Director of Public Prosecutions v Tran and Ho
[2020] VCC 536
•29 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-00282
CR 18-00280
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HOANG TRAN TU HO |
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| JUDGE: | HIS HONOUR JUDGE STUART |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 August 2019, 17 December 2019, 14 February 2020, 16-17 April 2020, 21 April 2020, 23 April 2020 |
| DATE OF SENTENCE: | 29 April 2020 |
| CASE MAY BE CITED AS: | DPP v Tran & Ho |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 536 |
EX TEMPORE REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Attempt to possess a commercial quantity of an unlawfully imported border controlled drug; methylamphetamine
Legislation Cited: Criminal Code 1995 (Cth) s. 11.1(1) and s. 307.5(1)
Cases Cited:Adams v The Queen (2008) 234 CLR 143; Nguyen v The Queen & Ors (2011) 31 VR 673; An Ken Vi & Ors v Director of Public Prosecutions (Cth) [2017] VSCA 254; Frank Blango v The Queen [2018] VSCA 210; Dmitri Shakhanov v The Queen [2019] VSCA 38; Lieu v The Queen [2016] VSCA 277; R v Yuan [2015] NSWCCA 198; Director of Public Prosecutions (Cth) v Maxwell (2013) 228 A Crim R 218; Azzopardi v The Queen & Ors (2011) 35 VR 43; Kuo v The Queen & Ors [2018] NSWCCA 270
Sentence:23 years’ and six months’ imprisonment, 15 years’ and six months’ minimum non-parole period; six years’ and three months’ imprisonment, three years’ and nine months’ minimum non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Mr A. Sim with Mr A. Albore | Mr P. Darby |
| For Accused Tran | Ms S. Seoud | Ms. S. Vardy |
| For Accused Ho | Ms J. Munster | Ms S. Crowe |
HIS HONOUR:
THE CHARGES
1Hoang Ngoc Tran, you have pleaded guilty to one charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug. That offence occurred between 28 March 2017 and 29 March 2017. That offence carries with it a maximum penalty of life imprisonment, the highest sentence the Commonwealth Parliament has set.
2Ngoc Tu Ho, you have also pleaded guilty to one charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug alleged to have occurred between 28 March 2017 and 29 March 2017. For reasons which I will come to, I am not satisfied beyond reasonable doubt that your criminal conduct commenced on 28 March 2017 but rather on 29 March 2017.
3You, Mr Tran, were arraigned and pleaded guilty to that charge on 25 January 2019 and you, Mr Ho, pleaded guilty to that charge on 21 February 2019. A co-accused Tien Anh Ngo was also charged with that offence but was found not guilty after a trial on 20 March 2019.
4To be guilty of the offence in question I must be satisfied that you either had knowledge or were reckless as to the substance that you attempted to possess, being a border controlled drug. In both your cases, for reasons which I will come to, I am satisfied that that fault element is established by knowledge that the materials that you attempted to obtain were a border controlled drug. I turn to the circumstances of the offending and rely heavily upon the summary of prosecution opening for plea for this purpose.
CIRCUMSTANCE OF THE OFFENDING
5On 1 March 2017, Australia Trade and Shipping Pty Ltd, a company that provides import and export shipping services from Australia to China, received notification from a company named K&L Trading Pty Ltd that an importation comprising two shipping containers was due to be imported into Australia. On 18 March 2017, two shipping containers addressed to K&L Trading Pty Ltd of 93 East Derrimut Crescent, Victoria arrived in Melbourne. Four invoices were subsequently issued to that company by Australian Trade and Shipping Pty Ltd for the shipping costs of the two containers. Between 17 and 18 March 2017 you, Mr Tran, paid these costs in cash at the Commonwealth Bank Sunshine and Highpoint branches.
PREPARATION FOR RECEIPT OF IMPORTATION
6What then followed was the preparation for the receipt of those two imported containers. At 3.51 pm on 21 March 2017, Mr Ngo, who, as I have said, was found not guilty of the same charge, attended at Bunnings, Sunshine and purchased a number of Makita brand cutting discs. On that same day you, Mr Tran, contacted KADS Plant Hire to hire a forklift for four days. You identified yourself as Hong and gave the phone number of 0432 210 170. You hired a forklift on behalf of the company K&L Trading and paid $500, again in cash. You also gave Mr Ngo's phone number, 0411 843 589, as a contact for hiring the forklift. The hire arrangement was for four days from 22 March 2017.
7Between 22 and 24 March 2017, a person identifying themselves as ‘John Chan’ called Jeffrey Shaw at Australia Trade and Shipping Pty Ltd and enquired about the delivery of importation SIG1702J024A. This person, ‘Mr Chan’, was told that the two containers were on ‘border hold’ and were likely being x-rayed. On 24 March 2017, Jeffrey Shaw emailed ‘John Chan’ to advise that Customs had withdrawn the ‘clear’ status on that shipment. On 27 March 2017, he again emailed ‘John Chan’ to advise that that shipment had been cleared by Customs and delivery would likely be between 11 am and midday on 28 March 2017. On 27 March 2017, ‘John Chan’ emailed Jeffrey Shaw and provided a mobile number 0411 116 938, a mobile number associated with you, Mr Tran, for a person named ‘Hong’ whom he said would be at the factory for delivery at 11 am the following day. At 10.12 pm ‘John Chan’ emailed to provide another number for Hong, being 0402 930 603.
DECONSTRUCTION AND FORENSIC ANALYSIS
8In the interim period on 23 March 2017, the two containers from that importation were inspected by Australia Border Force officers. One of the shipping containers was red and the other blue. Each shipping container contained 50 steel gates. X-ray of container SGCU2205902 revealed that 10 of the gates, all of which were red, contained anomalies within their structure. Further examination revealed that each red gate contained a number of packages concealed within its panels. In total, 301 foil packages were removed from inside steel panels on the left and right hand side of each of the 10 gates. Each package had an outer foil bag that contained two clear clip seal bags, one inside the other, of methylamphetamine, or as it is better known, Ice. Subsequent formal forensic analysis of the contents of the 301 foil bags revealed that they contained no less than 229.6 kilograms of pure methylamphetamine. The gross quantity was 301.6 kilograms.
RECONSTRUCTION AND CONTROLLED DELIVERY
9On 26 March 2017, the steel gates were replaced inside the two containers for the purpose of conducting a controlled delivery. An inert substance had been put inside the panels of each of the 10 red metal gates that had originally contained drugs, and these were placed inside the same container, SGCU2205902.
10Two days later at 12.03 pm on 28 March 2017, two undercover police operatives purporting to be delivery drivers arrived at K&L Trading Pty Ltd at the address 93 East Derrimut Crescent with both the shipping containers SEGU1281597 and SGCU2205902. This controlled delivery was video recorded on body camera footage by one of those officers.
11Upon arrival Mr Ngo was sitting in the front courtyard of the premises in a silver Toyota Camry, registration number 1BV1HL. You, Mr Tran, were sitting on the forklift that you had hired, to the right of the factory roller door. You, Mr Tran, and Mr Ngo assisted the undercover officers unloading the shipping containers from the truck and also assisted the undercover officer in cutting a small pin from a container joiner. To cut this small pin you and Mr Ngo used the Makita brand green coloured angle grinder, which appeared to be new, and a crowbar. You, Mr Tran, subsequently signed three delivery documents for the two shipping containers, using the name ‘Adam’.
12At 12.48 pm you, Mr Tran, and Mr Ngo departed the factory in that Camry vehicle and travelled to 103 Whitesides Avenue, Sunshine where the two of you, together with you, Mr Ho, had been living. Mr Ngo left the premises in the Camry at 1.25 pm and travelled to another address in Mulhall Drive, St Albans, where he collected some mail from the mailbox. He then returned to the Derrimut factory at around 2.18 pm in the company of you, Mr Ho. A short time later you, Mr Tran, also returned to that factory.
UNLOADING THE CONTENTS OF THE SHIPPING CONTAINERS
13The factory itself is a very large factory which has a forecourt and a roller door to its right. An audio-visual CCTV was later installed in that factory, which permitted observation of some of the activities on 28 March 2017 and 29 March 2017.
14On 28 March 2017 at 2.58 pm you, Mr Tran, using the phone number 0411 116 938, sent a message to your mobile phone, Mr Ho, being 0411 698 483, which read, 'Inside the green / blue gate'.
15Between 3.30 pm and 4.20 pm you, Mr Tran, were observed inside the Derrimut factory assisting both Mr Ngo and Mr Ho to open the container SGCU2205902, with you, Mr Tran, departing the factory at 4.20 pm in a silver Mazda sedan, registration UEB381. Between 4.26 pm and 4.40 pm you, Mr Ho, together with Mr Ngo, removed the gates from container SGCU2205902. Mr Ngo was the person who operated the forklift whilst you, Mr Ho, assisted him on the floor.
16At 5.18 pm you, Mr Tran, received a call on mobile 0411 116 938 from an unknown number and the following was discussed. You are the receiver as described in this telephone call:
'Caller: Hello.
Receiver: Hello young bro.
Caller: I am down here, I (inaudible)
Receiver: I've known, just take, take photos, take photos of all that you see not, not normal.
Caller: OK.
Receiver: I, I say this, when talking on the phone or taking photos, don't let pe, people outside see, see.
Caller: OK.
Receiver: I say this, I've meant, that box, that box is the second box? Not the first box, is it?
Caller: Umm, yeah the second box.
Receiver: The second box. Um, the, the, the second cord in, in, inside. We haven't moved to the spot, is that correct?
Caller: Not yet.
Receiver: Um, um, yes, see, see, see inside. Maybe it inside, not outside.
Caller: Yes, yes, OK.
Receiver: Yes, yes but looking through that hole, seen anything?
Caller: I, inside very dark, I haven't shone the torch. Let me see.
Receiver: No, no. That's fine. In brief, see anything not normal then take photos. Take photos near then far. As soon as, being opened, take photos right away. Take photos of all, keep all. Any matter talk tonight, OK. Don't call anymore.
Caller: OK.
Receiver: Delete the numbers yeah.
Caller: Yes, yes.
Receiver: OK.'
17Between 6.25 pm and 8.15 pm you, Mr Ho, together with Mr Ngo, continued to remove the gates from the shipping container. The surveillance device, which I've already referred to, inside the factory and police surveillance shows the following:
a) At 6.25 pm Mr Ngo removed the green metal gates using a forklift. You, Mr Ho, assisted him on foot;
b) At 6.28 pm you, Mr Ho, walked inside the warehouse of 93 East Derrimut Crescent and appeared to be carrying electrical extension leads and an angle grinder;
c) At 7.18 pm you, Mr Ho, together with Mr Ngo, removed gates from the shipping container, with Mr Ngo continuing to use the forklift whilst you assisted on foot;
d) At 7.29 pm you, Mr Ho, and Mr Ngo placed the blue and red gates on the factory floor;
e) At 7.39 the two of you moved the blue gates to the opposite end of the factory; and
f) At 8.12 pm you, Mr Ho, handled the cutting disc tool.
18Finally, at 8.30 pm, you, Mr Ho, and Mr Ngo left the Derrimut factory driving the Camry and travelled to 103 Whitesides Avenue, Sunshine, where you there remained.
19The course of the travel of this Camry is recorded on maps which became Exhibit 16 on the trial of Mr Ngo and it became Exhibit 5 on the plea. Aside from one small deviation off Mt Derrimut Road, the travel of the Camry between the factory and where you were living was a direct one, a matter which I will return to shortly.
REMOVAL OF THE PACKAGED FROM INSIDE THE STEEL GATES
20The following day, on 29 March 2017 at 7.30 am, the three of you arrived at the Derrimut factory. Between 7.48 am and 8.52 am video surveillance footage from the surveillance device placed inside the factory shows the three of you using the forklift to remove the gates from the two shipping containers. The three of you then accessed the inert substance secreted within the 10 red gates and were observed moving a red gate to the opposite part of the factory.
21Shortly after, at 7.57 am, you, Mr Tran, left the factory in the Mazda vehicle that you had earlier been driving. At 8.40 am you, Mr Tran, using mobile, 0411 116 938, sent four text messages to Mr Ngo's mobile phone, 0411 843 589. The first from you read: 'you two take the goods out of the blue/green container/gate'. The second text from you, Mr Tran, read: 'Do it with extra care to avoid the body being pressed down', to which there was a response from Mr Ngo’s mobile phone number: 'Ok'. The third text from you, Mr Tran, read: 'that one just leave there', and a fourth: 'I'm waiting for the response', to which there was a text from Mr Ngo's mobile number: 'Ok'.
22At 9.40 am that morning you, Mr Tran, returned to the Derrimut factory in the Mazda and again it departed at 10.55 am.
RECORDING AND COUNTING OF PACKAGES OF INERT SUBSTANCES
23On 29 March at 11.02 am you, Mr Tran, using your mobile number 0411 116 938, called Mr Ngo and instructed him to ensure that all the materials were counted correctly and to tell Mr Ho to recount correctly. That conversation was as follows:
'TRAN: Allo Bro
NGO: Hello
TRAN: um, no counted again enough?
NGO: I am counting
TRAN: after counting…
NGO yeah
TRAN the amount should be correct. After counting, you, you because ah, the forklift will be returned this afternoon, then pull, try to pull, pull out and put in order there
NGO: yeah
TRAN: pull, pull out there, then shut the door and go home. Tell TU to recount carefully
NGO: Take that home or leave here?
TRAN: leave, leave, leave the whole lots there. Don’t take home any
NGO: ok’
24The reference to Tu is a reference to you, Mr Ho.
25Four minutes later you, Mr Tran, again called Mr Ngo and ask to speak with Mr Ho, referring to ‘Tu'. You told Mr Ho to record everything correctly and leave 21 aside with a number 21 recorded. That exchange was as follows:
'TRAN: Let me talk with TU
NGO: Huh?
TRAN: Where TU?
NGO: calls out – hmm, TU.
HO: Hello
TRAN: enough after being counted again?
HO: Hello
TRAN: after being counted again, enough?
HO: I am counting now
TRAN: after finishing each count, record it correctly, take your time to do, no worry
HO: Yes, OK
TRAN: Record it, and about the number 21, leave number 21 a box separately
HO: ok ok like that yeah?'
26Six minutes later at 11.12 am you, Mr Tran, again called Mr Ho to enquire about the progress of counting and instructed him to leave the items in the toilet, saying:
'TRAN: Hello
HO: not yet, not yet, I haven’t finished counting.
TRAN: um… after the counting done maybe
HO: you wait a little while, yes?
TRAN: after the counting done, leave then in the toilet, then you two go open that then go home'
27Shortly thereafter at 11.20 am you, Mr Tran, again call Mr Ho and on this occasion ask him to leave aside 50 in a box, saying:
‘TRAN: Tu. Okay yeah?
HO: Yes, ive been counting to the last one.
TRAN: leave it 50 separately, one 50, 50 a box leave it aside, because someone may come to take 50
HO: Ok
TRAN: Ok, ok, count correct then message me, ok?'
28At 11.25 am Mr Ngo called you, Mr Tran, and advised you that everything counted was accurate. At 11.27 am you, Mr Tran, sent a text message to Mr Ngo's mobile number asking if they had been counted correctly and Mr Ngo responded, 'Finished/done'. At 11.28 am you, Mr Tran, sent a message to Mr Ngo, 'try to look outside the frames to see if they been dropped or fallen out or not'. Mr Ngo responded, 'ok'.
29Thus, by this stage the counting process had been completed and all packages were present. You, Mr Tran, had directed that the two separate boxes, one containing 21 packages and the other 50, be set aside from the rest of the packages. Interestingly, the odd number of 301 packages is nonetheless accounted for, with one of the boxes to be set aside containing 71 packages. This of course left the remaining 230 packages undivided.
30Between 11.33 am and 11.39 am you, Mr Tran, communicated with Mr Ngo, further discussing how Mr Ngo should wait to pour water onto 'the machine', look again if any are short, and not touch the 'black object'. You confirmed with Mr Ngo, 'Short now means short of two pieces, correct?' and told Mr Ngo, 'Look for, try to find them for me'.
31At 11.41 am you, Mr Tran, again called Mr Ngo to confirm that Mr Ngo had searched to see if any of the packages have dropped somewhere, saying:
'NGO: Hello
TRAN: Seen them?
NGO: No, No
TRAN: seen none, true
NGO: Yeah, true
TRAN: having searched all the boxes that have been opened and still seen none?
NGO: yeah, the other side correct, this side, have begun to find one, two pieces
TRAN: try to search again if dropped somewhere nearby
NGO: Yeah'
32This conversation suggests that there were still two packages missing, contrary to what appears to be assurances given to you, Mr Tran, that there had been a full accounting of the packages. What then occurred was the transportation of the substituted material to your residential address at 103 Whitesides Avenue.
TRANSPORT OF SUBSTITUED MATERIAL TO 103 WHITESIDES AVENUE
33Between 11.30 am and 12.30 pm you, Mr Tran, instructed Mr Ngo and Mr Ho to:
a) Reverse a vehicle into the factory;
b) Load up the vehicle with the substituted packages in the boot of the car;
c) Drive home and ensure that nobody is following the two of you when you are driving; and
d) Drive straight into the garage and to delete all messages from you.
34At 11.44 am you, Mr Tran, called Mr Ngo and had the following conversation:
‘NGO: Hello em
TRAN: found nothing?
NGO: No
TRAN: seen nothing at all?
NGO: seen nothing at all, checked thoroughly
TRAN: you now, reverse the car back in OK? Leave all there, reverse the car, then put… hey….listen carefully
NGO – put in what
TRAN put into the car, put in the boot, move the car back in, move closest to the wall. Don’t let anyone see. Put in the car then drive home and park in the park in front of the house. Park a bit further away from home. Don’t park too close to the house.
NGO at the park in front of our house?
TRAN: Yes, park farther up…. Or park on Mr Con’s street
NGO: yeah park, uh the dead end street that turns into the other road.
TRAN: that’s okay, do it quickly and close the door
TRAN: put them all in the car’
35At 11.47 am Mr Ngo is seen reversing the Camry into the Derrimut factory. He and you, Mr Ho, subsequently load the packages containing substituted material into that vehicle. At 11.51 am you, Mr Tran, called Mr Ngo and confirmed the stuff had been loaded into the car and you, Mr Tran, advised him to drive the car “carefully”. At 11.56 am you, Mr Ho with Ngo, were observed placing a number of flat packing boxes into the vehicle.
36At 12 pm you, Mr Tran, sent a text message to Mr Ngo instructing him to park the car in front of the house and to delete all messages from you. At 12.03 pm, Mr Ngo drove the Camry out of the factory with you, Mr Ho, in the front passenger seat, perched, as it were, on some of the packages or box containing some of the packages. At 12.07 pm you, Mr Tran, asked Mr Ngo, 'returned yet?', to which he responded, 'driving still on the way'. At 12.08 pm, you, Mr Tran, again messaged Mr Ngo and told him, 'tell Tien to drive carefully’ and ‘observe if anyone is following behind'. Mr Ngo responded: 'ok'. At 12.15 pm you, Mr Tran, again messaged Mr Ngo asking, 'returned yet' and 'where are you right now on the road?', to which Mr Ngo responded, 'arrived at the railway'.
37It appears, in fact, that whilst Mr Ngo was driving it was you, Mr Ho, who was texting back to Mr Tran.
ARRIVAL AT 103 WHITESIDES AVENUE
38At 12.16 pm you, Mr Tran, again sent a message to Mr Ngo's mobile, 'tell Tien to drive straight into the Garage'. Three minutes later at 12.19 pm, the car arrived at the home they shared, as I have indicated, with you, Mr Tran, in Whitesides Avenue, Sunshine.
39You initially drove into the driveway and parked behind the Mazda. Subsequently, Mr Ngo opened the driveway gate and you, Mr Tran, moved the Mazda to allow the Camry to be parked toward the rear of the driveway. This was obviously part of an endeavour to get the Camry out of sight.
40At 1.14 pm, Mr Ngo departed from the address in the Mazda and drove to the Derrimut factory to return the forklift to KADS Hire. At 2.04 pm he arrived at the Derrimut factory where a white KADS Hire truck collected the forklift and drove it away from the factory. At 2.09 pm you, Mr Tran, sent an SMS to Mr Ngo asking if he was back yet, with Mr Ngo replying, 'about to go back. he is driving / preparing to leave he is collecting the car'. Mr Ngo then locked the gates of the Derrimut factory and drove to Whitesides Avenue where he arrived at 2.23 pm.
APPREHENSION
41At 2.45 pm on 29 March 2017, police attended at the Whitesides Avenue address. You, Mr Tran, were apprehended lying face down on the rear deck of the premises. After your arrest, you stated in English, 'I'm not a bad guy, God’ and ‘Oh well, that's life'. Both you, Mr Ho, and Mr Ngo, attempted to hide from police to avoid apprehension. You, Mr Ho, ran from the back door to the front door and were subsequently observed to turn around and run down the hallway, where you were later found standing behind a curtain in the front bedroom, upon which you were arrested.
SEARCH WARRANTS
42Search warrants were executed. The police seized the following items from that address:
a) 301 packages of inert substituted material located in five suitcases and one cardboard box inside the boot, on the front seat, on the back seat and on the floor of the back seat of the Camry. At that point the vehicle had, as I have said, been parked to the rear of that address. Each of the five suitcases had a small white piece of notepaper affixed to the top of it with a handwritten number of either ‘60’, ‘60’, ‘55’, ‘55’ and ‘50’. The number ‘21’ was handwritten on a small white piece of notepaper attached to the cardboard box. The number of packages of inert substance stored inside the five suitcases and one box accurately matched with the number affixed to the top of the five suitcases and one cardboard box;
b) A registration plate for that Camry was on the back deck of the premises, next to a screwdriver, which had been removed from the Camry;
c) Grey gloves located on top of the coffee table inside the lounge room;
d) Face mask, a black jacket and a pair of gloves in the boot of the Camry;
e) A Bunnings receipt for a Makita cutting disc dated 21 March 2017, which was located on the driver’s side of the Camry;
f) A business card for KADS Plant Hire was also discovered;
g) A dark blue Adidas cap on the coffee table was noted;
h) A yellow high visibility jumper with a hood, together with other clothing, was located in bedroom 3;
i) A high visibility yellow and blue jacket, together with a high visibility yellow shirt was located in the boot of the Mazda;
j) Various mobile phones and electronic devices, as well as an Apple iPhone, a Huawei mobile phone, an Apple iPad and one white mobile phone identified by you, Mr Tran, as belonging to you.
RECORDS OF INTERVIEW
43You, Mr Tran, participated in an interview on that day and stated that you resided at the Whitesides Avenue address with your two male friends, your girlfriend and her sister, that you were employed as a handyman, that you had no forklift licence or trade qualifications and that you knew how to use electrical tools, hammer, grinder and how to cut timber. You said that you last used electrical equipment 'today' to make holes at your home and to make a dog house. You denied using any other electrical equipment on that day at any other location.
44You, Mr Ho, also participated in an interview with police stating your address to be the Whitesides Avenue address. You said you knew nothing about container number SGCU2205902. When shown a photograph of the container you denied ever seeing it before. You stated you do not own any high visibility clothing and, when asked whether you were at the factory address, you responded, 'I don't know that address where it is'. You stated that you stayed at your home the entire time from the morning of 28 March 2017 until the time that you were arrested and that you did not travel with anybody in any cars and that you were alone in your room asleep. You denied owning a hat with a white back and black front and denied owning a high visibility yellow work shirt. You denied that you spoke with Tien, being Mr Ngo, on the phone on 29 March 2017 and, when telephone intercepts that the prosecution allege were your voice were played to you, you denied that it was your voice. You also denied being with Mr Ngo on 29 March 2017.
45There is some confusion as to whether or not all of the expected packages were found. There is also some confusion perhaps in your mind, Mr Tran, as to who was in fact driving. In the end that confusion makes no difference whatsoever.
COUNTERSURVEILLANCE MEASURES TAKEN
46I have already adverted to the route taken by the Camry on the previous day, 28 March 2017, between 8.20 pm and 8.30 pm, being a direct route with one short diversion, being in stark contrast to the route taken by the Camry, fully loaded with the 301 packages the following day. This is dramatically illustrated in Exhibit 5 on the plea.
47The first significant deviation occurred shortly after travel from the Derrimut factory where, instead of continuing on in a westerly direction towards Mt Derrimut Road, the car took a not insignificant detour south to Boundary Road, west to Mt Derrimut Road and then north along Mt Derrimut Road. A further detour was executed by travelling in an easterly direction and then northerly direction through the Derrimut Village shopping centre, coming onto Foleys Road. Instead of turning left into Mt Derrimut Road to travel north, which is the expected direction, the car instead continued to travel in an easterly direction, crossing Mt Derrimut Road and entering the Paramount Industrial Estate, which has, as I understand it, no exits other than onto Mt Derrimut Road. The vehicle continued its easterly direction until it came to the first roundabout, where it then reversed direction and travelled in a westerly direction, coming to Mt Derrimut Road to then resume its travel north until turning right at Tilburn Road to travel east and eventually coming into Whitesides Avenue.
48Various explanations have been proffered for these diversions by the defence and given in evidence by you, Mr Ho, during the course of the contested plea. I am satisfied beyond reasonable doubt that when regard is had to the conversations and other messages from you, Mr Tran, to those before and during this travel, that these movements, being departures from the previous route taken on 28 March 2017, were endeavours to ensure that the car was not being followed and, if it were being followed, to detect that fact. These were countersurveillance measures designed by you to protect the car from interception by the authorities.
49During the course of the trial of Mr Ngo I had access to the photographs, in particular of the Camry as it was discovered in the driveway. The boot was full of the packages, as was the rear seat and floor areas. There were also packages on the passenger seat area. This car was literally full of the packages. Attempts to hide the contents of the packages in the rear seating area included placing folded empty cardboard boxes on top.
50I will in due course turn to an analysis of the criminality based on such matters.
EXAMINATION OF AUTHORITIES
51Each of you have pleaded guilty to attempt to obtain a commercial quantity of a border controlled drug. In relation to methylamphetamine a commercial quantity is 750 grams pure. As pointed out by the High Court in Adams v The Queen (2008) 234 CLR 143, in the joint judgment of Gleeson CJ, Hayne, Crennan and Kiefel JJ, at paragraph 10:
'An equally serious difficulty for the appellant's argument is in seeking to reconcile it with the scheme of the Customs Act in relation to penalties. In fixing the trafficable and commercial quantities of heroin and MDMA respectively, and applying the same maximum penalties to the quantities so fixed, Parliament has made its own judgment as to an appropriate penal response to involvement in the trade in illicit drugs. The idea that sentencing judges, in the application of that quantity-based system, should apply a judicially constructed harm-based gradation of penalties (quite apart from the difficulty of establishing a suitable factual foundation for such an approach) cuts across the legislative scheme.'
52Thus, the legislative scheme under the Commonwealth legislation is quantity-based, not harms-based. Here the quantity pure that was sought to be obtained was 229.6 kilograms, which is no less than 306 times the threshold for a commercial quantity of methylamphetamine.
53In the decision of Nguyen v The Queen & Ors (2011) 31 VR 673 Maxwell P at paragraphs 33 and 34 wrote:
'In the most recent of the New South Wales decisions, Nguyen and Pham, the Court of Criminal Appeal (Johnson J, with whom MacFarlane JA and R A Hulme J agreed) distilled from the authorities a number of propositions applicable to sentencing for drug importation offences. Once again, this summary is of great assistance to courts dealing with these federal offences. The propositions substantially accord with the course of decisions in Victoria.
For the assistance of sentencing judges, the propositions set out in Nguyen and Pham are as follows:
1. The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
2. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court.
3. It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
4. Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
5. Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
6. As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
7. The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
8. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
9. Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
10. The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.
11. Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
12. Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.
13. Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.‘
54I have derived great assistance from his Honour's distillation of those sentencing principles.
55Before turning to that exercise, I wish to deal with the suggested comparative cases emanating from intermediate courts around Australia. Initially, I was provided with a chart of comparative sentences by Mr Sim's previous instructing solicitor, who no longer works with the Commonwealth Director of Public Prosecutions, in an endeavour to assist me by providing a yardstick to consider when sentencing each of you.
56As a result of a request I made for cases involving greater quantities of methylamphetamine or other border controlled drugs, further research was undertaken. Mr Sim on Thursday last advised me that there were no such cases involving larger quantities of pure methylamphetamine that had been considered by intermediate courts. He did, however, provide me with a number of decisions of the Victorian Court of Appeal that had not been included in the comparative sentence chart.
57They include the case of An Ken Vi v Director of Public Prosecutions (Cth) & Ors [2017] VSCA 254, a decision of Beach JA on applications for leave to appeal against sentence, which his Honour refused. This is a case which is closest in quantity to that with which I am dealing. As per paragraph 8 of his Honour's judgment, 'the total quantity of pure methamphetamine that had been imported in the three shipping containers was 209.79 kilograms', or 279 times the commercial quantity, ‘the wholesale black market in Australia was something in the order of $37.7 million. Its estimated street value was in the order of $58.7 million.’
58These are figures, whilst lower than that which I am dealing with, certainly proximate to the case at hand. At paragraphs 55 to 56 his Honour wrote:
'The principles relating to the use of comparable cases have been discussed in a number of recent cases, including the decisions of the High Court in Wong v The Queen, Hili v The Queen, Barbaro v The Queen, and R v Pham. They have also been considered in a number of decisions of this Court including Hudson v The Queen, Nguyen v The Queen, Director of Public Prosecutions (Cth) v Thomas, and Lieu v The Queen. In Lieu, after referring to Wong, Hili, Barbaro, Pham, Hudson, Nguyen and Thomas, Beach and Kaye JJA said:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.
As explained in Lieu, the cases relied upon by Vi are not precedents. Moreover, it is to be remembered that Franco, Cini, Aisbett, Peng and Saab were decided before the High Court’s decision in Pham, wherein the High Court held that it was erroneous in sentencing an offender for a federal offence to have regard only to current sentencing practices in the courts of the state or territory in which sentence was being imposed.’
59The sentences of the applicants Vi and Lach on one charge of attempting to traffic in commercial quantity contrary to the Criminal Code (Cth) 1995 was 13 years with a non-parole period of nine years. His Honour was of the view that the remaining grounds were not arguable.
60The case of Frank Blango v The Queen [2018] VSCA 210 concerned a case of an attempt to possess a commercial quantity of a border controlled drug and two charges of an attempt to possess a marketable quantity of such a drug. The sentences imposed were 16 years and six months with a minimum non-parole period of 12 years and six months. The pure quantity there on Charge 1 was 55.9578 kilograms of ice, the street value of which was between $31 million and $61 million, with a wholesale value estimated to be $6 million. The appeal was dismissed by Whelan and Kyrou JJA.
61The other case, which is more recent, was Dmitri Shakhanov v The Queen [2019] VSCA 38. That was a case in which there was an attempted importation of 209.79 kilograms of pure methylamphetamine, being some 279 times a commercial quantity, which, had the importation been successful, had an estimated street value of between $31.1 million and $107 million. The appeal was allowed and Mr Shakhanov was resentenced to eight years' imprisonment with a non-parole period of five years. Their Honours noted that a co-accused in this syndicate, Mr Nguyen, was sentenced to 10 years' imprisonment with a non-parole period of seven years, which their Honours considered to be lenient.
62In contrasting those cases to the cases set out in the comparative table, if there is some yardstick as to intermediate court dispositions on a national basis, it eludes me. I find myself to be somewhat in the position that Beach and Kaye JJA adverted to in Lieu v The Queen [2016] VSCA 277 when they observed in the earlier quoted passage:
'However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.'
63It is necessary therefore to turn to the general principles as articulated by his Honour Maxwell P cited above in order for me to arrive at what I consider to be the appropriate sentences for each of you, taking into account all relevant matters in the instinctive synthesis approach that I must and will take.
OBJECTIVE CRIMINALITY
64So, I turn to the objective criminality. Some of the matters that I will refer to I have already adverted to, but it is not to be concluded that any repetition of such matters evidences an undue emphasis upon those matters.
65First, the maximum penalty for attempt to possess a commercial quantity of methylamphetamine is life imprisonment. This is the highest maximum penalty that has been set by the Commonwealth Parliament.
66Second, a commercial quantity of methylamphetamine is 750 grams pure. The quantity pure here was 229.6 kilograms, which therefore is no less than 306 times the commercial quantity threshold.
67Third, he gross quantity in the 301 packages was 301.6 kilograms with a relatively high purity varying between 75 and 76 per cent pure.
68Fourth, the wholesale value of 301.6 kilograms if sold at the low-range price and high-range price is between $36,192,000 to $75,400,000. If not detected, the consequences of this quantity of ice entering into our community would have been devastating. As said by Hoeben CJ at CL in R v Yuan [2015] NSWCCA 198 at paragraph 63:
'As stated by his Honour, for an offence of this seriousness, the sentence had to take into account a significant element of general deterrence as well as specific deterrence. The sentence needed to be such as to clearly denounce the respondent’s conduct. The sentence needed to recognise the devastating effect which the offending would have had on very many victims and on the community as a whole. The sentence imposed for this offence needed to demonstrate in the clearest terms that persons who import large commercial quantities of methamphetamine can expect to receive a lengthy custodial sentence.'
69Clearly, as I have said, had this importation not been detected the consequences of such a vast quantity of methylamphetamine coming into our community would have been devastating. I emphasise in saying such I am not to be taken to be adopting a harms-based approach to the quantity or type of border controlled drug involved in this case.
70Six, also in R v Yuan in the separate judgment of Hamill J, his Honour at paragraph 70 wrote:
'The role of the respondent in the present case was well above that of a mere courier or recipient of the drugs and the sentencing Judge so found. However, he was not a principal in the operation and his involvement, in the sense of the things that he actually did to advance the importation, were relatively confined: R v Olbrich [1999] HCA 54; 199 CLR 270 at [19]. The fact that he was involved in the actual collection of the drugs suggests that he was not operating at a high level. Those at the top of such organisations do not generally expose themselves to detection in such a way. There was a massive amount of drugs involved and nothing to suggest that the respondent was not aware of that fact: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [64] and [69].'
71His Honour in describing the drugs as a “massive amount” was dealing with the case before him where the quantity of ice was 54.96 kilograms pure. Here the quantity pure is more than four times that amount. His Honour, in my respectful view, correctly described that as a “massive amount”. The quantity here, of 229.6 kilograms pure, is simply staggering.
72Seven, when one puts together the maximum penalty of life, the quantity of pure ice being 306 times the commercial quantity, the high purity, the wholesale value being in tens of millions of dollars, this is offending which, depending on the accused's knowledge and role, what they did, is potentially at the high end of objective gravity in this very serious offending.
73It is to that topic, of your respective knowledge of the contents of the packages, what you did and the roles that you played, as best they can be identified, to which I now turn in order to make an assessment of your moral culpability in this offending, consistent with the articulation of that exercise contained in point 12 of Maxwell P's judgment in paragraph 34 of Nguyen v The Queen.
74I turn to what each of you actually did. Firstly, in relation to you, Mr Tran, you paid $10,340 cash, being the cost of the shipment of the containers. You arranged the logistics, the delivery of the containers. You arranged the hire of the forklift, its delivery and its use. You were present for part of the delivery and unloading of the containers. You were party to the commencement of the accessing of the parcels in the gates. You gave various and assorted direction to both Mr Ho and Mr Ngo to take photos of containers, be cautious of others seeing inside the Derrimut factory and to delete numbers and messages. You directed counting and recounting of the packages and the search for two apparently missing packages. You directed the setting aside of initially 21 packages and later 50 packages. On the drive from the Derrimut factory to your home you advised the driver to drive carefully to observe if anybody was following behind the vehicle. You enquired as to where the car was in its travel. You directed how the car was to be parked, initially away from the premises and then towards the rear of the driveway of the premises.
75In terms of you, Mr Ho, you were involved in forcing open the gates and retrieving the packages, the counting and recounting of the packages as directed, the separating out of 21 and 50 packages into two separate boxes, the loading of the packages into the Camry, the disguising by hiding the packages in the back seating area by placing flattened cardboard boxes on top. You received and acted upon the phone calls as with directions from Mr Tran. You were present in the travel from the Derrimut factory to your home address.
76In your case, Mr Tran, turning to the question of the duration of your involvement, your involvement with these shipping containers dates back to 17 and 18 March 2017, when you paid in cash for the shipping costs of the container and, on 21 March 2017, the hiring of the forklift truck used to unload the heavy gates from the containers. Your criminal conduct spans the two days of 28 and 29 March 2017.
77You on the other hand, Mr Ho, had a more limited role timewise than Mr Tran. Your criminality only commenced on 29 March 2017 upon the cutting open of the first gate and the recovery of the packages hidden inside.
78Though I have not given detailed reasons as to why I am not satisfied beyond reasonable doubt of any earlier criminal involvement in this enterprise, in essence the reason for that decision is because I was not satisfied beyond reasonable doubt, having regard to your evidence, of any earlier criminal involvement. The evidence against you was equivocal and though I was satisfied to a high degree of probability that you were aware on 28 March 2017 this, being an aggravating feature, must be proven beyond reasonable doubt. But plainly, on 29 March 2017 when you were a party to the cutting open of the gates and the recovery of the large number of packages and the counting of them, at that point of the cutting open of the gates you knew that the contents of the packages were a border controlled drug.
79I turn to the question of whether, and when, each of you knew the size of the consignment in question. In relation to you, Mr Tran, by 28 March 2017 you knew that the gates contained a substantial quantity of border controlled drugs and, at least, by 29 March 2017 you knew the actual quantity of border controlled drugs which were to be recovered from the gates. This is evidenced by your knowledge that 10 of the 100 gates contained a border controlled drug and indeed which gates they were. You were present on 29 March 2017 when the first packages were removed from the first gate after it had been cut open. You directed that two sets of parcels, containing 21 and 50 parcels respectively, were to be set aside. Your repeated direction to count and recount the total number of packages in order to look for missing parcels clearly demonstrates that by 29 March 2017 you knew the precise number of parcels that were to be in the 10 gates.
80On the other hand you, Mr Ho, only became aware of the size of the consignment during the course of the removal of the parcels from the 10 gates.
81As to the question of expected financial return, in the Director of Public Prosecutions (Cth) v Maxwell (2013) 228 A Crim R 218, in the joint judgment of Maxwell P, Weinberg and Priest JJA, their Honours at paragraph 21 and 22 wrote:
'In addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, an importation which is undertaken because it will bring — or is expected to bring — a large financial reward to the offender will be more serious than one where the expected reward is small or non existent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender’s moral culpability.
As the High Court stated in Wong:
In general, … the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed.’
82In your case, Mr Tran, the reward that you expect to receive is not known for your involvement in this enterprise, however, given its size and its value, in the tens of millions of dollars wholesale, I am satisfied that the only reasonable inference to be drawn is that the reward you expected was to be considerable. Thus, your involvement in this case was entirely motivated by greed.
83In relation to you, Mr Ho, consistent with my finding that you only became aware of the existence of the parcels upon the opening of the first gate on 29 March 2017, your role on 28 March 2017 was that of a labourer, with your expectation on that day of receiving $150, or thereabouts, being the usual pay that you would get. Upon you becoming aware of the contents of the gates it cannot be said whether your reward would be little or much. If it were little, it would be a mitigating factor. If it were a great amount it would of course be an aggravating feature. In the circumstances where I cannot on the balance of probabilities find that your reward was to be as little as $150, and cannot find beyond reasonable doubt that your reward was to be much greater, as an aggravating feature it is a matter that I must put entirely aside in relation to you.
84So, I turn to your respective roles. Your roles were very different from each other. You, Mr Tran, were the trusted organiser of this part of the enterprise, arranging everything from the collection of the containers, their delivery to the storage facility, the availability of the forklift, the recruitment of both Mr Ho and Mr Ngo as labourers, and then couriers, and you giving directions to them throughout both days. Those directions included ensuring that the packages were found, counted and recounted, countersurveillance directions for the trip from the storage facility to your residence and all the other small things that are referred to in the text messages and the spoken conversations that shows that your role was that of the trusted organiser of this enterprise.
85You on the other hand, Mr Ho, only knew the true purpose of your engagement by Mr Tran upon the first gate being cut open. Thereafter you, without question or any dissent, willingly did all the things required of you, including the counting and recounting of the packages and the separation of two boxes containing the 21 and 50 packages. You further were involved in relaying messages during the course of the trip back to your premises at a point in time where you well knew the sheer size of the border controlled drugs that you helped to unpack and move.
86In short you, Mr Tran, played a pivotal role in a critical part of this enterprise. You, Mr Ho, played a discrete but also critical role in recovering and transporting these 301 packages. In your case, Mr Tran, your moral culpability is at the extremely high level. On the other hand, in relation to you, Mr Ho, your moral culpability approaches the high level, though for a relatively short period of time.
87It is to be borne in mind that what occurred on 29 March 2017 was a critical part of the successful enterprise of retrieving the packages that had been so cunningly hidden in the 10 gates. You, Mr Tran, well knew the dangers associated with this particular part of the enterprise and, I am satisfied beyond reasonable doubt, it was with that in mind that you absented yourself from the vast bulk of the exercise of retrieving the packages from the gates on 29 March 2017 and used Mr Ho and Mr Ngo as couriers, distancing yourself all the while to protect yourself from the possibility of being associated with this enterprise.
PERSONAL BACKGROUND OF TRAN
88So, I turn from those matters to matters personal to each of you and in that regard start with you, Mr Tran.
89At the time of the offending you were 25 years of age and now are 28 years of age. You were born in Vietnam and are the youngest child, having two older sisters, one who lives in Vietnam and another in Australia. Your childhood was characterised by domestic violence by your father. Your parents separated when you were approximately five years old, though you and your sisters remained in his care.
90You completed your secondary education in Vietnam and then went on to study an undergraduate degree in construction, which you completed one and a half years of this degree. You then at the age of 20 moved to Korea to work in construction and you also reunited with your mother. You moved to Australia in 2013 on a student visa to study business and construction at Swinburne University. Your parents borrowed money to enable you to enrol in this course, together with some of your own savings. You did not complete your studies as you felt under pressure to work to be able to repay your parents and the loans that they had taken out. In any event, you were unable to pay for any more of the course and your student visa lapsed in 2014/2015 and you remained in Australia without a visa, doing various jobs for cash payments.
91You met your girlfriend in around 2016, which is apparently the first significant relationship that you have had. She is supportive of you, though of course it may be that that support will not continue given your incarceration. Your younger sister is settled in Australia after marrying and obtaining permanent residency.
92Your substance abuse is of limited moment, indeed to my mind of no moment as bearing in relation to your prospects of rehabilitation. You have no prior criminal history, which is a matter that I do take into account, although it is of reduced moment given the nature and the extent of your criminal behaviour.
93Your girlfriend has written a letter, which became part of Exhibit HT5, writing that she met you early in 2016, stating that you worked as a handyman and that there appeared nothing abnormal in your conduct. You had otherwise been industrious whilst in Australia. She wrote:
'After he had been in the remain center for a couple of months since his arrest, he told me he sorry for what he did which affecting my daily lifestyle. We talked about many things in life during his remain in the center via telephone calls and regular contact visits'.
94She concludes by writing:
'I would like you to review my letter as a piece of puzzle for your consideration in relation to decision making to the above case. Upholding the law and orders, and generously to give a chance for Hoang as he has learnt his lessons during the time he remained in the center and remorsely sorry to those who have been affected or could be affected by his ignorant actions'.
95Your sister, who lives in Australia, has also written a letter, which became part of Exhibit HT5. Consistent with instructions that your counsel has put, she writes:
'Hoang and I were born in unhappy family. We didn't have beautiful childhood like the other kids. Our dad is violent man and could hit us, our sister and mum with anything in the house such as bamboo sticks, cables, etc when he was not happy'.
96She continued on:
'Our mum is getting older and live in Korea by herself. This might lead him to guilty. Even though he did huge mistake, I would continue to trust him a good person. With me, he is the best brother. He protects and helps me when I have difficult time.
I know no one is perfect. Everyone becomes better and better from mistakes they make. Everyone deserves to have second chance to redeem themselves. So I hope the court takes this letter into consideration at the time of sentencing. Then my brother has chance to fix things right'.
97It is plain from both those letters that you have the benefit of the support of your sister and your partner, albeit whether that continues is unknown.
98In the psychological report of Carla Ferrari she writes, in the uncontentious paragraphs 62, 63 and part of 64, the following of you:
'Mr Tran instructed that approximately three to four years ago he became associated with group of antisocial acquaintances from the Vietnamese community. He stated that he initially worked for them completing handyman and cleaning jobs for cash-in-hand income to support himself. Mr Tran stated that over approximately 12 months, they had developed a relatively good working relationship and thus, they had knowledge of his low socioeconomic status, psychosocial issues, and desperation for a working visa. They reassured him that they would sponsor his visa and secure him legitimate employment if he agreed to assist them with “an important job”.
Mr Tran reported that his “employers” knew how to exploit and take advantage of others, and prey on people’s weaknesses. He claimed that they had “dangerous” connections as many of their “colleagues” having been incarcerated. Thus, Mr Tran was fearful for his life, and the safety of his girlfriend and family if he did not comply with their requests.
In relation to the offending, Mr Tran instructed that his employers did not disclose to him specific details of the job, only simple, vague instructions that he would need to attend a location once they gave him the address and that further instructions would follow.’
99Insofar as those statements to Ms Ferrari are concerned, where there is any difference in the findings that I have already made, those findings stand. My assessment, as I have already said on more than one occasion, is that you were a trusted agent for those others. You carried out your role without any appearance of reluctance, quite the contrary, and I am satisfied you did so for greed.
100Later at paragraph 71 Ms Ferrari continued, writing:
'He instructs that he would like the justice system to know that he is disappointed in himself and wishes to rectify his actions. He has also reflected on the potential impact that his offence could have had on others in the community, to which he is extremely remorseful.'
101In the 'Opinion and Risk Assessment' section of her report, Ms Ferrari continues at paragraph 93, in a passage which is uncontested by the prosecution, she wrote:
'In summary, Mr Tran exhibits evidence of understanding, remorse, and the gravity of his behaviour at the time of the offending'
102She notes that you have responded well to your time in custody and have used this period to engage in appropriate programs to improve and stabilise your mental health. Indeed, you have had tendered two certificates of completion of programs.
103There is evidence that you have indeed used your time as best you can in custody usefully. I am satisfied in all the circumstances that you are now remorseful for what you did. As to whether you have become increasingly insightful, I doubt this, for you knew precisely what you were doing all along, but perhaps it can be said that you now appreciate fully the gravity of what you did.
PERSONAL BACKGROUND OF HO
104Turning to you, Mr Ho, and your personal background. You were 23 years old at the time of the offending and are now 25 years of age. You grew up in a village in a province in the north of Vietnam with the city of Hanoi about two and a half to three hours' drive away. You were raised by your parents, apart from a short period when you were very young when your parents moved to another province to work and you lived with your grandparents.
105Your family remain in Vietnam. Your father, aged 50, is a cabinet maker, making wooden doors, staircases and beds, and your mother, aged 46, is a housewife. She has been diagnosed with a tumour in the left-hand side of the brain, has a lump in the left knee and there are issues with her heart. There are apparently limited treatment options and she is receiving palliative care.
106You are your parents' only child. You have great concerns, and understandably so, for your mother, who appears to be terminally ill. Complicating that scenario is the fact that COVID-19 has spread in Vietnam and an uncle has contracted the disease, causing further concern for your mother's health, her not being able to receive hospital treatment. This is a matter which I will return to in due course.
107You completed your high school education in your local village, then, after a break from study for one year, in 2012 you moved to Australia on a student visa. Once again, your parents were supportive and made significant sacrifices, including borrowing money to pay for your travel to Australia and student fees. You moved to Melbourne from the family home in Vietnam with no supports, limited finance, poor command of English and an unpreparedness for the differences between your life in a rural village in Vietnam to a life in Australia.
108You undertook a number of English language courses for six months and then deferred your studies due to financial pressure and language difficulties. You supported yourself with a range of casual and lowly paid positions, including being a fruit picker, kitchenhand, waiter, chicken boner and labourer. At the time of the offending you were a waiter at a St Albans restaurant. You regularly sent money to your family. Once again, you are a person without a criminal history and, once again, I take that into account, though it is of limited relevance given this offending.
109During the course of the contested plea I had the benefit of hearing your evidence, some of which I thought to be somewhat farfetched. But you did strike me as being a somewhat naive and compliant young man, in stark contrast to the way in which Mr Tran conducted himself on 28 and 29 March 2017.
FURTHER SENTENCING MATTERS
110Each of you pleaded guilty to the offence in question. There is considerable utility to those pleas of guilty, avoiding a trial which would have taken more than a month to complete, given the complexities of the material that the jury would have to be acquainted with and the length of the trial that in fact took place in relation to Mr Ngo. Insofar as your pleas of guilty are concerned they also have facilitated the course of justice and in each case I am satisfied is further evidence of your remorse.
111Youth as a mitigating factor has been put forward by both of your counsel. You, as I have said, Mr Tran, were 25 years at the time and you, Mr Ho, 23 years. In Azzopardi v The Queen & Ors (2011) 35 VR 43 in the judgment of Redlich JA, with whom Coghlan and Macaulay AJJA concurred. His Honour at paragraph 34 to 36 set out the sentence principles concerning youth:
‘There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:
In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.
Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. As stated in R v Lam & Ors,
A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender.
Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community. As Fox J stated in R v Dixon:
The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals…
When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.’
112At paragraph 44 his Honour wrote:
'The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished'.
113In relation to you, Mr Tran, you were 25 years old. You are a mature man. You carried yourself with authority. It was you who exhibited not inconsiderable organisational skills. What you did was not in any way spontaneous or explained in part by your suggested youth. This is precisely the situation described in Kuo v The Queen & Ors [2018] NSWCCA 270. In the joint judgment of Hoeben CJ at CL, Davies and Hamill JJ at paragraph 91, their Honours wrote:
'The difficulty in this case is to find guidance in the decided cases as to how to deal with the particular facts which involve a very large importation (in excess of 180 times a commercial quantity) of a prohibited drug. Kuo’s age is not of great assistance to him because this was not a spur of the moment offence involving a lack of maturity, impulsivity and emotion. He was part of a sophisticated plan, the purpose of which was to import into Australia a very large quantity of a dangerous drug. This was very much adult offending and should be treated as such from a sentencing point of view'.
114Turning to you, Mr Ho, as I have said, you were 23 years of age at the time of this offending. You were, to my mind, a man who presented in your evidence as a somewhat naive and immature man, which may in some part explain your preparedness without complaint or question in your brief but critical role in this enterprise. You complied with all directions at a point in time where you well knew the total size of the packages. In all the circumstances your youth is a mitigating factor that I take into account, but it is of limited significance.
115In relation to you, Mr Tran, the prospect of your deportation has been raised as a matter that I should take into account. However, your student visa expired on 28 April 2013, approximately four years prior to this grave offending. You only remained in Australia whilst you avoided detection. You did not seek any extension of your visa and thus you were an unlawful non-citizen. To take into account the prospect that you have lost an opportunity to remain in Australia, given the gravity of your offending against Australian law and the potential consequences to our community had this enterprise not been detected, would make it perverse for me to take any such loss of opportunity into account.
116Delay has also been raised in relation to this matter. This offending occurred on 28 and 29 March 2017, a little over three years ago. This means that this matter and your sentence have been hanging over your head for a very long period of time. Each of you have been anxious to know your fate.
117It has also been put that your imprisonment has been more burdensome to each of you than to other members of the prison population. I accept that imprisonment for each of you has, and will be, more burdensome to you given a combination of factors, namely, the language barrier that exists, your isolation from family and indeed the COVID-19 lockdown, which has resulted in a loss of the privileges that would otherwise be available to you in a prison situation, such as time out of cells, opportunity for exercise, opportunity to complete courses, to continue your work and to receive physical visits.
118In relation to you in particular, Mr Ho, your concern for your mother is of particular moment. You wish for a deportation so that you can attend to her, hopefully, before she dies.
119General deterrence and denunciation are the primary sentencing matters that I must, and do, take into account. It must be made plain that those who are minded to engage in the criminal activities that each of you have will face, in your case, Mr Tran, stern punishment in order to deter them from engaging in like offending. There is also a need for the sentences that I impose to deter both of you from further offending. Whilst I accept that in your case, Mr Tran, your prospects of rehabilitation are good and, in your case, Mr Ho, very good, nonetheless both of you all too readily engaged in this criminal activity. Finally, the sentences I impose must reflect the need for just punishment and denunciation of your offending, which but for the intervention of the authorities, would have resulted in a huge amount of this border controlled drug entering the market causing great harm to our community in multifarious ways.
SENTENCES
120There are many reasons which I have endeavoured to articulate as distinguishing between your respective roles and personal circumstance and in the latter regard your youth, Mr Ho, and your concerns for your mother in Vietnam. Therefore, there is need for a very significant and different sentence to be imposed upon you, Mr Tran, than that imposed on you, Mr Ho.
121I have reflected long and hard about the sentences that I must impose on each of you, both still young men. In relation to you, Mr Tran, your criminality is of very high order in attempting to commit an offence of great gravity. In relation to you, Mr Ho, your criminality is towards the lower end of very serious offending.
122Taking all these matters into account, Mr Tran, please stand.
123I sentence you, Mr Tran, to 23 years’ and six months’ imprisonment. I set a minimum non-parole period of 15 years’ and six months’. I declare that but for your plea of guilty I would have sentenced you to 28 years' imprisonment and set a minimum non-parole period of 21 years' imprisonment.
124Take a seat, Mr Tran. Stand, Mr Ho.
125In relation to you, Mr Ho, I sentence you to be imprisoned for six years’ and three months’ imprisonment. I set a minimum non-parole period of three years’ and nine months’. I declare that but for your plea of guilty I would have sentenced you to nine years’ imprisonment and set a non-parole period of six years' imprisonment. I direct that in each case the sentences I have just imposed commence today.
126Take a seat, Mr Ho.
127I declare pre-sentence detention to be 1127 days excluding today, which will be administratively deducted.
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