The Queen v Tran

[2019] VCC 1329

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02329
CR-17-02315

THE QUEEN

v

NGOAN VAN TRAN
VAN HAU TA

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	11 June 2019
DATE OF SENTENCE:	9 August 2019
CASE MAY BE CITED AS:	The Queen v Tran & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 1329

REASONS FOR SENTENCE
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Subject: Attempt to import commercial quantity border controlled precursor chemical, pseudoephedrine.
Catchwords:
Legislation Cited:
Cases Cited: DPP (Cth) v Brown [2017] VSCA 162
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr J. Dickie	Commonwealth Director of Public Prosecutions
For Accused Tran	Mr P. Tomlinson (For Plea) Ms E.O'Day (For Sentence)	Haines & Polites
For Accused Ta	Ms S. Keating	Galbally Rolfe

HER HONOUR:

1Ngoan Van Tran and Van Hau Ta, you have pleaded guilty to offences of attempting to import pseudoephedrine.  I will provide a general summary of offending and then address your individual circumstances.

2Quynh Ta, Cong Cao Dau and Van Hau Ta have pleaded guilty to one charge of attempting to import a border controlled precursor substance, pseudoephedrine, in amount that was not less than a commercial quantity.  The offending occurred between 31 December 2016 and 7 January 2017.

3Ngoan Van Tran has pleaded guilty to the same offence but between 2 January and 7 January 2018.

4The prosecution opening has been provided which outlines the facts relied on.  Each accused has agreed through his counsel that the summary is an accurate account of events.

5Another co-accused, Van Dau Tran, has already pleaded guilty to the same offence.  On 19 December 2018 he was convicted and sentenced to a term of imprisonment of eight years and nine months, with a non-parole period of five years and six months.  He was sentenced as someone with a low level of responsibility and role in the hierarchy.  I have been provided with and read the sentence imposed by His Honour Judge Mullaly and take that into account.

6On 8 November 2016 a large container, which held a total of 972 boxes of OMO washing powder was sent from Vietnam.  The consignee of the delivery was the company Dac Thang, of which Van Dau Tran was the sole director and which Ngoan Van Tran had previously owned.  Concealed within 57 boxes were plastic packages containing pseudoephedrine.  The pseudoephedrine had a purity of between 18.6 per cent and 20.1 per cent.  After analysis it was determined that the total quantity of pure pseudoephedrine was 190 kilograms.

7The container arrived in Melbourne on 9 December 2016 and was intercepted prior to its delivery.  The bags of pseudoephedrine were removed and substituted with legitimate bags of OMO, which were taken from the consignment.  These bags were in turn replaced with packets of brown sugar.  The container was delivered to a warehouse in Tottenham on 31 December 2016.  Photographs tendered depict the vast size of the delivery.

8Quynh Ta directed Cong Cao Dau to open the warehouse to accept the delivery.  Cong Cao Dau attended and assisted by moving the boxes into the warehouse, using a forklift that had been hired by Ngoan Van Tran. 
Van Hau Ta arrived at the warehouse later that afternoon and inspected the contents of a pallet.  Cong Cao Dau and Van Hau Ta liaised with
Quynh Ta later that afternoon.

9On 1 January 2017 Quynh Ta, Van Hau Ta, Cong Cao Dau and Van Dau Tran all met.  Van Hau Ta, Cong Cao Dau and Van Dau Tran then attended the warehouse where they inspected the delivery.  Quynh Ta contacted
Cong Cao Dau in the course of that afternoon.  Van Hau Ta then went to
Quynh Ta's house later that day to discuss their progress in checking the contents of the container.  Quynh Ta updated the contacts in Vietnam of the progress inspecting the boxes.

10On 2 January 2017 Quynh Ta and Van Hau Ta spoke to their contacts overseas about the expected content of the delivery.  Later that day Van Hau Ta,
Cong Cao Dau and Van Dau Tran attended the warehouse, again inspecting the boxes of OMO.  Ngoan Van Tran joined soon after and assisted in the unpacking, inspecting and repacking of the boxes.  Van Hau Ta, Van Dau Tran and Cong Cao Dau updated Quynh Ta on their progress, or lack of progress, later that afternoon.

11On 3 January 2017 Van Hau Ta, Cong Cao Dau, Van Dau Tran and
Ngoan Van Tran all attended and continued to inspect the boxes of OMO at the warehouse.  Again, Quynh Ta had discussions with contacts in Vietnam about the content of the delivery.  The anticipated pseudoephedrine had not been located and so Quynh Ta then decided to lock up the warehouse and leave it unattended for several days to see if anything would transpire.

12At that time Van Hau Ta returned to Sydney.  The parties did not attend the warehouse again until he had come back to Melbourne.  Van Hau Ta spoke to a contact in Vietnam on 4 January 2017.  Van Hau Ta returned to Melbourne on 6 January 2017.

13On 7 January 2017 Cong Cao Dau, Van Hau Ta, Van Dau Tran and
Ngoan Van Tran continued unpacking and inspecting the content of the boxes in the warehouse for several hours.  Ngoan Van Tran located one of the packets of sugar that had been substituted for the OMO washing powder.  This was the first time that it was clear that the contents of the delivery were not as anticipated.  Various bags were removed from the boxes and photographed by Cong Cao Dau.  A small bag of sugar was also placed in the van that
Van Dau Tran had driven to the warehouse with Van Hau Ta.

14Police attended the warehouse that afternoon, arresting Van Hau Ta,
Cong Cao Dau, Ngoan Van Tran and Van Dau Tran in the car park. 
Quynh Ta was also arrested at a different address.

15The estimated value of the pseudoephedrine, if sold in 1 kilogram blocks, was between $6.6m and $20m.  A commercial quantity of pseudoephedrine is
1.2 kilograms.  There is no category for a large commercial quantity involving this substance in Commonwealth offences.  The quantity of pseudoephedrine in this case is more than 158 times a commercial quantity.

16This type of offending is serious and is often difficult to detect.  The effort that was made to avoid detection in this case was significant.  This was a sophisticated and organised importation.  The harmful effects that flow from the importation and distribution of pernicious substances on our community are well known.

17In the decision of the DPP (Cth) v Brown [2017] VSCA 162, at paragraph 9, the court stated,

'There needs to be a clear signal to would-be offenders, motivated by the potential financial rewards of drug importation, that detection will inevitably lead to very lengthy terms of imprisonment.'

18Identical expressions of principal apply to all serious Commonwealth drug offences, including the importation of border controlled precursor substances.

19I will now deal with Mr Ngoan Van Tran.

20You have pleaded guilty to the charge of attempting to import pseudoephedrine between 2 January and 7 January 2017.  This is a slightly shorter period of offending than your co-accused.  The quantity of 190 kilograms is the same, however, and one where the amount of precursor substance is more than 158 times a commercial quantity.  This illustrates your high level of culpability.

21Your role was one where you attended the warehouse on three occasions.  You participated in the unpacking, inspection and repacking of the OMO boxes.  You liaised with Quynh Ta and others in the course of your offending.  These conversations were mainly in code.

22You were aware of the consignment and familiar with its movement prior to the dates of your offending.  You took part in organising to hire a forklift that was used to unpack the delivery.  As a result of being the previous owner of the company, Dac Thang (the consignee of the delivery) you had a relationship with the freight forwarding company that was used in the importation.  That facilitated your direct contact with them regarding the whereabouts of the delivery and its anticipated delivery date.  You were proactive in trying to arrange an earlier delivery date.  You frequently provided Quynh Ta with updated information about its expected arrival.

23Your involvement at a management level prior to the arrival of the consignment elevates your role in the hierarchy from Cong Cao Dau and Van Dau Tran.  Your offending was over a lesser period than your co-accused and you did not attend the warehouse to examine the contents of the delivery as often as others.

24You were arrested by police on 7 January 2017 and interviewed about your involvement in this offending.  You said that you had attended the warehouse on that day by chance, as you had noticed your old work van and then
Van Dau Tran, whom you knew.  Later you admitted being at the warehouse with Van Dau Tran, Cong Cao Dau and Van Hau Ta, but denied knowing anything about the content of the consignment.

25Your plea of guilty was not entered at an early stage.  You participated in the contested committal in November 2017.  By the end of 2018 it was indicated that this matter would not proceed to trial.  Your guilty plea was entered on
25 February 2019.  Your plea has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a lengthy trial.  In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.

26It is submitted that remorse can be inferred from the ongoing attempts to resolve your case and from your plea of guilty.  I am told that you have also expressed a sense of shame for your behaviour to your family.

27Your brother-in-law, Mr Thomas Nielson, gave evidence on your behalf. 
Mr Nielson said that you are ashamed of your involvement in this serious criminal enterprise.  At one point you shaved your head, which he believes is an indication of your contrition.  He said that your demeanour has changed significantly since you were charged with these offences.  You no longer frequently socialise in your community.  You now pray regularly at your local temple.  Mr Nielson believes that you understand the seriousness of your offending.  You have apologised to your family and expressed remorse for your criminal conduct.  I am prepared to moderate your sentence to reflect an element of remorse.

28You were born in South Vietnam and are now 45 years old.  You immigrated to Australia when you were 17 years of age.  Your father had already come to live here in 1988.  Your mother, brother and sister also live here.

29When you arrived in Australia your English was poor, so you enrolled in an English language course.  You found employment working as a baker in
South Yarra for approximately two years.  You also assisted your mother who ran a sewing business from her home in East Keilor.  You then worked delivering furniture and as a labourer for about seven years.  You then purchased Dac Thang, an Asian grocery store in St Albans, which you owned for eight years.  It was through the running of that business that you came to know several customers, including Quynh Ta.  The sale of the business in August 2016 enabled you and your wife to purchase a bottle shop.  You have worked there since then.

30You are a married man with two dependent children.  You have the support of your family.  Your wife and your parents will share the responsibility of running the bottle shop now that you are incarcerated.  Their aim is to sell the business.

31You were remanded in custody until being released on bail on
14 November 2017.  Whilst on bail, you complied with strict conditions including daily reporting.  I am told that you have worked very hard when living back in the community.  Mr Neilson said that you have worked up to seven days a week in the bottle shop, from 10 am to 11 pm.  The profitability of the business has declined notably since you were charged with these matters.  Mr Neilson believes this is because potential customers have taken their business elsewhere rather than associate with you.

32Whilst there has been a delay of more than two and a half years between your arrest and sentence your plea of guilty was only forthcoming two years into this period.  Nevertheless, I accept that the delay has been a source of anxiety to you.  You have worked to effect some steps towards rehabilitation during that period.  I take this into account into your favour.

33You expected to receive a financial benefit from your involvement in this offending, although a specific amount was not disclosed.  There are no obvious signs of enrichment as a result of your offending.

34Your prior matters related to charges dealt with summarily against the
Fisheries Act in 2005 and to stating a false name in 2010.  They are not recent, nor relevant prior convictions.  You do not have any other matters outstanding.

35You do not have a history of drug or alcohol abuse, nor do you have any mental health issues or behavioural problems.  You have the ongoing support of your family. You have a strong work history.  These factors bode well for your future and I find that your prospects of rehabilitation appear to be good.

36I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment.  The community expects that those who engage in serious drug enterprises will be punished and denounced for this offending.  A substantial term of imprisonment is the only appropriate disposition.

37I do not think there is an additional need for specific deterrence, given the length of the sentence I will impose.

38I take into account the principle of parity when fixing sentence for you and your co-accused.  Although you had an elevated position to others, you were an active participant for a slightly lesser period of offending.

39I take into account the maximum penalty for the offence and current sentencing practices.

40Would you please stand.

41Ngoan Van Tran, you are convicted and sentenced to 9 years and
6 months' imprisonment.  I fix a non-parole period of 6 years and
3 months.

42I direct that this federal sentence commence today.

43I declare that 371 days of pre-sentence detention be entered into the records of the court.

44The declaration I give under s.6AAA is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of 12 years' imprisonment, with a non-parole period of 9 years.

45Thank you, have a seat.

46I now turn to Van Hau Ta.

47You have pleaded guilty to attempting to import 190 kilograms of pseudoephedrine between 31 December 2016 and 7 January 2017.  The quantity is one where the amount of precursor substance is more than 158 times a commercial quantity.  This illustrates your high level of criminal culpability.

48Van Hau Ta, you attended the warehouse in Tottenham on five occasions to unpack, repack and inspect the delivery.  On 3 January 2017 you were observed to use a scoop and cannister to test the contents of an OMO box.  You had contact and communication with Quynh Ta and the other accused through the relevant period.  You also had direct contact with suppliers in Vietnam.

49Telephone intercepts reveal that on 1 January 2017, when Quynh Ta was speaking with an unidentified man in Vietnam, the contact asked to speak to you.  When you spoke to him you said that bags had not been cut and discussed locating the relevant markings on the packages.  You said that would look through them again.

50On 4 January 2017 you spoke to a person in Vietnam about looking for the relevant markings.  You said that you were in your home town and that the inspection had been put on hold for a few days.  You knew how to identify the packages containing pseudoephedrine.  There is no evidence that anyone else who inspected the packages knew what markings to look for, other than you.  That observation is consistent with the inspection of the boxes being suspended for three days when you were not present.  Prior to the delivery of the consignment, you had conversations in code with Quynh Ta and
Ngoan Van Tran about the anticipated delivery date.

51I consider the fact that you had direct contact with the supplies in Vietnam and that you knew how to identify the packs of pseudoephedrine, suggests strongly that you had an elevated role in the hierarchy when compared to
Cong Cao Dau, Ngoan Van Tran and Van Dau Tran.  It follows that I do not accept your counsel's submission that you were at a level below those three co-accused.  I do accept, however, that you role was below that of Quynh Ta.

52Your plea of guilty was not entered at an early stage.  You participated in a record of interview with police where you admitted being at the warehouse when the others were arrested and said that you had been checking boxes for soap.  You admitted to being there on the day the consignment was delivered.  You denied opening up the boxes and inspecting the contents.  You participated in the contested committal hearing in November 2017.  Your trial was listed to commence on 6 May 2019, being placed in the reserve list on that day.  Your plea of guilty was entered on 8 May 2019.

53I am told that upon the prosecution providing you with further evidence supporting the case against you, you entered your plea.  Your plea of guilty has a utilitarian benefit.  You have saved the court and the community the time and expense of running a lengthy trial.  In those circumstances you have facilitated the efficient administration of justice and are entitled to a benefit for that.  I am not satisfied, however, that your guilty plea is evidence of remorse.  You entered your plea at a time when all the relevant evidence was clear and the appropriate charge was confirmed.

54When you were arrested on 7 January 2017 you were remanded in custody until you were released on bail on 28 November 2017.  I am told that you were compliant with strict bail conditions, including daily reporting.

55One prior driving matter has been alleged against you, but it is agreed that it is not relevant to the charge before the court.  You have no other matters outstanding, nor any charges pending.  Prior good character, however, does not carry substantial weight in a serious case such as this.

56Whilst there has been a delay of more than two and a half years between arrest and sentence, your plea of guilty was not forthcoming until two years and four months into this period.  Nevertheless, I accept that the delay has been a source of anxiety to you.

57You were born in Vietnam in 1968 and are now aged 51.  As a child your life in Vietnam was difficult.  You grew up in a poor area and your family's financial capacity was limited.  Your parents worked on farms and made rice wine to supplement their income.  From the age of approximately eight years you were expected to help provide for the family by foraging for food and collecting firewood.

58Your educational background is extremely limited as you left school at the end of Year 2 in order to support your family.  As an adolescent you worked with your parents before being conscripted into the government labour workforce, which prompted you to leave Vietnam.  Your mother and three of your brothers are still there.

59You resided in a refugee camp in Malaysia for one year before arriving to live in Australia in 1989.  You married at the age of 17.  Both you and your wife worked from home as unskilled labourers. That relationship has now ended.  You enrolled in English language classes after arriving in Australia, but found it difficult to achieve a good standard in light of your limited educational background in Vietnam.  Your lack of English has meant that you have had difficulty integrating into Australian society outside the Vietnamese community.  You have maintained casual employment as a labourer, handyman or cleaner.

60You children, aged 32 and 29, reside in New South Wales, as do you.  You have a brother who also lives in Australia.  You maintain a good relationship with your family.  Your son-in-law was present in court at the time of your plea hearing.  You do not have family members who reside in Victoria.  I accept that with your family living interstate, coupled with the difficulty that results from your limited ability to communicate with others, it means that your time in custody will be more onerous than it would be for other people.  I take that into account.

61In letters to the court prepared by your daughter, Dew Ta, and her husband,
Billy Tran, you are described as a hardworking, loving father and a highly valued member of your family.  They agree that you always put your family first.  I am told your financial situation at the end of 2016 was difficult.  You had limited resources and felt an obligation to contribute financially to your daughter's upcoming wedding.  Your mother was also unwell at that time, requiring assistance to pay for her medical treatment in Vietnam.

62The letters provide evidence of remorse for the ramifications of your criminal conduct on both you and your family.  You feel sorry about your current predicament and letting your family down.  That does not, however, equate to remorse for your offending.  Your limited opportunity to earn a good income, coupled with financial strain were motivating factors for your participation in this offence.  There is no evidence of what you expected to receive from your criminal conduct.  There are no obvious signs of enrichment as a result of your offending.

63You have the support of your family and at the age of 51 you have no prior criminal convictions.  You were released on bail for approximately 18 months and did not commit any further offences.  You demonstrates that you had the capacity to remain in the community without offending during that period.  This is relevant when considering your prospects for rehabilitation.  I take this into account in your favour.

64You do not have a history of drug or alcohol abuse, nor any mental health issues or behavioural problems.  You had not been incarcerated before you were remanded on 7 January 2017.  I am unable to conclude, however, that you have shown any signs of remorse for your criminality.  Nevertheless, I consider that your prospects of rehabilitation are reasonably good.

65I consider that general deterrence must be given significant weight in the sentencing process, as must the factors of denunciation and punishment.  The community expects that those who elect to engage in serious drug enterprises be punished and denounced.  A substantial term of imprisonment is the only appropriate disposition.  I do not think that there is an additional need for specific deterrence, given the length of the sentence I will impose.

66I take into account the principle of parity when fixing sentence for you and your co-accused.  You had an elevated position in the hierarchy when compared with others, but not with Quynh Ta.

67I take into account the maximum penalty for this offence and current sentencing practices.

68Van Hau Ta, would you please stand.

69You are convicted and sentenced to 10 years and 3 months' imprisonment.  I fix a non-parole period of 6 years and 9 months.

70I direct that the federal sentence is to commence today and declare that 385 days have been served by way of pre-sentence detention.

71The declaration I make under s.6AAA is had the matter not proceeded as a plea of guilty I would have imposed a sentence of 13 years and 3 months, with a non-parole period of 9 years and 6 months.

72MS KEATING:  Your Honour pleases.

73MR DICKIE:  Your Honour pleases.

74HER HONOUR:  Both prisoners can be removed, thank you.

75I confirm that my associate will email a list of all the sentences for all co-accused next week, so that you have that information. I'll stand down, thank you.

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