DPP v Tran
[2012] VCC 725
•31 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00472
CR-12-00468
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BAO QUOC TRAN & VAN HOA TRAN |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2012, 31 May 2012 | |
DATE OF SENTENCE: | 31 May 2012 | |
CASE MAY BE CITED AS: | DPP v Tran, Bao Quoc & Tran, Van Hoa | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 725 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms L Bolkas | Office of Public Prosecutions |
| For Accused B. Tran For Accused V. Tran | Ms J Clarebrough Mr J Valos | Pica Criminal Lawyers Valos Black & Associates |
HER HONOUR:
1 Bao Quoc Tran, you have pleaded guilty before me to two charges of trafficking in a drug of dependence; the maximum penalty for that offence is 15 years imprisonment. You have also pleaded guilty to two charges of possession of a drug of dependence; the maximum penalty for that offence is in your particular circumstances a fine of 50 penalty units. You have further pleaded guilty to one summary offence of dealing with the proceeds of crime and the maximum penalty for that offence is two years imprisonment.
2 Van Hoa Tran, you have pleaded guilty before me to one charge of trafficking in a drug of dependence; for which the maximum penalty, as I said, is 15 years imprisonment and to one charge of possession of a drug of dependence; the maximum penalty, in your circumstances being 50 penalty units. You have further pleaded guilty to one charge of dealing with the proceeds of crime and the maximum penalty for that offence is two years imprisonment.
3 The facts of this matter were opened by the prosecutor and a summary of the prosecution opening was tendered as Exhibit A on the plea. In 2001, Operation Screech was commenced by Victoria Police in relation to the trafficking of heroin and amphetamine in Braybrook and surrounding suburbs. The investigation focused on your activities in running what the prosecution called "two arms of a drug syndicate". You were the main focus of the investigation, which included the use of telephone intercept warrants on mobile telephones belonging to Bao Quoc Tran and Ivan Passfield and the use of a covert operative, C0270, or CO270, who made several purchases of drugs from you, Bao Quoc Tran, and you Mr Van Hoa Tran, filled each order for those drugs requested by the covert operative.
4 Bao Quoc Tran, your mobile phone analysis revealed 519 evidentiary calls and texts, involving sales of relatively small amounts of heroin and methylamphetamine, but the total cost of the purchases made by the covert operative, 270, was $37,250. Each transaction is detailed in Exhibit A and reveals an escalating quantity of purchased drugs as CO270 asked for larger amounts. You made every effort to fill those orders and Van Hoa Tran assisted by providing the requisite amount of heroin or methylamphetamine to fill each order.
5 On 21 June 2011, covert operative 270 met you, Bao Quoc Tran and gave you $18,000 in cash of which the serial numbers had been recorded by police. Covert operative 270 then followed you and another co-accused to shops on Furlong Road, Sunshine North, where you handed the covert operative 21 grams of heroin and one ounce of methylamphetamine. The vehicle you were in was then intercepted and drugs and cash were located in the vehicle. $1,200 of the $3,500 found, was identified as money provided by the covert operative to you. You were arrested on that day.
6
A search warrant was also carried out at your residential address, 19 Dalton Street, Sunshine West, where eight mobile phones, three sim card packages and a total of 4.9 grams of cannabis and digital scales were found. A warrant was also executed at 32 Fremont Parade, Sunshine West, where you,
Mr Van Hoa Tran were arrested and police seized nine mobile phones, a quantity of heroin, methylamphetamine and a cutting agent and 27 grams of cannabis in a laundry basket. Also located in various parts of the house, including individually placed notes, between the pages of a Yellow Pages directory, was a total of $22,335 in cash. Both of you were interviewed, following your arrests on that day and neither of you made admissions.
7 The prosecution put this trafficking at the higher end of simple trafficking in of a drug of dependence. This is indeed serious trafficking and although it has been urged on me, in relation to you, Mr Bao Quoc Tran, that you trafficked very small amounts, you trafficked with great frequency and I accept that and when requests were made of you for bigger amounts, you showed yourself willing to source them.
8 I will now deal with both of you separately in relation to your personal circumstances, though I do note that the offending of each of you is rooted in your own heavy dependence on drug use over a long period of time. Bao Quoc Tran, you entered a plea of guilty at the time the matter was listed for a committal hearing which in the event did not proceed. I accept this as an early plea of guilty. You have a number of prior convictions and have previously served a 16 day custodial sentence, imposed by the Sunshine Magistrates' Court for dishonesty offences. Apart from that, this has been your first time in custody.
9 You were released, as I understand it, on 20 June 2011, from that previous sentence. That was the day before your arrest for these current matters. On that basis, the 16 days you had spent in custody were deemed time served and you were released on a community corrections order in relation to some minor drug offences and dishonesty offences and for a breach of an earlier order, imposed on 13 November 2008 at the Sunshine Magistrates' Court for theft and possessing a controlled weapon.
10 You were also before the Moonee Ponds Magistrates' Court on 14 May 1998 in relation to possession and use of heroin and also before the Melbourne Magistrates' Court on 9 February 2000 for possession of heroin, possession of cannabis, use of heroin and possession of a prescription drug of dependence. You were fined for all those matters without conviction. This is a relatively minor criminal history for someone who has had a heroin addiction since they were 17. I understand when you were 17, you were taken to Vietnam by your mother and underwent detox. You returned to Australia at age 18 and began to work and you maintained employment for some ten or 11 years.
11 You partnered in that time and had two children but you returned to your use of drugs, which escalated due to problems you were having with your partner. You separated from her when you were 29. Your ongoing drug use then resulted in you losing your job at Toyota and you found yourself at that age without work for the first time since you were 18. The loss of your employment was due to your drug use and depression, However since you have been in custody, you have had no negative incidents and have applied to attend drug and alcohol courses, However this has not been possible while you’ve been on remand and at this stage you are still waiting.
12 In the meantime, your health has improved and you have put on some 20 kilograms in weight. You appear to have had insight into your offending and are extremely apologetic, as reported by Mr Jeffrey Cummins in a report, tendered as Exhibit 1 on the plea. Mr Cummins assessed you as being of high/average intelligence. He indicated that you are self-critical and accept that you only have yourself to blame for this present situation. Mr Cummins reports that you have a capacity to be reformed and you have already started down that path.
13 You have never applied for bail since your arrest as you sought the opportunity of being in custody to detox and to get started, as you put it, on the punishment, which was to be applied for your misdeeds. Clearly the hardest part for you will be when you are released from prison and you will probably need to undertake rehabilitation to ensure that you do not fall back into the same trap and find yourself back before this court at a later stage. I understand that when you are released, you will reside with your mother and family and I take all of those matters into account. I also note that you hope to reunite with your partner and children but there is no sign of that actually eventuating at this stage.
14 I also had a letter tendered as Exhibit 2 on the plea which you had personally written to the court explaining how your life spiralled into depression during the end of your relationship with your partner. You say that you have remained drug free since you have been in custody and have not been medicated in any way. You explained in that letter that you work as a canteen billet and said you are treated with respect by the officers and by your peers, resulting in you obtaining a rare status, which is essential for a working prisoner.
15 You expressed your understanding of the pain and suffering you have caused to those around you and express your deep sorrow and regret for your actions. You indicate that you wish to do the right thing in pleading guilty. That all seems to correspond directly with what Mr Cummins said in his report, in that you showed an unusual degree of insight into your offending and your situation.
16 Mr Van Hoa Tran, you are the eldest of nine children, of a South Vietnamese family. Five of your brothers were killed in the war or immediately after. You, yourself made an unsuccessful escape attempt with one of your older brothers when you were aged 15 and as a result of that, you and your brother were imprisoned. You witnessed many people being shot when you were captured and you learnt that your family's property had been confiscated when you were released from prison, as you found that your remaining family were living with relatives and no longer in their own home.
17 When you were 17, with the assistance of your mother you made another escape attempt, your mother providing some $1000 for you. You managed to reach Indonesia that time and another brother living in Australia, sponsored you to come to this country from a refugee camp in Indonesia. When you arrived, you undertook a six month course to assist you in English and you worked for some four years in two different factories. You also worked with your brother, who was a butcher and had his own shop and you were not engaged in any illegal activities until your mid 20s, when you began to use cannabis. However, you still managed to remain employed and did not come to the notice of police for any criminal offending.
18 In 1990, you opened your own fruit and vegetable store, which unfortunately failed. It led to you becoming significantly depressed and you began to use heroin at that stage, when you were 36 years old, which is indeed a late stage to begin using such a drug. Friends provided you with heroin to help you cope with your depression as a result of the loss of your business, which resulted in you becoming dependent on heroin. You have been unemployed for most of the last ten years and you are now aged 47. You are on Methadone whilst in prison, but that does not prevent your craving for heroin and you hope to be able to change to Suboxone.
19 In a report authored by Dr Aaron Cunningham, dated 16 May 2012, you were diagnosed as having a substance use disorder and you present with a dependence to opiates. You further continue to present symptoms of trauma, stemming from your experiences in Vietnam. Dr Cunningham assessed you as being in the range of a moderate risk of re-offending and these are matters which I need to take into account.
20 You were married for some 14 years and have a 12 year old child. You have an ambition to remain drug free on your release in order to reunite with your wife and to address the problem of your absence from your son's life. It is hopeful that those aims may assist you in remaining drug free and obtaining suitable treatment when you are released from prison.
21 Dr Cunningham expressed an opinion that you would benefit from a disposition to facilitate your rehabilitation and that you are in need of drug and alcohol treatment if you are in the community. You may also need some psychological intervention to assist you in coping with the stresses that you have experienced throughout your life. You also expressed your deep regret at your offending behaviour to Dr Cunningham. I understand that your relationship with your wife ended because she would not put up with your use of heroin around your child.
22 You too have a prior criminal history. Your first offending occurred in 2006 and on 15 March of that year, before the Melbourne Magistrates' Court, you received a six months term of imprisonment, wholly suspended for 12 months for trafficking heroin and a community based order in relation to possession of drugs and dealing in property, suspected of being proceeds of crime. That order was clearly designed to assist you. It provided that you should undergo assessment and treatment for alcohol and drug addiction and to submit to medical, psychological assessment and treatment. The order was to last for 12 months and on my estimation, you received that first sentence when you were 38 years of age.
23 On 2 February 2007, you were again before the court for breaching both the community based order and your suspended sentence and that was the first sentence you served. You served that six months. On that date you were also convicted and sentenced to 18 months in relation to handling stolen goods and dealing with property, suspected of being the proceeds of crime and for possession of methylamphetamine, for which you were actually fined. You had a non-parole period of 12 months. You were also dealt with for trafficking heroin on that date and you had obviously been on remand for some 154 days, which was reckoned as time served.
24 On 2 February 2009, you were again before the Melbourne Magistrates' Court and sentenced to an aggregate term of 15 months imprisonment for trafficking heroin and amphetamine and dealing with the proceeds of crime and your minimum non-parole period was set at six months.
25 On 8 December 2008, you were again before a Magistrates' Court, this time at Heidelberg, for possessing heroin, prescription drugs, using heroin, dealing with properties suspected of being proceeds of crime and driving whilst disqualified and you received an aggregate of two months imprisonment. You had already served 135 days on remand as I understand it.
26 Your counsel made submissions that during periods when you were under supervision of the parole board, you did not re-offend, nor did you, on the occasion when you were bailed, subject to the CISP program from the Magistrates' Court and you did not offend until after that program had finished.
27 Your brother who has his butcher shop in Melbourne was present in court and is again today. He indicated that you can go and live with him when you are released and as I understand it, your wife has always visited you and takes your son to visit you as well, so you have maintained those family ties. In relation to this matter, there is an obvious escalation in your offending. You responded to requests to fill the orders of the covert operative. It appears you had been living, at the time of this offending, in a bungalow at the rear of a property, organised for you by the people who supplied you with the drugs.
28 I also note that you were originally charged with more serious offending to which you have eventually pleaded guilty. Your counsel argued that of the last six years, you have spent four of them in gaol and that it is important to consider rehabilitation in addition to the aspect of punishment in any sentence which I impose.
29 It is clear that both of you have come from difficult backgrounds. You, Mr Van Hoa Tran obviously have had traumatic experiences in leaving your country of birth and I take all those matters into account. I also take into account your pleas of guilty and the other mitigating factors put by your respective counsel on your behalves. I have also taken into account the other matters which are relevant to the sentence I am to impose on each of you today; that is, the need to deter other members of the community from engaging in trafficking of drugs. This is very important in any sentencing decision, as the trafficking of drugs is rife in our community.
30 I must also consider the need to deter each of you specifically from offending and I note that you have both been subject to severe addiction to heroin and have both had opportunities and have failed to this point to change your lives and enter a phase of appropriate rehabilitation, except within the prison system or under supervision. I also take into account the length of time you have spent in prison, which will particularly for you, Bao Quoc Tran, I am sure have a significant deterrent effect on you. Hopefully by both of you having a period of parole, it may assist you in ensuring you do not fall back into your drug use and further offending.
31 I am required to denounce your conduct on behalf of the community and I do so. The community will not condone, in any way, those who sell drugs into the community, which go towards destroying the lives of those who succumb to their use and the lives of those around them, in particular their families and children.
32 Finally, I am to impose just punishment and having carefully considered all of the matters that I have referred to, I have reached the obvious conclusion that the only appropriate sentence for each of you is to serve a term of imprisonment. I note that there is some difference in your positions, because I note that Mr Van Hoa Tran has had several prior convictions for trafficking in heroin, whereas for Mr Bao Quoc Tran, this is his first appearance for trafficking.
33
Mr Bao Quoc Tran, would you stand up for me please? In relation to
Charge 1, you are convicted and sentenced to 24 months imprisonment. In relation to Charge 2, you are convicted and sentenced to 16 months imprisonment. Four months of that sentence is to be served cumulatively on the sentence imposed in Charge 1. In relation to Charges 3 and 4, you are convicted and fined an aggregate sum of $600. In relation to the summary charge of dealing with the proceeds of crime, you are convicted and sentenced to four months imprisonment, one month of which is to be served cumulatively on the sentences already imposed. In my estimate, that is a total effective sentence of 29 months imprisonment and I order you to serve 16 months before being eligible for parole. I understand that you have already served some ten months, so that requires you to serve a further six months. I further declare that 345 days of pre-sentence detention be deemed time served and that the records of the court reflect that. In relation to s.6AAA, I declare that, but for your plea of guilty, I would have imposed a sentence of four years imprisonment, with two and a half years to serve.
34 Mr Van Hoa Tran, would you stand for me please? In relation to Charge 5, trafficking in heroin, you are sentenced to 30 months imprisonment and in relation to Charge 6, you are convicted and fined $400. In relation to the summary offence of dealing with the proceeds of crime, you are convicted and sentenced to four months, one month of that is to be served cumulatively on the charge in the sentence in Charge 5, so that makes a total effective sentence of 31 months imprisonment. I take into account in determining what you should serve, the fact that you have just finished serving a sentence which you will complete tomorrow, and I also take into account the fact that you have spent some six months in prison, which you could have been released on, were it not for these offences. You have really no time of pre sentence detention and therefore taking all those matters into account, and the presumption of the principles of totality, I have ordered that you serve eight months before being eligible for parole.
35 In relation to s.6AAA, but for your plea of guilty, I would have sentenced you to three years and ten months imprisonment, with 20 months to serve before being eligible for parole.
36 MS BOLKAS: Will Your Honour adjourn the pecuniary penalty order?
37 HER HONOUR: I am going to adjourn the pecuniary penalty order. I am also going to make the orders as to forfeiture, which I understand are made by consent, is that right?
38 MS BOLKAS: Yes, Your Honour.
39 MR VALOS: Yes, Your Honour.
40 HER HONOUR: The items in the schedule are to be forfeited. Further I will make the s.464 order in relation to Mr Bao Quoc Tran and also to Mr Van Hoa Tran. You, Mr Bao Quoc Tran are to undergo a forensic procedure for the taking of a scraping from your mouth. I am satisfied that the order is justified based on the seriousness of the offences. The order is not opposed and the granting of the order is in the public interest. I also have to inform you that an authorised member of the police force may use reasonable force to enable that forensic procedure to be conducted if you were to resist at the time.
41 Then, Mr Van Hoa Tran, I am going to make an order that the forensic sample and any related material and information that has already been obtained, will be retained for placement on a database. I am satisfied that in all the circumstances, the making of the order is justified for the following reasons: the seriousness of the circumstances of your offending, your prior convictions are such as to warrant the making of the order, the order is not opposed and it is in the public interest. The application for a pecuniary penalty order I will adjourn to a date to be fixed, in this court before me.
42 MS BOLKAS: As Your Honour pleases.
43 MR VALOS: As Your Honour pleases.
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