R v Taing; R v Ly [2004] VSCA 46

12. On 29 November 2002, Huong Kieng Taing (Taing) and Minh Gai Ly (Ly) pleaded guilty at the County Court at Melbourne to a charge of trafficking in a drug of dependence, namely Diacetylmorphine (heroin). The offence was committed between 14 August 2000 and 3 October 2000. On 17 December 2002, Taing was sentenced to a term of 8 years' imprisonment. A non-parole period of 6 years was fixed and pre-sentence detention, calculated pursuant to s.18 of the Sentencing Act 1991 (the Act), was reckoned at 44 days. On the same date Ly was sentenced to 7 years' imprisonment. Two years of that sentence was ordered to be served cumulatively on a sentence of 8 years imposed by his Honour Judge Neesham on 12 December 2002. A new parole period was fixed at 8 years to commence on that day and the period of pre-sentence detention was reckoned to be 50 days. Two other persons involved in the trafficking also pleaded guilty and were sentenced on that occasion.

15. The maximum penalty for the offence of trafficking is 15 years.

18. The appellant Taing, who was aged 41 at the time of this offence, had no prior convictions. The appellant Ly who was aged 26 at the time of offending admitted seven previous convictions, the most serious of which were recklessly causing serious injury, for which he was fined $1,000 in January 1998 and, three counts of trafficking heroin in April 1998 for which he received an aggregate sentence of 4

22. Taing and Ly have now appealed against the sentences imposed. In his original notice of application for leave to appeal, Taing listed the following grounds:

(1) That the learned sentencing judge erred in the exercise of her sentencing discretion in failing to have regard or sufficient regard to the applicant's early plea of guilty.

(2) That the learned sentencing judge erred in the exercise of her sentencing discretion in failing to have regard or sufficient regard to the applicant's prior convictions (sic).

(3) That the learned sentencing judge erred in the exercise of her sentencing discretion in failing to have regard or sufficient regard to the principles of totality and proportionality.

(4) That the sentences imposed in all the circumstances are manifestly excessive. ...

Later, (on 12 September 2003), leave was given to add the following grounds:

(6) The learned sentencing judge failed to accord any, or sufficient, weight to the Appellant's[1] previous character.

(7) That the learned sentencing judge failed to accord any, or sufficient, weight to the fact that the Appellant fell to be sentenced as a first offender.

28. The appellant Ly advanced the following grounds:

(1) That the learned sentencing judge erred in the exercise of her sentencing discretion in failing to have regard or sufficient regard to the principles of totality and proportionality.

(2) That the learned sentencing judge erred in the exercise of her sentencing discretion in failing to have regard or sufficient regard to the applicant's early plea of guilty.

(3) That the learned sentencing judge erred in the exercise of her sentencing discretion in failing to have regard or sufficient regard to the applicant's age of (sic) prospect of rehabilitation.

(4) That the single minimum term fixed by her Honour having regard to the sentence imposed by his Honour Judge Neesham is manifestly excessive in all the circumstances. ...

34. Before turning to consider these grounds it is convenient to outline the facts constituting the offence upon which the appellants were sentenced.

37. As indicated, Taing and Ly and others were alleged to have engaged in trafficking in heroin between 14 August and 3 October 2000. The learned sentencing judge found that this trafficking operation in fact commenced in July 2000, and that Taing, Ly and a further person Chau "were directly engaged in a common enterprise which involved the acquisition, possession, attempted possession and the offer for sale and completed sale of various quantities of heroin to several wholesale buyers in Melbourne." Her Honour found that Taing had the major role and was the senior person in the group. He liaised with Sydney suppliers and met with them in both Melbourne and Sydney on a number of occasions. He gave directions to Ly and Chau as to pricing, and who should be provided with samples and when. Further, the sentencing judge found that Taing organised the logistics and was responsible for payment of the Sydney suppliers. Indeed, he had provided some of his own money to purchase the heroin. Purchase money was frequently obtained from the selling of previous amounts of heroin. The appellant Taing attended to some of the larger purchases of heroin

40. The appellant Ly was found to be second in "the pecking order" and was involved with Chau both in the sale of heroin at a wholesale level and the level below that. Although the appellant Ly was overseas for some period, her Honour found that he remained in contact with the group assisting them in whatever way he could. He used mobile telephones with false names and false addresses purely for the purpose of drug trafficking, and usually spoke in code.

43. The sentencing judge noted that it was difficult to establish what amounts of heroin were received and sold during the relevant period. However, in view of the acceptance by the Crown of the plea to trafficking, her Honour indicated that she would proceed on the basis that it was not a commercial quantity albeit a substantial amount. In fact, on the day of the arrest of a fourth offender, Minh Gai Nguyen, a block of compressed white powder weighing 348.4 grams, of which 209.04 grams was pure heroin, was recovered. Also located at that time were two plastic bags, one containing mannitol and caffeine and the other solely mannitol. Both of these substances are commonly used as "cutting agents" of heroin. This was regarded by her Honour as an indication of the size and scale of the operation with which the appellants were involved.

46. In the course of her sentencing remarks her Honour commented about the appalling trade in heroin and its terrible consequences for the community. She noted that all of those who became involved in this enterprise (including of course the appellants) did so purely for money. There was no suggestion of drug addiction as an explanation.

49. Before this Court, no exception was taken to the findings of fact of her Honour which I have briefly set out.

52. Counsel for the appellant Taing first argued that the sentencing judge had failed to have sufficient regard to the applicant's early plea of guilty: (ground 1).

55. It could not be said that the sentencing judge did not advert to the guilty plea. Indeed, she had this to say:

"Your counsel has submitted that it was a substantial decision on your part to enter the plea. The estimate of the trial is that it would have lasted between two to four months. Your counsel submits that your plea demonstrates that you are accepting of your responsibility for what occurred and also as a consequence you are saving the community a substantial amount of money."

Her Honour then referred to the seminal case of R. v. Duncan[2] and the High Court decision of Cameron v. R[3]. The sentencing judge indicated that certain of the propositions made by Callaway, JA. in Duncan's case applied to each of those that she was sentencing. She restated those points (p.215):

"7. In the case of a plea of guilty it is necessary to distinguish between the plea as indicating contrition of some quality or some other quality or attribute that is relevant to sentencing and the plea in its own right, but again the public interest is important. 8. A plea that evidences genuine remorse and prospects of rehabilitation, that is entered at the earliest practical opportunity and that saves the State a trial and the witnesses both trauma and inconvenience normally justifies a high discount. 9. An early plea that does nothing except save time and expense is still entitled to consideration and should usually attract a significant discount ..." [cases cited.]

"Your counsel submitted that all four of the considerations apply to you, in that although the plea was not entered at the earliest possible time, this was due to the fact that the evidence was vast and you needed to be properly advised. It was submitted that you have realistically entered a plea at the earliest stage after counsel were able to assess this material and advise you appropriately."

"I accept that as a submission. I accept that it applies to all of you. You, Mr. Taing, were the first of the prisoners to indicate that you intended to plead guilty to this offence and counsel further submitted that it was an indication of your remorse."

65. Coupled with the earlier reference to Duncan's case, there is nothing to suggest that her Honour did not regard the appellant's plea as an indication of remorse.

68. Finally, in her concluding remarks, her Honour referred to the trafficking as a pernicious business, undertaken only for commercial gain and involving misery for other people in the community. Consequently it required the highest condemnation necessarily reflected in the sentences imposed. But the judge also commented:

"Whilst I must do that, I indicate that I am equally obliged to take into account your pleas of guilty, your lack of prior convictions in particular cases [and this was so of the appellant Taing] your ages, depending on your ages, and I assure you the sentences that I am about to impose are reduced on what I would have otherwise imposed."

72. It was submitted that even conceding that this was an ongoing organised business and, although falling short of involving a commercial quantity of the drug, constituted a serious offence, the sentence actually imposed was nonetheless outside the range given the sentencing discount her Honour purported to grant.

75. It was further submitted that for there to have been a significant discount, the starting point of the appellant's sentence must have been 10 or 11 years. Given a maximum term of imprisonment for this offence of 15 years, a sentence of this order for a quantity of heroin agreed by the parties to be less than a commercial quantity, was manifestly excessive

78. I regard such an approach as problematic in more than one sense. As I had cause to remark in the associated appeal of Ly, Tat and Dao:

"The extent or significance of a sentencing discount is not always easy to discern. It is not usually quantified by sentencing judges and cannot be approached simply by asserting a quantum figure (for example one third or one quarter) and extrapolating that to the notional sentence which would have been imposed in the absence of the guilty plea. Indeed, such a mechanistic method runs counter to the intuitive synthesis espoused by appellate courts."

This having been said, I agree it is important, if the administration of justice is to be facilitated, that defendants not only receive appropriate credit for pleas of guilty, but that they appear to do so. If legitimate pleas of guilty are to be entered, it is necessary that barristers are able to assure their clients, and their clients are able to accept, that any purported sentencing discount is real and not illusory.

83. On behalf of the respondent it was put that, given the seriousness of the offending, including the number of collections and deliveries of heroin; the fact that the amounts involved were conceded to be not far below the range that would be considered commercial; that a substantial quantity was finally recovered; and the primary role played by the appellant Taing, a period of 10 years, (if indeed this was the starting point of the exercise of the sentencing discretion), was not excessive.

86. At the end of the day the failure to accord sufficient weight to a plea of guilty may be treated either as a specific sentencing error or as a factor which has resulted in a sentence which is manifestly excessive. It is, I think, convenient in this case to consider the question under the rubric of the latter.

89. In arguing that the sentence imposed was manifestly excessive (ground 4), the further grounds 2, 6 and 7 were advanced as particulars. I turn to those grounds.

92. On a reading of her Honour's reasons for sentence it cannot be said that she did not canvas the prior history of the appellant in some detail. His age, lack of prior convictions, excellent work record culminating in his management of a restaurant, were all adverted to by her Honour as were the references from various persons including the President of the Buddha Vihara Temple at Box Hill. The judge also had regard to the appellant's explanation of turning to trafficking heroin in an attempt to overcome financial problems. Ultimately she remarked:

"Whilst these are factors that I do take into account, I must note that the need to be financially successful cannot ever overtake your obligations as a citizen of this country not to bring harm to your fellow citizens by breaking the law in this callous deliberate manner."

Further, as previously indicated, the judge specifically stated that she was reducing the sentence imposed because of such factors as age, lack of prior convictions and the pleas of guilty.

97. It is often said that the question as to whether a sentence is manifestly excessive is not capable of much argument. This might surprise readers of judgments of this length. Ultimately, I have concluded that the sentence imposed was indeed manifestly excessive and the judge did not accord sufficient weight to the appellant's plea of guilty, particularly having regard to the necessity to give tangible effect to the sentencing discount. The fact that the appellant was a 44 year old first offender who had excellent prospects of rehabilitation was also undervalued. In reaching this conclusion I have also had regard to the relatively short duration of the operation (as delineated by the count on the presentment) and the fact that the trafficking was not alleged to have involved a commercial quantity, albeit that the enterprise was a commercial one. It follows that I would regard the sentencing discretion as having miscarried, giving rise to the need for the Court to resentence the appellant.

100. In the case of the appellant Ly, counsel adopted the submissions advanced by counsel for Taing as to the sentencing judge failing to have regard or sufficient regard to the applicant's early plea of guilty (ground 2). Additionally it was submitted that there was a public interest in the final resolution of cases of the complexity of the present one, and this needed to be reflected in the sentencing discount.

103. As to the appellant's age and prospects of rehabilitation , it was pointed out that he was still young, (being aged 28) and had a good work record culminating in employment as a sushi chef at a Westfield Doncaster restaurant. Indeed, his employer, a Mr Chen, attested to the appellant's reliability and indicated a preparedness to re-employ him.

106. It was further put that the appellant had now gained an insight into his offending and had changed his behaviour including disassociating himself from former peers. The plea of guilty was adverted to as well as the evidence of family support. It was put on the plea that the appellant was motivated and attracted to this offending because of a desire to sponsor his Vietnamese girlfriend to Australia.

109. Apart from the offending itself, the other side of the coin was the appellant's previous record which involved recklessly causing serious injury which apparently involved a stabbing at a birthday party where the appellant had consumed an excessive amount of beer and intervened to break up an incident. As I have indicated that offence attracted a fine. Her Honour was justifiably concerned with the appellant's prior convictions in April 1998 for three counts of trafficking heroin which resulted in 4 months' imprisonment. This was said to involve the appellant being present in a car with other people and having possession of 5 grams of heroin. It is to be noted that the conviction in April 1998 preceded the current offences by just over two years. It should also be noted that the appellant had subsequently committed offences of affray and intentionally causing serious injury while on bail for these offences.

112. Taking all those matters into account, including the appellant Ly's lesser role in this operation, the sentencing judge was clearly of the view that a sentence one year less than that imposed on the appellant Taing was appropriate.

115. This appeal is complicated by the fact that the sentencing judge had to adapt her sentence, (which she said would have been 7 years with a minimum of 5 years), to the sentence of 8 years imposed by Judge Neesham on 12 December 2002 for the offences of affray and intentionally causing serious injury. The sentencing exercise involved fixing a new minimum term pursuant to s.14 of the Act and the sentence imposed by her Honour of 10 years with a new single non-parole period of 8 years involved, in effect, an additional 2 years on the head and minimum sentences imposed by Judge Neesham. That disposition itself was the subject of criticism on this appeal, it being argued that the appellant should have been accorded a greater opportunity for supervision within the community.

118. I have concluded that, notwithstanding this appellant's prior convictions, a lighter sentence was warranted to properly reflect his guilty plea. In any event, having succeeded in the appeal against the total effective sentence imposed for the offences of affray and intentionally cause serious injury, it is necessary that he be re-sentenced for the current offence.

121. Accordingly, in the case of the appellant Taing, I would propose that a sentence of 6 years be imposed and a non-parole period of 4 years be fixed.

124. In relation to the appellant Ly, I would impose a sentence of 5 years' imprisonment. I would cumulate 2 years of that sentence upon the new total effective sentence imposed for the affray and the serious assaults to produce a total effective sentence of 7½ years. I would fix a new single non-parole period of 5½ years.

[1] The applicant had been given leave to appeal by Winneke, P. on 5 September 2003.

[2] [1998] 3 V.R. 208