Pham v The Queen [2016] VSCA 259

Mr M Pedley, Solicitor for Public Prosecutions (Cth)

1 Following a plea of guilty to one charge of importing a marketable quantity of a border controlled drug (heroin) contrary to s 307.2(1) of the Criminal Code 1995 (Cth), the appellant, Vu Lang Pham, was sentenced in the County Court to eight years and six months' imprisonment with a non-parole period of six years.

2 The appellant successfully appealed to this Court.[1] His sentence was set aside and he was re-sentenced to six years' imprisonment with a non-parole period of four years. An appeal to the High Court by the Director of Public Prosecutions was allowed, the orders of this Court were set aside and the matter was remitted to this Court for determination of whether the sentence imposed upon the appellant in the County Court was manifestly excessive.[2]

3 For the reasons that follow, we would dismiss the appeal.

4 The appellant is 41 years old. He was born in Vietnam, and migrated to Australia with his family when he was 10 years old. After completing year 9 at high school, he left home. He soon took up use of illicit drugs, and developed drug dependency issues which persisted up until the present offending. He returned to Vietnam in 1997 where he married and had two children. He then migrated back to Australia in 2002.

5 The appellant has previously been convicted of offences concerning possession and use of drugs, and dishonesty. In 1996, the appellant was convicted of trafficking heroin. This constituted the appellant's most relevant prior conviction. He was released on a community-based order for 12 months, on the condition that he undertake 40 hours of unpaid community work. The judge found that the appellant's offending was low-level street trafficking, motivated by the need to feed his addiction. In 2009, the appellant was also convicted of criminal damage by fire, and assault with a weapon. He was sentenced to 12 months' imprisonment with a non-parole period of six months.

6 In February 2013, the Australian Federal Police began investigation into a drug importation ring connected with one Anh Lan Vo. Vo was thought to be responsible for arranging for the transportation of drugs from Vietnam to Australia and organising the trafficking of the drugs in Australia. On the basis of telephone intercept material to which Vo was a party, it appeared that the appellant had been recruited to act as a courier of the drugs.

7 On 4 February 2013, the appellant received an Australian passport issued by the Department of Foreign Affairs and Trade. On 7 February 2013, he left Melbourne on a flight bound for Vietnam on a return ticket. On his flight back on 15 March 2013, the appellant was observed to have become unwell and require medical attention during the flight due to a potential drug overdose. Two clear plastic packages containing white powder were found by a crew member in a bathroom used by the appellant mid-flight.

8 Upon landing in Australia, the appellant was detained by customs officers. He admitted to having ingested heroin whilst on board the flight, that the packages belonged to him and that he guessed that they contained heroin.

9 When the packages were tested, the white powder was confirmed to be heroin mixed with caffeine. The weight of the pure heroin in the packages was 577.1 grams. A marketable quantity of heroin is between two grams and 1.5 kilograms.[3] The quantity of heroin the subject of the appellant's charge represents 38.4 per cent of the applicable commercial quantity.

10 The appellant received a fee of $10,000 less expenses for acting as courier.

11 The appellant submits that the total effective sentence and non-parole period imposed on him were manifestly excessive. By way of particulars, he relies upon the limited scope of his conduct as a courier; the quantity of the drug involved; his personal circumstances, including his age, ill health and background; his past cooperation with the authorities; his early guilty plea; the increased sentencing burden he would face due to his poor health; his prospects for rehabilitation and the excessiveness of his sentence when compared with other comparable cases.

12 The appellant in this case committed an offence contrary to s 307.2(1) of the Criminal Code 1995 (Cth). An oft-cited summary of the principles applicable to such offending is to be found in R v Nguyen,[4] a decision of the NSW Court of Criminal Appeal which has been applied in Victoria on a number of occasions.[5] The NSW Court of Appeal (Johnson J, with MacFarlan JA and R A Hulme J agreeing) relevantly said in R v Nguyen that:

(1) the offence of attempting to possess imported drugs is not inherently in a less serious category than that of drug importation;

(2) the quantity of the drug, though not determinative, is relevant to an assessment of objective seriousness of the offending;

(3) general deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case;

(4) involvement at any level must attract a significant sentence otherwise the interests of deterrence are not served;

(5) factors personal to the offender such as good character are therefore given less weight than might otherwise be given.

13 The appellant submits that inadequate weight was given to the fact that his role was confined to that of a courier recruited by the principals of the offending for the purpose of collecting and importing heroin into Australia. There was no evidence to suggest a knowledge of the drug operation beyond his limited involvement.

14 The appellant made a calculated decision to become involved, going so far as travelling to Vietnam to secure the substance to be imported. He was to gain part of the financial benefit for doing so, as he was to receive a reward of $10,000 less expenses for his involvement. The quantity of the drug involved in the present case was 577.1 grams of pure heroin being approximately one-third of the applicable commercial quantity. There was no dispute that the method of the appellant's concealment of the drugs lacked sophistication, the appellant having both ingested some drugs whilst on the plane and 'body packed' clear plastic packages inside his underwear. But this was only one of many factors to be taken into account in the sentencing exercise.

15 The maximum penalty of 25 years' imprisonment provides an indication of the seriousness with which such an offence is to be viewed. General deterrence, condemnation and denunciation, protection of the community and just punishment are all relevant and important factors in the instinctive synthesis of an appropriate sentence. These considerations themselves indicate that having regard to the role that the judge described as critical to the success of the drug smuggling enterprise[6] the appellant was bound to receive a substantial term of imprisonment even if his submission that his offending fell in the lower to middle end of the range of objective seriousness was accepted.

16 In addition to personal matters such as his age and his background, the appellant placed particular reliance upon his ill health. He submits that the reason for his offending was that he believed he was coming to the end of his life due to a terminal illness and wished to provide for his children. He contends that the sentencing judge did not adequately appreciate the seriousness of his medical state, evidence of which was highly pertinent to his motivation for the offending and diminished his moral culpability. Further it served to decrease his lifespan and would make his time in incarceration more onerous. Taking in combination his drug addiction, the serious illnesses from which he suffered including HIV, Hepatitis B and C and related chronic liver disease, and his belief that he was terminally ill, these factors should have received greater mitigatory weight than they did.

17 The sentencing judge in his sentencing remarks made explicit reference to most of the personal circumstances the appellant relies upon in mitigation. His Honour noted that the appellant had cooperated with the authorities upon his detainment and arrest, and had pleaded guilty at an early stage. He found that the appellant was entitled to a substantial discount in his sentence as a consequence.[7] The judge was not precluded from finding that these features demonstrated only 'some' contrition or remorse for the offending, there being no other evidence of contrition or remorse.[8]

18 As to the appellant's prior convictions, although the appellant had no prior history of importation of a border controlled drug, the judge took into account that the appellant had been convicted of numerous offences involving drug trafficking, arson and assault and had previously served sentences of imprisonment, albeit for offences lesser in seriousness to the present offending. He noted that the appellant, having received a number of sentences, had not availed himself of past opportunities for rehabilitation. In the circumstances, it was open to the judge to conclude that the appellant's criminal history was 'not insignificant' and that it qualified his prospects of rehabilitation and increased the need for specific deterrence.[9]

19 In respect of his medical history, although the judge took into account the appellant's medical history,[10] the appellant submits that the views expressed by Osborn JA in the appellant's initial appeal to this Court should be adopted in preference to those of the sentencing judge. But the factual basis upon which the judge sentenced the offender has not been impugned, there being no ground of specific error.

20 The proposition that too much, or too little, weight was given to a particular sentencing factor is almost always untestable, demanding, as it does, quantitative significance to be attached to matters considered in the instinctive synthesis. The remarks made by the Court of Appeal (Maxwell P, Redlich JA and Robson AJA) in Director of Public Prosecutions v Terrick[11] are apposite here:

The proposition that too much - or too little - weight was given to a particular sentencing factor is almost always untestable. This is so because quantitative significance is not to be assigned to individual considerations. The question to be addressed when the ground of manifest inadequacy - or, in a prisoner's appeal, manifest excess - is advanced is whether the sentence arrived at was within the range reasonably open to the sentencing judge in the circumstances, taking proper account of all relevant sentencing considerations (whether aggravating, or mitigating, or both). If the conclusion is that the sentence was outside the available range, then it may be inferred that too much or too little weight was given to one or other consideration. But rarely, if ever, will it be possible - or necessary - for the appeal court to reach a conclusion on that question.[12]

21 In all the circumstances, the judge was entitled to place great weight on considerations of general deterrence, denunciation and protection of the community when sentencing the appellant.

(c) Comparable cases and the range of available sentences

22 Following the High Court's judgment in Pham, this Court has had occasion in Nam Son Nguyen v The Queen[13] and again in Director of Public Prosecutions (Cth) v Thomas[14] to further examine how comparable cases which inform relevant current sentencing practice may provide guidance as to whether a sentence may be described as manifestly excessive. In the reasons of Redlich JA in Nam Son Nguyen, with whom Tate and Whelan JJA relevantly concurred, which were adopted in Thomas, he said:

The need for the judge to be provided with what has been done in other (more or less) comparable cases was stressed in the joint reasons in Barbaro v The Queen. In Hili, the plurality referred to Director of Public Prosecutions (Cth) v De La Rosa and the use of information about sentences that have been passed in other cases, that history of sentencing establishing a range of sentences that have in fact been imposed. The importance of the sentencing patterns disclosed by that history were recognised by the plurality in Hili to be of considerable significance, in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. As the plurality state in Hili, Barbaro and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed. Past sentences provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.

Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases.[15]

23 Although the range of sentences disclosed by comparable cases does not determine the upper and lower limits of the sentencing discretion, one ordinarily expects that the sentence fixed will bear an appropriate relativity to comparable cases unless it has been concluded that the existing sentencing range is wrong. Thus the joint reasons of French CJ, Keane and Nettle JJ in Pham recognise that the 'degree to which the impugned sentence differs' from sentences in comparable cases will inform the question of manifest excessiveness or inadequacy and whether there has been a misapplication of principle.[16]

24 The appellant seeks to demonstrate that the sentence imposed upon him was manifestly excessive, by reference to 15 appellate decisions from every Australian jurisdiction dealing with comparable offending, selected from cases presented by the parties on the High Court appeal.[17] These cases bear all of the following common attributes:

a) sentence imposed in the last five years;

b) for importing a border controlled drug;

1. in excess of the marketable quantity, but less than the commercial quantity;

d) being heroin, cocaine, methyl amphetamine or amphetamine;

e) involving only one type of drug;

f) against a person who pleaded guilty; and

g) who was a courier.

25 The range of sentences disclosed by these 15 cases is between three years and six months' imprisonment at the lower end of the range to a sentence of nine years' imprisonment at the higher end. Only one had a head sentence higher than imposed on the appellant. The range of non-parole periods extended from a minimum term of two years' imprisonment to six years' imprisonment. It was contended that having regard to mitigating circumstances the judge ought to have fixed a sentence towards the lower end of the revealed sentencing pattern.

26 The respondent submits that, apart from Youssef, the cases identified as comparable by the appellant are distinguishable and are inappropriate yardsticks against which his sentence should be measured. The respondent relies on some of the decisions set out in Attachment A to the reasons of Maxwell P in Pham 2014, namely, R v Mirzaee;[18] Brink v The Queen;[19] Mirza v The Queen;[20] and R v Paliwala.[21] The respondent further relies upon R v Mokoena.[22] It is submitted that having regard to these comparable cases, the appellant's sentence was well within the range of available sentencing options.

27 In Thomas, the Crown, in seeking to demonstrate that a sentence of five years for attempting to possess a commercial quantity of an unlawfully imported border controlled drug was manifestly inadequate had relied at first instance and on appeal on a table of cases that disclosed that sentences of a higher order than five years were not uncommon for the lesser offence of possessing or attempting to possess a marketable quantity of the drug. Thomas also referred to other cases concerning a marketable quantity of drugs, including the recent decision of the ACT Court of Appeal in R v Harrington[23] which considered a range of penalties imposed for offences of attempting to possess, or of importation, of a marketable quantity of border controlled drugs. Consideration of those decisions and those relied upon by the Crown in this appeal are comparable cases which provide a yardstick against which to measure the impugned sentence.

28 Applying the observations in the joint reasons of French CJ, Keane and Nettle JJ in Pham, set out above, it cannot be said that the sentence here imposed differs to such a degree to sentences imposed in a number of the comparable cases so as to suggest that there has been a misapplication of principle.[24] While it may be said that the sentence imposed was towards the upper end of the range of sentences available for this offending, we are not persuaded that the sentence imposed was wholly outside the range of sentencing options reasonably available to the sentencing judge as revealed by those comparable cases. The sentence of eight years and six months' imprisonment with a non-parole period of six years was in our view within a sound exercise of the sentencing discretion and is not manifestly excessive.

29 The appellant contends that this Court should, analogous to the exercise of its residual discretion in Crown appeals to disallow an appeal despite demonstrated error, take into account the evidence of the actual stress, anxiety and unfairness of the appellant having to be re-sentenced for a second time following the successful High Court appeal.

30 While the circumstances before this Court are unusual, an appellate court's residual discretion not to intervene is confined to Crown appeals. The authorities relied upon by the appellant, namely Director of Public Prosecutions (Cth) v De La Rosa,[25] Director of Public Prosecutions (Cth) v Bui,[26] and Green v The Queen,[27] lend no support to the argument that there is a residual discretion to intervene on a prisoner's appeal. It is to be remembered that the excessiveness or inadequacy of the impugned sentence is judged by reference to the matters which existed at the time of sentence. On Crown appeals, the residual discretion may be enlivened once a sentencing error has been found in order to avoid the consequence that would otherwise follow from allowing the appeal.[28] Once error is shown on a prisoner's appeal, if the sentencing discretion is re-opened, the period during which he is left in an uncertain and anxious state as to the length of his sentence is arguably relevant to the instinctive synthesis in the same way as delay is relevant. But if the grounds of appeal have failed, in this case the ground of manifest excess, no basis exists upon which we may intervene to reduce the appellant's sentence.

[1] Pham v The Queen (2014) 244 A Crim R 252 ('Pham 2014').

[2] R v Pham [2015] HCA 39; (2015) 325 ALR 400 ('Pham').

[3] Criminal Code 1995 (Cth) s 314.4(1), item 76.

[4] [2010] NSWCCA 238; (2010) 205 A Crim R 106, 126-8 [71]-[72].

[5] See, eg, DPP (Cth) v KMD [2015] VSCA 255 [39]; Atanackovic v The Queen (2015) 45 VR 179 [155]; Beqiri v The Queen [2013] VSCA 39; (2013) 37 VR 219, 231 [65]; Nguyen v The Queen [2011] VSCA 32; (2011) 31 VR 673, 681-3 [33]-[34].

[6] DPP v Pham (Unreported, County Court of Victoria, Judge Tinney, 23 October 2013) [17] ('Reasons').

[11] [2009] VSCA 220; (2009) 24 VR 457.

[13] [2016] VSCA 198 ('Nam Son Nguyen').

[14] [2016] VSCA 237 ('Thomas').

[15] [2016] VSCA 198 [71]-[72] (citations omitted).

[16] Pham [2015] HCA 39; (2015) 325 ALR 400, 406 [28].

[17] The cases are (1) Lau v The Queen (2011) VSCA 324; (2) Harper v The Queen [2011] VSCA 314; (3) Adenopo v The Queen [2011] VSCA 269; (4) Seah v The Queen [2011] NSWCCA 269; (5) Govindaraju v The Queen [2011] NSWCCA 255; (6) Thuong Nguyen v The Queen [2012] NSWCCA 184; (7) Kuti v The Queen [2012] NSWCCA 43; (8) Cherdchoochatri v The Queen [2013] NSWCCA 118; (2013) 277 FLR 126; (9) AB v The Queen [2013] NSWCCA 333; (10) Matthews v The Queen (2014) 44 VR 280; (11) DPP (Cth) v Johie [2013] VSCA 308; (12) DPP (Cth) v Johnson [2012] VSCA 38; (13) Youssef v The Queen [2011] NSWCCA 104 ('Youssef'); (14) DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1; (15) DPP (Cth) v Bui (2012) 32 VR 149.

[18] [2004] NSWCCA 315.

[19] [2010] NSWCCA 217.

[20] [2007] NSWCCA 257.

[21] [2005] NSWCCA 221; (2005) 153 A Crim R 451.

[22] [2009] QCA 36; [2009] 2 Qd R 351.

[23] [2016] ACTCA 10; (2016) 11 ACTLR 215.

[24] Pham [2015] HCA 39; (2015) 325 ALR 400, 406 [28].

[25] [2010] NSWCCA 194; (2010) 79 NSWLR 1.

[26] (2011) 32 VR 149.

[27] [2011] HCA 49; (2011) 244 CLR 462.

[28] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.