time,  I assess Mrs Tran as having very good prospects of rehabilitation and you, Mr Nguyen, excellent prospects of rehabilitation.

15Turning from those matters to matters personal to both of you.  You, Mrs Tran, were born in Vietnam and obtained your Year 12.  You were an able student.  You are an intelligent woman, highly competent in business having run two businesses in Australia, prior to turning to trafficking in heroin.  You, Mr Nguyen, were educated only to Year 5.  Your childhood was a period of living in abject poverty.  You were conscripted as a soldier to fight in the war in Vietnam and upon the defeat of the South Vietnamese forces were persecuted, as were you and your family, Mrs Tran, your father having been an army officer. 

16In addition, both of you had to go through the harrowing experience of escaping from Vietnam by boat.  Mrs Tran in September 1980 finally succeeded in that exercise with some 60 other companions, travelling to Malaysia in a voyage that took some three weeks.  Mr Nguyen doing similar in the mid 1980s. 

17You both have an excellent work history throughout your lives.  You, Mrs Tran are now a 56 year old woman and you Mr Nguyen a 62 year old man.  I am satisfied that in relation to both of you in your family lives, as parents and grandparents, you have conducted yourselves with generosity and love for your family.  Other than this offending, you were each highly regarded in your community. 

18Unsurprisingly, Mr Nguyen, your work has been in unskilled labour.  You, unlike Mrs Tran, have learnt but basic English and unlike Mrs Tran, your IQ is at the lower end of the average range as assessed by Mr Patrick Newton psychologist.  These factors sit comfortably with your respective roles in this business of trafficking. You Mrs Tran being the principal and you Mr Nguyen a willing assistant to Mrs Tran.

19Mrs Tran had a gambling addiction throughout this three month period of offending.  The Crown case was, and I accept, Mrs Tran engaged in this offending in order to fund that addiction.  I have listened to the translations of conversations you were engaged in and I have observed you on CCTV footage on a trip to Star Casino in Sydney.  It would appear that your gambling addiction was a pleasurable one to you.  For you this business of trafficking in heroin was no different from any other business that you engaged in.  That you trafficked in heroin to finance your gambling addiction, in this particular case, is not in my view a mitigating circumstance.  It provides no excuse for your conduct, but some explanation for it. 

20

In this case, I have received a psychological report in relation to you, Mrs Tran from a Dr Catherine Li.  In that report dated 3 December 2013 which is based on consultations with you over a period from 9 October 2012 to

1 October 2013, she opines in the following way:  "Mrs Vo", which is another name that you have, "presents with recurrent symptoms of anxiety and a depressed mood, which included sadness, difficulties with sleep, agitation and anxiousness.  Her effect was consistent with her mood.  In addition she complains of difficulties with concentration and attention, being forgetful, feelings of helpless and worthlessness.  She reported passive suicidal ideation, without plan or intent.  She also reported feeling shameful.  Mrs Vo told me that her symptoms of depression and anxiety were precipitated by a marital breakdown in 2007, with Chung Ma Pham." 

21Later in her report there appears the following observations:  "Ms Vo reported that her symptoms of anxiety and depression have worsened since 2009 when she was arrested."  In relation to current illness, "Clinically Mrs Vo's symptoms are sufficiently severe to warrant the diagnosis of a major depressive disorder with prominent feature of anxiety, recurrent and pathological in remission.  Her symptoms are at a moderate level of clinical severity.  The degree of functional impairment is at the moderate level." 

22Whilst I have not had available to me any more recent report since your incarceration upon being found guilty on 23 October 2013, I am prepared in the circumstances of this case, given your longstanding major depressive disorder, to take that into account upon the basis that condition will mean your sentence will weigh more heavily on you than it would on a person in normal health. 

23Mr Saunders had sought also to rely on other aspects of Verdins, set out in paragraph 32, Sub-paras 3 and 6, which for reasons that appear in the discussion, I reject. 

24As is plain from what I have set out before, there is in my view, powerful reasons for a significantly disparate sentence being imposed on Mr Nguyen, to that imposed on Mrs Tran. 

25

In all the circumstances set out above, taking into account those matters, I sentence you, Thi Loan Tran, to a sentence of eight years imprisonment, and I set a minimum non-parole period of five and a half years imprisonment. 

I state that pre-sentence detention is 184 days.

26In relation to you, Van Then Nguyen, I sentence you to be imprisoned for a period of five and a half years, and I set a minimum non-parole period of three years and nine months.  Your pre-sentence detention is 49 days. 

27Yes, would you please remove Mrs Tran and Mr Nguyen. 

28May I thank all counsel for their assistance during the course of the trial and the pleas. 

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