Director of Public Prosecutions v Trinh
[2022] VCC 192
•1 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02215
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MINH CHI TRINH |
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JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 July 2021, 9 September 2021, 23 February 2022 | |
DATE OF SENTENCE: | 1 March 2022 | |
CASE MAY BE CITED AS: | DPP v Trinh | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 192 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Trafficking heroin and possess proceeds of crime; Trafficking from pool hall under guise of legitimate business; Plea of guilty; Serious example of offending; Offender served 797 days of pre-sentence of detention before granted bail; Whether offender should serve further imprisonment or undertake community correction order; Whether in the circumstances community correction order sufficiently punitive to address the need for general deterrence, just punishment and denunciation.
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; DPP v Hermann [2021] VSCA 160; DPP v Dong [2020] VCC 298
Sentence: 2 years 2 months imprisonment with 30 month community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Mr M. Thomas | Kaczmarek Grigor Lawyers |
HIS HONOUR:
Introduction
1Minh Trinh, you have pleaded guilty to one charge of trafficking in a drug of dependence, namely heroin, between 14 March–10 April 2019. You have also pleaded guilty to a further charge of knowingly dealing with the proceeds of crime, namely AUD $172,338.70 and US $50 cash.
2At the hearing of your plea, Mr Roper appeared on behalf of the Victorian Director of Public Prosecutions and tendered and read to the court a summary of prosecution opening. Mr Thomas, who appeared on your behalf, accepted that summary as accurate and that it could form the factual basis for sentence. What follows as to the circumstances of your offending is largely based on that summary.
Circumstances of offending
3On 20 August 2018, police launched an investigation into heroin trafficking alleged to have been occurring out of the Tien Loi Pool Hall at 441 Victoria Street, Abbotsford.
4You managed that pool hall with Tien Loi Hoang and his partner Diem Thi Bich Vo. You also had associates who were involved in the enterprise and have been subsequently dealt with by the courts: Jackie Tran, Thuy Dong and his partner Phat Lu.
5Ostensibly, the pool hall operated like a tavern with pool tables and a bar. Your daughter, Huynh Trinh, was the licensee. The investigation revealed that the pool hall was poorly run, did very little legitimate business and was effectively operated as a front for the trafficking of heroin.
6You engaged in the ‘hands-on’ trafficking of heroin from the pool hall with Thuy Dong and Jackie Tran. You were observed by investigators opening and closing the business and regularly attending early in the morning and leaving late in the afternoon or evening. There was a large roller door and common area at the rear of the hall with a door that led to the laneway, which served as a thoroughfare to the car parking area. You and your co-offenders hid the heroin to be sold in a yellow-lidded recycling bin which contained fake bottles and cans hiding various storage compartments.
7On 21 January 2019, investigators observed a person leaving the pool hall via the back door. Shortly afterwards, that person’s vehicle was intercepted in Johnston St, Collingwood. He was searched and found to be in possession of 2 x 1.7g packages containing a total amount of heroin of 3.4g. The packages were wrapped in black rubber packaging similar to that which was subsequently located on 10 April 2019 at the pool hall and two other addresses associated with you and your co-offenders. This incident does not form part of the trafficking charge for which you will be sentenced, however, it contextualises the investigation and the later discovery of heroin wrapped in similar packaging.
8In the period 14 March 2019–10 April 2019, policed used various techniques, including listening and optical devices, to conduct surveillance of you and your co-offenders. You, Thuy Dong and Jackie Tran were seen to have been engaging in activities such as restocking the supply of heroin from outside the building, participating in conversations about the trafficking of drugs relating to such matters as organising the drug transactions and providing detailed instructions to customers about the process of buying heroin at the pool hall.
9Many of the conversations the subject of surveillance were in Vietnamese and were subsequently translated and transcribed by qualified interpreters. A summary of the evidence captured by the listening and optical devices formed an appendix which was attached to the summary of prosecution opening on the plea. It is a 16-page document providing specific details of the nature of the transactions in which you participated directly or in which you were complicit. I have read that document carefully and have taken it into account for the purposes of formulating the sentence. By way of random example to provide some sense of how you and the others engaged in this trafficking, the following extract is taken from the entries describing activities on 27 March 2019:
| 27 March 2019 | 11:06am | A Caucasian male (frequent visitor) attends the Pool Hall and is greeted by Jackie TRAN. A drug transaction occurs. When the male leave TRAN goes to the bin, takes a garbage bag out, rummages in it, and then places it inside the bin. |
| 27 March 2019 | 12:48pm | A Caucasian male (frequent visitor) attends the Pool Hall and is greeted by Jackie TRAN. A drug transaction occurs. When the male leave TRAN goes to the bin, takes a garbage bag out, rummages in it, and then places it inside the bin. |
| 27 March 2019 | 4:09pm | An Asian male attend the Pool Hall and speaks to Minh TRINH. A drug transaction occurs. |
| 27 March 2019 | 5:22pm | Minh TRINH opens the bin and removes a black plastic bag. THRINH removes a can, unscrews the base and puts something inside and returns the can to the bag. TRINH does the same with a water bottle. TRINH then returns the can and the bottle to the plastic bag and places the bag back in the bin. |
| 27 March 2019 | 6:34pm | A Caucasian female attends the Pool Hall and speaks with Minh TRINH. TRINH and the Caucasian female are obscured by a wall. |
| 27 March 2019 | 7:15pm | A male (Tom PRAYAS) attends the Pool Hall and speaks to Minh TRINH. |
10On 10 April 2019, investigators executed search warrants at five different properties which were linked to you and your co-offenders. Those properties included the pool hall, your residence, your daughter’s residence, Thuy Dong and Phat Lu’s residence and the home of Jackie Tran.
11At the pool hall, police located 39 compressed rocks of heroin in black rubber wrapping, weighing a total of 149g. Of the six separately stored packages containing that heroin, your DNA was linked to three. Other items seized by police from the pool hall included a set of small electronic scales, five notebooks which appear to record drug transactions, multiple black bags used to wrap the compressed rocks of heroin, and AUD $39,443.70 cash.
12Among the items located at your home were a number of black plastic bags and black balloons similar to those which were used to wrap the heroin, and a total of AUD $12,885 cash together with US $50 cash. At Thuy Dong’s residence investigators seized a significant amount of drugs which relevantly included 168g of heroin at 19% purity in three separate black rubber balloon packages of 56g each. Your DNA was located on the packaging of each of those packages.
13At your daughter’s residence, AUD $120,010 cash was also seized.
14AUD $5,135 cash was seized from Jackie Tran’s residence, as were two crown casino gambling chips valued at $5,000 each. It should be noted that the money from Jackie Tran’s house does not form part of the second charge to which you pleaded guilty.
15When interviewed by police, you denied trafficking in heroin. You essentially claimed that your work associated with the pool hall was legitimate and that you did not know the co-offender Thuy Dong, although you admitted to knowing Jackie Tran.
16The trafficking charge to which you have pleaded guilty comprises the possession of an aggregate of 317g of heroin (that is, 149g recovered from the pool hall and 168g recovered from Thuy Dong’s house) with a purity in the order of 18–19%, together with the trafficking the subject of surveillance during the period 14 March–10 April 2019.
17The proceeds of crime charge involves a total of AUD $172,338.70 cash and US $50 cash, comprising AUD $39,443.70 seized from the pool hall, AUD $12,885 and US $50 seized from your house and $120,010 seized from your daughter’s residence. It is a rolled-up charge.
Procedural history
18As to the procedural history of this matter, you were charged and remanded in custody on 10 April 2019. Unfortunately, your trial was delayed due to the pandemic, however, after some pre-trial argument in June 2021, the matter resolved as a plea to the current indictment. You formally entered that plea on 9 September 2021. I should also indicate that you were granted bail on 15 June 2021, having spent 797 days in custody directly referable to these offences.
19Thuy Dong pleaded guilty to trafficking in a large commercial quantity of heroin, which comprised the trafficking he engaged in at the pool hall together with the separate possession of 2.0244kg of heroin at his home. He was sentenced on 20 March 2020 to a total effective sentence of nine years imprisonment and a non-parole period of five years and five months was fixed.[1]
[1] DPP v Dong [2020] VCC 298.
20By contrast, Jackie Tran’s matter was dealt with summarily. He pleaded guilty to one charge of trafficking in heroin simpliciter, based on his activities at the pool hall, and a charge of negligently dealing with the proceeds of crime comprising $44,578 cash, based on what was found at the pool hall and his home. He was sentenced on 25 September 2019 to 12 months imprisonment.
21Finally, with respect to co-offenders, your daughter pleaded guilty to one charge of possessing the proceeds of crime, being the $120,010 found at her home which belonged to you. She was placed on an undertaking to be a good behaviour for a period of two years with a further condition that she pay $1,000 to the court fund.
Personal History
22As to your personal history, there is some uncertainty about your precise age. You were born in southern Vietnam and it appears that, in the chaos associated with the Vietnam War, your family misrepresented your age and that of your seven siblings’ ages to avoid, amongst other things, conscription for your older brothers. Your official date of birth is February 1964, which would make you 58 years of age, however you believe that you were born in 1961 and that you would be approximately 60 years of age.
23Your father was a soldier in the South Vietnamese army who was seriously wounded. Your mother died when the factory that she was working in was attacked. You have memories of witnessing fighting and killing during the war and of remaining with your family in a remote farming area in the years 1975–1983 to avoid persecution
24You were only educated to about the level of Year 5 and have not furthered your education in later life. From the ages of approximately 14–22, you worked as a farm labourer until you were able to leave Vietnam by boat and travel to the Philippines. The boat trip itself was, on your account, harrowing – a number of passengers died from dehydration and exposure, and it seems that you were lucky to survive. You then spent a year living in a refugee camp in the Philippines before coming to Australia in late 1984.
25You settled in Melbourne and worked at the Ford factory in Broadmeadows until its effective closure in 1992. You married in 1993 and there are three children of that relationship aged 28, 27 and 19. In 1993, you started a dry cleaning business with your wife and then went on to work for Hardies Pipeline. In the late 90s you were involved in a workplace accident in which you were quite seriously injured. After spending some time in receipt of Workcover payments, you moved onto a disability support pension and have not worked since.
26I was told that you were using heroin occasionally in the four–five year period leading up to the commission of the offences, although you say that you have not used heroin since going into custody in 2019.
27In 2009, you divorced your first wife. You later formed a new relationship from which there is one child who is now five years of age. You are separated from her mother and currently live with one of your adult daughters. You have the substantial responsibility of caring for your youngest daughter. She has recently commenced primary school and you now spend a substantial amount of your time caring for her out of school hours.
28So far as your physical health is concerned, you still suffer from chronic lower back pain as a result of your work injury. You also have emphysema and hyperlipidaemia.
29Although you were not formally psychiatrically or psychologically evaluated for the purposes of your plea hearing, counsel suggested that there appeared to be mental health concerns which at least until recently remained untreated. After your release, you attended on Quan Nguyen, a psychotherapist who provided a report of 11 October 2021 which I have taken into account. I was told that you have been recently commenced on anti-psychotic and anti-depressant medication to help allay symptoms such as auditory hallucinations and “feeling like someone [is] standing beside him”.[2]
[2] Report of Quan Nguyen, Psychotherapist, 11 October 2021.
30As part of the orders I made before imposing sentence, you were assessed by the Mental Health Advice and Response Service attached to this Court. The helpful report provided indicates that you do have mental health difficulties that should be addressed but that you remain functional and able to carry out tasks such as caring for your youngest daughter.
31Your prior criminal history is limited to a series of fraudulently obtaining Social Security benefit charges committed in approximately 2002–2003. For those matters, you were ultimately convicted and fined $1,600 at one appearance in 2004. You have no other criminal history. Given the age and nature of that offending, I regard its relevance as marginal.
Defence submissions
32Mr Thomas submitted that your plea of guilty should be treated as one which was entered at a reasonably early stage, having regard to the resolution that was ultimately reached. Moreover, the utilitarian benefit of the plea, arising as it does in the circumstances of the pandemic, has saved the time and expense of a lengthy and potentially complex trial. It was further submitted that most of your time on remand was spent subject to the more onerous conditions necessitated by the pandemic.
33This matter has also incurred significant delay, mainly because of the pandemic. Mr Thomas submitted that the delay was punitive and that to the extent that you have had your liberty since June last year, a period of eight or so months, you have used that time to demonstrate that you have good prospects for rehabilitation. That is so because you have not reoffended, you have complied with all bail and court orders, you have a very limited criminal history and you have shown an ongoing commitment to your youngest child.
34The experiences you endured as a young person, it was also suggested, bear upon your moral culpability in the sense described in decisions such as Bugmyv The Queen (2013) 249 CLR 571 and DPP v Hermann [2021] VSCA 160. For reasons that I will discuss below, it was submitted that the sentence imposed on Mr Dong provides no guidance as to the sentence to be imposed on you. It was submitted, however, that some guidance could be gleaned from the sentence imposed on Mr Tran.
35Mr Thomas’s ultimate submission was that the various competing sentencing purposes here could be adequately addressed through the imposition of a sentence of imprisonment equivalent to your pre-sentence detention of just over two years and two months in combination with the further service of a suitably conditioned community correction order.
Prosecution submissions
36Mr Roper submitted that this was a serious example of non-commercial trafficking, involving as it did a significant quantity of heroin: 317g with a purity of 18–19% together with persistent sales over a month or so, where the guise of a legitimate enterprise was used to conceal the transactions. Moreover, the quantum of proceeds of crime was significant in that it was over $170,000 in cash and thus underlined the seriousness of your overall offending.
37That said, Mr Roper did not take issue with the matters advanced on your behalf in mitigation and acknowledged that your plea of guilty was significant, particularly given that it was entered in circumstances where the court is endeavouring to deal with a serious backlog of cases.
38Nevertheless, the sentencing purposes of just punishment, general deterrence and denunciation needed to take precedence with such serious offending. It followed, it was submitted, that a term of imprisonment was necessary to give effect to those sentencing purposes and to properly reflect the objective gravity of the offending.
39In his written submissions, the prosecutor further stated, “It is conceded that it would be open to combine that sentence with a community correction order. The duration of the custodial component – if a combination with CCO was imposed – will be a matter for the court to determine”.
Analysis
40In analysing these submissions, I should first deal with the dispositions imposed on your co-offenders. The trafficking charge to which Thuy Dong pleaded guilty involved over 2kg of heroin and was punishable with a maximum term of imprisonment of life and a standard sentence of 16 years. The sentence imposed on him of 9 years with a non-parole period of 5 years and 5 months needs to be seen in that context.
41By contrast, the trafficking charge to which you have pleaded guilty involved perhaps 15% of that quantity and is punishable by a maximum term of imprisonment of 15 years. There is no applicable standard sentence. In my view, there is very little basis for instructive comparison with Mr Dong’s sentence, other than to conclude that a considerably lesser sentence is indicated in your case.
42I do however take the view that your offending is certainly more serious than Mr Tran’s, bearing in mind that he was dealt with for only the heroin found at the pool hall (149g), and a lesser quantity of cash. It follows that, Mr Tran’s sentence of 12 months imprisonment points in the direction of a higher sentence to be imposed in your case.
43So far as your offending is concerned, I agree with Mr Roper that this should be regarded as a serious example of non-commercial trafficking. That must be so considering that the amount of heroin which you effectively possessed for sale was well over 60% of the then-applicable threshold for a commercial quantity of mixed heroin, and the frequency of trafficking over nearly a month, albeit at a relatively lower/street level, as disclosed in the police surveillance operation.
44I also agree that the significant amount of cash in which you knowingly dealt as proceeds of crime further illuminates the overall gravity of the offending for which you now fall to be sentenced.
45It is well recognised that trafficking in dangerous drugs such as heroin can, and does, ruin or damage the lives of countless members of our community, whether directly or indirectly. Those who seek to profit from that activity can only expect to receive little in the way of sympathy. In sentencing you it will therefore be necessary, as the prosecutor submitted, to emphasise the sentencing purposes of just punishment, denunciation and general deterrence.
46That said, as serious as those considerations are, I must nevertheless balance them against the matters that have been properly advanced in your favour.
47Your plea of guilty will merit a very substantial discount in the sentence that would otherwise be imposed. Once you were given the opportunity to plead guilty to an appropriate indictment, you did so – that attitude must be encouraged. Additionally, the utilitarian benefit of entering that plea in those circumstances requires me to further significantly discount the sentence.
48I accept that your traumatic experiences as a child and young adult are likely to have had a damaging impact on your development, and do bear upon your moral culpability.
49I also accept that because of your limited criminal history, your compliance with bail and court orders, your ongoing responsibility in caring for your youngest daughter and the fact that you have not reoffended do suggest that your prospects for rehabilitation are at least reasonable, if not good.
50The fact that the sentence of imprisonment you have thus far served has been under the very restrictive conditions necessary to deal with the pandemic and the fact that there has been punitive delay to the resolution of your case are matters that also weigh heavily in the sentencing calculus. Indeed, whether it is necessary to send you back to prison, having already served a lengthy term, adds a layer of greater complexity to the formulation of your sentence.
51I take the view that the period of imprisonment you have thus far served would ordinarily be regarded as sitting at the lower end of the range of non-parole periods that might have been imposed for your offending. My finding that this is a serious example of trafficking ought ordinarily mean that you should serve further imprisonment. However, since being granted bail you have established yourself on a stable and responsible path, seemingly towards rehabilitation. To send you back to prison in those circumstances is, I think, likely to be counterproductive. Factors such as your plea of guilty and the conditions under which have served your sentence thus far have also been influential in coming to that conclusion.
52Ultimately, I have come to the view, albeit with some hesitation, that the more punitive sentencing purposes that require emphasis in your case can be adequately addressed through the imposition of a community correction order. In Boulton,[3] the Court of Appeal examined the capacity of community correction orders to operate punitively:
“…a CCO is intrinsically punitive and is capable — depending on the length of the order and the nature and extent of the conditions imposed — of being highly punitive. It follows that, as a matter of principle, a CCO can operate to deter others. But, unlike a prison term, a CCO is not self-evidently punitive….Necessarily, the punitive features of a CCO will require explanation. The task of communication must begin with the sentencing court. When it is concluded that a CCO sufficiently punishes the offender for the offence, the reasons for that conclusion should be clearly set out.”[4]
[3] [2014] VSCA 342.
[4] Per Maxwell P, Nettle, Neave, Redlich & Osborn JJA at [124], [126].
53In your case, the punitive features of the order I impose will involve the following:
· You have already served a significant sentence of 797 days;
· You will now continue to be subject to the supervision of the Office of Corrections for the next 30 months;
· You will be required to report to and receive visits from the Office of Corrections;
· You will be required notify the Office of Corrections of any change of address or employment;
· You will be prohibited from leaving Victoria without the permission of the Office of Corrections;
· You will be required to comply with any direction given by the Office of Corrections necessary to ensure compliance with the order;
· You will be required to undertake 300 hours of community work within the first two years of the order;
· You will be subject to supervision from the Office of Corrections for the first 18 months of the order;
· You will be required to undertake testing and treatment for drug abuse;
· You will be required to undertake testing and treatment in respect of your mental health; and
· You will be required to attend court for the purposes of judicial monitoring to review your compliance with the order after the first 18 months of the order.
54Pursuant to s 48 CA of the Sentencing Act 1991 I will order that 50 hours of treatment undertaken be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
55Finally, you should understand that a contravention of any condition of the order is itself an offence punishable by 3 months imprisonment and that any such contravention, including the commission of further offences, renders you liable to be resentenced to the original offences.
56I am satisfied that an order conditioned in that way for that length of time beyond the sentence of imprisonment you have already served, represents an adequate continuing restriction on your personal liberty such as to address the more punitive sentencing objectives of deterrence, denunciation and just punishment, that must necessarily arise from your offending. In my view, the proposed order will also facilitate your rehabilitation with the caveat that any breach of the order will likely be met with a further lengthy term of imprisonment.
57I should also indicate that I am satisfied that it is appropriate to impose an aggregate term of imprisonment in respect of the two charges on the indictment. I am satisfied the two offences arise out of the same circumstances and are inter-related.
58Taking all relevant matters into account you will be sentenced as follows –
59On both charge 1 and charge 2 you will be convicted and sentenced to a term of imprisonment of 2 years and 2 months. Pursuant to s 44 of the Sentencing Act 1991, in addition to the sentence of imprisonment imposed in respect of both charges, you will be required to undertake a community correction order for a period of 30 months, conditioned in the manner outlined above.
60I will declare pursuant to s 18 of the Sentencing Act 1991 that you have served 797 days by way of pre-sentence detention and I will cause that declaration to be noted in the records of the Court.
61I further declare pursuant to s 6AAA of the Sentencing Act 1991 that but for your plea of guilty you would have been sentenced to a total effective sentence of 5 years and 6 months imprisonment with a non-parole period fixed at 3 years and 6 months. I will also cause that declaration to be noted in the records of the Court.
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