R v Tran

Hearing dates: 5,6,7 May; 6 August 2025

Date of orders: 11 August 2025

Decision date: 11 August 2025

Jurisdiction: Criminal

Before: Sutherland SC DCJ

Decision: Head sentence of 7 years with a non-parole period of 3 years and 6 months, at [50]

Catchwords: SENTENCE – Attempting to possess a commercial quantity of an unlawfully imported border controlled substance – Approximately 900g pure methamphetamine – Offender collected consignment – No evidence of earlier involvement with importation – Defence submitted he was not aware of the contents of the consignment – No alternative explanation put before the jury – Guilty verdict following brief jury trial – Offender reported to psychiatrist that he was asked to collect consignment in exchange for gambling money – Previous conviction for cultivating a commercial quantity of a prohibited plant – Offender emigrated to Australia from Vietnam as a young man

Legislation Cited: Criminal Code (Cth) ss 11, 307

Cases Cited: Afful v R [2021] NSWCCA 111
R v Boimah [2017] QCA 50
R v Harris [2009] QCA 370
R v Nikolovska (2010) 209 A Crim R 218; [2010] NSWCCA 169
R v Todoroski (2010) 267 ALR 593; [2010] NSWCCA
R v Smith [2016] NSWCCA 75
Tran v R [2010] NSWCCA 72
Wang v The Queen [2017] VSCA 210

Category: Sentence

Parties: Rex (Crown)
Quoc Hoang Tran (Offender)

Representation: Counsel:
C Akthar (Crown)
B Kennedy (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Cth)(Crown)
Australian Criminal Defence (Offender)

File Number(s): 2023/00163614

Publication restriction: N/A

JUDGMENT

1. Quoc Hoang Tran appears for sentence in respect of one offence of attempting to possess a commercial quantity of an unlawfully imported border controlled substance, namely methamphetamine, contrary to the provisions s 11.1(1) and 307.5(1) of the Criminal Code (Cth). Such an offence carries a maximum penalty of life imprisonment and/or a fine of 7,500 penalty units.

2. The offender was found Guilty by a jury following a short two-day trial before me on 6 and 7 May 2025. The factual background is as follows:

FACTUAL BACKGROUND

3. On 26 March 2023 an air cargo consignment was sent from the United Arab Emirates to Sydney, Australia addressed to a company called Potter Textiles at the Wynyard Business Hub in Carrington Street, Sydney. Wynyard Hub provides a virtual serviced office which companies or businesses can utilise for the receipt of mail, the use of an office for conferences or meetings, as well as receptionist and other services. On 9 April 2023 the consignment arrived at Sydney International Airport and was selected for examination by Australian Border Force officers. The consignment was described as containing eight grease guns. The consignment was x-rayed and as a result of anomalies detected in that x-ray, the consignment was deconstructed. Metal cannister components of the grease guns were found to contain plastic bags of a crystalline substance later analysed as being methamphetamine.

4. Exhibit 2 at trial were a number of photos depicting the consignment in its original packaging, the eight boxes in the consignment labelled as grease guns, an individual grease gun inside one such box, as well as a deconstructed grease gun showing the location of the plastic bag containing the drugs.

5. The total net weight of the methamphetamine extracted from the eight-grease gun cannisters was 1147.93 grams. The purity ranged from 78.5-80% and the total pure weight of methamphetamine was calculated to be 909.40 grams. I note that the threshold for a commercial quantity is 750 grams.

6. In early May 2023 NSW Police Detectives delivered the consignment to the Wynyard Hub, with the drugs having been removed.

7. I should note in passing that the consignment had a tracking number which allowed persons concerned in its progress and delivery to check the status of the consignment. Each time a tracking number’s status is checked, it is recorded by DHL logs. DHL’s logs reflected that tracking enquiries were made through the Pakistani, British, and Australian DHL websites. Three phone calls were also made to DHL’s customer service line concerning the consignment, recordings of which were played at the trial. There was no evidence to suggest that the offender made any of these calls or tracking enquiries, which might indicate that he had a lower, and likely later, level of involvement in the importation.

8. On 22 May 2023 the offender attended Wynyard Hub. He was depicted in CCTV footage participating in a phone call before speaking with the front desk staff at Wynyard Hub. He then undertook a further phone call as he collected the consignment. The offender then made a third phone call in the elevator as he left Wynyard Hub, on which occasion he was followed by police. He lastly received a message on his phone which translated to “Give me a call when you arrive home. Send me a picture before you open it.”

9. On leaving Wynyard Hub the offender walked to a vehicle parked a short distance away. As he approached the vehicle, it was seen to be occupied by a woman. Police, at that point, identified themselves to the offender. The vehicle then drove away rapidly as the police arrested the offender. The vehicle was shortly afterwards stopped by police and searched. During the search the driver was identified as the offender’s sister and a number of documents in his name were found in the vehicle.

10. At trial there was no dispute that the offender had collected the package and that it had contained a commercial quantity of an imported border-controlled substance. What was in dispute was whether the offender knew that the parcel contained a border controlled drug or whether he was reckless as to the likelihood of such a substance being contained in the packages.

OBJECTIVE SERIOUSNESS

11. The Crown went to the jury on the basis that they would be satisfied beyond reasonable doubt that the accused at trial was reckless as to the likelihood of the package which he was collecting containing a border controlled drug. The circumstantial case presented by the Crown did not include any evidence as to when the offender had presumably been recruited to collect the package, nor any evidence indicating remuneration or reward for his participation.

12. On the available evidence his role was consistent with a last-minute request to collect the package and, inferentially, to then on-deliver it. The defence went to the jury with the possibility that the delay in the consignment being available for collection may have led to the offender having been asked to collect it as, in effect, an “innocent agent”.

13. The jury’s verdict clearly rejected that possibility beyond reasonable doubt.

14. The quantity of the drug is a relevant factor in considering the objective seriousness of the offending. The limited role carried out by the offender in the absence of any evidence indicating any earlier or deeper connection with the importation, in my view places this matter towards the lower end of a scale of objective seriousness with respect to importations involving a commercial quantity.

SUBJECTIVE CIRCUMSTANCES

15. In ascertaining the offender’s subjective circumstances the Court has been provided with a report of Registered Psychologist Mr Chafic Awit dated 10 July 2025 and the offender’s New South Wales and Queensland Criminal Histories.

16. The offender was 45 at the time of the offending. He was born in August 1977 in Vietnam. His parents were separated and his father emigrated to Australia in 1991 when the offender was 13 or 14. The offender described a difficult family financial situation in his childhood which was exacerbated after his father left. The offender described low mood and misbehaviour in his childhood as a result.

17. The offender attended primary school and up to a year 10 equivalency of High School in Vietnam. The offender then emigrated to Australia in 1997 at the age of 20.

18. On arrival in Australia the offender attended TAFE to learn English. He is able to communicate but still struggles with reading and writing in English. The offender also worked with his father as a handyman for a year or so before he “turned to illicit drugs”, and from that time worked on and off as a handyman, and worked for a period of about 18 months at a nail shop over 2019.

19. The offender commenced gambling in his early 20s, and reported that for the decade prior to his incarceration he had been gambling at least four times a week, often with amounts in the hundreds. He borrowed money to gamble and often lied about the extent of his gambling. In relation to this offence, the offender advised the psychologist that he had been gambling one evening and that he had asked another patron of the establishment that he was in to borrow some money. He reported that he was given the money and in return was asked if he could collect a parcel for this patron. He reported that he did not know what was in the parcel and but agreed so that he could receive the money to support his addictions.

20. I should note that this explanation was not before the jury as the offender chose to give no evidence in the trial. Accordingly, the matter went to the jury with no explanation whatsoever as to the circumstances of the offender having been asked to collect the package. An explanation contained in a record of interview, which was basically consistent with what he subsequently told the psychologist, was not before the jury in circumstances where the defence had successfully sought the exclusion of the entire record of interview (see my judgment of 5 May 2025).

21. The offender reported trying heroin twice in Vietnam before emigrating. He further reported smoking cannabis and heroin from the age of 21 in Australia, smoking heroin exclusively for a year consistently before largely breaking the habit, smoking cannabis daily, smoking ice perhaps twice a week since the age of 27, and using cocaine socially. The offender reported experiencing auditory hallucinations while using ice and cannabis.

22. The offender ultimately described difficulties in mood from his early adulthood onwards, and long-term sleeping and concentration issues. He described self-medicating with drug use to take his mind off these negative thoughts.

23. Various tests were administered by the psychologist. Ultimately Mr Awit opined, based on the offender’s test results and history, that he may have Persistent Depressive Disorder, Substance Use Disorder, and a Gambling Disorder.

CRIMINAL HISTORY

24. The offender has both a moderate NSW criminal history and a brief QLD criminal history. The NSW criminal history commences with a series of larceny and shoplifting offences from 1999 to 2000 for which he initially only received fines. The offender’s first custodial sentence in 2000 arose from an offence of shoplifting, stealing, goods in custody, and malicious damage offences. He was sentenced to a term of 3 months. In 2003 the offender was convicted in Queensland of stealing and received a sentence of 12 months imprisonment which was suspended.

25. In 2007 the offender was convicted of cultivating an indictable quantity of a prohibited plant and received a s 12 bond for a period of 6 months. In 2009 the offender was sentenced for cultivating a commercial quantity of a prohibited plant and, on that occasion, received a sentence of imprisonment for 7 years and 6 months with a non-parole period of 5 years. He was released to parole in May 2013.

26. The offender’s criminal history, in particular his previous convictions for cultivating an indictable and later a commercial quantity of a prohibited plant, disentitles him to leniency.

CROWN SUBMISSIONS

27. In written submissions Ms Akthar of Counsel for the Crown submitted that the only appropriate sentence was a term of full-time imprisonment with a parole-based disposition. She submitted that the Court ought to impose a sentence greater than 3 years, which would preclude the imposition of a recognisance release order. Ms Akthar noted that the offender had been in custody since the date of his arrest on 22 May 2023, and consequently that any sentence should be backdated to that date.

28. Ms Akthar conceded that the offender was to be sentenced on the basis that his role in the offence was simply collecting the package from Wynyard Hub, and that there was no evidence of any remuneration or reward for that role, nor of any greater role in the actual importation of the methamphetamine. Accordingly, she submitted that the Court should focus on what the offender had done, which in this case was limited to the collection of a package in unknown circumstances.

29. Ms Akthar reminded the Court of the sentencing principles in relation to Commonwealth drug offending, including that criminality is to be assessed by consideration of the involvement of an offender in the steps taken to effect importation, difficulties associated with categorising the role of the offender in the drug enterprise, the quantity imported and the offender’s awareness of that quantity, the presumption that drug importation is motivated by profit, the social consequences of importation and the need for general deterrence, the fact of prior good character being given less weight in drug importation matters, and the seriousness of attempt offences.

30. In that regard Ms Akthar noted that there was nothing to rebut the presumption that the offender’s conduct was motivated by financial gain, noting that the offender had reported to the psychologist that he was asked to collect the package in exchange for money to gamble. Ms Akthar also noted the offender’s mature age and his history of similar offending.

DEFENCE SUBMISSIONS

31. In her submissions, Ms Kennedy of Counsel on behalf of the offender, reminded the Court that it must not impose a sentence of imprisonment unless it was the only appropriate sentence in the circumstances. She ultimately submitted that the Court ought to impose a sentence of 3 years, commencing immediately, and that the offender be released imminently on a recognisance release order. In that regard she noted that while the standard approach to take into account pre-sentence custody was to backdate the commencement of the sentence, this was not a mandatory approach and the sentencing goals of proportionality, rehabilitation, and deterrence should be prioritised. She argued that given the offender’s age, his addictions and mental health issues, and his language difficulties, a longer period was required for rehabilitation and rehabilitative programs.

32. In relation to the nature and circumstances of the offending, Ms Kennedy submitted that given the offender’s limited role and the absence of any evidence that he had actual knowledge of the substance or quantity of substance in the consignment, the offending fell at the very low end of the range of objective seriousness for offending of this type.

33. While the offender does not receive any discount for a plea in the matter, Ms Kennedy highlighted his agreement to a number of facts which substantially reduced the scope of the trial, providing utilitarian value in the manner that the case was conducted.

34. In relation to subjective circumstances, Ms Kennedy reminded the Court of the offender’s background of poverty, depression and behavioural problems in childhood, difficulties learning English in Australia which can be inferred to have restricted his employment opportunities, his subsequent intermittent work history in unskilled jobs, and his struggles with gambling and drug use. Ms Kennedy acknowledged the offender’s previous convictions for cultivating commercial quantities of a prohibited plant, but highlighted that the offender had remained offence-free following his ultimate release for a decade until the present offending. This was said to demonstrate good prospects of rehabilitation and a desire to avoid further offending. Ms Kennedy also drew attention to the offender’s mental health issues and noted that the language barrier will likely have hampered his opportunities to engage in rehabilitation, particularly in custody.

COMPARATIVE CASES

35. The Crown relied on a number of comparative cases. I acknowledge that comparative cases have limited utility in determining a sentence given the varying subjective and objective circumstances of individual cases. However, reference to comparative cases can provide some measure of the types and range of sentences passed in similar matters and can act as a touchstone for comparison with a proposed sentence (see R v Smith [2016] NSWCCA 75 at [73]).

36. In R v Boimah [2017] QCA 50 a package imported from China containing 791.9 grams of pure methamphetamine was intercepted by customs. A person claiming to be “Guy Warwick” arranged with DHL for the package to be delivered to a particular address. AFP officers attended the address where the offender stated that he was not Guy Warwick, but was to collect the package on Guy’s behalf. A search of the house located a false Belgian passport in the name of Guy Neville Warwick. The passport contained a photograph of the offender and also his fingerprints. The offender stated that he was taking delivery of the parcel on behalf of a friend who had asked him to accept the consignment containing clothing and other items. Despite this, the offender said that he had used the name “Guy Warwick” as he was not sure what the parcel would contain.

37. The offender was 29 years old at the time of offending, had no criminal history, arrived in Australia on a humanitarian visa after escaping civil war and living in a refugee camp, and had good character references.

38. He was sentenced to a term of imprisonment of 8 years with a non-parole period of 4 years in respect of the offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug following a plea of guilty. He was sentenced to a term of imprisonment of 3 years in respect of possessing the false passport and this was to be served concurrently.

39. An appeal against both conviction and severity of sentence was dismissed.

40. I should indicate that I have also had regard to the comparative sentences referred to in the judgment of McMurdo JA in Boimah, namely: R v Harris [2009] QCA 370; R v Todoroski (2010) 267 ALR 593; [2010] NSWCCA 75, and R v Nikolovska (2010) 209 A Crim R 218; [2010] NSWCCA 169.

41. In Afful v R [2021] NSWCCA 111 a package imported from Mexico containing 7.45kg of pure methamphetamine was intercepted by customs. The offender arranged to collect the package from a hotel and liaised with more senior persons in the drug operation. He was found to have performed the role of an intermediary and that the offending was in the lower mid-range of objective seriousness. He was convicted after trial following a plea of not guilty.

42. The offender was 32 at the time of offending, had a history of drug and alcohol use and a disadvantaged upbringing characterised by physical and psychological violence and sexual abuse. He had a minor criminal history and suffered from bouts of depressive mood consistent with Major Depressive Disorder and Post-Traumatic Stress Disorder. He was found to have excellent prospects of rehabilitation. He was sentenced to a term of imprisonment of 8 years with a non-parole period of 4 years and 6 months for the offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug.

43. In Wang v The Queen [2017] VSCA 210 the offender attempted to take delivery of three consignments containing a total of 2.32 kg pure methamphetamine which had been imported into Australia from overseas. The offender made enquiries with Australia Post and waited outside the various delivery addresses in his car. Police arranged for one of the consignments to be made available for collection at a Post Office, where the offender took delivery after producing false identification. The offender had been engaged to collect the parcels for a fee of $2,500.

44. The offender was 20 at the time of offending with no prior criminal history. He had a violent and abusive home life and psychological evidence indicated immaturity, social dislocation and depression. He had entered a guilty plea at the earliest opportunity and displayed remorse. He had excellent prospects of rehabilitation and good character references. He was at risk of deportation and further prosecution in China. He was ultimately sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years and 6 months.

DETERMINATION

45. I have taken into account the various diagnoses set out in the psychological report of Mr Awit. The offender’s addictions, both to illicit substances and apparently to gambling, have undoubtedly contributed to his involvement in the present offence. I do note in passing the reserve which had been expressed by Judge Sides of the District Court with respect to the attribution to problems with gambling regarding his prior offending conduct in the cultivation offending in 2008 (see Tran v R [2010] NSWCCA 72 at [32] – [33]).

46. Given the offender’s past history involved in the cultivation of prohibited plants on two previous occasions, notwithstanding his period of approximately 10 years without offending, I view his prospects of rehabilitation as being guarded.

47. I take into account the utilitarian value in the shortening of the trial as reflected in the Agreed Statement of Facts, Exhibit 1. However, in the present matter I am satisfied that there is no alternative to a term of imprisonment.

48. I take into account that the offender has been in custody since the date of his arrest on 22 May 2023. That is a period of a little less than 2 years and 3 months.

49. I agree with the Crown’s submission that an appropriate sentence will be one which attracts the necessity of a non-parole period.

50. In my view the minimum time that he should be required to serve as a term of imprisonment is a non-parole period of 3 years and 6 months. There will be a head sentence of 7 years. Both the head sentence and non-parole period will be backdated to commence on 22 May 2023. He will accordingly be eligible for release to parole on 21 November 2026. The head sentence will expire on 21 May 2030.

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