R v Tran [2000] VSCA 203

9. Leave to appeal was granted on 8th June 2000. The grounds of appeal, as substituted by order of the Registrar made on 9th May 2000, read:

"1. The learned sentencing judge erred in sentencing the appellant on a wrong basis. He sentenced the appellant on a Giretti[1]-type trafficking over a period of time instead of for trafficking on the one day specified in the presentment. 2. The learned sentencing judge failed to give appropriate weight to the appellant's prospects for rehabilitation, lack of prior convictions, good character and early plea of guilty as an indication of remorse. 3. The learned sentencing judge failed to properly consider the role the appellant played in the commission of the offence. 4. The learned sentencing judge placed too great a weight on general deterrence and punishment. 5. In all the circumstances the sentence imposed by the learned sentencing judge was manifestly excessive."

13. The circumstances of the offence may be described within a short compass. On the evening of 17th June 1999 a search warrant was executed at a flat in Richmond of which the appellant was the occupier. Heroin was found in two locations. Three packages, each containing approximately 3 grams of heroin, were found wrapped in plastic and taped with double-sided tape to the inside fascia board of a wooden panel that was removed from the top of a linen closet. Two tennis ball-sized parcels, wrapped in tape and hidden in rice contained in a large rice tin, were found in the kitchen. Each of the parcels enclosed twelve smaller packages, each containing approximately 3.5 grams of heroin. In total, 92.9 grams of heroin were located, which on analysis were found to have a purity of approximately 60%. The retail value of the heroin seized was estimated to range from $32,400 to $40,500.

16. The appellant was interviewed by the police and denied knowledge of the heroin, but in due course a case was brought against him on an agreed statement of facts. Although he was not responsible for secreting the heroin on the premises, he had been aware for about a month of the way in which his flat was being used. It was not suggested that he was in any way actively engaged and he received for his pains the paltry sum of $400 or $500. He pleaded guilty on the basis that he was aiding and abetting others.

19. In a report pursuant to Rule 2.27 of the Supreme Court (Criminal Procedure) Rules 1998, the learned judge has reported that he sentenced the appellant on the basis of the criminal activity alleged on the day in the presentment and not on a Giretti-type trafficking over a period of time. Otherwise his Honour reported that he had nothing to add to what appeared in the transcript.

22. It will be apparent that the grounds of appeal fall into two groups. The first is a distinct complaint. The others all say, in one way or another, that the sentence is manifestly excessive by reason of insufficient weight being given to mitigating factors (in which I include the appellant's limited role to the extent, if any, that that is not subsumed in ground 1) or too much weight being given to general deterrence and punishment.

25. In order to understand the first ground it should be explained that the count to which the appellant pleaded guilty charged that he trafficked in heroin on 17th June 1999. There was no evidence of any specific act of trafficking on that day. Accordingly, Mr Tehan submitted, the trafficking to which the appellant pleaded guilty must have been on the basis that he aided and abetted others in their possession of the 92.9 grams on that day, being possession for the purpose of sale. Counsel stressed that the presentment did not allege a period of trafficking of any kind, much less the month for which the appellant admitted that he had been aware of the way in which his flat was being used.

28. As I have said, the plea was based on agreed facts. In opening, the learned Crown Prosecutor correctly said that the offence occurred on 17th June 1999, but he also outlined the agreed factual basis, part of which read:

"The prisoner was aware that people were trafficking in heroin from the premises and he was paid some money by way of odd sums, which he applied to the maintenance of the premises. I think the figure in total which he received at that stage was something in the vicinity of $400 and the activity that was the subject of this trafficking, from his point of view, was that he had been aware of what had been going on for about a month or so and that he personally had not sold drugs." (Emphasis added.)

32. Although counsel for the appellant below emphasised the concessions that the Crown had made, in particular that the appellant was not involved in the actual selling of the heroin or in receiving substantial amounts of money, he too spoke of a period of time. At p.7 of the plea, for example, counsel said:

"At the time that these activities were going on in his flat he was spending a lot of time with Phuong Nguyen, whom he subsequently married." (Emphasis added.)

36. Later, counsel said that the appellant "allowed the business to go on in his flat in the circumstances the Crown has put". He corrected the judge's misapprehension that the appellant was the one who had secreted the heroin in the flat, but he confirmed that, as the Crown had indicated, the appellant was aware that the heroin was there for a period of a month or a little over.

39. In the course of the sentencing remarks his Honour said:

"The facts on which I sentence you are as agreed, on the basis that you were acting as an aider and abettor, that, although you were not responsible for secreting the heroin on the premises, you were aware that trafficking was taking place and allowed it to occur. You also received, I am informed from the Bar table, the sum of $400 or $500. It is not suggested that, apart from allowing your premises to be used in this way, you yourself were actively engaged in the sense of having a 'hands-on' activity in the trafficking offence."

43. It was submitted that that passage disclosed that the learned judge had in fact sentenced the appellant for trafficking that had taken place over a period and, by his use of the expression "allowed it to occur", had attributed a more active role to the appellant than was open on the agreed facts.

46. Whatever might have been the fate of that submission had the sentencing remarks stood alone, divorced from the context provided by the transcript of the plea, the plea shows that his Honour was doing no more than echoing language that had been used, without embarrassment, at both ends of the Bar table. I am not at all persuaded by that passage or any other consideration that the sentencing discretion is re-opened by his Honour having mistaken the facts or sentenced the appellant on a basis different from what had been agreed.

49. The correct analysis is, in my opinion, that the appellant was properly sentenced on the footing that he aided and abetted possession by others on 17th June 1999. That entails that he knew of the presence of the heroin and the purpose for which it was being stored. The agreed facts and the course of the plea enabled his Honour to see that it was not an isolated event, but that did not involve sentencing the appellant for a different offence from that to which he pleaded guilty. Taking that view of the matter, it is unnecessary for me to consider Mr Tehan's submission that to have sentenced him on a Giretti basis would have attracted, directly or by analogy, the principles explained in R. v. De Simoni[2] and R. v. Newman and Turnbull[3].

52. Ground 1, as argued, in truth exceeded the ambit of the ground as pleaded, but I have taken it on its merits as an argument that his Honour sentenced the appellant for a different kind of offending from that which had been agreed. Even so, I would not uphold it. That is not to deny that this Court must bear steadily in mind the limited scope of the agreed facts and the precise nature of the appellant's offending when we consider the merits of the other grounds of appeal.

55. When he turned to those other grounds, Mr Tehan reminded us of the appellant's plea of guilty, the fact that he had reached the age of 45 without any previous convictions, his good work record and his marriage to Phuong Nguyen, as well as of the evidence led on the plea to substantiate those mitigatory facts. That evidence came from one of the appellant's previous employers and from his wife, as well as from Mr Healey, who spoke of the markedly beneficial influence that Phuong Nguyen had had upon her husband. They were in the process of establishing a small sewing piece-work business operated from home and the marriage, that business and her influence had, the witness considered, provided the appellant with a new lease of life.

58. Counsel relied again on the appellant's role and what was said to be the limited character of his offending and pointed out that, on the plea, the Crown had deliberately left open the possibility of a wholly suspended sentence. I say at once that I attach little weight to the last point, because I respectfully agree with the learned judge that a sentence of immediate incarceration was required.

61. It was strenuously argued that the appellant's involvement in the trafficking was of a relatively minor kind. Much depends on how one views the facts. From one perspective he is a man of good character who foolishly allowed some young friends to store heroin in his flat. From another perspective he provided a base of operations for a criminal enterprise. As I have said, it is implicit in the plea that he knew the purpose for which the principal offenders possessed what amounted to 27 separate packages each weighing some 3 to 3.5 grams. Their potential for causing crime and misery was obviously greater than some of the isolated sales of a single trafficable quantity that come before the courts.

64. The wise course, when confronted with two incompatible appreciations of the facts, is, in a context like this, to beware of both extremes, always remembering that, at the end of the day, one must be satisfied beyond reasonable doubt of any adverse factual substratum for one's evaluation. Had the appellant pleaded guilty to aiding and abetting possession from time to time over a period of a month, or had he been more actively engaged, or had he not been a man in his middle forties of previously unblemished character, a sentence of four years' imprisonment would have been within the range. But, in the circumstances that I have described and endeavouring to steer the middle course that I have charted, I am persuaded that that sentence is manifestly excessive when due weight is given to the agreed facts and the mitigatory factors to which Mr Tehan has referred. Even so, in re-sentencing the appellant, we should do nothing to undermine the proposition that, although punishment must not be disproportionate, general deterrence is the primary consideration.

67. Mr Tehan argued that, if the discretion were reopened, a lower than usual non-parole period should be fixed. I do not accept that submission, for two reasons. First, whilst the appellant's prospects of rehabilitation are good, they are not so good as to justify the kind of relationship to the head sentence for which counsel contended. Secondly, this is just such a case where one must recall, in accordance with binding authority, that one of the functions of a non-parole period is punishment, and another, in an appropriate case, is general deterrence. Those purposes are not spent by the imposition of the head sentence.

70. For these reasons I would allow the appeal. I would sentence the appellant to three years' imprisonment on the count to which he pleaded guilty and I would fix a non-parole period of two years.

74. I agree with Callaway, J.A. that the appeal should be allowed for the reasons which he gives and that the penalties which he proposes ought to be imposed.

77. It should, I think, be remembered that the circumstances of this case are special and that the case itself should not in any way be taken as a precedent that this Court is softening its views, repeatedly given, that heroin traffickers can expect condign punishment in which general deterrence will play a significant role.

80. I think that, without the agreed facts, there would have been little evidence against the appellant apart from his occupation of the premises. As Callaway, J.A. has pointed out, he did not secrete the drugs, nor did he sell them. The charge to which he pleaded guilty was that on the day the heroin was located he was aiding and abetting the possession by others of the heroin for its sale in the future. The question arose whether he was in fact being punished for what had been going on in the past. The learned judge has told us in his report to this Court that that was not what was intended and not what he did.

83. Mr Tehan has submitted on the hearing of this appeal that the judge's remarks did not reflect that. Callaway, J.A. has referred in the course of his reasons to the remarks upon which Mr Tehan placed reliance. The remarks might, in one sense, be said to be troublesome, because, although the words used by his Honour are to some extent ambiguous, they tend to look more to the past than they do to the future. However, it must be remembered that these are agreed facts, and what the appellant was aware of as having occurred in the past did have a bearing upon the overall seriousness of the offence to which he had pleaded guilty.

86. In the light of what his Honour has reported to the Court and the context in which the charged offence was agreed to have occurred, I would not be prepared to conclude that his Honour sentenced the applicant on a false premise.

89. However, whilst I am loath to interfere with the sentence imposed for drug trafficking in such a lethal substance as heroin on the ground that it is manifestly excessive, it does seem to me that this sentence is so because it is disproportionate to the role played by this offender in the offence for which he was being punished.

92. Mr Kayser, who appeared for the respondent in this Court, agrees that the sentence is a stern one, but contends that, although high, it is not beyond the range available to his Honour. It is also agreed that the sentence imposed was imposed against the background of the appellant's plea of guilty.

95. He is a 45-year-old man of hitherto good character. It was not his heroin, as I have said, and he was not selling it himself or for his own enrichment. He was an aider and abettor of the possession by others. In some cases there will be no distinction to be drawn between the culpability of an aider and abettor and a principal offender. It seems to me in this case that there is, however, a distinction to be drawn. The principals, no doubt, would have sold these drugs whether the appellant had suffered his premises to contain them or not. Indeed, I take the more charitable view of the appellant's role in this offence when considering the two perspectives to which Callaway, J.A. has referred. It seems to me that he was very much a "bit player" to the young people who used his premises. He was at the time in a somewhat ambivalent state, having separated from his second wife and was spending time with another woman, whom he has since married. They now have one young child. I note that the experienced prosecutor who appeared before his Honour below expressed the Crown's view that a custodial sentence was appropriate but contemplated that a suspended sentence could also be open to his Honour in the circumstances of this case.

98. All of these matters combined have led me to the conclusion that the sentence imposed is out of proportion to the culpability of the appellant having regard to the role that he played in the commission of the offence.

101. For those reasons, I agree with the disposition proposed by Callaway, J.A.

109. The appeal will be allowed. The sentence below is quashed. In lieu thereof the Court orders that the appellant be sentenced to a period of three years' imprisonment and we order that he serve two years of that sentence before becoming eligible for parole.

112. We declare that a period of 318 days has already been served pursuant to that sentence and we direct, pursuant to s.18 of the Sentencing Act, that the declaration and its details be noted in the records of the Court.

[1] R. v. Giretti (1986) 24 A.Crim.R.112

[2] [1981] HCA 31; (1981) 147 C.L.R. 383