Mong v The Queen [2015] VSCA 33

1 On 17 April 2013, the applicant pleaded guilty to a charge that between 1 December 2009 and 12 August 2010 he trafficked in a drug of dependence namely diacetylmorphine (heroin) in a quantity that was not less than the large commercial quantity applicable to that drug of dependence (trafficking in a drug of dependence - large commercial quantity contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981). Following a plea hearing on 23 August 2013, the applicant was sentenced on 22 November 2013 as follows:

Trafficking in a drug of dependence - large commercial quantity [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71]

Life imprisonment [Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71]

2 The applicant seeks leave to appeal against his sentence on the following grounds:[1]

Manifest excess

1. The head sentence of 11 years 6 months is manifestly excessive.

2. The non-parole period of 8 years 6 months is manifestly excessive.

1. The statement under s. 6AAA of the Sentencing Act of a head sentence of 15 years is manifestly excessive.
2. The statement under s. 6AAA of the Sentencing Act of a non-parole period of 12 years is manifestly excessive.
3. The Learned Sentencing Judge failed to adequately take into account and give sufficient weight to the age of the Applicant.
4. The Learned Sentencing Judge failed to make, or failed to make adequately, a finding as to the hierarchy of the relevant offenders who were party to the joint enterprise.
5. The Learned Sentencing Judge failed to make, or failed to make adequately, a finding as to the Applicant's position in the hierarchy.
6. The Learned Sentencing Judge erred in deciding that 'it is neither possible nor productive to determine with mathematical precision your role vis-à-vis that of Chi Tu and Chi Ba'.
7. The Learned Sentencing Judge failed to adequately take into account and give sufficient weight to the fact that the Applicant's role in the hierarchy was significantly lower than Chi Tu and Chi Ba.
8. The Learned Sentencing Judge failed to give adequate weight to the findings as to comparatively personal benefit derived by the Applicant.

3 The circumstances of the applicant's offending may be summarised as follows.

4 The applicant was a senior member of the heroin trafficking enterprise managed by Chi Tu and Chi Ba. He was in a de facto relationship with Chi Tu. His primary role was sourcing and arranging the purchase of heroin from suppliers. A conservative calculation of the quantity of heroin sold by the enterprise is 11.1 kilograms.

5 The applicant worked with both Chi Tu and Chi Ba to source heroin from suppliers. He had almost daily contact with suppliers. Chi Tu and Chi Ba would then re-package the heroin by 'cutting' it and re-packing it into smaller amounts for sale. The sales aspect of the enterprise was separated into two parts. Chi Tu ran one side, assisted by the applicant, while Chi Ba and her husband, Thanh Hai Pham, ran the other. The two sides sometimes shared the purchased heroin between each other.

6 The applicant arranged the purchases of heroin made by Chi Tu and himself, with Chi Tu providing advice and funds.

7 During the first part of the charge period Chi Tu used a flat in Lygon Street, Carlton, to do the cutting and packaging of heroin. The flat was also used to store drugs and money derived from the sale of drugs. It was searched by police on 29 April 2010 and they seized 1.67 kilograms of heroin, $595,000 cash and $50,000 in casino gambling chips. After that seizure, Chi Tu used other houses to store and cut the drugs, including her own in Hope Street, Brunswick, where her children lived, and her sister Sau Thi Le's house in Lahy Street, St Albans. The applicant went to the Hope Street house on many occasions to collect drugs or deliver money.

8 Chi Tu sold drugs out of the flat that she lived in with the applicant in Napier Street, Fitzroy. The applicant would not conduct transactions with purchasers who came to the flat, but would refer them to either Chi Tu, or her younger brother and his wife who also lived in the flat. The applicant personally sold heroin in one-ounce lots on a regular basis to his friend and associate, Thanh Van Dinh.

9 A conservative calculation of the amounts of heroin sold by each aspect of the joint enterprise were:

• in excess of 1.1 kilograms from the Napier Street flat;

• 7.89 kilograms by Chi Ba's side of the business.

10 On 12 August 2010 the police carried out a series of arrests and searches. They seized a total of $123,332 cash, $1,780 in casino gambling chips and jewellery valued at $292,735 from the Napier Street flat where the applicant lived with Chi Tu. Further cash, casino gambling chips and jewellery worth $1,089,555 in total was seized from Chi Tu's house in Hope Street, Brunswick.

11 The applicant was interviewed by the police and denied any involvement in drug trafficking. He claimed he did not know anything about drug dealing from the Napier Street flat. He initially denied knowing where the Lygon Street flat was, but later amended that and said that he thought he had probably been inside there once with Chi Tu. He said that Mr Dinh was his employer as well as his friend and he had not given him drugs.

12 The applicant was 63 years of age at the time of sentencing. The applicant lived in Vietnam until 1978, when he came to Australia via Malaysia. He has three adult children and previously worked in the restaurant industry for many years.

13 In August 2001, the applicant was sentenced in the County Court to a total effective sentence of 14 years with a non-parole period of 11 years in respect of three counts of trafficking heroin. In December 2002, this Court quashed one of those convictions and re-sentenced the applicant to a total effective sentence of nine years' imprisonment with a non-parole period of six and a half years.[2]

It is not in dispute that you must be sentenced to a lengthy term of imprisonment and that your re-offending so soon after completing your parole on a similar offence heightens your culpability and the need to impose a sentence which reflects both general and specific deterrence.

Your counsel, ..., emphasised that although you were an indispensable component of a broader enterprise, there was no evidence that you personally derived a profit or gained any substantial benefit from the trafficking enterprise controlled by Chi Tu and Chi Ba.

[Your counsel] accepted that you are properly characterised as a senior manager but submitted that your position in the hierarchy was significantly below that of Chi Tu and Chi Ba.

I accept that there is no evidence of you deriving great benefits from the large profits generated by the heroin trafficking enterprise. The evidence of personal financial gain is confined to your cash purchase of a $20,000 car in June 2010. In my view, it is neither possible nor productive to determine with mathematical precision your role vis-à-vis that of Chi Tu and Chi Ba. The evidence clearly discloses that you were a most senior manager in the joint criminal enterprise, familiar with and contributing to its daily operation, and assisting in particular with the sourcing of significant quantities of heroin for the purposes of cutting, repackaging and on-sale.[3]

15 In order to succeed on an appeal against the sentence imposed, the applicant must establish error in the sentence imposed and that a different sentence should be imposed.[4] Further, this Court may refuse an application for leave to appeal if there is no reasonable prospect that a less severe sentence would be imposed than the sentence first imposed.[5] In our view, no different sentence should be imposed on the applicant. The sentence imposed by the judge was entirely appropriate for the reasons given by him. If anything, the sentence might be regarded as merciful (no doubt this can be explained by the applicant's age at the time of sentencing).

16 This was extremely serious criminal conduct, committed by an applicant with a very significant prior conviction for the same type of conduct. The applicant's adverse criminal record in respect of trafficking heroin bears upon the applicant's prospects for rehabilitation, the applicant's dangerous propensity, the community's need for protection and the increased importance of specific deterrence as a sentencing factor.[6]

17 It follows from our conclusion that the sentence was entirely appropriate and that there is nothing in the applicant's complaints of manifest excess. Further, and in any event, we agree with the judge that in the circumstances of this case it was not productive to attempt to determine, with any greater precision than was determined by the judge, the applicant's role in the criminal enterprise vis-à-vis the roles of Chi Tu and Chi Ba.

18 In additional support of his contention that the sentence imposed upon him was manifestly excessive, the applicant relied upon this Court's decision in R v RLP.[7] R v RLP was a case involving the sentencing of a 77 year old man for multiple sex offences to a total effective sentence and non-parole period greater than those imposed upon the applicant in the present case. Having regard to the differences between the ages and physical conditions of the applicant and RLP, the applicant obtains no assistance from the reasoning in R v RLP so far as this application is concerned.

19 Finally, it avails the applicant nothing to complain about the judge's s 6AAA statement. That is not a sentence or order from which there can be an appeal. The s 6AAA statement says nothing about the appropriateness or otherwise of the sentence actually imposed.[8]

[1] Originally the applicant relied upon additional grounds of appeal based upon the High Court's decision in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 88 ALJR 372 (delivered after the applicant was sentenced by the judge). However, at the hearing of this application, the applicant abandoned these grounds because of this Court's subsequent decision in Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291: see in particular [19], [21] and [139] (Warren CJ, Nettle and Redlich JJA), [154] and [161] (Priest JA and Lasry AJA) .

[2] R v Mong [2002] VSCA 203; (2002) 5 VR 565.

[3] R v Mong (Unreported, County Court of Victoria, Judge Taft, 22 November 2013) [15]-[18].

[4] Criminal Procedure Act 2009, s 281.

[5] Ibid s 280.

[6] R v O'Brien and Gloster [1997] 2 VR 714, 718.

[7] (2009) 213 A Crim R 461.

[8] R v Burke [2009] VSCA 60; (2009) 21 VR 471, 477 [30]-[31] (Maxwell ACJ, Redlich JA and Vickery AJA).