R v Tran

[2019] NSWDC 545

District Court

New South Wales

Medium Neutral Citation:	R v Tran [2019] NSWDC 545
Hearing dates:	15 July 2019
Date of orders:	15 July 2019
Decision date:	15 July 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of 4 year, 6 months with a non-parole period of 2 years, 8 months: at [12]
Catchwords:	SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Circumstances of offence SENTENCING — Mitigating factors — Remorse — Unlikely to re-offend — Rehabilitation — Plea of guilty — No record of previous convictions SENTENCING — Aggravating factors — Financial gain
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 R v Niketic [2002] NSWCCA 425 R v Qutami (2001) 127 A Crim R 369 Xiao v R [2018] NSWCCA 4
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown)   Van Tran (Offender)
Representation:	Ms I Ibbett (Crown) Mr G James QC (Counsel for the offender)
File Number(s):	2018/153893

Judgment

1. Van Tran was born in Vietnam in 1972, the youngest of nine children. He grew up during the horrors of the Vietnam War. His father was imprisoned for ten years, and his family’s circumstances were very difficult during those years. They fled from Vietnam as refugees when he was 14 years old after his father was released. They initially travelled by boat to Malaysia and were granted political asylum by the Australian government. The boat trip to Australia was traumatic, including an episode where they had been stranded without food or fuel for a period of two weeks. He spent some time in Villawood detention centre. He was granted permanent residency. Despite his deprived background which, as Mr James QC put, justifies a degree of consideration under Bugmy v The Queen (2013) 249 CLR 571, he did, as the Crown properly points out, contribute usefully as a functioning member of society in regular employment for many years thereafter.

2. He pleads guilty to one count under s 307.5(1) of the Criminal Code (Cth) of attempting to possess a border-controlled drug, namely, heroin, which carries a maximum penalty of life imprisonment, which is the yardstick to be taken into account in the sentencing process. I have also taken into account the sentencing principles set out in the Crimes Act 1914 (Cth). He has been in custody since 29 May 2018, and it is common ground that a term of full-time custody is required and should commence on that date.

3. In my view, he should receive a 25% discount on any term of imprisonment for his willingness to facilitate the administration of justice and the utilitarian value of the plea, in accordance with Xiao v R [2018] NSWCCA 4 as a result of the early plea.

4. The facts extend over ten pages of the Crown sentencing summary. They involve the importation of a package containing 12 kilograms of heroin. His role is uncontroversially summarised in the Crown’s submissions as being, that he spoke with people within the moving industry to assist him with processing customs clearance paperwork. He provided contact details of Mr Eichorn to others involved in the importation so that Eichorn could assist him to organise customs clearance. He contacted the Border Force to discuss the consignment. He engaged a customs broker to facilitate the clearance of the consignment and personally paid for their services.

5. He continued to communicate with Hai Son in order to ensure the clearance of the consignment. He collected it from the airport with the assistance of an unidentified male. He delivered the consignment to unknown recipients at an address other than the consignment address, being an underground car park. He stayed in the car park for about 34 minutes while the consignment was deconstructed, then he removed the packaging and the non-illicit interior contents of the package from the car park, and then drove the unidentified male to an address and both he and that male removed a white item from the offender’s car and delivered it to an apartment block. They disposed of the packaging at a petrol station.

6. The Crown accepts that his role is in the lower range of objective seriousness, notwithstanding the enterprise involving a substantial amount of drugs. Although he performed only a relatively minor role in the importation that does not necessarily entitle him to a significant degree of leniency.

7. The offending occurred between 7 and 16 May 2018. He had been working as a removalist and driver, operating a small business called Jimmy’s PC Removal Limited. The evidence shows that he has now lost that business and lost his home, with evidence tendered including a notice seeking possession of the premises associated with Supreme Court proceedings.

8. His history is set out in a Sentencing Assessment Report and a psychologist’s report which, although approached with the cautions expressed in cases such as R v Qutami (2001) 127 A Crim R 369 and R v Niketic [2002] NSWCCA 425, is a reasonable basis upon which to proceed to sentence. He has no prior criminal convictions. Mr James QC acknowledges that he had become suspicious that the contents of the package were illicit drugs at some time before he had seen the recipient put on gloves to handle the item. So at some stage during his involvement in the importation he became aware that he was dealing with an illicit substance.

9. Not surprisingly, in light of the history I have briefly summarised, it is clear that he was exposed to significant trauma and instability in his early life, but he did, to a significant extent, overcome that, working usefully in Australian society. It is clear that he has a low risk of re-offending and his prospects of rehabilitation are good. I take account of his handwritten letter of remorse and regret, and I accept his apology expressed to the Court and the community, I also take account of his engagement in the EQUIPS remand course and that he has been actively involved in the prison chapel services.

10. I also take account of the reference of his wife, the mother of their two children aged 14 and 11, which speaks highly of him as a family man, and, not surprisingly, expresses her shock at the predicament in which he finds himself. She describes the impact upon her and the family of the imminent loss of the family home as a direct consequence of this offending and the inability to fund that home. It is clear he has significant family support and I take account of the letter from Dr Nguyen in relation to his mother’s health, which is referred to in the wife’s letter to the Court.

11. I have taken account of the schedule of supposedly relevant cases provided with the Crown’s helpful written submissions. I note that Mr James QC does not take issue with anything substantive in those submissions. They accurately set out the principles set out in Pt 1B of the Crimes Act 1914 (Cth) to be considered. I have referred to his role and the objective seriousness the offending. It is clear that general deterrence is a very significant factor to be taken into account. I have referred to the expressions of contrition and the early guilty plea and I take into account his character, age, antecedents and background as summarised in the Crown’s submissions.

12. The orders that I make are:

1. The offender is convicted of the offence

2. I impose a sentence of four years and six months’ imprisonment to commence on 29 May 2018,

3. I impose a non-parole period of two years and eight months, which will expire on 28 January 2021.

Note – These extempore remarks were revised without access to the court file

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Decision last updated: 09 October 2019