Nguyen v The Queen [2012] VSCA 297

CRIMINAL LAW - Sentence - One charge of conspiracy to commit the offence of importing a marketable quantity of a border controlled drug and one charge of attempting to possess a marketable quantity of an unlawfully imported border controlled drug - Sentenced to 5 years and 3 years imprisonment respectively, with two years of the latter sentence to be served cumulatively, giving an aggregate sentence of 7 years' imprisonment - Whether manifestly excessive - Whether double punishment - Parity - Appeal dismissed.

1 It is not a rule known to the law, still less to science. But all are aware of its substantial truth. One of the more disconcerting lessons of life is that, if it is possible for something to go weirdly wrong, it probably will. All that is generally needed is time. This case illustrates the point.

2 A guilty plea is normally followed in a seamless way by a plea and sentence. Occasionally, the plea will be withdrawn by permission of the court. If, for example, it was entered at a time when, through no fault of the accused, he or she was under a material misapprehension and it would be unjust to require the plea to stand, permission for its withdrawal will be given.[1] And, if the plea is to an offence which is unknown to the law, the court will (of its own motion, if necessary) direct that a plea of not guilty be entered.

3 This case is quite different to either of the examples given above. Indeed, this case is so highly unusual that it may be unique.

4 In this case, the appellant had initially been charged with one charge of conspiracy to commit the offence of importing a marketable quantity of a border controlled drug and one charge of attempting to possess a marketable quantity of an unlawfully imported border controlled drug. In each instance the drug was heroin. In each instance, too, the offence was indictable and could only be tried by a judge and jury. The appellant was, in due course, arraigned. He pleaded guilty to both charges.

5 The plea came on for hearing in the County Court on 13 September 2011. During the course of the hearing, the judge was informed that further charges were contemplated. They were described as being 'summary', and whenever it is convenient to do so we shall refer to them as such. At the request of the appellant, the hearing was adjourned while the Crown determined its position.

6 A prosecutorial decision was made. It was to charge the appellant with four additional charges: (a) making a false declaration under s 11 of the Statutory Declarations Act 1959 (Cth); (b) making a false or misleading statement in the course of obtaining an Australian passport under s 10(1)(a) of the Passports Act 1938 (Cth); (c) making a false or misleading statement in connection with the entry into Australia of a non citizen under s 234(1)(b) of the Migration Act 1958 (Cth); and, finally, (d) making a false or misleading statement in connection with a visa permitting a non citizen to remain in Australia under s 234(1)(b) of the Migration Act.

7 None of these are summary offences, although - inexplicably - both the prosecution and the defence thought they were.[2] They are - each of them - indictable, albeit triable summarily.[3] His Honour was nevertheless advised by counsel for the appellant that four 'summary' charges had been issued and served, and that the appellant consented to their being transferred from the Magistrates' Court to the County Court in what all parties, and (in the circumstances, understandably) the judge, thought was a process endorsed by s 243 of the Criminal Procedure Act 2009.

8 This section provides, so far as presently relevant, that the County Court may hear and determine a charge against an accused for a summary offence that is not related to an indictable offence properly before that Court if the accused consents and 'states an intention to plead guilty to the charge for the summary offence.'[4] There are thus three pre-conditions: first, a summary offence (unrelated to an indictable offence of which the Court is seized); secondly, the accused's intention to plead guilty to it; and, thirdly, his or her consent to the matter being dealt with by the County Court. If these preconditions are met, the summary offence 'is transferred from the Magistrates' Court to the ... County Court'.[5]

9 The appellant consented to the jurisdiction of the County Court. Furthermore, through his counsel, he duly pleaded guilty to each of the four additional offences. Two of the three pre-conditions for those offences being dealt with by the County Court in conjunction with the two indictable offences to which, when arraigned, the appellant had pleaded guilty, were thus met. The third, however, was not.

10 Unfortunately, neither the judge nor counsel realised that appearance did not match reality. None of the four additional charges were summary charges. All were indictable. It is true that they were triable summarily. But s 243 does not encompass this species of charge. Accordingly, none of them could legitimately be transferred from the Magistrates' Court; and, likewise, the County Court had no power to receive them except upon the basis that they were to be tried as indictable offences. This necessarily would entail their being put to the accused on arraignment and then, depending upon the plea, being dealt with either at a plea hearing or at a trial.

11 The appellant, however, was not arraigned on any of the four 'summary' charges. Rather, as permitted by s 63 of the Criminal Procedure Act, the judge was informed by the appellant's counsel that his client pleaded guilty to each of them[6] and that (as counsel had been told by his instructing solicitor) Popovic DCM had 'made the relevant order for transfer.'[7] On being so informed, the judge said that he 'formally approve[d] the transfer.'[8]

12 It was in those circumstances that, on 10 November 2011 the appellant was sentenced as follows:

Conspiracy to import a marketable quantity of a border control drug contrary to sub-s 11.5(1) and sub-s 307.2(1) of the Criminal Code 1995 (Cth)

Attempt to possess a marketable quantity of a border control drug contrary to sub-s 11.1(1) and sub-s 307.6(1) of the Criminal Code 1995 (Cth)

Making a false declaration (s 11 of the Statutory Declarations Act 1959 (Cth))

Making a false or misleading statement in the course of obtaining an Australian passport (s 10(1)(a) of the Passports Act 1938 (Cth))

Making a false or misleading statement in connection with entry into Australia of a non-citizen (s 234(1)(b) of the Migration Act 1958 (Cth))

Making a false or misleading statement in connection with a visa permitting a non-citizen to remain in Australia (s 234(1)(b) of the Migration Act 1958 (Cth))

13 On 16 May 2012 Harper JA granted leave to the appellant to appeal against his conviction on the ground that:

The learned trial judge erred in that he exceeded his jurisdiction by convicting the appellant of charges for indictable offences which had been purportedly transferred from the Magistrates' Court pursuant to s 243 of the Criminal Procedure Act 2009 (Vic), which applies only to the transfer of charges of summary offences.

14 Because each of the offences to which the table above refers as 'summary' were thought by the parties to fall within that category, and were brought before (and dealt with by) the County Court pursuant to a procedure which applied only to such offences (and because for that reason the appellant was not arraigned) the Crown concedes that, despite the fact that the appellant pleaded guilty, the convictions were irregular. The Crown further concedes that the appeal against conviction ought for this reason to be allowed in each of the four 'summary' cases.

15 In our opinion, these concessions are properly made. There is no room under s 243 for the transfer of indictable offences, even given that the particular offence or offences in question might be of a class that is triable summarily. It follows that the appellant's conviction on each was irregular. As such, each must be quashed.

16 This is a most regrettable result. It follows pleas of guilty which have not been withdrawn and from which the appellant in no way resiles. And, like so many circumstances which find themselves enmeshed in a web of intractability, it was readily avoidable. The duty to ensure that the attributes of an offence are properly ascribed to that offence is surely among the first duties of both the prosecution and the defence.

17 The next question is: what to do next? Neither in their written submissions, nor in oral argument on the appeal, did counsel have a clear answer. That is, in part, because an entirely straightforward answer does not exist.

18 In the first instance, resort is necessarily had to the orders which this Court must make following a successful appeal. These reside in s 277 of the Criminal Procedure Act. And there is no room in this endeavour for the exercise of discretion, save in the variation of any sentence which may no longer be appropriate. If this Court allows an appeal against conviction, the Court must either: (a) order a new trial of the offence in respect of which the appeal has succeeded, or (b) enter a judgment of acquittal of that offence, or (c) - which only applies if the appellant could have been found guilty of some other offence, and the Court is satisfied that the jury must in turn have been satisfied of facts that prove the appellant's guilt of that other offence - convict the appellant of that other offence.

19 None of these powers is apt in this case. First, the power to order a new trial only arises if the new trial has a predecessor. But there has been no previous trial of any of the four 'summary' offences. A new trial of any of them cannot, by definition, be had. Secondly, an acquittal would offend the dictates of justice. Thirdly, there are no alternative offences of which the appellant could be convicted.

20 There is, however, a possible alternative solution. Section 168 of the Criminal Procedure Act empowers this Court (and the County Court too) to order '[a]t any time except during trial'[9] that 'a proceeding for a charge for an indictable offence that may be heard and determined summarily be transferred to the Magistrates' Court' if: (a) the accused consents to the transfer; and (b) the seriousness of the offence, and the adequacy of the punishments available to a magistrate - together with any other relevant consideration - warrant the taking of that step.

21 This Court has been informed by counsel for the appellant that she has his authority to consent on his behalf to the transfer of all four of the relevant charges to the Magistrates' Court. The next step, therefore, is to assess the seriousness of the offences, the adequacy of the available punishments, and any other relevant consideration.

22 The Crown submits that the offences were serious. We agree. They were, in the Crown's words, 'repeated, planned and systematic and had been committed over a lengthy period of time.'

23 It does not follow that they are not appropriate for summary disposition. Indeed, there are at least two reasons why their transfer to the Magistrates' Court is in this case desirable. First, although the sentencing range available to a magistrate restricts him or her to penalties of less severity than those available to a trial judge, nevertheless in this case those lesser punishments would in our opinion give a sentencing magistrate adequate scope within which to reflect the appellant's criminality. By s 4J of the Crimes Act 1914 (Cth), where an indictable offence of the kind in question here is heard by a court of summary jurisdiction, the court may impose not more than 12 months' imprisonment if the offence is otherwise one with a maximum penalty of 5 years; or not more than 2 years' imprisonment if the offence is otherwise one with a maximum penalty of 10 years.

24 For reasons to which we shall shortly come, we think that the 'summary' offences should in this case be transferred to the Magistrates' Court. On the assumption that a transfer will take place, it is not for us to embark upon an analysis of the sentences which are within the range available to a magistrate. We will therefore confine ourselves to recording the maximum sentence which, in the light of s 4J, a court of summary jurisdiction may impose for each offence. For a breach of s 11 of the Statutory Declarations Act 1959, and for a breach of s 10(1) of the Passports Act 1938 - 12 months' imprisonment. And for a breach of s 234 of the Migration Act 1958 - 2 years' imprisonment.

25 The second reason for concluding that a transfer is appropriate is that this was the course agreed between the Crown and the appellant and, in the events which have happened, it seems to us that justice would best be served - to both the appellant and the Crown - were this Court to give effect to that agreement.

26 A possible barrier remains. Section 158 of the Criminal Procedure Act introduces Chapter 5 of that Act, in which s 168 is to be found. Section 158 provides that Chapter 5 applies if an accused is committed for trial under Chapter 4, or if a direct indictment is filed against an accused. Neither happened in this case in relation to the four 'summary' charges. On the other hand, after a contested hearing, the appellant was committed for trial on the charge of attempting to possess a marketable quantity of a border controlled drug. He has therefore been, in the words of s 158, committed for trial under Chapter 4 of the Criminal Procedure Act. In our opinion, that is sufficient to enliven the jurisdiction of the Supreme Court as conferred by s 168.

27 We add for completeness that, for present purposes, the expression 'Supreme Court' includes the Court of Appeal: Supreme Court Act 1986, s 10(3).

28 In our opinion, for the reasons set out above, the appeal against conviction should succeed, and the convictions in respect of each of the offences against the Statutory Declarations Act 1959, the Passports Act 1938, and the Migration Act 1958 should be quashed. Pursuant to s 168 of the Criminal Procedure Act, each of the charges alleging a breach of the Commonwealth enactments to which we have referred should be transferred to the Magistrates' Court.

29 On 16 May 2012 Harper JA granted leave to the appellant to appeal not only against his conviction but also against the sentences imposed on each of the six charges to which he had pleaded guilty. There were three grounds of appeal:

Ground 1

Having regard to the principle of totality, the interrelated circumstances of the offending in relation to the charges on the indictment, the appellant's lack of prior convictions, his pleas of guilty, his good prospects of rehabilitation and the stress induced by potential deportation:

the individual sentences on the transfer charges;

the degree of cumulation as between:

(a) the transferred charges and the charges on the indictment; and

(b) the two charges on the indictment; and

the nonparole period

are manifestly excessive.

Ground 2

The learned sentencing judge erred by ordering that two years of the three year sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, in that such cumulation amounted to double punishment of the appellant for those elements which were common to Charges 1 and 2.

Ground 3

The learned sentencing judge erred in that the sentence imposed upon the appellant in relation to Charges 1 and 2, and the total effective sentence, breached the principle of parity when set against the sentences imposed upon the appellant's coaccused.

30 These grounds are now to be examined against the changed circumstance that only two convictions remain for consideration. These, of course, are the related offences of conspiracy to import, and attempting to possess, a marketable quantity of a border controlled drug. The maximum penalty for each is 25 years' imprisonment. The County Court judge imposed a sentence of 5 years' imprisonment for the first (conspiracy to import) and 3 years' imprisonment for the second (attempting to possess). Two years of the latter sentence were ordered to be served cumulatively on the 5 years imposed for the first. The total effective sentence on those two charges was therefore 7 years' imprisonment.

31 In our opinion, it is impossible successfully to argue that a sentence of imprisonment for 7 years is manifestly excessive. The appellant was complicit in the importation of 474.3 grams of pure heroin: 237 times the minimum marketable quantity. As the schedule annexed to the judgment of this Court in OPQ v The Queen[10] indicates - we think reliably, although we acknowledge the limitations inherent in this exercise - a sentence of 7 years' imprisonment for the importation of over 470 grams is within range; and this is so even given the guilty plea, the appellant's prospects of rehabilitation (which do not seem to us to be particularly bright) and the stress he will endure while waiting to learn whether he will be deported at the completion of his sentence.

32 The appellant referred, under ground 2 of his appeal against sentence, to a comment made by the sentencing judge on the first day (13 September 2011) of three days of hearing on the plea. His Honour was then considering the relationship between, on the one hand, the charge of conspiracy to import and, on the other, that of attempting to possess. Senior counsel for the appellant said that he would address the judge 'on the question of no double punishment'. His Honour, after responding that he 'had no difficulty with that', and after the prosecutor had said that she did not either,[11] referred briefly to some earlier cases with which he had dealt and then said - it would seem, addressing senior counsel in particular:

All right, you'll look at that. We've all agreed it'll be concurrent between [charge] 1 and [charge] 2 so everyone's agreed there's no doubling up on that.[12]

33 The prosecutor's position was clarified on the next day of hearing (19 October). She then said:

I believe that on the last occasion it may have been perceived that we were submitting that there should be total concurrency as between the sentences. In fact, the submission will be that there should be some degree of [cumulation] given that there are essentially two separate courses of conduct but that the total effective sentence would still be in the range that I've given your Honour.[13]

35 We note at this point that the range put by the Crown (on 13 September) was a head sentence of between six and a half and eight years' imprisonment, with a non-parole period of between four and a half and six years.[14] The head sentence and non-parole period actually imposed for the drug offences fell within this range.

36 The matter was raised again on 28 October. There was a discussion about the framing of the orders in a way which would reflect his Honour's intention in relation to concurrency and cumulation as between the drug-related charges. Senior Counsel for the appellant said that 'it's obviously the end result that is the significant question.' The judge responded: 'That's right.' Senior counsel then said: 'Our friend indeed on the last occasion raised the question of degree of cumulation between the two counts that are the indictable counts.' His Honour replied: 'I think she said some partial cumulation.' There followed an important concession from senior counsel:

Yes, but not necessarily change in the whole sentence. So in a sense you'd be tailoring the individual sentence using totality principles to come up with an end result, but to reflect the fact that the Crown says it's separate offending. We would say so long as it doesn't increase the net result.[15]

37 In our opinion, there could be no question in these circumstances that the appellant was taken by surprise.

38 The appellant submits that, in requiring that two years of the three imposed on charge 2 be served cumulatively upon the 5 years' imprisonment imposed on charge 1, his Honour 'paid insufficient regard to the common aspects of the two offences and accordingly [this degree of cumulation] amounted to double punishment of the appellant.'[16]

39 In The Queen v Hoare,[17] the High Court said that 'where a court, imposing a penalty for conspiracy, takes into account the overt acts of conspiracy, it would be wrong to impose a further penalty in respect of those acts.'[18] So much is clear. But we have no reason to believe that any 'further penalty' was imposed in this case. There is nothing to suggest that his Honour added, to the penalty imposed for the charge of conspiracy, an element of punishment referable to the overt acts, and then included the same element of punishment when fixing upon the penalty he imposed in relation to the attempt.

40 The appellant contends that his Honour 'had no choice but to sentence [him for the conspiracy] upon the basis of the overt acts performed by [him].'[19] And it is true that his Honour was bound to sentence on the basis that the appellant had agreed with one or more other persons with the intention that an offence be committed (in this case the unlawful importation of more than 470 grams of heroin), and that that person, or at least one other party to the agreement, must have committed an overt act pursuant to the agreement.[20] But it does not follow that his Honour was obliged to sentence for the crime of conspiracy on the basis that the overt act or acts forming an element of that charge were limited to those upon which the charge of attempted possession was based - still less that his Honour necessarily included in his sentence on the charge of attempted possession an element of punishment already included in the sentence imposed for the conspiracy.

41 The test is whether, in the process of instinctive synthesis undertaken by his Honour in arriving at the sentences he pronounced, he included in one sentence an element of punishment which he also included in the other. The fact, acknowledged by the pleas of guilty, was that there were two offences. Each of the elements of both have been admitted: that is implicit in the fact that the appellant pleaded to both. One involved a conspiracy to import, with the admission that at least one overt act had been committed pursuant to that conspiracy - but without identifying the overt act(s) so admitted. The other involved an attempt to capitalise on the importation. Both involved separate acts of criminality. In our opinion, the sentences imposed by his Honour are consistent with the conclusion that, for the purposes of the imposition of sentence, he assessed both charges in a way which appropriately recognised that circumstance.

42 Ground 2 of the grounds of appeal against sentence therefore fails.

43 The parity ground (ground three) is no more attractive. The appellant was clearly in a different class to either of his co-offenders. He initiated their participation in his wrongdoing. He was to be the principal beneficiary. He was deeply entrenched in the conspiracy to import; they were not. Their physical contact with the heroin was designed to be transient; his was substantive. Their moral culpability is of a quite different, and much less significant, degree.

44 The process of establishing an appropriate degree of relativity in punishment as between co-offenders is to be likened to the sentencing exercise proper. It is that of instinctive synthesis, with a comparison between the seriousness of each offender's criminality being an important part of that exercise. Other points of comparison are important, too; but, as with so much in sentencing, they involve giving appropriate weight to considerations which pull in opposite directions. One co-offender (to take an ordinary example) is devoid of remorse, and is considerably more mature than the other, but with no criminal history; the other is relatively young and with a bad criminal record, but has clearly demonstrated real remorse.

45 In this case, the comparison of degrees of criminality being clearly in favour of the co-offenders, most other considerations carry less significance. An important point of difference, however, is that each of the other two agreed to assist in the prosecution of the appellant. Otherwise, differences in age, health, prospects for rehabilitation and remorse cannot be meaningfully quantified for comparative purposes.

46 Cuc Nguyen, one of the co-offenders, is the sister in law of the appellant. She recruited the third member of the offending group, Phuong Nguyen. Cuc Nguyen was sentenced to a term of imprisonment of 2 years and 6 months, with an order that she be released on a recognizance to be of good behaviour after serving 14 months of that sentence. Phuong Nguyen, the least involved in the appellant's drug related offences, received a sentence of 18 months' imprisonment with an order that she be released on a recognizance to be of good behaviour after serving 6 months of that sentence.

47 In our opinion, the sentences imposed upon the appellant properly reflect the differences between the sentencing considerations applicable to him, and those applicable to the other two.

48 For these reasons, the appeal against sentence must be dismissed.

[1] See, for example, R v Broadbent [1964] VicRp 94; [1964] VR 733, 735.

[2] Section 4G of the Crimes Act 1914 (Cth) provides that 'all offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences unless the contrary intention appears.' (Our emphasis). Each of the 'summary' offences attracted such a penalty.

[3] Crimes Act 1914, s 4J. (None of the so-called 'summary' offences incurs a maximum penalty exceeding 10 years' imprisonment. It is sufficiently accurate for present purposes to say that, by s 4J, such offences, although indictable, may be heard in a court of summary jurisdiction).

[4] Criminal Procedure Act 2009, s 243(1).

[5] Ibid s 243(2).

[6] T 36 (19/10/2011) and T 43 (28/10/2011).

[10] [2012] VSCA 115.

[16] Appellant's second revised written case, [27].

[17] [1981] HCA 67; (1981) 148 CLR 32, 38.

[18] Ibid 38 (Gibbs CJ, Mason, Aickin and Brennan JJ).

[19] Appellant's second revised written case [35].

[20] Criminal Code Act 1995 (Cth) s 321.