Pham v The Queen [2018] VSCA 200

1 On 14 March 2017, the applicant was found guilty by a jury in the County Court of one charge of attempting to traffic in a drug of dependence, namely cocaine, in not less than a large commercial quantity, contrary to s 71 of the Drugs, Poisons and Controlled Substances Act 1981. The large commercial quantity applicable to cocaine is one kilogram. The applicant was convicted of attempting to traffic 250 kilograms.

2 On 30 June 2017, following a plea hearing, the trial judge sentenced the applicant to 15 years' imprisonment. A non-parole period of 11 years and 6 months was fixed.[1] The maximum term of imprisonment for attempting to traffic in a drug of dependence in not less than a large commercial quantity is life.

3 On 28 July 2017, the applicant filed an application for leave to appeal against his sentence. The application for leave to appeal against sentence contained the following grounds of appeal:

Ground 1: The sentencing Judge erred in his characterisation of the role of the applicant in the movement of an illegal drug from source to consumer, in particular -

(a) by accepting the prosecution characterisation of the role as being 'an important part of the syndicate or enterprise';

(b) by finding that: 'Having considered all the evidence as to your role, which must be taken that the jury accepted, albeit over a limited period, it is well above that of a mere courier';

(c) by characterising the role 'as being that of a trusted intermediary in the trafficking operation';

(d) by finding that 'the intensity of your involvement and its centrality to the operation over that period puts your moral culpability as high'.

Ground 2: The sentencing judge erred in his assessment of the seriousness of the offending, in particular, by finding that 'the sheer quantum of the amount of drug you attempted to traffick puts this case towards the upper range of cases of this type'.

Ground 3: The sentencing judge erred by not taking into account as a matter of mitigation the fact that the offending was the result of a police operation.

Ground 4: The sentencing judge erred by concluding that 'any sentence must be substantially above sentences that have been imposed in the recent past for this offence'.

Ground 5: The sentencing judge erred by imposing a head sentence and non-parole period that were, in all the circumstances, manifestly excessive.

4 On 19 October 2017, Santamaria JA refused the application for leave to appeal.[2] Pursuant to s 315(2) of the Criminal Procedure Act 2009, the applicant has elected to renew his application for leave to appeal. At the commencement of the hearing this morning, the applicant abandoned grounds 1(c), 1(d) and 2. He also abandoned paragraphs 27 and 28 of his written case, being his written argument in respect of ground 4. Ground 4 was then argued together with ground 5.

5 In his reasons for refusing leave, Santamaria JA set out a detailed description of the applicant's offending.[3] It is not necessary to set out all of that description. In summary, in September 2015, the applicant became the subject of a covert police operation.

6 On 6 September 2015, a covert police operative (Mika) made contact with the applicant. A meeting was arranged for the next day. The applicant and Mika met in a café on 7 September. At the meeting, there was a discussion about the potential sale of 250 kilograms of cocaine. Subsequently, a price of $100,000 was agreed.

7 The following day (8 September 2015), the applicant and Mika met again at the café. They then drove to a carpark, where the applicant handed over a total of $100,000 in cash to Mika. The parties then drove to a hotel where the applicant was given six suitcases. Each suitcase was filled with approximately 40kg of brick-like blocks containing a white substance. Unbeknown to the applicant, the white substance in the suitcases was not cocaine. At trial, the substance in the suitcases was described as 'faux cocaine'. The applicant took the six suitcases from the hotel room in which they were situated, one by one, down to his van which was parked in the hotel car park.

8 Later that afternoon, police executed a search warrant at the applicant's home. They found the six suitcases in the garage. The six suitcases were seized and the packages of faux cocaine were all accounted for. Additionally, investigators found $10,000 in cash in a bundle in one of the applicant's jackets.

9 According to the amended summary of prosecution opening filed at trial, the value of 250 kilograms of cocaine in the illegal drug market when sold wholesale was $50-$60 million. At street level, in small quantities, 'after the usual cutting of the drug with other substances to increase its volume', its value was said to be $250 million.

10 In his reasons for refusing leave, Santamaria JA summarised the personal circumstances of the applicant;[4] described the trial judge's reasons for sentence in considerable detail;[5] and set out the applicant's proposed grounds of appeal and the applicant's submissions in support of those grounds.[6] We adopt as our own those parts of the Leave Reasons in which these matters were identified and described, and will not burden these reasons by their repetition.[7]

11 Having identified the relevant issues, Santamaria JA stated his conclusion that leave to appeal should be refused.[8] His Honour then set out his analysis that led to this conclusion.[9] Specifically, his Honour said:

In my opinion, leave to appeal should be refused.

The sentencing judge did not sentence the applicant by reference to any label; rather, he sentenced him by reference to the conduct in which he had engaged. The role played by the applicant in the present offending was significant. Plainly, he was acting in collaboration with unknown third parties. Telephone intercepts record that he was expecting a shipment or delivery of a very large amount of cocaine. During discussions, he himself was speaking about a delivery of 500 kilograms. He was entrusted with $100,000 in order to secure the purchase of the cocaine. The sentencing judge was right to describe the role of the applicant as being that of 'a trusted intermediary in the trafficking operation'.[10]

During oral argument, the applicant placed special emphasis on the fact that his conduct was associated with that of a covert police operative. It is true that the involvement of a covert police operative may affect the gravity of the offending or the moral culpability of the offender.[11] However, in the present case, the covert police operative simply facilitated an offence that was well within the contemplation of the applicant. The applicant was ready and willing to commit the offence for which he was eventually convicted. Transcripts of the applicant's conversations with the covert police operative show that the applicant was well aware that 250 kilograms of cocaine stored in six suitcases was involved. As indicated above, he believed that up to 500 kilograms would be involved. Moreover, the applicant was able to secure $100,000 in cash in order to secure the purchase on the following day. The videotape of the offending reveals that he had every opportunity to consider the gravity of the conduct in which he was involved. The applicant's involvement is to be contrasted with that of a person who commits an offence on the spur of the moment without any prior contemplation of committing such an offence.

The quantity of drugs proposed to be involved placed this offending at the upper range of cases of this type. It is well established that the quantity of drugs involved is a highly relevant consideration in sentencing for trafficking offences.[12] As the transcript of the telephone conferences and the videotape show, the applicant was well aware of the quantity of drugs involved. Unquestionably, the objective gravity of the offending and the moral culpability of the applicant in this case were very high.

The applicant contended that the sentencing judge had erred by imposing a head sentence and a non-parole period that were, in all the circumstances, manifestly excessive. The applicant pleaded not guilty; he showed no remorse. He is not entitled to the utilitarian benefit commonly associated with a timely plea of guilty. In cases such as the present, general deterrence - the need to deter other parties from engaging in similar conduct - is of particular significance. As demonstrated by the table of comparative sentences, upon which the respondent relied, a sentence of 15 years was well within range.[13]

12 We agree. Notwithstanding the very able, and more focussed arguments advanced by Mr Holdenson QC this morning, and having considered those arguments and the application for leave to appeal afresh for ourselves, we have come to the same conclusion as Santamaria JA that the application for leave to appeal is not reasonably arguable.[14] The application for leave to appeal must be refused for the reasons given by Santamaria JA together with the reasons that follow.

13 In argument this morning, counsel for the applicant accepted that he could not cavil with the judge's findings that the applicant was a trusted intermediary in the trafficking operation. Nor could he cavil with the finding that the intensity of the applicant's involvement and its centrality to the operation 'puts [the applicant's] moral culpability as high'. By reference to various paragraphs in the sentencing judge's reasons, the applicant complained about the judge's acceptance of the prosecution characterisation of the applicant's role as being 'an important part of the syndicate or enterprise' and (leading into this) that the applicant's role was 'well above that of a mere courier'. The applicant, however, accepted that a correct characterisation of his role was that of a person above that of a mere courier.

14 These arguments must be rejected. In the present case, we think there is little utility in debating the various labels and subtle differences in emphasis of particular descriptions. Much would depend upon precisely what content one would give to the general descriptions about which the applicant makes complaint. The applicant's role in the offending was plainly an important one. His involvement was very significant and, in our view, considerably beyond that of a mere courier. Debate about his status as a member of the offending enterprise or operation is, in the circumstances of this case, unproductive.

15 In relation to ground 3, counsel for the applicant developed a careful argument based upon the principles identified by Tate and Kyrou JJA in Kada v The Queen[15] concerning cases involving covert police operatives. The applicant submitted that the principles identified in Kada[16] were relevant in this case. So much may be accepted. The extent to which the judge gave any weight, as a matter of mitigation, to the involvement of covert police operatives in the present case, however, is not entirely clear.[17] Having read the passages in the sentencing reasons to which we were directed by counsel for the applicant, we are not persuaded that his Honour erred in the way he dealt with the issue of police involvement.

16 Ground 4 makes complaint that the sentencing judge erred by concluding that 'any sentence must be substantially above sentences that have been imposed in the recent past for this offence'. This statement was made by the judge as part of his discussion of this Court's decision in Gregory (a pseudonym) v The Queen.[18]

17 In Gregory, the Court considered, among other things, current sentencing practices for commercial quantity trafficking offences. After examining a number of sentencing decisions, the Court said that 'sentencing courts should not treat 10 years as a ceiling for this offence'.[19] The Court went on to say that sentences for large commercial quantity trafficking would also need to increase in order to maintain appropriate sentencing relativities.[20]

18 It is not entirely clear from the sentencing judge's reasons precisely what he meant by the statement that any sentence must be substantially above sentences that have been imposed in the recent past. Immediately before dealing with Gregory, the judge referred to the decision of Stanley (a pseudonym) v The Queen.[21] In Stanley, the applicant appealed against the sentence of eight years imposed on a charge of trafficking in a large commercial quantity (two and a half times the large commercial quantity in that case) of a drug of dependence. The sentence had been imposed following a plea of guilty. The Court in Stanley rejected the applicant's contention that the sentence imposed was manifestly excessive. It may be that the judge had Stanley in mind when he referred to the need for a higher sentence. That said, Stanley was a very different case from the present. The circumstance of the applicant's case, without the benefit of a plea of guilty, could never have justified a sentence of the order of that imposed in Stanley.

19 Whatever the sentencing judge may have meant when he said that any sentence to be imposed must be substantially above sentences that have been imposed in the recent past, in our view the sentence imposed by the judge could not be said to be in any way excessive, or above that permitted by current sentencing practices (either now or at the time of sentencing).

20 The sentence imposed by the judge was, in our view, entirely justified. The following points should be made:

(1) The maximum term of imprisonment for attempting to traffic in a large commercial quantity of a drug of dependence is life.

(2) The applicant attempted to traffic 250 times the applicable large commercial quantity.

(3) The sentence imposed upon the applicant was imposed following a trial. While the applicant is not to be punished for pleading not guilty, his plea deprived him of the substantial benefit he might have expected to receive had he pleaded guilty and shown remorse.

(4) While the applicant's previous good character and personal circumstances were relevant matters in the sentencing synthesis, as has been said many times before, the previous good character and personal circumstances of an offender in drug trafficking offences are generally given less weight as a mitigating factor.[22]

(5) As has also been said many times before, those who engage in the illicit drug trade, no matter what their status in the enterprise, must expect heavy sentences in which general deterrence will be the principal purpose of the punishment.[23]

21 In all the circumstances, and notwithstanding the mitigating factors relied upon, the applicant's complaint that the sentence was manifestly excessive is totally devoid of merit. Indeed, in our view there is no reasonable prospect that this Court would reduce the sentence imposed by the judge. This provides an additional basis for refusing the application for leave to appeal.[24]

[1] DPP v Pham [2017] VCC 905 ('Sentencing Reasons').

[2] Pham v The Queen [2017] VSCA 297 ('Leave Reasons').

[11] DPP (Cth) v Haidari [2013] VSCA 149; (2013) 230 A Crim R 134, 142 [31]-[33] (Harper JA, with whom Weinberg and Priest JJA agreed).

[12] Gregory (a pseudonym) v The Queen [2017] VSCA 151.

[13] Leave Reasons [38]-[42] (citations in original).

[14] Cf Lord v The Queen [2018] VSCA 52 [3]-[5] and the authorities referred to therein at n 3.

[15] [2017] VSCA 339 [72] ('Kada').

[17] See, in particular, Sentencing Reasons [49]-[50], [81]-[82].

[18] [2017] VSCA 151 ('Gregory').

[21] [2017] VSCA 54 ('Stanley').

[22] R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106, 127 [72](j); Dao v The Queen; Tran v The Queen (2014) 240 A Crim R 574, 580 [9]; Tsang v DPP (Cth) [2011] VSCA 336; (2011) 35 VR 240, 274 [162]; Lieu v The Queen [2016] VSCA 277 [43].

[23] R v Carey [1998] 4 VR 13, 17; Vi v DPP (Cth) [2017] VSCA 254.

[24] See s 280(1)(b) of the Criminal Procedure Act 2009.