R v Tran [2014] ACTSC 368

CRIMINAL LAW - Particular Offences - drug offences - sentence - traffic in a controlled drug other than cannabis - breach of good behaviour order.

Confiscation of Criminal Assets Act 2003 (ACT)

1. Ms Tran, you have pleaded guilty to trafficking in methylamphetamine between 13 November 2013 and 19 March 2014 (CC2014/2997). I note that a Statement of Facts was agreed between the parties and was tendered at the sentence hearing. I will not refer in great detail to that Statement of Facts, but it is sufficient to note that between those dates you supplied methylamphetamine to a person by the name of Yan Cui on an ongoing basis.

2. On 19 March this year police executed a search warrant on your home. During the execution of that search warrant police located 9.505 grams of a white crystalline substance divided into small clip seal bags. That white crystalline substance later proved to be methylamphetamine. Police also located other indicia of trafficking during the search of your home including the sum of $9,645.00 in cash.

3. At the time of your offending the maximum penalty for the offence of trafficking in methylamphetamine, contrary to s 603 (7) of the Criminal Code 2002 (ACT), was ten years' imprisonment.

4. I note that you first appeared before the ACT Magistrates Court on 20 March this year. On that occasion you were charged with the offence of trafficking methylamphetamine and also with two further charges. Pleas of not guilty were entered to all charges on 4 April this year, which was the second mention date.

5. You entered a plea of guilty to the charge of trafficking in methylamphetamine at a case management hearing on 14 August this year and the matter was then committed to this Court for sentence. The prosecution withdrew the other charges as a result of your plea of guilty to this charge and your undertaking not to oppose an application under the Confiscation of Criminal Assets Act 2003 (ACT).

6. The facts reveal an ongoing process of supply of methylamphetamine to Mr Cui who then, to your knowledge, on-sold the substance to others. I accept that you were a user of methylamphetamine but the evidence establishes that you were more than simply a subsistent supplier. I am satisfied that you were also making a profit, albeit not a very significant profit, from this process of supply. The process of supply to Mr Sui continued over some four months and involved a significant amount of methylamphetamine.

7. I note that you are 27 years old and you have a limited criminal history. You were born in Vietnam but you have been an Australian citizen since 1992. You are a single mother of three children and you have ongoing family support which is an important issue as it indicates that there are prospects for rehabilitation. You had some employment before being remanded in custody on this matter but you were also in receipt of Centrelink benefits.

8. You told the author of the Pre-Sentence Report that you commenced use of methylamphetamine in 2012 to cope with life stressors including the death of your father. I am satisfied that you have continued to use illicit drugs up until the time that you were remanded in custody this week. I gave you an opportunity over a period of some months to demonstrate that you were willing to participate in drug rehabilitation in the community. You did not take that opportunity and I am satisfied that you lack motivation at the present time to address your drug addiction. I note that the author of the Pre-Sentence Report assessed you as being at low to moderate risk of reoffending. In my opinion you present as a somewhat greater risk of reoffending because of your untreated drug addiction.

9. I note that at the time of the commission of this offence you were subject to four good behaviour orders imposed in the Magistrates Court on 13 November 2012 for an offence of possession of a prohibited weapon, two offences of possession of a drug of dependence and one offence of possession of a prohibited substance.

10. Your co-offender, Cui, was sentenced in the Magistrates Court to 11 months' imprisonment with an immediate term of 7 months' full time imprisonment with the balance suspended for an offence of trafficking in methylamphetamine. That sentence was reduced by a period of four months to mark his plea of guilty. It may well be that Mr Cui was lucky to have such a significant discount as that seems a fairly high discount for a plea of guilty that only came at case management hearing.

11. I am satisfied that you were one step further up the supply chain than Mr Cui. His Statement of Facts does not record him being in possession of any large sum of money at the time that he was arrested, in contrast to your situation.

12. I take into account your plea of guilty with respect to the charge but I note that it was not at the earliest opportunity. I will reduce by approximately 20 per cent the sentence that I would otherwise have imposed.

13. I consider your prospects for rehabilitation problematic at the present time. Rehabilitation, in your case, will require greater motivation and commitment than is presently shown. I take into account that the sentence which I will impose will be your first term of imprisonment but you have already spent some 56 days remanded in custody before being granted bail with respect to this charge and that did not seem to provide you with the motivation to address your drug addiction.

14. With respect to the charge of trafficking in methylamphetamine you are convicted and you are sentenced to 16 months' imprisonment. I have reduced that from 19 months in order to reflect your plea of guilty commencing 22 October 2014.

15. For the breach of the good behaviour orders imposed in the Magistrates Court on 13 November 2012, I cancel those good behaviour orders and on each charge you will be sentenced to seven days' imprisonment also commencing on 22 October 2014.

16. There will be a non-parole period of eight months commencing on 22 October 2014 and expiring on 21 June 2015.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.