Ban Joo Teoh v The Queen
[2018] VSCA 239
•20 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0226
| BAN JOO TEOH | Appellant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | KYROU and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 September 2018 |
| DATE OF JUDGMENT: | 20 September 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 239 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Teoh (Unreported, County Court of Victoria, Judge Dean, 5 December 2016) |
---
CRIMINAL LAW – Sentence – Late guilty plea – Charge of attempt to possess a marketable quantity of an unlawfully imported border controlled drug – Charge of traffick a marketable quantity of a controlled drug – Appellant sentenced to nine years’ imprisonment with a non-parole period of seven years – Characterisation of the seriousness of the offending – Whether judge erred in taking into account an adverse factor not proven beyond reasonable doubt – Whether sentence manifestly excessive – Whether denunciation, protection of the community and general deterrence given too much weight in sentencing – Whether appellant’s personal circumstances and rehabilitation prospects given sufficient weight – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms C B Hollingworth | Victoria Legal Aid |
| For the Respondent | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
KYROU JA
KAYE JA:
In September 2015, the appellant was arrested, and charged with attempting to possess a marketable quantity of an unlawfully imported border-controlled drug, namely, methamphetamine (‘Charge 1’) and with trafficking a marketable quantity of a controlled drug (‘Charge 2’). After a contested committal hearing on 6 May 2016, the appellant, together with his co-accused Hon Pan Yip (‘Yip’), was committed to stand trial on both charges. Subsequently, in August 2016, Yip pleaded guilty. On his plea, he gave an undertaking to the judge to cooperate in the prosecution of the case against the appellant. Subsequently, and shortly before the commencement of his trial, the appellant pleaded guilty to the two charges on the indictment.
After the presentation of a plea on his behalf, the appellant was sentenced by a judge of the County Court to a total effective sentence of nine years’ imprisonment, with a minimum non-parole period of seven years. That sentence was constituted as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1 Attempt to possess a marketable quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) s 11.1(1)]
25 years’ imprisonment 5 years and 6 months 2 years 2 Traffick a marketable quantity of a controlled drug [Criminal Code (Cth) s 302.3(1)]
25 years’ imprisonment 7 years Base Total Effective Sentence: 9 years’ imprisonment Non-Parole Period: 7 years’ imprisonment Pre-Sentence Detention Declared: 452 days 6AAA statement: 11 years’ imprisonment, with a non-parole period of 9 years
Other relevant orders: Forfeiture by consent of $15,000 proceeds of crime
On 15 February 2018, the appellant was granted leave to appeal his sentence on the following two grounds:
Ground 1:
The judge erred by taking into account an adverse factor not proven beyond reasonable doubt, and as a result mischaracterised the seriousness of the offending and the appellant’s role.
Ground 2:
The individual sentence on Charge 2, the total effective sentence, and non-parole period are each manifestly excessive. In particular, the learned sentencing judge gave too much weight to denunciation, protection of the community and general deterrence, and insufficient weight to the personal circumstances and rehabilitation prospects of the appellant.
Circumstances of offending
The appellant, who was born in December 1984, was a Malaysian national. He arrived in Australia in September 2014, initially on a tourist visa, which he subsequently converted to a student visa. That visa expired on 14 October 2016. At the time of the offences, the appellant was residing with his wife, Yelly Park, at 5 Cirque Drive, Footscray.
On 30 August 2015, Yip arrived at Perth International Airport from Hong Kong. A search by Australian Border Force members revealed the presence of methamphetamine on various items in his possession. Yip was granted entry into Australia on a tourist visa. At the time he had with him a Remy Martin cognac bottle.
Yip then travelled to Melbourne, arriving there on 8 September 2015. On arrival he telephoned the appellant and introduced himself. The appellant told him where he could exchange Hong Kong dollars into Australian currency. About 18 minutes later Yip telephoned the appellant again and told him he had checked into a hotel.
On the following day, 9 September, the appellant telephoned Yip and told him to find an apartment where he could stay. The appellant asked Yip what time he wished to meet him. Approximately half an hour later, the appellant was telephoned by Yip. He asked Yip whether he should go and see Yip, or whether Yip should come to him. Fifteen minutes later, the appellant telephoned Yip and asked him if he was coming over. Yip said that he was and asked, ‘Am I bringing the present for you?’. The appellant responded by saying that Yip should come over, but should not bring ‘any of those things’ yet. The appellant also told him that he should read any texts sent to him and then delete them, and he should not bring anything with him except his wallet.
On the following day, 10 September, the appellant telephoned Yip. They arranged to meet, and again the appellant told Yip not to bring anything over.
On 11 September, the appellant telephoned Yip at about 11.30 am. The appellant asked Yip if the ‘fat bloke’ had called Yip, and Yip responded that he had not. The appellant told Yip not to bring anything. He told Yip to call the ‘fat bloke’ and ask him about bringing things over. About eight minutes later, Yip telephoned the appellant and said that he was unable to contact ‘the fat bloke’s’ phone. The appellant told him to wait for a while. At about 11.55 am, Yip again telephoned the appellant and told him that he had received a telephone call from ‘the fat bloke’. The appellant responded that he knew. The appellant then arranged for Yip to attend his place immediately.
Subsequently, at 1.20 pm, the appellant telephoned Yip again and told him to hurry because there was not much time. A couple of minutes later, Yip telephoned the appellant, and the appellant told Yip to ‘throw away the box’. Yip said that he would get a shirt to cover it and that he would catch a taxi.
At 2.17 pm on the same day, 11 September, Yip was arrested by police as he exited a taxi outside the appellant’s residence. Yip was carrying a shopping bag, which contained a bottle of Remy Martin cognac, that was concealed by a jacket draped over his arm. On examination, the bottle contained a liquid substance. The substance was tested and found to contain methamphetamine at a purity of 46.3 per cent. The total quantity of pure methamphetamine was 673.5 grams. Methamphetamine is a border-controlled drug. A marketable quantity is a quantity not less than two grams. The methamphetamine in the bottle had been unlawfully imported by Yip to Australia on 30 August. The total potential value of the methamphetamine, if sold in kilogram amounts, was between $291,600 and $466,560. The total potential value of the substance, if sold in ‘point amounts’ (0.1 grams) was between $729,000 and $1,458,000. The attempt by the appellant to obtain possession of that substance was the basis of the offence alleged in Charge 1.
A short time after arresting Yip, police executed a search warrant at the appellant’s premises at 5 Cirque Drive, Footscray. There they found the following items: a toiletry bag located in the bathroom cupboard containing multiple plastic bags of a crystalline substance; a Samsung Galaxy box in the television cabinet in the living room containing multiple plastic bags of a crystalline substance and various drug paraphernalia; and a bag containing identification documents relating to the appellant, together with $15,000 in cash inside a wallet and sunglasses pouch.
The gross weight of the substance, removed from the clip seal bags within the toiletry bag, was 860 grams. The substance was tested and found to contain methamphetamine at an average purity of 74.3 per cent. The total potential value of 860 grams of methamphetamine, if sold in one ounce amounts, was between $215,000 and $307,143. The total potential value if sold in ‘point amounts’ was between $430,000 and $860,000.
The gross weight of the substance, removed from the clip seal bags within the Samsung Galaxy box, was 4.7 grams. It was tested and found to contain methamphetamine at an average purity of 75.2 per cent. The total quantity of pure methamphetamine was 3.6 grams. The potential value of 4.7 grams of methamphetamine, if sold in gram amounts, was between $2,350 and $2,820. The total potential value of it, if sold in ‘point amounts’, was between $2,350 and $4,700.
In total, the gross weight of methamphetamine found in the toiletry bag and the Samsung Galaxy box was 864.7 grams. The total quantity of pure methamphetamine found was 659.5 grams. Methamphetamine is a controlled drug. As such, a marketable quantity of the substance is not less than 250 grams.
The appellant was arrested on the same day. He participated in a record of interview with the assistance of an interpreter. He told police that he was friends with Yip when he was in China, and that Yip had been to his house on the previous night to borrow money. He told police that Yip was coming over on that afternoon to repay him. The appellant said he had no idea about the drugs in the toiletry bag. He only knew about the small quantity of drugs at his premises, and that he had used ‘ice’ on the previous evening. He told the police he did not tell Yip to bring the bottle and wrap it in a jumper, and he did not know what was inside the bottle.
The plea
The appellant was born and raised in Ipoh, Malaysia. He was educated to Year 11 standard. After leaving school, he moved to Kuala Lumpur, and obtained employment selling mobile telephones in a shopping centre. In that role, he worked long hours, seven days a week, and he sent a significant proportion of his wage to his family each month. When he was 21 years of age, the appellant commenced his own business in the same shopping centre selling mobile telephones. He continued to work long hours in the business. It was in that context that he met a man named Thomas, who, in the telephone calls outlined above, was referred to as ‘the fat bloke’.
Subsequently, the appellant closed his mobile phone business, and opened a tattoo shop on the same premises. However, that business was not successful.
When the appellant was 10 years of age, his mother was rendered an invalid by a stroke. The appellant was the youngest of three children, and, at an early age, he undertook a number of domestic functions to assist his mother. In doing so, he became particularly close to her. In 2012, his mother’s health deteriorated badly when she suffered a further stroke. She passed away six months later, in early 2013.
Due to the close nature of his relationship with his mother, the appellant was emotionally distraught as a result of her death. He closed his tattoo business in Kuala Lumpur, and returned to live with his father for a time. He did not gain any further employment at that stage. In early 2014, he accepted an invitation to visit Thomas (the fat bloke) in China, and he spent two months in Hong Kong and Shen Zhen. During that trip, he met his co-accused, Yip. The appellant then returned to Malaysia. He planned a holiday in Australia, and he arrived in this country in June 2014.
Shortly after his arrival in Australia, the appellant met a Korean girl who was studying in Melbourne. In September 2014, he gained a student visa, and commenced studying English at Bayside College. In 2015, the appellant and his girlfriend travelled to Malaysia and Seoul, where they underwent marriage ceremonies. They returned to Melbourne in March 2015. The appellant did not have any paid employment in Australia, but he augmented his savings by selling earrings on the internet which had been imported by his wife from Korea. He did not have any previous convictions in Australia or in Malaysia.
In sentencing submissions, counsel relied on the appellant’s lack of previous convictions and his previous work record. Counsel tendered a bundle of character references on his behalf. He also relied on the fact that the appellant had been subjected to lockdown protocols at the Metropolitan Remand Centre, where had been held in custody since October 2015. Incarceration had been, and would continue to be, more onerous for him, because he was far from home, without family support, and lacking in any proper English skills. During his time in custody, he had undertaken a number of courses, and certificates were tendered as to his attendance at those courses. Counsel also tendered a letter written by the appellant, setting out his background, and expressing his sincere remorse for his offending. Counsel told the sentencing judge that the appellant had only used drugs for a short period of time, and that he had been free from drugs while he had been in prison.
In the course of the plea, counsel and the judge discussed the role that the appellant had occupied in the offending that was the subject of Charge 1. Counsel noted that it was conceded, by the plea, that the appellant was the intended recipient of the bottle imported by Yip, and counsel submitted that the appellant’s role was to ‘warehouse’ it. In response to questions by the judge, counsel accepted that the appellant was part of a chain of possession of the bottle, and that the appellant’s role was to provide it to a ‘cook’, who would be able to extract the methamphetamine from the cognac. The judge pointed out that the appellant had had contact with the ‘fat bloke’, and his Honour suggested as follows:
Your client’s, on one view, the Australian agent for Mr — for the fat man. Or the Australian manager, the offshore manager, if you like. He’s at a pretty senior level, I think, your client …
Counsel responded that there was no evidence to support that the appellant was the Australian manager of the enterprise. After further discussion, the judge said that while one could never be precise about it, the appellant was a ‘senior member of an organisation engaged in the importation of this drug into Australia’.
After further discussion, counsel conceded that that was an accurate description of the appellant’s role, stating:
… you are possibly right about my client having a significant role in this country, but certainly the direction of the syndicate, the ultimate control and authority was being exercised by these people Zero and the ‘fat man’ outside of Australia.
After further discussion, counsel accepted that both the appellant and Yip had played ‘important central roles’. However, he submitted, there was no suggestion that either of them was the architect of the importation, and there was no suggestion that they were the persons who were ‘pulling the strings ultimately’.
Reasons for sentence
In his reasons for sentence,[1] the judge, having recited the facts of the offending, stated:
The evidence located at your premises revealed that you were engaged in the business of drug trafficking and Yip was delivering supplies to you. Intercepts on your telephone revealed that you were in contact with a person in China, known as the ‘fat man’, who was also engaged in the importation into Australia of border control drugs and, in all probability, you were also in contact in Melbourne with a person or persons capable of extracting the methamphetamine from the contents of the bottle Yip was to deliver to you.
At the time of your arrest, you were engaged in the business of drug trafficking for profit, and I am satisfied that you occupied a senior and trusted position in a criminal organisation involved in that activity.[2]
[1]DPP v Ban Joo Teoh (Unreported, County Court of Victoria, Judge Dean, 5 December 2016) (‘Sentencing Remarks’).
[2]Sentencing Remarks [16]–[17].
The judge, having considered the appellant’s circumstances, stated:
I accept that you are to some degree remorseful for your offending, but any assessment of your prospects of rehabilitation must be approached with a degree of caution. You were an important member of an organisation engaged in very serious criminal activity, and your participation was at a trusted level.[3]
[3]Sentencing Remarks [23].
The judge then considered issues of parity of sentencing in respect of the sentence imposed on Yip. He expressed the view that Yip occupied an inferior role to the appellant in the criminal organisation they were both involved in.
Ground 1
Counsel for the appellant submitted that the judge erred by considering, and taking into account, that the appellant had contact with a person or persons who could extract the methamphetamine from the imported bottle of liquid that was being brought to him by Yip. It was contended that that fact had not been proven beyond reasonable doubt, and the judge erred in taking it into account, and thus mischaracterising and overstating the appellant’s role in the drug syndicate.
In support of that submission, counsel referred to the discussions that took place during the plea, as summarised above. Counsel noted that defence counsel on the plea had maintained that the appellant did not have the intention, capacity or skill to extract the drugs, there was no evidence of those matters, and that the prosecutor agreed with that submission stating, ‘There’s no evidence as to where it was going or how it was going to be extracted.’ Counsel for the appellant contended that the prosecution had not put the case against the appellant on the basis that he would be responsible for organising the extraction of the methamphetamine from the bottle that was brought to him by Yip. That factor, it was submitted, was clearly relevant to the sentence imposed on Charge 1. As such, the judge was not entitled to take it into account as a manner adverse to the appellant, as it had not been proven beyond reasonable doubt. In support of those submissions, counsel referred to the observation by Johnson J in R v Nguyen & Pham,[4] that the circumstances in which an offender attempted to come into possession of a drug, and what that person intended to do with the drug, are relevant to determining the degree of moral culpability attaching to the offence.
[4](2010) 205 A Crim R 106, 126–8 [72].
Counsel further submitted that the judge’s finding was also relevant to his Honour’s sentencing of the appellant on Charge 2. He submitted that the judge filled in gaps in the prosecution case to draw a conclusion about the appellant’s role in offending, and in that way placed him in a position higher in the hierarchy of the drug syndicate than an intermediary entrusted with receiving the bottle, as submitted by the prosecution.
In response, counsel for the respondent pointed out that in his reasons for sentence the judge did not make any finding that the appellant had the capacity, intention or skill to extract methamphetamine from the contents of the bottle itself. The judge did no more than express the view that, in all probability, the appellant was in contact with a person or persons capable of extracting the methamphetamine. On the plea, counsel then acting for the appellant did not take issue with the suggestion by the judge that the appellant’s role had involved having contact with, or access to, the person who could perform the extraction of the drug from the contents of the bottle. Counsel for the respondent accepted that the prosecution had acknowledged that there was no direct evidence where the liquid was going or how it was to be extracted. However, that did not contradict the proposition that the appellant must have had contact with or knowledge of the person responsible for the next stage involving the extraction of the methamphetamine from the contents of the bottle. In making that finding, it was submitted, the judge was entitled to take into account that the appellant was also in possession of manufactured methamphetamine, together with accoutrements of trafficking, which formed part of the second charge on the indictment.
In addition, it was submitted that if the judge did err in finding that the appellant had contact with the person who could extract the methamphetamine from the bottle of liquid, that finding was not used to ‘elevate’ the appellant’s role in the syndicate. In particular, the finding by the judge that the appellant played a ‘senior and trusted role’ in the organisation was open on the evidence in any event. His role was critical to the success of the business in Australia. He was to be entrusted with a large quantity of a very valuable commodity for sale, and he was responsible for taking possession of liquid methamphetamine from Yip knowing that it was ultimately to be sold. In that respect counsel referred to the role of the appellant in arranging for Yip to deliver the liquid from Perth to Melbourne, and counsel noted that the appellant had been in contact with the individual in China referred to as ‘the fat man’, who was the organiser of the drug importation. Those factors, it was submitted, support the finding by the judge that the appellant’s role was senior, entrusted and important in the syndicate.
For the reasons that follow, we consider that ground 1 must fail.
As counsel for the respondent has pointed out, there are two fundamental limbs to the proposition contained in the first ground, namely, first, that the judge erred in considering that the appellant had contact with the person who could extract the methamphetamine from the imported bottle of liquid and, secondly, that the judge used that finding to erroneously characterise the appellant’s role as being that of a senior and trusted person in a criminal organisation involved in drug trafficking for profit.
In order to rely on the proposition, that the appellant had contact with the person who could extract methamphetamine from the bottle of liquid, as of itself an aggravating feature of the appellant’s offending, the judge was required to be satisfied of that fact beyond reasonable doubt.[5] The relevant finding by the judge was expressed by him to have been made ‘in all probability’. Counsel for the appellant referred to that section of the judge’s reasons, and further submitted that, in any event, the judge could not have been satisfied beyond reasonable doubt of that fact. Thus, counsel contended that the judge erroneously took into account an aggravating fact attaching to the offending that was not established beyond reasonable doubt.
[5]R v Storey [1998] 1 VR 359, 369; R v Olbrich (1999) 199 CLR 270, 281 [27].
That submission must be rejected for two reasons. First, it is clear from the context in which the judge made that finding, that his Honour was not relying on the fact, that the applicant had access to the person who would extract the methamphetamine from the bottle, as the sole basis for his conclusion that the appellant occupied a senior and trusted position in the criminal organisation involved in the trafficking of the methamphetamine. In the same passage, in which the judge made the finding, about the appellant’s access to the person who would extract the methamphetamine from the bottle, his Honour also noted that the appellant was engaged in the business of drug trafficking, that Yip was delivering supplies to him, and that the appellant had been in telephone contact with the man referred to as ’the fat man’, who was engaged in the importation of border-controlled drugs into Australia. It was those factors, together with the finding concerning the appellant’s access to the person who would extract the methamphetamine from the bottle, that were the basis of the conclusion by the judge that the appellant occupied a senior and trusted position in the criminal organisation involved in dealing with the methamphetamine. Thus, that conclusion was not based solely on the judge’s finding that the appellant had access to the person who would extract the methamphetamine from the bottle. Accordingly, it was not necessary for the judge to be satisfied of the intermediate fact (of the appellant’s access to the person who would extract the methamphetamine from the bottle) beyond reasonable doubt.
Secondly, and in any event, it was clear from the factual context of the reasons, read as a whole, that the judge would have been entitled to be satisfied beyond reasonable doubt that the applicant had contact with the person who was responsible for extracting methamphetamine from the bottle carried by Yip.
The attempted delivery by Yip to the appellant of the bottle containing the methamphetamine should not be considered in isolation. Yip was a substantial importer of drugs into Australia. It was the appellant who was in contact with him, and who directed him as to where they were to meet, and as to when the meeting was to take place. The telephone conversations between the appellant and Yip on 11 September reveal that the appellant was then in contact with the ‘fat man’. The appellant had known the ‘fat man’ in Malaysia and, significantly, had visited him in China in 2014 at the fat man’s request.
Taken together, those factors, without more, would have justified a conclusion, on the criminal standard of proof, that the appellant’s role went beyond ‘warehousing’ the bottle containing the methamphetamine, and, at the least, included taking responsibility for providing it to the person who was to extract the methamphetamine from the liquid contents of the bottle. It is unsurprising that counsel for the appellant on the plea made the concession that the appellant was required to provide the bottle to the ‘cook’ for that purpose. In order to do so, obviously, the appellant had to be in contact with that person. Accordingly, the judge was justified in concluding that the appellant was in contact with a person or persons who were capable of extracting the methamphetamine from the liquid that was contained in the bottle delivered to him by Yip.
In addition, and apart from that matter, there was an adequate basis for the judge to be satisfied, beyond reasonable doubt, that the appellant occupied a senior and trusted position in the criminal organisation involved in trafficking methamphetamine in Australia. As we have mentioned, the appellant performed an important role in organising the delivery to himself of the quantity of methamphetamine contained in the bottle. The appellant was in contact with the ‘fat man’ who was at the head of the syndicate. The appellant knew the ‘fat man’, and, as mentioned, visited him in China less than two years before the offences. The appellant pleaded guilty to the charge of trafficking a marketable quantity of methamphetamine. He had in his possession, on his premises, a large quantity of cash, and drug trafficking paraphernalia. Counsel for the appellant, on the plea, accepted that the judge was correct that the appellant had performed a ‘significant role’ in the operation of the syndicate in Australia. Those factors, taken in combination, would clearly justify the conclusion that the only reasonable inference, from the circumstances, was that the appellant occupied a senior and trusted position in the drug trafficking enterprise in which he was involved.
For those reasons, the appellant has failed to establish the basis of ground 1, and, accordingly, that ground must fail.
Ground 2
In support of ground 2, counsel for the appellant submitted, first, that Charge 2 lacked features commonly found in cases involving the offence charged, namely, the trafficking was only alleged to have occurred on a single date, there was no direct evidence that the appellant conducted a trafficking business at his home, there was no direct evidence that he participated at a high level in a drug syndicate, and the appellant had not travelled in and out of Australia in order to participate in the trafficking of the methamphetamine. In addition, the judge accepted a number of mitigating features, including the appellant’s age, his plea of guilty, his otherwise unblemished record, his strong work history, and his devotion to his family. In addition, the appellant had expressed remorse, and a sentence of incarceration would be more onerous for him because he was isolated without family or friends.
Counsel for the appellant noted that the Crown had referred the judge to five cases during the plea in order to demonstrate current Commonwealth sentencing practices, namely, Nguyen v The Queen,[6] DPP (Cth) v Merrill,[7] DPP (Cth) v Thai,[8] OPQ v The Queen,[9] and Cappis v The Queen.[10] Counsel submitted that those cases did not constitute comparable cases for the purposes of sentencing the appellant.
[6][2010] NSWCCA 132 (‘Nguyen’).
[7][2015] VSCA 52.
[8](2014) 242 A Crim R 173.
[9](2012) 221 A Crim R 424.
[10][2015] NSWCCA 138.
Based on those matters, counsel for the appellant submitted that the individual sentence of seven years’ imprisonment on Charge 2 was manifestly excessive. He also submitted that in light of the appellant’s mitigating factors, the non-parole period, constituting 77 per cent of the head sentence, was also manifestly excessive.
In response, counsel for the respondent noted that the amount of the controlled substance trafficked by the appellant, that was the subject of Charge 2, represented 2.7 times the applicable marketable quantity (250 grams), and 92 per cent of the applicable commercial quantity (750 grams). The amount of methamphetamine extracted from the bottle (that was the subject of Charge 1), equated to 336 times the marketable quantity (2 grams) and 89 per cent of the applicable commercial quantity (750 grams). At the time of the seizure of the drugs, the appellant was in possession of $15,000 cash and items of drug paraphernalia. Counsel referred to the appellant’s conduct in arranging for Yip to come to Victoria, and to deliver the bottle containing the methamphetamine to him. He also referred to the fact that the appellant was in contact with the ‘fat man’ who, it would seem, was the head of the syndicate. In light of the appellant’s position in the syndicate, and the importance of his role in the success of the business in Australia, it was submitted that the appellant’s offending was particularly serious. The judge took into account the relevant mitigating factors. However, it was submitted, general deterrence is an important consideration in drug-related offending. Taking those matters into account, the overall head sentence, and the non-parole period, properly reflected the serious nature and circumstances of the appellant’s offending.
In order to establish the ground of appeal relied on, that the sentence on charge 2, the total effective sentence, and the non-parole period, are each manifestly excessive, the appellant must demonstrate that the sentences were wholly outside the range of sentencing options available to the judge in the exercise of the sentencing discretion.[11]
[11]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; R v Boaza [1999] VSCA 126 [42] (Winneke P).
The first aspect of Ground 2 is directed to the sentence on charge 2, that of trafficking a marketable quantity of methamphetamine. The offence the subject of charge 2 was, of its nature, a serious offence, as reflected by the maximum prescribed sentence of 25 years’ imprisonment. During the past decade or more, the courts have become increasingly conscious of the proliferation of drugs in our society, and of the grave and pernicious harm caused to individuals who have succumbed to their temptation to use them, and to society as a whole. In the vast majority of cases, persons who engage in trafficking prohibited substances are driven by the lure of large profits. In short, their motivation is pure greed.
It is for that reason that general deterrence and denunciation assume an important, if not primary, role in the determination of sentences for the kind of offence that was the subject of Charge 2. As the authorities have emphasised, sentences to be imposed for drug importation offences, and for drug trafficking offences, must be such as to impress on intending drug traffickers that by seeking to reap the potentially large financial rewards from drug trafficking, they run a significant risk, when detected, of severe punishment, consisting of sentences which deprive them of their liberty to live in society for long periods of time. For these reasons, it is recognised and accepted that personal mitigating circumstances, such as previous good character and lack of previous convictions, are generally given less weight as mitigating factors.[12]
[12]See for example R v Nguyen; R v Pham (2010) 205 A Crim R 106, 127 [72] (Johnson J, with whom Macfarlan JA and Hulme J agreed); DPP (Cth) v Thomas (2016) 347 ALR 275, 334 [193] (Redlich, Santamaria and McLeish JJA); Nguyen v The Queen; Phommalysack v The Queen (2010) 31 VR 634, 682 [34] (Maxwell P).
In the present case, the offending by the appellant was a serious instance of the offence that was the subject of Charge 2. As counsel for the respondent has pointed out, the amount of drug that was involved in the offence constituted 2.7 times the marketable quantity prescribed by the Commonwealth Criminal Code. The total potential value of the drugs that were seized was between $430,000 and $860,000. As we have concluded in determining Ground 1, the judge correctly considered that the appellant occupied a senior and trusted position in the drug trafficking syndicate in which he was involved. He performed a significant and indeed pivotal role in the operations of that syndicate in Australia. There was no evidence that the appellant had entered into and participated in the drug trafficking business for any other reason than for profit. Thus, there were no mitigating circumstances attaching to his offending itself.
The appellant pleaded guilty at a quite late stage of the proceeding. The judge accepted that the plea was evidence of a degree of remorse in the appellant’s favour, and his Honour also took into account that it avoided the necessity of a criminal trial. The judge also took into account the appellant’s personal mitigating factors. However, as we have stated, such mitigating factors play a lesser role in the determination of sentences in cases of this type.
On the hearing of the plea, counsel for the prosecution provided to the judge a table of four cases involving sentencing for related drug offences. In their written cases for this Court, counsel for each side have made submissions in relation to them. Before briefly considering those cases, it is important to bear in mind the relevant principles relating to comparable cases. Those principles were recently stated by this Court in Djordjic v The Queen:[13]
Ordinarily, comparable cases are relevant to reveal the appropriate sentencing range for the offence that is under consideration, and thus to promote consistency of sentences. However, the courts have emphasised that the consistency, that is sought to be achieved, is not some mathematical equivalence of sentences, but, rather, consistency in the application of relevant legal principles. For that reason, so called ‘comparable cases’ are not precedents. Indeed, in the context of sentencing, no two cases can be alike, as the factors that are relevant to the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly. While, reviewed as a whole, comparable cases may assist to reveal a possible pattern or range of previous sentences, it has been emphasised that such an examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by the cases, is necessarily correct, or that the upper or lower limits of those sentences are correct and immutable. Further, and importantly, as the High Court has recently emphasised in DPP v Dalgleish, while s 5(2)(b) of the Sentencing Act provides that current sentencing practices are relevant to the determination of a sentence in each case, nevertheless that factor is but one of a number of matters that must be taken into account in determining the appropriate sentence to be imposed in the particular case.[14]
[13][2018] VSCA 227.
[14]Ibid [74] (citations omitted) (Beach and Kaye JJA).
Bearing those principles in mind we turn, briefly, to the five cases referred to by the prosecutor on the plea.
In Cappis v The Queen,[15] the appellant had pleaded guilty to the offence of attempting to possess a border-controlled drug, namely methamphetamine, in a marketable quantity. The offence involved 679.7 grams of pure methamphetamine. The appellant was sentenced to six years and nine months’ imprisonment on that charge, with a non-parole period of four years. The judge considered that the appellant had been at a level of ‘some significance’ in the course of the importation. The appellant had pleaded guilty at the earliest reasonable practical opportunity.
[15][2015] NSWCCA 138.
In OPQ v The Queen,[16] the appellant pleaded guilty to one charge of attempting to possess a marketable quantity of a border-controlled drug, comprising 1,355 grams of heroin (491.3 grams of which was pure heroin) and 97.3 grams of cocaine (which was extremely pure). He was sentenced to six years’ imprisonment with a non-parole period of three years and six months. The appellant, who had been sexually abused as a child, was diagnosed as suffering chronic post-traumatic stress disorder of at least moderate severity. The disorder had been exacerbated by the fact that he was infected with the HIV virus, which required ongoing treatment. The sentencing judge accepted that the appellant’s capacity for social judgement had been impaired by his mental condition. Pausing there clearly, in that case, there were some mitigating factors pertaining to the appellant’s involvement in the offending, and he also had personal factors which were of greater weight as mitigating circumstances than those of the appellant in the present case.
[16](2012) 221 A Crim R 424.
In Nguyen,[17] the appellant pleaded guilty to a single count which comprised two offences. It was alleged that the appellant trafficked in a marketable quantity of heroin, amounting to 698.3 grams, which constituted 40 per cent of a commercial quantity. The appellant was described as a ‘high level functionary’ within the syndicate. He was sentenced to nine years’ imprisonment with a non-parole period of six years. Nguyen is comparable to the present case to the extent that the appellants in both cases occupied a similar position in the drug trafficking syndicates in which they were involved.
[17][2010] NSWCCA 132.
Finally, in DPP (Cth) v Merrill,[18] the respondent pleaded guilty to one charge of trafficking a marketable quantity of methamphetamine. The amount involved was 688.8 grams of pure methamphetamine. The respondent had played the role of an intermediary and had significant mitigating factors. In particular, the judge was persuaded, on the balance of probabilities, that the respondent had become involved in the trafficking because he was subjected to some form of threat or duress. On appeal the Court of Appeal upheld that factual finding. However, the Court upheld the prosecution appeal on the basis that the sentence imposed by the primary judge was manifestly inadequate, and re-sentenced the respondent to six years’ imprisonment with a non-parole period of four years.
[18][2015] VSCA 52.
Taking those cases together as a whole, and bearing in mind the principles relating to comparable cases which we have set out above, we do not consider that the sentence imposed on the appellant on Ground 2 could be considered to be outside of the range of sentences available in all the circumstances. In particular, in view of the seriousness of the offending of the appellant, and the weight that must be given to considerations of general deterrence and denunciation, we consider that the sentence imposed on the appellant, on Ground 2, was within the range of sentencing options available to the sentencing judge.
Nor do we consider that the total effective sentence, and the non-parole period, are each manifestly excessive. The overall head sentence, and the non-parole period, were appropriate to reflect the serious nature and circumstances of the offending by the appellant, and to give adequate weight to the principles of general deterrence and denunciation. Charge 1 and charge 2 respectively alleged two discrete instances of offending. As such, the degree of cumulation ordered by the judge between the sentences imposed on those two charges, of two years, was modest. Giving full weight to the mitigating circumstances relied on, on behalf of the appellant, we do not consider that it could be properly concluded that the total effective sentence, or the non-parole period, were manifestly excessive.
For those reasons, Ground 2 must fail.
---
6
9
0