R v Tran [2002] VSCA 148

Court of Appeal (Vic)|2002-09-11|Before: PHILLIPS, CHERNOV and VINCENT, JJ.A.

Criminal law - Sentencing - Trafficking in heroin - Other offender subsequently sentenced to a longer head term - Whether disparity insufficient given the different circumstances - Principle of parity not offended.

This is an appeal by leave against a sentence imposed in the County Court on 14 September 2001. The appellant had pleaded guilty to a single rolled-up count of trafficking in a drug of dependence, heroin, between 11 and 30 August 2000. He had no previous convictions although it was established on the plea in mitigation that he had for some time been himself an addict. His offending however was motivated not merely by his addiction but also by his desire to help his mother who had run up huge gambling debts and who, through those debts, had been led herself, it is alleged, into trafficking in heroin. After a plea in mitigation in the course of which evidence was given by the appellant's sister and a family friend, the appellant was sentenced to four years and six months' imprisonment and a non-parole period was fixed at two years and six months. Although granted bail on 10 April 2001, since when he had been drug-free, the appellant had already been in custody for 232 days and so much was declared to be pre-sentence detention.

The appellant filed notice of application for leave to appeal against sentence on 28 September 2001 on the sole ground that the sentence was manifestly excessive and on 8 February last was granted leave to appeal.

So far as the ground of manifest excess is concerned, I am satisfied that that is not made out. When the appellant was sentenced on 14 September 2001, a co-offender, Hien Pham, was sentenced at the same time. It was established for sentencing purposes that he was "at the lowest rung of the hierarchy involved in the trafficking process" with a role simply "to assist others by carrying out deliveries of smaller quantities of heroin". He too had no prior convictions and was not an addict. He was sentenced to 2½ years' imprisonment and 18 months was fixed as the non-parole period. He too had been in custody already and 380 days were declared to be time reckoned as already served.

Both Pham and the appellant were involved with others in the trafficking of heroin, as already indicated. They were involved, directly or indirectly and to a greater or lesser extent, with three others, those three being Cuong Cao Hoang (born on 1 October 1964), Cuc Thi Tran (born on 26 February 1953 and the mother of the appellant) and Can Tang (born on 25 October 1954, the appellant's stepfather). All five were charged as a result of an undercover investigation conducted by the Victoria Police Drug Squad in April 2000, which centred on heroin trafficking activities of the appellant, his mother and her husband. Between 19 July and 30 August 2000, 451 calls from seven mobile telephones possessed by the five I have mentioned were intercepted and recorded by the police and those recordings revealed the nature and frequency of their interactions and indicated the extent of the heroin trafficking.

The appellant's mother, Hoang, and the appellant were involved, again to a greater or lesser extent, in the purchase by covert operatives of a total quantity of 751.6 grams of 60% pure heroin for a total cost of $106,600, with an estimated street value of about $394,000. None the less, the appellant's known physical involvement was limited to handling 27.8 grams ("an ounce") sold on 11 August 2000 for $4,300 and delivering 350.2 grams (a 12.5 "ounce" block) at St Albans on 30 August for $50,000. The estimated street value of a total of 378 grams is $198,450.

The personal circumstances of the appellant and more details of the offending are all set out in the sentencing remarks of his Honour Judge Walsh on 14 September last and I do not repeat them. His Honour heard a careful plea in mitigation and took account of the distressing break-up of the family through their involvement with heroin. There is no doubt that his Honour approached his task with compassion, fully conscious of the previous good character of the appellant (subject to his addiction to heroin) and his prospects of rehabilitation. All of the matters put in mitigation were brought to account and, in the circumstances, I cannot say that the sentence imposed was outside the range of sentences reasonably open to the judge in the proper exercise of his sentencing discretion. I might say that Mr Lyon put everything that might be said in that behalf, but, for myself, the argument was unpersuasive.

There remains however the further ground now taken, a ground added by amendment on 3 September. That was that "there is an unjustified parity between the sentence imposed on the appellant when compared to that imposed on the offender Cuong Cao Hoang". Four of the five offenders already mentioned, including the appellant, were committed for trial on 27 March 2001: Hoang was committed for trial on 12 June 2001. The appellant and Pham duly pleaded guilty as already mentioned and were dealt with on 14 September. Hoang was presented in the County Court before his Honour Judge Jones on 21 November and pleaded guilty to one count of trafficking in a commercial quantity of heroin between 20 July and 24 August 2000, the maximum penalty for which is 25 years' imprisonment and a fine of $250,000. One previous conviction from a court appearance on 8 May 2000 was admitted, for possession of money suspected of being proceeds of crime. Hoang was sentenced on 4 December 2001 to 5 years and 6 months' imprisonment, and a non-parole period was fixed of 3 years and 6 months. It was declared that 224 days should be reckoned as time already served.

In December 2001 the appellant's mother was arraigned before his Honour Judge Walsh and she pleaded guilty to one count of trafficking in heroin. In February 2002 the appellant's stepfather, Can Tang, was presented for trial and on 13 February he pleaded guilty to one count of trafficking in heroin. The pleas in mitigation for both the appellant's mother and his stepfather have been adjourned, pending the outcome of this appeal by the appellant.

The ground now taken of "unjust parity" requires a comparison, according to Mr Lyon's submission, between the sentence meted out to the appellant and that imposed on Hoang subsequently. Such a comparison may be permitted by Postiglione[1], but in the circumstances of this case it is an argument which is attended by much difficulty. Indeed, in this case it is difficult to identify any common thread. First and foremost, while Hoang was charged with the greater crime of trafficking in a commercial quantity of heroin, it is the fact that the circumstances of the offending were altogether different as between the two men. Hoang was nine years older than the appellant, who himself was 27 years old. Hoang was found to have acted "in effect as a retailer for a man who was in Sydney", whereas the appellant's offending was "committed in the context of the involvement of [his] parents in that activity". Hoang was found to have had a significant role in the distribution of heroin well above the street level, while the appellant, although also found to be involved above street level, and important, "played at a low level". Hoang was considered by the sentencing judge to have made considerable profit from his illegal activity, while in contrast the appellant was found not in it for gain but to satisfy his own heroin addiction and to help his mother. Hoang had a previous prior conviction, but the appellant had none.

In these circumstances, Mr Lyon argues that the appellant should be re-sentenced to a term of imprisonment which is less than 4½ years. In my opinion, the argument should be rejected. It is difficult enough to compare like with like, but in this case Mr Lyon's argument invited us to compare like with unlike. Not only were the circumstances of the offending different, but the circumstances of the offenders were also different (as is invariably the case) and the difficulties were compounded because, where ultimately the task of sentencing is one of instinctive synthesis, the sentencing judges were also different. While this Court has the power to intervene in a case where, because of manifest difference, one or other of the prisoners is left with an unjustified sense of grievance, I cannot find that it is so in this instance. The differences in the offending, as well as in the offenders, are obvious enough and they were referred to expressly by his Honour Judge Jones during the plea in mitigation on behalf of Hoang and during his Honour's sentencing of Hoang. His Honour had read the sentencing remarks of 14 September 2001 and, alive to the differences, concluded that Hoang should receive a sentence that was higher than that of the present appellant. Correspondingly it may be said that the appellant was entitled to a lesser sentence than Hoang, but a lesser sentence is what was imposed and I am not persuaded that the difference is such that there is any ground for us to intervene as Mr. Lyon now seeks.

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