Director of Public Prosecutions v Tran and Le
[2013] VCC 1629
•21 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR12-01770
CR-12-01706
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHUONG TRAN DINH THINH LE |
---
JUDGE: | His Honour Judge Maidment | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2013 | |
DATE OF SENTENCE: | 21 October 2013 | |
CASE MAY BE CITED AS: | DPP v Tran & Le | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1629 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | MR K. DOYLE | |
| For the Accused Tran For the Accused Le | MR S. BAYLESS MR P. MARIN |
HIS HONOUR:
1 Dinh Le and Phuong Tran, you have each pleaded guilty to an indictment charging you, in your case, Mr Le, with trafficking in a large commercial quantity of methylamphetamine, and in your case, Phuong Tran, with trafficking in methylamphetamine.
2 The offence of trafficking in a large commercial quantity of methylamphetamine carries a maximum term of imprisonment of life. The maximum term of imprisonment for trafficking in methylamphetamine is 15 years.
3 You, Mr Le, have also admitted a number of prior court appearances and convictions going back to 1987, all of those occurring in New South Wales, although I note that none of them involve any offences involving drugs of dependence.
4 The prosecution has tendered and relied upon a summary of prosecution opening for the plea which is Exhibit A on the plea and which sets out the circumstances in which you were arrested on 13 August of last year whilst travelling between Sydney and Melbourne and in possession of a total of 1.98 kilograms of methylamphetamine of 90 per cent purity.
5 The information provided to me during the plea hearing was that the wholesale black market value of that amount of methylamphetamine was in the order of $1 million and of course significantly more than that at street prices. However, the offence was itself committed only on that one day, that is 13 August of last year.
6 The prosecution however relied upon the balance of the summary of prosecution opening as evidence of the context in which the offending occurred. It is accepted on behalf of each of you that you were aware of the purpose for your trip to Sydney and your return to Melbourne, in that it involved a quantity of methylamphetamine. Each of you was aware that you were acting for a larger criminal enterprise involving the trafficking in methylamphetamine for profit.
7 In your case, Mr Le, you were also aware of the fact that your conduct involved a large commercial quantity. You may not have been aware of the precise quantity but you were aware that you were transporting at least a kilogram of methylamphetamine and that you had attached yourself thereby and played an important role in the trafficking of that quantity on behalf of a substantial criminal enterprise engaged in commercial trafficking in methylamphetamine.
8 Clearly the offending conduct is very serious. It is true, as your counsel pointed out, Mr Le, that the amount of methylamphetamine was not as great as in some other cases of a similar nature involving large commercial quantities, but it was nevertheless a little under double the minimum amount to qualify as a large commercial quantity and is still to be regarded as a serious offence even though not one falling in the middle or upper end of the range of offences of this kind.
9 So far as you, Ms Tran, are concerned, it is accepted and the basis upon which the plea was presented was that you were unaware of the fact that the amount of methylamphetamine was anything near as large as it actually was, although you were of course aware that you were engaging in a venture which was designed to sell methylamphetamine for commercial gain.
10 The offences at either level are serious, particularly serious where it involves a large commercial quantity, for obvious reasons. The difference between the respective seriousness of the two offences is reflected in the maximum terms of imprisonment that are available for the offences.
11 Turning to matters personal to each of you. You made certain admissions, Mr Le, to police but did not tell them the full truth when questioned.
12 You were brought up in Vietnam. You left Vietnam aged 14 and a half, as a refugee. You arrived in Australia by refugee boat, as I understand it, in 1977.
13 You attended the Cahill High School in Sydney and completed Year 11. You entered an apprenticeship as a fitter and turner but did not complete that and worked during the 1980s and up to 1999 as a factory worker.
14 Thereafter you became a self‑employed truck driver and built up your business to a point where at one stage you had six trucks. That business failed in 2006, which left you destitute. You had to sell your home to deal with the aftermath of that business failure. Since then I am instructed you have been on the dole.
15 You have been involved in a long‑term relationship and you have a daughter aged 18, Stephanie. No doubt you are a proud father. It is unfortunate indeed that you have become involved in criminal offending at this level and put yourself in a position where you will have to be deprived of playing a full part in her continuing progress in life for the time being.
16 You have pleaded guilty and although I guess the facts were fairly heavily stacked up against you, you are entitled to the credit for a plea of guilty and for the saving of the resources of the justice system in running a trial and the inconvenience of witnesses having to attend. I am obliged to take that into account in your favour and I do.
17 I think having been caught red‑handed in this substantial criminal enterprise, all that could really be done on your behalf was to point out some of the factors personal to you and to try and place the offending in a proper place in the spectrum of seriousness of offences of this kind.
18 It is apparent that you were aware that you were part of a substantial criminal enterprise, however there is no basis for me to conclude that you were a principal in the sense of being an organiser or the principal beneficiary, potentially, of the offending conduct. You did play a substantial role but I cannot conclude that you were an organiser or likely to be the principal beneficiary from this offending conduct.
19 Although the material relied upon by the prosecution in totality suggests that you had a fairly good understanding of what the nature of the criminal venture was and were a significant player in it. The offence itself occurred only on one day and is to be distinguished from cases where people are to be sentenced for engaging in a sustained activity over a period of months or even years. Many of the other cases to which I was referred do involve the offenders engaging in conduct over a period of time and your situation is to be distinguished somewhat from that.
20 Although, of course, I have to punish you adequately for your offending conduct I have to so far as I can, put you into the appropriate place on that spectrum.
21 The prosecution put forward a range of sentences within which I should sentence you of between six and a half years and nine years' imprisonment with a non‑parole period of between four and a half years and six and a half years. Your counsel submitted that range was too high, particularly the upper echelons of that range. I take into account that submission and I will address that in due course when I come to passing sentence upon you. I am not going to do that right now, I am going to deal with your co‑offender before I sentence you.
22 In your case, Ms Tran, you have no prior convictions and I have to sentence you on the basis that although you were aware of your attachment to a substantial criminal enterprise engaged in the selling of methylamphetamine, that you were not aware of the fact that you were engaged in trafficking on this particular day of a large commercial quantity, or indeed a commercial quantity, therefore the offence carries, as I have indicated, a maximum of 15 years' imprisonment, which is obviously significantly less than a term of life imprisonment. Nevertheless it is a very serious offence.
23 It seems to me that it is a serious offence of trafficking in a quantity of methylamphetamine and cannot be regarded as being at the low end of the scale for that offence. Although I again remind myself that I am dealing with you trafficking on one day rather than over a period of time, much less a significant period of time. You were clearly doing it for financial gain and I think I need to sentence you accordingly.
24 Your counsel relied upon a report from Mr Jeffrey Cummins, a forensic psychologist, dated 17 October of this year, which is Exhibit 3T on the plea. That is particularly useful in that it sets out much about your background and your more recent history. I am not going to go into great detail about that. It was canvassed substantially on the plea a few days ago. But of particular relevance is that during the period when this offending took place you were separated from your de facto husband, your long‑term partner and the father of your two children, who are now aged seven years and ten years respectively. You were therefore in a period of your life when you did not have the stability to which you had become accustomed in your long‑term relationship.
25 Your Counsel also provided me with some references that have been written on your behalf which support the proposition that you are a good and devoted mother and that you have also done a lot for your own mother, who is now aged 81 years and lives with your 43‑year‑old single sister in Kings Park. You apparently are very close to your sister and it seems that you have many very good qualities according to the references that have been written on your behalf, including from your sister.
26 You do appear to be a devoted family member and, as I say, a devoted mother to your children who are still very much in their formative years and in need of their mother's example and nurturing.
27 This offence occurred a little over two years and two months ago, and although your co‑offender Mr Le has been in custody throughout that period of time, you have been on bail and have had to endure fairly strict bail conditions, with which you have complied. You have had to do that throughout the period of the last two years and two months except for a period of six days that you spent in custody pending the grant of bail.
28 There does not seem to be anything wrong with you so far as your mental health is concerned. I have no doubt you are very anxious and I have no doubt that, as Mr Cummins suggests, your mental health would be likely to deteriorate if incarcerated. Although I do not think it has been suggested on your behalf that the Verdins principles are engaged in that regard. It is I think entirely to be accepted that you were moderately depressed because your de facto partner had left you in circumstances which must have been very galling. But I understand that you have reconciled and that you now have a full relationship with him and that you are back as a full family unit once again. That speaks well of your prospects for rehabilitation. Couple that with the fact that you have no prior convictions and that you have not engaged in any further criminal conduct in the period since your arrest for this matter and that you are now back engaged with your husband in the businesses that he runs and are earning a wage of $500 a week as I understand it, working in that business. I do regard your prospects of rehabilitation as good and I think it is unlikely that you will offend again.
29 In your case the debate has been around whether I am required because of the serious nature of the offence to impose a term of imprisonment. The prosecution has submitted that that is the only appropriate sentence having regard to the serious nature of the offence, and they submit that I should sentence you to a term of between three and a half and five years' imprisonment with a non‑parole period of between two years and three and a half years.
30 Your counsel on the other hand has urged me to impose a noncustodial sentence having regard to the various factors that I have endeavoured to identify as setting the context in which you became involved in this serious offending conduct and having regard to your prospects of rehabilitation and the many other good qualities that you have apparently and continue to exhibit.
31 You have pleaded guilty to the offence and I give you full credit for the benefit to the community and the administration of justice that that plea of guilty entails.
32 I think, frankly, in your case that a term of imprisonment is justified and that general deterrence ordinarily would require me to impose a term of imprisonment. I do not think that individual deterrence plays a great part in your case. I think that the resumption of your long‑term relationship with your de facto partner would suggest that it is unlikely that you will reoffend. The requirement for just punishment and denunciation of this sort of offending conduct would militate in favour of a term of imprisonment.
33 As far as rehabilitation is concerned, I think that your prospects of rehabilitation are good and it is a very fine balance, it seems to me, between a term of imprisonment or not. In the end I think I am entitled to have regard to the fact that parliament has introduced a Community Corrections order as an alternative to a term of imprisonment even in serious cases that would ordinarily require the court to impose a term of imprisonment.
34 It is necessary through an order of that kind, if it is to be regarded as appropriate at all, to ensure that just punishment can be meted to the offender and that is ordinarily done by the requirement for the offender to complete a period of unpaid community work.
35 I am persuaded, just, that I can deal with you without imposing a term of imprisonment. I note that you still have two young children. It has not been submitted, I think, that that creates an exceptional circumstance but it is nevertheless a factor which would suggest that your prospects for rehabilitation are likely to be very good because I think that the lesson that you will have learnt from your six days in custody and through coming so close to a term of imprisonment and being again deprived of the ability to be a mother to your children, will keep you on the straight and narrow from now on.
36 It seems to me that the community can be properly protected and served by dealing with you with a noncustodial sentence. However, I do propose to fine you as well. It seems to me that the requirement to punish you adequately for your offending requires me to go somewhat further than merely imposing a Community Corrections order.
37 With that in mind I can only impose a Community Corrections order if I obtain your consent.
38 I imagine, Mr Bayless, that you have already spoken to your client. I can tell you that I have in mind requiring her to perform 200 hours of unpaid community work and I propose to fine her $6,000 and give her time to pay. Is she prepared to consent to an order of that kind?
39 MR BAYLESS: Yes, Your Honour. I certainly have instructions to consent to the necessary portion of that.
40 HIS HONOUR: Yes. I will proceed to sentence.
41 Mr Le, I will deal with you first. I imagine you appreciate that I am sentencing you for what is regarded by the law as a much more serious offence than the offence for which Ms Tran is to be sentenced and in those circumstances it seems to me that I need to look to a sentence that is consistent with current sentencing standards but which takes into account the role that you played and the fact that this is an offence that occurred only on one day.
42 In those circumstances, Mr Le, I sentence you to imprisonment for a period of six years and six months with a non‑parole period of four years and four months before which you will become eligible for parole. I declare 799 days are to be deducted administratively from the sentence that I have imposed. You will have to serve at least the four years and four months less the 799 days that I have just declared. But for your plea of guilty I would have sentenced you to eight and a half years' imprisonment with a non‑parole period of six years.
43 I make the orders for disposal of property and for the retention of a forensic sample that I have been asked to make and which your counsel has not opposed on your behalf.
44 Ms Tran, as you have already heard, because I wanted to get your consent before imposing sentence upon you, I have decided, just, not to impose a sentence of imprisonment which ordinarily you would deserve because of the various factors that I have outlined. I understand, therefore, that you are willing to consent to a Community Corrections order and I impose a Community Corrections order for this offence for 12 months. The principal condition of that order is that you complete 200 hours of unpaid community work. The conditions of the order will be explained to you in full and will be set out in the draft order that I will provide you with, but the essence of the core conditions are that you do not commit any other offence punishable by imprisonment during the period of the order. If you do commit an offence punishable by imprisonment during the period of the order you are liable to be imprisoned for up to three months for the breach. You are also liable to be resentenced for these offences and if that occurred there is no doubt at all that a substantial term of imprisonment would be imposed, plus of course you would be up for any other sentence that might be appropriate for the offence that puts you in breach.
45 You will also have to report within two clear working days to a Community Corrections Centre. I imagine that should be close to your home. Can you tell me, Mr Bayless, what that centre would be?
46 MR BAYLESS: I apologise, Your Honour, I should have made that inquiry but I haven't. I imagine the Sunshine, there's a Corrections office at the Sunshine Magistrates' Court and I imagine that would be the closest from where I understand my client lives.
47 HIS HONOUR: Do you want to just take instructions on that?
48 MR BAYLESS: Yes, if you could excuse me for a moment.
49 HIS HONOUR: Yes.
50 MR BAYLESS: Yes, thank you, Your Honour. Sunshine Magistrates' Court or Sunshine Community Corrections Office.
51 HIS HONOUR: Right.
52 MR DOYLE: Your Honour, can I just indicate the interpreter is apparently now required at the Supreme Court.
53 HIS HONOUR: I'm not going to be much longer.
54 MR DOYLE: We just had this message come through, Your Honour, there's some form of urgency.
55 HIS HONOUR: Yes, I won't keep her any longer than I have to.
56 You will have to report within two clear working days to the Sunshine Community Corrections Centre and obey lawful instructions that will be provided to you to ensure that you complete the 200 hours of unpaid community work.
57 In addition, I fine you a total of $6,000 for the offence and I will give you nine months to pay that. If for any reason you cannot pay in that period and have a good reason for not paying in that period you can always come back to court and seek a variation of that order. But for your plea of guilty I would have sentenced you to imprisonment for three and a half years with a non‑parole period of two years and three months.
58 Thank you, you can leave the dock. Actually, I think you will need to sign the form first before you do that.
59 MR DOYLE: Your Honour, there was a retention order.
60 HIS HONOUR: Yes, there is a retention order and I make the retention order in your case. Sorry to keep you, you can rush out of court and go to your next engagement.
61 I have signed the various orders, Mr Doyle.
62 MR DOYLE: Thank you, Your Honour.
63 HIS HONOUR: Mr Bayless, do you want to just make sure your client is understanding that?
64 MR BAYLESS: Yes, Your Honour. Thank you, Your Honour.
65 HIS HONOUR: Mr Bayless, your client can leave the dock now.
66 MR BAYLESS: Thank you, Your Honour.
‑‑‑
0
0
0