Director of Public Prosecutions v Tran and Trang
[2016] VCC 109
•12 February 2016
| Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-01226
AP-13-2827
CR-15-01227
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BICH NGOC TRAN HUNG TRANG |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 February 2016 |
| DATE OF SENTENCE: | 12 February 2016 |
| CASE MAY BE CITED AS: | DPP v Tran & Trang |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 109 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Appeal – breach of suspended sentenceCatchwords: Knowingly dealing with proceeds of crime
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:TRAN: 24 month’s imprisonment, 15 months’ non-parole period
TRANG: 24-month Community Correction Order---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Hassan | Office of Public Prosecutions |
| For Accused Tran | Mr R. Revill | Revill & Papa Lawyers |
| For Accused Trang | Mr A. McMonnies | Allan McMonnies |
HIS HONOUR:
1Bich Ngoc Tran and Hung Trang, you have each pleaded guilty to a charge of knowingly dealing with the proceeds of crime. The maximum penalty for this offence is 15 years' imprisonment.
2The property the subject of the charge is set out in Schedules A, B and C attached to the indictments and is valued in total at $72,613.98.
3Ms Tran, you were born in Vietnam on 17 February 1961 and you will turn 55 next week. You have a criminal record about which I will go into more detail later.
4You, Mr Trang, were also born in Vietnam, on 10 October 1961 and you are also aged 54. You have no criminal record.
5You are husband and wife, and you, Ms Tran, were at the relevant time the proprietor of the commercial premises at the Ngoc Chau Gift Shop located in Nicholson Street, Footscray. The shop was a variety store that sells miscellaneous health and beauty products. It was open seven days a week trading between the hours of 8.30 am and 7 pm.
6In July 2014 police were approached by Coles National Security, who suspected that businesses in the Footscray area were receiving large quantities of stolen goods. One of the targeted businesses was the Tan My Asian Grocery operated by persons by the name of Dinh and Truong who will stand trial in May later this year.
7Police were notified and installed a camera which captured activity at the rear of your business premises. The camera recorded closed-circuit television footage between 31 July 2014 and 7 November 2014.
8It became apparent to police that you were receiving stolen goods on a daily basis from a large number of shoplifting “peripheral” offenders.
9The stolen items were a variety of health and beauty products. The peripheral offenders would enter your shop either by the front or rear entrance, attract the attention of either of you and would thereupon be taken to a rear alcove area where they would on-sell the stolen goods to you.
10In exchange for the stolen goods the peripheral offenders would receive around 10 – 20% of the items' retail value. I note that peripheral offenders made statements to police about their dealings with you. I refer specifically to the statements of Cheree Adams and Shane Studman. A number of peripheral offenders were arrested in the course of the investigation and have been charged in relation to their conduct.
11You would then pack the stolen items in cardboard boxes kept at the rear of the store, and load them into your various vehicles. A large quantity of the stolen goods were stored at storage units at Public Self Storage Braybrook, which had been acquired by you, Mr Trang, in September 2014.
12On 7 November 2014 police executed a series of search warrants in conclusion of the operation. Items were seized, and subsequently identified as stolen, at the Ngoc Chau Gift Shop (Schedule C) and at the Storage Unit 222 at the Public Self Storage (Schedule A).
13When police were in the process of searching the storage, you, Ms Tran, arrived in your vehicle. A large number of cosmetic, health and beauty products were with you in the vehicle, and a number of these products have been identified as stolen (Schedule B). The stolen items have been identified as coming from commercial outlets such as Coles, Woolworths, Chemist Warehouse, Myer and Priceline.
14You were both arrested on 7 November 2014. You both entered a plea of guilty in this matter in this court, you, Ms Tran, on 30 October 2015, and you, Mr Trang, on 26 November 2015.
15There was a contested committal hearing on 16 July 2015. Only the police informant was called to give evidence. In these circumstances, the prosecution accepts that the plea is an early one on the part of each of you.
16You, Ms Tran, have relevant prior offending. In the Sunshine Magistrates' Court on 19 February 2013 you were convicted for handling stolen goods and, in conjunction with other offences, were sentenced to a 12-month community correction order. Again in the Sunshine Magistrates' Court, on 15 November 2013 you were convicted of dealing with the proceeds of crime and sentenced to 3 months' imprisonment and an 18-month community correction order. This sentence was appealed and the appeal succeeded. In the County Court on 19 March 2014, you were sentenced to 6 months' imprisonment wholly suspended for 2 years. The current offending breaches the suspended sentence.
17Ms Tran, you were also arrested on 23 August last year for similar offending whilst on bail for this offending. Your subsequent matter is listed for a summary contest in the Melbourne Magistrates' Court on 22 June 2016. Your bail was revoked for this offending on 28 August 2015. You have therefore served quite a number of days of imprisonment in pre-sentence detention. I note that is agreed at 203 days not including today.
18MS HASSAN: Yes, Your Honour.
19HIS HONOUR: Thank you.
20Mr Trang, you have served no pre-sentence detention.
21I now turn to each of your personal circumstances.
22You, Ms Tran, were born in Vietnam in 1961 and as I noted earlier, you will turn 55 next week. Your parents both worked in small business. Your father ran a fruit and vegetable shop in Vietnam. Your education was disrupted by the effects of the Vietnam war and you left school after Year 10. The family suffered when the North Vietnamese ejected the Americans and took over the South.
23You have poor English literacy and have no academic qualifications or particular skills. You married in Vietnam and had a daughter. Your husband left and you raised your daughter on your own. She is now studying law at university.
24Your father came to Australia as a refugee and you followed with your mother and young daughter in 2004. You were officially sponsored as a carer for your mother. Your husband arrived in Australia in 2008; you reunited and remarried in 2009. You became an Australian citizen in that same year.
25In 2010 you, Ms Tran, set up the business in Nicholson Street Footscray. You fell into deep debt to a number of people trying to manage the business. When you were unable to repay some debts you were hounded, threatened and intimidated. This caused you great anxiety and stress. You stated to psychologist Sandra Nguyen that you resorted to selling stolen goods as a means of meeting your debts and the running costs of the business and providing your daughter with a good education at a private school.
26Since arriving in Australia you have been the primary carer for your aged mother up to the date of your imprisonment. She is 84 and suffers from a variety of debilitating illnesses.
27You have been assessed as currently suffering from an adjustment disorder with mixed anxiety and depressed mood. You feel sad and empty most days.
28I note your first referral with Ms Sandra Nguyen, counselling psychologist was on 12 March 2015. You had been arrested on 7 November 2014, and the contested committal - contested for the purpose of qualifying quantum - was to take place on 16 July 2015. At that time you were still serving the suspended sentence imposed by this court on 19 March 2014. You would have been well aware that the current offending was serious, was a repetition of the previous type of offending and would amount to a breach of your suspended sentence.
29I have no doubt that this was an anxious and distressing time for you.
30You, Mr Trang, were born in Vietnam, successfully completed Year 12 and worked as a public servant. You met your wife when you were 36 in 1997. Your wife emigrated to Australia in 2004 and you reunited with her in 2008. The business in Nicholson Street was set up and conducted by Ms Tran whilst you worked casually at BiLo two days a week.
31In 2013 you purchased a home in Footscray with deposit money transferred from Vietnam and a loan of $370,000. Your repayments are $1,100 per fortnight.
32You now work full-time in a garage and receive approximately $500 per week in cash. Your mother-in-law and your daughter assist with mortgage repayments.
33Your English language skills are poor and you struggle without an interpreter. You also have medical issues: you suffer from high blood pressure and diabetes and you receive medication for both.
34You became an Australian citizen on 17 September 2017.
35It is accepted that Ms Tran was the primary operator of the gift shop business, but you were clearly actively involved in the receipt and storage of the stolen goods.
36The offending by each of you is serious. It amounts to gross dishonesty. Crimes of dishonesty are not excused by financial hardship. This type of offending affects the community in a variety of ways: it encourages other to steal, other businesses suffer loss from the theft and the advantage you get from obtaining the goods at extremely low prices can unfairness destroy your competition. It is a crime which requires prominence in sentencing of what the law calls general deterrence, that is, the sentence you receive is partly designed to deter others from engaging in the same type of conduct. Other businesses must get the clear message that the law will not tolerate commercial theft for advantage.
37Other considerations are specific deterrence to you, particularly in your case Ms Tran, denunciation by the court and the protection of the community, balanced of course with your personal circumstances and matters in mitigation.
38In your case Ms Tran, you have prior convictions for similar offending, and by this offending you have breached a suspended sentence of imprisonment.
39In your case Mr Trang, this is your first offence.
40In mitigation in your case, Ms Tran, I take into account the submissions of your counsel and in particular accept:
· your plea of guilty and that it was entered at an early stage,
· your difficulties in life including your disrupted education, your fragmented marriage, your struggles as a single mother, your difficulty in adjusting to a new country and culture and your financial difficulties in trying to set up and manage a business,
· the hard work to which you have applied yourself since arriving in Australia,
· the care and attention that you have provided your aged mother,
· the commitment you have made to your daughter's education,
· the remorse and regret that you have expressed to your daughter,
· your time spent in remand custody,
· that your offending was not motivated by pure greed but in the context of self-created financial difficulty, and
· that all the property being the proceeds of crime will be returned to the appropriate owners.
41In mitigation in your case, Mr Trang, I have taken into account the submissions of your counsel and in particular I accept:
· your plea of guilty and the time that it was entered being at an early stage,
· that you are a mature man and have not previously offended and have no matters pending,
· that your offending was in the context of assisting your wife who was experiencing financial difficulty, and,
· again, that all the property being the proceeds of crime will be returned to the appropriate owners.
42Mr Trang, could you please now stand.
43In my view, the purpose for which the sentence is imposed in your case can be achieved by a sentence which involves a community correction order. You have been assessed as suitable for such an order.
44On Charge 1 of knowingly deal with the proceeds of crime, you are convicted and ordered to serve a community correction order for a period of two years.
45The community correction order commences today and ends on 11 February 2018. The Corrections centre you will attend is the Sunshine Community Corrections Centre at 10 Foundry Road Sunshine, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm on Tuesday 16 February.
46All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer,
· you perform 150 hours of community service,
· you participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation - and that may include employment, educational, cultural and personal development programs as directed by the regional manager. That is designed to help you, so you should embrace that opportunity. Do you understand that?
47All right. Now I understand that you have had the mandatory terms of the community correction order explained to you, but I will just go over them again. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force,
· you must report to and receive visits from a community corrections officer,
· you must report to the community corrections centre, that is the Sunshine centre, within two clear working days of the order starting, and as I have already indicated, that is by 4 pm this Tuesday 16 February,
· you must notify a community corrections officer of any change of address or change of employment within two clear working days after the change,
· you must not leave Victoria without first getting permission to do so from a community corrections officer,
· you must obey all lawful instructions from and directions of community corrections officers, and such directions may be given either orally or in writing.
48Do you understand and agree to those conditions, Mr Trang?
49OFFENDER TRANG: (Through Interpreter) I understand and I do agree to the order.
50HIS HONOUR: Thank you. If you become sick or if there are exceptional circumstances, the order may be suspended for a period of time. If your circumstances materially alter, you may apply for a variation or a cancellation of the order. In either case, you must notify the Sunshine Community Corrections Centre, and if any of those things occur I recommend that you obtain legal advice.
51However I must warn you that if you breach any condition of this order you will be brought back before me, and one of the options open to me is to cancel the community correction order and re-sentence you for the original charge. I can also deal with you for the breach - because it is an offence as well - by sending you to prison for up to three months.
52So Mr Trang, do you understand the consequences of breaching your community corrections order?
53OFFENDER TRANG: Yes, I do. I do understand.
54HIS HONOUR: All right. That community correction order can be passed to Mr Trang now for his signature, and you can leave the dock for that purpose. Yes. If you just come up behind your counsel.
55(Community correction order signed and acknowledged.)
56Mr Trang, you will receive a copy this written document and if you have any questions, you can deal with that with the assistance of the interpreter through your counsel today after I leave the Bench.
57Do you understand that?
58OFFENDER TRANG: Yes.
59HIS HONOUR: Thank you very much.
60Ms Tran, could you please now stand.
61In my view, the objective gravity of your offending combined with repeated prior convictions for similar offending, and your breach of a previous sentence imposed by this court, is such that the purpose of sentencing cannot be achieved without a sentence of imprisonment.
62On Charge 1 of knowingly dealing with the proceeds of crime, you are convicted and sentenced to 22 months' imprisonment. On the breach proceedings in case AP-13-2827, I find the breach proven. I direct that the suspended sentence of six months be wholly restored. I make no order on the charge on the breach summons.
63I direct that two months of the sentence on the breach proceedings be served cumulatively on Charge 1 on the indictment. The total effective sentence is 24 months' imprisonment and I direct that you serve a minimum of 15 months' imprisonment before being eligible for parole.
64Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 203 days not including today be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
65For the purposes of s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment of 3 years with a non-parole period of 2 years.
66All right, you may be seated for the moment. Is there anything else from either counsel?
67MS HASSAN: No, Your Honour.
68MR McMONNIES: No, Your Honour.
69HIS HONOUR: All right, there's nothing else? 10.30 Monday.
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