R v Truong [2005] VSCA 147

1 I will ask Vincent, J.A. to deliver the first judgment.

2 The appellant, Tuan Truong, pleaded guilty in the County Court at Melbourne, on 3 September 2004, to two counts of trafficking in a drug of dependence, the first of which involved heroin and the second, amphetamine. He was at the time of the commission of these offences 22 years of age and is now aged 26 years.

3 He admitted 21 convictions or findings of guilt arising from six court appearances between 12 August 1996 and 21 July 2000. Of particular significance in the present context is the fact that they include four prior convictions for trafficking in drugs of addiction.

4 After hearing a plea in mitigation of penalty advanced on behalf of the appellant, the learned sentencing judge, on 15 September 2004, imposed a sentence of imprisonment for three years and six months on the heroin related offence (count 1) and 18 months' imprisonment for the trafficking in amphetamine (count 2). He directed that six months of the sentence imposed on count 2 was to be served cumulatively upon that imposed on count 1. This created a total effective sentence of four years' imprisonment in respect of which he fixed a non-parole period of two years.

5 Having been granted leave to do so, the appellant now seeks to overturn the individual sentences, the total effective sentence imposed upon him and the non-parole period fixed by his Honour. The grounds upon which reliance has been placed are set out in the appellant's Final Statement of Grounds of Appeal as follows:

"1. That the sentence was manifestly excessive having regard to:

(a) the delay that had occurred

(b) the youth of the appellant

(c) the significant rehabilitation that had taken place.

2. That the learned sentencing judge was overborne by the principle of deterrence in such a way that he gave insufficient and requisite weight to the rehabilitation that had taken place.

3. That the learned sentencing judge had regard to facts that were not proved to the requisite standard.

4. That the learned sentencing judge took into account irrelevant and prejudicial factors. In that by indicating that a deterrent message ought to be sent to the Vietnamese the learned sentencing judge incorrectly categorised the need to impose a sentence of general deterrence in order to send a message to a specific group of people, namely Vietnamese nationals. Such categorisation was not permitted nor based on any facts before the learned sentencing judge giving rise to an apprehension of bias.

5. That the learned sentencing judge ignored the provisions of the Sentencing Act in respect of the availability of suspended sentences of imprisonment as a sentencing alternative."

6 The circumstances of the appellant's offending were described by the sentencing judge in the following extract from his sentencing remarks. Mr Melasecca, who appears for the appellant, has accepted that those findings were open to his Honour, but, he submitted, they were deficient in the sense that it was apparent from perusal of the transcripts, upon which the Crown summary before his Honour was based, that many of the transactions related to the securing of drugs by the appellant for his own use and that this aspect of the intercepted material was not mentioned in the sentencing remarks. As there would appear to be little doubt that the appellant was at the time addicted to the drugs in question, there would seem to be no reason to suppose that some of the telephone calls and other communications did not relate to the appellant's securing of drugs for his own use. There is equally no reason to suppose that this fact was not appreciated or taken into account by the sentencing judge. His Honour stated with regard to the appellant's conduct:

"In the course of a major drug investigation into two Vietnamese syndicates, trafficking in drugs of addiction, you were identified as a person who regularly obtained heroin from two other suspects, Van Nam Tranh and Tuo Dow Tranh. Indeed, you are the son of Tuo Dow Tranh, one of the three persons who were targeted as being principals in the drug trafficking operations.

[I interpolate that Van Nam Tranh was the de facto husband of the mother of the appellant.]

You were identified by reason of telephone intercept warrants taken out on a number of phone services. The Crown summary discloses that in relation to a period that is in the presentment, that is between 4 July 2002 and 27 September 2002, there were numerous telephone calls made by you, or you receiving calls from Tuo Dow Tranh and occasionally Nam Tranh, relating to the purchase and trafficking of heroin and amphetamine. You were called often on a daily basis, sometimes several calls a day, and while caution has to be used in making any assessment in terms of quantifying the amounts of drugs actually trafficked by you, it is clear that you were talking about circumstances of trafficking both in heroin and amphetamine beyond selling to individuals and buyers on the street. That is, that you were a wholesaler of both amphetamine and heroin, sometimes swapping amphetamine for heroin. In addition to speaking to your mother and Van Nam Tranh, you also spoke to Kammy Lee in relation to purchasing amphetamine and swapping heroin for amphetamine, as well as Bao Gai Le, another person who has been sentenced by myself in relation to trafficking in heroin.

In making that finding about the nature of your trafficking I do emphasise, however, there is no evidence of any overt act of trafficking in which any specific quantity was identified as being sold, or any actual amounts of moneys received. It is therefore impossible to say how much was involved in your trafficking activities other than to say that it can be readily implied from the transcripts of the telephone intercepts that you were trafficking in the level above street level, that is, wholesaling to other dealers."

7 In support of his contention that the sentences imposed upon the appellant were manifestly excessive in the circumstances, Mr Melasecca drew the attention of the Court to his client's exceptionally difficult background.

8 The appellant was born in Vietnam on 14 September 1978 and, with other members of his family, left as a refugee when he was five years of age. He experienced the trauma of a dangerous sea journey and a period in a refugee camp before the family reached Australia. His family life was unstable, due it seems to no small extent to his father's frequent resort to violence against his mother. The appellant had difficulty adjusting to life in this country and this was evidenced in his school career.

9 He left school at the age of 17 years after failing to pass at year 11 standard. He was at this stage spending a deal of time away from home with other, and presumably young, people and began to use drugs and alcohol. He quickly, it seems, became addicted to various narcotic substances. Unsurprisingly, the appellant began to encounter difficulties with the law and there followed the series of court appearances to which I have earlier referred.

10 Ultimately his parents separated and his mother then entered into a relationship with Van Nam Tranh with whom the appellant became heavily involved in drug dealing. It appears that in due course both Van Nam Tranh and the appellant's mother became suppliers of drugs to the appellant. I understand that both are currently awaiting trial for trafficking in commercial quantities of those materials.

11 It would seem to be apparent that the appellant became quite deeply enmeshed in drug use and trafficking for a substantial period and was either unable or unwilling to take proper advantage of the quite lenient penalties and opportunities for rehabilitation offered to him on his various court appearances. Indeed, up to the time he was arrested in relation to the offences with which this Court is concerned, his prospects of rehabilitation must have looked extremely unfavourable.

12 The offending in which he was engaged in the period encompassed by the two counts before this Court was clearly very serious and committed against a background of the commission of a number of other similar offences. As the sentencing judge remarked:

"Trafficking drugs of addiction is a serious crime and it would have been readily appreciated by you at the time when you trafficked in heroin and amphetamine that you were committing serious crimes and if discovered you would be sentenced to a significant term of imprisonment. It would also have been obvious to you that your prior convictions for trafficking in heroin must, of necessity, limit the degree of leniency that could be extended to you on any future occasion.

Trafficking in heroin is a crime that obviously is to be denounced as unacceptable by the community and any appropriate sentence must reflect that consideration, along with considerations relating to both specific and general deterrence, with less weight being given to considerations relating to rehabilitation and individual considerations.

Persons who traffic in drugs of addiction must appreciate that they are deserving of condign punishment."

These remarks by his Honour are clearly correct and reflect the approach adopted by this Court over a very long period of time. In the course of the proceedings today our attention was drawn to similar expressions uttered by Lush, J., in R v. Hill[1], approximately 25 years ago.

13 However, acknowledging the force of these remarks, counsel for the appellant has nevertheless submitted that his Honour attributed undue weight to these factors and, in particular, the principle of general deterrence in these specific circumstances. He failed, the argument proceeded, to take properly into account the extent and success of the appellant's rehabilitative endeavours in the substantial period of time that has elapsed since the commission of the offences. This resulted, Mr Melasecca argued, in the imposition of a sentence that was manifestly excessive in all of the circumstances.

14 In this context, I observe that after his arrest towards the end of 2002 the appellant spent six months in custody before being released on bail. By that stage it appears that he was drug free for the first time since his teenage years. His long-time partner Van Phan gave birth to their first child on the following day. Thereafter, he has remained totally abstinent from heroin and has acted as the head of his family, caring for his mentally ill brother, his own siblings and those of his partner. He sought and secured lawful employment in a car wash during the period when he was at liberty on bail. A second child was born of his relationship with Van Phan before he returned to court 18 months later. There was evidence from Joseph Lamberti, a very experienced drug counsellor, and Richard Tregear, an outreach worker with Open Family, which strongly supported the genuineness of the appellant's endeavours and presented him in a very favourable light.

15 This, Mr Melasecca argued, was a case of the kind to which Callaway, J.A. referred in R. v. MWH[2], where the existence of a substantial interval between the commission of an offence and the date of imposition of sentence can be seen to operate, in one sense at least, in the offender's favour, as it has permitted the individual to demonstrate significant rehabilitation and to reconstruct his life in a more satisfactory fashion.

16 Further, the argument was advanced that his Honour made inappropriate references in the course of discussion to his image of the extent of drug dealing in the Vietnamese community. It was clear, the argument proceeded, that his Honour had formed very strong views about the incidence of such criminal activity and that they were indeed of such strength that he failed to address properly the individual situation of the person before the court. The consequence of that approach was that he failed to deal with the specific person and imposed a sentence which disregarded or undervalued a number of important considerations applicable in his case.

17 There is more than one danger in the application by a sentencing judge of his own anecdotal experience or impressions, however extensive that experience might be. Importantly, such views, which are in no way based upon the evidence immediately before him in the matter and depend upon a variety of unchallengeable considerations, accord to the individual no opportunity for answer. It would be indeed unfortunate were judges to replace the ordinary principles upon which courts must operate in such circumstances with their own impressionistic responses to the situations with which they are confronted. I would add that the principle of general deterrence, to which his Honour directed those remarks, is concerned with the engagement in the prohibited conduct by members of the community generally. It should not be used to convey a message to a specific ethnic community by the imposition of a deterrent sentence upon an offender who is regarded as an appropriate vehicle essentially because he is a member of that community.

18 Unfortunately, I am of the view that there is a distinct possibility that that is what occurred here. On more than one occasion in the course of the proceeding, his Honour made comments indicating the possession of particular knowledge of other matters coming before the courts and his impressions and experience concerning the involvement in drug dealing by members of the Vietnamese community. In other words, his Honour appears to have based his sentence, in part at least, upon his view of the need to deter members of the Vietnamese community from engaging in drug trafficking through the particular person before him who was identified as Vietnamese, rather than the need to deter persons from engaging in drug dealing generally. In consequence, he attributed insufficient significance to the appellant's background, youth and rehabilitative endeavours.

19 Accordingly, I consider that it is necessary in the circumstances of this matter that the appeal be allowed. I propose that the sentences imposed in the court below be set aside and I would re-sentence the appellant as follows:

On count 1: imprisonment for two years and six months;

On count 2 imprisonment for 12 months.

I would direct that six months of the sentence imposed on count 2 be served cumulatively upon that imposed on count 1. This would create a total effective sentence of three years' imprisonment in respect of which I would fix a non-parole period of 15 months.

22 The orders of the Court will be:

1. The appeal is allowed.

2. The sentence imposed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of two years and six months on count 1 and to a term of 12 months on count 2. It is ordered that six months of the sentence on count 2 is to be cumulated on the sentence on count 1. The total effective sentence is three years' imprisonment. A minimum term of 15 months is fixed before the appellant is to be eligible for parole.

3. The Court declares that as at this date the appellant has served a period of 444 days pursuant to this sentence and directs that this declaration and its details be noted in the records of the Court.

[1] Unreported, CCA Vic, 5 February 1980.

[2] [2001] VSCA 196.