Regina v Tran Hoai Cao

[2017] NSWDC 268

District Court of NSW|2017-05-12|Before: Ms J

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At a glance

Source facts

Court

District Court of NSW

Decision date

2017-05-12

Before

Ms J

Source

Original judgment source is linked above.

Judgment (28 paragraphs)

[1]

sentence

Tran Hoai Cao (the offender) appears for sentence after he pleaded guilty in the Local Court to the following charges: H61122964 Sequence 1 Supply prohibited drug on an ongoing basis contrary to section 25A Drug Misuse and Trafficking Act 1985. The maximum penalty for the offence is 20 years imprisonment and/or a fine of $385,000. Sequence 9 Supply prohibited drug contrary to section 25(1) Drug Misuse and Trafficking Act 1985 (7.6g methylamphetamine) The maximum penalty for the offence is 15 years imprisonment and/or a fine of $220,000. The offender also asks the Court to take into consideration when dealing with Sequence 1 the following charges on a Form 1: Sequence 2 Deal with property suspected of being proceeds of crime contrary to section 193(1) Crimes Act 1900 Sequence 3 Possess prohibited drug contrary to section 10(1) Drug Misuse and Trafficking Act 1985. (8.4 g cannabis leaf) Sequence 4 Possess prohibited drug contrary to section 10(1) Drug Misuse and Trafficking Act 1985. (0.81 g MDMA) H60233062 Sequence 1 Dealing with identification information contrary to section 192J Crimes Act 1900. The maximum penalty for the offence is 10 years imprisonment. Sequence 5 Dealing with identification information contrary to section 192J Crimes Act 1900. Sequence 7 Dealing with identification information contrary to section 192J Crimes Act 1900. Sequence 8 Dealing with identification information contrary to section 192J Crimes Act 1900. Sequence 14 Participate in a criminal group contrary to section 93T(4A) Crimes Act 1900. The maximum penalty for the offence is 5 years imprisonment. The offender also asks the Court to take into consideration a further 4 counts of dealing with identification information contrary to section 192J Crimes Act 1900 on a Form 1 when dealing with Sequence 1.

[2]

[10]

Sequence 5

At about 4.07 pm on 10 December 2015 the offender sent an SMS to Mohammed asking if there was anything to line up for later so he could tell his people. Mohammed replied, "One for the morning and two for Monday. My boy will send you a picture in 5 to 10 minutes". At about 5 pm on 10 December 2015 an SMS was sent from Mohammed to the offender providing the fictitious details for a person Ethan Miller. On execution of the search warrant on the offender's home the police seized a Sony Xperia mobile telephone used by the offender. A subsequent forensic examination of the mobile telephone revealed a digital image of the person purporting to be Ethan Miller on that phone. Also located on the Sony Xperia mobile phone was WeChat messaging between the offender and the co-offender Zhang. The messaging contained the details matching those used by Lee to populate the false New South Wales Drivers Licence. The digital photograph of the person purporting to be Ethan Miller was located on the laptop used by Lee. Lee was the person with the equipment to produce the false identity documents. National Australia Bank records revealed a person purporting to be Ethan Miller using a fictitious New South Wales Drivers Licence and Medicare card applied for and obtained a personal loan drawing $27,000 on 11 December 2015. That amount was not recovered by the bank.
At approximately 6.05 am on Thursday 17 December 2015 police executed a search warrant on the offender's residential address. He was arrested and taken to Flemington Police Station. He told the police that he obtained identification information from an Indian male, usually for driver's licences and Medicare cards including photographs. He forwarded this information to a female known as Mandy who he later identified to be Zhang. He also sent information to a person he described as an Asian male who he later identified to be Yeoh. Once the identification documents had been manufactured, the offender stated that he collected them from Zhang or Yeoh before delivering them to the Indian male. The offender stated he was paid $1200 for the cards of which he kept $200 and Zhang took possession of the remaining $1,000. He did not know specifically what the fraudulent identification documents were used for but he knew that it was to do with something with the banks. He told the police that he engaged in the activity to support his daughter's medical conditions. He said: "I need this extra money. The eczema started coming when she was six months. It was just bad and she was scratching to the point of bleeding. We went - it costed money, her eye sight if you look at my daughter the left side is lazy and that's the reason why I'm doing this".

[11]

Sequence 7

On execution of the search warrant at the residential address of Mohammed police located a false New South Wales Drivers Licence in the name of Vinod Sam. The digital image of the person purporting to be Vinod Sam was located on the laptop used by Lee. On 14 September 2015 several telephone calls were lawfully intercepted between the offender and Abraham Maka. During those calls the offender discussed how Mohammed needed a male to attend the bank with false identification in order to obtain a loan. Maka agreed to take on the false identity and attend the bank himself at which time the offender took a photograph of Maka.
The offender met Zhang at about 4.30pm on 14 September 2015 to provide her with the details. In telephone intercepts on that day Zhang and Yeoh discussed with the offender acquiring two sets of yellow and green. Police allege this was a code for 2 drivers licences and 2 Medicare cards. Later that day the offender told Mohammed that he had taken the photograph and was waiting for him in Chinatown to receive the identification information that would accompany the photograph. The offender arranged for his flatmate Jason Phi Huynh to meet Zhang later to collect the false identities. That was recorded on closed circuit television footage. After Huynh received the documents he sent an SMS message telling the offender that had received the documents.
At about 9.37 am on 15 September 2015 the offender told Mohammed to have $1500 ready for Maka. This money was payment for Maka attending the bank and using false identification to obtain a loan. A short time later the offender and Mohammed had a further conversation where it was agreed the loan application would be done after 2 pm on that date as the bank was busy. At about 11.17 am Mohammed sent an SMS to the offender stating that he had given $500 to the offender earlier in the day and would pass another $1,000 on to Maka.
At about 1.56 pm on 15 September 2015 the offender asked Mohammed which bank would be attended. Mohammed informed him it was the National Australia Bank and that they were there already. At about 2.58 pm on 15 September 2015 Maka told the offender that he was still in the bank waiting and that he should be done soon. Between 3.51 pm and 3.52 pm on 15 September 2015 the offender sent SMS messages to his partner indicating that the job had taken longer than anticipated so that he and Maka were paid an additional $200 each. The offender was paid a total of $500 for his assistance and Maka was paid $1400 for entering the bank and making a false loan application and using false identification depicted in his image.

[19]

Pre-sentence report

The Court received a PSR that can be summarised as follows.
The offender is 36 years of age and lives with his partner of 4 years and their 2 daughters in rented accommodation. The offender has a supportive relationship with his partner notwithstanding that he experienced some difficulty adjusting to the birth of his eldest daughter.
The offender immigrated with his parents in the early 1980s. His parents struggled financially to start a business and that impacted negatively on the family. He has a supportive relationship with his mother but not with his father due to his father's alcoholism and violence towards the offender and the other family members. The offenders siblings are supportive but he has limited contact with them.
The offender left school prior to completing his Higher School Certificate. In 1994, he completed a Certificate II in Commercial Cookery at TAFE. He is presently employed full-time as a chef in a hotel and works on the weekends in a café.
The offender commenced using drugs at age 17 up until the current offences in 2013. He has completed a 12 week drug treatment counselling program from December 2012 to March 2017. He reported being abstinent from all drug use since the commencement of the program. This was confirmed by the program provider. The offender commenced drinking alcohol to excess at age 17. He has ceased drinking during the week but continues to binge drink socially on the weekends to intoxication. He has not participated in any alcohol cessation treatment and is willing to undertake counselling for alcohol abuse.
The offender expressed remorse for his offending behaviour stating that supporting his family financially was the primary motivation behind his offending. He stated that his drug and alcohol abuse issues contributed to his poor decisions but was unable to offer any insight into the impact of his offending behaviour on the victims.
The offender's partner confirmed that he is very remorseful for supplying drugs the financial gain. She confirmed that he has ceased using illicit drugs but noted that he still struggles with alcohol abuse.
The author of the PSR assessed the offender as a medium to low risk of reoffending. The offender was assessed as suitable for supervision and community service.

[20]

The offender's case on sentence

The offender tendered a report of Mr Sam Borenstein, clinical psychologist dated 11 May 2017. The psychologist saw the offender on one occasion for the purpose of preparing the report. The psychologist's report can be summarised as follows. I will not repeat matters of history that have been set out in the PSR.
The offender told the psychologist that he supplied drugs to friends primarily to support his own drug habit. In relation to the fraud matters the offender described himself as a "middleman" and the offences occurred when his one-year-old daughter was suffering severe eczema.
The offender told the psychologist that he was very distressed observing his daughter scratch herself to the point of bleeding. He was unemployed and they could not afford to take her for specialist attention.
The offender lost his employment in May 2015. He actively look for work between May 2015 and December 2015. He was not successful finding alternative employment and his confidence waned. The offender reported becoming increasingly depressed adapting to a new baby who had eczema.
The offender first started drinking alcohol at age 17 and smoked cannabis at age 19 before trying other drugs namely, MDMA, cocaine and methylamphetamine. Prior to 2014 he was a binge drinker and used illicit drugs. He experienced recurrent episodes of memory loss and black outs. There were many occasions on which he did not know how he found his way home.
In 2014 he commenced using the drug ice in the course of his work as a chef. He commenced smoking upwards of four points of ice per day and that usage increased when he was unemployed. He entered into the offending conduct to support his ice addiction.
Leading up to his arrest the offender reported experiencing a worsening depression as result of being unemployed and unable to support his daughter who was born on 15 March 2014. He reported difficulties adapting to parenthood. He was finding it to find employment. He is quite heavily tattooed and believed prospective employers would judge him. He noted social withdrawal, reduced motivation, ease of distraction and difficulties maintaining concentration.
The offender worried about his daughter's eczema. She had to attend hospital on a regular basis. It spread from her arms to her neck, back and knees. She required constant wet dressings to prevent scratching. The offender reported spending upwards of $300 per week on their daughter's needs.
When he was released from custody, the offender learnt that his partner was pregnant with their now one-year-old daughter. He could not celebrate her birth. The offender returned to work and has managed to fit employment in with his curfew restrictions. Throughout 2016 he slowly reduced his drug usage. His second daughter was born on 11 August 2016. He went to drug counselling in December 2016.
In the future the offender wants to continue drug counselling. He impressed the psychologist is highly motivated to ensure he remains drug free and on a positive life path. He would like to set up his own restaurant.
The psychologist opined that the offender was "mildly depressed" in his presentation. Psychological testing indicated severe symptoms of depression, moderate symptoms of anxiety and moderate symptoms of stress.
The psychologist opined that the offender's substance dependency is in partial remission.
The psychologist opined that the offender symptoms of depression worsened as is daughter suffered severe and debilitating eczema requiring fairly frequent hospital admissions at a time when he and his partner were unable to afford specialist treatment for their daughter. The psychologist accepted that the offender supplied drugs in order to support his addiction to ice and there was causal connection between his chronic drug usage and the offending behaviour. The psychologist opined that the severity of the offender's depression led him to rely exclusively on illicit drugs as a form self-medication. As a result the offender severe depression affected his ability to form proper judgement of make sound decisions.
The psychologist recommended that the offender should participate in the intensive psychological treatment based on cognitive behavioural therapy to assist him to avoid recurrent depressive episodes in the future and that he should continue with drug and alcohol rehabilitation.
The offender read an affidavit of his partner, Vanessa Kasemsuk sworn 12 May 2017. The contents of the affidavit can be summarised as follows.
In about early January 2015 the offender's partner became concerned about her daughter's eyesight. Between January 2015 and October 2015 they paid $570 for specialist medical appointments to have her eyesight assessed.
On 4 May 2015 the offender and his partner took their daughter to the general practitioner in relation to her eczema. She wasn't getting any better. She was constantly scratching her eyes, elbows, back and the fault of the arms and legs until it became infected. The general practitioner prescribed an appointment and a soap free wash, Cetaphil.
On 1 June 2015 the offender and his partner took their daughter to the Sydney Children's Hospital in Randwick. She had been scratching her body and started bleeding and got infected. She had yellow discharge around the relevant areas. The wounds would stick to her clothes and removing her clothes would cause the wounds to bleed. The hospital prescribed Advantin fatty ointment and Dermaid. The nurses educated the offender and his partner on the "wet dressing" method. The clinical notes of that attendance were annexed to the affidavit. The notes reported a history of itchy elbows and groin over 6 months. The diagnosis made was of "mild eczema". The treatment recommended was wet dressings for 3 days, together with Advantan Fatty Oitment, Dermeze and moisturising baths until specialist review.
On 14 August 2015 the offender and his partner took their daughter to the general practitioner and she was referred to see a dermatologist, Prof Zagarella.
On 18 August 2015 the offender and his partner took their daughter to see the dermatologist. A letter from the dermatologist dated 1 May 2017 was annexed to the affidavit. The offender told the dermatologist that the child had a "long history" of atopic dermatitis. The dermatologist prescribed treatment with Elidel cream, Advantan Fatty Oitment and Dermeze ointment. The child has not seen the dermatologist again.
The offender's partner set out the expenses that were incurred in bandages, ointments and washes used on her daughter over the relevant period. That period was not defined. The costs of all of the treatments added up to about $200 per month.
Ms Kasemuk deposed that they were struggling financially in 2015. The offender was not working and she was looking after their daughter. She stated that the offender would stress about how they would cope financially.
Since January 2017 Ms Kasemuk deposed that the child has developed eczema on her eyelids that has become progressively worse.
There were some undated photos of the offender's daughter annexed to the affidavit showing the presence of rashes on various parts of her body. The photos were said to have been taken in the last 2 years.
Ms Kasemuk deposed that the offender had always been responsible for the financial support of his family. She was unable to return to work because she breastfed their daughter until she was aged 2 and she would not take a bottle.
This financial support included the cost of specialist consultation fees and medication to help treat their daughter.
Ms Kasemuk expressed concern as to how she would look after her two young children without the offender. She does not have any family close by. She did not have a drivers licence or any qualifications to find work. She is dependent upon the offender to provide for her.
The offender has expressed remorse to her and undertaken steps to rehabilitate himself. He was careful not to breach any of his bail conditions. He has undertaken drug counselling. He has told her that he wants to do more programs if he has the chance to stand the community or once he is released on parole.
The offender relied on an affidavit of his solicitor sworn 11 May 2017. The affidavit annexed his bail conditions in force from 17 December 2015 to the present. The offender was subject to a curfew between 7pm and 7am the following night each day. The curfew condition was only suspended on a few occasions. The curfew condition did not stop him from working in 2 different positions and he did not seek to vary the curfew condition to allow him to work alternate hours as a chef.
The offender tendered a letter to the Court dated 12 May 2017. The offender expressed his desire to be able to support his family including the medical needs of his eldest daughter and to experience his children achieve their milestones. He described himself as not being ready to become a father and at the time was unable to reduce his drug and alcohol intake. He associated with the wrong people. The Court process has put him through considerable stress. The offender stated that he was sorry for everything that he had done and that he was deeply ashamed of his actions.
The offender also tendered letters confirming his employment and his participation in the drug rehabilitation course.

[21]

Factual findings

Taking into account all of the evidence I am not satisfied on the balance of probabilities that the offender suffered from severe or significant depression during 2015 or that he was self-medicating with drugs and alcohol for the following reasons.
The contemporaneous medical records relating to the offender's daughter to not support the conclusion reached by the psychologist that her eczema was "severe" or "debilitating". I accept that the offender experienced some adjustment issues as a result of having a child at the time and is it likely that her eczema was of concern to him as a parent. The records provide no evidence of infection, open wounds or regular treatment.
The costs of her various treatments were not substantial and they did not require funding by recourse to criminal activity. A generous view puts those costs at about $200 per month and $570 in total for specialist fees. The medical records indicate that the offender and his partner did not regularly take their daughter for treatment. They missed a number of appointments relating to her eyesight and did not stay for the entirety of the intended examination when they did attend.
The offender had $12,840 in cash in his possession on 17 December 2015 when he was arrested. He told the police that over half of that money came from selling drugs and dealing with the identification documentation. The offender was unemployed at the time and on the evidence was providing food and accommodation for his family. It is clear that he had more than enough cash available to him to provide for the modest sums that were required to care for his daughter's eczema.
The psychologist based his opinion on the history that the offender gave that during the period of the offending that he was socially withdrawn, had reduced motivation and a lack of confidence. In my view that history was inconsistent with matters outlined in the agreed facts for both matters. The offender was enterprising, organised and bore a position of some responsibility in the false identification organisation. I am not prepared to accept that untested history when the offender did not give evidence in the sentence proceedings.
Further, there was a substantial disconnect between the offender's presentation to the psychologist as "mildly depressed" and the scores on the DASS21 test administered by the psychologist. The scores are hard to reconcile with the central premise of the offender's case that he was so severely depressed in 2015 that he began to commit the criminal offences, when those circumstances on the basis of the testing at least appear not to have changed.
Ms Kasemsuk's evidence does not independently verify that history. First, her evidence does not go as far as what is stated by the psychologist. Second, her evidence is coloured by her concern that she will not be able to support herself and the children if the offender is incarcerated. Whilst I accept that the incarceration of the offender would have an adverse effect on her and the children, this is not an exceptional case.

[22]

Objective seriousness of the offences

An offence under section 25A is generally considered to be more serious than an offence of supply simpliciter under section 25. An offender charged with a section 25A offence cannot rely on an argument that the act of supply was an isolated event. The maximum penalty provided for is a clear legislative intention to discourage the ongoing trade in drugs, which depends entirely upon the availability of a person such as the offender. The offender supplied 2.5 grams of methyl amphetamine and 70 pills of MDMA. There is very little evidence upon which I can understand the size of the operation involved, or where the offender was positioned in it. There was some planning and use of a mobile phone to make arrangements for the supply of the drugs. The Court of Criminal Appeal has decided that the offences under section 25A should attract a full-time custodial sentence unless there are exceptional circumstances: Fayd'herbe v R [2007] NSWCCA 20 at [18].Overall, I accept that he was a low level user dealer and the objective seriousness of the ongoing supply charge was in the low range.
The supply charge involved 7.6 grams of methyl amphetamine. By his plea the offender accepts that he had at least some of that amount in his possession for the purpose of supply. It is likely that some of that amount of the drug would be used by him personally. The packaging of the drugs when it was located suggests that it was to be on supplied. The purity of the drug was quite high at 78%. The objective seriousness of the supply charge is in the low range.
The dealing with identification information charges reveal a sophisticated and organised criminal operation. The orders for fake driver's licences and Medicare cards were placed by Mohammed with the offender. The offender told Mohammed when they would be ready and he knew the operation was running low on cards. Mohammed was supplying the false information to be used to create the false identification documents. The offender received the digital images of the persons to be depicted in the false driver's licences. The information received by the offender was passed onto Zhang by WeChat and to Yeoh and that information was passed onto Lee. Lee possessed the equipment and the blank card stock to manufacture the false documents. The offender would then deliver the false documents to Mohammed. The false documents were being used to obtain bank loans that would not be repaid. The offender knew the false documents were being used for something to do with the banks. The total amount of the loss to NAB was $226,000, to St George was $16,531.30 and to Westpac was $16,744.63.
The offender took the photograph of Maka that appeared on the false driver's licence in the name of Vinod Sam. The offender arranged delivery of that false documentation. The offender organised with Mohammed for Maka to go into the bank and obtain a fraudulent loan. The offender was in constant contact with Maka during the loan application process. The offender was paid $500 for this involvement.
On the facts the offender was involved at the mid level of the organisation that was systematically producing the false identification documents. The offender's involvement was important because he acted as a go between and it assisted in the syndicate avoiding detection. I note that the dealing with identification documents could have been dealt with in the Local Court. The objective seriousness of each of the dealing with identification information offences is in the mid-range.
The offender's involvement in a criminal group was for about 6 months, between July 2015 and December 2015. Each of the members of the group had a defined role. The offender received money as a result of being in the criminal group. The operation of the group was organised and sophisticated. The objective seriousness of the offence is in the mid-range.

[25]

Mitigating factors

The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. The offender has taken some steps towards drug rehabilitation by undertaking a course and remaining abstinent from drugs since December 2016. He has not yet addressed his alcohol abuse. The offender in his letter to the Court appears to understand the need for his rehabilitation and wants to pursue a positive lifestyle. I am satisfied on the balance of probabilities that the offender has demonstrated that he has good prospects of rehabilitation.
The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender has in his letter to the Court and in what he has said to the author of the PSR and the psychologist accepted responsibility for his actions and I am satisfied on the balance of probabilities that he has expressed genuine contrition and remorse.
The offender co-operated with the investigation: 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. In the identification offences the offender confirmed the identity of others involved but was not prepared to give evidence against them. The level of co-operation does not warrant a separate discount on penalty, but I have taken it into account in mitigation.
The appellant entered a plea of in the Local Court: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. The appellant is entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range particular case should fall, is the timing of the plea so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount in this case is 25%.
I do not accept that the offender's bail conditions amounted to a form of quasi-custody and that they should be taken into account to significantly mitigate the sentence imposed. The offender was able to work, live at home and participate in rehabilitation. The conditions may have limited his work opportunities but not significantly so. It was always open to the offender to apply to vary the curfew conditions to permit him to attend work if that is what he wanted to do.