Pham v The Queen; Tang v The Queen [2012] VSCA 101

1 The applicant Tang pleaded guilty to three counts of importing a commercial quantity of a border controlled drug pursuant to s 307.1(1) of the Criminal Code Act 1995. The applicant Pham was found guilty on three counts of attempting to possess a commercial quantity of border controlled drugs pursuant to s 307.5(1) of the Criminal Code Act. They were part of a highly organised and sophisticated criminal organisation involving many participants.

2 Both applicants complained that the sentencing judge had misplaced their position within the criminal enterprise, overstated their role, and failed to recognise the full extent of the role played by the other. I would make a number of observations about these contentions

3 Firstly, there was no distinction of substance to be drawn from the fact that one was convicted of importation and the other of attempting to possess a border controlled drug. Both carried maximum sentences of imprisonment for life. Whether the conduct of one was more serious than the other depended upon their conduct and position within the hierarchy, not upon the difference in the charge laid.

The offender's actions and position within the hierarchy

4 Secondly, it will be useful in some circumstances to distinguish the positions occupied by offenders within a hierarchical criminal organization as a means of determining the offender's level of culpability. For example a courier will generally attract a more lenient sentence than a principal within a criminal drug hierarchy. The characterization of an offender's position may not always illuminate and may sometimes obscure the actual level of criminality of the offender assessed by reference to his conduct.[1] Where the evidence establishes the acts performed by the offender and their position within the criminal organization, the offender's criminality is to be assessed by a consideration of both the actions of the offender and the role he occupies within the organization.[2]

Paucity of evidence as to the offender's position within criminal organisation

5 It will often be difficult to categorise the role of the offender within the criminal enterprise or to determine his role relative to others. The focus must then be upon the degree of criminality of the acts performed and their importance in accomplishing the organisation's criminal purpose. When dealing with a number of offenders whose positions within the enterprise are difficult to identify or are closely aligned, the need will arise to identify the features of each offender's conduct that justify the imposition of the sentences, whether they are the same or different, which have been imposed on each co-offender.

6 Here the offenders who were part of a criminal enterprise were less than forthcoming with investigators and with the court about how they came to be involved. They sought to disguise their precise conduct and position within the organisation. They gave accounts to investigators and to the sentencing court which were implausible or demonstrably false or were inconsistent with other explanations proffered for how they became involved and the roles they performed. Hence the full nature and extent of the enterprise and their conduct was unknown to the court. It was in that context that the sentencing judge was called on to assess each offender's role and their degree of culpability. In those circumstances the applicants could have no basis for grievance with the limited findings of the sentencing judge as to their respective positions and roles within the criminal enterprise.

7 It was not possible on the evidence available to establish the precise position which each occupied in the criminal organization. To the extent that the evidence permitted, it was necessary to focus upon the manner in which each applicant facilitated the commission of the offence as bearing upon the objective gravity of their crime. In that regard there was little to distinguish between them. The facts found by the sentencing judge showed that both applicants had played a material and largely overlapping role in facilitating the movement of the drugs after their arrival in Australia to premises in Braybrook where they jointly unpacked the goods in preparation for their distribution. The importation was extremely large. We were told that it was the largest importation thus far dealt with in this court. The quantities of the drugs, their street value and the role played by both applicants warranted the terms of imprisonment of 19 years imposed on each of them regardless of where precisely in the hierarchy they were to be placed. These sentences were towards the bottom of the range of sentences open to the sentencing judge.

Whether fact that applicant's family were overseas a mitigating circumstance

8 The applicant Tang complained that insufficient weight was given to the fact that prison would be more onerous for him because his family was overseas. In R v Adams[3] Vincent JA, with whom Buchanan and Nettle JJA agreed, found that it would be incongruous to have regard to separation of an offender from his family in his home country as constituting a basis for the reduction of penalty in a case where the person has come to this country for the sole purpose of committing a very serious crime here. Adams was followed in Po Kau Lau v R.[4] Even if some limited weight should be given to the hardship which the offender will experience because he is likely to serve his sentence in an Australian gaol with little or no contact with family, his Honour did so.

9 Tang also complained that his father, who was in ill health, would suffer hardship because of his absence. Section 16A(2)(p) of the Commonwealth Crimes Act 1914 requires the court to take into account the probable effect that any sentence would have on the person's family. The section must be construed consistently with the common law, so that exceptional hardship must be shown if there is to be any amelioration of the sentence.[5] The evidence of the applicant's father's health and circumstances do not constitute exceptional circumstances.

10 For these and the reasons given by Harper JA with which I entirely agree, I do not consider that any of the grounds of appeal have any substance. Both applications for leave to appeal should be refused.

11 On 15 May 2008, a container vessel sailed from Toronto. Its cargo included 46 'spa and pedicure' chairs bound for 'The Beauty Nail' whose address was given as 5/174 Duke Street, Braybrook, Victoria, Australia. Hidden in various cavities in these chairs were very large quantities of cocaine, methamphetamine, and MDMA (ecstasy). At the time of its arrival in the Port of Melbourne on 4 June 2008, this cargo was the largest importation of illegal drugs ever detected in this State.

12 The two applicants, Ken Quyen Van Tang and Son Anh Pham, and two colleagues of theirs (Thang Tan Le and Thien Trinh) were awaiting receipt of this shipment. Mr Tang is a Canadian who arrived in Australia on 24 May. He claims that there was a legitimate business reason for his visit. If so, that was not his

only reason for coming to Melbourne. He has pleaded guilty to three counts (one for each of the three drugs referred to above) of importing a commercial quantity of a border controlled substance. Mr Pham, an Australian, admitted to nothing, and stood his trial. The jury rejected his claim that he acted under duress. He was convicted of three counts (again, one for each drug) of attempting to possess a commercial quantity of each of the same drugs.

13 Mr Tang was sentenced on 27 November 2009, and Mr Pham by the same judge on 23 July the following year. Each was required to serve a term of 15 years' imprisonment on each count, with the same provision for cumulation and concurrency in relation to each. The end result is that each applicant has been imprisoned for a total of 19 years, with a non-parole period of 14 years. The sentencing judge proceeded on the basis that the culpability of Mr Tang was greater than that of Mr Pham, because the former was more intimately involved and was in a position to give instructions to his co-offender; but Mr Tang pleaded guilty, and the sentencing discount to which he was thereby entitled brought him back to parity with Mr Pham. The judge also held that parity of punishment was appropriate for the added reason that the maximum penalty for importing a commercial quantity of a border controlled substance (Mr Tang's offence) is the same as that for attempting to possess a commercial quantity of these drugs (the offence for which Mr Pham was found guilty). It is imprisonment for life.

14 Each applicant seeks leave to appeal against the sentence imposed upon him. The two other offenders (Thang Tan Le and Thien Trinh), having been convicted of offences of less gravity than those of the applicants, did not face the same maximum penalty, and are not parties to these applications.

15 Mr Tang is self-represented. He has filed a hand-written set of submissions the effect of which is that he contends, first, that the sentences passed upon him are manifestly excessive; secondly, that the orders for cumulation are inappropriately severe; thirdly, that fresh evidence forms a sufficient basis for a review of the sentences imposed at first instance; and, finally, that his decision to plead guilty to importation of the drugs, where no other offender was charged with this offence, has unfairly exposed him to discriminatory treatment.

16 Mr Pham relies upon two proposed grounds of appeal. One, the second proposed ground, is that the sentences are manifestly excessive. The other (the first proposed ground) is based upon two propositions. First, that the crime of importing drugs is more gravely culpable than that of attempting to possess them; and, secondly, that his moral culpability was for other reasons as well less than that of his co-accused Tang. In short, it is contended that by sentencing Mr Pham to the same punishment as that which was inflicted upon Mr Tang, the sentencing judge failed to apply the principle that different levels of culpability must be reflected in appropriately different punishment.

17 In my opinion, none of these proposed grounds of appeal have such substance as would warrant a grant of leave.

18 Mr Tang arrived in Australia on 24 May 2008, with - he asserts - two aims. The first was to help promote the business which employed him in British Columbia. The second was to act as a neutral observer of the consignment of drugs which, on 15 May, left Toronto concealed inside the 'spa and pedicure' chairs which in turn were stored for transport in a shipping container. His responsibility, as his counsel asserted on his plea, was to quantify the supply of drugs received in Australia and note any discrepancy between that quantity and the amount said to have been dispatched. He was then to assist in the resolution of any dispute about quantities.

19 Some time after his arrival in Australia, Mr Tang made contact with Mr Pham. It is clear that each understood that the latter would act as the point of liaison between the importers and the freight forwarders into whose custody the relevant container would be placed upon its arrival in the Port of Melbourne. Mr Pham's position, at this juncture at least, was therefore pivotal. It is also clear, however, that each applicant knew that the container was to be taken to a factory in Braybrook where, before going into the market place, the drugs would be removed from the furniture in which they had been concealed.

20 The plan never came to fruition. Before the container left the dock, Australian Customs and the Australian Federal Police determined that it should be searched. That having been undertaken, the very large quantities of drugs concealed in it were discovered: 39 packages of methamphetamine, 96 packages of cocaine and 360 packages of ecstasy. In its pure form, the consignment consisted of 71.564 kilograms of cocaine, (where two kilograms of pure cocaine is a commercial quantity) 9.757 kilograms of ecstasy, (where a commercial quantity is 500 grams) and 29.285 kilograms of methamphetamine, (where 750 grams is a commercial quantity).

21 Customs passed possession of the drugs to the police. At this point, the importation was complete, and so was the commission by Mr Tang of the crime with which he was charged. But it was necessary for the police to close the trap. Inert materials were therefore substituted for the drugs, their hiding places were resealed, and the container was once more placed in the possession of the freight forwarder. It was subsequently delivered, in accordance with Mr Pham's instructions, to the offenders in Braybrook.

22 The offenders then began the process of extracting the drugs from the furniture. This process was not very far advanced, however, before they received an unwelcome visit from the police. Arrests followed. By this time, although much remained to be removed from the foot spas in which, as the offenders thought, the drugs were concealed, Mr Tang had managed to load into his hire car 15 'bricks' of the inert material which the authorities had placed in the cargo. These were not insubstantial in size: each was approximately 20 cm x 10 cm x 3 cm.

23 The presence of the fake - and the absence of the illicit - goods explains why Mr Pham was charged with attempting to possess three categories of unlawfully imported border controlled drugs. Of itself, the mere fact that he was, in the words of his written case, charged with 'an inchoate offence and one which could never have succeeded, given the police's seizure of the drugs', says nothing about the comparative level of his criminality as against that of Mr Tang, who was charged with completed offences.

24 There is, accordingly, no substance in this aspect of Mr Pham's application for leave to appeal. It can therefore be put aside. It is nevertheless necessary, given the other grounds of appeal, to examine in more detail - so far as this is possible on the available evidence - the respective roles of each applicant.

The respective involvement of the applicants as a ground of appeal

25 It was Mr Pham who arranged for the delivery to the freight forwarder of the relevant shipping documents. It was also him who gave the instructions for delivery of the container to Braybrook. In addition, he was responsible for the payment - in cash - of at least a portion (in the sum of $7,661.77) of the forwarder's costs and charges.

26 Mr Tang's counsel said on the hearing of his client's plea on 20 November 2009 that, 'on the materials, the Australian end is being run by Pham.' This statement was, on the evidence then before the judge, justified. His Honour indicated as much in the course of the plea.[6] If additional evidence, disclosing a different picture, was in existence, then it was up to Mr Pham to point to it when, some eight months later (on 21 July 2010), his plea was heard.

27 Mr Pham did not take that opportunity. In describing Mr Pham's role in the affair, his Honour when sentencing him (Mr Pham) on 23 July said:

It is clear that the jury rejected your [Pham's] claim to have acted under duress. I am unable to identify the detail of what occurred between the time of your recruitment and your arrest. You have given shifting accounts. ... Having regard to the records of interview, and the evidence you gave on voir dire and the trial, I consider you to be an unreliable informant - to put it as neutrally and kindly as I can.[7]

28 In the end, however, his Honour was 'prepared to sentence [Pham] on the basis that [his] role was limited to facilitating the delivery of the container to the warehouse and unpacking the contents.'[8] In adopting this approach, his Honour was, perhaps, taking a view of the evidence which was generous to Mr Pham. But this was a position which, as the tribunal of fact on this aspect of the case, the judge was entitled to adopt.

29 If it was difficult to discern with any clarity the detail of Mr Pham's involvement in this importation, then that of Mr Tang remains at least equally obscure. If, as his counsel contended on the plea, Mr Tang's role was to adjudicate upon any dispute about alleged differences between quantities sent and quantities received, and be paid $30,000 in return (nothing was said about any increase or decrease depending upon whether or not a dispute arose, and if so how wide apart the parties might be) then no evidence was called to substantiate that claim. In any event, the judge and this Court may justifiably infer that such a role is conferred on someone who is trusted by both sides, and who is well briefed by at least one of them. As the judge observed during the course of the plea, 'Why would you trust him? Why would he be chosen to be the independent observer satisfactory to both sides?'[9] And a little later: 'You don't get an independent person who knows absolutely nothing' to take on the task that Mr Tang contends was his.[10]

30 The difficulty faced by his Honour is demonstrated in the following exchange between bench and bar:

HIS HONOUR: ... it was because he [Mr Tang] was coming [to Australia] that he was approached by these people [in a casino] and asked to do something - I haven't been told what or how that all came about, but I have got an idea [that he was] ... asked to do some favour for them. Are we going to be in a position to identify who these people were?

COUNSEL FOR TANG: No, your Honour - which is also not unusual in cases like this, I must say.

HIS HONOUR: No, it's not an unusual case that people say: 'We can't identify the person behind the scheme', but it often strikes me as remarkable that we can't, because as soon as one asks: 'Well, what arrangements were made for payment? Who were you going to contact? How were you going to confirm that you had played the role you have?' the information is: 'Well, I was to be contacted after the job was done', or 'all I know is the person who asked me to do this was named Bill'.

COUNSEL FOR TANG: Your Honour I'm not putting either of those propositions to you. All I am saying to your Honour is that the information will not be forthcoming.

HIS HONOUR: Yes. The thrust of all this is you want me to accept that his role here was secondary to others who were behind the importation. Presumably there is going to be a submission that he was not aware of the extent of the drugs, perhaps, that he was facilitating the importation of, or something like that. If I am going to accept that sort of material from the Bar Table, it is a bit of an ask, I think.[11]

31 Later in the plea, the judge remarked that unless there was something else that completed the picture 'I think I am inevitably going to be driven to a conclusion where I am saying that I don't know really what went on here.'[12]

32 That remained the position at the conclusion of the plea. Upon the hearing of this application, Mr Tang sought to put before the Court as fresh evidence an affidavit from his Canadian employer to the effect that the employer was aware of the applicant's plans to visit Australia, and that his visit was approved. The affidavit also attested to the receipt by the employer of certain material relevant to its (lawful) operations which Mr Tang had obtained in Australia and forwarded to Canada.

33 I need not finally decide whether the Court should receive this material for the purpose for which it was sought to be tendered. It is sufficient to observe for present purposes that, even if received, the evidence from the employer takes the matter no further than supporting the conclusion that Mr Tang's visit to Melbourne (albeit a particular destination to which the employer's evidence makes no reference) was in part for legitimate purposes. I am prepared to assume as much.

34 Of itself, that information is not of any relevance in assessing the level of Mr Tang's criminality. The important point is that the questions asked by his Honour concerning the role of Mr Tang and his position in the relevant hierarchy remain unanswered. Those questions were highly pertinent. In the absence of any answers, it is impossible for Mr Tang successfully to argue that other offenders in other cases such as Teng & Ors v R[13] and Nguyen v The Queen[14] displayed greater culpability than he, yet were dealt with more leniently. Mr Tang has not allowed the Court to make the comparison.

35 As I have already remarked, it can nevertheless be inferred, in the absence of any evidence to the contrary, that anyone who, like Mr Tang, is entrusted to act as a broker between two possible disputants over any alleged differences between the quantities of illegal drugs ordered and the quantities supplied must have the high confidence of at least one of those parties. Given that this is so, and given his Honour's finding about the extent of Mr Pham's involvement, the conclusion that of the two Mr Tang bore the greater moral culpability is in my opinion unimpeachable.

36 In these circumstances, it was open to his Honour to find that the lesser culpability of Mr Pham was counterbalanced by Mr Tang's entitlement to a sentencing discount for pleading guilty.

37 Both Mr Pham and Mr Tang contend that their respective sentences were manifestly excessive. That is a ground which will succeed only where it can be shown that the sentence was wholly outside the range of sentencing options available. It is for this reason a ground which generally admits of little argument. There is even less room for argument if the information upon which the court can make an informed decision about that range is, as in this case, withheld from the court by the offenders.

38 That disposes of the grounds upon which Mr Pham sought to rely. His application must therefore be dismissed.

39 Mr Tang complains, in addition, that the orders for cumulation made in his case were unjust. I disagree. Albeit that they reached Australia as one consignment, each of the three drugs was in my opinion properly viewed by the authorities as involved in a separate act of importation,. The quantities of each were, by orders of magnitude, above the respective qualifying levels for commercial quantities. Each in my opinion required separate punishment. The cumulation ordered by his Honour was, it seems to me, appropriate.

40 I have already referred to the application by Mr Tang to admit as fresh evidence material relating to the health of his father. Even if admitted, however, that evidence could not be used as a justification for a reduction of his sentence. Such use can only arise in circumstances of exceptional hardship. For the reasons given by Redlich JA, those circumstances do not obtain here.

41 Mr Tang submits that imprisonment in Australia will be particularly hard for him because his family live in Canada. One may readily accept that his isolation from them will have the result that his time in prison will be more difficult for him than it would be for Australian prisoners whose families take advantage of their readier access to their imprisoned relatives. On the other hand, it was held in R v Adams[15] that it would be incongruous to make this a ground for a reduction in penalty where the offender came to this country for the sole purpose of committing a very serious crime here.

42 As noted above, I am prepared to assume that Mr Tang had a legitimate reason for visiting Australia. But the evidence of those of his Australian-based activities which were connected with his employment amounts to very little. The only conclusion open on the evidence is that a dominant purpose, indeed almost certainly the dominant purpose, of his visit was to participate in a very large importation of illegal drugs. In any event, however, and whether or not his Honour was required to take into consideration the hardship caused by remoteness, the judge did take that hardship into account as a mitigating factor. It follows that this is not a matter about which the applicant can justifiably complain.

43 Mr Pham contended that his crime of attempting to possess was less serious than Mr Tang's crime of importation. In a variation of the opposite of this theme, Mr Tang seems to argue in his written case that he was treated unfairly because he was the only offender charged with importation, to which he pleaded guilty. I have already given my reasons for concluding that both he and Mr Pham were charged with the offences which reflected their offending. There is in my opinion nothing in this complaint.

44 For these reasons, neither applicant has made out a case for being granted leave to appeal. Each application must be dismissed.

45 I have had the benefit of reading the draft judgment of Harper JA with whom Redlich JA agrees. I, too, agree for the reasons stated therein, that each application for leave to appeal be dismissed.

[1] The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270, 279 [19]-[20]; De La Rosa [2010] NSWCCA 194, [255]; Nguyen and Pham [2010] NSWCCA 238; Phommalysack v The Queen [2011] VSCA 32, [34] (citations omitted); Paxton v R [2011] NSWCCA 242.

[2] The Queen v Olbrich (supra); Savass v R [1995] HCA 29; (1995) 183 CLR 1; R v Wong; R v Leung [1999] NSWCCA 420; Tyler v R [2007] NSWCCA 247, [78]-[95] (Simpson J with Spigelman CJ and Harrison J agreeing); R v Riddell [2009] NSWCCA 96 [37]-[41].

[3] [2007] VSCA 37, [23]-[24].

[4] [2011] VSCA 324, [43].

1. [5] R v Holland [2002] VSCA 118; (2002) 134 A Crim R 451; R v Mangione [2006] VSCA 34, [10]; DPP v Gaw [2006] VSCA 51; Anna Le v R [2006] NSWCCA 136, [25].

[13] [2009] VSCA 148; (2009) 22 VR 706.

[14] [2011] VSCA 32.

[15] [2007] VSCA 324.