Nguyen v The Queen [2017] VSCA 262

Court of Appeal (Vic)|2017-09-21|Before: Priest JA, Coghlan JA

DPP (Vic) & DPP (Cth) v Nguyen (Unreported, County Court of Victoria, Judge Douglas, 19 October 2016 and 2 November 2016)

CRIMINAL LAW - Appeal - Sentence - Commonwealth and State drug trafficking offences - Parity - Whether sentence imposed on individual charge demonstrated unacceptable disparity with co-offender - Judge required to apply principle of totality - No error - Whether manifestly excessive - Leave refused - Lowe v The Queen [1984] HCA 46; , ;

1 Following a trial in the County Court, on 25 August 2016, a jury convicted the applicant on an indictment which contained six charges for State drug, and related, offences (charges 1, and 3 to 7 inclusive), and one charge for a Commonwealth drug offence (charge 2).

2 On 19 October 2016, the judge imposed a total effective sentence of 16 years' imprisonment, and fixed a non-parole period of 12 years. That result was achieved by the judge ordering that the sentence on the Commonwealth offence commence immediately,[1] and that the sentences on the State offences[2] commence on 19 October 2019.[3] The practical result of those orders was to effect cumulation of three years' imprisonment of the sentences on the State charges upon the Commonwealth sentence.[4] It is convenient to set out the individual sentences in tabular form:

Trafficking in a drug of dependence [heroin, 4.813 kilograms (mixture)] - large commercial quantity[5]

Trafficking a commercial quantity of a controlled drug[6] [MDMC, 4.475 kilograms (pure)]

Trafficking in a drug of dependence[7] [ephedrine, 39.3 grams (pure)]

Trafficking in a drug of dependence [cocaine, 34.8 grams (mixture)]

Trafficking in a drug of dependence [methylamphetamine, 29.5 grams (mixture)]

Trafficking in a drug of dependence [heroin, 524.8 grams (mixture)] - commercial quantity[8], [9]

Knowingly deal with proceeds of crime[10]

5 Originally, the applicant sought leave to appeal against both conviction and sentence,[11] but abandoned the application for leave to appeal against conviction upon the hearing in this Court.

6 As to sentence, the applicant sought leave to appeal on two grounds as follows (ground 2 having been abandoned at the hearing):

That the sentence imposed on Charge 1 demonstrates disparity with the sentence imposed on a co-accused.
That the Learned Sentencing Judge erred in taking into account an unproved prior conviction in imposing sentence.
That the sentence imposed is manifestly excessive.

7 In our opinion, for the reasons that follow, leave to appeal against sentence should be refused.

8 On 26 November 2013, the applicant rented storage unit number 3017 at Kennards Storage, Raleigh Road, Maribyrnong.

9 Three weeks later, on 16 December 2013, members of the Australian Federal Police ('AFP') and Victoria Police entered the storage unit and discovered a number of cardboard cartons, a white styrene foam carton and a pink handled shopping bag.

10 On top of the foam carton, located in the right rear corner of the unit, was a plain brown cardboard carton with Asian characters on the outside. The plain cardboard carton was opened at the base. Inside police found a black and yellow cardboard 'Cole and Bright Solar Light Box'. In turn, that box contained a 'Louis Vuitton' brand cloth bag, in which were six smaller plastic bags containing off-white, yellow, brown and white substances (1,363.9 grams in total). Under the Louis Vuitton bag were six compressed disks of off-white substance, disk fragments, compressed disks - each disk having a diameter of 12 centimetres - and powder, (2,105.3 grams in total); vacuum-packed 'FoodSaver'[12] bags containing disk fragments (700.5 grams in total); a blue plastic shopping bag containing a 'Hercules' brand clip seal bag[13] holding a FoodSaver bag containing brown fragments (348.9 grams) and freezer bag tied up in four layers with brown fragments (294.1 grams in total); and a small clear plastic bag containing a quantity of off-white semi-compressed powder (0.3 grams in total). The compressed disks, disk fragments, chunks and remaining powdery substance contained heroin in a mixture and weighed a total of 4.813 kilograms [charge 1 - Trafficking in a large commercial quantity of a drug of dependence].

11 There were other drugs found in other cartons in the storage container, including 4.475 kilograms of meth-cathinone ('MDMC') inside a 'Country Road' brand camouflage duffle bag [charge 2 - Trafficking a commercial quantity of a controlled drug]; 39.3 grams of ephedrine and 34.8 grams of cocaine (mix) found within the plain brown cardboard carton with Asian characters [charge 3 and 4 - Trafficking in a drug of dependence]; and 29.5 grams of methamphetamine (mix) found within a ceramic coffee cup in a plastic bag inside the white styrene foam carton [charge 5 - Trafficking in a drug of dependence].

12 The applicant's fingerprints were found on a number of items inside the Jumbo carton, including an envelope inside the Ralph Lauren shopping bag; an empty freezer bag tied in a knot; a plastic bag with a 'suffocation' warning and a pie dish freezer bag found within a white plastic bag (containing tissues, a cupcake wrapper, cardboard packaging, various types of plastic bags and plastic bag pieces, and other items); a yellow 'Athlete's Foot' shopping bag; and an empty padlock packet, two freezer bags and two clip seal plastic bags (inside a blue and white patterned 'Howards Storage World' polypropylene shopping bag with handles). More of his fingerprints were found inside the camouflage Country Road duffle bag within a medium-sized Kennards carton; and inside a small sandwich clip-seal bag on a freezer bag, which contained 224 grams of a substance used as a filler or cutting agent for increasing the volume of a given mixture of drugs.

13 More than two months after their initial entry into the storage unit, on Wednesday 5 February 2014, investigators re-attended storage unit 3017 specifically looking for a new large rectangular black-coloured box that the applicant had placed there. Within that box investigators located a fresh stash of 524.8 grams of heroin [charge 6 - Trafficking in a drug of dependence] and seized $169,900.00 cash suspected of being the proceeds of crime [charge 7 - Knowingly deal with the proceeds of crime].

14 At the time that police first searched the Kennards storage unit on

16 December 2013, the applicant's co-offender, Quoc Nguyen[14] ('Quoc'),[15] was already in police custody. He had been arrested on Thursday, 21 November 2013, whilst walking into a flat in Elizabeth Street, Richmond. After his arrest, and as a result of information in police possession, investigators transported Quoc to a flat situated at 93/12 Holland Court, Flemington. (During mid-November 2013, police had been monitoring movements in and out of the flat in Holland Court via video surveillance cameras.)

15 When they searched the flat police found a sizeable aluminium and steel press frame ('the heroin press'), together with a couple of hydraulic car jacks, matching jack handles, a number of steel and aluminium machined dies, plungers, bars and a round steel billet. Four sets of electronic scales were found in the kitchen drawers. A white heat-seal machine was also observed on the kitchen bench. In a bowl inside a kitchen cupboard police found a plastic freezer bag that contained some white chunky substance, ultimately found to be 11.2 grams of heroin mixture.

16 In the course of their investigation, police obtained video footage from a surveillance camera that had a view of the Holland Court flat and reviewed it to see what activity had been occurring there both before and after 21 November 2013. Footage of the Holland Court flat also showed that, at the time when Quoc was being interviewed by police, and half an hour after police had permitted him to telephone his 'girlfriend', the applicant went to the flat together with his partner, Thi Thanh Ha Tran. Later the same morning - 22 November 2013 - footage from the Holland Court camera shows the applicant returning to the flat. His movements included the following:

at 9.23 am, he returned to the flat and went inside alone;
at about 9.39 am, he left carrying a black and white reusable shopping bag and a white and blue reusable shopping bag, both bags appearing to contain items;
at 9.43 am, he returned to the flat with a shopping trolley;
at about 9.49 am, another male also entered the flat; and
between 9.51 am and 10.20 am, the applicant and the other male removed a number of items from the flat, including a shopping bag with a distinctive blue and white pattern, a black shopping bag with handles, a small dark square box, a large white rectangular box, a second large rectangular box, a green plastic bowl, a clear plastic tub and a white plastic bottle.

It was the prosecution case that the white vacuum heat-seal machine from the kitchen bench was packed by the applicant into the blue and white patterned 'Howards Storage World' shopping bag and transported from the Holland Court flat. That bag ultimately found its way into the Kennards storage unit, complete with the white heat-seal machine still inside it.

18 The applicant flew out of Australia on 27 November 2013 and did not return until 4 February 2014. At about 10.00 am that day, the applicant returned to Melbourne from Vietnam. After he cleared Customs at about 11.05 am, he caught a taxi from Melbourne Airport to an address in Ascot Vale. At about 12.00 pm, he was picked up on surveillance camera footage arriving alone outside Kennards Self Storage unit 3017. He was seen to enter storage unit 3017, where he rummaged through a number of items. The only things that the applicant removed from the storage unit were two Blackberry phones. He had not taken anything into the unit.

19 At about 11.30 pm during the evening of that day, 4 February 2014, the applicant was again observed on surveillance camera footage arriving outside storage unit 3017. He got out of a car and removed a large rectangular black-coloured box, which he carried into the storage unit and placed on the box containing substance substituted by police for drugs.

20 As we have mentioned, on 5 February 2014 at about 3.55 pm, investigators re-attended the storage unit to look for a new large rectangular black-coloured box that the applicant had placed there. Investigators located within the box a new quantity of 524.8 grams of heroin and cash totalling $169,900.00.

21 Under cover of ground 1 of his application for leave to appeal against sentence, the applicant complained of disparity between his and Quoc's sentence, the ground as formulated, and as developed orally, being limited to the individual sentence imposed on charge 1.

22 On 22 October 2015, Quoc was found guilty of trafficking not less than a large commercial quantity of a drug of dependence, charge 1 - relating to the same 4.813 kilograms of heroin that founded the first charge on the applicant's indictment - and trafficking a drug of dependence, charge 2, relating to 11.2 grams of heroin - this quantity of heroin having been located by police during a search of the Holland Court flat on 21 November 2013. The judge at Quoc's trial - the same judge who presided over the applicant's trial - sentenced Quoc to be imprisoned for 12 years on the first charge, and for 12 months on the second.[16] The total effective sentence was thus 12 years' imprisonment, upon which the judge fixed a non-parole period of eight years.[17]

23 Notably, whereas Quoc received a sentence of 12 years' imprisonment on the first charge, the applicant received a sentence of 11 years' imprisonment on the equivalent charge. So much might be seen as reflecting the judge's assessment that the applicant played a lesser role than Quoc in relation to the particular offending founding that charge. But it needs to be borne steadily in mind that the applicant was also convicted of other serious charges, relating to a greater variety and quantity of illicit drugs than Quoc. Thus, the applicant was convicted of a Commonwealth charge of trafficking a commercial quantity of a controlled drug - charge 2, relating to 4.475 kilograms of pure MDMC - and a State charge of trafficking in a commercial quantity of a drug of dependence - charge 6, relating to 524.8 grams of heroin - together with three other charges of trafficking simpliciter - relating to 39.3 grams of pure ephedrine (charge 3), 34.8 grams of cocaine (charge 4) and 29.5 grams of methylamphetamine (charge 5) - and one charge of knowingly dealing with the proceeds of crime.

24 In fixing the individual sentences to be imposed on the applicant, and in arriving at the total effective sentence (and non-parole period), the judge was required to take into account the principle of totality, so as to avoid imposing a crushing sentence. It is somewhat unrealistic, therefore, to focus on the individual sentence imposed upon a single charge in order to mount an argument that unacceptable disparity has arisen. In these circumstances, the claim of disparity with the sentence imposed on Quoc on charge 1 is unsustainable.

25 Equality before the law - a concept of fundamental importance - finds expression in the principle of parity. Mason J made the point in Lowe:[18]

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.

26 And in Green,[19] French CJ, Crennan and Kiefel JJ observed:[20]

The parity principle will require the Court, if it is possible to do so, to avoid or minimise unjustified disparity between the sentence it imposes and the sentence which has been imposed on a co-offender. In so doing, the Court, like the primary judge, must have regard to differences between the person being re-sentenced and the co-offender which justify differences in the sentences imposed.

Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.

28 Moreover, French CJ, Crennan and Kiefel JJ also said in Green:[22]

Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may 'reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender'.[23] The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen:[24]

the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.

The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity.[25] The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.[26]

29 As we have said, the applicant was convicted of a greater number of serious offences than Quoc, involving significant and more varied quantities of illicit substances. The greater total effective sentence and non-parole period imposed on the applicant was well justified. Objectively, the disparity between Quoc's and the applicant's sentence - whether limited to the sentence on charge 1 or considered more widely - could not engender any justifiable sense of grievance.

31 In support of ground 3, and the overarching submission that the total effective sentence and non-parole period are manifestly excessive, the applicant's counsel submitted that the individual sentences imposed on all charges are excessive, and in the case of charges 3, 4 and 5, disproportionate to the other individual sentences imposed; the applicant has limited prior convictions; the applicant suffered lengthy delays in the ultimate disposition of the case; and the applicant has good prospects of rehabilitation.

32 The applicant - the youngest of nine children - was born on 1 June 1970, and is now aged 47 years. He and his family fled Vietnam when he was aged nine years, and were granted asylum in Australia in 1981. His wife, whom he married in 2015, has recently been granted permanent residence in Australia. They have two very young children. The applicant left formal education before completing year 12, and from the early 1990's was employed in unskilled work in the clothing, ceramic and woodwork industries. Since the early 2000's, he has been employed as a tour guide in Vietnam, travelling from Australia a number of times each year to work in seasonal blocks. He does not suffer any relevant physical or mental health complaints, and has no difficulties with any substance abuse. Various testimonials from friends and family were tendered on the plea, and documents evidencing his participation and completion of a number of courses whilst on remand were also tendered.

33 In the applicant's favour, the judge took account of delay. She said:

I take into account in your favour that there has been a delay, not of your making. On two occasions a jury was discharged without verdict, and since the jury was discharged without verdict 12 months ago, this matter has been hanging over your head. I also accept that you have been anxious as a result of that. You were arrested in February 2014, thus you will be sentenced around two and a half years later.

34 The judge thought the applicant's prospects of rehabilitation to be good, observing:

As I have stated, I consider your chances of rehabilitation to be cautiously optimistic, and as I said earlier, good. As to your history and conduct overall, I consider your chances of rehabilitation good, however I am cautiously optimistic because of the large quantity of drugs.

35 Despite the matters urged by the applicant's counsel, however, we are not persuaded that the individual sentences, total effective sentence or non-parole period are beyond the range of those open to the sentencing judge in the sound exercise of discretion.

36 Charges 1, 2 and 6 - the applicant was sentenced as a serious drug offender on charge 6 - involved either a large commercial, or a commercial, quantity of illicit drugs. The remarks of Kaye AJA in Dawid might be adopted for the purposes of the present case:[27]

The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs, that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.

37 The task of an appellate court in a case such as this was described in

It will not proceed by considering at once what the individual members of the bench consider an appropriate punishment. On the contrary it will look at the sentence imposed by the trial judge, and unless it appears that he has made a mistake as to the facts, or has acted on an erroneous principle of law, or has taken into account some matters which should not be taken into account, or has failed to take into account matters which should have been taken into account, or has clearly given insufficient weight, or excessive weight, to some matter taken into account, or unless the sentence is obviously - not merely arguably - too severe or too lenient, it will not interfere.

38 Moreover, Young CJ said in Kenny:[29]

In order to make good a submission that the sentences passed are excessive, it is essential for an applicant to show that the sentences are manifestly and not merely arguably excessive. Such a submission is not one which is capable of a great deal of elaboration. As the majority of the court said in Williscroft's Case,[[30]] to which reference has been made during the course of argument, the imposition of a sentence is in the last resort an individual sentencing judge's instinctive synthesis of the various factors involved, and when application is made to this court for leave to appeal on the ground that a sentence imposed in the court below is excessive, the approach of the members of this court must, I think, necessarily be the same. Each member of the court instinctively synthesises the relevant considerations and, having done so, considers whether in all the circumstances he is able to say that the sentence imposed is so obviously excessive that there must have been some miscarriage in the trial Judge's discretion.

39 Instinctively synthesising the applicant's circumstances and the circumstances of his offending, together with the matters relied upon in mitigation and those going in aggravation, we are far from satisfied that the sentence imposed was outside the appropriate range.

41 The application for leave to appeal against sentence should be refused.[31]

42 For the reasons stated by Priest and Coghlan JJA, I agree that the applicant should not be granted leave to appeal against sentence.

43 The focus of the application for leave was on ground 1, that the sentence imposed on charge 1 demonstrates disparity with the sentence imposed on the co-accused Quoc Huy Nguyen ('Quoc'). In support of that ground, counsel for the applicant relied on a number of matters, which, he submitted, should have resulted in a difference of more than one year between the sentence imposed on Quoc and the sentence imposed on the applicant for that offence. The principal factors, however, that he relied on were the different roles of Quoc and the applicant in the criminal enterprise to traffick a large commercial quantity of heroin, and the differences between their respective previous convictions.

44 In sentencing Quoc, the judge did not, expressly, specify the role that he played in the preparation and trafficking of the heroin that is the subject of charge 1. However, it is evident, from the circumstances of his offending as outlined in those reasons for sentence, that Quoc was sentenced on the basis that he had been involved in the preparation of the heroin for trafficking, and that he was solely motivated by profit. The judge noted that his involvement in the trafficking was part of an

organised criminal enterprise that included the applicant.

45 In sentencing the applicant, the judge accepted that the evidence of the involvement by the applicant in the offending in charge 1 was limited to his actions in removing the items from the Holland Court flat, organising the Kennards storage unit for hire, and taking the boxes containing the drugs into the unit. However, the judge was satisfied, beyond reasonable doubt, that, in performing those roles, the applicant was in a position of 'enormous trust' in relation to the criminal enterprise, as he had in his possession a large quantity of drugs which were very valuable. Thus, the judge inferred that he was not at the 'lower end of the organised criminal enterprise, but, rather, he was a man considered to be trustworthy'. The judge therefore sentenced him on the basis that his role was in the 'middle level of the hierarchy of this organised criminal enterprise'.[32] That finding of fact, by the judge, was not in issue on this application.

46 In that way, certainly, there would appear to have been some difference in the roles played by Quoc and the applicant in respect of the trafficking alleged in charge 1. It may be accepted that Quoc occupied a position in the hierarchy of the enterprise that was superior to that of the applicant. Nevertheless, appropriate weight must be given to the judge's finding that the applicant was in a position of 'enormous trust' within the enterprise. His role, in removing the heroin from the Holland Court flat, shortly after Quoc's arrest, and attending to the storage of it in the Kennard facility, amply demonstrated, not only that he occupied a position of significant trust in the hierarchy, but also that he was an important member of the syndicate. In those circumstances, a difference of 12 months' imprisonment between the sentence imposed on Quoc, and the sentence imposed on the applicant, in respect of the offending in charge 1, of itself could not be such as to give rise to the conclusion that the sentences offended the principles of parity.

47 The principal submission, made in respect of ground 1, was based on a contrast between the serious previous conviction of Quoc, for trafficking in a substantial amount of heroin, and the less serious previous conviction of the applicant. That matter, too, is relevant to the issue of parity of sentencing. However, by the same token, the applicant's guilt of the offences in charges 2 to 6 was also relevant to this aspect of the issue of parity. Plainly, the matters alleged in charges 2 to 6 did not constitute previous convictions. Nor did they justify any additional punishment being imposed on the applicant in respect of charge 1. However, his involvement in the offences alleged in charges 2 to 6 demonstrated that the offending, by the applicant in charge 1, was not an isolated involvement by him in one single act of drug trafficking between November 2013 and February 2014. In that way, his involvement in the offending in those other charges gave context to the circumstances of his involvement in the offending in charge 1, and was relevant to an assessment of his character.

48 Taking those matters into account, and notwithstanding the differences in the roles between the applicant and Quoc in the offending in charge 1, and in their previous convictions, I do not consider that the matters relied on by the applicant provide an appropriate basis for a finding of error on the basis of the principles of parity of sentence. The discretionary nature of sentencing, and the difficult task of synthesising conflicting factors in the sentencing process, are such that views might reasonably differ as to whether the differences, to which I have referred, might have resulted in a disparity of more than one year between the sentences imposed on Quoc and the applicant respectively. However, I do not consider that the fact, that the judge reflected the differences between the factors relevant to Quoc and those relevant to the applicant by a disparity of one year, is such as to give rise to a justifiable sense of grievance on behalf of the applicant. For those reasons, I agree that the application for leave to appeal against sentence on ground 1 should be refused.

49 For the reasons given by Priest and Coghlan JJA, I agree that ground 3 of the application for leave to appeal against sentence should also fail.

50 Accordingly, I am of the view that the application for leave to appeal against sentence must be refused.

[1] By s 19(3) of the Crimes Act 1914 (Cth), cumulation between federal and State sentences is achieved by the court directing when the federal sentences are to commence. As has been observed more than once by this Court, this is a remarkably clumsy procedure which, as experience has shown, is prone to error.

[2] On the State offences, the sentence on charge 1 was ordered to be the base sentence. Two years of the sentence of imprisonment on charge 6 was ordered to be served cumulatively with the sentence on charge 1, leading to a total effective sentence of 13 years' imprisonment on the State charges.

[4] So as to correct an error relating to the commencement of the non-parole period, pursuant to s 104A of the Sentencing Act 1991 the sentence imposed on 19 October 2016 was amended on 2 November 2016. See also footnote 31 below.

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