Anthony Pham v The Queen
[2017] VSCA 297
•19 October 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0162
| ANTHONY PHAM | Applicant |
| V | |
| THE QUEEN | Respondent |
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| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 October 2017 |
| DATE OF JUDGMENT: | 19 October 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 297 |
| JUDGMENT APPEALED FROM: | [2017] VCC 905 (Judge Murphy) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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CRIMINAL LAW – Application for leave to appeal against sentence – Trafficking in drug of dependence in not less than large commercial quantity – Sentence of 15 years’ imprisonment with non-parole period of 11 years and 6 months – Applicant obtained possession of 250 kilograms of faux cocaine – Covert police operation – Role of applicant in offending – Seriousness of offending – Whether context of police operation a mitigating factor – Whether sentence manifestly excessive – Drugs, Poisons and Controlled Substances Act 1981 s 71 – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P J Smallwood | Haines & Polites |
| For the Respondent | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
SANTAMARIA JA:
The applicant stood trial in the County Court on a charge of attempting to traffick in a drug of dependence, namely cocaine, in not less than a large commercial quantity (‘LCQ’).[1] He was convicted of that offence and sentenced to a term of 15 years’ imprisonment. A non-parole period of 11 years and 6 months was fixed.[2] He now seeks leave to appeal his sentence.
[1]Drugs, Poisons and Controlled Substances Act 1981 s 71.
[2]The sentencing judge declared a pre-sentence detention period of 136 days and made a forensic sample order pursuant to s 464ZF of the Crimes Act 1958, a forfeiture order pursuant to s 34(1) of the Confiscation Act 1997 and a disposal order pursuant to s 78(1) of the Confiscation Act 1997.
Circumstances of the offending
In September 2015, the applicant became the subject of a covert police operation. Initially, a covert police operative who went by the name of ‘Mika Nolan’ was instructed to make contact with an unidentified male known as ‘Sunny’. Between 28 August and 4 September 2015, Mika, who had introduced himself as ‘a friend of Johnny’s’, had several communications with Sunny, presumably to discuss arrangements concerning a delivery of illicit drugs. But, these communications broke down.
On 6 September 2015, Mika received instructions from his controller to make contact with an unidentified male known as ‘Andy’, who was, in fact, the applicant. On that same day, Mika tried to call the applicant three times, but to no avail. He later sent a text message to the applicant that said: ‘Hi Andy, I’m Johnny’s mate. We need to catch up for coffee tomorrow at 11 am. Ring me when you get this message, Mika’.[3] Later that afternoon, the applicant received a telephone call from Mika.[4] During a short conversation, the applicant and Mika arranged to meet the following day. Mika told the applicant that he would send him a text message with details. He did so, asking the applicant to meet him at a café in St Kilda. The applicant acknowledged receipt of the message.
[3]See DPP v Pham [2017] VCC 905 [3]–[4] (‘Sentencing remarks’). The connection between Sunny, Johnny and the applicant is not apparent from the remarks of the sentencing judge. This may be explained by the sensitivities of the operation, which the judge described (at [3]) thus: ‘Your offending emerged out of a joint Commonwealth and State multi-agency organised crime task force. Due to operational sensitivities, the full details of the wider operation were not able to be revealed in the course of the trial.’
[4]The telephone call was recorded and played to the jury during the trial.
On 7 September 2015, before entering the café, Mika was given further instructions about the arrangement. He was also given an Australian five-dollar note with a recorded serial number. The note was intended to be given to the applicant and to be used a means of identification.
The applicant and Mika met inside the café. The meeting was recorded covertly by Mika. Mika gave the five-dollar note to the applicant who, in return, gave Mika the serial number of an Australian 10-dollar note. The serial numbers of the bank notes were recorded.
The applicant asked Mika whether he had ‘the stuff’. Mika said, ‘We’ve got the six suitcases’, which equated to ‘two fifty kilos of coke’, and asked the applicant whether this is what the applicant had wanted. The applicant acknowledged that it was. He asked Mika whether ‘the stuff’ could be delivered to the applicant’s warehouse. Mika said that the applicant would have to collect it from the agreed location. The applicant said that he was content to meet at the same café the following day and go to the delivery location with Mika. The applicant then agreed to message Mika after he had spoken with his (the applicant’s) brother regarding Mika’s payment, which was referred to as ‘paperwork’ in the recorded conversations. There was reference to the applicant’s brother from overseas.
During the meeting, Mika did not specifically refer to 250 kilograms of cocaine. But, on at least four occasions, he said that he was to deliver 250 kilograms of ‘coke’ to the applicant. At trial, the applicant denied hearing Mika use the word ‘coke’ during this meeting. He also gave evidence that he did not understand ‘coke’ to mean ‘cocaine’. Mika gave evidence that, during the conversation, the applicant sought confirmation about the product that was being delivered and, in doing so, motioned his right index finger to the side of his nose. In his closing address, the prosecutor told the jury that this was to be inferred as being a reference to cocaine, commonly used in the drug underworld.
After leaving the cafe, the applicant sent a text message to Mika asking him how much he was expecting to receive by way of payment, to which Mika replied: ‘paper is $100k my friend’. The applicant acknowledged receipt and said that he would meet Mika at the same time and place on the following day. He also sent a text message to an unknown person saying that Mika needed ‘paper’, being payment. The unknown person told the applicant to say nothing, but ‘just do what they said yesterday’.
On 8 September 2015, Mika attended the same café, where the applicant had been waiting. In the course of their conversation, the applicant became cautious of other people in the café within earshot. Mika gave evidence that, at this point, the applicant motioned his index finger to his mouth, signalling for Mika not to talk. The applicant and Mika exchanged communications by writing on a napkin, whereupon the applicant agreed to go to his car so that Mika could check that he had the money to pay Mika. After leaving the café, the applicant and Mika walked over to the applicant’s van. The applicant drove Mika to a car park behind Luna Park where Mika’s driver, another covert police operative, was waiting. The applicant then produced a bag containing bundles of $50 notes, which the applicant counted in $10,000 bundles in front of Mika. The bag contained a total of $100,000 in cash. The applicant handed the bag to Mika and followed Mika and his driver in the applicant’s van to the Novotel Hotel. Mika entered the applicant’s van, which the applicant then drove into the underground car park.
On entering the hotel lobby, the applicant pointed out on two separate occasions to Mika that there were security cameras.[5] The applicant and Mika went to a room on the second floor that Mika had reserved earlier. Two hidden cameras inside the hotel room showed the applicant and Mika enter the room, with six suitcases already present in the room. Mika opened one of the suitcases and showed the applicant a white substance packaged in several brick-like blocks inside the suitcase. Unbeknown to the applicant, the white substance in the suitcases was not cocaine, but faux cocaine.[6] Mika again confirmed with the applicant that the six suitcases contained 250 kilograms of ‘coke’, each suitcase containing approximately 40 kilograms. Mika opened each of the suitcases. After a short discussion in the hotel room, Mika left. The applicant took each of the six suitcases, one by one, down to his van which was parked in the hotel car park.
[5]It was put to the applicant in cross-examination that the reason for his pointing out the security cameras was that he knew that a drug transaction was about to take place and that he was concerned about any evidence that may link him to such a transaction. The applicant said in response that he only pointed to the security cameras to gauge Mika’s reaction.
[6]The prosecution’s case was that the applicant attempted to traffick in a drug of dependence, namely cocaine.
Later that afternoon, police executed a search warrant at the applicant’s residential address in Kings Park, where they found the six suitcases in the garage. The suitcases were seized and the 40-kilogram packets were all accounted for. Investigators found $10,000 in cash in a bundle in one of the applicant’s jackets. When searching the applicant’s wallet, investigators also found the Australian five-dollar note, with the same serial number, handed to the applicant by Mika at their meeting on 7 September 2015.
During his police interview, the applicant declined to comment on what had happened. However, he gave evidence at trial.[7] In respect of the applicant’s evidence, the sentencing judge said:
The jury must be taken to have rejected your version of events as they were satisfied beyond reasonable doubt that you intentionally trafficked, by arranging to collect, paying for, transferring and storing, a large commercial quantity of what you believed was cocaine. I too reject your evidence beyond reasonable doubt. It had all the hallmarks of a cock and bull story that could not withstand the probing by the learned Crown Prosecutor.[8]
[7]This evidence is summarised in Sentencing remarks [22]–[29].
[8]Sentencing remarks [30].
As to the wholesale value of cocaine in the same amount of the faux cocaine, the sentencing judge said:
The prosecution led evidence from an Australian Federal Police expert who testified that the wholesale value of the cocaine, if it were real cocaine, would be worth between $50–$60 million. Further, the expert said that, if the drugs were real and sold at street level, their value would be between $150–$200 million.
I accept that these values, particularly the street level values, are somewhat speculative. Regardless, the evidence of the expert does indicate the scale or order of magnitude of this attempt at trafficking.[9]
[9]Ibid [31]–[32].
Personal circumstances of the applicant
The applicant was 46 at the time of sentence. He emigrated to Australia at the age of 18 after fleeing Vietnam and spending time in a refugee camp in Indonesia. He later sponsored his parents and siblings to come to Australia.
The applicant had completed two years of his VCE at Collingwood Secondary College and later obtained tertiary qualifications in IT from the University of Melbourne. The applicant later worked in a number of businesses as a bookkeeper and in community organisations for a period of approximately 15 years. Thereafter, from 2008, the applicant had established a business supplying and equipping nail salons. In 2012, he transferred this business to his cousin in 2012 but continued to work in the business. He had also worked on farms and as a handyman.
The applicant has a wife and two children, aged 11 and 15. His older child is in a selective school. The sentencing judge said that these facts indicate that the applicant has family and community support and, thus, would be in a position to resume a lawful life at the end of any sentence.[10]
[10]Ibid [53].
The applicant and his wife own a house, which is the subject of a mortgage. The sentencing judge said: ‘Prior to this offending, you could be seen as a classic Australian migrant success story.’[11]
[11]Ibid.
Sentencing remarks
The sentencing judge first considered the seriousness of the offending. Both trafficking, and attempted trafficking, of a LCQ of a drug of dependence carry the same maximum penalty of life imprisonment.[12] A LCQ is one kilogram,[13] and the applicant had attempted to traffick 250 kilograms. The sentencing judge said: ‘The sheer quantum of the amount of drug you attempted to traffick puts this case towards the upper range of cases of this type’.[14] The judge referred to a table of cases decided by the Court of Appeal which had been provided by the prosecution in support of a submission that, since the sentencing regime is quantity-based, a range of sentences for drug trafficking cases can be derived by making reference to the multiple of the relevant quantity when compared to the legislative maximum for a commercial quantity or a LCQ.[15] The applicant’s offending having involved 250 times the LCQ, the sentencing judge concluded that the applicant’s case fell ‘at the upper end of the range of drug trafficking offences.’[16]
[12]Drugs, Poisons and Controlled Substances Act 1981 s 71.
[13]Ibid s 70 (definition of ‘large commercial quantity’) and Sch Eleven, Pt 3.
[14]Sentencing remarks [35].
[15]See Haddara v The Queen [2016] VSCA 168 [45]–[55] (Redlich, Priest and Beach JJA), citing R vPidoto & O’Dea (2006) 14 VR 269 (Maxwell P, Callaway, Buchanan, Vincent and Eames JJA).
[16]Sentencing remarks [35].
The sentencing judge said that, in assessing moral culpability in trafficking cases, it is necessary first to identify an offender’s role in the movement of an illegal drug from the source to its ultimate consumer.[17] In this respect, the judge summarised the submissions of the prosecution and the applicant as follows:
On the question of your role, the learned Crown Prosecutor submitted that you were more than a courier and submitted that you were a trusted participant where you were facilitating the movement of drugs from source to ultimate consumers by obtaining instructions, procuring and making payment of $100 000 and collecting and storing the drugs. It was submitted, therefore, that you were an important part of the syndicate or enterprise.
Your counsel submitted that the Court could not make a finding as to whether you were a member of the syndicate or enterprise. Your counsel referred to the fact that the original target of surveillance was another individual and that you were not on the radar of police previously. You then did emerge and were involved over a three-day period where it was not contested that you were in touch with others, had two meetings with Mika, procured the money and then took delivery of the drugs. In effect, it was submitted you were asked to undertake a specific task which you did so this went to reduce your moral culpability. You indicated in the first meeting with Mika that you had been told by an unknown person to collect the goods.
In terms of your role, your counsel submitted that your conduct should be characterised as that of a courier. Alternatively it was submitted that the Court could not find that you were part of a drug trafficking syndicate or enterprise. Your counsel referred to evidence of the prosecution expert witness who indicated that it was common that drug syndicates ‘sub-contract’ out particular activities, which could include a role such as yours. I give that evidence little weight in that the expert indicated that he was not referring to this specific case. This case has to be determined on the available evidence and reasonable inferences that can be drawn from the evidence.
[17]Ibid [36].
The sentencing judge accepted the prosecution’s characterisation of the applicant’s role. He said:
Your conduct indicates that you were prepared to become involved when the opportunity was presented to you. Your culpability is high, given that you are in contact with others involved in the proposed consignment before you first made contact with Mika. In addition, you had the necessary equipment by way of a delivery van, and if necessary, a warehouse. Before you met Mika, you had obtained the necessary mode of identification for the meeting, and had been advised of the quantum of drugs to be collected, albeit there was an issue as to whether it was to be 250 or 500 kilograms.
The sentencing judge noted that the applicant did not dissent when Mika said that he was ‘Johnny’s mate’. Moreover, the applicant seemed to be familiar with the individual known as ‘Sunny’.[18] He had discussed the proposed amount to be received by Mika. After communicating with an unknown person, he obtained $100,000 in cash. He delivered that cash to Mika the next day and collected the drugs.[19] The judge described the applicant as ‘a willing participant who was trusted to arrange the purchase, receive and deliver a large sum of cash, and then receive what [the applicant] thought was a very valuable shipment of an illegal drug.’[20] The judge concluded:
All these actions that I have referred to lead to a conclusion that you were more than a mere courier. Your role was higher than that, and your interactions with others were such that I am satisfied beyond reasonable doubt that you must have known you were involved in a significant way in what was to be a major drug transaction. There is not enough evidence to reach any further conclusions as to your involvement.
Due to the nature of the operation, the Court is not in a position to know of the scale or sophistication of the syndicate or organisation with which you were undoubtedly involved.
Labels, therefore, are of only limited assistance. You are to be sentenced, as I have indicated, for your conduct with the context of the trafficking operation.
As the High Court indicated in The Queen v Olbrich,[21] it is often difficult to ascribe a precise role of any particular individual in a drug trafficking operation.[22] This is the position here, and you must, therefore, be sentenced on the basis of what the evidence shows that you actually did. Having considered all the evidence as to your role, which must be taken that the jury accepted, albeit over a limited period, it is well above that of a mere courier.
In reaching this conclusion, it is important to note that this is not a case where a vulnerable individual was pressured or coerced into committing an offence that would have otherwise not be committed.[23]
[18]Ibid [41].
[19]Ibid [42].
[20]Ibid.
[21](1999) 199 CLR 270.
[22]Ibid 278 (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ).
[23]Sentencing remarks [43]–[47].
The sentencing judge addressed a submission advanced by the applicant that, but for the actions of the police, the offending would not have occurred. The judge said that the applicant was a person in the drug trade who, when the opportunity arose, willingly participated in dealings to facilitate the movement of illegal drugs from source to ultimate consumer and that he had the means to assist, namely a van and a garage.[24] The judge did not, as a mitigating factor, give any weight to the fact that the offending was as a result of a covert police operation. He rejected a submission that, but for the role of Mika and the authorities, the applicant would not have committed an offence. According to the judge, the present case should not be seen as one where the police could be said to have incited or encouraged the applicant to commit the offence; nor was there any suggestion of police impropriety. The judge was satisfied that the operation is a legitimate police tactic to disrupt drug trafficking.[25]
[24]Ibid [48].
[25]Ibid [49].
In the event, the sentencing judge concluded:
It follows that I regard your culpability for this offending as high, notwithstanding that no drugs would ever have entered the marketplace. I do not accept the submission that the involvement of the police reduces your moral culpability.
This is consistent with cases such as Mokbel v The Queen[26] and Zandi v The Queen[27] where the focus is on the actions of the offender who, at all times, believed he was dealing with real drugs. This is the case here.[28]
[26](2011) 211 A Crim R 37.
[27][2015] VSCA 24.
[28]Sentencing remarks [50]–[51].
The sentencing judge turned to the applicant’s prospects of rehabilitation. He cited the applicant’s education, good work record, family support, ties to the community and lack of prior convictions.[29] However, the judge said that the applicant’s plea of not guilty showed that he had no insight into his offending or any remorse. Further, the fact that the applicant was of prior good character carried only limited weight: it is well known, said the judge, that drug syndicates will use those of good character to undertake various roles in order to minimise any risk of apprehension.[30] In the event, the judge regarded the applicant’s prospects of rehabilitation as ‘at least reasonable’.[31] The judge said that he had regard to the applicant’s prospects of rehabilitation in fixing a non-parole period.[32]
[29]Ibid [54].
[30]Ibid [56].
[31]Ibid [55].
[32]Ibid [56].
The sentencing judge said that the quantum of drugs trafficked is an important consideration in assessing the seriousness of the offence. He was prepared to accept, as a relevant matter in sentencing, that no drugs would ever have entered the market and that there was no shipment of real drugs involved. However, the judge said that this factor had only limited weight, ‘[g]iven the potential size of the trafficking operation, namely 250 times the LCQ, with a wholesale value in the tens of millions of dollars’.[33] The judge inferred that the $10,000 found in the applicant’s possession was at least part of the reward for his involvement and that the applicant’s involvement was for financial purposes.[34]
[33]Ibid [60].
[34]Ibid [61].
Next, the sentencing judge considered in detail the cases and secondary material that were cited on the plea. He said:
Your counsel specifically referred to the sentences imposed in the case of Barbaro & Ors which involved an extremely large importation of illegal drugs, namely 4.4 tonnes of MDMA.[35] The sentences varied depending on the role of each accused, and your counsel submitted that three of the accused, namely Pasquale Sergi,[36] Salvatore Agresta[37] and John Visser[38] were sentenced to periods of imprisonment which were well above what he regarded as an appropriate sentence here.
[35]See Barbaro v The Queen; Zirilli v The Queen (2012) 226 A Crim R 354 and Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58.
[36]DPP (Cth) v Karam [2013] VSC 133.
[37]Ibid.
[38]See R v Falanga and Visser [2014] VSC 306 and Visser v The Queen [2015] VSCA 168.
As that case was some years ago, and as the offenders were dealt with under Commonwealth legislation, I do not regard the sentences imposed as of much assistance in arriving at a benchmark.
The relevant Sentencing Snapshot was tendered. In particular, your counsel referred to the median sentence for this offence, which is 7 years, and sought to classify your offending as being in the mid-range. He submitted that any sentence should be single digits.
The chart provided by the learned Crown prosecutor during the plea is of only limited assistance. The chart provides only brief information as to the various roles of the offenders, but however, does support the proposition that sentences in cases like this one are broadly related to the quantity of drugs trafficked.
However, given the amount of drugs in this case as a multiple of a large commercial quantity is significantly higher than any of the cases referred to in the chart, the Court is left without any real ‘yardstick’.
In The Queen v Kilic,[39] the High Court referred to cases where a sentencing judge is sentencing an offender for a grave instance of the offence, but not so grave as to warrant the imposition of the maximum penalty. The Court said:
[39](2016) 339 ALR 229.
‘[t]he requirement to have regard to the sentences imposed in [past cases] does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather, the range of sentences imposed in the past may inform a broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle’.[40]
[40]Ibid 235–6 [22] (Bell, Gageler, Keane, Nettle and Gordon JJ), citing DPP v OJA (2007) 172 A Crim R 181, 196 [30]–[31] (Nettle JA, with whom Ashley and Redlich JJA agreed).
By analogy, the same applies here where the multiple of a large commercial quantity is orders of magnitude above the cases previously decided that were brought to the Court’s attention.
There are, however, two recent cases discussing the principles of sentencing for trafficking offences that are relevant. In Stanley v The Queen,[41] the offender appealed against the severity of a sentence of eight years imprisonment for trafficking two and a half times a large commercial quantity of methylamphetamine. The offender, who pleaded guilty, was aged 23 at the time of the offence.
[41][2017] VSCA 54.
In dismissing the appeal against severity, the Court noted that the current sentencing practices for large commercial quantity cases are linked to the current sentencing practices for commercial quantity cases, which, at the time, were under review in Gregory.[42]
[42]Gregory (a pseudonym) v The Queen [2017] VSCA 151.
In Gregory, the Court of Appeal was dealing with a plea of guilty to a number of charges, the most serious of which was trafficking in a commercial quantity of a drug of dependence, namely methylamphetamine, over a period of some eight months. The offender was sentenced to eight years and six months imprisonment on that charge alone. The amount of drug trafficked approached a large commercial quantity. In dismissing the appeal, the Court indicated that current sentencing practices for the upper category of offences of commercial quantity cases are ‘plainly inadequate’.[43]
[43]Ibid [100] (Maxwell P, Redlich and Beach JJA).
The Court also indicated that the current sentencing practices for commercial quantity cases must increase, which will likely result, in turn, in a commensurate increase in the sentences for large commercial quantity cases.
There are, however, distinguishing features between this case and Gregory. As the Court of Appeal has indicated, each case before the courts will vary in relation to the quantity involved, the role of the offender, the duration of the offending, whether there is a plea of not guilty, and the prior convictions the offender.[44]
[44]Ibid [98].
In Gregory, the Court said:
‘As with any other category of offending, there is wide variation in the seriousness of [commercial quantity] trafficking offences, and in the culpability of the trafficker(s). Likewise, there is great variation in the role played by the offender, ranging from a controlling role to the role of courier or driver. And, of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range. For the reasons given earlier, variations in quantity will ordinarily bear significantly on the assessment of the relative seriousness of the offence.’[45]
[45]Ibid [97].
Applying those comments to this particular case, even though this was an attempt at trafficking, over the short period of the charge you were significantly involved. Notwithstanding that the Court has been unable to fully identify the role that you were to undertake in any further distribution of the illicit drugs, applying the principles discussed in the cases which I have just referred to, any sentence must be substantially above sentences that have been imposed in the recent past for this offence, particularly in circumstances where you do not receive the benefit of a plea of guilty and have not shown any remorse.
It has been stated on a number of occasions that sentences in other comparable cases are not binding, but provide a ‘yardstick’ to consider a sentence in any particular case.
The Act operates on a quantity based scale. Here, you have been found guilty of trafficking 250 times the large commercial quantity. On any view, this is a substantial amount of illegal drugs that you attempted to traffick.
The value of the illegal drugs, should they have reached the market, would also have been substantial.
Here, I refer to my characterisation of your role as being a trusted intermediary in the trafficking operation. Although the period of your offending was only over a short period of three days, over that period you played a pivotal role in the proposed acquisition and movement of the drugs from the supplier to the unknown persons that were to take delivery from you. You were entrusted to engage with the potential supplier, Mika, procure and deliver the $100 000 payment, and then take delivery of the drugs and store them for a short time at your house.
The intensity of your involvement and its centrality to the operation over that period puts your moral culpability as high.
Your counsel relied on the cases of Jurkovic, Bozo v R[46] and R vCampanella[47] to submit that your sentence ought to be reduced on the grounds that this was entrapment. I regard both cases as distinguishable and prefer the consideration of cases involving purchases and sales to undercover police in Zandi.
[46](1981) 6 A Crim R 215.
[47](2004) 90 SASR 1.
In Jurkovic, the offender pleaded guilty and the full involvement of the police was clearer. There was a finding that the particular crime charged would only have occurred just because the police asked that an order be placed. Here, the nature of the activity that lead to your appearance on the police radar did not emerge, and as the Crown Prosecutor argued, you were committed to the offending by the time you were first approached by the undercover operative.
In Campanella, there was a finding by the sentencing judge that the offender came to commit a crime that he would otherwise not have committed as a result of police involvement with another individual.
Here I regard a consideration of the matters in Zandi as applicable. There, the Court discussed whether the seriousness of an offence was reduced by the fact that there were no real drugs involved. The Court said:
‘The moral culpability was not at all diminished by the fact that there was no prospect of any harmful drug reaching the streets. [The offender] fully intended that the drugs would be obtained by him and disseminated into the community.’
In Zandi, the Court referred to the decision in Mokbel. Here, Neave JA considered an argument that the sentencing judge had mischaracterised the offence of attempted trafficking on the basis that the police had undertaken a substitution of the drugs, and replaced them with an inert substance. Accordingly, it was submitted, the gravity of the offending should be reduced.
Neave JA (with whom Nettle and Tate JJA agreed), stated:
‘The offence of trafficking covers both the doing of an act which comes within the definition of traffick and an attempt to do such an act and the same maximum penalty applies to both offences. This does not mean that the same sentence should always be imposed for an attempt to traffick, as for a completed trafficking offence. But...the offence is intended to deal with the potential harm caused by trafficking [or attempting to traffick] illicit drugs.’[48]
[48]Mokbel v The Queen (2011) 211 A Crim R 37, 47 [43].
After concluding that Mokbel was not a case in which an agent provocateur had pushed the offender into committing a crime, the Court dismissed the appeal.
In R v Peng Gao; R v Benjamin Lim,[49] in dealing with a case in which there was a substituted delivery, Rothman J noted that:
[49][2007] NSWCCA 343.
‘[n]o principle establishes a general proposition that the fact, simpliciter, that the drugs are sold to undercover police and do not, therefore, reach the public, diminishes the culpability of the offending.
In such an undercover operation, it is beneficial to the community that the drugs are not able to be used. But that benefit is the result of the actions of law enforcement agencies, and not the result of any intention or action of the person charged. That there are no victims to such a sale may be a factor, like many others, that a sentencing judge takes into account, but for my own part, I would not generally consider it significant.’[50]
[50]Ibid [47]–[48].
In the words of Weinberg JA in Trajkovski v The Queen,[51] the ‘deleterious effects’ of particular conduct is a potentially relevant matter depending upon the circumstances. This proposition has been repeated on a number of occasions,[52] including in Taumoefolau v The Queen.[53]
In Taumoefolau, the Court concluded its analysis of the relevant authorities by stating that:
‘[t]he sentencing judge is entitled to gauge the criminality of the conduct by its potential consequences and by the intentions of the offender notwithstanding what he or she was in fact able to achieve.’[54]
Here, while there were no ‘deleterious effects’, this must be weighed against the sheer quantum of the illegal drug you sought to traffick, and your involvement, although limited in time, but significant over the charge period, that I have discussed.[55]
[51](2011) 211 A Crim R 118.
[52]See, eg, Kapkidis v The Queen [2013] VSCA 35 [23] (Maxwell P and Redlich JA); Ibrahim v The Queen [2013] VSCA 227 [31] (Buchanan AP, Hansen and Priest JJA).
[53](2015) 253 A Crim R 508.
[54]Ibid 519 [36] (Hansen, Whelan and Beach JJA).
[55]Sentencing remarks [62]–[91] (citation omitted).
The sentencing judge addressed the question whether the possible confiscation or seizure of the applicant’s residential property was a matter to be taken into account in sentencing the applicant.[56] The judge noted that the property, which was the subject of a mortgage, was jointly owned by the applicant and his wife. He was satisfied that the property was lawfully obtained but that it was used for the purpose of storing the six suitcases that contained the faux cocaine. Accordingly, said the judge, the property became an instrument of crime, and the applicant’s share in the property would be subject to a confiscation application by the Director of Public Prosecutions. The judge took this matter into account as part of the impact that the sentence will have on the applicant and the additional hardship in light of the relatively modest means of the applicant and his family.[57]
[56]Ibid [92].
[57]Ibid.
Finally, the sentencing judge turned to the purposes of the sentencing. He said:
The basic purposes for which a Court may impose a sentence are punishment, deterrence (both general and specific), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.
I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, so far as possible, offenders are rehabilitated and reintegrated into society.
The Courts have stated that in cases of large scale drug trafficking, general deterrence is the principal sentencing consideration. This is an economic crime and the penalties must reflect a risk/reward calculus. This applies notwithstanding that it is not appropriate to refer you as “principal” in this case.
The comments of Kaye J[A] in Dawid v Director of Public Prosecutions are of general application:
‘The nature and pervasive extent of drug trafficking of the type engaged in by the applicant is such that, on sentencing, the principles of general deterrence and denunciation assume substantial prominence. It is the large profits, which can be gained from trafficking in drugs that attracts people, such as the applicant, to engage in the type of offending for which the applicant was sentenced. It is important that persons, like the applicant, who contemplate embarking on such an enterprise, do so in the clear knowledge that, if detected, they will be sentenced to lengthy terms of imprisonment. In other words, it is necessary that the sentences imposed for such drug trafficking be sufficiently severe to offset the lure of large and relatively easy profits, which can be derived from the trafficking of illicit drugs.’[58]
[58]Ibid [93]–[96] (citation omitted).
Proposed grounds of appeal
The applicant has proposed the following five grounds of appeal:
Ground 1: The sentencing Judge erred in his characterisation of the role of the applicant in the movement of an illegal drug from source to consumer, in particular –
(a)by accepting the prosecution characterisation of the role as being ‘an important part of the syndicate or enterprise’;
(b)by finding that: ‘Having considered all the evidence as to your role, which must be taken that the jury accepted, albeit over a limited period, it is well above that of a mere courier’;
(c)by characterising the role ‘as being that of a trusted intermediary in the trafficking operation’;
(d)by finding that ‘the intensity of your involvement and its centrality to the operation over that period puts your moral culpability as high’.
Ground 2: The sentencing judge erred in his assessment of the seriousness of the offending, in particular, by finding that ‘the sheer quantum of the amount of drug you attempted to traffick puts this case towards the upper range of cases of this type’.
Ground 3: The sentencing judge erred by not taking into account as a matter of mitigation the fact that the offending was the result of a police operation.
Ground 4: The sentencing judge erred by concluding that ‘any sentence must be substantially above sentences that have been imposed in the recent past for this offence’.
Ground 5: The sentencing judge erred by imposing a head sentence and non-parole period that were, in all the circumstances, manifestly excessive.
Each of the proposed grounds of appeal will be considered in turn.
The applicant’s submissions
In his written submissions on the first proposed ground, the applicant accepted that he played an important and necessary role in what was intended to be the movement of illicit drugs. However, he contended that there was no evidence to support the various findings particularised under the first proposed ground. The applicant referred to the evidence given by an expert witness called by the prosecution that it is ‘often the case that people who are involved in large scale criminal activities will often outsource particular roles [or] tasks … to someone who acts as a kind of contractor or sub-contractor’ and that often ‘people who are engaged as a kind of sub-contractor are not necessarily part of … or involved in … the criminal organisation per se’. According to the applicant, this evidence, combined with the evidence of the applicant’s actions in the course of the offending, did not permit the sentencing judge to make the findings that he did about the applicant’s role and his being ‘a part’ of a syndicate or enterprise. The applicant also argued that, after his first meeting with Mika, where he was told about the payment of $100,000 to Mika, text messages between the applicant and an unknown person indicated that the applicant was no more than a person who was acting on specific instructions and limited information. The applicant also drew support from the fact that he had not come to the attention of police until such time when Sunny either could not or would not meet with the covert police operatives. The applicant argued that, at the time of his arrest, other than the suitcases that he had received, and the $10,000 cash, there was no other evidence of any kind that implicated the applicant in any illegal activities.
In relation to the second proposed ground, the applicant contended that the sentencing judge’s findings about the applicant’s role ‘must have influenced his assessment of the overall seriousness of the offence and where it sits in the range of offences of its type’. Alternatively, the applicant contended that the judge erred in his approach to the assessment of the seriousness of this instance of the offence, based on the role of quantum in that assessment. The applicant argued that there is a limit to the extent to which the quantity, as an aggravating feature, should be sheeted back to the applicant; his relationship to the quantity in this case was crude and remote. The applicant said that there is no evidence that he had played any role in determining the quantity of the consignment, which was prepared and supplied by police in a manner which was designed to be able to be received by the applicant as an individual in one transaction.
In relation to the third proposed ground, the applicant said that the transaction would not have occurred but for the police operation. The applicant was not the initial target of the police operation. He only came to the attention of police after the failed attempt to arrange the meeting with Sunny. The applicant contended that these matters affect the assessment of the objective gravity of the offence and also have some bearing on the applicant’s subjective criminality. According to the applicant, his case sat somewhere between, at one end of the spectrum, a situation where police have pressured or coerced a vulnerable person to commit a crime which they would otherwise not have committed and, at the other end of the spectrum, a situation where police infiltrate an existing supply chain where an offender is conducting an ongoing business. The applicant argued that, where the entire offending exists only as a result of police operations, and where an offender’s involvement is consequent upon those operations (albeit indirectly), there must be some mitigation of sentence. In the event, said the applicant, his was not a case where police intercepted any pre-existing criminal activity; rather, police created the circumstances in which his involvement precipitated.
In relation to the fourth proposed ground, it is to be recalled that, in his remarks, the sentencing judge applied the decision in Gregory (a pseudonym) v The Queen[59] as follows:
[59][2017] VSCA 151 (‘Gregory’).
In Gregory, the Court said:
‘As with any other category of offending, there is wide variation in the seriousness of [commercial quantity] trafficking offences, and in the culpability of the trafficker(s). Likewise, there is great variation in the role played by the offender, ranging from a controlling role to the role of courier or driver. And, of course, there is room for very significant variations in quantity between the bottom and the top of the applicable quantity range. For the reasons given earlier, variations in quantity will ordinarily bear significantly on the assessment of the relative seriousness of the offence.’[60]
Applying those comments to this particular case, even though this was an attempt at trafficking, over the short period of the charge you were significantly involved. Notwithstanding that the Court has been unable to fully identify the role that you were to undertake in any further distribution of the illicit drugs, applying the principles discussed in the cases which I have just referred to, any sentence must be substantially above sentences that have been imposed in the recent past for this offence, particularly in circumstances where you do not receive the benefit of a plea of guilty and have not shown any remorse.[61]
The applicant said that, in concluding that ‘any sentence must be substantially above sentences that have been imposed in the recent past for this offence’, it is unclear whether the sentencing judge was referring to the comments in Gregory about role and quantity or to the comments about the need for sentences to increase for commercial quantity cases and the likely result of a commensurate increase in sentences for LCQ cases. The applicant contended that, either way, the judge erred in his conclusion: if the statement was directed at the former, error is demonstrated for the reasons that were argued in support of his proposed first and second grounds above; if the statement was directed at the latter, then it is an erroneous approach to sentencing because: (a) there has not been any sufficient review of sentences imposed for LCQ cases that reveals inadequate sentences for this offence; (b) any review of sentences imposed in the recent past for this offence is of limited use in determining the appropriate sentence in the present case as there are no factually comparable cases available;[62] and (c) where the Court of Appeal has found that sentences imposed for a particular offence have been inadequate, the approach required is for the Court to increase, by increments, sentences imposed for an offence where inadequate current sentencing practices have been identified.
[60]Ibid [97].
[61]Sentencing remarks [74]–[75] (citation omitted, emphasis added).
[62]The applicant argued that cases where the quantum involved was, for example, 10 kilograms or 20 kilograms, but the offender was described as a principal, a manager, a career drug trafficker and so forth, are at odds with the present case.
In relation to the fifth proposed ground, the applicant contended that the head sentence and the non-parole period imposed were manifestly excessive in view of:
(a) the matters argued above in relation to the applicant’s role in the offending;
(b) the applicant’s lack of prior convictions;
(c) the applicant’s prospects of rehabilitation being ‘at least reasonable’ and the sentencing judge’s remark that he would have regard to those prospects in fixing a non-parole period;[63] and
(d) the applicant losing his half-share in the residential property as a result of forfeiture.
[63]Sentencing remarks [55]–[56].
Finally, the applicant suggested that the sentence is manifestly excessive in light of the sentencing judge having placed too much weight on the matter of quantity, erring in assessing the applicant’s role, giving insufficient weight to mitigating features, such as lack of prior convictions, or erring in some other way.
During oral argument, the applicant contended, in particular, that the sentencing judge had erred: (a) in exaggerating the role played by the applicant, especially in finding that he formed part of a ‘syndicate’; and (b) in assessing the gravity of the offending and the moral culpability of the applicant given that the offending had involved a covert police operative.[64]
[64]He referred to Taumoefolau v The Queen [2015] VSCA 221 and DPP (Cth) v Haidari (2013) 230 A Crim R 134, 142 [31]–[32].
Analysis
In my opinion, leave to appeal should be refused.
The sentencing judge did not sentence the applicant by reference to any label; rather, he sentenced him by reference to the conduct in which he had engaged. The role played by the applicant in the present offending was significant. Plainly, he was acting in collaboration with unknown third parties. Telephone intercepts record that he was expecting a shipment or delivery of a very large amount of cocaine. During discussions, he himself was speaking about a delivery of 500 kilograms. He was entrusted with $100,000 in order to secure the purchase of the cocaine. The sentencing judge was right to describe the role of the applicant as being that of ‘a trusted intermediary in the trafficking operation’.[65]
[65]Sentencing remarks [79].
During oral argument, the applicant placed special emphasis on the fact that his conduct was associated with that of a covert police operative. It is true that the involvement of a covert police operative may affect the gravity of the offending or the moral culpability of the offender.[66] However, in the present case, the covert police operative simply facilitated an offence that was well within the contemplation of the applicant. The applicant was ready and willing to commit the offence for which he was eventually convicted. Transcripts of the applicant’s conversations with the covert police operative show that the applicant was well aware that 250 kilograms of cocaine stored in six suitcases was involved. As indicated above, he believed that up to 500 kilograms would be involved. Moreover, the applicant was able to secure $100,000 in cash in order to secure the purchase on the following day. The videotape of the offending reveals that he had every opportunity to consider the gravity of the conduct in which he was involved. The applicant’s involvement is to be contrasted with that of a person who commits an offence on the spur of the moment without any prior contemplation of committing such an offence.
[66]DPP (Cth) v Haidari (2013) 230 A Crim R 134, 142 [31]–[33] (Harper JA, with whom Weinberg and Priest JJA agreed).
The quantity of drugs proposed to be involved placed this offending at the upper range of cases of this type. It is well established that the quantity of drugs involved is a highly relevant consideration in sentencing for trafficking offences.[67] As the transcript of the telephone conferences and the videotape show, the applicant was well aware of the quantity of drugs involved. Unquestionably, the objective gravity of the offending and the moral culpability of the applicant in this case were very high.
[67]Gregory [2017] VSCA 151.
The applicant contended that the sentencing judge had erred by imposing a head sentence and a non-parole period that were, in all the circumstances, manifestly excessive. The applicant pleaded not guilty; he showed no remorse. He is not entitled to the utilitarian benefit commonly associated with a timely plea of guilty. In cases such as the present, general deterrence — the need to deter other parties from engaging in similar conduct — is of particular significance. As demonstrated by the table of comparative sentences, upon which the respondent relied, a sentence of 15 years was well within range.
Conclusion
I would refuse the application for leave to appeal against sentence.
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