The State of Western Australia v Tran - [2018] WADC 128

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   THE STATE OF WESTERN AUSTRALIA -v- TRAN [2018] WADC 128
CORAM:   DAVIS DCJ
HEARD:   3 & 4 SEPTEMBER 2018
DELIVERED          :   12 OCTOBER 2018
FILE NO/S:   IND 171 of 2018
BETWEEN:   THE STATE OF WESTERN AUSTRALIA

AND
NGOC NHUNG TRAN

Catchwords:

Criminal law - Sentencing - Trial of issues - Attempted possession of methylamphetamine with intent to sell or supply - Whether offender acting under duress - Whether offending was for commercial gain - Whether an isolated drug dealing

Legislation:

Nil

Result:

Findings that:

Offender failed to prove she acted under duress
No evidence of commercial gain
Not an isolated dealing in illicit drugs

Representation:

Counsel:

The State of Western Australia	:	Ms H O Milligan
Accused	:	Mr D N Ryan

Solicitors:

The State of Western Australia	:	State Director of Public Prosecutions
Accused	:	Chelmsford Legal

Case(s) referred to in decision(s):

Brown v The Queen (1986) 43 SASR 33
Gullello v The State of Western Australia [2011] WASCA 261
Law v The State of Western Australia [2009] WASCA 193
Marchesano v The State of Western Australia [2017] WASCA 177
Marker v The Queen (2002) 135 A Crim R 55
R v Olbrich (1999) 199 CLR 270
R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524
Sakhie v The State of Western Australia [2017] WASCA 103
Taiapa v The Queen [2009] HCA 53; (2009) 240 CLR 95
Tiknius v The Queen [2011] NSWCCA 215
Wale v The Queen [2001] WASCA 418; (2001) 126 A Crim R 370

DAVIS DCJ:

Reasons

On 17 July 2018 Ms Tran pleaded guilty to one count of attempted possession of a prohibited drug, methylamphetamine, with intent to sell or supply it to another. The offence took place on 4 June 2017 at Ms Tran's home address. The quantity of the drug the subject of the offence was 490 g, with a purity of 77%.
During the course of Ms Tran's sentencing hearing which first took place before his Honour Judge Staude, the following issues arose:
1.Whether Ms Tran was acting under duress.
2.Whether Ms Tran was involved in this offending for commercial gain.
3.Whether this was a one–off or isolated engagement in the distribution of illicit drugs.
The trial of these issues took place before me over two days. For the reasons which follow, I have concluded that:
1.I am not satisfied that Ms Tran was acting under duress.
2.While there is no evidence that Ms Tran was involved in the offending for commercial gain, in the sense that there is no evidence that she received payment or other reward for her role, this was a commercial drug dealing enterprise in which Ms Tran played an important and significant role.
3.This was not an isolated dealing by Ms Tran in illicit drugs.

The admitted facts

The amended statement of material facts on the prosecution brief were read after Ms Tran's plea of guilty on 17 July 2018, and with the exception of a few facts identified in written sentencing submissions, these were admitted by Ms Tran.
I have set out in [6] to [30] below the essential facts which I have taken from the amended statement of material facts from the prosecution brief. In doing so, I have left out some details, including addresses and mobile phone numbers. I have included the headings and emphasis as set out in the written version on the prosecution brief, as these assist in an understanding of the sequence of events.
Ms Tran was identified as part of a West Australian police operation into the sale and supply of prohibited drugs. This involved a telecommunications intercept warrant in relation to Mr Truong Nguyen, Ms Tran's co‑offender.

Communications of 20 May 2017 (Line 2, CSN 12)

On 20 May 2017, Mr Nguyen called Ms Tran on her mobile telephone at 17:54:51. Mr Nguyen identified himself and Ms Tran replied she had been trying to call him. A mixed conversation in Vietnamese and English took place. Ms Tran said: 'Mum' - then spoke in Vietnamese, which has been translated as, 'told me to get meat or something'. Mr Nguyen and Ms Tran made an arrangement to meet the following day.

Communications of 21 May 2017 (Line 2, CSN 24, 25, 29, 30, 31, 32, 33)

On 21 May 2017, Ms Tran sent a text message 'Hi can I come C U at 2 pls instead of 1 jus running late'. A series of messages were exchanged between them changing the time to meet up, ultimately settling on lunchtime on Tuesday in the city.

Communications of 23 May 2017 (Line 2, CSN 47, 50, 53, 54, 56, 57, 59, 62, 63, 65)

On 23 May 2017, Ms Tran sent a text message at 07:12:39 asking 'We still good for today?'. Mr Nguyen replied 'Yes ill see u at 12pm same place. Its 185 for the pair off shoes k. Thanks'.
A series of text messages were exchanged about being on her way to meet him.
Mr Nguyen then sent a text message to Ms Tran at 11.49:28 saying 'If my mate gets there before me. Can u pls ask him to wait there for me thanks'.
Ms Tran called Mr Nguyen at 12:00:30. She asked 'Could you tell me the total of shoes?'. A mixed conversation in Vietnamese and English took place. Mr Nguyen asked 'Has my friend come yet?'. Ms Tran answered yes. Mr Nguyen told her to wait and that he was almost there. Ms Tran relayed this to another person saying 'You have to wait'.

Communications of 24 May 2017 (Line 2, CSN 70, 71, 73)

On 24 May 2017, Ms Tran sent a text message to Mr Nguyen saying 'Hi jus wanted to say thank you for ur help I appreciated it'. He responded 'That's okay, if you need again just let me know. K … cya'. Ms Tran replied 'Cool. Thanks again'.

Communication on 31 May 2017 (Line 2, CSN 262, 263, 264, 272, 273)

On 31 May 2017, Mr Nguyen called Ms Tran at 13:10:09. The call went unanswered. Mr Nguyen sent a text message to Ms Tran at 13:11:17 saying 'Can u pls give me a call back asap?'.
Ms Tran called Mr Nguyen at 13:15:24. Mr Nguyen was calling to see if Ms Tran's friend was ready again because Mr Nguyen's friend has only got one left. Mr Nguyen's friend asked if Mr Nguyen wanted it and said if not, he will give it to someone else because someone else has also asked. Ms Tran then asked if it was much less. It seems that this was a bit of a miscommunication between the parties with Ms Tran understanding that Mr Nguyen had said much less rather than not much left. Mr Nguyen then said 'No, there is not much left at all'. Mr Nguyen confirmed 'it's the same amount' that he gave her last time. Mr Nguyen was promised by his friend he would get it if he wanted it so that is why he was calling to check with her. Ms Tran said she will check but her friend had not told her anything. Ms Tran asked if it is the same price. Mr Nguyen confirmed that it is the same price. Ms Tran advised that she would check and call him back.
Ms Tran sent a text message to Mr Nguyen at 16:13:53 saying 'Hi sorry it's taken so long but he said he's good for now thanks!'. At 16:14:21 Mr Nguyen replied 'Ok thanks'.

Communications on 1 June 2017 (Line 2, CSN 303, 304, 305, 310, 311, 312, 313)

On 1 June 2017, Ms Tran sent a text message to Mr Nguyen at 14:37:50 saying 'Hi can I come c u wen ur free?'. Mr Nguyen replied less than a minute later saying 'Yeah, I'm at home is you wanna come pass'. Ms Tran replied 'Ok thanks I'll come c u now'.
Later that same day at 18:09:54, Ms Tran sent a text message saying 'Hi my friend wants to order half dozen cupcakes but would he be able to sample first?'.
Mr Nguyen replied less than a minute later 'Yeah'. Ms Tran sent a message saying 'Cool can I come c u tomorrow morning … Oh, probably be lunch tomorrow if that okay'. Mr Nguyen replied 'Okay cool'. Ms Tran replied 'thanks heaps'.

Communications on 2 June 2017 (Line 2, CSN 316-321, 323-327, 329-331, 333)

On 2 June 2017, Mr Nguyen sent a text message to Ms Tran at 10:09:54 saying 'What time did you want the sampler?. Ms Tran replied 'R u home now I can come by'. Mr Nguyen responded 'Yeah'. At 10:34:14 on the same day, Mr Nguyen sent a message to Ms Tran saying 'Does your friend want the cupcake today?'. Ms Tran replied 'Yeah probably I'll come c u k'.
There was covert surveillance conducted at this meeting. Detective First Class Constable Hugh Scott conducted static observations from approximately 10 am at Mr Nguyen's address. A black BMW attended at 11.17 am. This car was registered to Ms Tran's former de facto partner.
A white hatchback attended at 11.20 am. Ms Tran's former partner exited the hatchback and approached the door. Ms Tran exited her car and appeared to wave at him. She was wearing sunglasses, a grey hooded jumper, black pants, grey sneakers and carried a black strap bag. Both entered the property.
Ms Tran's former partner exited one minute later and left.
Ms Tran exited at 11.24 am and left.
Mr Nguyen sent a text message to Ms Tran at 14:13:36 saying 'How did your friend go?'. Ms Tran replied 'Yeah great. Can we do Sunday?'. And then sent a further text message saying 'Is that too late?'. Then a further message again saying 'Jus waiting that's all'. They then arranged to meet at 1 pm on Sunday.

Communications on 4 June 2017 (Line 2, CSN 373, 377, 379, 380, 381, 386, 389, 391 - 394)

On 4 June 2017, Ms Tran sent a text message to Mr Nguyen at 10:59:15 saying 'Hi we still good for today?'. Mr Nguyen then responded 'Yes ill be there at 1pm'. Ms Tran responded 'All good for 1pm'. Ms Tran called Mr Nguyen at 11:57:32. He queried 'All good for 1? I'll be there at 1'. Mr Nguyen sent a text message to Ms Tran at 12:51:39 saying 'Sorry im running a bit late. Waiting for taxi. Be there soon'.
Mr Nguyen called for and entered a Swan taxi at his home address. He entered the taxi carrying a gift bag. The taxi was stopped by West Australian Police at 1.05 pm. Mr Nguyen was arrested. The gift bag in the footwell at his feet was seized. The package was ultimately found to contain 490 g of methylamphetamine at 77% purity.
An unidentified person sent a text message from another mobile telephone number at 01:42:17 saying 'sis are you coming?'. Ms Tran sent a text message to Nguyen from a different mobile number at 01:42:17 saying 'Hi sorry I left my phone home but r u coming over with the cupcakes?'. She identified this as the mobile number she uses for her hairdressing business in the course of her record of interview with police. Ms Tran made five unanswered calls to Mr Nguyen from 01:52:16. He was at this time in police custody.
A Misuse of Drugs Act 1981 search warrant was executed at Ms Tran's former partner's home at 9.20 pm that day. There was nothing seized in the course of this search warrant. A further warrant was executed at Ms Tran's place of residence at 7.30 pm on 11 July 2017. She was placed under arrest and was present along with her mother. Clothing of a similar appearance to the clothes worn by Ms Tran when she was under surveillance were seized along with documentation and a white iPhone with a cracked screen.
She participated in a video record of interview at 12.10 am on 12 July 2017 at the Organised Crime Squad. She identified herself in surveillance photos outside Mr Nguyen's house and identified her voice on the calls with Mr Nguyen. She said she knew him as Davis. She denied that the conversations or attendance at his house related to prohibited drugs.
Based on the above facts, the State's position is that Ms Tran's role in this offence was as an aider, facilitating contact between her co‑offender, Mr Nguyen, who was to deliver the drugs, and the ultimate purchaser of the drugs. Ms Tran was either facilitating the meeting of all parties at her home address, or she was receiving the drugs and passing them to a third party.

The legal principles in the trial of issues

The principles relating to findings of fact on a trial of issues for sentencing purposes and the onus of proof have been established in Marker v The Queen (2002) 135 A Crim R 55 [9], [22] ‑ [23], R v Olbrich (1999) 199 CLR 270, 280 and Law v The State of Western Australia [2009] WASCA 193 [28] – [34] (Buss JA) (McLure P & Pullin JA).
An aggravating factor, namely a fact or other circumstance likely to result in a more severe sentence than would otherwise be the case, must be proved by the State beyond reasonable doubt. A mitigating factor, namely a fact or other circumstance likely to result in a less severe sentence than would otherwise be the case, must be established by the offender on the balance of probabilities.
Sometimes the distinction between aggravating and mitigating circumstances, for sentencing purposes, may be unclear or even, on occasions, ambiguous: Law [28].
Ms Tran has accepted that she bears the onus of proving, on the balance of probabilities, that she was acting under duress: as to which see Sakhie v The State of Western Australia [2017] WASCA 103[20].
So far as the State contends that there was a commercial element to Ms Tran's offending, this would be an aggravating factor. On that issue, the State bears the burden of proof and the standard applicable is beyond reasonable doubt.
On the third issue, as Ms Tran has admitted the material facts which indicate other occasions leading up to the offence where Ms Tran was talking about illicit substances, it is arguable that the onus is on her to prove that this was a one‑off dealing. However, the fact that Ms Tran's conduct constituting the offence was not an isolated transaction aggravates the seriousness of the offending: Gullello v The State of Western Australia [2011] WASCA 261 [41]. Accordingly I proceed on the basis that the State bears the onus of proving this beyond reasonable doubt.
If I am not persuaded of the existence of a fact, whether aggravating or mitigating, the fact does not exist for the purposes of sentencing: Law [34].

The evidence

The State relied on the prosecution brief and the recordings of the intercepted telephone calls.
The calls were played in court and the transcript of the calls are in the prosecution brief.
The amended statement of material facts does not set out all of the discussion which took place between Mr Nguyen and Ms Tran. Because of the issues in this case and before discussing the evidence which Ms Tran gave, it is necessary in my view to set out in full the transcript of two telephone calls which took place between Mr Nguyen and Ms Tran, the first on 23 May 2017, and the second on 31 May 2017, along with my observations upon hearing these calls.
The first call of 23 May 2017, CSN 65, took place at 12:00:30 as follows:
NGUYEN: Hello.
TRAN:Hi.
NGUYEN:Hello.
TRAN:Hi, it's me. Um ---
NGUYEN:Yep.
TRAN:Could you just tell me the total of the, uh, shoes?
NGUYEN:Uh, the total is [not in English] um, I have to give to my friend. Has my friend come yet?
TRAN:Yeah.
NGUYEN:Okay. [indistinct]
TRAN:Yeah. [not in English]
NGUYEN:[not in English] I'm, I'm almost there.
TRAN:Oh, okay.
NGUYEN:Yeah. Yeah.
TRAN:Yeah. Yeah.
NGUYEN:Yep. [indistinct] wait for me. Yeah. Alright. Thank you.
TRAN:You need to wait.
NGUYEN:Bye bye. Bye. Alright. Bye bye.
TRAN:Yeah. Yeah. Yeah.
NGUYEN:Alright. Bye.
TRAN:Okay. Okay.
During this call I heard Ms Tran sound happy and matter of fact. Then, when she asked 'Could you just tell me the total of the, uh, shoes,' I observed a pause after the word 'total' and then another pause before she said 'uh, shoes'.
The second call of 31 May 2017, CSN 264, took place at 13:13:53 and was as follows:
NGUYEN:Hello.
TRAN:Hi.
NGUYEN:Hi. How are you?
TRAN:What's up?
NGUYEN: Yeah. Hi.
TRAN:Yeah. Good. You?
NGUYEN:Um, yeah. Um, I'm good, thanks. Um, basically I just called ---
TRAN:That's good.
NGUYEN:Yes. I'm just calling to see if, um, if you, if your friend's ready again, because, um., my friend, he's um, he's only got, like, uh, well, uh [indistinct] for us, uh, left and he asked me if, if I want it. If not, then he's, he's gonna give it to someone else because, uh, someone else just asked him as well.
TRAN:Oh, Okay.
NGUYEN:But, yeah, but it's, because he promised me ---
TRAN:So it ---
NGUYEN:That's why I said, yeah, I'll ---
TRAN:Oh ---
NGUYEN:I'll ask you.
TRAN:Okay.
NGUYEN:Yeah.
TRAN:Yeah. Yeah. Cool. Um ---
NGUYEN:Yep.
TRAN:So it's less?
NGUYEN:No. No. It's, it's the same.
TRAN:Much left?
NGUYEN:No. It's, it's, there's not much left at all. Like, there's, there's only the same amount what I gave you last time, left. And, um, yeah so he, and because he promised me, it was for me. Um ---
TRAN:Okay. Yeah. Yeah. Yeah.
NGUYEN:But then because I'm, I'm, I'm taking a bit, well, like, well, it's , it's been a, a little while now. Um, he, so-, someone else asked him just then and, um ---
TRAN:Yeah. Yeah.
NGUYEN:Yeah. And he said to me, like, uh, well, find out if, if, if I need it. If not, then he'll---
TRAN:Yeah.
NGUYEN:Give it to other guy, so I just called ---.
TRAN:Oh, okay..
NGUYEN:To see if, if you can find out.
TRAN:Yeah. I'll check.
NGUYEN:Yep. Yep.
TRAN:Because he's, he's not, um, he's not, uh, like, told me no-, nothing..
NGUYEN:Yep. Yep. Yep. Mmhmmm.
TRAN:But, um, is it still the same?.
NGUYEN:Still the same, just ---
TRAN:Like, price ---
NGUYEN:Yeah. Still the same. Yep. Yep
TRAN:If not cheaper?
NGUYEN:No, it's not cheaper.
TRAN:Okay.
NGUYEN:It's still the same. Yeah.
TRAN:Alright. Cool.
NGUYEN:Mmhmm.
TRAN:I'll, um, check and I’ll text you. Yeah?
NGUYEN:Yeah. Okay. Thank you.
TRAN:I-, okay.
NGUYEN:Alright.
TRAN:Thank you.
NGUYEN:Thank you. Bye bye.
TRAN:Alright. See you, bye.
NGUYEN:Bye.
Ms Tran sounded to me very happy throughout this call. Her 'hi' to Mr Nguyen was cheery and friendly. She appeared to understand what Mr Nguyen was talking about – there was no questioning tone in her voice. There was also no hesitation in her responses, or the questions she asked Mr Nguyen.
Ms Tran then gave evidence in the trial of issues which was, in summary as follows.
She is a 39 year old single mother with children now aged 10 and 7. She is a qualified hairdresser.
At the time of this offence she was living on Centrelink payments, child support paid by the father of her children (her former de facto partner as mentioned in the statement of material facts), and casual hairdressing work she carried out on Fridays and Saturdays.
Her evidence was that she had met her co‑offender, Mr Nguyen, and his wife through her sister‑in‑law (her former partner's sister) in the last half of 2016. Ms Tran knew and referred to Mr Nguyen as 'Davis', but in these reasons I will refer to him as Mr Nguyen.
Ms Tran said that she and Mr Nguyen were not close friends, but she had been to his house to assist Mr Nguyen's wife after she had a baby. Mrs Nguyen was not coping well and the baby was having teething problems. Ms Tran said that she visited the home of Mr and Mrs Nguyen once, in about May 2017, when she dropped off some Bonjela (a teething gel for infants).
Ms Tran gave evidence that the first conversation she had with Mr Nguyen was about shoes and not drugs. She had a discussion with him about some Christian Louboutin shoes which she had seen Kim Kardashian wear. Ms Tran wanted a pair of these shoes but could not afford them. Mr Nguyen said that he could, through a friend, get what Ms Tran described as 'counterfeit' shoes which looked like the real shoe but which were cheaper. He said that the shoes would cost around $100 and she was prepared to pay this, so she arranged to buy a pair. Mr Nguyen said he would contact her and drop the shoes off at Ms Tran's home.
She gave evidence that she was subsequently contacted by Mr Nguyen who told her the shoe total and said that if his mate came to her house first, to tell his mate to stay there until he arrived. Someone came to her house with some shoes and told Ms Tran the cost was $175. She wanted to check the price, and that is why she then called and spoke to Mr Nguyen and asked him the cost of the shoes and he said $185 (in Vietnamese). As it was, because the sole of a shoe was not stuck on properly, she haggled with Mr Nguyen about the price and he took $50 off.

She was then taken to the telephone call of 23 May 2017 which I have set out in [42] above and asked about the passage when Mr Nguyen mentioned 'I have to give to my friend'. Ms Tran gave evidence that she did not understand what he meant. Where she said in that conversation 'You have to wait', she explained that she was talking to Mr Nguyen's friend and she said this because Mr Nguyen told her that if his friend came before him, to tell him to stay there.[1]
[1] ts 76.
She insisted that this conversation was not about drugs, but about shoes.[2]
[2] ts 76.
In relation to the communications between Ms Tran and Mr Nguyen which took place on 31 May 2017, Ms Tran's evidence was that at the beginning of 2017 she went to a wedding and at the wedding reception she met 'this guy'. I will refer to him as Ms Tran's 'male friend'. They talked and got on well and she thought he was 'really nice'. She introduced her male friend to Mr Nguyen, who was also at the wedding. After the wedding, the male friend contacted her and she started seeing him, and she even cut his hair.
Ms Tran in her evidence then addressed the intercepted telephone call of 31 May 2017, as I have set out in [44] above. At time of this call she said she was driving her car, (later identified as a Honda Civic), and her male friend was in the car with her, sitting in the passenger seat. When Mr Nguyen made the call, her male friend answered the phone, and held it up for her so she could speak.[3]
[3] ts 80, 83 and 86.
I pause here to note that there was a considerable problem with Ms Tran's account of how her male friend answered the phone. She proceeded on the basis that the call had been made by Mr Nguyen to her, but in fact this was a call made by Ms Tran to Mr Nguyen.
Ms Tran gave evidence that when Mr Nguyen said he was calling to 'see if your friend's' ready again', she believed he was referring to the man in the car next to her. She did not understand it 100% but thought it was something bad and that it could be something about drugs.[4]
[4] ts 80 – 81.
In her discussion with Mr Nguyen which followed, Ms Tran's evidence was that she was only repeating what her male friend told her to say.
When she said 'Yeah, I'll check', Ms Tran gave evidence that she meant that she would check with her male friend to see if he needs it or not. She understood the reference to 'it' was a reference to drugs, but she did not know what type of drug or how much.[5]
[5] ts 83.
Her evidence was that when she asked Mr Nguyen 'but um is it still the same' she was 'just repeating my friend'.[6]
[6] ts 84.
When she said 'like price' her evidence was that her male friend was motioning to her by rubbing his fingers together and she understood this to mean the price of it. When she said to Mr Nguyen 'if not cheaper', Ms Tran's evidence was that this because her male friend was saying this to her, using a cut throat gesture, and she understood he meant cheaper.[7]
[7] ts 85.
Her evidence then was that her male friend never spoke, but was just signing to her while she was driving. She was unable to remember where she was driving, other than that it was a straight road.[8]
[8] ts 86.
When she was asked how did she answer the phone, she explained that her male friend had picked her phone up for her and held it up so she could speak.[9]
[9] ts 86.
She was then asked about the text message sent after this call, three hours later at 16:13:53, saying 'my friend said he is ok for now'. Ms Tran gave evidence that her friend had said he was okay for now.[10]
[10] ts 86 – 87.
Ms Tran's evidence was that she had been threatened by her male friend after the telephone call of 31 May 2017. It is necessary to set out her evidence in full:[11]
[11] ts 87 – 88.
RYAN, MR: Ms Tran, I'll ask you this question, you engaged in that conversation with [Mr Nguyen], you said that you suspected that it was about drugs, that's what you thought. Why did you get yourself involved in the conversation? Why not just hand the phone back to your friend and say, 'You deal with it'? --- Because he could turn and get nasty.
Okay, what do you mean by that, Ms Tran? --- The things that he would say.
And what were some of the things he would say? --- He would say he knows where my kids go to school.
And what did you understand that to mean? --- That he could hurt my kids.
Had you ever told him where your kids went to school? --- Yes.
Was it close to where you lived? --- Yep.
And can you remember when he - what context he would say something like that to you, about he knew where your kids were? Like how - how would it come that up he would say something like that? --- He would just say 'Look, I know where your kids go to school'.
All right, so prior to him saying that how would that come up? Like what were you talking about that would lead him to say something like that to you? --- I don't understand what you mean
DAVIS DCJ: What led him to making that statement to you? --- Me, like, saying what, like I don't want you to come and talk to me anymore and stuff like that, and then he just gets angry.
RYAN, MR: And when you say he would get angry, how did - how would you know that he was angry? --- Was - he was just start saying stuff about my kids and my family and he knows everything about me.
And where - look, this - this telephone call that we just looked at, that was on 31 May 2017, so when he made comments like you've made now, when did that happen? Was it before or after this telephone conversation? --- After ‑ ‑ ‑
So? --- phone conversation. And sometimes he would just say stuff that just made me scared.
All right, when - so what sort of stuff would he say that made you scared? --- He said if I loved my kids, and I said yes, and he said that he would take my kids ‑ ‑ ‑
And when ‑ ‑ ‑? ‑ ‑ ‑ because ‑ ‑ ‑
And when did he say that, Ms Tran? --- After.
After this telephone conversation? --- Yes.
And how soon or long after that conversation? --- Not long after.
And do you remember where you were when you had that conversation with him? --- I was in the car.
In the car. Was it the same day? --- Yes.
Moving to the conversations which Ms Tran had by phone and text leading up to the day of the offence, Ms Tran gave evidence that she sent the text of 1 June 2017 saying 'my friend wants to order half a dozen cupcakes' because her male friend told her to. She did not want to send that text, but when she told her male friend she did not want to, her evidence was that he said, 'Remember, I know where your kids go to school', which she understood to mean that 'he would threaten my kids or hurt my kids'.[12]
[12] ts 89 - 90.
She gave evidence that she did not go to the police:[13]
Ms Tran, if someone's threatening to do that to you, was there any reason why you didn't go to the police or make a complaint to the police? --- No. The police can't do anything.
Why do you say the police can't do anything? --- Because these guys you just don't say no to.
[13] ts 90.
Ms Tran then gave evidence that her male friend also threatened her on this day, by saying he would 'mess her up', which she understood to mean that he would hurt her.
She ended up doing what he asked, because he was not acting very nice, he was 'mean' and she thought that if she did what he just told her to, 'he would just leave me and my kids alone, and that’s it.'[14]
[14] ts 90.
Ms Tran then gave evidence that she knew the reference to cupcakes meant something bad, and thought it meant drugs, but she did not know what type of drugs they were going to be. While the text referred to 'half a dozen' she had no idea what that meant in terms of weight or quantity of the drug. She did, however, understand the reference to being 'able to sample first' to mean to see it first.[15]
[15] ts 91.
Ms Tran gave evidence that after she sent the text, her male friend was okay and 'calmed down a little bit'.
Ms Tran gave evidence that another threat was made at the time of the text sent on 4 June 2017 at 13:42:17 which said 'Hi, sorry, I left my phone home, but are you coming over with the cupcakes'. Her evidence was that this text had been sent by her male friend using her phone when he was at her house. She had not wanted her male friend to come to her house, but she let him in because 'he was mean and he was just, like, persistent'. He used her phone because it was on the table and he took it. She gave evidence she challenged him and asked him what he was doing, but he just took it, told her to 'fuck off', called her a bitch 'and all that' and then texted.[16] She then gave the following evidence:
Well, again, Ms Tran, why didn't you just tell him to get out of your house, leave you alone? --- Because he said, 'Remember, I know where your kids go to school, and I knew everything about you'.
So on 4 June 2017, did he use those words again, or ---? --- Yes.
[16] ts 93.
After her male friend had texted, he 'chucked' the phone on the couch. Ms Tran gave evidence that she took the phone and read what had been texted, but said nothing. Her male friend just sat on the couch in her lounge room and became agitated when Mr Nguyen, who was supposed to come to her house, did not arrive.
Ms Tran was asked why she did not contact the police and say that her male friend was doing bad things, and threatening her. This time she gave a different answer, which was 'Because I was stupid not to'.[17]
[17] ts 95.
Ms Tran gave evidence that she did not get any money or benefits for helping her friend with Mr Nguyen, that she did not use drugs herself and was never offered money or drugs. Mr Nguyen gave her nothing.[18]
[18] ts 95.
Ms Tran did not name her male friend. Her reason for not naming him was 'because if I do he's going to hurt my kids'.[19] She gave no further details.
[19] ts 115.
When asked again in cross-examination to give the name of her friend, Ms Tran again refused to name him, even when invited to do so in a way which would not be disclosed (subject to a suppression order and setting out the limited use to which disclosure could be put).[20]
[20] ts 117 – 119.
In cross-examination Ms Tran said she did not know Mr Nguyen very well. She had seen him only a few times – less than five – between the day she first met him and the day she was arrested. The less than five times she had met Mr Nguyen included the wedding reception she had attended, which she clarified in cross‑examination was in January or February 2017.[21] Ms Tran also said she had only spoken to Mr Nguyen on the phone a few times, which she clarified as being 5 to 10 times.
[21] ts 120.
There was cross‑examination about Ms Tran's evidence about the purchase of the shoes. Ms Tran stated that Mr Nguyen had said he had a friend who sold counterfeit shoes, and when the shoes were delivered she had expected Mr Nguyen and not his friend. She agreed that this person unexpectedly showed up at her house. She did not ask that person his name and while he introduced himself he did not give a name, but just said he was there to give her the shoes for Mr Nguyen.[22]
[22] ts 126.
She was taken to the telephone call she made to Mr Nguyen on 23 May 2017, checking what the price of the shoes was (as set out in [42] above). She agreed she did not say to Mr Nguyen that his friend had said the shoes were $175 and she did not say to Mr Nguyen that this person had unexpectedly showed up at her house. She then revealed that she had made the phone call to Mr Nguyen from her bedroom and the person who had just turned up was in the bedroom with her. Ms Tran agreed she at no stage inquired about who that person was.[23]
[23] ts 127.
Cross‑examination of Ms Tran also canvassed the telephone call made on 31 May 2017 (as set out in [44] above). This included the fact that the previous message from Mr Nguyen had asked her to call him, and that the telephone call was clearly made by Ms Tran to Mr Nguyen, who answered the phone.[24] When asked if she called Mr Nguyen, or he called her, she answered 'I think I called him'.[25] However, she then gave evidence that she had not made this call, but that her male friend who was in the car picked up her phone and made the call and immediately after Mr Nguyen answered, she recognised it was him. So as far as she was aware, Mr Nguyen did not know who she was in the car with.[26]
[24] ts 130 – 131.
[25] ts 131.
[26] ts 132.
In cross‑examination she stated that when Mr Nguyen said 'I'm just calling to see if your friend's ready again', she understood him to mean her male friend, the one in the car with her. When asked why that friend in particular, she answered 'I don't know'.[27]
[27] ts 132.
She gave evidence that she understood Mr Nguyen to be talking about 'probably something illegal'[28] but then she said that it was only at about the middle point of the call that she realised the call was about drugs.[29]
[28] ts 132.
[29] ts 133.
She was taken to the part of the call when she said 'Yeah, yeah, cool. Ah so it's less?' and asked how she knew to ask that question. She answered that it was because her male friend told her to. When Ms Tran was asked how her male friend told her, she explained, by demonstration, that the male friend was mouthing the answer to her.
All of this occurred while she was, apparently, driving her car and concentrating on the road.
She was then taken to Mr Nguyen's response, after she said 'so it's less' and Mr Nguyen then responded 'No, no it's the same … No it's ‑ there's not much left at all. Like, there's only the same amount what I gave you last time left'. Her evidence was that she did not know what he was talking about. She then said 'He was obviously talking about drugs' but her evidence was that Mr Nguyen had never given her drugs before and he had never spoken about drugs before. When she was asked why she did not question what Mr Nguyen meant when he said he gave her something last time, her explanation was that she did not say it because her friend was sitting next to her and she was driving.[30]
[30] ts 135.
Ms Tran was cross‑examined about why she told Mr Nguyen that she would check with her friend and then text Mr Nguyen, when she was sitting right next to her friend in the car. She could not explain this, or why her friend himself did not send a text message to Mr Nguyen on her phone, saying:[31]
[31] ts 136.
Okay. You go on to tell [Mr Nguyen] that you'll check and text you, is that correct? --- Yes.
Text - sorry, and text him? --- Yes.
That's because you wanted to check with your friend? --- Yes.
Who was sitting right next to you in the car? --- Yes.
Do you remember how long it took you to text [Mr Nguyen] back? --- Not straightaway.
It actually took you in the vicinity of three hours, didn't it? --- Yes.
To say, 'No, thanks'? --- Yes.
Why did it take so long? --- Because I had to go pick up my kids and, like, do some chores or something.
Why didn't your friend send the text message on your phone? --- I don't know.
Why didn't you just ask him while you were sitting next to him in the car? --- Because he said, 'Don't talk to me. Just speak to [Mr Nguyen]'.
Sorry. What did - when you said to [Mr Nguyen]: I'll, um, check and I'll text you? --- Yes.
What were you checking? --- What [Mr Nguyen] wanted my friend to have.
A few minutes later, her evidence was:[32]
And did you check with your friend? In your car when you hung up the phone with [Mr Nguyen], did you say, 'Do you want some drugs from [Mr Nguyen]?' --- He heard the phone because the phone was on speaker and he said, 'Nah'.
So after you hung up with [Mr Nguyen], he said, 'Nah?' --- Yes.
Okay. And then you waited three hours to text [Mr Nguyen]? --- Yes.
Ms Tran, I suggest to you that that's just not what happened? --- Yeah, it happened like that.
And that at the time of this telephone call, no one was telling you what to say? --- That's a lie.
[32] ts 137.
In cross‑examination Ms Tran was asked about the male friend and his behaviour. Her evidence was that she had never had a discussion with this man about drugs.[33] She did not know what he did for work, but had suspicions about this because he had money.[34]
[33] ts 125.
[34] ts 123.
Ms Tran was pressed for details about her male friend's threatening behaviour. All she said was that he was 'mean and scared and swearing, and was throwing things around'. This occurred at her house. She initially said that he was throwing furniture, but when asked what items of furniture, she immediately changed her evidence and said he was throwing magazines or books or cups. She then demonstrated what he had done by using a swiping motion, rather than a throwing motion. This particular behaviour occurred after this guy took a phone call and he got mad, but this was not 'pacifically' [sic] at her, 'he just got mad'.[35]
[35] ts 124.
As to the threats that this male friend made, in cross‑examination Ms Tran said the first time she remembered him making a threat either about her children or to her was when he said 'go and get the sample' and she said no. She agreed this was after she had sent the message about the cupcakes.[36]
[36] ts 124.
When cross‑examined about the threat she said her male friend had made in the car after the telephone call of 31 May 2017, Ms Tran conceded that he had not threatened her at this point in time. Her evidence, contrary to what she had said in her evidence‑in‑chief, was that she had asked him what the call was about and he had said it was none of her business.[37]
[37] ts 140, 141.
She was taken through the text message exchange she had with Mr Nguyen on 1 June 2017 but she stated she could not remember sending or receiving any text messages. She confirmed that she did send the text message on 1 June 2017 saying 'Hi, my friend wants to order half a dozen cupcakes but would he be able to sample first', but she could not remember Mr Nguyen texting her back, or that she sent a message saying 'Cool, can I come see you tomorrow morning', or sending or receiving the other messages which followed.
Ms Tran did remember receiving the message on 2 June 2017 which asked 'what time did you want the sampler' when she was at home, by herself. She agreed she also sent the messages which followed this. She claimed she did not know that what she was going to pick up was drugs, only that she was going to pick up something for her friend. She agreed that she went and picked up the sample, which was a small packet 'all taped up', at which point she thought it might be drugs but did not know what type.[38]
[38] ts 145.
It was put to Ms Tran that her male friend had not threatened her at the time she sent the message of 1 June 2017 about the cupcakes. She said that he had, but then her evidence about what occurred was as follows:[39]
When did he threaten you? --- I don't know. I don't know like a specific time or day.
Well, did he have to threaten you in order for you to send that text message or did he say can you just send this text message to [Mr Nguyen]? --- No, he asked me, but in a very firm and scary way.
What words did he say? --- 'Send this to [Mr Nguyen]'.
And you didn't say why? --- No.
[39] ts 146.
She was then asked about the messages organising to meet up with Mr Nguyen. She gave evidence that she did not send those messages, but when asked who sent those messages, she said 'I don't know'.[40] She agreed she was at home that night, that her friend did not stay with her, and she 'probably' had her phone with her.
[40] ts 145.
She stated that after collecting the sample her friend came to her house to pick it up, but he did not stay at her house for long and she did not speak to him at all later that day. She remembered receiving the text message from Mr Nguyen asking 'how did your friend go' and she also remembered sending the response 'Yeah, great. Can we do Sunday'. She stated she did this because her friend told her.[41] She then said that he 'popped' back to her house - after leaving with the sample, he came back later the same day 'to tell me it's good. I don't know'.[42]
[41] ts 148.
[42] ts 149.
Ms Tran recalled making the arrangements to meet up with Mr Nguyen on Sunday 4 June 2017 at 1 pm, and agreed it was she who made those arrangements, knowing that it was about drugs. Then the following exchange occurred:[43]
[43] ts 150.
And why was it at your house? --- I don't know.
You didn't ask anyone? --- No.
But you thought this was going to be a drug transaction? --- Yes.
You didn't say 'I don't want that happening in my house?' --- Yes.
You did say that? --- Yep.
At what point? --- At - when he said, 'Tell Davis to meet at your house'.
And you said, 'I don't want this happening at my house?' --- Yes.
And what did he respond? --- He said that he knew where my kids go to school.
What did you think he was going to do to your kids? --- I thought he would go and hurt my kids.
How did you think he was going to hurt your kids? --- Hurt them, take them, hit them, kill them, I don't know.

She was again asked why she did not call police and her answer was 'Because the police cannot guarantee the safety of my kids. They can - they're not going to put a police car outside my kids' school every day of their lives'.
Ms Tran agreed that she said nothing about this during her interview with police. She denied that this was something she had made up to reduce her level of involvement in the drug transaction.[44]
[44] ts 151.

Findings of fact relating to the intercepted calls

It is important to review and make findings about the intercepted text messages and telephone calls which took place before the offence of 4 June 2017, in particular, the calls of 23 May and 31 May 2017. This is because if I accept Ms Tran's evidence about these calls and what they were about, it will have an effect on the issues I must determine, in particular whether she was acting under duress and whether the offence was an isolated transaction.
I do not accept Ms Tran's evidence about these calls and I have a number of difficulties with her honesty, reliability and credibility.
In relation to the conversations which Ms Tran had with Mr Nguyen between 21 and 24 May 2017, I am not able to accept Ms Tran's evidence that these related to shoes. In my view her evidence is implausible and improbable, for the following reasons.
First, in her evidence in the trial of issues Ms Tran said that the shoes she arranged to purchase were counterfeit (fake) Christian Louboutin shoes. In her interview with the police which took place on 11 July 2017, she said the shoes she was talking to Mr Nguyen about were Louis 'Bittons' as she called them (sic – Vuitton's)[45]. This is a significant inconsistency which casts considerable doubt on the veracity of her evidence.
[45] Record of interview ts 59 and 63, prosecution brief pages 200 and 204.
Secondly, the content of the text exchanges and telephone calls themselves are inconsistent with a simple arrangement for the delivery of a pair of shoes. Of significance is the text message which Mr Nguyen sent to Ms Tran on 23 May 2017 at 08:41:01, before the telephone call, when he told her he would see her at 12 pm at the 'same place' and then said 'It's 185 for the pair of shoes'. Mr Nguyen made plain the cost. In addition, reference to the 'same place' must mean Ms Tran's home address which indicates that Mr Nguyen had been to her address before, contrary to Ms Tran's evidence that she barely knew this man.
Mr Nguyen sent a text message at 11:36:44 saying he would be there in 25 minutes. Then only four minutes later at 11:49:28, Mr Nguyen told Ms Tran that if 'my mate' gets there before him, to ask him to wait for him. At no stage did Ms Tran seek clarification about the arrival of a Mr Nguyen's 'mate'.
As to Ms Tran's evidence about Mr Nguyen's mate coming to deliver the shoes, I have a number of difficulties with it.
The essence of the evidence from Ms Tran was that a person whom she did not know, whom she had never met before, arrived at her address carrying a pair of shoes on behalf of Mr Nguyen who, on her evidence, she had met less than five times and was really only a passing acquaintance.
If that was indeed the case, it is very unusual, in my view, that Ms Tran did not ask Mr Nguyen who his mate was and nor, apparently, did she ask this person who he was.
In my view it is inherently incredible that Ms Tran would have invited a person whom she had never met before – and again, who on Ms Tran's version was only there to deliver shoes - into her home, without ascertaining his name and then allow that person into her bedroom while she made a call to Mr Nguyen.
It really was not necessary to call Mr Nguyen to clarify the cost of the shoes, when he had sent her a text message, clearly setting out the cost only hours beforehand.
The pauses I have noted (see my findings at [43] above) during the telephone discussion of 23 May 2017 when Ms Tran asked about the total and before she said the words 'uh, shoes' are inconsistent with her account. If she really was talking about a much coveted fake pair of Christian Louboutin shoes, there would have been no hesitation when referring to them.
If, indeed, Mr Nguyen's mate was coming to deliver the shoes, as a matter of common sense the transaction should have been a simple one – that person would hand over the shoes and Ms Tran would pay what was owed, either to Mr Nguyen's mate or to Mr Nguyen himself. It is inconceivable that for such a delivery Mr Nguyen's mate would be required to wait for Mr Nguyen's arrival. The fact that this mate was required to wait is, in my view, consistent with a drug dealing transaction.
I accept the State's submission that the manner in which Ms Tran and Mr Nguyen communicated about the 'shoes' is consistent with codified communication, particularly because Mr Nguyen did not refer to his mate by name, did not offer an explanation about who this person was or why Ms Tran should expect this person, and Ms Tran did not seek that clarification.
Another significant text exchange is that which took place the day after the transaction, on 24 May 2017, when Ms Tran contacted Mr Nguyen and thanked him for his help. He replied 'that's ok if you need again just let me know'. The concept of 'needing again' is not consistent with a transaction for the purchase of a distinctive pair of fake Christian Louboutin shoes. Ms Tran would not need those again. Mr Nguyen's statement 'if you need again' is, however, consistent with a transaction for illicit drugs.
The entire conversation being related to 'shoes', as Ms Tran explains it, when looked at in context of the text messages and telephone calls, is illogical and fundamentally implausible.
The only reasonable inference I can draw when looking at the conversations which took place between Mr Nguyen and Ms Tran as whole is that they were having a codified communication in relation to illicit drugs.
My conclusion is confirmed when I look at their subsequent conversation on 31 May 2017, which Ms Tran has accepted was about drugs. It is significant in my view that Mr Nguyen started the conversation as follows:
NGUYEN:Yes. I'm just calling to see if, um, if you, if your friend's ready again, because, um., my friend, he's um, he's only got, like, uh, well, uh [indistinct] for us, uh, left and he asked me if, if I want it. If not, then he's, he's gonna give it to someone else because, uh, someone else just asked him as well.
The start of this telephone conversation is inconsistent with Ms Tran's evidence that she had not previously discussed drugs with MrNguyen. I agree with the State's submission that it would be inexplicable and nonsensical for Mr Nguyen to start the conversation in this way, and that this opening to the conversation would be entirely insensible to someone who was not aware that the conversation was in relation to drugs.
If Ms Tran did not know Mr Nguyen was talking about drugs, as a matter of common sense and experience I would have expected her to have asked him what he was talking about. She did not, and the only reasonable inference I can draw from this and the other facts and circumstances I have set out in [105] to [118] above is that she did not ask because she knew exactly what Mr Nguyen was talking about. It is clear that Mr Nguyen had dealt with Ms Tran on an earlier occasion, and the 'it' he was referring to was not shoes.
Ms Tran then asked if there was 'much left' and the conversation continued (bold and italics my emphasis):
NGUYEN:No. It's, it's, there's not much left at all. Like, there's, there's only the same amount what I gave you last time, left. And, um, yeah so he, and because he promised me, it was for me. Um ---
TRAN:Okay. Yeah. Yeah. Yeah.
NGUYEN:But then because I'm, I'm, I'm taking a bit, well, like, well, it's , it's been a, a little while now. Um, he, so-, someone else asked him just then and, um ---
TRAN:Yeah. Yeah.
NGUYEN:Yeah. And he said to me, like, uh, well, find out if, if, if I need it. If not, then he'll---
TRAN:Yeah.
NGUYEN:Give it to other guy, so I just called ---
Ms Tran then asked 'is it still the same?' and then inquired about the price. None of this can be a reference to shoes. Reference to 'it' could only be a reference to illicit drugs.
Counsel for Ms Tran emphasised to me her description of the shoes and the fact that she presented, as an exhibit, a pair of shoes which matches the description which she gave. I can place little weight on either of these matters. As I have already observed, her description of these shoes is inconsistent with what she told police during her interview. Further, I have found greater assistance in an assessment of the objectively established facts and contemporaneous materials, namely the intercepted text messages and calls. The shoes which are an exhibit do not help Ms Tran.
Indeed, having regard to her evidence as a whole, in particular her evidence about the telephone call of 31 May 2017 and my further findings about this call which I set out below, the production of a pair of shoes is self‑serving and is, I am satisfied, an attempt to reduce her culpability for this offence.
Turning now to further discuss the telephone call on 31 May 2017, Ms Tran is asking the court to accept that she had not had any previous drug dealings with Mr Nguyen, that she only worked out about half way through the call that Mr Nguyen was talking about drugs and that this call took place while she was driving her car with her male friend with her, in the passenger seat, holding her phone and directing her by signs (without speaking) as to how to answer Mr Nguyen.
I am unable to accept Ms Tran's evidence that the conversation happened as she described. I am positively satisfied that when she had this conversation she was not in a car and I do not believe her evidence that her male friend was with her during this conversation, for the following reasons.
As I have already set out in [45] above, Ms Tran was happy and cheery during this call.
There is no sound of a car in the background of this call, which is clear and without the interference or sounds, including engine sounds, which one normally hears during a call with someone who is driving.
There is no other sound consistent with another person being with her.
As I have already noted, Ms Tran's evidence‑in‑chief proceeded on the basis that Mr Nguyen had called her and that her male friend had answered the call and held up her phone so that she could speak while driving. Of course it became clear to her, during cross‑examination, that in fact she was the one who had made the call, and as I have set out in [82] she accepted that she did. However, she then quickly changed her evidence that she made the call, to say that her male friend had read Mr Nguyen's text message, and he had made the call and then held the phone up for her to speak to Mr Nguyen. All of this is inherently improbable and demonstrates, in my view, that Ms Tran was extemporizing in a factitious (ie artificially created) way.
The duration of the call was short and, having listened to the call, Ms Tran's responses were immediate, spontaneous and without hesitation. For example, Ms Tran's suggestion that she said 'Yeah, yeah cool … so it's less' after her male friend told her what to say by mouthing the words, simply does not fit with how quickly she answered and the way in which she asked whether it was less which, incidentally, was quickly followed up with Ms Tran's question 'much left?'.
Ms Tran's account of someone whose attention was divided between trying to work out what Mr Nguyen was talking about, taking signed directions from her male friend sitting in the passenger seat next to her, while focusing her attention on the road, is inconsistent with the way she actually spoke and the answers she gave as recorded in that intercepted call.
The fact that Ms Tran told Mr Nguyen during this telephone call that she was going to check with her male friend is completely inconsistent with her evidence that the same male friend was sitting in the car next to her, telling her what to say.
The other difficulty with Ms Tran's evidence is that it took Ms Tran three hours after this telephone conversation to text Mr Nguyen and tell him that her friend was 'good for now'. That text message is, in my view, inconsistent with the scenario where, according to Ms Tran, her male friend was with her in the car and talking to her, including allegedly making threats, after this telephone call.
I reject Ms Tran's explanation for this telephone conversation of 31 May 2017. I simply do not believe her evidence that her male friend was with her either during or after this call, and in my view she has not been truthful about this call.
I am satisfied beyond reasonable doubt that this telephone conversation is exactly what it looks and sounds like, which is Ms Tran acting alone, discussing a proposed illicit drugs transaction with Mr Nguyen.
The exchanges between Ms Tran and Mr Nguyen on 31 May 2017 did not result in a drug deal, however, they put into context the conversations which Ms Tran had with Mr Nguyen leading up to the offence on 4 June 2017.

Findings on the issue of duress

Where an offender commits a crime whilst acting under duress which falls short of a complete defence to the charge, that duress is capable of being a mitigating factor on penalty: R v Olbrich (1999) 199 CLR 270 [26] ‑ [27]; Tiknius v The Queen [2011] NSWCCA 215 [32] (Johnson J; with whom Tobias JA and Hall J agreed). In assessing the objective seriousness of an offence, matters of motivation, such as duress are causally related to the commission of the offence and may be classified as circumstances of the offence: Tiknius v The Queen [42].
The onus lies upon the offender to establish the facts which are said to operate to mitigate penalty: Tiknius v The Queen [32]; Sakhie v The State of Western Australia [20] (Mazza JA and Hall J in joint reasons).
Where the offender discharges the onus and satisfies the sentencing court that a factual finding should be made that the offender's involvement in the offence was affected by duress, it will remain for the court to determine what weight should be given to that factor on sentence. This will involve, amongst other things, consideration of the form and duration of the offender's criminal conduct, the nature of the threats made and consideration of opportunities which were available to the offender to report the matter to relevant authorities: Tiknius v The Queen [49].
The ordinary way in which a person renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation: see Taiapa v The Queen[2009] HCA 53; (2009) 240 CLR 95, 106 [31], (French CJ, Heydon, Crennan, Kiefel and Bell JJ), applying Brown v The Queen (1986) 43 SASR 33, 40 (King CJ); see also Marchesano v The State of Western Australia[2017] WASCA 177[129] and [154].
An unparticularised concern that police protection may not be a guarantee of safety cannot, without more, supply reasonable grounds for a belief that there is no option other than to break the law in order to escape the execution of a threat: Taiapa [40]; Marchesano [130].
Where the offending occurs over an extended period and there were opportunities available to report the threats to police, the mitigating value to be given to duress may be reduced: Tiknius v The Queen [69] ‑ [72]; see also Wale v The Queen [2001] WASCA 418; (2001) 126 A Crim R 370 [6] and [7] (Steytler J).
In addition, general deterrence will be a weightier consideration in drug cases: R v Riddell[2009] NSWCCA 96; (2009) 194 A Crim R 524, [55] ‑ [63].
In drug cases it is often claimed by an offender that the offence was a product of threats to self and family, sometimes with threats coupled by a demand that involvement in drug dealing is required. A careful and close assessment of evidence adduced to support such a claim should be made, with the onus of proof upon the offender kept firmly in mind: Tiknius v The Queen [44], [46].
A mere assertion that the offender has been assaulted or threatened, without reference to any specific incident, is not admissible: Sakhie v The State of Western Australia [20].
Ms Tran's evidence about this issue of duress was led without objection, however, her evidence lacked detail and consistency and her account is, in my view inherently unbelievable.
Importantly, she refused to identify her male friend, the person who is alleged to have made the threats to her, even when adequate protections could have been put in place. In my view she should have disclosed the name of the friend if she wanted the benefit of duress as a mitigating factor for the purpose of sentencing: Sakhie [21].
That aside, however, I had considerable problems with Ms Tran's account. While she may well have been naïve or, in her words 'stupid'[46], I am not satisfied that she was at any stage acting under duress, for the following reasons.
[46] See [75] above.
As I have found, Ms Tran had already been involved in one drug dealing transaction with Mr Nguyen – the dealing which Ms Tran said was about 'shoes' but which I have found was about drugs – and her male friend was not involved in that dealing.
In particular, for the reasons I have already given when making my findings on the intercepted calls, I did not find Ms Tran generally to be reliable or credible witness. I have found that Ms Tran was not truthful in her account about the conversation of 31 May 2017, and this reflects poorly on her honesty and credibility generally and calls into question whether I can accept her evidence on the issue of duress.
Ms Tran suggested in her evidence‑in‑chief that her male friend was a violent man, however, under cross‑examination she really was unable to provide a clear and cogent example of this man ever behaving in a violent manner towards her. She initially asserted that he was throwing furniture, but that quickly changed to an assertion that the man swept aside some magazines and coffee cups from a table in her house and even then, he was not angry at her.[47]
[47] See [91] above.
Ms Tran's evidence‑in‑chief was that her male friend had made an implied threat while he was in her car, not long after the telephone call of 31 May 2017.[48] I have already found that she was not in a car when she made this call to Mr Nguyen and I do not believe Ms Tran's evidence that her male friend was with her in the car or at all, either during or after this call.
[48] See [66] above.
Even if I was to accept Ms Tran's evidence‑in‑chief about this alleged threat, there is no temporal connection between this and Ms Tran's offending on 4 June 2017. On her evidence, what led him to making this threat was that she told him she did not want him to come and talk to her anymore.[49] Further, the telephone discussion of 31 May 2017 did not result in a drug deal.
[49] See [66] above.
There were a number of inconsistencies in Ms Tran's evidence about when the male friend had made his first threat.
While her evidence‑in‑chief was that the first threat was made in the car on 31 May 2017, and then another threat was made when she sent the message on 1 June 2017 about ordering half a dozen cupcakes[50], this changed in cross‑examination. She said in cross‑examination that the first time her male friend had threatened her was when he said 'ok go get the sampler, and she said 'no'. This was, of course, after she sent the message about the cupcakes.[51]
[50] See [66] and [67] above.
[51] See [92] above.
Then, when it was subsequently put to Ms Tran that when she had sent the text message about the cupcakes on 1 June 2017 her male friend had not yet threatened her at this stage, she said that she had been threatened. However, the evidence she subsequently gave[52], does not establish any threat, only that he asked her to send the text message 'in a very firm and scary way'.
[52] See [96] above.

Ms Tran's evidence‑in‑chief was that the next threat was on 4 June 2017, at the time of the text sent at 13:42:17.[53] However, she then suggested for the first time, when cross-examined about making the arrangements for the meeting with Mr Nguyen on 4 June 2017, that another threat was made by her male friend when she questioned why the meeting had to be at her house. She claimed she was directed by the male friend to meet with Mr Nguyen and when she said 'I don't want this happening at my house', he said 'that he knew where my kids go to school'.[54] In my view, this is another example of factitious extemporization by Ms Tran.
[53] See [73] above.
[54] See [99] above.
Ms Tran's account of threats is not supported by the contemporary materials and objectively established facts as set out in the intercepted phone calls and text messages which took place between Mr Nguyen and Ms Tran about the cupcakes, the sample, and the early text messages sent on 4 June 2017.
These text messages also raise considerable doubt about Ms Tran's account of the text message which was sent on 4 June 2017 at 13:42:17 asking Mr Nguyen if he was still coming with the cupcakes.
Ms Tran's account of this, as given in her evidence‑in‑chief, was that the male friend made a threat when she did not want him to use her mobile phone in order to send the text message asking Mr Nguyen if he was still coming with the cupcakes. She indicated in her evidence this was her usual phone, (the one which had been used by her male friend, on her account, when she was driving on 31 May 2017) which was lying on the coffee table and which her male friend picked up.[55] This is inconsistent, in my view, with the text message itself and the fact that in her interview with police, she identified that this text message had been sent to Mr Nguyen from a different mobile number, which she identified as her mobile number she uses for her hairdressing business.[56]
[55] See [73] above.
[56] Amended statement of material facts as set out in [28] above; Ms Tran's record of interview with police ts 54 and 75, prosecution brief pages 195 and 216.
In addition, I find it intriguing that Ms Tran said in her evidence-in-chief that she did not want her male friend coming to her house on the day.[57] Yet this was the male friend whom Ms Tran has asked me to accept effectively forced her to send the message on 1 June 2017 about the cupcakes, to whom she gave the sample which she picked up from Mr Nguyen, who told her the sample was good, which Ms Tran then relayed to Mr Nguyen, and for whom Ms Tran made the arrangements to have the meeting with Mr Nguyen at her house on 4 June 2017 when, according to her, she did not want this transaction taking place at her house. Her statement that she did not want her male friend there at the time of the delivery by Mr Nguyen simply does not make sense.
[57] See [73] above.
In all of the circumstances, I do not accept that any threat was made at the time of the text message sent at 13:42:17 on 4 June 2017, but even if I was to accept Ms Tran's evidence, there is no connection between this threat and her offending. That is because this threat was made at a time when the illicit drug transaction had already been arranged and Mr Nguyen was late for the arranged meeting time at 1 pm.
Finally, and significantly, when Ms Tran was interviewed by police, and they played the telephone intercept material to her, she made no mention of any threat or duress or other reason why she became involved in the offending.
For these reasons, I have concluded that I cannot accept any of Ms Tran's evidence on the issue of duress. I am unable to accept that any threat was made to her at any stage before the events of 4 June 2017.
Even if I did accept that the male friend made a threat to her, if she really was fearful of him, she had ample opportunity to seek assistance in relation to the threats and report the matter to the police, and she did not do so. In these circumstances, any mitigation that she was involved in the offending of 4 June 2017 because of a threat could only be minor in any event.
Ms Tran has failed to prove to my satisfaction, on the balance of probabilities, the mitigating factor which she has alleged.

Findings on whether Ms Tran was involved in this offending for commercial gain

Counsel for the State submitted that it was inherently implausible that anyone would play Ms Tran's role, that is an important, trusted and established facilitator of transactions of this nature, for no benefit whatsoever.
However, counsel for the State also conceded that there was no material before the court which could assist me in making a finding in respect of the benefit that Ms Tran received for her role in this transaction.[58]
[58] ts 166.
In my view, in the absence of any evidence that Ms Tran received or obtained any payment or other reward for her role in the transaction, this is a situation where that fact does not exist for the purposes of sentencing: Law [34].
However, as I observed at the outset, even without that evidence this was a commercial drug dealing enterprise in which Ms Tran played an important and significant role.

Findings on whether this was an isolated occasion

There was no transaction following the telephone call of 31 May 2017, given the message that Ms Tran sent three hours later in which she said that her friend was 'good for now'.
However, I am satisfied beyond reasonable doubt that Ms Tran had dealt in drugs on at least one previous occasion, that being the transaction which was referred to as being about 'shoes' but which I have found was not about shoes, but about drugs. This, together with the exchanges between Ms Tran and Mr Nguyen on 31 May 2017, demonstrate the relationship which the two of them had, and shows that they were comfortable in using codified communications to talk about drugs. It also puts into context the conversations Ms Tran had with Mr Nguyen leading up to the offence on 4 June 2017. It defies common sense that Ms Tran could have been involved in arrangements for such a significant amount of methylamphetamine with no previous drug dealings with Mr Nguyen.
Accordingly, I am satisfied that this offence was not an isolated dealing in illicit drugs by Ms Tran.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
ASSOCIATE TO JUDGE DAVIS
12 OCTOBER 2018