R v Lam & Tran [2007] VSCA 246

2 In this matter the Crown concedes that the learned sentencing judge was in error in imposing an aggregate sentence in respect of each of the appellants, Hanh Lam and Thanh Thuan Tran. That is so because his Honour did not approach the sentencing function in accordance with the principles enunciated in Director of Public Prosecutions v Felton[1]. That he did not is no criticism of his Honour, as that case was decided subsequent to the sentences being imposed in the present case. The sentencing discretion therefore is re-opened and it falls to this Court to sentence each of the appellants.

3 Hanh Lam is 37 years old. She is the mother of four children. She and her co-offender, Tran, are divorced, although at the time of the offences they had resumed their relationship and were living in the same house. Ms Lam came to Australia in 1987 and, until she embarked upon these offences, had been in steady employment, principally sewing piece work from home. She has no prior convictions and has not, except for the offending the subject of count 3, offended since.

4 Ms Lam indicated her intention to plead guilty when the matters first came before the Magistrates' Court in October 2004. The matter was adjourned then for hearing in January 2005, but on that occasion the magistrate, quite properly, in my view, regarded the matter as one to be dealt with in the County Court and accordingly the matter was then set down for a committal mention. It proceeded by way of a hand-up brief and eventually came before the learned sentencing judge for plea in February 2007. In the interim, there had been one application for an adjournment made by the appellants by reason of an interpreter's non-attendance at a consultation required for the purposes of preparing a report.

5 An affidavit sworn by Ms Huong Lam, the appellant's sister, attested to the considerable difficulties faced by Ms Lam's family in caring for the appellant's son Richard, and indeed the other children, while both parents have been in prison. I accept that in these circumstances, where the appellant is the principal carer of her four children, one of whom is autistic and suffering epilepsy, and two of the others, who are infants aged four years and 18 months respectively, that considerable mercy should be exercised in the circumstances of this case. Indeed, the sentences imposed below by the learned sentencing judge were merciful, but the sentencing judge did not have the benefit of the knowledge of later events as disclosed by the affidavits filed before this Court.

6 In sentencing the appellant I must take into account the nature and gravity of the offences here committed. This was a large-scale operation involving stolen goods worth in excess of $150,000. The appellant committed the offences the subject of counts 1 and 2, and then quite brazenly re-established the operation and continued selling goods in circumstances where she could be left in no doubt that she was engaged in illegal activity. In these circumstances, given the breadth of the operation, the value of the goods handled and the resumption of the "business", after being raided and interviewed by the police, it must be said in respect of counts 1 and 3 (the handling counts) that these are serious examples of a serious offence, the maximum penalty for which is 15 years' imprisonment.

7 Accordingly, taking into account the appellant's pleas of guilty and giving her a discount for them, acknowledging that by reason of such pleas the appellant has saved the community the cost of what presumably would have been a voluminous trial, the appellant's age, that she has no prior convictions and is otherwise to be regarded as a person of good character, that she is before the courts for the first time and facing a sentence of imprisonment, that she has not committed any further offences, that there has been a significant delay in the resolution of this matter, which delay is not attributable to the appellant, and taking into account that the condition suffered by the child Richard dictates mercy, I propose to sentence the appellant as follows:**

Count 1 (handling stolen goods): 18 months' imprisonment;

Count 2 (dealing with the proceeds of crime): three months' imprisonment;

Count 3 (handling stolen goods): 18 months' imprisonment.

As the offence of dealing with the proceeds of crime arises out of the conduct the subject of count 1, I propose to order that the sentence imposed in respect of count 2 be served concurrently with the sentence imposed in respect of count 1. The conduct the subject of count 3 is, although similar in nature, none the less a discrete offence. Accordingly, I propose to order that nine months of the sentence imposed in respect of count 3 be served cumulatively upon the sentences imposed in respect of counts 1 and 2. That is a total effective sentence of two years and three months' imprisonment.

**8 Accepting as I do that the appellant's incarceration in circumstances where she was the principal carer of her young family, and in particular her autistic child, and that that effects an undue hardship in particular to that child, I am satisfied that the exercise of mercy dictates that the appellant serve a non-parole period of nine months, and I declare that the appellant has already served by way of pre-sentence detention a period of 244 days.

9 Thanh Thuan Tran is aged 38 and came to Australia in 1987, having fled Vietnam and spending two years in a refugee camp in Indonesia. He has been substantially employed since arriving in Australia, and indeed, in respect of the first count of handling, he returned home from work to find the police present. During the course of the search of his home the police located a document detailing the hire of a storage facility. He admitted to the police that he had hired that facility and, as I understand it, he cooperated with them to the extent that he took the police to it. There they located other items the subject of the handling count. Thus, he was actively engaged in aspects of the operation, although not as significantly as his co-accused.**

**10 In sentencing Mr Tran I take into account his more limited role and his pleas of guilty and give him a discount for them. I take into account also the delay in finalising these matters which is not attributable to him, and his lack of prior convictions. I take into account also that, as the father of four children, and in particular an autistic child, the exercise of the sentencing discretion warrants the exercise of mercy in his case, but in my view the degree to which mercy should affect the sentence imposed is considerably lessened in the case of this appellant. That is because he was not the principal carer of the children, he, having at all relevant times been otherwise engaged in full-time employment and the burden of caring for the children did not substantially fall to him.

11 Accordingly, without in any way diminishing the nature and gravity of the offences here committed, the appellant Tran is sentenced as follows:**

Count 1 (handling stolen goods): 12 months' imprisonment;

Count 3 (handling stolen goods): 12 months' imprisonment.

In order to address the discrete nature of the offending, I propose to order that six months of the sentence on count 3 be served cumulatively with the sentence imposed on count 1; that is 18 months' imprisonment, and I would order that the appellant serve a non-parole period of nine months and I would declare that he has already served by way of pre-sentence detention a period of 244 days.

The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 18 months on count 1, three months on count 2 and 18 months on count 3.

Nine months of the sentence imposed in respect of count 3 are to be served cumulatively on the sentence imposed in respect of count 1.

The total effective sentence is two years and three months' imprisonment.

A minimum term of nine months' imprisonment is fixed before the appellant is to be eligible for parole.

It is declared that a period of 244 days has already been served pursuant to the sentence and it is ordered that the fact that that declaration has been made and its details be noted in the records of the Court.

The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of 12 months on count 1 and to a term of 12 months on count 3.

Six months of the sentence on count 3 are to be served cumulatively upon the sentence imposed in respect of count 1.

The total effective sentence is 18 months' imprisonment.

A minimum term of nine months' imprisonment is fixed before the appellant is to be eligible for parole.

It is declared that a period of 244 days has already been served pursuant to the sentence and it is ordered that the fact that that declaration has been made and its details be noted in the records of the Court.

The orders for forfeiture made below are confirmed.

[1] [2007] VSCA 65.