PHAM, Van Diep; TRAN John Xanvi v R [2008] NSWCCA 194 | Case summary

PHAM, Van Diep; TRAN John Xanvi v R [2008] NSWCCA 194 | Case summary | Zoe

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R v Van Diep PHAM Van Diep PHAM v R R v John Xanvi TRAN John Xanvi TRAN v R Judgment 1 ALLSOP P: On 31 January 2007, the two convicted appellants Van Diep PHAM and John Xanvi TRAN were found guilty of various charges concerned with the supply of prohibited drugs. The following table sets out the 17 counts (some in the alternative), the charges, verdicts of the jury and sentences. John Xanvi TRAN Indictment Charge Verdict & Sentence Count 1 Supply commercial quantity of a prohibited drug (heroin) Guilty. Non-Parole of 9 years to date from 16.6.2005 and expire on 15.6.2014 with a balance of term of 3 years to expire on 15.6.2017 (d.o.o 24.1.2005) Count 2 Supply indictable quantity of a prohibited drug (cocaine) Guilty. Fixed term of 3 years imprisonment to date from 16.6.2005 and expire on 15.6.2008 (d.o.o 24.1.2005) Count 3 Supply large commercial quantity of a prohibited drug (3, 4-methylenedioxy-methylamphetamine) Guilty. Non-parole of 8 years to date from 16.6.2009 and expire on 15.6.2017 with a balance of term of 4 years to expire on 15.6.2021 (d.o.o 24.1.2005) Count 4 Supply commercial quantity of a prohibited drug (heroin) Guilty. Non-parole of 9 years to date from 16.6.2006 and expire on 15.6.2015 with a balance of term of 3 years to expire on 15.6.2018 (d.o.o between 19.2.2005 and 25.2.2005) Count 7 Supply large commercial quantity of a prohibited drug (cocaine) Found not guilty but guilty of statutory alternative to Count 8 (d.o.o 25.3.2005) Count 8 (alternative to Count 7) Supply commercial quantity of a prohibited drug (cocaine) Found not guilty of count 8 but guilty of the statutory alternative, supplying cocaine. Fixed term of 3 years imprisonment to date from 16.6.2006 and expire on 15.6.2009 (d.o.o 25.3.2005) Count 11 Supply commercial quantity of a prohibited drug (heroin) Guilty. Non-parole of 9 years to date from 16.6.2006 and expire on 15.6.2015 with a balance of term of 3 years to expire on 15.6.2018 (d.o.o 1.4.2005) Count 13 Supply commercial quantity of prohibited drug (heroin) Guilty. Non-parole of 9 years to date from 16.6.2006 and expire on 15.6.2015 with a balance of term of 3 years to expire on 15.6.2018 (d.o.o. between 12.5.2005 and 15.5.2005) Supply large commercial quantity of a prohibited drug Count 16 (N,N-Dimethylamphetime) Guilty. Non-parole of 7½ years to date from 16.6.2008 and expire on 15.12.2015 with a balance of term of 2½ years to expire on 15.6.2018 (d.o.o between 26.12.2004 and 16.6.2005) Count 17 Supply commercial quantity of a prohibited drug (alternative to Count 16 ((N,N-Dimethylamphetime) Found guilty on count 16 (d.o.o 16.6.2005)

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2 The overall sentences imposed by the trial judge provided for a non-parole period for Mr Pham of 10½ years (with an additional term of 3½ years) and for Mr Tran of 12 years (with an additional term of 4 years). 3 Mr Pham and Mr Tran appeal against their convictions. Mr Tran carried the burden of this argument in his appeal. Mr Pham was not represented on the conviction appeal. Mr Haesler SC, who appeared for Mr Pham in the Crown's sentence appeal (to which I will come) indicated that Mr Pham was content to take advantage of any successful argument put on behalf of Mr Tran, but did not wish to be heard on the conviction appeal. 4 The Director of Public Prosecutions (the "DPP") appeals under s5D of the Criminal Appeal Act 1912 (NSW) against the sentences imposed by the trial judge on both Mr Pham and Mr Tran alleging manifest inadequacy and various errors in her Honour's approach to sentencing. 5 Mr Tran also seeks leave to appeal against the severity of the sentence imposed on him on the ground that the sentences were manifestly excessive. I would take it that Mr Pham would also seek the benefit of any view held by the court that Mr Tran's sentence was manifestly excessive, to the extent the reasoning could be applied to him. 6 It is convenient to begin with Mr Tran's conviction appeal. Before dealing with the arguments put on Mr Tran's behalf, it is of assistance to appreciate, in summary form, the interplay of the different bodies of evidence in relation to each count. Both the Crown and Mr Tran's counsel assisted the Court in this regard. That is said not only to thank counsel for their helpful submissions, but also to make the point (in advance of dealing with the significant argument that her Honour's summing-up was unbalanced) that the trial judge had the difficult task of explaining to the jury in a not short trial involving 17 counts (some in the alternative) how different parts of the evidence were said to fit together in a largely circumstantial Crown case, not traversed by any positive case by either Mr Tran or Mr Pham.

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Ground 1: The trial judge erred in allowing the expert evidence of Det Sgt Stuart Cadden 22 Det Sgt Cadden's evidence was directed to the language (once translated) used by Mr Pham, Mr Tran and others in intercepted telephone conversations. The conversations were translated into English by qualified translators. Det Sgt Cadden then gave evidence, in effect by way of "decoding" the language, as to (using that prepositional phrase very generally) the meaning of certain words. 23 Before examining his evidence, and the complaints made about it, it is fair to say that the evidence was important to the Crown's case. A significant body of evidence was obtained by surveillance and by interception of telephone calls. The conversations recorded were almost totally in Vietnamese and, when translated, did not in terms refer to any of the drugs in question. The Crown's case was that when one appreciated the code that was present one could interpret the conversations as ones relevant to the dealing in the drugs in question. 24 Det Sgt Cadden first gave evidence on 8 and 9 November 2006 on the voir dire about his qualifications, experience and his analysis of the telephone intercepts. After this evidence was given counsel for Mr Tran (who was not counsel on the appeal for Mr Tran) put three submissions as to the inadmissibility of the evidence: (a) that it was not a proper subject of expert evidence; (b) that he was not shown to be qualified; and (c) that Det Sgt Cadden did not sufficiently disclose his reasoning. 25 Only the third argument was pressed on appeal. It was submitted that by failing to produce a drug code table and drug price table referred to in his evidence and not divulging details of the previous matters that he had been involved in prevented Mr Tran from adequately testing the evidence or its basis. 26 The trial judge ruled that Det Sgt Cadden's evidence was admissible and he gave it orally. 27 The reasons given by the trial judge for allowing the evidence were as follows: Detective Cadden said the basis for each opinion was his knowledge accumulated in his six years experience of drug investigations, listening to conversations recorded by intercepted telephone or use of listening devices, reading transcripts of such conversation, conversations with informants, conversations with persons arrested and charged with drug offences and conversations with other drug investigators. In forming his opinions he said he referred to, but did not rely on, a dictionary compiled within the New South Wales Police Service of words heard in investigations and their meanings. He said he did not allow anyone else's opinions as contained in that list of words replace his and he relied on his own experience to form his opinions. The value of drugs was a factor in the opinions he expressed about some words. He said he referred to a list or record maintained with the New South Wales Police Service of prices of drugs. He declined to produce the list of prices or the list of words nor could he produce when asked in cross-examination by Mr King, counsel for Mr Tran, any record or note from any particular investigation in which he had been involved. Mr King submitted that without those documents being produced the basis of opinions could not be tested. In my view the detective does not need to produce those documents to demonstrate experience and knowledge. I do not read the authorities as requiring the production of such material in order to meet the test in Makita v Sprowles or the other authorities. 28 In my view, the trial judge's reasoning was correct. The complaint is and was that the witness did not produce two documentary sources of knowledge to which he had recourse. This did not affect the exposure of his reasoning process. Self-evidently, there was no production of written material to which the witness had made reference. As to the "dictionary" that was maintained by the Police Service, Det Sgt Cadden said that he did not use the document to form his opinion; rather, he relied on his own experience to do so. In relation to the price list, Det Sgt Cadden did accept on the voir dire that he had reference to the list; but it is also clear from his evidence that he had recourse to his own extensive experience. 29 The absence of these documents did not mean that the witness' reasoning was not exposed. I will not lengthen these reasons unnecessarily by setting out Det Sgt Cadden's evidence in full; but the following examples can be given: CALL DATED 29/12/04 READ Q. Sir were you able to identify in that conversation anything consistent with the usage of drug code terminology? A. Sir the word cabinet is a term which is consistent in my experience with a reference to the prohibited drug ice or crystalline methylamphetamine. I base that on a number of reasons, one being experience I've had in that word, in a term through the sources as we've spoken of in my experience as I went through I started my evidence, also based it on a translation of a Vietnamese word which literally leads me to believe the word cabinet is an alternate word for fridge. Just bear in mind if I could refer to my notes for the exact translation of that word if the court allows me. …

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Q. So paragraph 107 is where you start? A. Sir the word fridge in Vietnamese is in my knowledge is made up of two words being To and Lun, now I don't profess to have the tone marks or the pronunciation correct in those words. Q. What does To mean? A. To I understand to mean cabinet. Q. And Lun? A. Lun means cold. Q. Together? A. Well literally meaning a cold cabinet. Q. What if anything is that consistent with in drug terminology in your experience? A. Would be drug ice or crystalline methylamphetamine. Q. What is your view in relation to the use in this call of the word cabinet? A. Sir in my experience the word cabinet is consistent with a reference to the prohibited drug ice. Q. Just for clarity sir, you've given evidence that cabinet is translated as To in Vietnamese, is that right? A. Yes that's right. Q. Is is Lun is cold? A. Yes that is where the word fridge comes from the word cabinet To Lun, in other word cabinet with the word Ao on the end Ao becomes like a wardrobe. Cabinet To means in my experience with the Vietnamese language a domestic container and if you were to put Lun at the end which means cold it becomes a fridge, you put Ao at the end which is clothes it becomes a wardrobe, that's my understanding of the variation of the Vietnamese language, one word will denote something and the following word will mean what it actually is. Q. Just sticking with the example you've given of To Lun? A. Yes. Q. What is the literal meaning of that in English? A. Cabinet cold but is used to refer - it is used to mean fridge. Q. Yes and that term To Lun is consistent with what usage in the drugs trade in your view? A. It's also consistent with ice or crystalline methamphetamine - methylamphetamine. Q. In that case the word cabinet is used? A. Yes. Q. Right. Do you have a view as to whether the word cabinet standing alone is consistent with any usage in drug terminology? A. Yes sir it's consistent with the reference to the ice or crystalline methylamphetamine. The words in my experience are interchangeable.

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CALL DATED 21 JANUARY AT 13:13 HOURS READ Q. I draw your attention, sir, to the sixth line in which Tu Lo says, "Hey about the old man Anh-Ba"? A: Sir that's consistent with the previous calls I've seen in this exhibit regarding the term "old man" being a reference to the drug heroin. Q. I draw you to five lines on where Tu Lo says, "But they say get him to come down to the house number 5, can you do that? Anh-Ba come down to Tu Lo to number 5. The house number is 3 I mean the house number is 130. They want him to come over to the house number 105 Oh I mean 125"? A. Sir it proves I've given my evidence regarding the house number being consistent with the price given that the house number is what the value is. This series, this part of the conversation certainly assists in that opinion. 130 and 125 being in my opinion the references to thousands of dollars is a very consistent price for a 350gram block of heroin. Q. Consistent with what? A. Consistent with the price for a block of heroin of that nature. Q. At this time? A. Yes. Q. Yes, please go on? A. that's what would be expected to pay and the discount say of five obviously my opinion would be $5,000 and that would be consistent with what one might expect a person to request as a discount for a block of heroin when considering you're paying that much money. Q. Is that interpretation consistent with the difference between $130,000 and $125,000? A. Yes sir, yes. 30 These examples, which are typical, show that the reasoning of the witness was disclosed. The evidence was partly based on his familiarity with terms from his experience and a process of inductive and deductive logic, together with some common sense. The evidence can be seen to be substantially based on his expertise. The contrary was not propounded on appeal. 31 The objection at the trial (and on appeal) was as to the threshold admissibility of the evidence for lack of exposed reasoning. In my view that complaint is not made out. 32 No complaint was made at the trial (or on appeal) based on either or both ss135 and 137 of the Evidence Act 1995 (NSW). The absence of the documents that were held by a third party (the Police Service) and that were readily identifiable at the time of the voir dire and before, might conceivably have formed a basis of such an application. No doubt, however, the amenability of the documents to production by a subpoena would have been relevant to any such application. 33 The argument was that there was an absence of reasoning. There was not. This ground of appeal fails.

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Ground 2: The trial judge erred in allowing the Crown to re-open its case after commencement of the address by the Crown Prosecutor 34 This complaint arose out of evidence given by a Mr Nguyen. His evidence dealt with voice recognition. Mr Tran (the appellant) had accepted that it was his voice on some of the recorded interceptions; but he did not make that concession as to all recordings said to be of conversations involving him. Mr Nguyen's evidence was intended to be used to prove that it was Mr Tran's voice on all the tapes as the voice of "Anh-Ba". On the voir dire, Mr Nguyen gave evidence by reference to his statement dated 2 December 2006 to the effect the voice of Anh-Ba appeared in the listed telephone calls. At the trial, the Crown Prosecutor sought to take a short cut to avoid taking Mr Nguyen to every transcript. This course, however, led to the statement of Mr Nguyen not being tendered, by oversight. This occurred through the inadvertence of the Crown Prosecutor. 35 The trial judge permitted this oversight to be cured. There was power to do so: Wasow (1985) 18 A Crim R 348 at 350 (though a case before any defence case); and R v Chin (1985) 157 CLR 671 at 677 and 685. The question is essentially one of fairness, based on the accused being entitled to know the case to be met. There could have been no doubt that Mr Tran and his counsel understood the intended extent of Mr Nguyen's evidence. It was not asserted that there was any step taken or not taken by the defence based on the limitation in the Crown case caused by the error. Rather, it was submitted that prejudice would be caused by the possibility or a potential for the jury placing disproportionate weight on the evidence lately produced. Counsel for Mr Tran cross-examined on the further evidence. 36 In all the circumstances, I do not see any error in the exercise of the discretion by the trial judge to remedy an oversight in a complex trial in a body of evidence that was clearly before the defence.

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(5) It is necessary for the jury to be reminded that there may be reasons for the telling of a lie apart from the realisation of guilt. 51 Whealy J also, dealt with the problem of circularity in relation to reliance on lies by referring at [38] to Zheng v R (1995) 83 A Crim R 572 at 576-77; R v ST (1997) 92 A Crim R 390 at 394; Mercer v R (1993) 67 Crim R 91 at 98; and R v Middleton [2001] Crim LR 251; and R v Harron [1996] Crim LR 581 at 583. 52 In Zheng at 576-77, Hunt CJ at CL said the following: Once the jury had reached that conclusion concerning the appellant's conduct, there was nothing further which the Crown had to establish relating to that particular conduct of the appellant. For the jury to be invited to conclude that the appellant's lies concerning his conduct in the car park was available as evidencing a consciousness of guilt, which could then in turn be taken into account in some way in determining whether the appellant had in fact conducted himself in that way is a wholly circular argument. In other words, the appellant's lies as to what he did in the car park could not logically be established without first reasoning that the appellant had in fact done in the car park what the Crown's witnesses said that he did, where their evidence was the only evidence that he so conducted himself. This circular process of reasoning was necessarily erroneous in relation to the second and third counts, where that was the only conduct concerning the appellant which the jury had to consider. Lies should not have been left at all in relation to those two counts. (footnotes omitted) 53 The Crown Prosecutor addressed the jury, referring to lies that on the Crown case had been told. He relied upon these as evidence of a consciousness of guilt. 54 The trial judge's directions about lies covered five pages of transcript. Complaint was made about two particular aspects of these directions: Next I want to say something to you about lies. The Crown has submitted to you that each of the accused lied in his interviews with police and the Crown has submitted that those lies show that each accused is conscious of his guilt of the offence charged. Specifically the Crown submitted that Mr Tran lied in his interview about the following things, that he lived in [an address at Marrickville] , the infrequency of his visits to [the Cabramatta house] , his lack of knowledge of heroin in [the Cabramatta house]. …. The Crown also submitted that he lied in the explanations he gave for his possession of the Ice in his car on 16 June, that he was given it by a man named Peter. To deliver to Domino's Pizza at Canley Heights, for a payment of $1,000 [without knowing what he was delivering]. 55 It was submitted on behalf of Mr Tran that the jury was invited to use the alleged lie by Mr Tran about his "lack of knowledge of heroin or white powder in [the Cabramatta house]" (being an aspect of the ultimate issue) in the assessment of the ultimate issue in relation to counts 1-3. A similar submission was made about Mr Tran's (allegedly false) explanation for the presence of the drug Ice in his car in relation to count 17. 56 The trial judge did, however, in her direction, seek to divorce the consideration of the lies from the underlying evidence about the issues in question and break any circularity. Her Honour directed the jury as follows: The Crown asks you to consider the lies as evidence in support of the other evidence in the Crown case. So in order to decide if a statement is a lie, you cannot look at the evidence in the Crown case that the Crown wants you to find supported by lies. That means you cannot look at the telephone intercepts or the surveillance to decide that if one or other of the accused told a lie, in order to use that lie as support for the evidence in the telephone intercepts and the surveillance evidence. You cannot go round in circles like that, you have to look for other evidence to decide if you can identify a lie. 57 No complaint was made at the trial about the adequacy of this direction as to eliminating the risk of any circular reasoning. It is possible that it could be argued that this is a case in which it is difficult to identify evidence other than that which her Honour said should not be taken into account, that could support the conclusion of the lies. That complaint was not made at the trial. 58 Given that her Honour did deal with the circularity issue and that no complaint was made at the trial below as to this aspect of the summing up, it has not been shown, in my view, that leave should be granted under rule 4. I would refuse leave to raise this ground of appeal.

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Ground 6: The trial judge's summing up was unfair and unbalanced and led to a miscarriage of justice 59 This complaint was made below. On appeal, Mr Tran relied on the matters raised by counsel at the trial. 60 Trial counsel first complained of the lack of resemblance of the summing up to the address by the Crown. The second complaint was that it did not take the form of an outline of the arguments of the respective parties. Thirdly, complaint was made about the volume or extent of the consideration of the Crown's case. This was to be contrasted with a comment at the end of the summary of the Crown's evidence that they had heard what Mr King (counsel for Mr Tran) said about that and that the judge need not remind them of that. 61 A number of things need be said about the Crown case and the summing up. First, the number of counts and the complexity of the fragmented evidence from surveillance, telephone intercepts, translation, voice recognition, code evidence, searches pursuant to warrants and arrests, and records of interview made a careful marshalling of the evidence of the Crown in a coherent way a very difficult task. The trial judge meticulously collected and discussed the evidence in relation to each count to bring form and structure to it. The task was a difficult one. It was a task necessary to be done in order that a complex Crown case could be adequately explained to a jury. It was a task necessary to be done to do fairness to the Crown. The trial judge was not obliged to leave opaque any body of evidence that may not have been fully or coherently explained by the Crown in its address. 62 The difficulty for the accused at the trial was that when a coherent and meticulous collection of the evidence was displayed in the summing up, it is, and was, apparent that the Crown case was very strong. That was not the product of an unfair summing up; rather, it was the product of a meticulous and clear organisation of the material by the trial judge. 63 After the objection was made by counsel for Mr Tran her Honour said the following: All right thank you. Well in my view the summing up was a resume of the evidence in relation to each count. It was organised to relate the evidence to each count. I did put the defence case in my view but it's difficult to put a defence case higher than the case that was run which in both cases was fairly minimal. I did put your criticisms of Detective Cadden's evidence in my view. They essentially boiled down to the criticisms as I put them. If the Crown is strong and the defence case is less so a balanced summing up does not have to weaken the Crown case and strengthen the defence case in order to be balanced. I did not water down any warnings. I gave them in accordance with the legislation and the authorities which had considered them. Your application is refused. 64 The legitimacy of her Honour's views need to be assessed. 65 The address by counsel for Mr Tran occupied two days. A significant attack was made on the reliability of Det Sgt Cadden as a witness and of his evidence. The evidence of other experts was called into question, in particular that of voice recognition. The jury were taken over large sections of the evidence, in an address, which, if may say without intended disrespect, lacked a degree of cohesion and clarity. The evidence of words used in the transcripts and Det Sgt Cadden's interpretations were gone over at length. It would not be a productive task to try and summarise the almost two hundred pages of transcript. It is sufficient to say that the jury were asked to find reasonable doubt in circumstances of the reciting of a mass of apparently confusing and unorganised evidence from witnesses some of whose reliability was put in question, in the face of the asserted explanations given by Mr Tran in his records of interview. 66 Mr Tran's case can be summarised as follows. Mr Tran did not give evidence but evidence was called on his behalf. Mr Tran's solicitor, Mr Elliot, gave evidence that as a result of his client's instructions he went to a shop in Cabramatta where there was a restaurant called Hai Ven. On the front glass door of the restaurant there was a painting of palm trees. Mr Elliot also gave evidence that he went to the office of Fair Trading and conducted searches on business names for those premises and found the premises had also been known as Cay Dua in 2002. Documents from the New South Wales office of Fair Trading recorded that Hai Ven was registered in August 2003 and at the time of trial was still registered in that name. The premises had previously been registered as Cay Dua in 1998. A Mr Pham (a NAATI level 3 translator) gave evidence that one of the business names provided to him by Mr Elliot, Cay Dua, translated to "coconut tree" when spoken but it read as "palm tree". This evidence related to the intercept evidence and the references to meeting at the palm tree. There was a palm tree outside the Cabramatta house. 67 Mr Tran admitted that he went to the Cabramatta house with the palm tree but submitted that the Crown was not able to prove through the surveillance evidence that he had gone there every time that he had mentioned. Counsel submitted that the Crown had not proved beyond reasonable doubt that Mr Tran was in possession of the drugs found there. 68 Mr Tran through his counsel sought to show through cross-examination that Det Sgt Cadden's evidence about the coded conversations could not be accepted beyond reasonable doubt. It was submitted that Det Sgt Cadden's evidence was biased, that he knew of the arrests and what was found at the arrests and that this would have influenced his interpretation of the calls in a particular way. Counsel also submitted that there were other possible meanings to the words attributed as "drug code" by Det Sgt Cadden. He also submitted that the Crown had not proved that Det Sgt Cadden's suggested meanings were the only possible meaning. 69 Counsel for Mr Tran also submitted that the Crown had not shown, beyond a reasonable doubt, that the interpreters had correctly attributed the identities to the voices except for those calls in respect of which admissions were made. 70 Mr Tran's counsel also submitted that his behaviour was inconsistent with guilt and that he participated in all interviews with police and that he did not do anything to counter surveillance when things went wrong (when arrests occurred). 71 He also said that there was no fingerprint or DNA evidence that linked Mr Tran to the drugs. 72 Mr Pham's case was that whilst drugs were found in his bag he did not know what they were. He said that there was sufficient doubt in the Crown case not to convict him. He did not give evidence. He also submitted through his counsel that Det Sgt Cadden's opinions should not be accepted. 73 There could be no doubt that the jury was aware of counsel's attack on the reliability of the voice recognition and code evidence, even though the attack on that evidence was made, if I may say, in a less than coherent manner. Also, the jury were provided with the transcript of addresses of counsel for both accused and of the Crown Prosecutor after the trial judge's summing up. 74 The trial judge in her summing up over two days clarified the content and the structure of the evidence. Her Honour did not seek to set out all that counsel for Mr Tran had said. She said, of course, that the acceptance of the witnesses and the reliability of their evidence was a matter for the jury. From time to time her Honour referred to the explanations given by Mr Tran. 75 It was plain from the summing up that the jury were required to address the reliability of the Crown's evidence, in particular that of Det Sgt Cadden and the voice interpretation. Her Honour directed the jury in summary form about Det Sgt Cadden's evidence and the criticism of it; warned the jury about the need for caution before accepting the voice identification evidence; directed the jury about such evidence as there was led by Mr Tran; and drew attention to the explanations given by the appellants in their records of interview. 76 The assessment of the fairness and balance of the summing up is to a significant extent a matter of impression after reading all that counsel put and then assessing the approach of the trial judge and the effect it may or would have had on the jury, such that it can be concluded that the directions so lacked judicial balance and so partook of partiality as to render the trial a miscarriage of justice: Green v The Queen (1971) 126 CLR 28 at 34; and Gassy v The Queen [2008] HCA 18[29]. Given the trial judge's attempts to create some order and structure from the evidence, given the long and discursive address by counsel for Mr Tran and given such attention as the trial judge gave to the case of Mr Tran I am not prepared to conclude that there was any lack of fairness in the approach her Honour took. 77 I would therefore dismiss this ground of appeal. 78 For the above reasons I would dismiss the appeal against the conviction of Mr Tran. No separate arguments were put by Mr Pham against his conviction. His appeal therefore also fails.

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Mr Tran 82 Mr Tran was found guilty of a number of offences of supplying a prohibited drug in an amount not less than a large commercial quantity (counts 3 and 16), in an amount not less than a commercial quantity (counts 1, 4, 11, 13), in an amount not less than an indictable quantity (count 2) and of supplying a prohibited drug (the statutory alternative to count 8). 83 The maximum penalty for each of the offences of supplying a large commercial quantity was life imprisonment. The standard non-parole period fixed pursuant to s54B of the Crimes (Sentencing Procedure) Act 1999 for each of these offences was 15 years. The maximum penalty for each of the offences of supplying a commercial quantity was 20 years, with a standard non-parole period of 10 years. 84 The first error asserted was a failure to take into account correctly Mr Tran's previous convictions, which included possession of heroin for which a sentence of 10 years had been imposed (with a 6½ year non-parole period). This record was taken by the judge to deny Mr Tran leniency. The DPP submitted that the record and the serious nature of the convictions should have led to a more severe penalty for the reasons expressed in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477: [T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences… The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. 85 I see no error in this regard in the judge's approach. The judge said that this being the second time Mr Tran had offended as to drugs "personal deterrence and condign punishment must be factors in sentencing him". Her Honour had regard, in my view, to the considerations referred to in Veen (No 2). 86 The second asserted error identified was not to sentence Mr Tran to non-parole periods equivalent to the standard non-parole periods. Her Honour's approach was as follows: Mr Tran is to be sentenced for eight offences and Mr Pham six. Because of the number of transactions at different times and involving different drugs concurrent sentences would not properly deal with all of their separate criminality and therefore the sentences should, according to principle, be partially accumulated. However, the total effective sentence for each man must be appropriate to his total criminality. Because of the number of counts for which each of Mr Tran and Mr Pham is to be sentenced I have come to the view that if I were to impose a standard nonparole period for each offence I have categorised in the midrange of seriousness and to accumulate for separate episodes of criminality I would in each case impose total effective sentences which would be excessive when one stands back and examines the total criminality. I have therefore decided to impose non-parole periods less than the standard non-parole period for all offences to which I considered they would otherwise apply, and to make some sentences concurrent for offences, which involve separate criminality. To do otherwise, that is apply the standard non-parole periods and then apply principles of at least partial accumulation for separate criminality, would lead to sentences disproportionate to the offenders' total criminality. I will back date the sentences to commence when each of Mr Pham and Mr Tran were taken into custody on arrest being 15 May 2005 and 16 June 2005 respectively. 87 In Pearce v The Queen (1998) 194 CLR 610 at 623-624[45] McHugh, Hayne and Callinan JJ said the following: To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality. 88 The Crimes (Sentencing Procedure) Act 1999, s54B permitted the sentencing judge to set a non-parole period longer or shorter than the standard period: s54B(1), for reasons set out in s21A of that Act: s54B(3). 89 There were no relevant mitigating factors in s21A(3), present on the facts here. The legitimacy of her Honour's approach therefore depends on the terms of s21A(1)(c) or the final sentence of s21A(1). Section 21A(1) of the Crimes (Sentencing Procedure) Act 1999 is in the following terms: (1) In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. 90 Section 21A(1)(c) is directed, in terms, to the offence. Here, her Honour's consideration was to the overall effect of all sentences for all offences, that is, the totality of the sentences. This can be seen as recourse to a relevant "rule of law" for the purposes of the last paragraph in s21A(1). In applying the last sentence of s21A(1) (in particular these last words, "rule of law") one would need to follow Pearce, above. On one reading of her Honour's remarks on sentence, it is open to conclude that her Honour may not have complied with Pearce, by reducing the standard non-parole periods by reason of her view as to an appropriate overall sentencing result, rather than fixing an appropriate sentence for each offence and then considering cumulation, concurrence and totality. On the other hand, it may only be a question of mode of expression of putting into effect the approach in Pearce. In the end, I do not think it matters how one views this part of her Honour's sentencing remarks. The DPP conceded on appeal that even had her Honour set the standard non-parole periods, she could have reached the same overall sentencing result by a process of accumulation and concurrence. This concession makes it unnecessary to consider further the way her Honour expressed her approach to the non-parole periods and totality. I would not interfere with the sentences. In my view, the sentences and their accumulated effect are not manifestly inadequate. 91 The third asserted error was her Honour's failure to determine the quantity of cocaine in the conviction on the statutory alternative count to count 8. Her Honour was of the view that she was not able to do so on the evidence. In these circumstances she was not obliged to make such a finding. Her Honour was then criticised for imposing a sentence no greater than could have been imposed in a Local Court. Her Honour said that she proposed "to keep in mind the lower maximum penalty of two years when sentencing Mr Tran for this offence". Her Honour's remarks on sentence indicated a fixed term of 3 years. The trial judge's approach was not contrary to R v Crombie [1999] NSWCCA 297 at [16] as submitted by the DPP. 92 Overall, in my opinion, the sentences imposed by her Honour do not reflect a failure to take into account the total criminality of Mr Tran's offences. 93 Nor do I consider the sentences manifestly excessive. These were serious crimes reflecting an ongoing commercial participation in the trafficking of drugs. The sentences in my view properly reflect the criminality of Mr Tran. 94 Thus I would dismiss the DPP's appeal against sentences imposed on Mr Tran and grant Mr Tran's application for leave to appeal against his sentences, but dismiss the appeal.

PHAM, Van Diep; TRAN John Xanvi v R

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