R v Alexander TRAN [2011] NSWDC 105

District Court New South Wales

Medium Neutral Citation: R v Alexander TRAN [2011] NSWDC 105 Decision date: 14 July 2011 Jurisdiction: Criminal Before: Cogswell SC DCJ Decision: Non-parole period of 4 years, balance of the term of 2 years 3 months. Catchwords: CRIMINAL LAW - sentence - importing commercial quantity of border controlled precursor -pseudoephedrine - mail received from Vietnam intercepted by Customs - package contained a total pure quantity of 1.818 kg of pseudoephedrine - Customs substituted an inert substance for the pseudoephedrine powder and delivered the parcel - motivated by greed - plea of guilty at late stage - cannot be satisfied beyond reasonable doubt that offender was aware of the precise quantity of the precursor - other items related to drug manufacturing found at home - shared home - exclusive possession question - not satisfied offender knew thereby elevating role Legislation Cited: Crimes Act 1914 s 17A, 19A(b) Criminal Code Act 1995 s 307.11(1) Category: Sentence Parties: Regina Alexander Tran Representation: Mr M Coroneos for the offender Mr A Powell for the Office of the Commonwealth Director of Public Prosecutions File Number(s): 2010/111661

SENTENCE 1. I am sentencing a thirty year old well-educated man, respected by his peers, who decided to make extra money by bringing into Australia a commercial quantity of a substance which he knew would be used to manufacture prohibited drugs in this country. That decision and action brought him from being a well-regarded citizen to becoming a criminal facing a maximum of twenty-five years gaol. 2. The crime which he committed is a crime against federal legislation. It is a crime against s 307.11(1) of Criminal Code of the Commonwealth and is called importing a substance, intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being what is called a border controlled precursor. 3. In this case, the border controlled precursor was pseudoephedrine. The quantity which Mr Tran imported into Australia was more than the commercial quantity. By that I mean it was a commercial quantity. It was over the minimum amount specified for a commercial quantity. 4. It is important for a judge in sentencing an offender to set out briefly what happened which brought about the arrest and charging of the offender. 5. In referring to Mr Tran as an offender, I now formally convict him of the crime which I referred to and I also note that he has pleaded guilty to the crime. 6. Briefly, what happened is this. On 9 September 2009 Customs examined some mail which arrived from Vietnam. It was registered and bore a number. It was addressed to a man in Chester Hill. The sender of the package was referred to as another man from Vietnam. The package described itself as containing fruit powder, dried fruit and knurr flavour. 7. Customs officers opened them and found nine packets. Each one weighed about a kilogram. They were variously labelled. They tested a powder sampled from each packet and this returned a positive result for the presence of pseudoephedrine. 8. Then what Customs did was to arrange for the nine packets to be weighed and analysed - the total weight was just under nine kilograms - and testing and analysis confirmed that the powder in each packet contained pseudoephedrine. It was determined that the total pure quantity of pseudoephedrine was some 1.818 kilograms. 9. A week later, on 16 September 2009, Mr Tran arrived at Sydney International Airport. He arrived from Vietnam. He had left Australia to go there on 12 August 2009. There was a routine examination of his baggage. Customs found the sender's receipt for a mail article which corresponded with the number on the registered mail package which had been detected a week before with the pseudoephedrine. They also found in Mr Tran's luggage what is described as "a quantity of laboratory type glassware". 10. Mr Tran was interviewed and told those interviewing him that he lived at Villawood and that he had visited Vietnam to visit his grandmother who was ill and other members of his family. He accepted that the document was a receipt but said he had not seen it before, he was not familiar with the sender, and thought that the friend who was packing his suitcase might have put it in there. He said he had met a man in a club in Vietnam who had assisted him in packing his bag. He made no comment about the laboratory type glassware. 11. There was a man waiting for Mr Tran called Steven Lee. Customs did a search which revealed that Steven Lee had sent some $3,000 to Mr Tran in Vietnam by Western Union Transfer. That had occurred on 29 August 2009. Mr Lee had transferred $8,000 to another person in Vietnam. 12. What Customs did on the day that Mr Tran arrived was to substitute " an inert substance for the pseudoephedrine powder found in the nine packets " a week earlier on 9 September. Later that day, Customs officers delivered the parcel to the Chester Hill address. It was accepted by a man named James Tran who was not known to have any familial connection with Mr Tran whom I am sentencing. 13. Then a search warrant was executed at the Chester Hill house. Mr Tran had opened the packages and he told the Customs officers that he had realised that the package had been delivered in error, and he was going to take it back to the Post Office. 14. The Customs officers then turned their attention to where Mr Tran whom I am sentencing lived in Villawood. Mr Tran himself was not home. People were there who said that they were his parents and they also found a man, Maxwell Tran said to be his brother. 15. It is important here to record what the facts say. They say that, amongst other items, " customs officers located and seized from the property " various items, including the laboratory glass equipment which Mr Tran had brought in earlier that day, about 1.4 kilograms of a white powder, electronic scales, a safe, and two computer hard drives. The safe was said to be " in one of the bedrooms ". There is a further description of the glass laboratory equipment. It apparently included " condensers, flasks, pipettes, and separator funnels ". The facts describe that equipment as " consistent with the type of equipment found in clandestine laboratories involved in the manufacture of methylamphetamine from pseudoephedrine ." The equipment was also said to be " consistent with equipment described in the methylamphetamine manufacturing instructions located on one of the hard drives seized from the same property ". 16. The reason that it is illegal to import pseudoephedrine into Australia without a licence is that, as the facts record, it is used in the manufacture of a border controlled drug, including methylamphetamine. The white powder was found to be a substance which is a known diluent - known as a cutting agent -and frequently found mixed with methylamphetamine. 17. The safe in the bedroom was later found to contain " a number of bowls, cups, ashtrays, spoons, lighters, straws or small tubes, a toothbrush and a NSW driver's licence in the name of the offender ". The forensic department of the Police analysed the computer hard drives and found a thirteen page document " containing detailed instructions on how to manufacture methylamphetamine from pseudoephedrine ". 18. Mr Tran was arrested some months later, on 11 February 2010. It is noted that he had no licence or permit to import pseudoephedrine. 19. Mr Tran has a criminal history, but the offences occurred quite some time ago. He was convicted of offences involving stolen cars in 1999 and since then has only two traffic convictions. Such a record I do not regard as an aggravating feature so far as this offence is concerned, nor do I regard it as a counteracting, given the age and the nature of the offences, the impact of the character references which he has tendered in evidence. 20. The amount of the pseudoephedrine is about one and a half times the commercial quantity. 21. There is a helpful pre-sentence report prepared by the Probation and Parole Service about Mr Tran. Its summary says the following- " Mr Tran is a thirty year old Australian from a Vietnamese cultural background. He resides in the Villawood area with his parents and his brother, and appears to enjoy a close and supportive relationship with them. He excelled at school and then at university, where he obtained his Bachelor of Information and Technology. The offender has been employed in the information technology field since completing university. He provided this service with personal references from a varying range of friends, who all praised his dedication to work and commitment to family. Mr Tran informed this service that his offence was wholly motivated by greed. He appeared sorry for his actions, especially in regard to the worry his offences caused to his parents ." The report had earlier noted that Mr Tran " readily informed this service that his offence was wholly motivated by greed, and his desire to obtain money easily. He admitted that, at the time of his offence, he suspected he was engaging in criminal activity but chose to overlook his suspicions ." He expressed to the Service " feelings of foolishness and shame, and sorrow for the suffering he had inflicted on his parents ." The Service was concerned that his focus on financial gain could mean that his actions could be repeated. 22. Mr Tran had a relatively stable upbringing with his parents who were refugees from Vietnam. When Mr Tran was arrested on 11 February 2010 he was bailed later that day and has had no time in custody. 23. I mentioned that the pre-sentence report referred to references. Mr M Coroneos of counsel tendered, on behalf of his client, exhibit 1 which comprised a series of references and certificates and educational qualifications. The references are very impressive. Mr Tran is highly regarded by his peers as a sincere, honest and responsible young man who has gone out of his way to assist a number of those who have provided references with their education and progress in life. The referees make it clear that this offence is totally out of character for Mr Tran. All of the references refer to the offence but none of them appears to refer to the laboratory equipment which Mr Tran also brought into the country. The references, I say, are very impressive and in due course I will take them into account. 24. Mr Coroneos also tendered a comprehensive psychological report from Mr W John Taylor, a forensic psychologist. 25. I should add before I refer to Mr Taylor's report that a number of the referees expressed how ashamed and remorseful Mr Tran was about his offending behaviour. 26. Returning to Mr Taylor's report, he explained to Mr Taylor that he had met a person in a bar in Vietnam and the man " asked me if I could assist him in posting a package for him and he offered me about $2,000. I thought it would be useful because I was on holidays so I did it ." He acknowledged that it was the worst thing that he had done in his life and added that he was " regretful because of my family ". He also acknowledged that what he had done " will have affected other people ". It explained, Mr Taylor noted that " Mr Tran said that he was aware of the harm that drugs caused to people and that, in committing the offence, he was contributing to drug use ." He is reasonably healthy psychologically, apart from the obvious stress brought about by this offending behaviour and his predicament. 27. Mr Taylor noted that Mr Tran accepted responsibility for his behaviour and did not attempt to deflect any blame from himself. Mr Taylor expressed the opinion that Mr Tran " has a low risk of recidivism ". He also thought that Mr Tran " has good prospects of rehabilitation ". That would be assisted by having his family support. I have taken into account that report of Mr Taylor. 28. Both Mr A Powell from the Office of the Commonwealth Director of Public Prosecutions and Mr Coroneos provided very helpful written submissions and addressed me in Court as well. 29. Mr Powell's basic position was that Mr Tran's conduct " constituted a serious breach " of the particular law. But Mr Powell submitted that Mr Tran had travelled to Vietnam for the purpose of arranging the import and that Mr Tran had " played a significant role in the importation ". Even if he had not played a significant role, Mr Powell reminded me of what the higher courts have said that " illicit drug organisations are only able to prosper when people are ready, willing and able, to undertake these types of roles ". 30. I am satisfied that Mr Tran was aware of what was being brought into the country. He had the receipt with him and as part of his plea of guilty he must be acknowledging that he intended to use himself, or believed that another person intended to use, what he brought into the country to manufacture an illegal drug. 31. Mr Powell emphasised that the offence was committed for financial reward. 32. The plea of guilty may be taken into account as a mitigating factor because it " demonstrates a willingness to facilitate the course of justice ". The saving of the community of the expense of a contested trial is not relevant. So far as demonstrating a willingness to facilitate the course of justice, Mr Powell pointed out that the plea was entered at what he described as " a very late stage ". It was only some days before the commencement of the trial that he pleaded guilty. 33. Mr Powell acknowledged in submissions in Court that Mr Tran should be given some discount. He argued that a full-time period of imprisonment was the only way that the matter could be dealt with. Prior good character, he reminded me, " is generally of less weight as a mitigating factor " in these kinds of offences. He submitted that I could be satisfied under 17A of the Crimes Act 1914 of the Commonwealth that fulltime imprisonment was the only appropriate sentencing option. 34. Mr Coroneos argued that his client " did not play a significant role in the importation " of the precursor. He also argued that there is " insufficient evidence for an affirmative finding to be made that the offender intended to play a significant role in its manufacture into methylamphetamines ". He argued that there is " available evidence that the offender travelled overseas primarily for the purpose of visiting relatives ." He argued that his client " had performed only a limited role ". 35. Mr Coroneos said that there was insufficient evidence that his client was aware of the precise quantity of the precursor which was to be imported. Although I have previously referred to that, and indicated that I am satisfied, I am reminded by that submission that I would need to be satisfied beyond reasonable doubt and, because the postage document was not part of the exhibits, I cannot be so satisfied. 36. Before returning to Mr Coroneos's submissions, I need to make a finding about his client's role. I was at first minded to find that he had travelled to Vietnam for the purposes of obtaining the drug, and was clearly involved in the enterprise in a capacity greater than a courier. Those findings were connected with the other items which were found in the house where he lived. However, Mr Coroneos reminded me of the law regarding possession and, so far as drugs are concerned, concerning exclusive possession. I think he has a point there. The house was, on the evidence, occupied by three other people, comprising Mr Tran's brother and parents. The facts do not specify exactly where some of the items were found, except we know that Mr Tran brought the laboratory equipment into the country with him and that one of the items was found outside a bathroom. 37. To my mind, I cannot be satisfied beyond reasonable doubt that Mr Tran knew about the presence of these items. There must be, in my opinion, a reasonable possibility that somebody else in the household may have been engaged more actively than Mr Tran and that Mr Tran may have been recruited to undertake the import whilst he was in Vietnam. I make that finding only because I am not satisfied beyond reasonable doubt of the finding urged upon me by the prosecution. 38. Returning to Mr Coroneos's submissions, he pointed out that a range of discount of ten to twenty-five per cent was reasonable and that his client had accepted responsibility for his offending. He argued that the " good character of the offender and the offender's criminal antecedents should be considered to operate to mitigate the otherwise appropriate sentence ". I accept that submission but I also agree that good character has a limited effect so far as these kinds of offences are concerned. 39. Mr Coroneos invited me to make a finding that his client had voluntarily ceased the criminal activity because he had brought the substance into the country some months before he was arrested. I do not find that that is the kind of behaviour which constitutes voluntary cessation of criminal activity for the purposes of having a mitigating impact on a sentence. His client had been detected bringing material into the country and his house had been searched. It is hardly surprising that he did not engage in any further activity. 40. Mr Coroneos reminded me that his client has been subject to very strict bail conditions and that I should find that his client is unlikely to re-offend and has positive rehabilitation prospects. 41. Although the Probation and Parole Service report expressed some reservations, I am inclined to find that he is unlikely to re-offend and that his prospects of rehabilitation are good. This is where the character references provide me with some guidance. He is a well-educated young man and has demonstrated an altruistic attitude to life and to assisting his friends in the past. His friends have indicated the impact which the detection of this crime has had on him, and I am inclined to agree that his prospects are reasonably good. 42. Mr Coroneos reminded me that I may take into account his client's expressed remorse and contrition. He said that I could consider some alternatives to a full-time custodial sentence, such as suspending the sentence. 43. Mr Powell, in his submissions before me, reminded me that assertions by Mr Tran to the various people he had seen could not be accorded the same weight as they might be by sworn evidence. I accept that submission. In particular, I accept the submission that the assertions made to the Probation and Parole Service that he suspected the illegal activity somewhat reduce the reliability that I can place on what Mr Tran has told others. That is simply not consistent with his plea of guilty and in accordance with his acknowledgement which the plea comprises, I am satisfied beyond reasonable doubt that he brought this precursor into Australia either intending to use it himself or at least believing that someone else intended to use it in order to manufacture an illegal drug. His description given to the Probation and Parole Officer of suspecting something illegal and wanting to make a little bit of money on the side is disingenuous and I do not accept it. However, I do not find, as Mr Powell invited me, that he left Australia to obtain the substance. 44. Mr Coroneos reminded me of the range that I can make allowances for, so far as discount is concerned, and in due course I will make further reference to that. 45. I take into account the seriousness of this offence as indicated by the fact that Parliament has attached a maximum of twenty-five years imprisonment to it. 46. I accept Mr Coroneos's submission that his client's criminal antecedents are not significant. 47. I have formed the opinion that no other sentence than a full-time custodial sentence is appropriate in a case such as this. Mr Tran brought into the country one and a half times the commercial quantity of the precursor knowing that it would be used either by him or others in the manufacture of illegal drugs. 48. I would regard an appropriate overall sentence as seven years imprisonment. However, because of his remorse and his preparedness to facilitate the course of justice, I will discount that sentence by ten per cent to fix a sentence of six years and three months. I regard an appropriate non-parole period for that sentence as four years. HIS HONOUR: I am going to stop there. Mr Tran, your overall sentence is six years and three months and you must spend four of those years in gaol. I will explain that further to you in a moment and you will go into custody today. But first I need your assistance Mr Powell and Mr Samaan - Mr Powell, particularly - just how I specify this sentence and whether a non-parole period is the appropriate expression to use. I have got an extract of the Crimes Act in front of me. POWELL: Yes, your Honour, it does differ from the expression in relation to a State offence so if your Honour-- HIS HONOUR: Yes, which section do I look at? POWELL: Your Honour, 19A(b) of the Crimes Act, which is referred to at para 41 of the Crown's submissions. HIS HONOUR: Yes, I have got in front of me, 19A(b). POWELL: Gives your Honour the option to either fix a non-parole period or make a recognisance release order in relation to the head sentence. Your Honour had indicated an intention to fix a non-parole period so-- HIS HONOUR: Yes, but I will hear you on that unless - I will hear both of you on that if you want to be. What is your position? POWELL: The Crown's position, as expressed in the submissions that were before your Honour is that it would be-- HIS HONOUR: Sorry, remind me of that paragraph? POWELL: Paragraph 41, the last sentence in that paragraph states, "In this instance the sentence of imprisonment of a fixed non-parole period would be appropriate". HIS HONOUR: Yes, I see what you mean. POWELL: And, unless your Honour wishes to hear my friend first in relation to any submission about a recognisance release order, my submission is that the appropriate form of the sentence would be for your Honour just to express that you impose a sentence of imprisonment of six years and three months commencing from today. HIS HONOUR: And fix a non-parole period of four years commencing from today. SAMAAN: There is no objection to that course. HIS HONOUR: Okay thank you both. I have already Mr Tran. 49. I impose a sentence on Mr Tran of six years and three months imprisonment to date from today and to expire on 13 October 2017. I fix a non-parole period in respect of that sentence of four years, to commence today, 14 July 2011, and to expire on 13 July 2013. HIS HONOUR: Now, Mr Powell and Mr Samaan, are those figures right? POWELL: Your Honour, in relation to the non-parole period, I believe your Honour indicated it would expire 13 July 2013. Giving it to the four year period, I would make it that it expire on 13 July 2015. HIS HONOUR: That's right, I'm not sure where I got that. I'm sorry about that, I'll explain that. POWELL: Thank you. HIS HONOUR: But otherwise, it's right? POWELL: Thank you, your Honour. HIS HONOUR: Mr Samaan? SAMAAN: Thank you, your Honour. HIS HONOUR: Mr Powell and Mr Samaan, do I need to make any orders, or is that it? I think that's it. POWELL: There's no further orders. HIS HONOUR: No, that's what I thought. 50. Mr Tran, you have heard me give my reasons. You got yourself into some very serious criminal activity importing this substance, this pseudoephedrine, into Australia, a commercial amount, one and a half times the commercial amount of it. By definition you knew what you were bringing into the country and what it was going to be used for. That is a very serious crime. I have sentenced you to six years and three months for that crime. The sentence starts today and the overall sentence expires on 13 October 2017. I have fixed a non-parole period of four years, that is a little less than it might otherwise be. That will commence today when you go into custody, and it will expire on 13 July 2015. You will be eligible to be released on 13 July 2015. Do you understand that? All right, anything else. POWELL: Thank you, your Honour. HIS HONOUR: Is this your family at the back there? OFFENDER: Yes. HIS HONOUR: You may have a short time with them. Mr Samaan, the prison authorities say that, for the purposes of classification of an offender, it is very helpful if they have any psychological material which has gone into evidence in the sentence proceedings. I have in mind to either send with the Corrective Services officers now, or my associate can send it by fax or email this afternoon, the report of Mr Taylor. What do you have to say to that? SAMAAN: I think it's a good idea for that to be sent. Either way. HIS HONOUR: So do I. All right, I will just ask the Corrective Services officers who have come to Court. Would you rather it is faxed or do you-- CORRECTIVE SERVICES OFFICER: If it's easier for you, we can take it with us and it can go with him today. HIS HONOUR: All right, why don't I give it to you, and I will provide that now and the Court officer will hand it to you, and it's the persons who classify Mr Tran who find that material helpful. Now, Mr Samaan, a lot of these very helpful references are originals, if not all of them. My guess is that you might want those back. SAMAAN: Did Mr Coroneos hand you a copy of-- HIS HONOUR: No, but what do you want to do? They can stay with the Court file and you can get them at some future stage, or I can give them back now, whichever you prefer. SAMAAN: If we can get them back now. HIS HONOUR: All right, I am going to leave the exhibit marking on them. SAMAAN: That's fine. HIS HONOUR: I don't know what is going to happen next. It might be prudent for you to hang on to those in that form. SAMAAN: Thank you. HIS HONOUR: The other exhibits, I will return to my associate with the indictment. POWELL: Your Honour, I can indicate I have a photocopy provided to me by Mr Coroneos of those documents. I assume it's a complete set. Perhaps if your Honour's associate checks those documents-- HIS HONOUR: I was going to ask you to check. POWELL: I can do that. HIS HONOUR: Yes, why don't you two check and I will be back at 2.30 and, if they are the same, then I would be grateful. Thank you, Mr Powell. I will resume at 2.30. Mr Tran, you are now in the hands of the Corrective Services, not of me, but I will indicate that, if he wants to have a word with his family, just for a minute or two, then that's okay by me, but he is in your custody, not mine. It's not for me to tell you what to do. I will now adjourn.