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[2021] VSCA 58
General information, not legal advice.
Court of Appeal (Vic)
2021-03-17
Ferguson CJ, Beach JA
Original judgment source is linked above.
[2019] VCC 2004 (Judge Allen)
CRIMINAL LAW - Sentence - Appeal - Application for extension of time within which to seek leave to appeal - Trafficking drug of dependence in a commercial quantity - Sentence of 7 years on commercial quantity drug trafficking charge - Co-offender sentenced to 7 years for trafficking drug of dependence in a large commercial quantity - Parity - Whether principles of parity infringed - Different roles of offenders - Different personal circumstances - Different circumstances of offending - Parity complaint not reasonably arguable - Extension of time futile - Application refused.
1 The applicant pleaded guilty in the County Court to one charge of trafficking a drug of dependence in a commercial quantity, and one charge of being in possession of a traffickable quantity of firearms. On 25 November 2019, following a plea hearing, the applicant and five co-offenders, including one Chinh Khiem ('Khiem') were each sentenced in respect of the offences to which they had pleaded guilty. The applicant was sentenced as follows:
Trafficking in a drug of dependence in a commercial quantity
Trafficking in a drug of dependence in a large commercial quantity
3 On 18 May 2020, the applicant filed an application for an extension of time within which to file an application for leave to appeal against his sentence. The proposed ground of appeal which the applicant wishes to argue is:
(a) the parity principle was engaged;
(b) Khiem's offending warranted a higher sentence than did the applicant's offending on charge 1;
(c) it was not reasonably open to sentence the applicant on charge 1 to the same sentence that was imposed on Khiem;
(d) that the applicant's sentence on charge 1 was the same as Khiem's sentence reflected error in the application of the parity principle, and produced a legitimate and justifiable sense of grievance in an objective observer.
4 The application for an extension of time is opposed by the respondent. The respondent submitted that the applicant's delay (approximately 4 months), while not appearing to be as a result of any fault on the part of the applicant, is not well explained. The respondent also submitted that the proposed appeal lacked sufficient merit to justify an extension of time being granted.
5 The applicant was a member of a group of offenders who were the subject of an investigation (Operation Seadragon) conducted during 2016 and 2017 by detectives of the Victoria Police drug taskforce. The offenders were related to one another in a number ways, by reason of the various forms of drug trafficking in which they were involved at a variety of levels.
6 The evidence revealed that the main supplier of illicit drugs to the group was an American citizen, Yuk Piu Lok ('Lok'). The members of the group who were identified as being actively involved in the trafficking of drugs in Victoria included the applicant, Tuan Van Pham ('Pham'), Loan Lo ('Lo'), Tien Dat Nguyen ('TD Nguyen'), Huong Nguyen ('H Nguyen') and Khiem. Lo and TD Nguyen were the most active members of the group, and the main facilitators of the purchasing of drugs from Lok.
7 The applicant, an Italian national, came to Australia in 2012. At the time of the police investigation, he was on a temporary work visa.
8 Charge 1 related to the applicant's trafficking of cannabis, cocaine, MDMA, amphetamine, MDA and methylamphetamine in an aggregate quantity, being a combination of 760 grams of drugs other than cannabis and 4.3 kilograms of cannabis. The trafficking charge included the sale of these drugs to various purchasers between 8 October 2016 and the applicant's arrest on 27 February 2017. The charge also encompassed the applicant's indirect involvement in the manufacture of methylamphetamines by Pham, as well as the applicant's possession, or joint possession, of various quantities of drugs located at his apartment at the time of his arrest.
9 The case against the applicant was that he primarily worked with Pham, effectively acting as his salesman. He also had contact with various other co-offenders, including Lo.
10 The applicant's primary role was to assist in the sourcing of drugs, and to sell those drugs from two apartments where he lived in the city, and at other locations. Those drugs were sold to both the applicant's customers and to Pham's customers.
11 The applicant also provided assistance to Lo, after H Nguyen had been arrested on 11 December 2016, by moving drugs from the city apartments. He also provided assistance to Lo, by collecting amphetamines that had been manufactured by other members of the group, after the arrest of H Nguyen.
12 Telephone intercepts revealed that the applicant and Pham often discussed drug stock levels, drug quality, and the need to source or sell more drugs to a large number of customers who would attend at the two apartments in the city, as well as to other customers. The telephone conversations that were intercepted, and SMS messages passing between the applicant and Pham, disclosed that the drugs that were being trafficked included methylamphetamine, amphetamine and cocaine in large quantities.
13 On 27 February 2017, police executed search warrants at Pham's apartment and the applicant's apartment in the city. Inside the applicant's apartment, a large quantity of drugs were found: 61.1 grams of cocaine, 100.1 grams of MDMA, 55.4 grams[1] of fluoroamphetamine,[2] 64.8 grams of MDA and 15.5 grams of methylamphetamine. In addition to these drugs, police located two firearms: a homemade general category .22 handgun and a general category sawn-off .22 rifle handgun. The firearms were found hidden in a suitcase in a bedroom cupboard. The applicant was arrested.
14 On the same day, police executed a search warrant at an address in St Kilda. This was the address to which the applicant had been observed taking the suitcase on 11 December 2016, following the arrest of H Nguyen. At that address, the police located 4.3 kilograms of cannabis. The applicant's trafficking of those drugs was part of the offending constituting charge 1.
15 The charge to which Khiem pleaded guilty (trafficking in a drug of dependence in a large commercial quantity) involved two distinct transactions: the first of which occurred on 9 November 2016; and the second of which occurred on 11 December 2016. Khiem's involvement in these transactions was at the request and direction of Lo, with whom he was in a relationship.
16 In relation to the first transaction, on 9 November 2016, Lo and H Nguyen travelled to Sydney and collected what Lo believed to be 12 kilograms of fluoroamphetamine. They travelled back to Melbourne by overnight bus with a bag containing those drugs. They arrived at Spencer Street on the morning of 10 November.
17 Lo had arranged with Khiem to pick her up from the bus station. He had told her to call him when they arrived in Melbourne, and she did. Khiem picked up Lo and H Nguyen from the Southern Cross bus terminal, and drove them to an address in the city, where Lo and H Nguyen were then residing.
18 With respect to the second transaction, on 10 December 2016, at the request and direction of Lo, H Nguyen travelled to Sydney by plane. By arrangement with Lo, Khiem picked up H Nguyen from the airport and then travelled to an airport hotel.
19 Later that day, Khiem checked H Nguyen into a hotel that had been booked by him at Lo's request. The reason behind this booking was Lo's concern about the risk posed by H Nguyen wandering around the streets of Sydney unsupervised. Khiem booked the hotel in his own name, and used his own credit card to pay for it. At that hotel, he delivered to H Nguyen what was believed to be 15 kilograms of fluoroamphetamine in a suitcase, which he had picked up, at Lo's request and direction, from another location.
20 The judge commenced his reasons for sentence with an overview of the offending, before turning to the individual circumstances of the relevant individuals.[3] The judge then summarised the applicant's offending.[4] The judge said that it was to the applicant's credit that he had offered to plead guilty in March 2018, and that he had taken this into account.[5] The judge said that trafficking in drugs of dependence was a very serious crime, particularly when it involved a commercial quantity.[6] He also said that the applicant's trafficking represented a serious example of this offending:
It is serious for a number of reasons. Your drug-trafficking activities were conducted over a significant period of time. You were directly involved in selling a wide range of drugs to a large number of people. You did that for the purpose of making money to ease your financial difficulties, which I note were in part due to your own addiction to drugs.[7]
21 The judge identified the following matters in mitigation:
22 The judge then summarised the applicant's personal circumstances, noting that the applicant was 31 at the time of sentencing, was very well educated but had suffered from an addiction to methylamphetamine which had aggravated underlying symptoms of depression and anxiety.[12]
23 The judge accepted the applicant's counsel's submission that the applicant had excellent prospects for rehabilitation, saying that it was unlikely that the applicant would ever be tempted to engage in offending of the present kind again.[13]
24 After sentencing the applicant, the judge then turned to Khiem. The judge noted that Khiem had 'two prior matters' - saying that those previous crimes were committed nearly 20 years ago when Khiem was in his late teens and addicted to heroin.[14] The judge accepted Khiem's counsel's submission that 'those prior convictions have very limited, if any, relevance in determining the appropriate sentence that should be imposed'.[15]
25 The judge described Khiem's offending.[16] In relation to the first transaction, the judge said that what Khiem did 'could have been done by an Uber driver, or a taxi driver'.[17] He said that it was also important that Khiem was not paid or offered to be paid anything for what he did on that day.[18] As the judge put it:
[Khiem] did not stand to make any profit in the sale of the drugs that had been brought from Sydney to Melbourne. [He was] simply doing Ms Lo a favour at her request.[19]
26 In relation to the second transaction, the judge described Khiem's involvement as 'more extensive and culpable'.[20] However, the judge also observed that there was a lack of sophistication in Khiem's offending - Khiem having booked the hotel in his own name and used his own credit card to pay for it.[21] The judge also noted that when H Nguyen was apprehended, and the suitcase seized, it was found to have a bag inside, with a luggage tag on it with Khiem's name still attached.[22]
27 The judge noted that, when interviewed by police, Khiem explained that Lo was his girlfriend and said that is how he became involved in 'this serious drug trafficking activity'.[23] The judge also noted that Khiem, like the applicant, had pleaded guilty at an early stage, although, as the judge noted, Khiem fell to be sentenced for the more serious charge of trafficking a large commercial quantity.[24]
28 The judge observed that most people charged with the offence with which Khiem was charged were either financially involved in a scheme designed to make them money, or drug users who became involved in order to support their own habit. The judge said that Khiem was 'part of the much smaller group', who became involved by reason of a relationship.[25]
29 The judge then summarised Khiem's personal circumstances, noting that he had become addicted to heroin as a teenager, but had qualifications in the IT field, and in late 2016 had obtained employment as a real estate agent, where he was highly regarded.[26] The judge recorded Khiem's counsel's submission that, 'unfortunately ... [Khiem was] quite fatally attracted to Ms Lo'.[27]
30 The judge accepted a submission made on Khiem's behalf that the role of an offender is extremely important in determining culpability and an appropriate sentence. He also accepted the prosecutor's submission that weight was a significant factor. In addition, he referred to 'profit to be gleaned', 'duration of involvement' and 'level of involvement' as being significant factors.[28] He went on to say:
But I accept that in a case such as this, your limited role ought not be swamped by the weight of the substance that was involved.[29]
31 Next, the judge referred to Khiem's time in custody (which was the same as the applicant's). The judge said that Khiem had been, 'in every way, a model prisoner'.[30] The judge described Khiem as having enrolled in numerous courses and conducted himself admirably at all times and, like the applicant, he had been appointed to positions while on remand, because of his status as a model prisoner.[31]
32 The judge noted the prosecutor's concession that Khiem's role was limited in duration and limited to two transactions. He said that, 'relatively speaking', Khiem's involvement in planning was minimal, saying that Khiem basically accepted the instructions that he had been given 'and carried out some minimal planning' (booking accommodation, arranging travel from point A to point B, and collecting and delivering the substance in question).[32]
33 The judge noted, however, that one of the most significant factors in Khiem's case was the weight of the drugs involved, which was 'nearly 26 times the threshold for a large commercial quantity' - 'a massive amount of drugs'.[33]
34 The judge described Khiem's prospects of rehabilitation as 'excellent', saying that he accepted that Khiem was 'genuinely and deeply motivated' to ensure that he never found himself in the dock again.[34]
35 The judge then addressed the issue of parity between Khiem and H Nguyen.[35] He said, however, that Khiem's role was 'so different in so many ways in terms of its extent and duration and motivation that the principles of parity have limited application'.[36] He then dealt more generally with any sense of grievance that other co-offenders might have in relation to disparity, saying:
The risk of others being left with a sense of grievance by any disparity is dealt with by them understanding the unusual and peculiar nature of your involvement in trafficking in a large commercial quantity.[37]
36 At the commencement of the hearing in this Court, the applicant applied to add a further proposed ground of appeal as follows:
1A In all the circumstances:
(a) the sentence imposed on the applicant in respect of charge 1 (trafficking in not less than a commercial quantity of a drug of dependence); and
(b) the sentence imposed on his co-offender [Pham] in respect of charge 1 (trafficking in not less than a large commercial quantity of a drug of dependence)
gives rise to a justifiable sense of grievance.
37 As we have already noted, Pham was a co-offender of the applicant, and one of the offenders charged as a result of Operation Seadragon.
38 The judge described Pham as being 'closely associated' with the applicant.[38] Pham's offending involved the manufacturing of drugs, not only in conjunction with Lo and TD Nguyen but, as the judge put it, also to some extent on his own behalf and to some extent in order to supply both himself and the applicant with drugs to traffick.[39]
39 Pham was charged with trafficking in a drug of dependence (fluoroamphetamine) in a large commercial quantity (charge 1), trafficking in a drug of dependence (methylamphetamine) in a commercial quantity (charge 5) and trafficking in a drug of dependence (cocaine) (charge 8). He pleaded not guilty to charge 1, but guilty to charges 5 and 8. After a trial in which he was convicted on charge 1, he was sentenced on 12 March 2020[40] as follows:
Trafficking in a drug of dependence in a large commercial quantity
Trafficking in a drug of dependence in a commercial quantity
40 Without ruling on the amendment application during the course of the hearing, we permitted the applicant to advance whatever submissions he wished to make in respect of proposed ground 1A - saying that we would rule on the amendment application in these reasons.
41 In his written case, the applicant contended that, while the application of the parity principle had to accommodate differences between the applicant's offending and Khiem's offending, the parity principle still had work to do. It was submitted that the fact that the applicant was sentenced on charge 1 to the same sentence which was imposed on Khiem (seven years) gave rise to sentencing error in circumstances where:
(1) Khiem pleaded guilty to trafficking in a drug of dependence in a large commercial quantity, whereas the applicant pleaded guilty to trafficking in a drug of dependence in a commercial quantity.
(2) The judge made an order declaring Khiem to be a serious drug offender, while the applicant was not subject to any such declaration.[41] In oral argument, however, this submission was abandoned.
(3) The maximum penalty that applied to Khiem's offending was life imprisonment, whereas the maximum penalty that applied to the applicant's offending was 25 years.
(4) Khiem trafficked drugs totalling almost 26 times the large commercial quantity, whereas the applicant trafficked drugs totalling 1.744 times the commercial quantity.
(5) Khiem had relevant prior convictions, whereas the applicant had no criminal record.
(6) Khiem was not confronting deportation, whereas the applicant confronts the prospect of deportation - which the sentencing judge accepted gave rise to significant hardship.
42 In his written case, the applicant submitted that while it was not necessary to identify why the sentencing court fell into error, two errors in relation to the judge's sentencing of Khiem were relevant: first, it was contended that the judge had overlooked a conviction Khiem had for offending in 2009; and secondly, it was submitted that the judge failed to make express reference to Khiem's engagement in discussions with Lo in October 2016 about whether a particular drug would sell, how to transport drugs and a potential purchaser who Khiem 'hoped would take 10 kilograms'.[42] In oral argument, however, the first of these two complaints was abandoned.
43 Turning to Pham's sentence, the applicant noted the following similarities:
44 As to differences between the applicant and Pham, the applicant noted:
45 While the applicant conceded that there was a difference between his circumstances and Pham's circumstances that worked in Pham's favour - Pham's more limited contact with family while in custody - it was contended that this factor did not justify the imposition of the lesser sentence of six years on charge 1 for Pham, than the sentence of seven years imposed on the applicant on his charge 1.
46 In response to the applicant's contentions, the respondent submitted that the lack of disparity complained of by the applicant was justifiable in all the circumstances. The judge, it was contended, 'dealt directly with this very issue in his sentencing reasons for the offender Khiem'. The respondent submitted that it was open to the judge to make findings that Khiem's offending, and Khiem's reasons for it, were unusual.
47 The respondent contended that the judge made an assessment of the criminality of each offender in the context of all of the relevant matters, including the applicable maximum penalties. Having made that assessment, it was open to him to differentiate between the applicant and Khiem in the way that he did, thus arriving at comparable sentences despite the higher maximum penalty to which Khiem was exposed.
48 Similarly, the respondent submitted that when all of the circumstances of the applicant and Pham, and the circumstances of their offending, were properly analysed there was no basis for a contention that the applicant's sentence infringed principles of parity.
49 The principles governing parity are well known. They were conveniently summarised by this Court in Anthony v The Queen,[43] as follows:
As has been said before, equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a 'marked' or 'manifest' disparity between sentences which gives rise to a justifiable sense of grievance on an appellant's part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in a way in which he or she did. Where an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[44]
50 It should immediately be observed that while the applicant and Khiem were part of the group that was the subject of the investigation known as Operation Seadragon, and there were connections between them, the underlying facts of the offences to which they pleaded guilty were quite different. In the circumstances, the question of parity (or in this case, the complained lack of disparity) is of more limited relevance than it might be in a case involving offenders who had committed the same offences.
51 That said, we see no arguable basis for the contention that there was an erroneous lack of disparity between the sentences imposed on the applicant and Khiem so as to show that the sentencing discretion in respect of the applicant miscarried.
52 The judge explained, in careful and detailed reasons, why Khiem received a sentence that, in other circumstances, might have been seen as excessively lenient. True it is that the weight of the drugs in Khiem's case was an order of magnitude greater than the weight of drugs in the applicant's case. Weight was, however, as the judge explained, only one of the relevant factors in sentencing for these offences.
53 When one examines all of the circumstances of the offending in each case, and the personal circumstances of each offender, far from being persuaded that there was some erroneous lack of disparity between the sentences, it seems to us that it was well open to the judge to impose the same or similar sentences on each offender. Both offenders pleaded guilty to very serious drug trafficking offences.
54 While the weight of drugs involved in Khiem's offending was substantially greater than the weight of drugs involved in the applicant's offending, the applicant's role in his offending (and the duration of that offending) was substantially greater and more serious than Khiem's role and the duration of his offending. We would echo what the judge said in sentencing Khiem that the risk of others being left with a sense of grievance about parity (or lack of disparity) between Khiem's sentence and any other sentence, 'is dealt with by them understanding the unusual and peculiar nature of [Khiem's] involvement' in the offending to which he pleaded guilty.[45] Moreover, notwithstanding that Khiem pleaded guilty to a charge that carried a term of imprisonment of life and had prior convictions, whereas the applicant pleaded guilty to a charge with a 25 year maximum and had no criminal record, we think that the significant differences in their roles and the circumstances of their offending well permitted the judge to impose, as he did, the same sentence on each offender for the drug trafficking charges to which they pleaded guilty.
55 We turn now to the applicant's proposed ground 1A. On its face, a sentence of six years for large commercial quantity drug trafficking by a person 'at a higher level', following a plea of not guilty, is not easy to reconcile with a sentence of seven years for commercial quantity drug trafficking by a person at some lower level than the first offender, following a plea of guilty by that person. The issue, however, is resolved by recognising that the sentence imposed on Pham was 'inappropriately low'.[46] As this Court[47] said in Director of Public Prosecutions (Cth) v Peng:[48]
The approach required where the co-offender's sentence is inappropriately low is different. A sentence that is manifestly inadequate will require that a co-offender's sentence be placed toward the lower end of the range of sentences that are available. But a sentence that is viewed as excessively lenient cannot justify the reduction of a co-offender's sentence to one that is inappropriately low. As Neave and Weinberg JJA recently concluded in Taleb v The Queen, based on their review of the relevant decisions of this Court:
[T]he avoidance of an unjustifiable disparity between the sentence imposed on an appellant and a co-offender may require the reduction of the appellant's sentence to a level which might otherwise be regarded as at the bottom end of the range, but not to the point where the offender's sentence is wholly inappropriate or outside the range.[49]
56 In our view, the sentence imposed on the applicant in this case was toward the lower end of the range of sentences that were available. The excessively lenient sentence on Pham cannot justify a further reduction of the applicant's sentence to one that would, itself, be inappropriately low. For the sake of completeness, we would also say that even if we were persuaded that Pham's sentence created a parity problem with respect to the applicant's sentence, there is no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed, or reduce the applicant's total effective sentence.[50]
57 The applicant's proposed grounds of appeal are not reasonably arguable. In the circumstances, it would be futile to allow him to amend his application to rely upon proposed ground 1A, or to grant him the extension of time which he seeks. The application to amend and the application for an extension of time will be refused.
[1] While the judge's reasons referred to 54.4 grams, the summary of prosecution opening on the plea referred to a figure of 55.4 grams.
[2] While the summary of prosecution opening on the plea also referred to this drug as 'amphetamine' (leading the judge to so describe it in his reasons for sentence), during the course of the hearing we were told that this was a mistake and the drug was in fact fluoroamphetamine. That said, no issue was taken in this Court in relation to this misdescription.
[3] DPP v Nguyen [2019] VCC 2004, [1]-[13] ('Reasons').
[40] DPP v Pham [2020] VCC 257.
[41] See s 89DI of the Sentencing Act 1991.
[42] Although it was accepted by the applicant that the judge had made implicit reference to these matters when he referred to a document tendered on the plea entitled 'Summary of involvement and Role': Reasons [65].
[44] Ibid [12]. The Court referred to Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; R v Postiglione [1997] HCA 26; (1997) 189 CLR 295; Green v The Queen [2011] HCA 49; (2011) 244 CLR 462; Hilder v The Queen [2011] VSCA 192, [38]-[39]; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97, [24]-[25]; Collins v The Queen [2015] VSCA 106, [23].
[46] See Farrugia v The Queen [2011] VSCA 24; (2011) 32 VR 140, 147-8 [31].
[47] Nettle and Redlich JJA, Priest JA agreeing.
[49] Ibid [36] (citations omitted). See further, Taleb v The Queen [2020] VSCA 329, [26].
[50] See s 280(1) of the Criminal Procedure Act 2009.
Marchei
The Queen [2021] VSCA 58
(1984) 154 CLR 606
(1997) 189 CLR 295
(2011) 244 CLR 462
(2011) 32 VR 140