Tran, Thi Doan v R

Circumstances of offending

1. The applicant was sentenced with three other co-offenders, The Giang Le ("Le"), Thi Lan Anh Vu ("Vu") and Thi Kim Dung Ha ("Ha"). There were agreed facts for all the co-offenders.
2. Each of the applicant and the co-offenders, Le and Vu, jointly ran a drug supply syndicate, supplying cannabis in Australia by sending packages via Australia Post. The other co-offender, Ha, was the supplier of the cannabis to the syndicate. The applicant's role was to negotiate the price and quantity of supply with Ha. Ha would then physically supply the cannabis to Le. Le and Vu would then package the cannabis and distribute it through Australia Post.
3. Customers placed orders for purchase of the cannabis through the dark web and paid for the cannabis in bitcoin, a digital currency that can be generated, stored and exchanged securely and anonymously.
4. As set out in the agreed facts, a review of the phones of the applicant, Le and Vu revealed conversations from the syndicate's Wickr account, which was used by the syndicate to manage the supply of cannabis to customers, as well as for the management of the business generally, including the management of the money and any queries about quality.
5. The agreed facts, summarised by the sentencing judge, detailed 11 supplies of various quantities of cannabis between 30 January 2018 and 5 April 2018, accumulating to 71.393 kilograms (with an estimated value of $360,000), which became the subject of the first of the offences for which the applicant was charged (Sequence 2). Those supplies were discovered by Police through a combination of intercepted telephone calls, surveillance and CCTV, which revealed conversations and meetings between the co-offenders occurring from 31 January 2018 to 4 April 2018. Whilst the intercepted communications, surveilled meetings and CCTV footage did not involve all four co-offenders on each occasion, they demonstrate a pattern of conduct, consistent with the sentencing judge's description of each person's role.
6. The final supply of cannabis forming part of that offending occurred on 4 April 2018. On 3 April 2018, the applicant spoke to Ha about Ha supplying 4.53 kilograms of cannabis. The applicant was observed leaving her apartment in Chippendale with a bag containing money for the supply and meeting with Ha who was parked in a nearby street. The applicant returned to her apartment without the bag, having given the money to Ha. Ha and Le then organised to meet up the next day at Bankstown Airport Bunnings.
7. On 4 April 2018, Ha was observed placing a container into the boot of her car before travelling to Bankstown Airport Bunnings to meet Le. At the meeting, Le moved the container from Ha's boot to the boot of his car. After this supply had taken place, Police stopped Le's car and found the cannabis that Ha had just supplied to him, which weighed 4.286 kilograms. Le was arrested and participated in an electronically recorded interview. He admitted to using the dark web and Australia Post to supply cannabis to consumers.
8. The Police found in Le's car a number of items used to package and supply the cannabis. A review of Le's phone revealed a number of drug ledgers, which indicated that the syndicate had been operating since May 2017.
9. While Le was being arrested, searched and taken into custody, Police had an address in Sefton under surveillance. Le and Vu generally resided in a granny flat at the address, which was the syndicate's safe house. Later on 4 April 2018, the applicant and Vu met at the Sefton safe house. When they left in separate cars a short time later, both cars were stopped and searched by Police. On each of the applicant's and Vu's phones, Police discovered multiple drug ledgers, which were identical to those found on Le's phone. In Vu's car, Police located a double-sided drug ledger listing 36 customers, as well as a handwritten, smaller drug ledger detailing the same initial 12 customers as the typed document.
10. Later that day, Police executed a search warrant at the Sefton safe house. Items were located, including a box containing a number of different satchels, a large plastic bag containing resealable bags of cannabis, labels, labelling machines, vacuum sealers, scales and other packaging items. Police also located two USBs containing further typed drug ledgers.
11. The drug ledgers discovered on the USBs in the safe house, on Le's phone and in Vu's car evidenced supplies of cannabis that the syndicate had effected between 11 December 2017 and 3 April 2018, accumulating to 35.219 kilograms. These supplies were the subject of the second offence for which the applicant was charged (Sequence 4).
12. Police were monitoring Ha's phones during the period 2 February 2018 to 30 March 2018. During that time, Ha supplied 68.907 kilograms of cannabis. She would obtain cannabis from an up-line supplier and then deliver the cannabis to the purchaser at a prearranged location. On occasion, the purchaser would collect the cannabis from her house in Bexley North. Ha supplied cannabis on a daily basis during that period to different customers. The price per pound ranged from $2,400 to $2,500. It was agreed that, on a conservative estimate, she supplied $624,000 of cannabis in that two-month period.
13. Following Ha's arrest on 2 July 2018 and searches of her car and residence, Police located further quantities of cannabis and evidence of supplies dating back to 9 October 2017. The total weight of cannabis attributable to Ha's offending is 170 kilograms.
14. The applicant and Vu were arrested on 13 July 2018. Police located a small quantity of cannabis in the applicant's Chippendale apartment, which became the subject of the possession offence dealt with on a Form 1 basis. On her arrest, the applicant participated in an electronic recorded interview but did not answer any questions.

Sentencing of the applicant

1. Unlike the co-offenders, the applicant did not give evidence in the sentencing proceedings.
2. The sentencing judge considered the objective seriousness to be in the mid-range in respect of the first count and in the bottom to mid-range in respect of the second count. The assessment of the objective seriousness was similar to that of Le. The sentencing judge observed that the applicant was responsible for securing the cannabis from Ha, including the negotiation for price and quantity. She held a managerial role in the syndicate and represented that Le was working for her. The sentencing judge did not consider the Form 1 offence (possession) to be of significant gravity.
3. The sentencing judge noted that the applicant had stable accommodation in Sydney. She held a bridging visa, having arrived from Vietnam in Australia in 2012. She was a single parent. Her two-year-old son had been placed into care as a result of her arrest.
4. She had been in full-time employment but attributed her offending to financial disadvantage and unstable mental health. Despite some minimisation of her role in the offending behaviour, the sentencing judge accepted that she had a significant and perhaps substantial role to play in the operation.
5. The sentencing judge had regard to a psychological report which revealed symptoms of anxiety and depression. She suffered from an adjustment disorder. The sentencing judge accepted that she was remorseful and that her psychological condition weakened her resolve and ability to cope.
6. She wrote to the Court expressing her shame and remorse. She remained under the care of a psychologist at the time of sentence. She professed to be unaware of the impact that cannabis could have on the community believing that tobacco had a more negative influence.
7. She was assessed as having a low risk of reoffending according to the sentencing assessment report. The sentencing judge had regard to separation from her child as a factor, particularly in circumstances where she had come from an abusive and violent relationship.
8. She had married in 2013 and fallen pregnant. Her husband wanted to terminate the pregnancy and her marriage deteriorated, leading to domestic violence. She had very little financial support from her husband.
9. At the time of sentence she was 30 years of age. She was entitled to the 25% discount on account of her early plea.
10. The sentencing judge considered that both general and specific deterrence must be given appropriate weight. There must be recognition of harm. There must be denunciation and punishment appropriate to the circumstances of the case.

Ground 1

1. The applicant complains about a lack of parity on comparison of her sentence with the sentences imposed on the co-offenders, Vu and Le. I summarised the principles applicable in an appeal such as this most recently in Greaves v R [1] as follows: "60. The parity principle is summarised in the joint judgment of French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] ('Green'): 'Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like applicants should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like applicants to reflect different degrees of culpability and/or different circumstances.' (Footnotes omitted.) 61. This Court should not interfere unless the disparity between sentences for co-offenders is such that the sentence under appeal cannot be allowed to stand without it appearing that justice has not been done. The difference between the sentences must be manifestly excessive and call for the intervention of the appellate court in the interest of justice: Pecora v The Queen [1980] VR 499; R v Tisalandis [1982] 2 NSWLR 430. 62. 'Manifestly excessive' signifies something that is unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. 63. Again, in Green at [31], French CJ, Crennan and Kiefel JJ said: 'The sense of grievance necessary to attract appellate intervention [in a severity appeal] with respect to disparate sentence is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.' (Footnotes omitted.)"
2. I set out below a table showing the offences, indicative sentences and aggregate sentences in respect of each of the four co-offenders: Seq Offence Maximum penalty Indicative sentences (Aggregate) sentence APPLICANT - Ms Thi Doan TRAN 4 years 6 months 2 Supply commercial quantity prohibited drug (71.393kg of cannabis) 15 years' imprisonment and/or 3,500 penalty units 4 years TDF 20/6/19 - 19/12/23 NPP 2 years 3 months Exp 19/9/21 4 Supply commercial quantity prohibited drug (35.219 kg of cannabis) 3 years 3 months FORM 1 attaching to sequence 2 6 Possess 5.9g of cannabis 2 years' imprisonment n/a CO-OFFENDER - Mr The Giang LE 4 years 6 months 8 Supply commercial quantity prohibited drug (71.393kg of cannabis) 15 years' imprisonment and/or 3,500 penalty units 4 years TDF 18/7/19 - 17/1/24 NPP 2 years 6 months Exp 17/1/22 6 Supply commercial quantity prohibited drug (35.219kg of cannabis) 3 years 3 months CO-OFFENDER - Ms Thi Lan VU 2 years 6 months 3 Knowingly take part in the supply commercial quantity prohibited drug (38.736kg of cannabis) 15 years' imprisonment and/or 3,500 penalty units n/a TDF 28/6/19 - 27/12/21 NPP 1 year 3 months Exp 27/9/20 CO-OFFENDER - Ms Thi Kim Dung HA 6 years 9 months 2 Supply large commercial quantity prohibited drug (170kg of cannabis) 20 years' imprisonment and/or 5,000 penalty units n/a TDF 2/7/19 - 1/4/25 NPP 3 years 6 months Exp 1/1/22

1. It can be seen that Ha received a higher sentence than any other co-offender, reflective of her role.
2. The applicant and Le received similar sentences. The applicant's primary submission is that she should have received a sentence comparable to that of Vu and that as a result of the disparity between her sentence and that of Vu, she suffers from a justifiable sense of grievance.
3. There is an immediate difficulty with the applicant's submission because the applicant submitted to the sentencing judge that the role of the applicant and Le were comparable. The sentencing judge accepted the applicant's submission and ultimately imposed very similar sentences.
4. The submission made by the applicant on sentence was as follows: "Additionally, Parity must apply in a substantial fashion to each of at least Tran and Le by reason of the number of counts for which they fall to be sentenced, but it is conceded that in terms of Vu, it would not be a strict application of parity in her case. In simple terms, the Sentence that each of the offenders receives other than Vu, would be more substantial."
5. Having submitted that there would not be parity between the applicant and Vu on sentencing, the applicant now submits that she suffers from a justifiable sense of grievance because there is not parity. As has often been said, the Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, or that seek to resile from concessions made in the Court below or that are a contradiction of submissions previously made. [2]
6. Leaving aside that stumbling block for the applicant, the differences in sentences are reflective of both the differences in charges and the findings of the sentencing judge.
7. Vu was charged with knowingly take part in the supply of a commercial quantity of a prohibited drug, rather than an actual supply offence.
8. As identified in R v Deng, [3] there are differences in the offences. Vu faced what must be described as a lesser charge. Conduct giving rise to that lesser charge has been accepted as having a degree of remoteness in point of time or place from any individual transaction or any particular property. [4]
9. Further, the applicant was sentenced in respect of two offences whereas Vu was only sentenced for one offence.
10. The sentencing judge also made findings as to the different roles of Tran, Le and Vu.
11. As the sentencing judge found, Tran's role was to negotiate price and quantity with Ha. Ha would then physically supply the cannabis to Le. Vu was involved in the packaging and distribution of the cannabis. She had a drug ledger in her possession. She was a participant in the provision of the safe house.
12. The quantity of cannabis involved in her offence was found by the sentencing judge to be above the bottom threshold for commercial supply but not by very much.
13. The sentencing judge acknowledged that although Vu was charged with an offence with exposure to the same maximum penalty, the Court has tended to impose a lesser sentence for charges with that level of participation.
14. The sentencing judge considered there was ample material on which to find special circumstances so as to reduce the custodial component of the sentence below the standard ratio. [5] His Honour went on to find that Vu was a reluctant participant but continued in the interests of her husband and the financial assistance that the misconduct would provide.
15. The sentencing judge's findings as to Vu's role may be contrasted with the finding as to the applicant's role. His Honour accepted that the applicant had a significant and perhaps substantial role to play in the operation.
16. Finally, whilst the sentencing judge had regard to the subjective circumstances of both the applicant and Vu, the sentencing judge considered that the fact that Vu was pregnant was a significant circumstance, particularly as to the custodial component, which impacted upon the determination of the sentence and the custodial component which must be imposed.
17. These factors amply explain the reasons for the differing sentences. The sentencing judge sentenced all the co-offenders at the same time and was aware of the sentences that were imposed on each of the co-offenders. His Honour had available all the material in respect of each of the co-offenders. His Honour was aware of the need to consider parity. Submissions were made on behalf of the applicant on the issue.
18. This appeal brings to mind the observations of RA Hulme J in Dayment at [62] as follows: "[T]his Court must acknowledge the discretion of a judge who was called upon to make an assessment of the appropriate sentences to impose upon related offenders being sentenced within the one proceeding: see the discussion of this in the judgment of Hoeben CJ at CL (Johnson and Schmidt JJ agreeing) in Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [172]-[174]. It is not for this Court to second guess the manner in which the primary judge differentiated between two offenders in the sentences imposed. Intervention will only be justified if the degree of the disparity in the sentences cannot be justified as a proper exercise of the judge's discretion."
19. The applicant has not demonstrated any justifiable sense of grievance in respect of the sentence imposed on Vu.
20. Any complaint about parity in respect of Le could have no merit. Le received the same head sentence but a longer non-parole period based on the differing subjective cases. It could not be said that in some way the applicant's role was substantially less than that of Le and the different findings in respect of special circumstances were reflected in the differing non-parole periods (the applicant obtaining the benefit of a shorter non-parole period).
21. The applicant has failed to establish the only ground on which she relies.
22. In those circumstances, I would make the following orders: 1. Leave to appeal is granted. 2. The appeal is dismissed.

Endnotes

1. [2020] NSWCCA 140 at [60]-[63].
2. Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460 at [81].
3. (1996) 91 A Crim R 80.
4. Dayment v R [2018] NSWCCA 132 at [66] (RA Hulme J); R v Deng (1996) 91 A Crim R 80.
5. Crimes (Sentencing Procedure) Act 1999 (NSW) s 44. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 August 2020