An Lanh Vo v The Queen
[2016] VSCA 278
•23 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0034
| AN LANH VO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | REDLICH, BEACH and KAYE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 3 November 2016 |
| DATE OF JUDGMENT | 23 November 2016 |
| MEDIUM NEUTRAL CITATION | [2016] VSCA 278 |
| JUDGMENT APPEALED FROM | DPP v Vo (Unreported, County Court of Victoria, Judge Coish, 4 December 2015) |
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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Conspiracy to import a commercial quantity of a border controlled drug – Role of offender as principal in conspiracy – Plea of guilty – Sentence of 18 years’ imprisonment on conspiracy count – Whether sentence on count, total effective sentence or non-parole period manifestly excessive – Use of ‘comparable cases’ – Sentence not outside range – Application refused.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr R F Edney | Chris McLennan & Co |
| For the Respondent | Mr L K Crowley | Mr M Pedley, Solicitor for Public Prosecutions (Cth) |
REDLICH JA:
BEACH JA:
KAYE JA:
The applicant pleaded guilty to one charge of dealing with money, to the value of $100,000, or more, reasonably suspected of being the proceeds of crime, contrary to s 400.9(1) of the Criminal Code 1995 (Cth), and one charge of conspiracy to import a commercial quantity of a border controlled drug, contrary to s 11.5(1) and s 307.1(1) of the Criminal Code 1995 (Cth). Following a plea on her behalf, she was sentenced as follows:
Charge
Offence
Max. Penalty
Sentence
1
Deal with money to the value of $100,000 or more reasonably suspected of being the proceeds of crime — s 400.9(1) Criminal Code 1995 (Cth)
3 years’ imprisonment
18 months’ imprisonment
(6 months’ cumulation)
2
Conspiracy to import a commercial quantity of a border controlled drug — ss 11.5(1) and 307.1(1) Criminal Code 1995 (Cth)
Life imprisonment
18 years’ imprisonment
TES
18 years and 6 months’ imprisonment
Pre-Sentence Detention
994 days
Non-Parole Period
13 years
Section 6AAA Declaration 25 years’ imprisonment/20 year non-parole period
The applicant seeks leave to appeal on the ground that the sentence imposed on the conspiracy charge (charge 2), the total effective sentence and the non-parole period are manifestly excessive.
Circumstances of offending
Charge 2 alleged that between 16 August 2012 and 20 March 2013 the applicant and others, including Suky Lieu (‘Lieu’), Van Thi Hong Nguyen (‘Nguyen’) and Thi Quyen Le (‘Le’) conspired to import a commercial quantity of a border controlled drug, namely heroin, into Australia from Vietnam. As part of their conspiracy, heroin was to be imported on an ongoing basis, as and when it was available to the Vietnamese suppliers and sought by Australian buyers. Pursuant to the conspiracy, various importations were planned and carried out, using recruited couriers to bring the drugs into Australia.
Lieu and the applicant were the principal Australian based participants in the conspiracy. As and when required, they would communicate with each other about the placement of ‘orders’ and arrangements for the supply of heroin in Vietnam, with the intention that the heroin would be imported into Australia by couriers once it was available. In anticipation of those intended importations, the applicant provided money to Lieu so that arrangements could be made by him to confirm and pay for the supply of the heroin in Vietnam. The applicant also arranged for and organised couriers who were to travel back from Vietnam to Australia carrying the concealed heroin.
Through her associates in Vietnam, Nguyen was a source for the supply of heroin in Vietnam for the applicant and Lieu. Nguyen in effect acted as an intermediary between the Australian purchasers of the heroin (Lieu and the applicant) and the suppliers of the heroin in Vietnam. It was the role of Lieu to discuss and provide orders to Nguyen for the supply of the heroin. In turn, Nguyen made arrangements for the heroin to be supplied to the applicant’s associates and couriers. Pursuant to the conspiracy, four successful importations of the heroin occurred, involving quantities of 218, 143.1, 559.5 and 577.1 grams respectively, thus totalling 1,497.7 grams. A commercial quantity of heroin is a pure amount of 1.5 kilograms or more. Although an amount slightly less than that was imported, the quantities sought and ordered pursuant to the conspiracy were in excess of a commercial quantity. As a consequence, charge 2 alleged that the applicant was part of a conspiracy to import heroin in a commercial quantity.
The judge found that the applicant’s involvement in the conspiracy was multi-faceted. In broad terms, it consisted of three main roles performed by her. First, she acted as a principal Australian buyer and director of the heroin importation conspiracy. In that respect she acted in partnership with Lieu to place orders and organise the purchase of heroin from suppliers in Vietnam, including Nguyen. Secondly, the applicant directed and employed her own existing network of recruited couriers to facilitate the importations of the heroin from Vietnam into Australia. In that role she recruited, managed and coerced couriers to travel from Australia to Vietnam to receive and carry drugs back into Australia, and she oversaw the management of couriers through her trusted courier managers. Thirdly, she liaised with her own contacts in Vietnam in order to arrange for the preparation and concealment of sourced heroin to the couriers.
In performing each of those roles, the applicant continually monitored the progress of the arrangements for the supply of the heroin to her couriers, and the progress of their planned and expected importations. The applicant ran the enterprise by maintaining contact with a wide range of co-conspirators in Vietnam and Australia, including Lieu and occasionally Nguyen.
The applicant carried out a number of acts in pursuance of the conspiracy. She participated in numerous coded telephone conversations with Lieu (and sometimes with Nguyen) in which she placed orders for heroin. In other such conversations she sought and received updates about the availability and quality of the heroin, and she discussed arrangements for the purchase and supply of the heroin in Vietnam. The applicant also participated in numerous coded telephone conversations with her courier managers and other associates in Australia and Vietnam, in which she sought and received updates about courier and drug supply arrangements in Vietnam and Australia.
In addition, the applicant gave at least $35,000 to Lieu as a down payment for the first importation, which was later repaid to her after that importation failed. She also gave Lieu other unidentified amounts of money for the supply of heroin, and she met with him in person on other occasions for the purpose of discussing the arrangements for the orders.
The applicant recruited couriers, often by coercive means, to import drugs into Australia. In particular, she would supply drugs to the couriers, and would only forgive the debt of those couriers to her if they carried the drugs into Australia successfully. She funded the travel and maintenance of her couriers in Vietnam to facilitate the supply of heroin, and she recruited and used courier managers to oversee the couriers and their arrangements in Australia and Vietnam. Furthermore, the applicant directed others in Vietnam to coordinate the preparation and supply of sourced heroin to her couriers, she monitored the progress of the couriers, and she made arrangements for the receipt and collection of couriers and their drugs on their arrival back in Australia. The applicant also made arrangements for the warehousing, preparation, supply and distribution of the heroin after it was imported into Australia.
Charge 1 concerned the remission by the applicant of a total of $100,518 from Australia to Vietnam by 20 money transfers, conducted through money remitters based in Victoria, between 16 February 2012 and 14 August 2012.
The applicant was arrested at Melbourne Airport on 15 March 2013. A contested committal proceeding took place in late 2013 and early 2014. The applicant ultimately pleaded guilty on 6 February 2015. However, problems arose when the matter was listed for a plea hearing, and the pleas of guilty were not heard until 20 November 2015.
The plea
In submissions on the plea hearing, counsel for the applicant relied on the applicant’s plea of guilty, and on the applicant’s personal circumstances. The applicant was born in February 1963 in Vietnam. She attended school until the age of 11 years. Her mother passed away when she was 13 years of age, and the applicant continued to work and look after the family farm. After her father remarried, the applicant was mistreated by her stepmother. At the age of 14 years she was sexually assaulted by strangers. She became pregnant, and her stepmother forced her to undergo an abortion procedure.
The applicant married at the age of 20 years. The marriage lasted for 10 years and she had two children. Initially, the relationship was good, but it deteriorated when the applicant’s husband discovered that she had been the subject of previous sexual assaults. As a consequence, he became violent towards her, and the marriage failed. The applicant then moved to Ho Chi Minh City with her daughter, where she worked at a restaurant. Subsequently, she fled Vietnam in 1993. While she was in a refugee camp in Indonesia, she was raped by three Indonesian guards on four occasions over a two month period. Ultimately, the applicant was accepted into Australia as a refugee, and she lived in Sydney for five years until 1998 with her daughter. She then developed a relationship with another man that lasted for three years. However, her partner began to abuse alcohol and became abusive to her. The relationship terminated in 2001.
After the end of that relationship, the applicant moved to Melbourne, where she lived in various locations. In June 2013, she was referred by the Multicultural Liaison Officer of Dame Phyllis Frost Centre to the Western Region Centre Against Sexual Assault (West CASA). Since then the applicant engaged in counselling with West CASA in relation to feelings of depression and post-traumatic stress symptomatology. In March 2015, the applicant was assessed by Dr Aaron Cunningham, a forensic psychologist, to suffer post-traumatic stress disorder as a result of the sexual assaults to which she had been subjected.
On the plea, it was submitted on behalf of the prosecution that the applicant and Lieu were the instigators of, and the driving forces behind, the conspiracy, which lasted for a period of seven months. Although Lieu and the applicant occupied the central position within the organisation of the conspiracy, the prosecution submitted that the applicant was at a higher level than Lieu, in that her role, and the extent of her involvement, were more substantial than that of Lieu. In addition, while Lieu was the applicant’s business partner in ordering the heroin, it was submitted that the applicant was capable of directing Lieu and dictating terms to him regarding the timing and size of the orders to be placed, and seeking compensation from him when the heroin, that was the subject of the orders, failed to be delivered to Australia. While there was no direct evidence as to the extent of any actual reward promised or received by the applicant for her role in the conspiracy, the prosecution submitted that obviously financial reward was the motivation for the applicant’s participation.
The prosecution accepted that the applicant’s plea of guilty had a utilitarian value in facilitating the course of justice. It also conceded that the evidence as to the applicant’s post-traumatic stress disorder would support the proposition that imprisonment would be more burdensome for the applicant.
Previous convictions
The applicant had previous convictions arising out of two court appearances. In October 2003, she was fined $1,000 at the Melbourne Magistrates’ Court on charges of making a false document to prejudice others and attempting to obtain property by deception. On 21 June 2005, she was sentenced to a total effective sentence of 18 months’ imprisonment (such sentence being suspended for 18 months after serving 81 days) on charges of money laundering, handling/receiving/retention of stolen goods, and obtaining property by deception.
Reasons for sentence
In his reasons for sentence, the judge noted the matters relating to the background of the applicant. The judge accepted that the applicant’s pleas of guilty demonstrated a willingness to facilitate the course of justice, and that there was ‘some’ evidence of remorse. He found that that was the only evidence of remorse by the applicant. The judge also accepted that as a result of the applicant’s post-traumatic stress disorder, a period of incarceration would weigh more heavily on her than on a person of normal health. On the other hand, the judge considered that the applicant’s prospects of rehabilitation were ‘cloudy’. His Honour referred to the applicant’s previous convictions, including her conviction for money laundering.
The judge referred to the applicant’s role in the conspiracy, and noted that she was a principal in a very serious criminal conspiracy. The judge accepted the prosecution’s submission that the applicant’s position within the organisation of the conspiracy was at a level that was higher than that of Lieu. His Honour referred to the need to take into account both general and specific deterrence, noting that the matter was relevant in view of the applicant’s previous criminal history.
Submissions
Counsel for the applicant accepted that the offending, for which the applicant had been sentenced, was serious and that it extended over a significant period of time. It was also accepted that the applicant had occupied a central and multifaceted role in that offending. On the other hand, counsel submitted that there were important mitigating factors. In particular the applicant had pleaded guilty in a case that was of some complexity, and that accordingly the plea of guilty had significant utilitarian value, and demonstrated a willingness by the applicant to facilitate the course of justice. Counsel referred to the finding by the judge that there was some evidence of remorse accompanying the plea of guilty. Counsel also referred to the applicant’s traumatic background, and that as a result of her post-traumatic stress disorder, the applicant’s time in custody would be more burdensome.
Counsel submitted that the amount of drugs, imported, was an important factor in comparing the sentence imposed on the applicant, with sentences imposed on other cases which counsel submitted were comparable cases. In that context, counsel referred to the sentences imposed in Director of Public Prosecutions (Cth) v Peng,[1] Kev v The Queen; Sok v The Queen,[2] Suri v Director of Public Prosecutions (Cth),[3] Ruiz v The Queen,[4] R v Nguyen; R v Pham[5] and in Director of Public Prosecutions (Cth) v Estrada; Director of Public Proseuctions (Cth) v Nguyen; Director of Public Prosecutions (Cth) v Byun.[6] Counsel submitted that having regard to the sentences imposed in those cases, the sentence imposed on the applicant was wholly outside the range of sentences available to the judge, and accordingly was manifestly excessive.
[1][2014] VSCA 128 (‘Peng’).
[2][2015] VSCA 232.
[3][2014] VSCA 260 (‘Suri’).
[4][2013] VSCA 313 (‘Ruiz’).
[5](2010) 205 A Crim R 106.
[6][2015] VSCA 22 (‘Estrada’).
In response, counsel for the respondent submitted that, taking into account the nature and the scope of the conspiracy, the role of the applicant in that conspiracy, and the extent to which the applicant participated in the conspiracy, the sentence imposed on the applicant on charge 2 was not manifestly excessive. Counsel submitted that this is not a case in which the criminality of the applicant could be properly measured by the amount of drugs that were successfully imported pursuant to the conspiracy. Rather, the criminality of the applicant was to be assessed taking into account that the conspiracy was devised, managed and implemented by the applicant, being a conspiracy to import a commercial quantity of heroin on an ongoing basis.
Counsel also pointed to the findings by the judge as to the various acts performed by the applicant pursuant to the conspiracy, that indicated the high level of involvement of the applicant, in a multifaceted manner, in the conspiracy. Counsel pointed out that the applicant was at the very top of the conspiracy. In that capacity she recruited couriers, financed the purchase of the drugs, organised the couriers, and instigated and drove the conspiracy.
In that way counsel submitted that the involvement of the applicant in the conspiracy in this case was far more extensive, and at a higher level, than the involvement of the offenders in the cases relied on by counsel for the applicant.
Counsel for the respondent accepted it was difficult, in a case such as this, to identify cases which could be truly said to be comparable, so as to reveal an appropriate sentencing range. Nevertheless he referred to and relied on a table of comparative cases that had been placed before the sentencing judge. Three of those cases related to the same criminal enterprises, namely, Lee v The Queen,[7] Hong Phong Le v The Queen (Cth)[8] and R v Khanh Hoang Tran.[9] Counsel noted that both Hong Phong Le and Khanh Hoang Tran had given undertakings to cooperate and assist the prosecution, and that the ‘discount’ on sentence accorded those undertakings had been quantified by the sentencing judges. Counsel relied on the ‘starting point’ of the sentences imposed on those two offenders. Counsel also relied on the sentences imposed on the offenders in Cao v The Queen; Pham v The Queen; Nguyen v The Queen,[10] which, he submitted, supported his contention that the sentence imposed on the applicant was within the range of sentences available to the judge in the case.
[7][2012] NSWCCA 123 (‘Lee’).
[8][2010] NSWCCA 285 (‘Le’).
[9]Unreported, District Court of New South Wales, Solomon DCJ, 11 December 2009 (‘Tran’).
[10][2009] NSWCCA 273.
Legal principles
We have set out, in some detail, the legal principles that apply to this application, in our judgment in the application for leave to appeal by the co-conspirator Lieu.[11] It is sufficient therefore to summarise those principles briefly for the purposes of determining this application.
[11]Lieu v R [2016] VSCA 277 (‘Lieu’).
The criminality involved in the participation by an offender in a conspiracy consists in the joining by that offender in a secret combination with others to commit an offence. As this Court stated in Director of Public Prosecutions v Fabriczy:[12]
The element of concert makes the offence of conspiracy more serious than if an individual were acting alone to plan and commit the offence, as the likelihood of the crime occurring is increased by the involvement of multiple participants making a commitment to each other to do so. There is said to be a ‘dangerousness’ inherent in the plotting, ‘either because several may achieve what an individual would find difficult or impossible, or because other criminal plans may emerge from the group.’[13]
[12](2010) 30 VR 632.
[13]Ibid 637–638 [16] (Maxwell P, Neave and Redlich JJA) (citations omitted); see also R v Shepherd (1988) 37 A Crim R 303, 313 (Lee J).
On the other hand, it is well accepted that in assessing the degree of criminality involved in the participation by an offender in a conspiracy, it is necessary also to take into account the offender’s overt acts that reflect the content and duration of the involvement by the offender in that conspiracy.[14]
[14]Savvas v The Queen (1995) 183 CLR 1, 6–7.
The conspiracy in which the applicant was involved in this case was to import a commercial quantity of heroin from Vietnam. An assessment of the degree of criminality of an offender, who is involved in such an activity, depends on a range of factors. They include the role of the offender, the position of the offender in the importing (or trafficking) hierarchy, the nature and extent of the involvement of the offender in the enterprise, the degree of sophistication of the enterprise, the quantity of drugs involved, or intended to be involved, in the enterprise.[15] The weight or quantity of the drugs involved is generally regarded as an important factor, as it indicates that the enterprise in which the offender was involved was of some magnitude. On the other hand, that factor is not necessarily to be given primary or overriding weight in determining the gravity of the offending in question.[16]
[15]See e.g. Tyler v The Queen; R v Chalmers (2007) 173 A Crim R 458, 471–3 [78]–[89] (Simpson J); DPP (Cth) v Estrada; DPP v (Cth) v Yuan; DPP (Cth) v Byun (2015) VR 286, 298–299 [44]–[46] (Priest and Beach JJA, King AJA).
[16]Wong v The Queen (2001) 207 CLR 584, 609 [67] (Gaudron, Gummow and Hayne JJ); R v Pham (2015) ALR 325 400, 410 [45] (Bell and Gageler JJ).
In cases such as this, significant weight is to be attached to the principles of general deterrence and denunciation. It is accepted that it is necessary to impose significant sentences in cases involving substantial drug trafficking or importation, in order to offset the lure of very large profits that motivate individuals to become involved in those criminal enterprises. In addition, the difficulty of detecting and prosecuting drug trafficking and importation, and the significant, far reaching and destructive social consequences occasioned by the proliferation of illicit drugs in the community, are relevant foundations for the principle that attributes significant, if not primary, importance to the factor of general deterrence in the sentencing process for such offences.[17] On the other hand, the previous good character, and personal circumstances, of an offender in drug trafficking or importation offences are generally attributed less weight as a factor in mitigation of sentence.[18]
[17]R v Nguyen; R v Pham (2010) 205 A Crim R 106, 127 [72]; R v Chen (2002) 130 A Crim R 300, 382–383 [286].
[18]R v Nguyen; R v Pham (2010) 205 A Crim R 106, 127 [72]; Tsang v DPP (Cth) (2011) 35 VR 240, 274 [162] (Nettle and Neave JJA, Sifris AJA).
The applicant has placed reliance on the sentences imposed in other cases which she submitted were ‘comparable cases’, and which she contended supported the proposition that the sentence imposed on her was manifestly excessive. We have discussed the principles relating to the use of comparable cases in our judgment in Lieu, and it is only necessary, in this application, to refer to them shortly.
The principles relating to the use of comparable cases have been discussed in a number of decisions of the High Court in Wong v The Queen;[19] Hili v The Queen;[20] Green v The Queen[21], Barbaro v The Queen; Zirilli v The Queen[22] and R v Pham.[23] These principles were very recently considered and summarised in Nguyen v The Queen[24] and Director of Public Prosecutions (Cth) v Thomas.[25] Whilst comparable cases are not to be treated as precedents, an analysis of them is primarily directed to promoting consistency of sentences, by revealing or indicating the sentencing range for the offence that is under consideration.
[19](2001) 207 CLR 584, 591 [6] (Gleeson CJ).
[20](2010) 242 CLR 520, 534 [44], 535 [48]–[49] (‘Hili’).
[21](2011) 244 CLR 462.
[22](2014) 253 CLR 58 (‘Barbaro’).
[23](2015) 325 ALR 400, 405-406 [26]–[28] (French CJ, Keane and Nettle JJ) (‘Pham’).
[24][2016] VSCA 198, [71]–[72] (Redlich JA).
[25][2016] VSCA 237, [171]–[187].
The ground of appeal in this case is that the sentence imposed on charge 2 is manifestly excessive. In order to establish that ground, the applicant must demonstrate that the sentence imposed on her, for the offence that was charged, was wholly outside the range of sentencing options that were available to the sentencing judge.[26] Thus it must be demonstrated that the sentence is so excessive as to demonstrate error by the judge in the exercise of the discretion, notwithstanding that no specific error can be identified for the reasons for sentence given by the judge.[27]
[26]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[27]House v The King (1936) 55 CLR 499, 505.
Analysis
The offence of conspiracy to import a commercial quantity of a border controlled drug is, of itself, particularly serious, as reflected by the maximum sentence of life imprisonment for that offence. That maximum sentence is a reflection of the concern of the legislature as to the far reaching and devastating effects of the proliferation of illicit drugs in our community, a large portion of which have been imported from overseas. The conspiracy, in which the applicant participated, was a serious instance of the offence, involving a significant degree of planning, organisation, and oversight by those involved in it, including the applicant.
The criminality of the applicant in participating in the conspiracy was particularly high. The applicant was involved in the conspiracy as a principal, at a level that was slightly higher than that of Lieu. In that regard, the judge found that the applicant was capable of directing Lieu and dictating terms to him regarding the timing and size of the orders that were to be placed and in seeking compensation from him when those orders failed to come to fruition.
Further as noted by the judge, the role of the applicant was multifaceted. She was actively and heavily involved in a number of critical aspects of the conspiracy. In particular, the applicant was responsible for organising, supervising and managing the couriers, who were to play a central part in bringing the illicit drugs into Australia. As described earlier, in performing those roles, the applicant carried out a significant number of acts connected with placing orders for heroin, being updated about the availability and supply of the heroin, organising the purchase and supply of the heroin, and organising and managing the couriers. Those activities by the applicant reflected the content, duration and nature of the applicant’s involvement in the conspiracy, and the level at which she participated in it.
The main mitigating circumstance relied on by the applicant was her plea of guilty to the two charges on which she was sentenced. In cases such as the present, a plea of guilty by an offender is ordinarily of significant utilitarian value. Drug importation charges are difficult and expensive to prosecute, and they can consume a considerable amount of time of the courts and of the law enforcement officers. For those reasons it is recognised that sentences imposed in a case such as this should give adequate weight to, and reflect, the value of those pleas as a significant mitigating circumstance.
On the other hand, for the reasons we have already set out, the degree of criminality of the applicant in the offending that was the subject of the second charge was particularly high. In a case such as this, it is important that the sentence of such an offence be severe, in order to operate sufficiently as a deterrent to others, and to reflect the degree of criminality involved in the offending. Taking those matters into account, and notwithstanding the plea of guilty by the applicant, we are not persuaded that the sentence imposed on the applicant on charge 2 was wholly outside the range of sentences that were available to the judge in the facts of this case.
In our view, the ‘comparable cases’ relied on by the applicant do not establish a range of sentences, for the offence committed by the applicant, that is such as to demonstrate that the sentence imposed on the applicant on charge 2 was manifestly excessive. While the authorities caution, that it is undesirable for the court to embark on a detailed analysis of those cases as if they were binding precedents, they do provide guidance to sentencing judges, and to appellate courts. As the joint judgment stated in Hili, Barbaro and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed. Accordingly some discussion of them is necessitated by the submissions made in support of the application.
In Ruiz, the applicant pleaded guilty to one charge of conspiracy to import a commercial quantity of a border controlled drug, cocaine, from Mexico. He was sentenced to a term of 12 years’ imprisonment with a minimum non-parole of 7 years. The conspiracy involved the importation of 30 kilograms of pure cocaine. In that sense, the quantity of drugs involved in the conspiracy was greater than that imported pursuant to the conspiracy in this case. However, Ruiz gave an undertaking to cooperate with police, and he gave evidence against one of his accomplices. In addition, the sentencing judge accepted that Ruiz had neither the experience nor the capability of being involved as a principal or as an organiser in the conspiracy, and the financial reward that he derived from it was ‘modest’.[28] In those circumstances, Ruiz could not be regarded as a comparable case.
[28][2013] VSCA 313 [41].
In Peng, the applicant was sentenced to a term of 11 years’ imprisonment, with a minimum non-parole period of 7 years and 6 months, having pleaded guilty to one charge of importing a commercial quantity of a border controlled drug. Pursuant to the conspiracy 23 kilograms of methamphetamine was imported. Peng and his co-accused were considered to fall within ‘group 3’ of the categories of offenders,[29] discussed by McClennan CJ in Director of Public Prosecutions (Cth) v De La Rosa.[30] In other words, their role was ‘mid-range’ between that of a principal and that of a courier. In that way, the roles of both offenders were of a materially lower order than that played by the applicant in the conspiracy to which she pleaded guilty.
[29][2014] VSCA 128 [31].
[30](2010) 79 NSWLR 1, 64–66 [267].
In Suri, following a trial, the applicant was found guilty of conspiring to import a commercial quantity of a border controlled precursor drug. He was sentenced to a term of imprisonment of 11 years with a non-parole period of 8 years. Telephone intercepts indicated that the applicant sought to import 100 kilograms of pseudoephedrine. However, it would appear that the conspirators were ‘ripped off’ in India, from where the importation originated, so that the consignment only contained 397 grams of the substance. It was evident that the applicant played an active role in the conspiracy. The judge found that without his participation it would have been difficult to arrange the importation.[31] Nevertheless, in the hierarchy of the conspiracy, he was not a principal, but rather was a ‘employee’, whose essential role was to source and oversee the import of the drug from India.[32] In that way, the role occupied by Suri in the conspiracy in that case was quite different and inferior to that occupied by this applicant in the conspiracy in respect of which she pleaded guilty.
[31][2014] VSCA 260 [29].
[32]Ibid [34].
Estrada involved an appeal by the Commonwealth Director of Public Prosecutions in respect of sentences imposed on the respondents on a charge of conspiring to manufacture a commercial quantity of methamphetamine. Each respondent was sentenced to be imprisoned for 5 years, with a non-parole period of 3 years. On appeal, this Court increased the sentence of each respondent to 8 years, with a non-parole period of 5 years. The sentencing judge found that 25 kilograms of methamphetamine was involved in the conspiracy. The sentencing judge found that each of the respondents had been recruited to, and joined, a large conspiracy. The role of the respondents was to make untraceable purchases of chemicals and equipment for the manufacture of methamphetamine, to store those items, and to hire rental cars to transport them. The judge found that the respondents were not ‘major entrepreneurial players in the enterprise’ but that their roles were necessary and important.[33] It is clear from that summary that the position of the respondents in that case in the conspiracy was quite different, and less than, the role played by the applicant in the conspiracy for which she was sentenced.
[33][2015] VSCA 22 [50].
In R v Nguyen; R v Pham,[34] Nguyen pleaded guilty to two counts of importing a commercial quantity of a border controlled drug, namely, 27 kilograms of cocaine (count 1) and 13.04 kilograms of methamphetamine (count 2). He was sentenced to a total effective sentence of 14 years and 6 months’ imprisonment, with a non-parole period of 9 years and 6 months. Pham pleaded guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug (27 kilograms of cocaine), and the judge took into account a further count in the same terms, concerning methamphetamine. He was sentenced to 11 years’ imprisonment with a non-parole period of 7 years. The prosecution appealed on the grounds that the sentences were manifestly inadequate. The appeals were allowed. Nguyen was sentenced to a total effective sentence of 18 years’ imprisonment with a non-parole period of 12 years, and Pham was re-sentenced to 15 years’ imprisonment with a non-parole period of 10 years. The two respondents each played a significant part in the Australian end of the importations. They were found not to have been at the ‘pinnacle’ of the conspiracies, but they were described as key organisers who were critical to the success of the operation. In particular, their roles were greater than having a ‘middle level of responsibility for the importation’.[35]
[34](2010) 205 A Crim R 106.
[35]Ibid 131 [94].
On the basis of a comparison with that case alone, the sentence imposed on the applicant could be regarded as high, in contrast to the sentences imposed on Nguyen and Pham. However that disparity is not such as to have the effect that the sentence imposed on the applicant was wholly outside of the range of the sentences available to the sentencing judge. That conclusion is reinforced by reference to the cases to which counsel for the respondent referred, namely Lee, Le and Tran, which we have discussed in Lieu. The sentences imposed on the offenders in those cases were relevantly comparable to the sentence imposed on the applicant, taking into account the large specified ‘discounts’ on the sentences of those offenders for their undertakings to give assistance to the prosecuting authorities.
It follows from the above discussion that, when properly considered, the cases relied on by the applicant do not demonstrate a range of sentences that is such that the sentence imposed on the applicant on charge 2 was wholly outside or significantly at odds with that range.
Conclusion
For the foregoing reasons, we do not accept that the sentence imposed on the applicant on charge 2 was manifestly excessive. Accordingly the application for leave to appeal should be refused.
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