R v Tran [2014] QCA 90

[1]

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - JUDGE ACTED ON WRONG PRINCIPLE - where the applicant pleaded guilty to three charges of possessing dangerous drugs in the first indictment - where the applicant pleaded guilty to a further two charges of possessing dangerous drugs in the second indictment - where the applicant absconded after pleading guilty in the Supreme Court and was unlawfully at large for two and a half months until his arrest on the second indictment - where the applicant was sentenced to an effective sentence of 11 years and three months imprisonment - where the sentencing judge stated incorrectly that the applicant was unlawfully at large for two and a half years - where the sentencing judge concluded that no leniency should be granted to the applicant in respect of his guilty plea to the first indictment because he failed to appear - whether the judge erred - whether the application for leave to appeal should be granted - whether the appeal should be allowed

[2]

Barbaro v The Queen; Zirilli v The Queen (2014) 88 ALJR 372; (2014) 305 ALR 323; [2014] HCA 2, cited

[3]

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25, cited

[4]

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited

[5]

R v Cooney [2004] QCA 244, cited

[6]

R v Cutajar (1995) 85 A Crim R 280; [1995] QCA 570, cited

[7]

R v Maxfield [2002] 1 Qd R 417; [2000] QCA 320, cited

[8]

R v McAnally [2001] QCA 66, cited

[9]

R v Oliver [2007] QCA 361, cited

[10]

R v Truong [1997] QCA 49, cited

[11]

R v Van Huynh [2003] QCA 371, cited

[12]

Director of Public Prosecutions (Queensland) for the respondent

[13]

[1] MARGARET McMURDO P: The applicant pleaded guilty on 5 April 2012 to three charges contained in the first indictment: possession of dangerous drugs (heroin) in excess of two grams (count 1); possession of dangerous drugs (methylamphetamine) in excess of two grams (count 2) and possession of dangerous drugs (testosterone) (count 3). All offences occurred on 2 December 2010. On 3 December 2013, he pleaded guilty to two counts contained in the second indictment: possession of dangerous drugs (methylamphetamine, cocaine, heroin, morphine, codeine and cannabis) with the quantity of methylamphetamine, cocaine and morphine exceeding two grams (count 1) and possession of a weapon (count 2). These offences were committed on 17 April 2013. He also pleaded guilty to a number of summary offences committed on 2 December 2010: possession of cash suspected of being the proceeds of an offence; possession of scales and clip-seal bags suspected of having been acquired for the purpose of committing a drug offence; and possession of scissors and spoons used for the administration of a dangerous drug.

[14]

[2] He was sentenced on 3 December 2013 on all counts. On the first indictment, he was sentenced to nine years imprisonment on counts 1 and 2 and four years imprisonment on count 3. He was convicted but not further punished on the summary offences. On the second indictment, he was sentenced to two years three months imprisonment on count 1 and six months imprisonment on count 2 to be served concurrently with each other but cumulatively on the sentences imposed on the first indictment. No parole eligibility date was set. His effective sentence was therefore 11 years and three months imprisonment with parole eligibility at the half way point. He has applied for leave to appeal against his sentence, contending that the judge erred in failing to take into account his guilty pleas on both indictments and in imposing a manifestly excessive sentence.

[15]

[3] The applicant was 36 at sentence, 33 at the time of the counts in the first indictment and 35 at the time of the counts in the second indictment. He had an extensive criminal history commencing in 1997 when he was fined for assault occasioning bodily harm and subsequently breached the community based order imposed. In 1998 he was placed on three years probation for various property offences. He breached his probation by not paying a compensation order and was resentenced. He had numerous convictions for street, bail and property offences between 1997 and 2008 resulting in fines or very short periods of imprisonment. Of more significance, on 6 October 2008 he was sentenced to three years imprisonment for an assortment of drug offences including supplying a Sch 1 dangerous drug. His parole release date was fixed at 14 July 2009 and 84 days presentence custody was declared as time served under the sentence. Between 2009 and 2013 he was convicted of further street and bail offences. In July 2013 he was convicted and fined $750 for possessing dangerous drugs on 12 December 2012, a few days after he committed the offences in the first indictment.

[16]

[4] The charges in the first indictment occurred in this way. At about 3.30 pm on 2 December 2010 police were called to a domestic disturbance at the house where the applicant and his girlfriend lived. They found $4,285 in his bedroom and two vials of liquid labelled testosterone and nandrolene in the kitchen. Later police found his car, which he had attempted to conceal from them by parking it at a shopping centre. In it were toiletry bags containing a brown crystal substance and white powder, scales, spoons, tape, scissors, cold and flu tablets, telfast tablets, empty clip-seal bags and a notebook recording names and money amounts. He declined to be formally interviewed by police but made some admissions during the searches of the house and car. The white powder weighed 559.767 grams with a total weight of pure heroin of 83.055 grams (purity 15 per cent) (count 1). The brown crystal substance was contained in six plastic bags and weighed a total of 280.872 grams with a total weight of pure methylamphetamine of 125.718 grams (51.8 per cent pure) (count 2). The vial contained testosterone (count 3).

[17]

[5] The offences in the second indictment occurred in this way. On 17 April 2013 at about 3.30 pm police intercepted a Nissan Skyline driven by the applicant's co-offender, Mosquera, in which the applicant was a passenger. Police found several garbage bags in the back seat and boot containing the applicant's property. They also found a receipt for the sale of the Nissan to the applicant's father. Underneath a floor mat they found two bags. One contained a locked portable safe, a smaller bag with a silver handgun (count 2), a leather gun holster and a box containing two small plastic tubs of clear rocks. Inside the safe was $4,415 in cash bundled in $1,000 lots; a bag containing a red balloon inside a blue balloon which contained green leafy material; three small packages of compacted white crystals in a freezer bag; four smaller packages in a freezer bag, one containing brown packed crystals, two containing white crystals and one with four smaller bags containing dark brown crystals. The safe also contained a black wetsuit bag inside which was a freezer bag with two small packages of white crystals; a plastic bag containing five smaller packages of white crystals and another plastic bag containing white crystals. A bag found in the boot contained scales, small plastic tubs, freezer bags, spoons, scissors, a calculator, rubber bands and sticky tape. Another bag in the boot contained $148.30 and a small box, inside which was a plastic bag of green leafy material. Police found $4,715 in cash in the applicant's shorts pocket. The seized substances were analysed and found to contain 131.755 grams of methylamphetamine; 0.054 grams of heroin; 6.742 grams of morphine; 9.266 grams of cocaine; 5 grams of cannabis and an unspecified amount of codeine (count 1). The applicant's fingerprints were found on a container of brown sludge liquid which contained methylamphetamine and on the plastic bag holding the green leafy material inside the small box. He declined to take part in a police record of interview.

[18]

[6] When he was arrested on the charges in the first indictment on 2 December 2010, his parole was cancelled and he served the balance of his 2008 sentence. He was then released from custody. He was arrested on the charges in the second indictment on 17 April but served 49 days for other offences so that only 89 days could be declared as time served under the present sentences. He committed the offences in the second indictment whilst on bail for the offences in the first indictment.

[19]

[7] After pleading guilty to the offences in the first indictment in the Supreme Court on 5 April 2012, he failed to appear on 6 February 2013 and a bench warrant was issued. He was not apprehended on that warrant until his arrest on the charges in the second indictment, about two and a half months later. His plea of guilty to the second indictment was particularly early.

[20]

[8] The prosecutor submitted that cumulative sentences should be imposed for the offences in the second indictment. The offences were not serious violent offences under s 161B Penalties and Sentences Act 1992 (Qld). The appropriate penalty for the offences in the first indictment was eight to 10 years imprisonment and on the offences in the second indictment six to eight years imprisonment but moderated to four to five years imprisonment because of the cumulative nature of the sentence. This meant that the effective global sentence should be from 12 to 15 years imprisonment. That contention was supported by R v McAnally[1] whose offending was less serious; the sentence imposed on the co-offender, Trinh, discussed in R v Van Huynh,[2] and R v Oliver.[3]

[21]

[9] Defence counsel at sentence conceded the appropriateness of an effective global sentence, structured cumulatively, of between 12 and 14 years imprisonment with eight or nine years imprisonment for the offences in the first indictment. After committing the offences in the first indictment, the applicant was returned to custody and served the seven and a half months imprisonment remaining on his 2008 sentence. Some recognition should be allowed for this in determining his sentence on these offences. He had been in custody since 17 April 2013 when he was arrested on the offences in the second indictment but 49 days was served for other offences and was not declarable. Allowance should be made for this in determining his sentence.

[22]

[10] The applicant came as a refugee to Australia with his family when he was a young boy. The rest of his family had become successful citizens and continued to offer him their support and love, despite his offending. Defence counsel tendered a letter from the father of the applicant's brother-in-law stating that he considered the applicant was easily led and was now genuinely sorry for his offending and lifestyle. Defence counsel explained that the applicant left school at year 10 and had worked in family businesses but in recent years his life had been marred by his losing battle with addictions to cannabis, methylamphetamine and heroin. Since his arrest in April 2013, he had completed a lifestyle modification program and his behaviour and attitude were considered "outstanding". He was 37 years old, would not be released from prison for some time and would probably then be on parole for a lengthy period. He had the benefit of family support to help his rehabilitation.

[23]

[11] The judge observed that the applicant was "not really entitled to [an early parole eligibility date] on the first indictment" but that "his plea of guilty on the second indictment needed some recognition".[4] Defence counsel responded that the applicant was still entitled to some benefit for his guilty plea. The prosecutor countered that there was little reason for an earlier than usual parole eligibility date on the first indictment but perhaps it could be set at somewhere between one third and one half to reflect the guilty plea; in respect of the second indictment the parole eligibility date could be set more generously.

[24]

[12] After setting out the facts of the offending and the applicant's antecedents, his Honour noted that the two sets of offending were so distant that cumulative sentences should be imposed. This required moderation of the final sentence so that it was not crushing. His Honour also noted that the applicant had spent seven and a half months in custody resulting from his breach of parole with the commission of the offences in the first indictment. This could not be declared as time served under the sentences for the present offences. He had also served an additional time in custody (inferentially the 49 days for other offences) which could not be declared. His Honour continued:

[25]

"The other matter which has troubled me is the issue of the second indictment and your plea to it, which would, in ordinary circumstances, be recognised through the setting of a parole eligibility date. No such leniency should be granted with respect to the first indictment because, as I said, while you did signify an intention to plead, you failed to appear and you were at large for some two and a half years." (my emphasis)

[26]

[13] After referring to R v Truong,[5] Oliver, R v Cooney,[6] Van Huynh and McAnally, the judge imposed an effective nine year sentence on the counts in the first indictment. No further punishment was imposed on the summary offences. His Honour continued:

[27]

"With respect to the second indictment, on count 1,- had this been the only matter for which you are being sentenced, I would have imposed a sentence of six years. With respect to count 2, I would have imposed a sentence of six months. But in order to take into account the cumulative nature of the sentences I impose, I am going to reduce that sentence and I intend also to reduce it in order to account for the cumulative sentences and to account for the period of time that you have been imprisoned and for which I've already made reference. And I will further reduce it, to take into account the fact that you entered a plea on the second indictment, because it is far too difficult to set a parole eligibility date that would have any meaning, given the sentence for the first indictment."

[28]

[14] The judge sentenced the applicant to an effective sentence of two years and three months cumulative on the second indictment adding:

[29]

"I've given serious thought to the issue of a parole eligibility date. But from a practical point of view, given the history of the [applicant], I think it is to his advantage to have the time taken off at the top."

[30]

[15] The applicant contends that the judge erred in stating that the applicant had been at large for some two and a half years after he failed to appear on the charges in the first indictment.[7] In fact, he was at large only for two and a half months from 6 February until 17 April 2013.[8] He also contends that his Honour erred in not reducing the sentences imposed on the counts in the first indictment in light of the applicant's guilty plea. Some discount was appropriate despite his absconding. He further contends that the judge erred in not explaining what reduction he had given to reflect the timely guilty pleas in respect of the offences in the second indictment. He contends that the sentence was manifestly excessive despite the contrary concession of defence counsel at sentence.[9]

[31]

[16] The applicant submits that the comparable sentences support a sentence of seven years imprisonment for counts 1 and 2 on the first indictment and two years cumulative imprisonment for count 1 on the second indictment with parole eligibility after three years. If, like the sentencing judge, this Court considers the applicant unlikely to obtain parole so that all discounts must be taken off the head sentence, a global sentence of seven and a half years imprisonment with parole eligibility at the statutory half way point is appropriate.

[32]

[17] The respondent contends that the judge clearly intended to state that the applicant had been at large for two and a half months, not two and a half years; this slip is not material and does not amount to an appellable error. The guilty pleas on the first indictment were entered only after the matter had been listed for trial and there was an unsuccessful challenge to the admissibility of evidence relating to the police search of the applicant's car. The applicant absconded whilst on bail; the period of the absconding was not important. In these circumstances, the judge was entitled in respect of the offences in the first indictment to refuse to reduce the sentence to recognise the guilty plea. In respect of the counts in the second indictment, the judge made clear that he was reducing the head sentence rather than giving a parole eligibility date. This approach was supported by authority: R v Maxfield.[10] Arithmetical precision is not required in the sentencing process: Barbaro v The Queen; Zirilli v The Queen; [11] Markarian v The Queen.[12] The judge identified both the deduction applied and the few factors warranting the deduction. This demonstrated his transparent reasoning process. There was no error.

[33]

[18] The respondent emphasises that the sentence was consistent with that sought by defence counsel so that this Court would interfere only in unusual circumstances. The applicant was a recidivist drug offender and a danger to the community. Condign punishment was warranted to deter him and others. The judge sufficiently moderated the head sentence to take account of the totality principle discussed in Mill v The Queen.[13] The sentence was not manifestly excessive and was supported by Truong, R v Cutajar[14] and McAnally.

[34]

[19] Whether or not the judge thought the applicant had absconded and been at large for two and a half years as he stated in his sentencing remarks, instead of two and a half months as his Honour was told, I consider his Honour erred in concluding that the applicant should be given no credit for his guilty plea to the counts in the first indictment.[15] Although the plea was late, it showed some limited cooperation with the authorities, remorse and provided some utilitarian benefit to the community. These matters were not entirely diminished by the fact the applicant breached his bail by absconding and being unlawfully at large for two and a half months. As the prosecutor at sentence stated, whilst a parole eligibility date to recognise his guilty plea should not have been set as early as one third, it should have been set slightly earlier than the statutory 50 per cent mark.[16] The wilfulness of the applicant's absconding, whilst not excused, can be explained in part by his raging addiction to the drugs the subject of these offences. It is desirable that, even in circumstances such as these, judges give and explain they are giving some moderation for a guilty plea so that offenders know there is a real benefit in pleading guilty. So much is consistent with s 13 Penalties and Sentences Act.

[35]

[20] In respect of the cumulative sentences imposed on the second indictment, his Honour very significantly moderated the six year sentence he would have imposed to two years and three months, stating that he was reducing it because of the totality principle and to reflect the difficulties he perceived in setting a parole eligibility date. That approach was open to his Honour and was consistent with a sound exercise of the sentencing discretion. His Honour nevertheless erred in not also moderating the sentences for the offences in the first indictment in some modest way to recognise the late guilty plea to those offences.

[36]

[21] The maximum penalty for a drug dependent person like the applicant for possession of Sch 1 drugs is 20 years imprisonment: s 9(b)(1) Drugs Misuse Act 1986 (Qld). These were serious examples of that offence, especially the counts in the first indictment. He was a mature man with previous like convictions. The cases of Truong, McAnally, the sentence imposed on Trinh discussed in Van Huynh and Oliver support the effective head sentence of nine years imprisonment imposed on the first indictment. The moderate cumulative sentence imposed on the offences in the second indictment appropriately reflected the mitigating features pertaining to that offending and the totality principle. Under the sentence imposed by the judge, effectively 11 years and three months imprisonment, the applicant is eligible for parole after about five and a half years. Appropriate modest recognition for his late plea to the offences in the first indictment, despite his absconding, would be to set his parole eligibility date after about four and a half years, that is on 15 January 2018. In setting that date I have not taken into account the time he served following his breach of parole for his 2008 sentence but I have taken into account all time served since his arrest on 17 April 2013, that is, 138 days, 89 days of which was declared as time served under the sentence. Had he been sentenced for the offences for which he received 49 days imprisonment at the same time he was sentenced for the present offences, it was likely that all sentences would have been concurrent.

[37]

[22] I would grant the application for leave to appeal, allow the appeal, and vary the sentence by setting parole eligibility on 15 January 2018. I would otherwise confirm the sentence imposed.

[38]

[23] GOTTERSON JA: I agree with the orders proposed by McMurdo P and with the reasons given by her Honour.

[39]

[24] MORRISON JA: I have read the reasons of the President and agree with her Honour and the orders she proposes.

[40]

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