R v Sen Van TRAN

Procedural history

1. Following the delivery of the jury's verdict, orders were made for the offender to file any psychiatric reports by 15 May 2015. The report of Dr Anthony Levine dated 17 May 2015, was served on 21 May 2015. In it, he refers to the need for further assessments. Accordingly, Mr Santisi sought an adjournment over the opposition of the Crown. That adjournment was granted and the offender remanded in custody on 22 May 2015.
2. The matter was then listed for sentence on 22 May 2015 at Parramatta. On this date, counsel for the offender, Mr Santisi, sought a further report by Justice Health. The sentence was stood over part-heard to 31 July 2015, to allow time for this to be prepared and released.
3. Prior to that adjourned date, it came to the Court's attention that that report had not yet been requested, and therefore not prepared. The sentence was then administratively adjourned to 25 September 2015. A further adjournment was required because Justice Health was unable to meet the deadlines, despite the report being re-requested on 10 July 2015. Accordingly, the matter was again administratively adjourned to today to allow further time.

Background

1. The offender had an addiction to heroin amongst other substances. He gave evidence that he had been told by a friend that a substitution programme was available. He went to see Dr Bateman, his treating doctor, on 16 May 2008, who obtained permission from NSW Health for him to be placed on a drug treatment programme. He continued seeing Dr Bateman until 19 October 2010, during which time; he was prescribed at least 3,036 tablets.
2. Dr Bateman prescribed him two drugs, Subutex and Suboxone, which were medications for heroin addiction. These contained the prohibited drug buprenorphine - the drug which is the subject of these charges. The offender was also given the substance Suboxone, which also contained the prohibited drug. It is also clear that the offender had been prescribed large quantities of those substances over a considerable period of time.
3. Both of these had an analgesic effect, which Mr Tran utilised for pain relief. He had been in hospital for injuries to his leg. The jury was not informed of the reason for those injuries (that is, that the offender was involved in a prior shooting) but photographs were tendered of the extent of them.
4. The offender took those prescriptions to a registered pharmacist, Ms Phan, at her pharmacy in Bonnyrigg. Ms Phan gave evidence that her practice was to give him the Subutex in a cup, usually in powdered or crushed form, with the direction that it be taken sublingually, that is, for it to be absorbed under the tongue and then into his system. Her practice was to check to see if the tablet had dissolved, then to give him a cup of water to assist in the ingestion process (T582; 587). Her evidence was that she specifically remembered the accused, in particular, that he was a quiet individual (T588). She recalled her systemic and particular practices in giving the substances to him. She said that she watched him while he was taking the substances in her pharmacy in accordance with the guidelines for the ingestion of such prohibited substances.
5. The clear purpose of this dispensing procedure - which was mandated under guidelines incumbent on the supplying pharmacist - was to ensure that the drugs were not diverted from the mouth and otherwise into the possession of the party taking it.
6. The offender's case was that he did divert the drugs he was given pursuant to the prescription, and retain them in powdered or crushed form for his own personal use. When the drugs the subject of the count were discovered in his bedroom by the police, they were mainly fragmented in form. There was evidence that the colour and appearance of the broken parts of the tablets or some of them was consistent with being affected by saliva.
7. In accordance with the established practices of the Division of Analytical Laboratories, five samples were taken of the drugs and they were found to contain buprenorphine. Some of the fragments had markings of "B" and "8" and a sword figure consistent with the manufacturer's markings for Subutex. Buprenorphine is a form of derivative of prepared opium, being (on Dr Allender's evidence, T103) a substrate of thebaine which is, in turn, an opiate constituent.
8. It was an agreed fact in the trial that there was no evidence of any actual supply of that drug by Mr Tran to any other person.

Circumstantial case

1. The Crown relied on a circumstantial case made up of a number of features which are as follows: 1. quantity of drugs; 2. value of drugs; 3. location of drugs; 4. items consistent with the possession or indicia of supply, namely: 1. syringes; 2. 10 mobile telephones; 3. Two sets of electronic scales; and 1. offender's financial situation.
2. The offender was asked at the relevant time (May 2011) the following questions, and his recorded responses were consistent with the following information: 1. that he was not currently on the buprenorphine programme; 2. that he was not using any non-prescribed drugs, apart from sleeping pills; 3. that he was not using any other medications, apart from diazepam; 4. that he had never used non-prescribed opioids, including buprenorphine; and 5. that he did not have a current problem with substance misuse.

Knowledge of prohibited nature

1. An important issue in the case - and an element of the offence - was whether the offender knew or ought to have known that buprenorphine was a prohibited drug and, if so, whether the offender knew or ought to have known that Subutex and Suboxone contained buprenorphine.
2. The Crown submitted that the facts of the offender's involvement in the program of supervised ingestion of the drugs concerned, meant that the offender must have been aware of the very severe restrictions on the removal of drugs which were put in place and needed to be observed; further, that that system when combined with what he was told, supported the inference that the offender knew of the nature of the drug as being a prohibited substance.
3. The offender signed a series of documents relating to his being on the methadone and buprenorphine programmes. Some were signed by him, others were information sheets. Those documents were tendered in the course of the hearing (Exs 29, 37, 38, 39) and the offender confirmed that the signatures were his.
4. The defence case was that the accused did not understand the content of those documents, as he had very limited English reading and writing abilities. That submission was consistent with the offender's evidence.

Defence case

1. The defence case was that the offender's possession of the prohibited drug did not constitute 'deemed supply' on the basis that he had the prohibited drug in his possession for his own 'personal use'. He had been prescribed several medications for pain relief in 2011, including the Subutex which contained the prohibited drug buprenorphine - the drug which is the subject of these charges.
2. Counsel for the offender sought to rely on the fact that the amount of Subutex prescribed by Dr Bateman to the offender over a period of two years was an amount exceeding that which was found to be in his possession in 2011.
3. The thrust of the offender's evidence was that he had obtained the pills for his own treatment rather than storing them for subsequent sale. He thought there was nothing wrong with accepting the pills from the dispensing chemist, swallowing them and then subsequently extracting them from his mouth to be retained by him for later personal usage. He also stayed in the chemist's dispensing area for a two minute period - consistently with the evidence of the supervising chemist. The offender also said that he did not think that there was any obligation on him to swallow them immediately as he was given them by the dispensing chemist.
4. The offender kept the pills and fragments, some in their original blister packaging, in four different plastic containers. The Crown relied on the method of storage as being consistent with storage and packaging as indicia of supply.
5. There was no evidence as to why he put them in his mouth and then took them out, if he did not think he needed to be supervised. It was also his practice to put all the pills in his mouth which was inconsistent with his evidence that he did not think that they needed to be taken. Many of the pills ultimately analysed showed indications of saliva coating consistent with him depositing them in his mouth and then taking them out at a later time.

Criminality

1. The offender's criminality needs to be assessed in accordance with a number of factors, namely: 1. the role of the offender; 2. the amount involved; 3. the period of time involved; and 4. the value of the substances.
2. The amount of prohibited drugs (containing buprenorphine) found in the offender's house was 381.46g (98 tablets and 2039 fragments). That quantity is nine and a half times the amount constituting a large commercial quantity (40g).
3. Here, the assortment of the fragments were found in a variety of forms (tablets, fragments, and in blister packets) and in a variety of places (hidden inside a chair and on top of a cupboard) which is consistent with a degree of planning for concealment.
4. The Crown also submits that the Court should find that the offender did not obtain the buprenorphine located from Ms Phan, given the methods used to dispense the amounts involved, and the recording of that procedure. Given the other evidence in the case, I am not prepared to make that finding as the only possible inference which can be drawn in these circumstances.

Approach to determining criminality

1. Here, there was a very substantial amount of the particular drug involved. The offender's role and the level of criminality involved is more important in determining a sentence than the quantity of the drug involved: Melikian v R [2008] NSWCCA 156 at [42]. The offender's actual role in the steps taken to effect supply needs to be assessed: Paxton v R (2011) 219 A Crim R 104 at [135].
2. While there is no evidence of actual supply, the amount involved may give rise to a suggestion of wholesale distribution or storage for distribution - particularly given the jury's verdict which clearly involved a rejection of the defence of personal use.

Authorities

1. I have considered Tan v R [2014] NSWCCA 96 per Hulme J at [27] in this respect, and accordingly have had regard to the quantity (as measured against the quantity constituting a large commercial quantity, i.e. nine and a half times that amount) when assessing the potential harm to the community. I have taken care not to count the quantity and the potential harm as separate and distinct factors to consider in assessing criminality, as the two are inextricably linked.

Nature of drug: quantity and value

1. The seriousness of the drug itself - as compared with other drugs on the DMTA Schedule - is reflected in the relative amounts as prescribed by that Schedule. Here, the traffickable quantity of buprenorphine is 0.06g, whilst that of morphine is 3.0g, methadone (not in liquid form) is 3.0g, and heroin is 3.0g. It is not the Court's role to construct a gradation of seriousness by reference to perceptions of their harmfulness: Bimahendali [1999] NSWCCA 409; 109 A Crim R 355; Adams v R [2008] HCA 15; 234 CLR 143, as this categorisation is already reflected in the differing amounts in the Schedule. I refer to this categorisation only to the extent that it is consistent with the Crown's submission that Suboxone and Subutex (which each contain buprenorphine) is a pharmaceutical grade drug that is 25 - 45 times more powerful than morphine.
2. The amount of the drug was 381.46 grams. The amount of buprenorphine, the prohibited component of those drugs, was considerably smaller than that, however the amount of prohibited drug is to be assessed as the amount of the whole drug, not just the prohibited proportion. In relation to this amount and the nature of the substance, the remarks of Hulme J in Tan v R [2014] NSWCCA 96 are apposite in determining the seriousness of the offence.
3. In any event, as outlined above, I emphasise that the quantity of the drug is only one relevant consideration of the seriousness of the offence: Wong v R; Leung v R [2001] HCA 64; 207 CLR 584.
4. Here, the evidence was that the value of the drugs was between $26,400 and $154,000. This opinion evidence was untested and represents a wide range of values. Defence counsel submits that that value should be treated with reservation that, in its form as found, it cannot be injected.
5. The precise period of time involved is unclear. However, even on the defence case, the store of pills must have taken some time to accumulate.
6. It was not an opportunistic nor chance acquisition. That, in turn, reflects a degree of planning and premeditation.

Absence of evidence of purpose to supply

1. Given that the deeming provision under s 29 of the DMTA was enlivened, to rebut that provision, the defence bore the onus of proving on the balance of probabilities that the drugs were in his possession for a purpose other than supply.
2. As I have said, the jury's verdict was that the offender did not successfully prove on the balance of probabilities that the drugs were in his possession for a purpose other than supply.

Indicia of supply

1. A further aspect of the circumstantial Crown case was a series of indicia of supply, including that 10 mobile telephones were located at the offender's home; that there was a box of syringes found in his home, as well as two sets of scales; and that the drugs were being kept in mislabelled containers. It was suggested by the Crown that, inferentially, those mobile phones could have been in his possession for the purpose of supply. I did not necessarily accept that version, and accordingly, do not rely on that aspect to determine any additional or wider criminality.

Method of possession

1. The Crown submits that there should be a finding that the offender did not obtain the drugs found in his home from Ms Phan, the pharmacist or from Jacaranda House, based on the following evidence: 1. the evidence of Ms Sutton about the policies and procedures used by Jacaranda House to dispense the drug; 2. the evidence of Ms Phan about the standard method that she used to dispense the drug; 3. the medical notes of Dr Bateman indicating that the offender was regularly taking the drug as prescribed; and 4. the evidence of Ms Scopoletti and the medical notes concerning the information the offender supplied to Ms Scopoletti concerning his use of buprenorphine.
2. If I did make such a finding, that would effectively lead to a further finding that the offender obtained the drugs through illegitimate means. However, the evidence as outlined above does not, in my view, sufficiently give rise to findings of fact beyond reasonable doubt. Firstly, that the offender obtained the drugs from a source other than Ms Phan, and secondly, that the offender obtained those drugs through illegitimate means.

Findings as to criminality involved

1. I find that the criminality involved was certainly above low-range, but below mid-range. I would make a more serious finding had there been any evidence of actual supply, particularly given the fact that the drugs were stored in a residential/family home where children were living.

Subjective features

1. The offender is aged 43 (DOB: 20 October 1971). He is a single man who lives with his sister and her children. He came to Australia from Vietnam via Thailand, with his family as a refugee, when he was eight or nine years old. He is one of nine siblings.
2. He has a close relationship with his sister, niece and nephew, and was living with them in Bonnyrigg at the time of the offence, and until he went into custody on 22 May 2015.
3. He has a son from a prior relationship, who is 24 years old.
4. At the time of the offence, he was not working.
5. He has a history of drug addiction, namely heroin, which he first used at the age of 20, and was on a methadone programme since the age of 24.

Prior record

1. The offender was convicted of drug offences in 1991, 1995 (x 2), 1996 (x 3), 1997 (heroin), 1998 (heroin), 1999 (x 2), 2000, 2008 and 2010. These offences do not entitle the offender to any leniency, and make difficult any findings of prospects of rehabilitation on drug matters, or any suggestion that he does not have a long history of connections with the drug scene.

Rehabilitation

1. The offender has very limited education and employment qualifications.
2. The evidence as to his drug use is that he has a history of cannabis and heroin abuse. He has also abused other drugs including cocaine and prescription medication such as Subutex.
3. He continues to assert that the substances found were for his own personal use.
4. The offender also suffered a skull fracture when he was the victim of an assault in 1994. There were complications arising out of related, or consequential hypoxic brain damage in 1995 (see the report of Dr Levine dated 20 May 2015).
5. On all the evidence, it would seem that the offender has a medium chance of re-offending.

Psychological health issues

1. Reports were tendered by the defence on sentence, which addressed the offender's brain injuries. Those reports were by Dr Levine, dated 20 May 2015 (Ex S5) and a further report dated 18 August 2015 (Ex S8). A further report was prepared by Dr Matthew Hearps of NSW Justice Health, dated 8 October 2015 (Ex S9). The Pre-Sentence Report dated 20 May 2015, also made reference to his brain injury.
2. In his report dated 20 May 2015, Dr Anthony Levine made a provisional diagnosis of major neurocognitive disorder due to traumatic brain injury, and indicated that the diagnosis required information that he did not have available to him, including hospital records and neurocognitive assessments.

Remorse/contrition

1. Mr Tran said that his incarceration was unfair as he "didn't do anything". There is no remorse or contrition expressed. There appears to be little recognition that what he was doing was doing was to subvert the dispensing procedure which was designed to assist him.

Delay

1. This charge arose out of matters which occurred in 2011. Thereafter there were a number of delays which took place including the fact that there were two previous trials which did not proceed because of delays in listing of the prior trials. The matters were not reached on two occasions.
2. The delays do not seem to have been the fault of the Crown, nor the prosecuting authorities, but rather that the case was not reached a number of times. Part of that was as a result of the offender being prosecuted for other trials.

Consideration

1. The sentence needs to be considered against the background of the evidence of the factors establishing criminality, the nature of that criminality, in particular the nature and volume of the drugs located, the absence of evidence as to actual supply, and the offender's subjective features, in particular his brain injuries, his acquisition of the substances or at least a substantial proportion of them while on a treatment programme. The sentence needs to reflect the principle of general deterrence by ensuring that the policies and administrative arrangements of drug dispensary treatment programmes are not subverted.
2. It is clear that, whatever he does, he will need to continue to be on such a programme. The sentence must have an element of personal deterrence to ensure the offender knows he cannot subvert the requirements of such programmes by diverting prescribed substances for his own purposes.

Comparable authorities

1. I have reviewed some of the comparable sentencing authorities as set out in the Public Defender's website since the introduction of the standard non-parole period of 15 years for charges of supplying large commercial quantities of prohibited drugs.
2. Care needs to be taken to differentiate between the drugs and the amount of drugs involved in those cases as well as whether there is evidence of actual supply, and other aspects of the role of those offenders compared to this offender. Having considered those decisions in Kwon v R [2011] NSWCCA 58; Chen v R [2011] NSWCCA 145; R v AZ [2011] NSWCCA 43; Hsu v R [2012] NSWCCA 248; Deakin v R [2014] NSWCCA 121, I am satisfied that the sentence I am considering is appropriate in these circumstances. Some of those authorities relate to supplying large commercial quantities of ecstasy or other drugs.

Sentencing options

1. The offender has had a series of non-custodial sentencing options extended to him, including fines, and periodic detention, as well as prior periods of imprisonment.
2. I do not consider that any of the options of an intensive corrections order nor a suspended sentence would be appropriate to reflect the principles of general deterrence. In this regard, I also note that the offender's prior association with Community Corrections was deemed superficial and sporadic, with breach action being initiated on occasions due to non-compliance or re-offending (Pre-Sentence Report dated 21 May 2015).
3. He has been assessed as being at a medium risk of re-offending.

Reasons for the departure from standard non-parole period

1. The standard non-parole period established for this offence is one of 15 years imprisonment.
2. My reasons for departing from this guideline are that: 1. the criminality assessed is one of below mid-range; and 2. there is no evidence of actual supply.

Special circumstances

1. There is some guarded optimism expressed in the Pre-Sentence Report to the effect that "he appears to be more stable in managing his life with the help of his present methadone treatment programme."
2. Given the offender's age and circumstances, the fact that he will have additional difficulties in gaol due to his limited English abilities, it is appropriate that there be a finding of special circumstances. Here, I assess that as warranting a departure from the statutory ratio, such that the ratio is reduced to one of 60 per cent.

Time in custody

1. Prior to trial, the offender was in custody for 9 months and 22 days, one period of which 1 month and 23 days was attributable to this offence. However, the offender was acquitted on the charges for which he was in custody for those additional eight months. Counsel for the offender submits that the offender should be entitled to receive the benefit of his incarceration on what are agreed to be unrelated charges. However that submission is contrary to established authority: R v Niass (unreported NSWCCA, 16 November 1998) and Hampton v R [2014] NSWCCA 131. I will therefore take into account the period spent in custody solely attributable to this offence, namely, 58 days (from 13 December 2011 to 8 February 2012).
2. In addition, the offender has been in custody, bail refused since 22 May 2015 (a period of 4 months and 24 days, i.e. 147 days). It is appropriate that the entirety of those two periods, namely 205 days, be taken into account, such that the sentence of five years and three months which I would otherwise regard as appropriate be backdated by that period with a consequential adjustment to the head sentence.

Sentence

1. The offender is sentenced to a head sentence of nine years with a non-parole period of imprisonment of five years and three months backdated to commence on 24 March 2015 and expire on 23 June 2020, with the balance of term of three years and nine months to expire on 23 March 2024.

Parole

1. I recommend that on his release to parole the offender: 1. be subject to the supervision of the Probation and Parole Service; 2. notify them of any changes to his residential address seven days prior to his changing any such address; and 3. be subject to random urinanalysis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 January 2016