Nguyen v The Queen [2019] VSCA 184

2 On 16 April 2018, the appellant was sentenced in the County Court as follows:

Traffick in a drug of dependence - large commercial quantity (heroin) [Drugs, Poisons and Controlled substances Act 1981 ('the Act') s 71]

Traffick in a drug of dependence - large commercial quantity (cocaine) [the Act s 71]*

Traffick in a drug of dependence - large commercial quantity (methylamphetamine) [the Act s 71]*

Traffick in a drug of dependence - (MDMA) [the Act s 71AC]

Traffick in a drug of dependence - large commercial quantity (methylamphetamine) [the Act s 71]*

Traffick in a drug of dependence (heroin) [the Act s 71AC]

Traffick in a drug of dependence (MDMA) [the Act s 71AC]

Possess substance, material, documents or equipment for trafficking in a drug of dependence [the Act s 71A]

Possess unregistered general category handgun [Firearms Act 1996 s 7B]

Possess cartridge ammunition [Firearms Act 1996 s 124]

*Sentenced as a 'serious drug offender' pursuant to s 6F of the Sentencing Act 1991.

3 The appellant was found guilty by a jury of three charges of trafficking in a drug of dependence of a quantity not less than a large commercial quantity (charges 1, 2 and 3) and one charge of trafficking in a drug of dependence (charge 4). The offending subject of charges 1, 2 and 3 occurred between the dates of 1 January 2015 and 31 August 2015. The offending subject of charge 4 occurred between the dates of 20 July 2015 and 22 July 2015.

4 The appellant pleaded guilty to the remaining charges on the Indictment, being charges 5, 6, 7, 8, 9 and a related summary charge, charge 11. The offending the subject of these charges occurred on a single date, 8 September 2015.

5 On 8 September 2015, Police executed a search warrant at the residence of the appellant. As a result of the search Police located and seized the following:

(d) Assorted drug paraphernalia used for manufacturing and distribution of drugs of dependence, including a hydraulic heroin press, assorted dyes, dishes, packages and deal bags (charge 8);

(e) A shortened rifle, silencer and ammunition (charges 9 and 11);

6 Police also located and seized a number of personal diaries and notebooks, written in English and Vietnamese, with coded references.

7 These diaries and notebooks were translated into English, and deciphered and interpreted by Victoria Police officers with expertise in the investigation of large scale drug offences. As a result of this, a spreadsheet of all of the drug transactions was prepared by a Detective Senior Constable, who became the main prosecution witness.

8 It was the prosecution case that the information contained in these diaries and notebooks recorded the appellant's distribution of large quantities of a number of different types of drugs, in various quantities to numerous associates. The diaries and notebooks were, in effect, his drugs transactions ledger ('the drugs ledger'). [2]

9 During the between dates periods referred to above,[3] the drugs ledger showed that the overall total amounts trafficked (actually sold) of each drug were as follows:

10 In relation to the trafficking of these drugs, the prosecution case was that the appellant received approximately $6 million in payments, having paid approximately $4.4 million for the drugs himself. The profit of approximately $1.6 million was not identifiable within the assets of the appellant and was not ultimately detected by Police.

11 The appellant has a significant and highly relevant criminal history, having received sentences, including sentences of imprisonment, for drug trafficking and other drug related offending, with some regularity over the last 20 years. These prior matters concern offending behaviour both in Australia and in Vietnam.

12 In 1998, at the Williamstown Magistrates' Court, the appellant was sentenced to 8 months' imprisonment, 4 months of which was wholly suspended, for, inter alia, trafficking and possession of heroin.

13 In 2000, in Vietnam, the appellant was sentenced to 2 years' imprisonment for using heroin. He was released in September 2002.

14 In 2003, at the Melbourne Magistrates' Court, the appellant was sentenced to 5 months' imprisonment, wholly suspended for 2 years for trafficking heroin.

15 Finally, in Vietnam in 2007, the appellant was sentenced to 8 years' imprisonment, with a non-parole period of 6 years' imprisonment, for trafficking and use of ecstasy and methlyamphetamine. The appellant would have returned to Australia sometime not long before the offending in the instant case commenced in 2015. The lengthy sentence of imprisonment in Vietnam had evidently done nothing to deter the appellant.

16 In relation to charges 1 - 4, the sentencing judge accepted the evidence of the principal prosecution witness and found, beyond reasonable doubt, that the appellant had trafficked the various drugs in the amounts as specified in the drugs ledger, based on the information recorded in the diaries and notebooks found in the possession of the appellant.[4] There is no complaint made on this appeal about this finding. [5]

17 His Honour concluded that the search of the appellant's apartment on 8 September 2015 'revealed a sophisticated and well organised manufacturing process used for the large scale distribution of drugs of dependence'.[6]

18 His Honour characterised the offending as 'very serious indeed', and concluded that general deterrence was 'of considerable importance in a case such as this'.[7]

19 The sentencing judge considered that the appellant's drug related convictions were highly relevant. These informed the need for specific deterrence. [8]

20 In mitigation of the sentence, his Honour took into account the appellant's plea of guilty (in relation to charges 5, 6, 7, 8, 9 and 11), and detailed admissions, which were accepted as some evidence of remorse. His Honour also took into account the hardship the appellant experienced in custody as a result of the restrictions imposed after the prison riots in 2015. The appellant had served 952 days of pre-sentence detention at the point of sentence.[9] Finally, his Honour took into account, by way of context, the factors precipitating the appellant's offending including his chronic substance use from a very early age, which along with his relevant prior history, formed the basis for his Honour's conclusion that the appellant's prospects for rehabilitation were 'cloudy'.[10]

21 In relation to charges 2, 3 and 5, the appellant was sentenced as a serious drug offender. His Honour was not invited to, and did not, impose a disproportionate sentence.[11]

22 As we have already stated, the appellant was given leave to appeal against his sentence in relation to three grounds of appeal. Those grounds were:

1: The learned sentencing Judge erred in the exercise of his discretion in directing that 15 months of the sentence of 6 years' imprisonment imposed charge 5, 5 months of the sentence of 15 months' imprisonment imposed on charge 6, and 5 months of the sentence of 15 months' imprisonment imposed on charge 7 be served cumulatively upon each other and upon the other periods of imprisonment the subject of the orders for cumulation, and upon the sentence, and upon the sentence imposed on charge 1.

2: The learned sentencing Judge erred in his discretion in imposing sentences upon charges 5, 6, and 7 in breach of the sentencing principle of totality.

4: The total effective sentence imposed, namely 20 years' imprisonment, is in all the circumstances of the case manifestly excessive.

23 On the appeal, grounds 1 and 2 were argued together. Counsel for the appellant submitted that the orders for cumulation on charges 5, 6 and 7 were in error and offended the principle of totality.

24 It was argued that it was entirely possible that the drugs found in the appellant's apartment on 8 September 2015 were also subsumed within the trafficking recorded in the diaries and notebooks, particularly given that the same type of drugs formed the basis of the Giretti[12] charges. That is, it could not be excluded that the drugs found on 8 September were acquired and possessed for sale during the currency of the charged Giretti periods.

25 On the appeal it was conceded that some very minimal cumulation was justified. That was conceded because there was not a complete overlap in offending concerning the Giretti charges 1, 3 and 4 and the single date trafficking charges 5, 6 and 7, given the short temporal gap and the distinct bases of criminality. Nonetheless, it was argued that the charges remained intimately connected. This intimate connection required the sentencing judge to impose no more than negligible cumulation. Certainly, it was submitted, the additional 25 months' which was imposed went well beyond such a minute degree.

26 In relation to grounds 1 and 2, counsel for the respondent argued that the orders for cumulation reflected the separate criminality involved in the single date trafficking charges 5, 6 and 7 and the sentences actually imposed on those charges and the orders for cumulation were modest.

27 It was submitted by the respondent, that the principle of totality had not been offended, either by the orders for cumulation or the total effective sentence of 20 years' imprisonment. The sentencing judge had due regard to the principle of totality and the total effective sentence, it was argued, properly reflected the overall criminality of this offending, which included four charges where the maximum penalty was life imprisonment.

28 In our opinion, the appellant's submissions cannot be accepted.

29 It is trite that it would be wrong to punish an offender twice for conduct which is common to two offences, of which he stands convicted. The issue of whether there has been double punishment is to be resolved by approaching the matter as one of common sense, and each case must be determined in accordance with its own circumstances.[13]

30 In this case, the Giretti trafficking charges had their foundation in the drugs ledger, and were based upon the accumulation of multiple sales of the drugs in question. The drugs ledger showed that in excess of 20.168 kilograms of heroin, 1.472 kilos of methylamphetamine and 900 MDMA tablets had been sold throughout the charged Giretti period. As if to emphasise this, the total sales of each drug sold were recorded at the end of each set of entries, with a grand total of sales being recorded at the end of the drugs ledger. In any event, the judge very clearly sentenced the appellant for the Giretti trafficking charges upon the basis that the total drugs trafficked for those charges was the total amount sold. So much was accepted by the appellant on the appeal.

31 By the appellant's plea, it was apparent that the trafficking for the single date charges was founded upon the appellant's possession for sale of the quantities of drugs located in his apartment. For the purposes of sentence, these batches or quantities were explicitly excluded from the totals encompassed by the corresponding Giretti charges, which as we have said, were founded on drugs actually sold. It follows that the quantities found at the apartment were never reckoned - or fully reckoned - in the sentences imposed on the Giretti charges.

32 To take one example, the total quantity of methylamphetamine recorded in the drugs ledger as having being sold was 1.472kg. This amount was covered by charge 3, being a Giretti charge. The amount of methylamphetamine located at the appellant's apartment was 1.212kg, being charge 5. Both, of course, were large commercial quantities in their own right. When the judge sentenced the appellant on charge 3 (a Giretti charge), he was being punished only in relation to the 1.472kg. The same goes for the corresponding heroin and MDMA Giretti charges versus the single date trafficking charges. Not only were the drugs physically separate and distinct, but the offending period was temporally separated, by one week.

33 In our opinion, the discovery of these quantities of drugs (possessed for the purpose of sale), represented additional material criminality. It was necessary and appropriate in our view that the sentences reflect the separate criminality involved in the separate trafficking charges, directed as they were to distinct quantities of drugs, at different times.

34 That said, we accept that the possession of the drugs for sale on 8 September was, at a practical level, connected to the appellant's preceding established drug trafficking enterprise, as reflected by the Giretti between dates charges. It can be inferred that the appellant came into possession of the drugs for the purposes of sale because of his immediate prior involvement in an established drug trafficking enterprise. That is so, irrespective of whether these particular drugs came through the business during the charged Giretti periods. There was therefore some material overlap in criminality between the two sets of charges. To the extent to which there was overlap, some moderation of the sentences imposed (and the orders for cumulation) was required.

35 For the following reasons, we think the judge did make due allowance for this in the sentences, including the orders for cumulation.

36 In our opinion, the individual sentences imposed on all the charges - especially the Giretti charges - could be described as moderate, and in some instances, arguably as lenient.[14] The most likely explanation for the modest sentences is that his Honour reduced or moderated the individual sentences so as to reflect the shared component of criminality between the charges. This in turn yielded, correspondingly, more modest orders for cumulation.

37 We are also of the opinion that the orders for cumulation were proportionately modest. Only about one third of the sentences imposed on the single date trafficking charges were accumulated upon the Giretti charges, leaving some two thirds of the sentences to be served concurrently.

38 During the oral hearing of this appeal, counsel for the appellant fastened upon the sentencing judge's statement in his sentencing remarks that 'It is appropriate that there be some cumulation in respect of the less serious offences, as they are significant separate matters'.[15] He argued that this statement reveals that his Honour failed to recognise the closeness of the connection between the Giretti trafficking charges and the corresponding single date charges.

39 We disagree. In our view, his Honour appears there to be primarily addressing the question of whether there should be any cumulation at all. The appellant now concedes it was open to make some orders for cumulation. Further, the reference to 'significant separate matters' appears to be an acknowledgment that the quantities of these drugs found in the apartment on 8 September were, at least collectively, very large (including a large commercial quantity of methylamphetamine), and that they had not been accounted for in the sentences for the Giretti trafficking charges.

40 The discretion to make orders for cumulation is a very broad one and should not be unduly circumscribed by appellate intervention.[16] The authorities recognise that judges should be allowed great latitude in tailoring an appropriate total effective sentence.[17] The sentencing judge in this case was also alive to the significance of the totality principle across all the charges in this sentencing exercise. He expressly had regard to that principle.[18] We are fortified by the fact that the total effective sentence imposed was well within the range of sentences available. We return to this below. An approach of imposing higher individual sentences with lower orders for cumulation would not have yielded a different, lower total effective sentence.

41 It seems to us that the complaints under this ground are solely directed to matters of structure, not substance. The approach taken by the sentencing judge to the structure of the sentences and orders for cumulation does not bespeak of error.

42 In short, we have concluded that no element of effective double punishment has crept into the sentencing exercise either through the decision to make orders for cumulation or through the level of cumulation ordered.

43 Even if there were some possibility of error, there is no basis to say that a different sentence should have been imposed.

44 In relation to ground 4, it was argued that a total effective sentence of 20 years' imprisonment was manifestly excessive, as were the non-parole period of 16 years and orders for cumulation. It was also said that if the head sentence was manifestly excessive, then so too was the non-parole period. A total effective sentence of that order does not properly reflect the matters in mitigation accepted by the sentencing judge, in particularly the plea of guilty (in relation to charges 5, 6, 7, 8, 9 and 11) and his detailed admissions and cooperation, it was submitted.

45 In seeking to make good this argument, counsel for the appellant attacked the orders for cumulation. In addition to the cumulation arguments advanced under grounds 1 and 2,[19] it was argued that excessive orders for cumulation were made as between each of the Giretti charges (charges 1, 2, 3 and 4). It was submitted that as each of these Giretti charges arose out of a single business of the sale of drugs, a greater level of concurrency should have been ordered to reflect the commonality of criminality.

46 Counsel for the respondent submitted that the total effective sentence of 20 years' imprisonment for this offending was open to the sentencing judge, given the sheer scale and breadth of the trafficking enterprise, the appellant's prior convictions and the fact that he had pleaded not guilty to the most serious offending. It was argued that the individual sentences and orders for cumulation were modest, reflecting as they had to, the different drugs and the level of sophistication involved.

48 In order to make out this ground, the appellant must establish that the sentence was wholly outside the range of sentencing options available to the sentencing judge.[20]

49 The ground of appeal must be considered in the light of this Court's observations in Gregory v The Queen[21] that there is need for sentences for trafficking a large commercial (and a commercial) quantity of drugs to increase substantially.[22] Further, as this Court has recently restated, the maximum sentence prescribed for trafficking a large commercial quantity of a drug of dependence is life imprisonment which reflects the inherent gravity of such offending.[23]

50 In our opinion, the sentencing judge was correct to describe the appellant's actions as 'very serious indeed', involving, as they did, the conduct of a large scale drug trafficking business, with 'very large amounts of money changing hands'. The drugs ledger indicated that the appellant made a profit of $1.6m. His Honour observed that the nature of the appellant's drug business was 'wide ranging', involving numerous different types of drugs, and mostly at a wholesale level (buying and selling), with some retail sales.[24] The judge correctly concluded that general deterrence was 'of considerable importance in a case such as this'.[25]

51 The following passage from Dawid v DPP[26] is especially apposite to someone like the appellant who pursues the trade of illicit drugs on an immense scale with an eye to huge profit:

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.[27]

52 The appellant also had highly relevant drug-related prior convictions for very serious offending of the same kind, some of which had resulted in him serving terms of imprisonment, including one very substantial term in Vietnam (8 years' imprisonment, with a minimum term of 6 years) for trafficking and use of ecstasy and methylamphetamine.

53 Undeterred by these terms of imprisonment, the appellant chose to engage in even higher scale drug offending. Accordingly, specific deterrence had a prominent role to play in the sentence to be imposed. The sentencing judge's assessment that the appellant's prospects of rehabilitation were 'cloudy' was, if anything, on the generous side.

54 The appellant's significant prior convictions for such relevant offences also illuminates his moral culpability for the current offending, which, on any view, was very high.[28]

55 The appellant had relatively little to draw upon in mitigation. The appellant could not call in aid a plea of guilty to most of the very serious offending, nor could it be said that he had accepted responsibility, shown remorse or facilitated the course of justice. For this offending, he was therefore not entitled to a reduction in his sentence for those considerations. We agree with the respondent's submission that factors like his difficult upbringing, his hardship experienced in custody and his otherwise good use of time on remand must take a back seat to the principles of specific and general deterrence, public denunciation, and protection of the community.

56 Charge 1 was an especially serious example of this most serious offence, involving as it did, in excess of 20 times the large commercial quantity threshold. As this Court has noted, the sentencing regime for trafficking is essentially 'quantity based'; the gravity of the offending is informed by the quantity of drugs trafficked.[29] Given the absence of any compelling factors in mitigation, a sentence of 14 years' imprisonment for trafficking on this scale could even be described as lenient. Trafficking on this size by someone with substantial trafficking convictions, and after having conducted a trial, might have attracted a noticeably higher sentence.

57 In our opinion, the single figure sentences imposed for the other large commercial quantity charges (charges 2, 3 and 5) could all be characterised as moderate. They were short of the top end of the available range.

58 As we have said above, the appellant contends that an explanation for the manifestly excessive total effective sentence lies in the excessive orders for cumulation.

59 In support of his argument the appellant called in aid the decision of this Court in Dang v The Queen[30]. In that case, it was found that the facts established there was a single business involved in the sale and supply of both methylamphetamine and heroin, the subjects of the two Giretti (trafficking simpliciter) counts. This meant that the sentencing judge needed to avoid offending the double punishment principle by modifying the individual sentences imposed for each charge, and the orders for cumulation. Relevantly, the sentencing judge had sentenced the offender to four years on each of the two Giretti trafficking charges with twelve months of the heroin charge being cumulated. The fact that the sentences imposed on both Giretti counts were indistinguishable was one of the factors which indicated there had been no moderation.[31] The sentencing judge's failure to do this constituted specific error, reopening the sentencing discretion. The offender was resentenced on appeal to 4 years' imprisonment (methylamphetamine), and 3 years' imprisonment (heroin), respectively on the Giretti charges, with 6 months being cumulated.

60 We pause to observe that even in Dang, a case upon which the appellant relies, some cumulation was still justified, despite the considerable overlap between the charges. Moreover, the level of cumulation was more than negligible or minimal, bearing in mind that the charges in Dang were trafficking simpliciter charges only.

61 In the appellant's case, the evidence of the main prosecution witness, and the drugs ledger, demonstrated that the appellant's business was generally conducted on the basis that different client bases would purchase particular types of drugs. Certainly, this was not a case where different types of drugs were purchased together in batches and on sold together in batches.

62 In our opinion the fact that in the appellant's case there were different drugs trafficked deserved separate recognition in the sentencing process.[32] In giving such separate recognition the judge was required to pay due regard to the overall offending to reflect the commonality of offending, and to ensure that the principle of totality was not infringed. This could be achieved by making appropriate orders for cumulation.

63 Overlapping criminality does not prohibit cumulation. The duty to avoid double punishment may be discharged in a variety of ways. While it may involve an obligation to modify, to avoid double punishment, how this is to be achieved is not rigidly prescribed the authorities.[33]

64 In our opinion, the answer to the appellant's cumulation complaint as between the sentences on the Giretti charges is essentially the same as the answer to the complaints raised in grounds 1 and 2. That is, the moderate (and perhaps lenient) individual sentences imposed on the Giretti charges, suggest his Honour reduced or moderated the individual sentences (which yielded lower corresponding orders for cumulation) so as to reflect the shared gravity between them.

65 The orders for cumulation as between the Giretti charges were also proportionally moderate. By way of example, the accumulation of 18 months from each of the sentences imposed on charge 2 (9 year sentence) and charge 3 (8 year sentence) was restrained. This further evidences an intention by his Honour to make due allowance for the commonality in criminality between the Giretti charges when formulating the orders for cumulation.

66 For all the reasons outlined above, we are unpersuaded that the total effective sentence of 20 years' imprisonment was wholly outside the range of sentences reasonably available. Ground 4 is not made out. Having not sustained the complaint that the total effective sentence was manifestly excessive, the appellant fails in relation to the claim that the non-parole period was manifestly excessive.

67 Leave having already been given, we would dismiss the appeal.

[1] Kha Luan Nguyen v The Queen (Court of Appeal, Niall JA, 15 August 2018) ('Leave Reasons').

[2] There was no dispute that these diaries and notebooks had been completed by the appellant himself.

[5] Ground 3, which was not persisted with on the leave application before Niall JA concerned the sentencing judge's finding regarding the quantity of heroin trafficked on charge 1. See Leave Reasons [8], [15], [20].

[11] The appellant was sentenced as a serious drug offender, pursuant to section 6F of the Sentencing Act 1991.

[12] Giretti v The Queen (1986) 24 A Crim R 112 ('Giretti').

[13] Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, 623 [40].

[14] We give our reasons for this view when dealing with the manifest excess ground below (ground 4).

[15] Sentencing Reasons [36] (emphasis added).

[16] R v Hogan [2008] VSCA 279 [29].

[17] DHC v The Queen [2012] VSCA 52 [84]-[98].

[18] Sentencing Reasons [30], [36].

[19] In relation to the accumulation ordered between the single date trafficking charges and the corresponding preceding Giretti charges in relation to the same drug type.

[20] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 385 [89].

[21] (2017) 268 A Crim R 1 ('Gregory').

[22] Ibid 25 [102]. See also Fernando v The Queen (2017) 268 A Crim R 26, 41 [61]; Arico v The Queen [2018] VSCA 135 [338]-[339].

[23] Djordjic v The Queen [ 2018] VSCA 227 [68] ('Djordjic').

[26] [2013] VSCA 64 ('Dawid'). See also Djordjic [2018] VSCA 227 [68]; Nguyen v The Queen [2017] VSCA 262 [36].

[27] Dawid [2013] VSCA 64 [35].

[28] Veen v The Queen (No 2) (1988) 164 CRL 465, 477-8.

[29] Gregory (2017) 268 A Crim R 1, 7 [23]; Djordjic [2018] VSCA 227 [69].

[30] Dang v The Queen [2014] VSCA 49; (2014) 43 VR 29 ('Dang').

[32] McNaughton v The Queen [2014] VSCA 174 [61].

[33] Dang [2014] VSCA 49; (2014) 43 VR 29, 50 [89]-[90].