DPP v Tran [2015] VCC 334

4 In early February 2013, you were released on parole, but in July 2014, the parole board determined to cancel parole. Six days later, you were arrested on these matters as I have described above, and you commenced serving the parole time owed; that is, one year, ten months and 23 days.

5 The maximum penalty for trafficking in a drug of dependence is 15 years imprisonment. This maximum indicates the seriousness of such offending. Furthermore, you offended while on parole, and this brings s.16 of the Sentencing Act (1991) as to the presumption of accumulation into the purview of this sentence, as well as s.16 of that Act, in relation to the order of serving of those sentences, and I am mindful of both of those sections and their provisions. While you've been in custody for some 206 days, you have no pre-sentence detention. Your current parole end date is 27 June 2016.

6 I take into account your plea of guilty, which was offered at the earliest reasonable opportunity, which has an utilitarian benefit and facilitates the administration of justice. As to remorse, that is a matter more difficult to determine. You have had a long history of a heroin habit, and your motivation for offending is clear. Your recent history, as is to be expected, bespeaks of a person who is not only a user, but who has trafficked to feed his habit and probably for a potential financial gain. In this context, to assess remorse in the face of an overwhelming prosecution case is difficult. I accept the plea itself can be an expression of remorse, but true remorse may be elusive in the context of an addict that continues to use and to traffic.

7 Apart from the 2012 prior, you also have other matters of significant relevance in your criminal history. In August 2011, you were sentenced to imprisonment for trafficking heroin and methylamphetamine and dealing with proceeds of crime. In 2009, you were sentenced to imprisonment for use and possession of heroin and prescription drugs. You were also, in that year, sentenced for trafficking heroin and amphetamines. In 2007, you were sentenced for trafficking heroin, amongst other crimes. In 2006, you were sentenced for trafficking heroin, possession of heroin and ketamine, and placed on a Community Based Order and a suspended sentence. You subsequently breached both.

8 Your rehabilitative prospects at your age of 50 years appears to me to be bleak. It was submitted that a Community-Correction Order to follow a sentence would be of assistance, but it is my view that your criminality has now reached a point at which community protection, general deterrence and punishment are paramount considerations.

9 The principle of totality must of course ensure the sentence is just and appropriate, despite the s.16 presumption as to accumulation. I accept that it is likely that you did not know your parole had been revoked, but it is clear that your relationship with correction has been fraught with dissatisfaction, which included positive results for opiates, which you disputed when urine samples were obtained from you.

10 During the period of February 2013 until the 29 July revocation, you were the subject of intensive counselling for drug and alcohol treatment. You were tested some nine times in that period. You obtained employment and met regularly with parole officers. I'm sure that regime would be reflected in the other times that you were on parole.

11 Your personal circumstances are difficult. You are the eldest of nine children of a South Vietnamese family. Five of your brothers were killed in the war or soon thereafter. When you were 15, as a result of an unsuccessful escape attempt, you were imprisoned. You witnessed many atrocities from a very young age and, ultimately, your family's property was confiscated when you were released, leaving you with little. At age 17, you reached Indonesia with your mother's financial help and eventually you reached Australia, where one of your brothers was living. You learned English and had factory work for some four years. In your mid-20s, you began using cannabis but did not commit criminal offences and kept working. In 1990, you opened a fruit and vegetable store which failed. You became despondent and depressed, which led to heroin use at the late age of 36. You remained unemployed and when you were incarcerated, you used methadone and that treatment continued throughout your reclusion. You were diagnosed with a substance use disorder. You were married for some 14 years and have one child. Despite asserting in 2012 to the judge who sentenced you in this court the hope that you may beat your addiction and to be a present parent in your son's life, you failed in that endeavour. Your wife left you because of your drug use and your history in these years, as I have outlined, has been marked by the blight of drug use and consequent criminality. Four parole periods since 2009 have been futile and you seem to have inevitably returned to drug use. You have certainly spent periods of time in prison and although an argument was mounted as to the combination of a Community Corrections disposition to a prison sentence, in my view, your sentence must primarily address the need for your containment and community safety, the need to deter like-minded others with stern punishment, and the need to deter you, finally, from this life of recurring criminality and addiction.

12 Trafficking in drugs must be denounced in the strongest possible terms. Drugs and their trade are an insidious and destructive force which wreaks havoc and despair in our community, often destroying the lives of young and the lives of many families.

13 I consider that imprisonment is the only just punishment which achieves these aims, and I reach this conclusion, having given the recent authority of Bolt v Long (indistinct) fervent consideration. I take into account your plea and, although I accept the circumstances of your return to trafficking as described during the plea, there can be little doubt that the choices you made plunged you back into the drug world where you could derive some benefit, like cash and drugs.

14 It was argued that here there are exceptional circumstances in the context of accumulation of sentences. I do not accept that argument can be made by relying on the importance of rehabilitation over and above other sentencing consideration for an offence committed whilst on parole for trafficking. I take into account the fact that you have undertaken some study whilst in custody and that two screen results in November 2014 and January 2015 were negative for drugs of dependence. Would you please stand?

15 On each charge of trafficking, you will be convicted and sentenced to three and a half years' imprisonment. These sentences will be concurrent with each other, but cumulative upon any sentence currently being served, with a non-parole period attaching to it of two years. In setting this non-parole period, I have considered the principle of totality and I have reduced that period in view of the current reclusion which you are undertaking in relation to the claimed period of parole. As to the summary offence, I take your plea into account and that you have only one prior in 2009 for driving whilst disqualified. You are convicted and sentenced to one month's imprisonment, concurrent with the sentences on the trafficking counts. But for your plea, I would have sentenced you to four years, with a non-parole period of three years.

16 HIS HONOUR: I have signed disposal and forfeiture orders. I will hand them down.

19 HIS HONOUR: Were there any other ancillary orders that I need to make?

21 HIS HONOUR: Thank you, you can remove Mr Van. As I understand it, Mr Thomas, the impact of the sentence is that he will undertake imprisonment in relation to this sentence under s.15 first.

22 MR THOMAS: That is my understanding, Your Honour, yes.

23 HIS HONOUR: Yes, and then once the non-parole period expires, he will serve the remaining reclaimed parole period. I just want to put that on transcript because I have considered that question in relation to the section and I want to make clear that I have considered that period in terms of totality in what he will continue to serve beyond my non-parole period as being appropriate in terms of the principle of totality. Yes, thank you.