Director of Public Prosecutions v Truong

[2018] VCC 540

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01196

DIRECTOR OF PUBLIC PROSECUTIONS

v

HANH TRUONG

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 April 2018
CASE MAY BE CITED AS:	DPP v Truong
MEDIUM NEUTRAL CITATION:	[2018] VCC 540

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Brown
For the Accused	Ms V. Ash

HIS HONOUR:

1Hanh Truong, you have pleaded guilty to the following offences; (i), import tier 2 goods, contrary to s.233BAB(5) of the Customs Act 1901. The maximum penalty for that offence is ten years' imprisonment.

2Four charges of possession of a drug of dependence, contrary to s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981. The maximum penalty in the circumstances of this case is 12 months' imprisonment.

3Two charges of being a prohibited person in possession of a firearm, contrary to s.5(1) of the Firearms Act 1996. The maximum penalty for that offence is
ten years' imprisonment.

4One charge of possession of an unregistered, general category handgun, contrary to s.7B(1) of the Firearms Act 1996. The maximum penalty for that offence is seven years' imprisonment.

5Two charges of being an unlicenced persons drawing a firearm in an insecure manner, contrary to s.129A of the Firearms Act 1996. The maximum penalty for that offence is four years' imprisonment.

6And one charge of manufacturing a firearm without a licence, contrary to s.59A(2) of the Firearms Act 1996. The maximum penalty for the offence is ten years' imprisonment.

7You have also pleaded guilty to the following related summary offences. Two charges of possession of prohibited imports, contrary to s.233(1)(d) of the Customs Act 1901. The maximum penalty for that offence is a fine of 1000 penalty units.

8One charge of manufacturing a prohibited weapon, contrary to s.5(1)(c) of the Control of Weapons Act 1990. The maximum penalty for that offence is
two years' imprisonment.

9One charge of committing an indictable offence whilst on bail, contrary to s.30B of the Bail Act 1997.  The maximum penalty for that offence is three months' imprisonment.

10And one charge of possession of cartridge ammunition, contrary to s.124 of the Firearms Act 1996. The maximum penalty for that offence is a fine of 40 penalty units.

11You pleaded guilty at committal mention and your plea is properly characterised as an early plea.  Furthermore, after the matter was listed for plea in this court, the prosecution submitted that a decision of the New South Wales Court of Criminal Appeal in the Commonwealth Director of Public Prosecutions and Speedy Corp Pty Ltd, 2016, NSWCC8264, may be relevant to the legality of the collection of evidence by investigating police in your case.

12Following this submission by the prosecution you maintained your intention to plead guilty.  I accept that your plea has spared the community a potentially complex criminal trial and it is evidence of true remorse in your case.  In my opinion, it was properly characterised as a high value plea of guilty.

13You have admitted a criminal history dating to 2000, involving a number of convictions an court appearances for drug related offending.  You have, by my reckoning, five prior convictions for trafficking heroin.  The last of which was in 2011.  Although, your counsel submitted that this involved offending that had occurred in 2001.

14With the exception of the court appearance in 2011, you have not appeared before a court since 2001.  Furthermore, I accept that your past offending is directly related to your longstanding addiction to heroin.

15A prosecution opening was read to the court and tendered in evidence, setting out the details of the evidence relied upon in support of the charges that you have pleaded guilty to.  I do not propose to repeat that evidence in detail.  However, your offending may be summarised as follows:  between
14 September 2016 and 30 October 2016, Australian Border Force officers seized seven consignments of firearm components and accessories, addressed to you, that had been posted from the United States and from Hong Kong.

16Following the seizures, a search warrant was executed at your premises in Mildura.  During which, ABF officers and Victoria police investigators located the following items:  numerous springs and handgun components; a foil containing one point of heroin; a small deal bag containing heroin; a small deal bag containing methylamphetamine; two complete Airsoft hand under your bed, being a Glock G26 style handgun and a Beretta M9 style handgun and adapted firearm stock; numerous frames made by you using a 3D printer; four firearm slides matching a Glock handgun; nine firearm magazines; two barrels for a Glock handgun; one trigger mechanism; and two parts of a device used to convert a firearm.

17The investigators also observed a 3D printer in the process of constructing the frame of a Glock handgun.  You were arrested by investigators and participated in a record of interview.  During which you made a number of admissions, but denied the firearms were to be used in other criminal activity.  You also advised investigators that it was likely that further consignments, addressed to you, would arrive in Australia.  You were charged and released on bail.

18Between 20 November 2016 and 19 January 2017, a further 13 consignments, addressed to you, arrived from the USA and from Hong Kong that also contained firearm components and accessories.

19Following these seizures, a further warrant was executed by ABF officers and investigating police on 9 February 2017.  The investigators again observed a 3D printer actively printing a Glock handgun frame and also, during the course of the search, located the following items:  three Glock 9mm magazines; one slide for a Glock handgun; one Glock barrel for a handgun, a Glock handgun that had been manufactured using a 3D printed frame, one soft air handgun; eight 3D printed Glock handgun frames; a zip lock bag containing approximately half a gram of heroin; two snap lock bags containing approximately one gram of methylamphetamine; a bag containing $15,760 in cash; a quantity of firearm parts to be used in the manufacture of firearms; and three .22 calibre live ammunition arounds; one 40 calibre handgun ammunition round; one 40 calibre, non-lethal, training round.

20A search warrant executed at premises at 69 Hazeldene Street, Mildura, also revealed two mail packages addressed to you from the US to your premises at 55 Matthew Flinders Drive, Mildura.  Components in respect of a 1911 revolver handgun; a further quantity of firearm parts and a receipt from Brownells, Iowa, addressed to you.

21Following the search you were arrested and interviewed by investigators in a record of interview, during which you made a number of admissions, but denied that the firearms and the firearm components were for use in other criminal activity.  You were charged and remanded in custody, where you remained until bail was fixed on 19 May 2017, on condition that you reside at Odyssey House; an inpatient drug rehabilitation clinic.

22It was submitted on your behalf that I could not be satisfied that your manufacture of handguns and related importation and possession of handgun components and accessories was for the purpose of the weapons being used in other criminal activity or for the purpose of sale, or such activity by you or on your behalf.

23In support of the submission your counsel relied on the decision of the Court of Appeal in Berichon and Houssein v The Queen [2013] VSCA 319. Mr Newton submitted that yours was a case where I could not conclude that the manufacture and possession of the firearms was not associated with ongoing criminal activity. He submitted that your activity was the product of a temporary and technical interest in firearms and the manufacture of them using 3D printer technology.

24This submission was not contested by the prosecution, who also accepted that the small quantity of illegal drugs of dependence and the cash located at the premises during the course of the search on 9 February 2017 were not relevant for these purposes.

25I have also had regard to the photographs taken of the plastic firearm componentry produced by the 3D printer and it is plain that what was produced is of poor quality.

26Nevertheless, I accept that the manufacture of firearms and the importation of firearm parts is properly characterised as serious offending.  Firearms pose a serious threat to the safety and wellbeing  of the community and they are a prominent feature in many serious crimes.

27Accordingly, general deterrence and the protection of the community are important sentencing considerations in this case.  Specific deterrence is also an important consideration in your case.  You have a criminal history, albeit you have not offended since 2001.  But in this case you have reoffended whilst on bail, for like offences and this is clearly an important consideration in relation to the need for specific deterrence in your case.

28I now turn to your personal circumstances.  You were born on 18 May 1982 in Vietnam and are now aged 35.  Your family travelled to Australia by boat when you were an infant.  Your parents worked in garment manufacture and restaurants and worked extremely long hours.  You and your older brother fell into heroin use when you were a teenager, and your drug addiction has seriously disrupted your development and adult life.

29You have completed Year 9 of secondary school.  Your family now operate a farming contracting business in Mildura and you were residing there and employed in that business when your offending occurred.

30Your heroin use has continued intermittently throughout your life, or throughout your adult life.  Although, at the time of your offending this use had re-escalated.

31You have been married twice and have two children, aged eight and four, with your current wife.  Another child resides in Alice Springs.  Your youngest child has recently suffered from a serious illness and I accept that you are now desperate to return to you wife and young children.

32I have received in evidence a psychological report of Ms Pamela Matthews, setting out your background and psychological history and profile.  I accept that you suffer from longstanding polysubstance abuse disorder, which requires ongoing support and treatment.

33Following a number of unsuccessful applications for bail in the Magistrates' Court, you were admitted to bail on 19 May 2017, on condition that you reside at Odyssey House and undertake treatment there.  You took up that residence on 9 May 2017 and you have made significant progress toward your complete rehabilitation.

34I heard evidence from Mr Brendon Smithers, a councillor and case worker at the centre, and I accept that you have progressed well in the program, are drug free and now occupy positions of responsibility at Odyssey House.  I also accept, based upon Mr Smithers' evidence and the experience of the courts in matters such as yours, that your rehabilitation would adversely impacted if you were now required to return to prison.

35You have no resided under strict conditions in Odyssey House for 323 days and furthermore, I am required to have regard to the punitive element of the residency as stated by the Court of Appeal in Akoka v The Queen [2017], VSCA 214.

36In total, you have served 109 days in prison on remand and 323 days in the strict conditions, relevant to you, at Odyssey House, since you were charged with the second group of offences before the court on 9 February 2017.  The time that you have resided in Odyssey House is not, however, to be reckoned as presentence detention.

37Your counsel submitted that it was incumbent upon me to investigate a non-custodial disposition in your case and relied on the statement of the president of the Court of Appeal in the DPP v Tokava [2006] VSCA 156, where His Honour stated:

"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred, even in a case of a serious offence, if in the long term the communities interests will be best served by that course.  This Court should seek to promote understanding of the fact that - apart from the interest of the individual whom it is sought to rehabilitate, an important interest in itself - there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime".

38Having given this matter careful consideration, and with the benefit of helpful evidence and submissions from both your counsel and the prosecution, I had you assessed for suitability for a community correction order, in respect of the state jurisdiction charges that you face.  You were assessed as suitable for that disposition.

39Furthermore, it was also accepted by the prosecution that it was open to me to impose a reconnaissance release order, following a term of imprisonment in relation to the Commonwealth charges you face on the indictment.

40Having carefully considered the material before me I have concluded that your prospects of rehabilitation are excellent.  And in my opinion the purposes for which this sentence is to be imposed will be best served by a sentence that is structured in a way that will support your ongoing rehabilitation and will not result in you returning to imprisonment.

41In the result, the sentence of the court is as follows.  Would you stand up please.

42On Charge 1 on the indictment, you are convicted and sentenced to a term of nine months' imprisonment.  I direct that that sentence commence on
20 January 2019.

43On Charge 7 on the indictment, you are convicted and sentenced to be imprisoned for 12 months.  I direct that that sentence commence this day, that is 20 April 2018.

44This makes for a total effective term of imprisonment of 18 months' imprisonment.

45Pursuant to s.20(1b) of the Crimes Act 1914, Commonwealth, I direct that you are to be released after serving 109 days' imprisonment on a reconnaissance release order, in a sum of $500, to be of good behaviour for a period of two years. I declare that you have served 109 days by way of presentence detention.

46On Charges 2, 3, 4, 5, 6, 8, 9, 10, 11 and 12 on the indictment, and summary Charges 3, 16 and 17; you are convicted and ordered to serve a community correction order for a period of two years on the usual core conditions.  I order the following special conditions:  you be under the supervision of a community correction officer for the period of the community correction order; you undergo assessment and treatment, including testing for drug abuse and dependency as directed; you undergo a mental health assessment and treatment as directed; you attend at this court for judicial monitoring on 19 October 2018, at 9.30; you undertake drug treatment and counselling as directed by Odyssey House for the period of the order.

47On summary Charges 2 and 4, you are convicted and ordered to pay a fine of $500 in relation to each charge.  I order a stay of three months in relation to the payment of the fine.

48But for your plea of guilty, I would have imposed a total effective term of imprisonment in relation to the Commonwealth charges of three years and ordered that you be released on a reconnaissance release order after serving one year and six months imprisonment.

49I have made the ancillary orders sought by the prosecution.

50MS ASH:  As Your Honour pleases.

51MS BROWN:  As Your Honour pleases.

52HIS HONOUR:  All right, now, do you agree to entering a community - or community corrections order, Mr Truong.  It'll have to be two, because of the way the charges have been filed with this court.  And a reconnaissance release order in the sum of $500?

53OFFENDER:  Yes, Your Honour.

54HIS HONOUR:  Thank you.  Now, I'll sign the reconnaissance release order.  You'll have to come out of the dock.  You can sign that reconnaissance before my associate and I'll sign the two community correction order, and you'll have to sign those.  Copies will be made and provided to you.  Your solicitor will explain to you the effect of these orders.  You'll be released from prison, I assume, today.  Well, you're not in prison, you're on bail.  Sorry.  You have to report to the Sunshine Office of Corrections within two clear working days of the commencement of this order.  So that's either this afternoon or by the close of business on Monday, all right?

55(Community-based order signed and acknowledged.)

56He can be seated in court, he doesn't have to go back into the dock.  I'll email those orders to the parties, Ms Brown.

57MS BROWN:  Thank you, Your Honour.

58MS ASH:  Thank you, Your Honour.

59HIS HONOUR:  It's complex.  There's three files.

60MS BROWN:  It's not helped by the fact that there are the three separate ‑ ‑ ‑

61HIS HONOUR:  Yes.

62MS BROWN:  Yes.

63HIS HONOUR:  And three separate jurisdictions as well, really.  The summary matters, the state jurisdictions and the federal jurisdiction.  All right, thank you.  So those orders will be emailed.  Thank you both for your assistance.  This has been a complex matter and you both, including Mr Newton, of course, have been of great assistance.

64MS BROWN:  As Your Honour pleases.

65HIS HONOUR:  You're all free to leave.  You'll explain the CCO to your client.

66MS ASH:  I will, Your Honour, thank you.

67HIS HONOUR:  All right, thank you.

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