Truong v The Queen [2017] VSCA 105

1 This application for leave to appeal raises one ground only. It is that, in sentencing the applicant and her co-offender, the judge failed to apply 'the parity principle'. As a result, it is said, there is an unjustified disparity between the sentences respectively imposed on them.

2 The parity principle requires that there be appropriate relativity of sentence between co-offenders. The principle is fundamental to the community's sense of justice, for the reasons which Mason J gave in Lowe v The Queen:

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.[1]

Indeed, such is the importance of ensuring appropriate differentiation in sentence, as a fundamental matter of fairness, that a court of criminal appeal can interfere with an otherwise appropriate sentence in order to ensure that the sentencing differentials are just.[2]

3 The applicant contends that, because of the differential between the sentences, she is 'left with a justifiable sense of grievance'. That is, of course, the form of words which Mason J used in Lowe, when he said:

The sentence under appeal may be free from error except in so far as discrepancy itself constitutes or causes error. And the justification which the courts assign for intervention in the case of disparity is that disparity engenders a justifiable sense of grievance in the applicant and an appearance of injustice to that impassive representative of the community, the objective bystander.[3]

4 As this Court has said previously, however, the requirement to show 'unjustifiable disparity' can be expressed in language which more explicitly reflects the jurisprudence on sentence appeals. In Teng v The Queen,[4] the Court adopted the following statement of Maxwell P in R v Wolfe:

[T]he question which according to the authorities must be addressed when dealing with a parity ground is whether the appellant could be said to have a 'justifiable sense of grievance' about the relativity between the appellant's sentence and the sentence of the co-offender. I do not understand the test thus formulated to require any departure from the conventional approach to appellate review of sentences. That is, the question whether the appellant's sense of grievance is justifiable is to be determined by asking whether there were reasonable grounds for the differentiation - or lack of differentiation, as the case may be - between the appellant and the co-offender. If it was reasonably open to the sentencing judge, on the material before the court, to differentiate - or fail to differentiate - between the co-offenders in the way he/she did, then there is no warrant for appellate intervention, and the appellant's grievance about the sentencing relativity cannot be said to be justifiable.[5]

5 As the Court said in DPP (Cth) v KMD,[6] it is desirable that the 'not reasonably open' language be used in formulating the parity ground. Using that language has the advantage of removing any suggestion that the offender's subjective state of mind - 'sense of grievance' - has any relevance to the Court's task.

6 For reasons which follow, we would refuse leave to appeal. There were, as we will explain, material differences between the applicant and her co-offender. It was well open to the judge to differentiate between them as he did. The contrary is not reasonably arguable.

7 On 26 July 2016, the applicant (now aged 62) pleaded guilty to two charges of knowingly dealing with proceeds of crime. Following plea hearings on 26 July 2016 and 20 December 2016, the applicant was sentenced as follows:

Knowingly deal with proceeds of crime [Crimes Act 1958 s 194(2)]

[Crimes Act 1958 s 194(2)]

8 The applicant's co-offender and now estranged husband, Mr Thanh Liem Dinh, pleaded guilty to one charge of knowingly dealing with proceeds of crime and was sentenced on the same day as the applicant, as follows:

Community Correction Order to include medical treatment and rehabilitation condition.

9 The applicant and her co-offender operated a store in Footscray called Tan My Food Store. In July 2014, police commenced an operation called Operation Cakedon, after receiving information that the applicant and co-offender were receiving large quantities of stolen goods at the store. The police monitored the store by using a local 'Safe Street' CCTV camera. This camera recorded the area to the back of Tan My Food Store and remained in continuous operation between 31 July 2014 and 7 November 2014.

10 From the CCTV footage, it became apparent that the offenders were receiving stolen goods from a large number of different people. The suppliers would enter the front or rear of the store carrying bags filled with stolen goods. They would then proceed to a rear alcove and empty their bags into cardboard boxes. The suppliers would then receive payment, from either the applicant or co-offender, at a rate of about 10 to 20 per cent of the retail value of the goods. The suppliers would then leave and the applicant and co-offender would load those boxes into their car.

11 On 4 August 2014, after noticing the applicant placing several cardboard boxes into a car, the police followed her to a public self-storage facility in Braybrook.

12 Optical devices installed by police outside the storage locker between 31 October 2014 and 5 November 2014, along with evidence from an employee at the Braybrook facility, revealed that the applicant and co-offender continued to access the storage unit.

13 Operation Cakedon involved a covert police operative selling products to the co-offender on four occasions between 2 September 2014 and 3 October 2014. Those occasions were captured using a listening device.

14 The police also obtained statements from other witnesses who claimed that they had sold stolen goods to the applicant and the co-offender over prolonged periods of time. These goods included cosmetics and healthcare products.

15 On 7 November 2014, police executed search warrants at, inter alia, the storage locker used by the applicant and co-offender, the Footscray store, their car and their home in Coburg. They located a large number of items which included healthcare products, cosmetics and toiletries. The approximate value of all the stolen goods was $40,000.

16 Both the applicant and co-offender were arrested on 7 November 2014. The co-offender was interviewed but denied receiving stolen goods or paying for them. The applicant was not interviewed because a Vietnamese interpreter was unavailable. They both remained in custody overnight and were released on bail the following day.

17 Charge 2 occurred while the applicant was on bail. On 23 August 2015, police attended the Tan My Food Store and observed the applicant at the front of the store. When she noticed police, the applicant was observed immediately walking towards the rear of the store. Police entered the store and found the applicant carrying a cardboard box. The box contained healthcare products and cosmetics suspected of being stolen. A later search of her car found two more boxes of healthcare products and cosmetics suspected of being stolen. Those goods were valued at $1,872.68.

18 The applicant was then arrested. She was interviewed the same day and admitted to buying the items earlier in the day for a discounted price. She denied ownership of some items. Her bail was revoked and she remained in custody until 16 December 2015 when she was again granted bail.

19 On 16 May 2016, after negotiations with prosecutors, the applicant entered a plea of guilty to Charges 1 and 2.

20 It was common ground that, in a number of relevant respects, the respective positions of the applicant and the co-offender were the same. They were held to have been equally responsible for the offending which, it was said, involved a high degree of criminality and culpability. They had both pleaded guilty and had thereby assisted the administration of justice. At the same time, they had both sought to minimise their own responsibility for the offending, had shown little remorse and had 'extremely questionable' prospects of rehabilitation.[8]

21 There were, however, some very significant differences between them. We deal with them in turn. First, as noted earlier, the applicant had committed a further offence of exactly the same kind while on bail for the offending the subject of Charge 1. As her counsel conceded on the plea, this was an aggravating factor in relation to that offending. Just as importantly, it meant that specific deterrence had a significance in the sentencing of the applicant which it simply did not have in relation to the co-offender.

22 The fact that the applicant re-offended despite having been charged and bailed for the earlier offending raised serious concerns about her attitude to compliance with the law. The judge also drew attention on the plea to the fact that the imposition of non-custodial orders on the applicant in the past had not deterred her from subsequent offending. The need for specific deterrence properly informed the sentencing decision in respect of both charges.

23 Second, her co-offender could rely on significant mitigating factors which were not available to the applicant. The co-offender had been diagnosed with post-traumatic stress disorder requiring treatment. The judge was satisfied that, on the evidence of impaired mental functioning, Verdins principles 5 and 6 were both applicable.[9] That is, there was a risk that imprisonment would be more onerous for the co-offender than it would be for a person without the disorder and, further, imprisonment might well have an adverse impact on his condition.

24 As Verdins principle 2 makes clear, impairment of mental functioning can also be relevant to the type of sentence which is appropriate.[10] This is illustrated by what the judge said in relation to the co-offender:

I am satisfied that I must impose a period of immediate imprisonment but that the length of that prison sentence should be moderated and should be imposed in combination with a community corrections order given your mental health issues and the evidence which satisfies me that you would benefit from structured long-term treatment. In fixing the length of that order I take specific note of the comments by [the forensic psychologist] as to the likely duration of your treatment.[11]

In the case of the applicant, by contrast, the judge said:

I am satisfied that I must impose a period of immediate imprisonment upon you in this instance given your history, the serious nature of your offending and your attitude to that offending.

Further, given the limited benefit which both you and the community would be likely to gain from the imposition of a community corrections order as demonstrated by the content of the assessment report I am satisfied that I should not combine that sentence with a community corrections order.[12]

25 In our respectful opinion, the judge paid careful attention to the relevant similarities and differences as they bore on the sentencing task. Given the important differences to which we have referred, it was well open to his Honour to impose the sentences which he did.

[1] [1984] HCA 46; (1984) 154 CLR 606, 610-11 ('Lowe').

[2] Ibid 612; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ).

[3] [1984] HCA 46; (1984) 154 CLR 606, 613.

[4] [2009] VSCA 148; (2009) 22 VR 706, 710 [17].

[5] [2008] VSCA 284 [9].

[6] DPP (Cth) v KMD [2015] VSCA 255 [109].