R v Tran; R v Tran [2006] VSCA 222

3 The appellants were both sentenced for drug trafficking offences in the County Court on 11 November 2005. They had been involved in a drug trafficking network which predominantly involved trafficking in heroin. The appellants now appeal against the sentences imposed upon them having been granted leave to do so on 7 April 2006.

4 The first appellant, Martin Tran, who turned 36 years of age during the period of his offending, pleaded guilty on 11 October 2005 to one count of trafficking in a drug of dependence, namely heroin, between 17 August and 1 November 2002. A plea in mitigation was heard on 31 October and 7 and 8 November 2005. He was sentenced to six years' imprisonment with a non-parole period of four-and-a-half years. It was not in issue that he had traded in 490 gm of a mixed substance containing heroin during the period alleged.

5 The second appellant, Van Tran, who was about 47 years of age at the time of his offending, pleaded guilty on 30 September 2005 to one count of trafficking in a drug of dependence, namely heroin, and to one count of trafficking in a drug of dependence, namely crystal methylamphetamine (commonly known as "ice") between 20 April and 1 November 2002. It was not in issue that Van Tran had trafficked in 351.2 gm of heroin and 8.2 gm of methylamphetamine between those dates. A plea in mitigation was heard on 31 October and 8 November 2005. He was sentenced to five years' imprisonment with a non-parole period of three-and-a-half years.

6 Each of the appellants was originally charged with trafficking in a large commercial quantity of heroin. The first appellant was alleged to be the principal supplier of drugs to the second appellant and his partner, Thu Dao Tran and to others. At the commencement of the trial there was an adjournment to enable negotiation between the prosecution and those representing the first and second appellant and Thu Dao Tran. Thereafter the prosecution accepted a plea of guilty by Thu Dao Tran to one count of trafficking in substitution for a count of trafficking in a large commercial quantity. Shortly thereafter the prosecution reached the same agreement with the second appellant. After a voir dire and discussions over some days, the first appellant also entered a plea to trafficking simpliciter.

Circumstances relating to the first appellant

7 The factual circumstances surrounding the first appellant's offending were summarised by the learned sentencing judge in his reasons for sentence and were not in dispute on this appeal. What follows draws upon that summary. Between March and November 2002, police investigated a drug trafficking network within the Vietnamese community. The police gathered evidence, mainly by intercepting over 3,000 telephone calls. Those calls which involved the first appellant concerned the obtaining of supplies of heroin, offering to sell the heroin, completing heroin sales and arranging the collection and delivery of the heroin. Although it was difficult for the investigators to discern accurately what amount of heroin was involved in the various transactions, it was not in issue on the plea or on this appeal that the first appellant had traded in 490 gm of a mixed substance containing heroin during the relevant 75-day period. The largest single transaction involved an amount of 175 gm.

8 The first appellant was involved in the distribution of heroin to customers, including the second appellant, who would on-sell to others. The first appellant would often use "runners" (sometimes known as couriers) to deliver heroin to customers. He occupied a central and primary position in the network.

9 The first appellant was sentenced at the same time as three other persons, including the second appellant, who were involved to varying degrees in the trafficking network. Two of those persons were runners used by the first appellant. The sentencing judge was provided with details of the sentences which had been imposed on 13 other persons involved in the trafficking. Annexed to the summary of proceeding with which we were provided, was a chart which listed all of the offenders and set out the periods during which they trafficked, the amount of heroin in which they trafficked, antecedents and the sentence that was imposed in relation to each offender. The schedule showed that the first appellant had trafficked in a larger quantity of heroin than any of the other offenders and that the sentence imposed upon him was substantially higher than that imposed on any of the other offenders.

10 On the plea the prosecution submitted that the first appellant occupied a higher position in the trafficking network than the second appellant. This submission was supported by counsel for the second appellant on the plea. His Honour found that the first appellant had a primary role within the trafficking network and supplied the second appellant. His Honour also found that the first appellant trafficked in a greater total quantity of heroin and in generally larger individual deals than the second appellant. His Honour concluded that the first appellant's heroin trafficking involved a higher level of culpability than that of the second appellant. Although those findings were disputed on the plea, it was expressly stated on the appeal that those findings were not challenged.

11 In his reasons for sentence the learned sentencing judge stated that he intended to give the first appellant a real benefit from his plea of guilty, noting the considerable saving to the community which had resulted from the avoidance of what would otherwise have been a very lengthy trial. At the time that his Honour announced the sentence he again stated that had it not been for the plea of guilty, the sentence would have been significantly longer. Despite the plea the learned sentencing judge was not satisfied that there was any persuasive evidence of remorse. His Honour referred to the fact that the first appellant had denied being involved in drug trafficking on each occasion that he was interviewed by investigators and that he had adamantly denied his involvement in the course of a psychological assessment after he had entered his plea of guilty.

12 The first appellant and his family had fled Vietnam in the mid-80s and came to Australia in 1989 after three years in a refugee camp in Malaysia. In adverting to the difficulties which the first appellant had faced prior to coming to Australia his Honour stated that the first appellant had contracted osteomyelitis whilst in the refugee camp in Malaysia and that it had been a major health problem on a sporadic basis which had caused the first appellant significant trouble in the last two years.

13 On the plea it had been submitted on the first appellant's behalf that he had commenced using heroin in the early 1990s to cope with his leg pain and that he was using heroin at the time of his offending. This claim was explored at some length during the plea, it being noted that the claim was inconsistent with various matters set out in the psychologist's report which was tendered on the plea. His Honour was not prepared to conclude that the first appellant was drug-dependent or using heroin to any particular degree during the time of his offending. Those findings were not challenged on the appeal.

14 It is convenient to now deal with the second appellant's offending and personal circumstances as they are relevant to the first appellant's grounds of appeal.

Circumstances of the second appellant

15 The case against the second appellant was largely compiled from intercepted telephone calls. His Honour found that the calls demonstrated that the second appellant was involved in a substantial business of drug trafficking conducted over several months in which he negotiated, prepared and arranged heroin transactions of all sizes. The second appellant was a heroin addict and his Honour was satisfied that it was his addiction which motivated his involvement. His Honour found there was nothing to suggest that his drug trafficking had resulted in any significant financial enrichment.

16 The second appellant admitted six prior convictions from four court appearances between 1991 and 1995. His Honour found all but the last of those appearances to be of little significance. On that occasion he was convicted on charges of using heroin, two charges of trafficking in a drug of dependence and a charge of possession of a drug of dependence and was sentenced to pay an aggregate fine of $1,000. His Honour stated that whilst these convictions were clearly relevant he did not consider them to be of weighty significance in the context of the serious nature of the current offending. The second appellant had been twice fined a small amount for being in a common gaming house and was convicted and discharged for the offence of making a threat to kill.

17 The second appellant also fled Vietnam as a refugee arriving in Australia in 1981 via the Philippines. He came to Australia with the hope of making a home for his wife and two children whom he had left behind. He was thereafter unable to locate them and believed that they had perished. By 1995 he had an addiction to heroin which continued until the time of his present offending.

18 The second appellant was charged in the year 2000 with trafficking in a large commercial quantity of a drug of dependence, namely heroin. He was released on bail and remained on bail until he was arrested on 1 November 2002 for the present offences. He has been in custody since that time. The offences with which we are concerned were committed during his period on bail. The earlier offence was not dealt with until 27 September 2004 when he was convicted and sentenced to two years' imprisonment with a non-parole period of 15 months. The sentence the subject of this appeal was thus imposed whilst the second appellant was serving that sentence under which he was eligible for release on parole on 27 December 2005.

19 The learned sentencing judge found that the second appellant's offending was a consequence of his heroin addiction. His Honour specifically recognised the second appellant's efforts to rehabilitate himself during the period of the sentence he was already serving. His Honour found that he had addressed his heroin addiction and had completed a number of rehabilitative and training courses whilst in custody. However, his Honour was not confident that he had good rehabilitative prospects. The learned sentencing judge, in his reasons for sentence, adverted to the real benefit to which the second appellant was entitled as a consequence of his plea of guilty. His Honour accepted that he had offered to plead guilty to trafficking in heroin at the case conference which took place some time before the beginning of the trial.

20 In sentencing the second appellant his Honour stated that he was obliged to keep in mind the sentence which he had imposed that day upon the second appellant's partner. She had been sentenced to three years' imprisonment which was suspended save for 614 days which she had already served as presentence detention. On the second appellant's plea it was conceded that his partner had helped him in his business of drug trafficking. His Honour described the sentence he imposed on her as merciful but there were a number of factors to which his Honour adverted which distinguished her circumstances from his. On the appeal the second appellant, as I have already mentioned, abandoned any contention that the sentencing judge had erred in any way in applying principles of parity in sentencing.

21 Both appellants had been arrested and charged in 2002. During the plea, his Honour adverted to the considerable delay in their cases coming to trial and stated that that delay should be weighed in their favour. In sentencing the second appellant, his Honour made specific reference to delay as a mitigating factor.

First appellant's grounds of appeal

22 The first appellant submits that there was an unjustifiable disparity between the sentences imposed upon him and the second appellant (ground 1). Secondly, it was contended that a lower non-parole period should have been fixed and the failure by the sentencing judge to give reasons for the minimum sentence suggested error (ground 4). It was also contended that the sentencing judge had failed to give sufficient weight to the delay from the time the appellant was charged until his sentence, his plea of guilty and the circumstances preceding its acceptance, his age and lack of prior convictions and his health problems, in particular his chronic osteomyelitis of the right femur (ground 3). It was said that the failure to properly take these matters into account resulted in the head sentence and the non-parole period being manifestly excessive (ground 5).

Ground 1 - Parity

23 Counsel for the first appellant confined the argument to alleged disparity between the treatment of the first and the second appellants, submitting that the first appellant should have received a sentence much more closely aligned with that of the second appellant. While accepting the first appellant's primary role, counsel submitted that due recognition was not given to the fact that the first appellant's offending was of much shorter duration than the second appellant's, that the second appellant had relevant prior convictions, that the second appellant had a subsequent conviction for trafficking in a drug of dependence for which he had been sentenced to two years' imprisonment and that the second appellant had committed the present offences whilst on bail. Reliance was also placed upon the fact that the second appellant had trafficked in heroin and in methylamphetamine in circumstances unconnected with the first appellant. Attention was drawn to the findings regarding the second appellant contained in the reasons for sentence which showed that the second appellant had been engaged in a substantial business of drug trafficking in heroin over several months and that he had been involved in all aspects of the business. Counsel for the first appellant submitted that, notwithstanding the findings made by the sentencing judge concerning the first appellant, principles of parity required that he should have received a sentence similar to that imposed on the second appellant.

24 No findings made by the sentencing judge were challenged. It was acknowledged that the sentencing judge had expressly referred to the principles of parity and provided reasons why the first appellant should be sentenced to a term of imprisonment greater than the four-and-a-half year term imposed upon the second appellant on the count of trafficking in heroin. I do not agree that a proper balancing of all of the relevant factors should have resulted in the same or a similar sentence being imposed upon both appellants or that his Honour had reached the wrong conclusion.

25 The learned sentencing judge gave full and careful reasons for his conclusion that there should be a significant difference in the sentencing dispositions of the first and second appellant. Having regard to the various factors pertinent to each of the appellants to which I have already referred, I do not agree that the terms of the sentences imposed upon the appellants would lead an objective observer to conclude that justice has not been done or could warrant a justifiable sense of grievance on the part of the first appellant.[1]

Ground 4 - The non-parole period

26 It was conceded in the outline of submission that the fixing of a non-parole period three-quarters the length of the total effective sentence is not of itself unusual. It was submitted that the personal circumstances of the first appellant including the absence of any prior criminal history should have led to the imposition of a lower non-parole period. It was submitted that the imposition of the same 18-month gap between the head and minimum sentences for both appellants suggested error by the sentencing judge in fixing the first appellant's non-parole period. In the absence of expressed reasons for the imposition of the minimum term, it was submitted that the failure to expressly justify it bespoke error.[2]

27 The non-parole period imposed demarcated the minimum period that the appellant serve in custody and the longest possible term of his parole supervision. The Sentencing Act 1991 requires that the non-parole period be at least six months less than the terms of the head sentence.[3] Beyond that legislative direction there is no requirement at law which calls for a set ratio between the head sentence and the non-parole period.[4] The Australian Law Reform Commission recently reported that "case law recognises that the non-parole period is generally set at 60 to 66.6% of the head sentence with the non-parole period increasing to 75% in the worst category of case".[5] This accords with the observations of Callaway, J.A. in R. v. Bolton & Barker[6] that "[I]n the majority [of cases] the proportion is between two-thirds and three-quarters but both shorter and longer periods are found."

28 The minimum term is recognised to be of benefit to the offender providing the offender with a basis for a hope of earlier release and in turn an incentive for rehabilitation.[7] When a minimum term is fixed, the prisoner's punishment is mitigated in favour of his rehabilitation through conditional freedom, when appropriate, but only after the prisoner has served the minimum term that justice requires having regard to the circumstances of the case.[8] As the benefit of the minimum term is for the purpose of the offender's rehabilitation,[9] the sentencing judge's assessment of the offender's prospects of rehabilitation will have a significant bearing on the minimum term to be fixed.[10] In fixing that term the interests of the community, which the imprisonment of offenders is designed to serve, must be taken into account. One such interest which bears upon both the head and minimum sentence to be fixed is the need to deter those who involve themselves in drug trafficking, particularly where there are poor prospects for the offender's rehabilitation.

29 In sentencing offenders for drug trafficking, general and specific deterrence are important objectives which must not be undermined by an unduly short non-parole period. The objective gravity of such offences and the need for general deterrence together with the circumstances personal to the offender are factors which all operate to confine the appropriate range for the exercise of the discretion as to the minimum time which the offender should serve in custody.[11]

30 It was plainly open to the sentencing judge to reach the conclusion that the first appellant's culpability was "significantly greater" than that of the second appellant. He had primary involvement and control of the operation as revealed by the contents and volume of the phone intercept material and the extent of his activities associated with the heroin trafficking. It is implicit in his Honour's reasons that he was not satisfied the first appellant was addicted to heroin and that his involvement in the business was for the purpose of financial enrichment. The first appellant's non-parole period is not unusual, being three-quarters of the head sentence. The term imposed did not call for more elaborate reasons than those that were given.[12] Having regard to the various findings made by the sentencing judge and his reasons for sentence to which I have referred, it was, in my view, plainly open to the sentencing judge to fix the non-parole period that he did.

Grounds 2, 3 and 5 - Delay, plea, ill health and manifest excess

31 It is convenient to deal with these grounds together as they were considered together in the outline of submission and oral argument.

32 Reliance was placed upon the lengthy delay in bringing the appellant to trial and upon the fact that he faced the prospect of trial on a far more serious count of trafficking in a large commercial quantity.

33 During the plea, the sentencing judge adverted to the fact that the delay since the first appellant's arrest had been significant. His Honour referred to the fact that the appellant had been at liberty for two years of the period of delay. I detect nothing in his Honour's approach which suggests that his Honour failed to allow as a mitigating circumstance that the appellant would now be placed in prison so many years after he was charged. That said, caution is required in asserting a right to an automatic discount in every case of delay.[13] There must be undue delay. It should be born in mind, as Winneke, P. observed in R. v. Whyte[14] that -

41 In sentencing the second appellant the sentencing judge was required to give effect to the principle of totality.

42 I have already referred to the fact that the second appellant had been on bail at the time of the commission of the offences with which we are concerned. Section 16(3C) of the Sentencing Act 1991 was therefore enlivened and the presumption of concurrency for separate sentences displaced. The effect of s.16(3C) was that there would be a cumulation of the sentences unless the sentencing judge in the exercise of his discretion had ordered concurrency of all or part of the sentence. But the application of s.16(3C) did not oblige the sentencing judge to follow any particular course.[15]

43 Section 16(3C) was referred to briefly during the course of the plea. His Honour made no express reference to the cumulation of the sentence in his reasons. It was submitted that the effect of his Honour's order was to impose a total effective sentence which offended the principle of totality because the resultant cumulation of the earlier sentence and the sentence imposed by His Honour produced an aggregate sentence which did not appropriately reflect the appellant's overall criminality.

44 It was not in issue that the sentencing judge was required to take into account the principle of totality in determining whether to make any order for concurrency between the two sentences.[16] Relying upon the principles stated in Mill v. The Queen[17] it was correctly submitted that his Honour was obliged to have regard to both the sentence he was about to impose and the sentence which the appellant was already serving. It was submitted that his Honour, as a result of an evaluation of the overall criminality of the appellant should have adjusted the head sentence downwards and that by failing to do so, the new non-parole period, which his Honour fixed pursuant to s.14 of the Act, was also too high because it was fixed by reference to an excessive head sentence. These submissions cannot be sustained.

45 As I have already mentioned, the learned sentencing judge's attention was directed to s.16(3C). Counsel for the appellant had made reference on the plea to the principle of totality and its application to the fixing of the new non-parole period. The learned sentencing judge acknowledged that he was required apply the principle and made reference to the fact that the second appellant had been in custody for almost three years. It was properly conceded during oral argument on the appeal that his Honour had intended to cumulate the two sentences and had determined the new non-parole period was to commence from the date of his sentence, being 11 November 2005.[18]

46 I am not persuaded that the sentence imposed failed to take into account the sentence that the appellant was already serving. That is to say it has not been established that the sentence imposed infringed the principle of totality.

Ground 2 - Manifest excess

47 The total effective sentence and the non-parole period were said to be manifestly excessive because the sentencing judge had failed to take into account the considerable delay before the appellant was sentenced in relation to these matters, his relatively early offer to plead guilty and the fact that the trafficking had occurred in the context of the appellant's heroin addiction. As I have already said, the reasons for sentence show that the learned sentencing judge took into account the appellant's plea of guilty, the delay in the matter coming to trial, his personal history and the progress that the appellant had made towards rehabilitation whilst in custody.

48 The learned sentencing judge found that the appellant's involvement in the drug trafficking business was explained by his addiction to heroin. That addiction was not to be viewed by the sentencing judge as a matter in mitigation. His addiction explained his involvement in drug trafficking and demonstrated that the appellant was not motivated by greed and a desire to accumulate wealth. The absence of this aggravating feature was plainly taken into account by the sentencing judge.

49 The head sentence and new non-parole period imposed by the learned sentencing judge does not demonstrate any error in approach. Having due regard to the various factors raised on the second appellant's behalf I am not persuaded that the sentence imposed was beyond any reasonable exercise of the sentencing discretion.

50 I would dismiss the second appellant's appeal.

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At a glance

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Judgment (9 paragraphs)