Bang Tran v The Queen
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0114
| BANG TRAN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE JA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 October 2017 |
| DATE OF JUDGMENT: | 1 November 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 314 |
| JUDGMENT APPEALED FROM: | [2017] VCC 703 (Judge Parsons) |
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CRIMINAL LAW – Application for leave to appeal – Sentence – Applicant convicted of trafficking a
drug of dependence (heroin); possession of a drug of dependence (cannabis); dealing in property reasonably suspected of being proceeds of crime; possessing prohibited weapons; possessing an
explosive substance – Total effective sentence of three years’ imprisonment– Non-parole period of 15 months – Whether manifestly excessive – Whether sentenced on an incorrect factual basis – Specific error –Applicant resentenced to total effective sentence of two years and three months’ imprisonment – Non-parole period of one year – Fine for possession of a small amount of cannabis for personal use exceeded maximum permissible fine – Fine reduced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Dann QC | Papa Hughes Lawyers |
| For the Respondent | Ms S A Flynn | Office of Public Prosecutions |
| COURT OF APPEAL 459 Lonsdale Street, Melbourne, VIC 3000 | ||
| KAYE JA BEALE AJA: |
Overview
The applicant pleaded guilty to a number of charges including trafficking a
drug of dependence (354.6 grams of heroin mixed) and dealing in property
reasonably suspected of being proceeds of crime ($56,000 cash). The trafficking
charge was put on the basis of possession for sale on a single day: no actual sales
were alleged. The dealing charge was put on the basis that there was a reasonable
suspicion that the cash was proceeds from the sale of heroin, not that it was the
proceeds of the sale of heroin. In his reasons, the sentencing judge incorrectly stated
that the cash was proceeds of crime and that the prosecution alleged and the
applicant conceded that the cash was the proceeds of crime. We have concluded that
that the sentencing judge sentenced the applicant on a factual basis which was not
open to him, thereby falling into specific sentencing error which impacted
significantly on the sentences he imposed on the trafficking and the dealing charges.
We will grant leave to appeal and re-sentence the applicant on those charges. The
net result so far as the applicant’s sentence of imprisonment is concerned is that his
total effective sentence will be reduced by six months and his non-parole period by
three months.
There was also a charge of possession of a small amount of cannabis (three
grams). The fine imposed was greater than the permissible maximum for a small
quantity of cannabis for personal use. We will reduce the fine.
Sentence
The applicant was sentenced as indicated in the following table:
Charge Offence Maximum Sentence Cumulation
Penalty
1 Trafficking a drug of 15y 2y, 6m Base
dependence (heroin)
[Drugs, Poisons and 1 THE COURT
Controlled Substances Act
1981 s 71AC]
2 Possession of a drug of 5 penalty Fine $1000 (sic) dependence units Uplifted Dealing with property 2y
9m 6m summary reasonably suspected of charge 2 being proceeds of crime [Crimes Act 1958 s 195] Uplifted Possessing prohibited 240 penalty Fine $2500 summary weapons [Control of units or 2y charge 9 Weapons Act 1990 s 5AA] Uplifted Possessing explosive 100 penalty Fine $1,500 summary substance [Dangerous Goods units charge 19 (Explosives) Regulations s 20]
Total Effective Sentence 3y and fine of $5,000 Non-Parole Period Fixed 15m Pre-Sentence Detention 156 days Ancillary Orders Forfeiture and disposal orders 6AAA statement 5 years’ imprisonment with non-parole period of 3 years Circumstances of offending
On the plea hearing, there was an agreed summary of facts. The main
features of that summary were that investigators executed a search warrant on the
applicant’s premises in Reservoir on 10 June 2015. They located over 90 plastic bags
containing various amounts of white powder. Analysis revealed the white powder
contained heroin and weighed 354.6 grams in total. The weight and purity of the
heroin mixture in the plastic bags varied: quantities ranged from 0.1g to 28g and
purity varied from 14 per cent to 86 per cent. Investigators also found bags of
dimethyl sulfone, which can be used as a cutting agent. (Charge 1 – trafficking a
drug of dependence). Investigators also found a small amount of green vegetable
matter. Analysis confirmed it to be 3.1 grams of cannabis L.[1] (Charge 2 - possession of a drug of dependence). The applicant told investigators that the heroin and the
cannabis were for his personal use.
[1] A small amount of cannabis L is defined as 50g: see Part 2 of Schedule 11 of the Drugs Poisons and Controlled Substances Act 1981.
Investigators also found $3,650 in a pouch and $99,950 in a plastic box. The
applicant told investigators that this money was made up of his life savings and a
loan from his sister. Ultimately, $56,000 of this money was the subject of the charge
of dealing in property reasonably suspected of being the proceeds of crime (uplifted
summary charge 2).
Investigators also found a quantity of swords, a dagger, a set of ‘Ninja Claws’,
two overpowered laser devices and a taser (uplifted summary charge 9 – possessing
prohibited weapons) and some fireworks (uplifted summary charge 19 – possessing
explosive substances).
The trafficking charge to which the applicant pleaded guilty was in the
following terms:
The Director of Public Prosecutions charges that BANG CONG TRAN at Reservoir in Victoria on the 10th day of June 2015 trafficked in a drug of dependence namely diacetyl morphine (heroin)
The agreed summary stated:
[1] …The prosecution case is that the [accused ] is a heroin trafficker by way of possession for sale after 354.6 grams of heroin mixture in a large number of plastic bags together with bags of dimethyl sulfone (which the prosecution contends was an illicit drug cutting agent) was
discovered…
…
[4] The discovery of a total of $99,950 on the premises of which it is now contended by the prosecution and which is conceded by the defence that $56000 of that amount being present in premises where a sizeable quantity of heroin in numerous plastic bags was also located gives rise to a reasonable suspicion that the $56,000 was associated with the heroin as proceeds of crime.
… [15] The prosecution now contends and the defence now concedes that $56,000 from the total amount of cash located attracts reasonable 3 THE COURT
suspicion of being proceeds of crime and the summary charge has
been amended accordingly
Grounds
The Applicant originally sought leave to appeal against sentence on two
grounds. At the appeal hearing, he was given leave to add a third ground.
Ground 1 – The individual sentences of imprisonment and the total effective
sentence are manifestly excessive.
Ground 2 – the sentence on charge 2 on the indictment (possessing cannabis)
exceeded the maximum penalty available.
Ground 3: The Learned Sentencing Judge erred in sentencing the applicant on the basis that, by pleading guilty to the uplifted summary charge of dealing with property reasonably suspected of being the proceeds of crime, the applicant had conceded that the $56,000 subject of that charge was the proceeds of crime.
It is appropriate to begin with Ground 3. In his Reasons, the sentencing judge
said, relevantly:
[1] There are also three related summary offences. They are firstly a charge of dealing with $56,000 in cash which was suspected as being the proceeds of crime.
… [7] During the search, the investigators located a quantity of cannabis found to be 3.1 grams in total. As already noted, a total of $56,000 contained in a black pouch and also a black plastic box was located. The prosecution submitted and the defence conceded by the plea to the count that the $56,000 was the proceeds of crime and reasonably suspected as
such.… [12] Further, I take into account in your favour the timing and circumstances of your plea of guilty to these charges, noting the matter was resolved after some preliminary legal argument and concessions made with respect to the amount of money alleged to be the proceeds of crime. (emphasis added)
There is no dispute that, read literally, the sentencing judge’s statement at [7]
of his Reasons that the prosecution had alleged (see also [12] of the Reasons), and the
defence had conceded, that the $56,000 was proceeds of crime was incorrect. So too
was his statement that the $56,000 was proceeds of crime. What is in dispute is what
4 THE COURT
one should make of those mis-statements? Did the sentencing judge misconstrue the
factual basis on which he was obliged to sentence the applicant? Or did he simply
express himself loosely?
Plea Hearing
The last sentences of [7] and [12] of the Reasons must be viewed against the
backdrop of several exchanges between the sentencing judge and defence counsel at
the plea hearing, which was spread over two days:[2]
[2] THE COURT
COUNSEL: On the indictment were two charges of knowingly possessing the
proceeds of crime in the amount of $103,000. They’re no longer there, Your
Honour, and what we have is a summary charge of possessing property reasonably suspected of being proceeds of crime in the amount of $56,000.
HIS HONOUR: Yes
COUNSEL: That carries a maximum of two years, as distinct from the indictable version which carries 15, but what it involves perhaps more significantly for Your Honour, is this. That the evidence of trafficking in this case
that's before Your Honour, is restricted to the amount of heroin which was held at the premises and goes no further than that. Mr Tran's agreed to forfeit $56,000 having regard to the reasonable suspicion that arises and beyond that the cash that was found
is not really relevant to Your Honour’s purposes. His culpability as a trafficker is to
be measured by simply having that amount in possession for sale in the context of
what can’t be disputed as his own addiction to heroin which although of
long-standing, he has managed to date without reoffending for a very long
time.
…
HIS HONOUR: …I think the difficulty I have ultimately is the extent of the cash
businesses that Mr Tran is running. The amount of cash that's in his premises, the interplay of the heroin business, I have no real understanding of the kind of trafficking that he was involved with.
…
HIS HONOUR: …I suppose, as I say, I'm not free from doubt at all with respect to
Mr Tran's matter. I suppose my concerns turn on the fact of the finding of the amount of money which he explains in the way he does as his life savings and a gift from his sister. Or he explained that originally, I think, did he not?
COUNSEL: Yes, Your Honour, but the plea resolution reflects the genuine
level of doubt surrounding the origin of that money.
HIS HONOUR: Yes.COUNSEL: But that charge, Your Honour, was originally laid as a charge of knowingly possessing the proceeds of crime.
HIS HONOUR: Yes.
COUNSEL: An indictable offence carrying, I think, ten years imprisonment.
HIS HONOUR: Yes.
COUNSEL: The amount was reduced to 56,000 from the original 99, and the resolution is on the basis that only that 56 is reasonably suspected of being the proceeds of crime, and that carries two years.
HIS HONOUR: …I can’t help but notice your reference to ‘only’ 56,000.
COUNSEL: Yes, it’s a substantial sum.
HIS HONOUR:A lot of people would regard that as an extraordinary - and the
difficulty I have is this, that amount of money in combination with the number of and the amount of drugs and the manner in which they're stored, in combination with the
number of objects which could be utilised as weapons…,
…
HIS HONOUR: …What concerns me most of all, is that amount of money, in
combination with the drugs packaged and present as they were, and the fact that there
are various articles which could be utilised as weapons.COUNSEL: Yes, Your Honour. In my submission, one needs to be extremely careful about reading anything into that combination, particularly in the circumstances of this case.
HIS HONOUR: Is there anything in law preventing me from doing that?
COUNSEL: Yes, Your Honour.
HIS HONOUR: What’s that?
COUNSEL: A very recent decision of the Victorian Court of Appeal handed down only a couple of days ago. Can I summarise the effect of the decision in this way, Your Honour.
HIS HONOUR: Yes.
COUNSEL: It would, in my submission, in all probability have meant that if this matter had gone to trial, the defence could have objected to the evidence of the cash being found being led - - -
HIS HONOUR: Yes, I read that decision.[3]
[3] This was a reference to Falzon [2017] VSCA 74.
…
COUNSEL: But apart from that, there’s a far greater limitation in this case becauseof the resolution, Your Honour - - -
HIS HONOUR: But the money’s said, in the opening, to be associated with the, as
the phrase goes, ‘Where a sizeable quantity of heroin in numerous plastic bags was
also located, gives rise to the reasonable suspicion the $56,000 was associated with the
heroin as proceeds of crime.’COUNSEL: Yes, a reasonable suspicion only, Your Honour. But if Your Honour were to sentence Mr Tran on the basis that this case is all the more serious because that sum was the proceeds of trafficking, Your Honour - - -
HIS HONOUR: Beyond reasonable, yes. No, I - - -
COUNSEL: - - - would - in essence, Your Honour would be sentencing Mr Tran for
a - - -
HIS HONOUR: It’s a different issue though, isn’t it?
COUNSEL: - - - crime he hasn’t been charged with.
HIS HONOUR: But that’s a different issue Mr Doyle. The issue with which I’m
concerned, is that there is a relationship between the $56,000 and the other charge, the heroin trafficking, in the sense that the opening clearly discloses that the $56,000 is reasonably associated with that heroin.
COUNSEL: Yes, but only to the extent that the reasonable suspicion arises. Yes, I
accept that that is an aspect of it, Your Honour.
HIS HONOUR: Yes, well it, as I say, that’s the matter that gives rise to some real
concern for me. (Emphasis added).
Submissions
The applicant submitted that the fact that the sentencing judge made more
than one misstatement at [7] and [12] of his Reasons was significant. He submitted
that those misstatements reflected the sentencing judge’s reluctance at the plea
hearing to view the applicant’s offending consistently with the terms of the charges
and the summary of the agreed facts. It was submitted that the efforts by defence
counsel at the plea hearing to prevent the judge sentencing the applicant on an
erroneous factual basis had plainly failed and that that failure affected not only the
sentence on the dealing charge but also the trafficking charge.
In urging the view that the sentencing judge had merely expressed himself
loosely at [7] and [12] of his Reasons, the respondent noted the sentencing judge said
7 THE COURT
at [7] the ‘$56,000 was the proceeds of crime and reasonably suspected as such’. Further,
in [1] of his Reasons, the sentencing judge correctly stated the ‘$56,000 was suspected
of being the proceeds of crime’. The respondent also relied on the fact that at the
plea hearing defence counsel had highlighted the basis on which the applicant fell to
be sentenced, thus reducing the risk of a misapprehension. In the alternative, the
respondent submitted that the sentence on the trafficking charge was not affected by
any factual error the sentencing judge may have made regarding the dealing charge.
Analysis
It might be thought that there was a certain artificiality about the way the
prosecution put its case below (no doubt in order to facilitate a settlement) but, given
the nature of the charges and the terms of the settlement, it was not open to the
sentencing judge to sentence the applicant on the basis of actual sales of heroin or to
find that the $56,000 was actually proceeds of crime, let alone proceeds of crime from
the sale of heroin.
The applicant’s submission that the sentencing judge fell into specific error
should be accepted for at least three reasons. First, read literally, the last sentence of
[7] of his Reasons, contains three errors and the last sentence of [12] of his Reasons
contains one error: the fact that errors appear in both paragraphs militates against
mere looseness of expression. Second, the relevant exchanges between defence
counsel and the sentencing judge at the plea hearing indicated that the sentencing
judge was inclined to sentence the applicant on a basis that was not open to him.
Third, the passage of time between the conclusion of the plea hearing and the
imposition of sentence – approximately 7 weeks – increased the risk that the
sentencing judge would yield to that inclination. The error affected not only the
sentence passed on the dealing charge but also the trafficking charge since, as is
apparent from the exchanges between defence counsel and the sentencing judge, the
two offences were regarded by the sentencing judge as intertwined.
We consider that there was specific error and that a different sentence should
8 THE COURT
be passed in respect of the trafficking and dealing charges. The fact that the
sentencing judge cumulated two thirds of the sentence imposed on the dealing
charge was fortifies us in that view. In the circumstances, it is not necessary to
consider the ground of manifest excess. Suffice to say that we were not attracted by
that ground.
Re-sentencing
The trafficking, although based on possession for sale on a single day, was
nonetheless a serious example of that offence. The amount was 118 times a
traffickable quantity of heroin and 70 per cent of a commercial quantity.[4] The
applicant has a prior conviction for trafficking a drug of dependence. On 30 July
1998 at Melbourne Magistrates Court, he was convicted of trafficking heroin and
placed on a Community Based Order for 6 months. That prior conviction is quite old
but it is not insignificant. A substantial sentence of imprisonment is appropriate on
the trafficking charge, which carries a maximum penalty of 15 years’ imprisonment.
Likewise in respect of the dealing charge given that the amount of money reasonably
suspected of being the proceeds of crime was considerable.
[4] See Part 2 of Schedule Eleven of the Drugs Poisons and Controlled Substances Act 1981.
In determining the length of the individual sentences, total effective sentence
and non-parole period, we are mindful of that fact that there are substantial
mitigating circumstances which need to be taken into account in the applicant’s
favour. He pleaded guilty at a relatively early stage. The sentencing judge accepted
that the plea was accompanied by true remorse. The applicant had, for almost 15
years, overcome his previous heroin addiction, which had been the cause of his
previous convictions, which included dishonesty offences, possession and use of
heroin as well as trafficking in heroin. The trafficking the subject of Charge 1
occurred in the context of the appellant’s relapse into that addiction. Since then, he
had taken very positive and constructive steps towards his rehabilitation. The report
of CISP was highly commendatory of the applicant’s attitude. He clearly has good
prospects of rehabilitation. He has a strong work history. It might also be inferred
that his business — of breeding and selling orchids, exotic birds and puppies —
would be substantially dependent on his involvement. In addition, the term of
imprisonment served by him has involved some additional hardship, because he
was aware of the difficulties that he has caused to his wife and children by his
involvement in the offending.
The applicant is granted leave to appeal and the appeal is allowed in relation
to Charges 1 and 2 and uplifted summary charge 2. On the trafficking charge, the
applicant is sentenced to 2 years’ imprisonment, which is the base sentence. On
summary charge 2 - the dealing charge - the applicant is resentenced to 6 months’
imprisonment, 3 months of which is to be served cumulatively on the base sentence.
The total effective sentence is therefore 2 years and 3 months’ imprisonment and we
declare a non-parole period of 12 months.
But for the applicant’s plea of guilty, we would have sentenced the applicant
to a total effective sentence of 3 years and 6 months’ imprisonment with a non-
parole period of 2 years. We declare that the applicant has served 310 days by way
of presentence detention.
On Charge 2, possession of a drug of dependence, being 3 grams of cannabis
for personal use, the applicant is convicted and fined $100.
10 THE COURT
2 (12 February 2017 and 13 April 2017. The relevant extracts appear at pp 40, 48-51 of the Plea Transcript).
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9 THE COURT
Bang Tran v The Queen [2017] VSCA 314
Donnes v The Queen [2022] VSCA 132
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