DPP v Tran [2020] VCC 1667 (15 October 2020)

Last Updated: 10 November 2020

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00278

DIRECTOR OF PUBLIC PROSECUTIONS
v
HOANG TRAN

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2020
DATE OF SENTENCE:	15 October 2020
CASE MAY BE CITED AS:	DPP v TRAN
MEDIUM NEUTRAL CITATION:	[2020] VCC 1667

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Sentence – Plea of guilty – Possess trafficable quantity of firearms – Possess loaded firearm in a public place – possess firearm with no serial number – Possess counterfeit money – Possess a drug of dependence – Negligently deal with proceeds of crime – Unlicensed person store a firearm in an insecure manner – Four summary charges – State and federal sentence – Imprisonment

Legislation Cited: s.7C(1), s. 130(1), s. 134C(1), s.129A Firearms Act 1996 – s.9(1) Crimes (Currency) Act (Cth) 1981 – s.73(1) Drugs Poisons and Controlled Substances Act 1981 – s.194(4) Crimes Act 1958

Cases Cited: DPP v Charlie Dalgliesh (Pseudonym) [[2017] HCA 41; 2017] 91 ALJR 1063 - Veen v R (No.2) [1988] HCA 14; [1988] 164 CLR 465 - Berichon v R [2013] VSCA 319 - Hudson [2010] VSCA 332; [2010] 30 VR 610 - Bourke [2020] VSC 130 - DPP (Cth) v Swingler [2017] VSCA 305

Sentence: Total effective sentence (State): 3 years and 9 months imprisonment and a minimum of 2 years and 6 months before being eligible for parole. Further declare 254 days of pre-sentence detention.

Total effective sentence (Federal): 4 months, to commence at the end of the non-parole period to be served for the state sentences.

Summary charge 4: Convicted and ordered to pay a fine in the sum of $826.10.

s.6AAA – 5 years with a minimum of 3 years and 4 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Office of Public Prosecutions
For the Accused	Mr W. Barker	Furstenburg Law Pty Ltd

HIS HONOUR:

1. On 23 September 2020, Mr Tran pleaded guilty to all charges in indictment K12058079.1 and a number of summary charges, to which Mr Barker pleaded on his behalf. Mr Barker appeared on behalf of Mr Tran, and indeed appears today and Mr Pirrie appeared on behalf of the Director. For the record, these proceedings have been conducted remotely, both at plea and today by way of WebEx. I want to thank all parties for the steps they have taken in that regard.
2. Mr Tran is aged 40, he was 39 at the time of the commission of these offences, having been born on 16 April 1970. As detailed by Mr Barker in his email dated 23 September 2020 and accepted by the prosecutor, the pre-sentence detention is 254 days. However, on the issue of totality, it is appropriate for this Court to take into account, and I do, the fact that he has also served a period of of 182 days since remanded on 6 August 2019.
3. The offences themselves, as set out in the indictment, are firstly the offence of being in possession of a trafficable quantity of firearms, s.7C(1) of the Firearms Act 1996. The offence itself and the trafficking is defined as the possession of two or more firearms. In this particular instance, it is three firearms. One firearm found, a Ruger pistol, on 6 August 2019 when Mr Tran was apprehended in Sunshine. That Ruger is described as a P93DC semi-automatic handgun. Then subsequent to his arrest, a warrant was issued insofar as his premises and two further firearms were found. Firstly, a Tauras, remarkably described, and I am not quite sure why, as a Circuit Judge Revolving Rifle. That was found in a box under the dining room table in his premises. In addition, the third firearm was found in a sock also under the table, which was a Laurona Eibar 12-gauge shotgun. They are the three firearms that make up the charge of trafficking of firearms.
4. It is difficult to understand the utility of this charge. I accept Mr Barker's comments in regard to that. There is no charge of trafficking as such, nor is there a presumption brought about by such. I indicate that the seriousness of such possession is demonstrated by the fact that the Parliament has prescribed a maximum penalty of 10 years imprisonment.
5. The hierarchy in the Act is difficult to comprehend. As the learned prosecutor has indicated in the definition section, s.3 of the Act, a prohibited person is defined. Mr Tran is not a person subject to a prohibition notice, which applied to his passenger Mr Ibrahim, but is a prohibited person pursuant to the definition in the Act. The particular sub-section that applies to Mr Tran would be (a)(v), although I make the point that in no charge is he charged as a prohibited person.
6. As the prosecutor has set out that is because of s.7C(2) of the Firearms Act prescribes that a prohibited person in possession of firearms is subject to penalty under s.5(1), which also prescribes a maximum penalty is 10 years imprisonment. Section 7C(2) prescribes that if one is charged under s.7C(1), you cannot be charged under s.5(1). I simply make those points that Mr Tran fits within the category of a prohibited person, albeit he is not charged as a prohibited person, and indeed as a result of s.7C(2), that cannot occur.
7. The hierarchy, if one then looks at s.6A, s.7 and 7B, seems to move from prohibited person where the penalty is 10 years, then, depending on your category, from two to four to ten years imprisonment. But it is not necessary for me to go into that any further. I mention Charge 7, which relates to the shotgun and the revolver, a charge pursuant to s.129A of the Firearms Act of storage of firearms in an insecure situation where a person is unlicensed, the maximum penalty for that is four years imprisonment.
8. Charge 2, in my view is the more serious charge of all in the indictment, and that is a charge of being in possession of a loaded firearm in a public place pursuant to s.130(1)(a). The firearm in this instance is the Ruger found when Mr Tran was stopped and the car was searched by the officers, that Ruger being loaded. In those circumstances, the maximum penalty prescribed by Parliament indicates its inherent seriousness being 10 years imprisonment. I point out that s.130(2) defines a public place to include the interior of the car. Mr Prosecutor, as to the discussion that was had in the Ibrahim matter, on further looking at the Act yesterday, there is actually a definition of 'loaded' in s.130(7).
9. Charge 3 was a rolled up charge, but given the amendment made today the charge pursuant to s.134C(1) of the Firearms Act relates only to the Ruger P93DC handgun found in the car. The offence is possessing a firearm without a serial number and the maximum penalty prescribed by Parliament is four years imprisonment.
10. Charge 4 is possession of counterfeit money, three hundred dollar bills, an offence against s.9(1) of the Crimes (Currency) Act (Cth) 1981.
11. Charge 5 is one of possess methylamphetamine on the day of apprehension, that is 6 August 2019. Pursuant to the pre-plea agreement, possession was not for the purpose of trafficking and as such, the maximum penalty that can apply is one year's imprisonment.
12. The final charge is a proceeds of crime charge, s.194(4) Crimes Act 1958, in relation to the Tauras Circuit Judge revolver, and the maximum penalty is five years imprisonment.
13. In addition, pursuant to s.145 of the Criminal Procedure Act, Mr Barker on behalf of Mr Tran pleaded guilty to four summary offences. The first is Charge 4, possess cartridge ammunition without a licence being cartridge ammunition, on both 6 and 7 August, for which the maximum penalty is 40 penalty units. Charge 5 is pursuant to s.61 of the Control of Weapons Act 1990, to possess a controlled weapon without an excuse, being two knives, for which the maximum sentence is on years imprisonment.
14. Summary Charge 8 related to both dates, and is the commission of an indictable offence while on bail and the maximum penalty for that offence is three months. The final summary offence was a possession of controlled weapons, being an extendable baton, bayonet and a butterfly knife. The relevant section is 5AA of the Control of Weapons Act, for which the maximum penalty is one year’s imprisonment.
15. The matter resolved to a plea on 17 August of this year and as pointed out by Mr Barker, there were pre-resolution discussions indicating that a plea would be entered into, once an appropriate indictment was provided. As I indicated to Mr Barker I take it as the earliest the pleas could be made.
16. As I earlier said, s.16(3C) Sentencing Act 1991 applies to the sentencing in this indictment, as it is accepted that Mr Tran at the time of these offences was on bail, having been so placed on 12 April 2019, being the offending for which he was subsequently sentenced on 6 November 2019. Exhibit A, was tendered as the prosecution opening and Mr Barker accepted these facts, as the facts upon which I am to sentence his client.
17. I want to take this opportunity insofar as those facts are concerned, and it is a matter I probably should have mentioned yesterday also, but the comments can be relayed by you, if you would be good enough Mr Prosecutor, to the officers who apprehended both Mr Ibrahim and Mr Tran. They have done an excellent service to the community and performed their duties in a most meritorious way. The precise reason for stopping the car is not clear, although it seems that the female officer involved used her intuition, perhaps developed over some years of policing. As a result these various serious offences were detected. On behalf of the community this Court should express to that officers our thanks for their diligence and execution of duty in such a meritorious way.

    Mr Prosecutor, I think those comments should be forwarded on to the relevant authorities.

18. Insofar as Mr Tran is concerned both counsel agreed that the only appropriate sentence for Mr Tran was gaol. As set out by the High Court in Dalgliesh [2017] HCA 41; [2017] 91 ALJR 1063, Mr Tran is entitled to a just and individualised sentence based upon the facts of this case. All of the offences here evoke serious criminality, especially when illuminated by his prior offending. As I said during the plea to Mr Barker, Mr Tran is now 40 and, at least up to the date of this offending, he was not getting the message sent or detailed by Courts over numerous appearances for the last 20 years, that it is necessary for him to comply with the law.
19. Coming to the analysis of the priors of Mr Tran, I want to say firstly to you

    Mr Tran, you do not come before this Court for sentencing again for any of your prior offending. However, it is necessary, given the particular priors that you have, for me to analysis them, as was set out by the High Court in Veen v R (No.2) [1988] HCA 14; [1988] 164 CLR 465, [477], where the High Court said that prior offences are relevant to a sentence, but importantly, are not to be given a weight which is disproportionate to the gravity of the instant offences in this particular indictment.

20. Prior offences are relevant to show whether the instant offences are an uncharacteristic aberration, or whether an offender has manifested in such offending a continuing attitude of disobedience for the law. In such a case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows a dangerous propensity, or a need to impose condign punishment to deter the offender and others.
21. There is further reference in this regard in Berichon v R [2013] VSCA 319, by Mr Barker to which I will come later. At [44], the Court of Appeal said:

‘...the applicant had a very serious and disturbing prior history with respect to the use of firearms. Although of course, he is not to be punished again for the prior offences, the applicant's prior history is relevant as an indicator of his moral culpability, his prospects of rehabilitation, his dangerous propensities and the community's need for protection, and the increased importance of specific deterrence as an animating factor in the sentencing process.'

22. It is concerning to the Court to look at Mr Tran's priors, they are over a lengthy period beginning when he was 17 years of age. In 1997, 1998, he was convicted for offences of possession of heroin. In 1999, he was sentenced to his first detention order, being a period of YTC for trafficking in heroin, that period being four months. In February of 2002, he was given his first sentence of adult gaol of one month for charges of trafficking and possession in heroin, three charges of each. Then in September of 2002, he was given 48 days for possession and use of heroin, and at the Sunshine Magistrates' Court in September of 2003, 12 months gaol for trafficking in heroin, proceeds and use heroin. It is noted in the Court record that Mr Tran was addicted to heroin at that time, such notation being consistent with what the Court has been given, by way of history.
23. We then come to 2006, when he was fined for possession of heroin and then October of 2010, when he was given a month's sentence, which was suspended, for a possession of a prohibited weapon. I should make the point, as I understand, that was not a firearm. Then in August of 2013, he was convicted of being a prohibited person in possession of a firearm, handgun and cartridges. In that regard he was sentenced to 12 months gaol, of which all but for four months was suspended.
24. We then come through to January of 2014, when he was up for possession of an unregistered handgun, ammunition and prohibited person use a firearm. The offences for which the previous suspended sentence related were taken into account in the sentence of eight months. There was then further offences for which he was dealt with in April 2015, which ultimately went to the Court of Appeal when he was sentenced for trafficking of heroin and methamphetamine, possession of a controlled weapon and prohibited weapon, a handgun and proceeds offences, for which he got an aggregate sentence of 18 months with 12 months minimum.
25. We then come to September 2015, when he was sentenced to nine months for cultivate a narcotic plant, prohibited person being in possession of a firearm and ammunition. Then in January of 2016, he was given a fine for possession of methamphetamine. In May of 2016, he was sentenced for threat to inflict serious injury and given 42 days gaol. In November of 2017, he was sentenced for traffic heroin and possess heroin and given 180 days. The final, pre-sentence prior was in January of 2018 when he was given 28 days gaol for carrying a controlled weapon without excuse. Subsequently, he was sentenced to a straight sentence of six months in the Magistrates' Court on 6 November 2019 for possession of a number of drugs, consistent with that history.
26. In analysing that history, insofar as it relates to this offending, I find that such priors present a concerning and serious history as to firearms and drug offences. I am satisfied beyond reasonable doubt, that firearms are associated with Mr Tran being involved in the criminal activity of either drug trafficking or drug possession, at the very least, by his using such firearms to protect himself in such endeavours.
27. As to charge two, it seems to me by analogy, the comments made by the Court of Appeal in Hudson [2010] VSCA 332; [2010] 30 VR 610, [54], apply, when dealing with possession, in that case of a firearm by a prohibited person, which I have already indicated is not the position here, albeit that Mr Tran is deemed by the Act to be a prohibited person, the Court said that the use to which the firearms are put, given the seriousness of such a charge, is relevant in only a limited way. The Court went onto say, a more severe sentence for possession is generally reserved for cases where possession of a firearm is associated with ongoing criminal activity. I make the point of course that the facts involved in Hudson were much more serious than this, such involved the actual use by the prohibited person in that case of the gun. However, insofar as Mr Tran is concerned, I am satisfied the possession of the firearms throughout his 20 years of offending and indeed in this instance, is associated with criminal activity, albeit that I am unable to be specific.
28. Indeed such was put by his own counsel in his written submission at [28] and [38], that in conjunction with such ongoing criminal activity, he has utilised the firearms for his own protection, as clearly demonstrated, as I said, by his priors. I am confirmed in such finding given Mr Tran’s limited employment and addiction to heroin since the age of 16, see [17], [21], [22] of Exhibit 1 and [20] to[ 22] of Mr Barth’s Report, Exhibit 3.
29. While I accept Mr Barker's submission that there is no evidence of any other offences been committed at the time of apprehension with those firearms, I find that the prior history and the utilisation of the firearms in such history, albeit for protection, illuminates the moral culpability of the criminality in regard to Charges 1 and 2 and demonstrates a dangerous propensity in Mr Tran, requiring in regard to the objective criminality condign punishment to deter Mr Tran and others, and to protect society. I reject Mr Barker's classification of the firearm offences, in particular Charges 1 and 2, when he referred to Berichon, at [26], as being at the lower order.
30. Coming then to the plea on behalf of Mr Tran made by Mr Barker, he tendered the written submissions, Exhibit 1. Exhibit 2 being the certificates of courses undertaken on remand, those courses significantly do not relate to drugs. The first one it was a food safety course. I suppose broadly, the second two courses relate to his future offending, in the sense that the second matter refers to assistance by way of counselling to make one's, to use the words in that certificate, way forward and the third matter relates to the issue of self-reflection. Such are relevant to the advise to Mr Barth by Mr Tran as to his intent for the future. Exhibit 3 was also tendered being the psychological report that I have referred to of Mr Barth, of 3 September 2020. It is clear that Mr Tran has had a disturbed childhood. He also, unfortunately, began drug taking at the age of 16. That led to parental dis-enhancement with him, a lack of formal education and association with negative peers.
31. In Mr Barth's report are instructions from Mr Tran that while he has been in gaol, he has been drug free and on a Methadone course. At no time during his life has he ever had any mental health treatment. At [36] of

    Mr Barth's report, he has diagnosed Mr Tran with an antisocial personality disorder and at [37], with a severe opioid use disorder, although he notes there is no objective evidence before him, and indeed before the Court, to verify Mr Tran’s alleged abstinence while in gaol.

32. I make the point that is in no way a negative to him, there is no suggestion at all to go against his instructions that he has not been partaking of drugs while in gaol. it is one of the reasons, as is relied ultimately by Mr Barker, on the submission as to the need for the Court to take that resolve of Mr Tran into account, as demonstrated by the undertakings of various courses in gaol, that positivity that can be given as to his future. As I will ultimately conclude, and as the psychologist Mr Barth concluded himself, one has to be guarded as to Mr Tran's future, simply given the circumstances of his long history of his addiction. Insofar as his personal circumstances, I take those into account as detailed by Mr Barth, and by Mr Barker, in his written submission at [1] to [31].
33. Mr Barker also relied and submitted to the Court by way of mitigation, the plea of guilty and its timing. The fact that it is a plea at the earliest time, such indicates genuine remorse by his client. That it is utilitarian in that it assists the attainment of justice and is further utilitarian, where the ongoing operation of the Courts processes is limited. He relied on Bourke [2020] VSC 130, [32]. I accept all of those matters as appropriate to be applied by way of a discount in Mr Tran's favour.
34. Mr Barker also put to the Court the other aspect of the current COVID-19 crisis, that we are hopefully shortly moving out of. Unfortunately in regard to Mr Tran, the fact is that since March, he has been subject to imprisonment whereby he has been subject to the stress of being in gaol when COVID-19 is in the community. All prisons, have half day lockdowns. He has been unable, in that time, to receive visitors, albeit steps taken by Corrections to make remote facilities available. The fact is he has not been able to see his family. And any courses that he was keen on have been reduced, not only in capacity, but owing to them being delivered remotely. Insofar as all of those matters are concerned, I take that into account and certainly in the short term, also take into account that his period in gaol will continue to be so affected.
35. Specifically as to the sentencing Mr Barker pointed out that the Court should not be overwhelmed by Charge 1 classified as trafficking. As I said I have had some difficulty with dealing with Charge 1, I agree totally with the submission put by Mr Barker that this is a possession charge only. Also put was the risk of double punishment in regard to Charges 2, 3 and 7 and I have done as best I can to ensure that I take those matters into account.
36. Mr Tran, I now come to sentencing you. Normally I would ask you to stand and I would pronounce a sentence. You can remain exactly where you are and I will pronounce the sentence. Insofar as the indictment is concerned, I will leave the Commonwealth matter to the last and I will pronounce the state sentences first.
37. In regard to Charge 1, Mr Tran you will be sentenced to imprisonment for three years. In regard to Charge 2, imprisonment for three years. In regard to Charge 3, imprisonment for nine months. In regard to Charge 5, imprisonment for three months. In regard to Charge 6, imprisonment for six months and in regard to Charge 7, imprisonment for nine months.
38. Insofar as the state sentence is concerned, Charge 2 will be the base sentence and I order, insofar as that charge is concerned, that six months of the sentence imposed in Charge 1, one month of the sentence imposed on Charge 3, one month of the sentence imposed in Charge 6, and one month of the sentence imposed in Charge 7, be served cumulatively with each other and upon Charge 2, making a total effective state sentence of three years and nine months.
39. In regard to that total effective sentence of three years and nine months I order that the period that Mr Tran must serve before being eligible for parole is two and a half years imprisonment. I also declare that the 254 days served by way of pre-sentence detention be deemed service of this sentence and the declaration to that effect be entered in the records of this Court. I want to make it clear that despite the provision of s.16(3C), as to the need for cumulation where the offences are committed on bail, as in this instance, and in regard to the period of imprisonment served on other matters by Mr Tran since 6 August 2019, I have taken those into account. Also upon the issue of totality I have determined that there should not be full cumulation.
40. In regard to the summary matters, on Charge 4, you will be sentenced to a fine of five penalty units. The relevant penalty unit at the time was $165.22. Charge 5, two months gaol. Charge 8, one month gaol and Charge 23, two months gaol. I make no order as to cumulation in regard to those matters.
41. The difficulty of course with the next requirement imposed by Parliament in regard to the state sentences, but also relevant to the Commonwealth sentence, although I intend to pronounce it insofar as the state sentences are concerned, is that Mr Tran, Parliament has deemed it appropriate for you to be given an indication of the value to you of your plea of guilty. They have required me to tell you, had you not pleaded guilty, what sentence you would have received, had you gone to trial. That in itself is a very difficult requirement, given the circumstances that I have detailed and the totality of those circumstances. However, dealing as best I can with the requirement, can I indicate to you that had you not pleaded guilty, the sentence that you would have received would not be the total effective sentence of three years and nine months, which I have prescribed, but a higher sentence being five years, with a minimum of three years and four months.
42. So by your plea of guilty, you have saved yourself a sentence of five years with a minimum of three years and four months and received a sentence which I have given you today of three years and nine months, with a minimum of two and a half years.
43. Coming then to the Commonwealth sentence, as to the possession of counterfeit notes, Charge 4 on the indictment, I sentence you to a period of imprisonment for four months and in the accordance with DPP (Cth) v Swingler [2017] VSCA 305. I order that the service of that period of imprisonment is to commence at the end of the non-parole period that you serve for the state offences. In regard to any of those matters, does either counsel wish me to clarify any of the matters?
44. MR PIRRIE: Sorry, Your Honour, I'm struggling to keep up with Your Honour, for Charge - would Your Honour just mind - I think you did ‑ ‑ ‑
45. HIS HONOUR: Do you want me to go through them again?
46. MR PIRRIE: Would you mind doing that Your Honour?
47. HIS HONOUR: No not at all. Charge 1, three years. Charge 2, three years. Charge 3, nine months. Charge 5, three months. Charge 6, six months. Charge 7, nine months. Using Charge 2, that is the sentence of three years as the base sentence, I cumulate upon each other and upon the base sentence, six months of the sentence in regard to Charge 1, one month of the sentence in regard to Charge 3, one month of the sentence in regard to Charge 6 and one month ‑ ‑ ‑
48. MR PIRRIE: Sorry Your Honour, I've lost you there I think. Would you mind doing the cumulation again?
49. HIS HONOUR: Very well. So the base charge is Charge 2.
50. MR PIRRIE: Correct.
51. HIS HONOUR: Three years.
52. MR PIRRIE: Yes.
53. HIS HONOUR: In regard to that, I order six months on Charge 1 to be cumulated.
54. MR PIRRIE: Yes.
55. HIS HONOUR: One month on Charge 3.
56. MR PIRRIE: Yes.
57. HIS HONOUR: One month on Charge 6 and one month on Charge 7. That makes a total effective state sentence of the three years on Charge 2, plus the cumulated totality of cumulation of nine months. Making a total effective state sentence of three years and nine months. Are you with me

    Mr Prosecutor?

58. MR PIRRIE: Yes, Your Honour.
59. HIS HONOUR: All right. In regard to that sentence, I have ordered a non-parole period of two and a half years and declare pre-sentence detention of 254 days.
60. HIS HONOUR: I have indicated a 6AAA of five years and three years and four months. On the Commonwealth matter, I have sentenced him to a period of imprisonment of four months. Such period of imprisonment to start at the end of the non-parole period.
61. MR BARKER: As Your Honour pleases.
62. HIS HONOUR: Thank you to both counsel for your assistance.
63. MR PIRRIE: Thank you, Your Honour.

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