Dao v The Queen; Tran v The Queen [2014] VSCA 93

Court of Appeal (Vic)|2014-05-14|Before: Mr P, Nettle JA

DPP v Dao and Tran (Unreported, County Court of Victoria, Judge Tinney, 27 June 2013)

CRIMINAL LAW - Sentencing - Trafficking in large commercial quantity of drugs of dependence (heroin and methyl amphetamine) - Whether total effective sentence of 18 years with a non-parole period of 13 years manifestly excessive - Offence committed on single day - Vast quantity of more than 30 times large commercial quantity - Plea of guilty made late - Whether appellant's role in hierarchy 'limited' - Insufficient evidence adduced as to extent of appellant's role - Whether offence correctly characterised as 'most serious example of most serious offence' - Verdins principles not enlivened - Whether sentence 'crushing' - Appeals dismissed - Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584; Mokbel v The Queen [2013] VSCA 118; Rizzo v The Queen [2013] VSCA 146; Kumova v The Queen [2012] VSCA 212; referred to_._

1 These are appeals from sentences of 18 years' imprisonment with non-parole periods of 13 years imposed on each of the appellants on pleading guilty to one charge of trafficking in a quantity of a drug of dependence of more than 30 times a large commercial quantity.

... as a result of what was a routine uniform divisional van patrol, you were each arrested in the early hours of 13 July 2011 at the Jensen Reserve car park in Maribyrnong. It was about 4.20 am. Police observed each of you to be in close proximity to a black BMW sedan and another vehicle, a Toyota, parked alongside it, and each of you behaved suspiciously, walking away from the vehicles when the marked police van came into sight.

You each gave to the police either an unsatisfactory account or no account at all as to your presence at the scene, and later back at the police station, you each answered questions then with the aid of an interpreter upon being formally interviewed by the police, interviews which you each sought to exclude in this pre-trial application before me that I have mentioned to date.

The BMW was registered to your mother in law, Mr Dao. It was searched at the scene, and it contained what was a massive quantity of drugs of dependence, both heroin and methylamphetamine. The items located are set out from pp.4-6 in the summary. Each drug was in a quantity many times over the large commercial quantity for the given drug.

There is some background on p.2 of the summary as it is perceived that there is some link between these drugs and parties targeted in relation to an operation spanning 19 May to 11 July 2011. Parties associated with that investigation were arrested on 11 and 12 July, and were charged with a variety of offences, none seemingly of the order of seriousness of this offence, at least in terms of drug quantity. Your ex-husband was one of those arrested and charged, Ms Tran.

As to the BMW and its contents, you, Ms Tran, were linked to the contents of the BMW vehicle by your name and a Vietnamese address on a luggage tag on one of the suitcases that was found within the car; one of the cases that contained a large quantity of drugs. Further, your handbag containing a variety of forms of identification and a phone were found in the car, making patently absurd your claim in the interview that you had never been in the car. There were other links that set out in that summary.

You, Mr Dao, were of course linked to the owner of that vehicle, and you also of course held the keys to have vehicle, having denied any knowledge of it to the police when first they arrived. You also, upon formal interview by the police, gave really what amounts to a ridiculous account.

I see no need to descend to greater detail as to the facts but conclude by indicating that there was a total of some 31.9 kilograms of drugs of dependence by way of mixed weight; 25 .2 kilograms of high purity heroin, and 6.657 grams of methylamphetamine; that is a mixed weight I am talking of there.

A scientist was called on the plea and provided evidence of the level of purity, and the nature of the other constituent ingredients in the mixtures, and that evidence spoke very clearly of this material not being diluted or cut with other substances. See also Exhibit D, the Certificate of Analysis, and Exhibit E, the chart as to the make up of the methylamphetamine product.

Further, Sergeant Hill was called to expand upon his valuation statement. His valuation statement was Exhibit C. He described further his methodology and the way in which he obtained the various valuation estimates. For instance, for the heroin he operated on a street level purity of between 10% and 20%. He told the court that sometimes it is lower than 10% but he did not operate on that lower percentage. As to the quantity for a street deal, he operated on a street deal of .3 of a gram when he said often it is only .1 of a gram. Those conservative methods obviously reduce the range of valuations. He worked on the basis of the 80% purity figure for the methylamphetamine as the scientific evidence disclosed that the non-pure portion was in fact mainly a derivative substance, a substance which would not suggest to any purchaser that there had been any dilution. Dealers would not differentiate. That is the derivative product, dimethylamphetamine referred to. In truth when one examines the scientific evidence it is clear that the methylamphetamine was undiluted other than by reference to the chemical derivative, which itself would test positive to amphetamine in any spot test conducted by any prospective purchaser or dealer.

There was really no serious challenge to the contention that these drugs were worth a small fortune, however they were to be sold, and I suppose one hardly needs expert evidence to understand that drugs such as these are highly valuable. That is after all why there is such an extensive illegal trade in them. And these drugs were in vast quantities. The heroin was of very high purity, indicative of drugs that were in the imported form, and in the produced state in relation to the methylamphetamine. They had not been cut at all.

The valuation evidence and statement provided involves, as it always does, a sliding range of valuations and they are founded on the assumption that the drugs would be sold, a reasonable assumption obviously enough. The actual value of the drugs and the range will be dependent upon the style of sale, whether it be wholesale or street level, and the quantities sold at any point in time.

I was told, and I accept that it is almost inconceivable that the quantities of these drugs would be on sold at street level by those possessing at this level. I was told the risk was simply too high and that inevitably they would be sold and on sold and eventually diluted down to street level purity by others much further down the chain. So here, as is not uncommon, there is a very large variation in valuations dependent on the factored in details of sales quantity and purity. But the range is provided to give the court at least an understanding of the value of the seized drugs**;** the drugs seized from you, the drugs trafficked by you; that is all.

As to the heroin, if sold by block, that is at 350 grams at 80% purity, so essentially at wholesale purity level, and a block being sold at between $128,000 and $180,000 per block, that would translate into a range of between $9,000,000 to close to $13,000,000. At street level purity of between 10% to 20%, it would furnish at the lower percentage 672,000 street caps at 10% purity at a value of more than $33,000,000, or at 20%, a lesser number of caps, 201,000, at a street value of over $16,500,000.

As to the methylamphetamine, wholesale transactions in ounce lots at 80% purity for between $10,000 to $18,000 per ounce, would produce a range of between $2,400,000 to $4,320,000. The street level gram deals at 40% purity at between $800 to $1000 a gram, would produce a range of $10,720,000 to $13,400,000, and street level caps at 40% purity at $200 to $300 a cap would generate over 44,000 caps, and a range of between $8,900,000 to around $13,399,000.

So figures from wholesale dispositions would produce a range of around $11,500,000 to $17,000,000, and street level transactions, a range spanning $25,000,000 to $47,000,000. This was a massive haul of drugs. Your own counsel, Mr Dao, said it was worth an enormous amount of money. He was right. In any form, however sold, it was worth many, many millions of dollars, and ultimately of course would have provided several hundred thousand deals or 'hits' at street level with untold misery and impact upon the end user and our society.

Further the scientific evidence permits me to make judgments as to the extent to which your crime exceeds the large commercial quantity threshold, by pure weight as well as by mixed weight. Large commercial quantity is, for each of these drugs, either 750 grams pure or 1 kilogram mixed. No doubt one can discern the pure weight easily enough by looking to the tables of purity, for instance in relation to the heroin in the table at p.5 of Exhibit D. That exercise shows that you had over 20,000 grams, 20 kilos of pure heroin. As I say, large commercial quantity is an amount in excess of 750 grams. In the end, it is simpler for me to rely purely on the mixed weight for each drug. The drugs trafficked by you are in a quantity over 30 times the large commercial quantity.

3 On the plea in mitigation of penalty, defence counsel for Dao identified a range of matters which he urged the judge to treat as mitigating circumstances. They included what was said to be the short duration of the offending; the limited role which counsel said Dao should be found to have played; Dao's plea of guilty; his lack of relevant prior criminal history; the presence of a supportive family; his prospects of rehabilitation; the emotional impact of delay; the possibility that Dao felt some remorse for what he had done; the likely effects of his relative isolation in custody; and current sentencing practices.

4 Defence counsel for Tran advanced a similar litany of considerations and added that, according to psychological evidence tendered on the plea, Tran was suffering from an adjustment disorder with mixed anxiety and depressed mood which, in counsel's submission, engaged the fifth principle of Verdins.[1]

5 In his sentencing remarks, the judge dealt at length with each of those matters. Beginning with the pleas of guilty, his Honour noted that the pleas had not been entered until very late, after the trial had been fixed for hearing and was ready to begin, and only after the judge had ruled against an application to exclude the appellants' records of interview. As such, the judge observed, the pleas had nothing like the utilitarian benefits of an early plea and could not be rewarded with the same sized discount as would have been granted for an early plea.

6 Next, the judge noted that, although by their pleas the appellants had taken responsibility for their offending, he was not satisfied that they had any remorse for their crimes. Tran had told her psychologist that she was remorseful but the judge was unimpressed.

7 Turning to the appellants' roles in the offending, his Honour accepted that there was a link between their offending and the arrests of other offenders over previous days. He postulated that those arrests may have led to the movement of the drugs of which the appellants were caught in possession. As his Honour went on to remark, however, the appellants chose not to adduce evidence of the nature or extent of their roles in the undertaking, or even to allow their counsel to inform the court of what they were. Consequently, his Honour was not told and could not say where the appellants sat in the business hierarchy, how they had come into possession of the drugs, or from whom, what was to be their financial reward or expectation, what if any link they had to any other 'players', or even why they were in the car park at four o'clock in the morning with two cars, a massive stash of illicit drugs and cash. There was some suggestion in Dao's record of interview that he was merely a driver but, as the judge said, Dao expressly disavowed any reliance on his record of interview for the purposes of sentencing.

8 The judge noted defence counsel's submissions that his Honour ought infer the appellants' roles were limited; in effect being confined to moving the drugs as a result of the earlier arrests. But, as the judge said, he was unable to do so on the very limited material before him. The judge noted the importance which the High Court attributed to the assessment of a drug offender's role in The Queen v Olbrich.[2] But, as his Honour said, sometimes the court is unable to make a precise assessment and, where that is so, it is inappropriate for the court to guess. In such circumstances, his Honour said, all that can be done is to proceed on the basis of such facts as are known, which in this case were that the appellants were caught in possession for sale of a vast quantity of drugs and cash in the circumstances already rehearsed.

9 The judge recognised that the Dao's criminal history was confined to one aged conviction for larceny, which his Honour regarded as irrelevant for the purposes of sentencing. His Honour also noted that Tran was without prior conviction. But, as his Honour rightly remarked, past good character is of lesser weight in sentencing for large scale drug trafficking offences.[3] General deterrence is at the forefront of sentencing considerations, and that applies to persons of past good character as much as to inveterate criminals. The judge accepted that the appellants had good family support and his Honour assessed their prospects of rehabilitation as reasonably good, and thus the risk of their re-offending as 'correspondingly quite low'. To the same end, the judge recognised that Dao had been doing what he could to improve himself in gaol. But the judge was unimpressed by the psychological report tendered on behalf of Tran. His Honour found that there was insufficient in it, or in the submissions made on Tran's behalf, to establish on the balance of probabilities that the fifth principle in Verdins was engaged.

10 The judge accepted that there had been delay, albeit not of the Crown's making, and that it was significant regardless of its cause. His Honour acknowledged, therefore, that he was bound to take into account that the matter had been suspended over the appellants' heads for some time with consequent uncertainty and stress. The judge also accepted that the appellants would find prison more burdensome than many others because of their level of isolation and the language barrier, and his Honour treated those considerations as factors in mitigation.

11 Finally, however, with respect to current sentencing practices, the judge said that, having considered all the cases and materials referred to by defence counsel, it appeared that there really was no like or comparable case. Although the subject offences were confined to the single day of seizure, the appellants' offending involved a haul and value of drugs which was virtually unparalleled back to the early 1990s. In the judge's view, that placed the level offending into a far higher range than the mid-range which defence counsel submitted. His Honour concluded that the offences were most serious examples of a most serious offence.

(i) Dao Ground 1; Tran Grounds 1(a)(ii), (iii) and 1(b)(iii) and (iv): Error in assessment of the gravity of the offence

12 Under the heading of Ground 1, counsel for Dao contended that the judge was in error in characterising the appellant's offending as a most serious example of a most serious offence. He submitted that a serious example of the offence is one which involves not only a vast quantity of narcotics but also proof of aggravating factors such as an offender having a managing or directorial role in the relevant business hierarchy or where the offending extends over a substantial period of time. Thus, counsel argued, even if the judge were unable to find that there were mitigating factors, the lack of evidence as to the Dao's role and the lack of any indication that he was involved in a continuing criminal enterprise belied the conclusion that his was a most serious example of serious offending. In all the circumstances, counsel contended, Dao's offending ought properly to have been categorised as mid-range level offending.

13 Counsel for Tran put submissions to similar effect but added that, by posing the question of what Tran's role may have been in the business hierarchy, the judge permitted speculation about a wider role to diminish the mitigatory effects on sentence of the limited role which was proved. In counsel's submission, all that was established by the evidence was a role of short duration, with no evidence of profit, seniority, executive power or planning. Thus, in counsel's submission, to characterise Tran's offence as a most serious example of a most serious offence bespoke an undue concentration on quantity of drugs to the exclusion of other relevant sentencing considerations. And, counsel said, on no reasonable view of the matter could Tran's role be regarded as rising to the level of worst category offenders like Mokbel, Barbaro and Rizzo.

14 I do not think those submissions to be persuasive. Depending on the quantity of drugs involved, it is not necessary for proof of aggravating factors for an offence of trafficking to qualify as a most serious example of serious offending. The maximum sentence prescribed for trafficking in a large commercial quantity of a drug of dependence is life imprisonment. It is axiomatic, therefore, that Parliament regards the offence as a most serious offence. And, as the judge explained, the sentencing regime prescribed for offences of trafficking in drugs of dependence is pre-eminently a quantity based regime.[4] That means that, although quantity is not necessarily determinative of seriousness, it is a factor of the utmost significance. It follows that, other things being equal, the larger the quantity, the more serious the offending.[5]

15 Here, as the judge observed, the subject offences involved a haul of drugs which was virtually unparalleled going back to the early 1990s. The quantities were enormous; more than 30 times a large commercial quantity. By comparison, the amount of drugs involved in the Magnum Offence,[6] although vast at 16 times large commercial quantity, was very much less. The amount of drugs involved in Gonzales[7] was 23 times the large commercial quantity and, therefore, closer to the mark. But, as counsel properly conceded, that sentence was imposed as part of a total effective sentence and it does not seem unlikely that it was modified to conform to the requirements of totality. The amount of drugs involve in Kumova[8] was very much less and the penalty was accordingly smaller.

16 Furthermore, as counsel for the Crown submitted, the fact that it is possible to conceive of worse instances of the offence - such as, for example, those which involve not only vast quantities of illicit substances but also aggravating factors of the kind identified by defence counsel - does not gainsay the judge's conclusion that this offending was a most serious example of a most serious offence. His Honour did not say that it was the most serious instance of the offence. If it were, it would have attracted a sentence closer to the maximum penalty of life imprisonment. He said that it was a most serious instance of the offence; meaning that, because of the vast quantities involved, it fell within the worst category of offending. Of course, if there had been sufficient evidence to sustain an inference that the appellants' roles were limited, or sufficient evidence to find that there were other equally mitigating considerations, there would have been a basis to hold that their offending was at a lesser level of seriousness.[9] But, as the judge said, there was not sufficient evidence of that kind. Despite the judge repeatedly inviting defence counsel to adduce evidence of the appellants' roles, or even to tell his Honour about them, and despite the judge expressly referring to the difficulties which would result from failure to do so, the appellants deliberately chose not to inform his Honour of anything which might have assisted their position. In those circumstances, the judge was right to conclude that the appellants must wear the consequences of their election.

17 Much of the argument before us appeared to assume that an offender who is caught trafficking in a vast, large commercial quantity of narcotics, and chooses to remain mute as to the level and extent of his or her involvement, is entitled thereby to dictate that he or she be sentenced as if they were no more than a hapless courier. That assumption is misconceived. The law does not afford large commercial quantity drug traffickers the option of plumping for a mean or median sentence as some sort of default position. An offender is entitled to say nothing and, if it be the case, to rely on the fact of there being no evidence of aggravating factors. But, if an offender makes that choice, and there is not otherwise acceptable evidence of mitigating circumstances, the judge is bound to proceed on the basis that there are not mitigating factors of which evidence might have been given. Consequently, where the quantity involved is as vast as it was here, and there is insufficient evidence to sustain an inference on the balance of probabilities that the offender was at a low level of any relevant business hierarchy, or had limited knowledge of what he or she was involved in, or had no expectation of financial reward or was for some other reason less culpable than would otherwise necessarily be implied by being found in possession of vast quantities of illicit drugs and cash in the early hours of the morning in a public park, the judge must assume that there is nothing which can be said in mitigation about those factors.

18 Counsel for each appellant argued that there was evidence consistent with the appellant being no more than an emergency courier. So much may be conceded. But it is one thing to point to evidence which is not inconsistent with a conclusion for which it is contended and it is quite another to identify evidence sufficient to establish that conclusion on the balance of probabilities. Here, the most that could be said was that there were any number of mitigatory possibilities of which none was more likely than not.[10]

19 Comparisons with offenders like Mokbel and Barbaro and Rizzo involve additional considerations The exercise requires precise identification of the details of the offences for which those men were sentenced and how the facts of those cases compare to the facts of this. Possibly, it is true to say that Mokbel, Barbaro and Rizzo were among the worst class of drug trafficking offenders yet to be convicted. But, in large part, that is because of the broad sweep of drug trafficking offences which they were found to have committed. It does not follow that any of the individual offences for which they were sentenced was any worse than those in issue here.

Dao Ground 2; Tran Grounds 1(a)(i), and 1(b)(i) and (ii): Current sentencing practices

20 In brief substance, the arguments advanced under the rubric of 'current sentencing practices' were that the judge paid insufficient regard to current sentencing practices or expressed such discontent with the process as to demonstrate error in approach. Further or alternatively, it was contended that the judge's observations as to the marginal relevance of many of the cases mentioned by defence counsel were indicative of a tendentious concern to distinguish decided cases rather than derive the assistance which principle dictates should be drawn from them.

21 Reduced to essentials, however, the argument put by counsel for Dao came down to a proposition that, because Mokbel, received an individual sentence of 20 years' imprisonment for what was termed the 'Magnum Offence',[11] and his lieutenant, Rizzo, received an individual sentence of 12½ years' imprisonment for that offence,[12] the sentence of 18 years' imprisonment imposed on the appellants necessarily ill-accorded with current sentencing practices.

22 Counsel for Tran added reference to the Sentencing Counsel's Sentencing Snapshot;[13] the sentences of 6.6 years' imprisonment imposed on Gonzales[14] (as part of an overall sentence) for large commercial quantity trafficking in 23 times the large commercial quantity of pseudo-ephedrine; and the sentence of 10 years' imprisonment imposed on Kumova[15] for trafficking in a large commercial quantity of 13 kilograms of methyl amphetamine over a period of many months. He submitted that, by comparison, the sentence imposed on Tran was not only statistically extreme but well above the sentences imposed in worse cases

23 As it appears to me, however, each of those arguments was premised on unspoken and unsubstantiated assumptions that the offences in the other cases mentioned by counsel were more serious than the subject offences and further or alternatively that the appellants' roles in relation to the subject offences were less heinous than the roles of the offenders in the other cases. Neither assumption is warranted.

24 Reference has already been made to the amount of drugs involved in the Magnum Offence and in Gonzales and Kumova. As has been noticed, each was less than that here.

25 Additionally, although Mokbel's and Rizzo's roles in relation to Mokbel's drug trafficking enterprise were very senior, and Gonzales and Kumova were also high level principals, it is not known whether the appellants' roles were sufficiently lowly in relation to the subject offences to require a different order of sentencing relativity. Further, as the judge said, even if the appellants were no more than some sort of emergency couriers moving drugs to escape the tightening dragnet of police operations, they must still have been closely connected to those in charge of operations in order to be trusted with almost 32 kilograms of drugs worth millions of dollars. And to that I would add that, if indeed they were emergency couriers striving to preserve a vast haul of illicit drugs from the imminent risk of seizure, it is to be assumed that they were knowing participants in that endeavour; and, if so, there is little could be said in mitigation of the contumacy which that reflected.

26 I do not to overlook the significance of Sentencing Council Snapshots, median sentences for trafficking in large commercial quantities, sentences imposed in cases of lesser gravity and the importance of relevant underlying sentencing principle.[16] But the short point is that with the exception of Mokbel and Rizzo, the cases and statistics to which counsel referred are largely beside the point. As the High Court said in Wong v The Queen,[17] fairness demands consistency and, given the vast quantity of narcotics involved in this case, and the dearth of evidence of any mitigating circumstances, anything much less than the sentence imposed would be out of step with relevant comparators.[18]

27 Counsel for Tran contended that the judge had undervalued the evidence of Tran's psychological condition and thereby fallen into error. He submitted that inasmuch as there was unchallenged evidence that Tran was suffering from an 'Adjustment Order with Mixed Anxiety and Depressed Mood', which had worsened in custody and was likely to improve upon release, there was no basis for the judge to reject the evidence as 'bare'. By so doing, he said, the judge had undervalued the significance of delay.

28 I see no error in the judge's findings. As his Honour said, Adjustment Disorder with Mixed Anxiety and Depressed Mood is a diagnostic label, and it requires more than a label to engage the Verdins principles. Granted, there was evidence that Tran was sad in prison and anxious, but as the judge observed, that was hardly surprising given her position. It did not mean that she was worthy of significant leniency. The punishment of prison to which she was subjected is intended to be arduous.

Dao Ground 3; Tran Grounds 1(a)(iv) and 1(b)(iv): Manifest excessiveness

29 Counsel for each appellant contended that, in view of the objective evidence concerning the appellants' roles, their pleas of guilty, current sentencing practices, and the need not to impose crushing sentences, the sentences imposed and the non-parole periods were manifestly excessive.

30 Counsel for Tran added that there was evidence meriting clemency. The plea was valuable, the prospects of rehabilitation were sound, prison was bound to be unusually onerous and there was the delay and psychological burdens to which Tran was subject even if they did not rise to the level of Verdins factors. As he put it, the quantity was gross but quantity was but one consideration. A more lenient sentence was warranted.

31 So far, I have dealt with each of those points apart from whether the sentence and non-parole period are crushing and therefore manifestly excessive. And as to the latter, I think it sufficient to say that, given the nature and gravity of the offending and the seriousness with which Parliament has mandated it must be treated, a sentence and non-parole period of the order imposed were necessary.[19]

32 Possibly, another judge might have imposed lesser sentences or non-parole periods. I accept that they are stern sentences at the upper end of the available

range. But, in the end, it was a matter of discretion for the sentencing judge. The determination of penalty was for him to decide as an exercise in intuitive synthesis. Given the vast quantity of drugs involved, the high degree of purity of them, their immense value and the absence of acceptable evidence of considerations which might have substantially ameliorated the apparent gravity of the offending, I am unable to say that the sentences and non-parole periods are so far beyond the range of available sentences as to be classed as manifestly excessive.

34 Both appellants contend for two primary reasons that their sentence of 18 years' imprisonment on a charge of trafficking in a quantity of a drug of dependence, more than 30 times a large commercial quantity, was manifestly excessive. First, they say that the evidence established as a mitigating circumstance that each appellant was no more than an 'emergency courier' who had received temporary possession of the drugs only in order to convey them to some other person. Accordingly, it was submitted they fell within Group 3 of the categories of offenders discussed by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa[20] in the passages set out by Maxwell P in Nguyen and Phommalysack v The Queen.[21] Having regard to the range of sentences applicable to those who fall within Group 3 and to current sentencing practice, it was submitted that a sentence of 18 years was well beyond the range of sentences open to the sentencing judge. The second related primary submission is that the appellants' conduct could not be described as falling within the worst category of this offence unless it were found as a matter in aggravation of their offences that they occupied the role of principal or at

least a managerial role in the enterprise involved in the business of drug trafficking. A sentence of 18 years it was said was reserved for those offenders who occupied such a position in the criminal hierarchy.

35 The first primary submission rests upon facts which were not established by the detail of the agreed offending set out in Exhibit A on the plea. The second misconceives the effect of current sentencing practice. The Australian Crime Commission ('ACC') had targeted a group of large-scale drug traffickers in Victoria, one of whom was Hiep Tan Tran. Investigators established that on 11 July 2011 their target, Hiep Tran, had acquired a large quantity of drugs, being cocaine and heroin, from one Van Cuong Duong, who was the husband of the appellant Thi Tran. On the same day Hiep Tran was arrested. Duong was arrested the following day. Search warrants were executed at the premises of Hiep Tran and other premises. It was in the early hours of the following morning that Thi Tran, Manh Dao and his wife, Dinh, were observed in the Jenson Reserve car park at Maribyrnong. What was observed and found by investigators at that time was summarised by the sentencing judge and is conveniently set out in the reasons of Nettle JA. Both appellants and Dinh gave false and demonstrably implausible explanations for their presence at the reserve and their connection to the two motor vehicles. When later questioned by investigators the appellants in their interviews provided what the sentencing judge rightly described as 'various absurd and ridiculous lies'.

36 Yet from these agreed facts and the absence of any evidence that either appellant's name had previously emerged during the ACC's investigation and monitoring of the conduct of the targets - which it was not suggested included Duong - it was submitted that the sentencing judge was obliged to find, at least on the balance of probabilities, that the appellants' involvement with these drugs was merely as couriers who were moving the drugs to someone else that day as a consequence of the events the previous day.

37 It was not in issue before the sentencing judge that the drugs found in one of the vehicles were derived from the same source as the drugs that had been sold by Duong to the target Hiep Tran the previous day. Thus, it was said on the plea and accepted by the sentencing judge that the arrest of Hiep Tran and Duong had 'seemingly flushed out the movement of these drugs that you were trafficking in'. The sentencing judge accepted that the arrest of the target Hiep Tran and the arrest of Duong precipitated the movement of the drugs found in the appellants' possession for the purpose of concealing them from investigators. In his reasons, his Honour identified the following questions which remained unanswered:

But what is your role in all of this? The short answer is you will not tell me. Again, that is your right. But what is your link to those other players? Where do you sit in this business hierarchy? How came you to possess the drugs and why, and from whom? What was your financial reward or expectation of financial reward? What link did you, Mr Dao, have with other players, and what of you Ms Tran? What link do you have to each other? You, Ms Tran, were separated from your husband and had been for some time. Why were you out in the car park on the day in question with two cars, with these drugs, and with the cash as well? Why were you with Mr Dao?

38 Other than an assertion from the Bar table during the plea in mitigation of the appellant Thi Tran that she was only a courier - a suggestion which the sentencing judge made clear he could not accept in the absence of evidence - no information was ever provided by either appellant which went any way toward answering any of the questions posed by the sentencing judge as to the role of the appellants and their connection with Duong or the target Hiep Tran. If there was a 'business hierarchy' in which Duong was involved, the role of the appellants in such an organisation was entirely unknown. The assumption upon which the first primary submission rested was devoid of evidentiary support. The evidence did not permit the inference that the vast quantity of drugs and cash had been conveyed to the appellants by others who had possessed the drugs for the purpose of trafficking or that, beyond the movement of the drugs on that day, the appellants had no prior or future interest in the drugs.

39 It is not essential in the sentencing process that the precise role of an offender in a criminal hierarchy be established. As this case illustrates, a court will often have a limited and imperfect knowledge about the circumstances in which an offender came to commit the offence.[22] The course of dissimulation and then silence followed by the appellants denied the sentencing court any ability to determine the existence or nature of any criminal hierarchy or the position which the appellants may have occupied within that organisation.

40 None of this is to say that the role of the offender and the position which they may occupy within a criminal hierarchy is not important where it is capable of being discerned.[23] Notwithstanding its potential importance, a mitigatory finding that the offender occupied a lowly position within a hierarchy can only be made upon a sound evidentiary basis. Unlike questions relating to the guilt of an offender, upon which the offender must be given the benefit of any doubt, for the purpose of sentence, mitigatory facts must be proved. They cannot be inferred in the offender's favour merely because there was no evidence that the offender occupied a senior or prominent position in the asserted hierarchy. Similarly in the absence of evidence a finding cannot be made that the offender occupied a principal or senior position in the criminal hierarchy. Such matters must be established by proof to the criminal standard. The sentencing judge made no such finding but it does not follow that current sentencing practice therefore required the imposition of a lower sentence.

41 By their plea of guilty the appellants acknowledged that they possessed the vast quantity of drugs for the purpose of trafficking. Some of the drugs were contained in clear plastic snap lock bags or in 'freezer'-type bags ordinarily used for the purpose of sale. What benefits the appellants were to derive from the possession of the drugs or their anticipated sale was unknown. That said, the absence of such evidence did not diminish the gravity of what it is known that they did. The appellants possessed drugs in excess of 30 times a large commercial quantity for the purpose of trafficking. It not having been demonstrated that the appellants came into possession of the drugs in mitigatory circumstances, neither principle nor current sentencing practice dictated that it was necessary to prove that the appellants

were principals or occupied a high degree of responsibility in the criminal organisation involved in the trafficking before a sentence of this order could be imposed. For these and the reasons given by Nettle JA the sentence fell within a sound exercise of the sentencing discretion.

43 For the reasons given by Nettle JA, and for the further reasons advanced by Redlich JA, I agree that each appeal should be dismissed.

[1] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32(5)] (Scil. a given sentence might weigh more heavily on Tran than it would on a person in normal mental health).

[3] R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106, 127 [72(j)]; Tsang v DPP (Cth) [2011] VSCA 336; (2011) 255 FLR 41, 75 [162].

[4] R v Pidoto [2006] VSCA 185; (2006) 14 VR 269, [40]-[41].

[5] R v Bala (2010) 201 A Crim R 505, [12]; Nguyen v R [2011] VSCA 32; (2011) 31 VR 673, 676 [2]; Mokbel v R [2013] VSCA 118, [107].

[6] Mokbel v The Queen [2013] VSCA 118.

[8] Kumova v The Queen [2012] VSCA 212.

[9] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 609 [67]-[69] (Gaudron, Gummow and Hayne JJ).

[10] See and compare Purkess v Crittenden [1965] HCA 34; (1964) 114 CLR 164, 168; Heydon, Cross on Evidence, Australian Ed, [7005].

[11] Mokbel v The Queen [2013] VSCA 118.

[12] Rizzo v The Queen [2011] VSCA 146.

[13] Without which it seems no sentencing appeal is these days complete. Cf R v Lim and Ko [1998] VSCA 54, [34]-[35] (Brooking JA).

[14] DPP v Gonzales [2011] VSCA 175.

[15] Kumova v The Queen [2012] VSCA 212.

[16] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; Ashdown v The Queen (2011) 219 A Crim R 454, 461 [13].

[18] See the table of current sentencing practices derived by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 64-6 [267], which was referred to with approval in R v Nguyen (2011) 31 VR 678, 683 [37]-684 [37].

[19] R v Vaitos (1981) 4 A Crim R 238, 257 (Young CJ); R v Walkuski [2010] SASC 146, [58] (Doyle CJ); Paxton v R [2011] NSWCCA 242; (2011) 219 A Crim R 104, 131-2 [212]-[215] (Johnson J,Tobias AJA and Hall J agreeing); and see Bagaric and Edney, Sentencing in Australia, [12.55].

[23] DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, 62 [255]; R v Lee [2007] NSWCCA 234; Nguyen and Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673, 681 [34].

At a glance

Court

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Before

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Judgment (71 paragraphs)

Cases Cited (11)