Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Trafficking in controlled substances - No manifest excess.

Judgment Number: [2017] TASCCA 21

1. The appellant, Mr Lai Le, appeals against a sentence imposed upon him by Blow CJ on the ground that the sentence is manifestly excessive in all the circumstances. The sentence under appeal is a term of 23 months' imprisonment with a non-parole period of half of that period. Other orders made include the imposition of a pecuniary penalty of $27,300. The appellant had pleaded guilty to trafficking in a controlled substance, namely methylamphetamine involving the form crystal methylamphetamine known as Ice, and four summary charges involving contraventions of the Misuse of Drugs Act 2001 (Tas) and the Firearms Act 1996 (Tas); an offence of using a controlled drug (Ice), possessing an Ice pipe, an offence of possessing a Taser (which constitutes a firearm for which a licence may not be issued), and an offence of possessing 12 rounds of ammunition when he was not the holder of an appropriate firearm licence. The sentencing comments disclose that the sentence of 23 months' imprisonment is attributable largely to the crime of trafficking. I have had the advantage of reading the draft reasons for judgment prepared by Estcourt J and Marshall AJ. I agree with their reasons, but wish to add some comments in relation to the use made by the appellant's counsel of other sentences in "like" cases to demonstrate that the sentence in this case was manifestly excessive.
2. Counsel for the appellant relied heavily in her submissions on past sentences imposed in Tasmania for trafficking in methylamphetamine, committed in circumstances "broadly similar" to this case. The similarity in circumstances was identified as a relatively small scale operation arising from the offender's drug use. It was submitted that the sentence was well outside the range of past sentences imposed for crimes of that category. It was noted that the appellant's sentence of imprisonment was the highest by some three months. There was particular reference to five sentences of imprisonment of 18 months. It was submitted that the scale of trafficking by the appellant was less serious than in these other five instances, having regard to the street value of the drug, or number of transactions. It was submitted that the scale of the appellant's trafficking is more comparable to cases where the offenders received terms of imprisonment of between 6 to 12 months. Acknowledging that sentencing is not a mathematical exercise, it was argued that, in effect, the appellant received approximately double the sentence imposed for similar crimes.
3. The comparative exercise focussed on the monetary value and quantity of the drug involved. Whilst these are significant factors and useful for comparison purposes, it needs to be borne in mind that these are only two of many factors that must be taken into account by sentencing judges in fixing the sentence. Because of the broad statutory meaning of the term "traffic", there are many ways in which a person may be guilty of the crime and a diversity of circumstances in which the crime is committed: Misuse of Drugs Act, s 3; Stebbins v Tasmania [2016] TASCCA 6 at [98]- [99] per Pearce J_._ It is a flawed approach to argue that the gravity of a drug offence is to be assessed chiefly by reference to the weight of the drug involved: Wong v The Queen [2001] HCA 64, 207 CLR 584 at [67]- [75]; R v Pham [2015] HCA 39, 256 CLR 550 at [37]. A sentencing judge must take into account all of the circumstances of the offence and the offender and reach a sentence by balancing many different and conflicting features: Barbaro v The Queen [2014] HCA 2, 253 CLR at [34]. Such an individualised approach can be seen in the comments upon passing sentence in the cases referred to by counsel for the appellant. The sentencing outcomes are the product of balancing factors such as the offender's role in the commission of the crime, level of criminality, previous criminal history, steps taken towards rehabilitation and many other different and conflicting features.
4. The correct approach to having regard to past sentences is well-established. While sentencing is an individualised task and involves a wide sentencing discretion, the administration of criminal justice requires reasonable consistency; "treatment of like cases, alike, and different cases differently": Hili v The Queen [2010] HCA 45, 242 CLR 520 at [49]; Wong at [6] per Gleeson CJ. Past cases stand as a "yardstick" by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles: R v Kilic [2016] HCA 48, 91 ALJR 131 at [22]; Hili at [53]-[54]; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, 79 NSWLR 1 at [304]. "Like cases" may inform a "broad understanding" of the appropriate range of sentences: Kilic at [22]. However, previous sentences do not fix the boundaries within which future sentences must be passed: Kilic at [22]; De La Rosa at [304].
5. The consistency that is sought is not "numerical equivalence", but consistency in the application of the relevant legal principles: Hili at [48]-[49]. Appellate intervention on the ground of manifest excess is not warranted unless, having regard to all the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle: Pham at [28].
6. The submissions presupposed that the past sentences disclosed that a range had been established in the sense of a discernible sentencing pattern for a set of trafficking cases of the kind here. I am not convinced that such a range in the sense of a tariff or sentencing pattern has emerged; there has not been a sufficient number of similar cases.
7. There were five cases which all attracted a term of 18 months' imprisonment, said to be illustrative of error or manifest excess in this case because they were all markedly more serious examples of offending and yet attracted a lesser term of imprisonment. Having regard to the circumstances of offending and the offender, as disclosed in the comments upon passing sentence, it is inaccurate to describe them as "more serious" examples of trafficking than here.
8. The argument that the offending here was akin to the offending that falls squarely within the kind of offending that has attracted 6 to 12 months' imprisonment is also not borne out. Firstly, there is not a set of cases which attract this specific range of outcomes, and that can be distinguished from cases that attract 18 months' imprisonment. Rather, there is a spectrum of seriousness and a mix of aggravating and mitigating factors. Having regard to the circumstances of those cases as revealed in the comments upon passing sentence, it is plain that, generally speaking, there are obvious factual differences in offending and/or the circumstances of the offenders which would account for the sentences in those instances being significantly lower than in this case.
9. The principles referred to dictate that the longest previous sentence of 20 months (Imlach, 18 August 2017), does not stand as an outer limit from which departure must be justified. Just because it has been the longest sentence of instances of trafficking of this kind does not mean it should remain so: De La Rosa at [304]. Aside from the point of principle that past sentences do not mark the outer boundaries of a permissible sentencing range, it is also not logical to treat a past sentencing outcome as a fixed reference point when the outcome was the product of the court's wide sentencing discretion, and for that particular case there were other "correct" sentencing outcomes. In any particular case, there is no single correct sentence: Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [27].
10. In striving for consistency in the application of principle, sentencing courts should not only have regard to past sentences, but also the guidance provided by the Court of Criminal Appeal. It can be seen that a guiding principle is the importance of general deterrence and acknowledgment of the grave harm to individuals and the community resulting from the crime of trafficking. An illustration of the guidance is to be found in Stebbins v Tasmania at [66], endorsing remarks made by the sentencing judge in that case, quoted by Estcourt J at [24]. This Court has made it clear that those who engage in trafficking in illicit drugs should expect harsh punishment: Sweetman v Tasmania [2016] TASCCA 5 at [53] per Pearce J.
11. It has not been demonstrated that the sentence was inconsistent with past sentencing practices or failed to appropriately reflect relevant legal principles. Put another way, the guidance offered by past cases does not suggest that the sentence was too high. In fact, it fell within a range of outcomes that are just and appropriate for this kind of offending. Undoubtedly, the sentence was a heavy penalty but it was justifiably so with reference to the importance of general deterrence. In this case, there was also a particular need for personal deterrence. The appellant was at a "very high risk" of reoffending. That is not to suggest that rehabilitation was not also a sentencing goal. The learned sentencing judge evidently gave weight to that objective. The minimum non-parole period of half the sentence offered an important incentive to reform, and ameliorated the heavy sanction imposed. There has been no misapplication of principle. For these reasons and the reasons stated by Estcourt J and Marshall AJ, I would dismiss the appeal.

1. The appellant, Lai Le, appeals against a sentence imposed upon him by Blow CJ on 31 July 2017.
2. The learned sentencing judge convicted the appellant of the crime of trafficking contrary to s 12(1) of the Misuse of Drugs Act 2001, and of four summary offences, namely an offence of possessing an Ice pipe and an offence of using Ice contrary to ss 23 and 24(b) respectively of that Act, and an offence of possessing a Taser, which constitutes a firearm for which a licence may not be issued and an offence of possessing ammunition when he was not the holder of an appropriate firearm licence contrary to ss 9(1)(b) and 105(3) of the Firearms Act 1996. His Honour imposed a single sentence of 23 months' imprisonment with a non-parole period of half of that period. The drug trafficked was the form of methylamphetamine commonly known as Ice.
3. The sole ground of the appellant's appeal is that the sentence was manifestly excessive.

1. The legal principles applicable to appeals against sentence on the ground of manifest excess or inadequacy are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J.

1. The learned sentencing judge made the following comments on passing sentence, which comments adequately set out both the facts of the appellant's offending and his personal circumstances, including reference not only to his assessed risk of re-offending, but also to his cessation of his own use of Ice and his seeking drug counselling, in deference to which his Honour made the maximum possible provision for parole:

"Mr Le came to the attention of police officers on 27 November 2015 when he was driving a stolen car through the streets of Hobart. Police officers searched the car and a room in which Mr Le had been staying at the Wrest Point Casino Hotel. They found quantities of crystal methylamphetamine, tick sheets recording drug debts owed to him, $3,196.55 in cash, some glass Ice pipes, a quantity of empty snaplock bags, 12 rounds of Colt .45 ammunition, a taser, a knife in the driver's door of the vehicle, a blowtorch, and a set of scales. Mr Le was interviewed by police officers. He admitted that he had been selling Ice. He told the police that he had been in Tasmania for a month, and had been staying with his mother for some of that time. If all that he told the police was true, his sales of the drug in Tasmania would have amounted to about $27,300. He also told the police that he had attempted to acquire more of the drug, without success, and that he was using about two grams of it per day himself ...

Mr Le was 29 years old when he was arrested and is now 30. He is married. His wife lives in Melbourne but is planning to move to Tasmania to be near him while he is in prison here. They have a very young child. Mr Le was born in Vietnam. When he was 9 years old his mother left the family home. He received no education after that time. His father did not look after him properly and was responsible for a number of his personal problems. He migrated to Australia when he was 19. He learned English, and obtained employment for the first time in his life. However he has been a drug user since his early teens. He decided to sell Ice in order to fund his drug habit. Apparently he owed $5,000 for drugs when he made that decision, and saw no other way of getting the money to pay that debt.

It counts in his favour that he made admissions to the police, and that he pleaded guilty. However his plea of guilty was not an early one, and the proceedings were delayed to a small degree as a result of Mr Le failing to attend Court on three occasions, and being arrested after each failure to appear.

Mr Le has no convictions for prior offences in Australia, but spent some time in prison in Vietnam during his teens. He committed a number of offences whilst on bail in relation to the trafficking charges. In April of this year a magistrate sentenced him to a total of three months' imprisonment for various offences including driving whilst disqualified, driving with an illicit drug in his blood, and four counts of stealing. He has been in custody since 3 February 2017, but three months of his period in custody relates to the sentences imposed by the magistrate. I will therefore impose a sentence that is backdated to 3 May 2017. I will impose a global sentence in relation to the trafficking charge and the four summary charges.

I have been provided with a drug treatment order assessment report. It reveals that a drug treatment order would not be appropriate for Mr Le. The authors of that report have concluded that there is a very high risk of him re-offending. On the positive side, it appears that he ceased using drugs when he was taken into custody earlier this year, and that he is now seeking professional help for the first time. He suffers from hepatitis C and depression, and had not previously sought medical help.

Because of the scale of Mr Le's trafficking operation, the only appropriate penalty is a substantial period of imprisonment. And of course the sentence must include components relating to the taser and the revolver ammunition. I will impose the shortest possible non-parole period because I cannot rule out the possibility that Mr Le might benefit from conditional release on parole, and I would like to give the Parole Board as much flexibility as possible if it considers that parole would be appropriate."

1. In Roland v Tasmania [2016] TASCCA 20 at [38], and again in Cooper v Tasmania [2017] TASSCA 3 at [7], I set out written submissions made on behalf of the respondent in Roland. Those cases also involved appeals against sentences for trafficking on the ground of manifest excess.
2. In those submissions the following matters were accurately noted by counsel for the respondent:

23 DPP v Williamson [2013] TASCCA 6 involved a plea of guilty to a 'commercial operation,' although the particulars related to a single day. He was in possession of a large amount of cash and a large number of capsules. The sentence was increased on appeal from two years imprisonment to four and a half years imprisonment.

24 In DPP v Williamson the learned Chief Justice summarised a number of previous sentences involving commercial trafficking of amphetamines, namely;

• Leicester (3 years and 4 months imprisonment, 12 months suspended).

25 Stebbins v Tasmania [2016] TASCCA 6 involved the most serious example of the crime of trafficking in Tasmania. This was reflected in the twelve and a half year sentence of imprisonment. The sentence imposed in Stebbins suggests that the upper end of the range for commercial trafficking operations in Tasmania is increasing.

26 In Stebbins v Tasmania Justice Estcourt summarised a number of sentences for commercial trafficking of amphetamines, namely;

• Oxford (3 years); Oxford v Tasmania [2006] TASSC 41

1. Thus it can be seen that recent sentences imposed by this Court and by judges of this Court in respect of the crime of trafficking in a controlled substance in a variety of different circumstances reflect a pattern of sentencing of substantially between 3 to 4½ years. However, as was observed by Blow CJ in Williamson (above) at [23]:

"23 Sentences of less than 3 years' imprisonment are a little more common in trafficking cases. I think it is fair to say that sentences in the vicinity of 2 years' imprisonment are generally attracted by involvement in commercial operations of a substantially smaller scale than the operation that is the subject of this appeal." (Emphasis added.)

1. I have considered the table of comparable sentences provided by counsel for the appellant, Ms Monk, as part of her written submissions. I do not accept that the table or the cases from it analysed by her, or the Sentencing Advisory Council's database statistics for 2001 to 2014 referred to by counsel for the State, Ms Avery, establish a sentencing range that can be utilised as dictating an outcome in the present appeal. In any event, as I noted in Cooper, I observed in Sweetman v Tasmania [2016] TASCCA 5 at [36]- [41], a case involving trafficking in cannabis, as follows:

"36 However, being outside a perceived range of sentences does not necessarily establish manifest excess. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336.

37 It was pointed out by Underwood J (as he then was) in Inkson v The Queen [1996] TASSC 13; (1996) 6 Tas R 1 at 15, that having regard to a 'range of sentences imposed for a crime does not mean that every sentence must fall within that range'.

38 And Wright J said in R v Dowie [1989] Tas R 167 at 186:

'A court may frequently be aided by the provision of statistical data as to sentences previously imposed in this State ... but in my view, it cannot allow such material to overshadow or displace its own evaluation of the gravity of the offence before it in the light of all the known facts and circumstances.'

39 It remains true that 'gross departure from what might in experience be regarded as the norm may be held to be error in point of principle': Griffiths v The Queen (1977) 137 CLR 293 at 310 per Barwick CJ. However, in my view, in this case there has not been a 'gross' departure from what may be regarded as the 'norm'.

40 It is a matter for consideration whether this Court should, in an appropriate case, review whether what appears to be the norm remains appropriate, particularly in view of the scourge of methylamphetamine with which trafficking in cannabis is often associated. This is not an appropriate case, in my view, given that the appellant's plea of guilty was accepted by the respondent on the basis that he would have given a lot of the cannabis away, and that in the past he had bartered the cannabis he grew and gave away to friends in exchange for crayfish or beer.

41 For the moment it is sufficient to remember that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other cases referred to by this Court in Director of Public Prosecutions v CSS [2013] TASCCA 10."

1. I do not regard the sentence of 23 months' imprisonment imposed on the appellant as being a gross departure from the norm given the sentences in the cases set out above. I take into account the appellant's personal circumstances, the eventual cooperation he gave to police, his ultimate plea of guilty and the smaller scale of the appellant's trafficking relative to that involved in some of the cases I have made reference to. I note that some, albeit modest, provision had to be made by the learned sentencing judge for the four summary offences with which he was also dealing. I make allowance for the appellant's potential for rehabilitation, notwithstanding his assessed risk of reoffending, as specifically addressed by his Honour by the imposition of the minimum non-parole period. In all of the circumstances I am satisfied that the sentence was appropriate, albeit severe.
2. In this case I am not persuaded, in accordance with the traditional formula set out in House v The King [1936] HCA 40; (1935) 55 CLR 499, that the appellant has established that by reason of its severity, the sentence imposed on him is "unreasonable or plainly unjust" so as to give rise to the inference that there has been a failure by the learned sentencing judge to properly exercise his discretion. It is to be noted that any incremental change in sentencing practices can be justified by changes in community attitude. This can result in sentences reflecting and responding to developments in the understanding of the impact of particular offences. This was acknowledged by the High Court in R v Kilic [2016] HCA 48 at [21].
3. Even taking into account that the appellant was a user of the drug, and that two grams per day of the methylamphetamine in his possession might be regarded as being for his personal use, it remains that he was trafficking in an insidious drug, albeit in part at least in order to finance that usage. As Pearce J remarked in Sweetman (above) at [53]:

"In general, however, those who engage in trafficking in illicit drugs should expect harsh punishment. The Misuse of Drugs Act 2001 ('the Act'), s 12, provides that trafficking in a controlled substance is punishable by imprisonment for a term not exceeding 21 years. The penalty provision reveals a legislative intention that those who traffic in illicit drugs may be subject to heavy penalties."

1. I adopt with respect what was said by Porter J as the learned sentencing judge in Stebbins (above):

"It is perhaps well-known, but it needs to be restated that amphetamine use in the community is extremely costly in human or personal terms, and in economic terms. The drug causes much disruption in the community. Addiction is a health issue. Addiction leads to the commission of crime for funding. Use of the drug is often responsible for violence, some of which is dealt with by the courts, some of which is unseen and undetected. Police and emergency service resources are often involved in dealing with the consequences of its use and abuse."

1. The appellant, Lai Le, appeals against a sentence of 23 months' imprisonment with a non-parole period of 11½ months, imposed on him by Blow CJ on 3 July 2017.
2. The sole ground of appeal is that the sentence is manifestly excessive in all the circumstances. No specific error is asserted in the notice of appeal. To establish such a ground of appeal it must be shown that the severity of the sentence is such that the sentence is "unreasonable or plainly unjust so as to give rise to the inference that there has been a failure to properly exercise the discretion". See Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31], per Porter J. See also Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J.

1. Mr Le pleaded guilty to a charge of trafficking in a controlled substance, methylamphetamine. He also pleaded guilty to four summary charges which were described by the learned sentencing judge as:

• A charge of using Ice.
• A charge of possessing the taser, which constitutes a firearm for which a licence may not be issued.
• A charge of possessing the ammunition when he was not the holder of an appropriate firearm licence."

1. On passing sentence, the learned judge set out succinctly the circumstances of the offending as follows:

"Mr Le came to the attention of police officers on 27 November 2015 when he was driving a stolen car through the streets of Hobart. Police officers searched the car and a room in which Mr Le had been staying at the Wrest Point Casino Hotel. They found quantities of crystal methylamphetamine, tick sheets recording drug debts owed to him, $3,196.55 in cash, some glass Ice pipes, a quantity of empty snaplock bags, 12 rounds of Colt .45 ammunition, a taser, a knife in the driver's door of the vehicle, a blowtorch, and a set of scales. Mr Le was interviewed by police officers. He admitted that he had been selling Ice. He told the police that he had been in Tasmania for a month, and had been staying with his mother for some of that time. If all that he told the police was true, his sales of the drug in Tasmania would have amounted to about $27,300. He also told the police that he had attempted to acquire more of the drug, without success, and that he was using about two grams of it per day himself."

1. Counsel for the respondent accepts that the following matters as set out in the outline of the appellant's contentions applied to Mr Le:

"20 The Appellant was aged 30, and moved to Australia from Vietnam at age 19. His upbringing was difficult, primarily due to the breakdown in relationship between his mother and father, which saw the Appellant placed in the sole custody of his father at age 9. This brought an end to his formal education and he was exposed to violence, alcohol and gambling (T10 at 5-20).

1. The Appellant's mother moved to Australia, and the Appellant joined her in 2007. He learned English and worked at the Hotel Grand Chancellor. He had a support network established, which broke down when his mother's second marriage failed. This had a significant social impact on the Appellant (T10 at 25-30).
2. The Appellant is married, and he and his wife relocated to Melbourne in 2015 following the Appellant having difficulties in Tasmania related to drug use. These issues continued in Melbourne and the Appellant became [sic] to use methylamphetamine and gambled significantly. This cycle of drugs and gambling saw him in debt of approximately $5000, with no prospects of repayment (T10 at 35-40).
3. The Appellant and his wife were threatened as a result of this debt, and the Appellant returned to Tasmania and began to sell drugs (T11 at 5). He also began to use methylamphetamine in vast quantities, and became significantly addicted to it (T 11 at 20)
4. After initial denials, the Appellant made full admissions in his police interview (T11 at 30)"
5. I accept the submissions of counsel for the respondent that the mitigating factors were not of such weight to displace the need to take into account personal (specific) and general deterrence. It is relevant that Mr Le made admissions about the sale and use of drugs. But the admissions occurred after initial denials and followed a police search of his hotel room and two police searches of a motor vehicle used by him. The guilty plea was not an early one. The indictment was filed on 10 October 2016 but the guilty plea was not entered until 15 May 2017. Mr Le continued to offend while on bail for these crimes and did not desist from attempting to acquire more drugs between his arrest and the sentencing hearing.

1. Mr Le was, in part, involved in a money making exercise. He sourced 28 grams of methylamphetamine and sold about half that amount. He sold in a moderate quantity (including his most recent sale of 3.5 grams) and sold to a number of buyers. Mr Le attempted to acquire more of the drug but was not able to contact his supplier. Additional amounts of the drug were located in his hotel room and in the vehicle. Mr Le acted alone in sourcing the drugs, transferring money, receiving the drugs and selling part of them.

1. There is a wide range of conduct that can constitute the crime of drug trafficking so the sentencing range is necessarily a wide one.
2. Counsel for Mr Le submits that an analysis of sentences for trafficking methylamphetamine shows that the sentence of 23 months' imprisonment is at the highest end of the scale for crimes of a similar nature. Those sentences referred to by counsel exclude instances of trafficking in which the value alleged is significantly higher than in Mr Le's case. Counsel referred to one other case which did not involve a large-scale commercial operation and where a similar sentence was given to Mr Le's sentence. That case was Imlach, 18 August 2017. Imlach involved a higher amount of money and a defendant who had prior convictions. Mr Imlach was sentenced to a term of imprisonment of 20 months. The circumstances of the offending were more significant in Imlach, but the head sentence was three months less than Mr Le's.
3. Counsel for the respondent referred to six matters heard between July 2013 and July 2017 involving methylamphetamine where sentences ranging from 20 months to 4½ years were imposed, depending on a range of factors, including prior convictions. Counsel for the respondent submitted that Mr Le distributed "not insignificant amounts of methylamphetamine in the community". The offending ceased only after detection by police.
4. The sentencing judge considered that "the only appropriate penalty is a substantial period of imprisonment", due to the scale of Mr Le's trafficking operation. Although it was a moderate scale operation over a three-week period, it was, in part, designed to make Mr Le a profit.
5. Although the sentence imposed on Mr Le may be seen as at the higher end of the range for the crimes involved, given the importance of specific and general deterrence and denunciation in the sentencing process, I do not consider that the sentence imposed was plainly unjust or unreasonable. It cannot be said to be outside the appropriate range of sentences imposed for the crimes. Given the insidious effects of methylamphetamine in the community, a sentence was required to be imposed to deter others from similar offending and to deter Mr Le who engaged in further offending when on bail.
6. For the foregoing reasons the appeal should be dismissed.