Cang Tan Huynh v The Queen
[2022] VSCA 49
•31 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0131
| CANG TAN HUYNH | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | T FORREST JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 31 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 49 |
| JUDGMENT APPEALED FROM: | [2021] VCC 175 (Judge Lyon) |
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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 – Sentence – Importing marketable quantity of border controlled drug – Manifest excess – Sentence of 5 years’ imprisonment with non-parole period of 3 years – Principle of totality – Whether judge properly took into account sentence of imprisonment previously served in another state for similar, contemporaneous offending – R v Todd [1982] 2 NSWLR 517, Mill v The Queen (1988) 166 CLR 59 applied – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Paul Vale Criminal Law |
| For the Respondent | No appearance | Mr Scott Bruckard, Solicitor for Public Prosecutions (Cth) |
T FORREST JA:
Introduction
In early 2017 the applicant arranged with ‘Alberto’, apparently a Colombian, to send a parcel of cocaine to his parents’ address in Mitcham, Victoria. At the time the applicant was living in Perth.
On 6 February 2017 a DHL consignment of paragliding equipment in a backpack arrived at Sydney on a flight from Chile. It was addressed to ‘Jack Ray’ at the Mitcham address. The listed contact number was for Thi Hong Nguyen — the applicant’s then partner. DHL contacted Ms Nguyen, who claimed no knowledge of the shipment but stated that she would speak to the applicant. The applicant then admitted to Ms Nguyen that he had arranged with Alberto to import ‘a package’. By this stage the paragliding equipment had been x-rayed by Australian Border Force (‘ABF’) officers. The ABF officers passed the backpack to Australian Federal Police, who found, within the seat of the paraglider, five sponges containing a powder weighing a total of 1.7 kilograms. When analysed the powder was found to contain 875 grams of pure cocaine. This represented 437.5 times the marketable quantity of cocaine (two grams) and roughly 44% of the prescribed commercial quantity (two kilograms).[1]
[1]Criminal Code Regulations 2002 (Cth) sch 4 item 41.
The cocaine was removed from the paragliding equipment, which was then repackaged and delivered to the Mitcham address in a controlled delivery on
10 February 2017. The estimated value of the cocaine was in a range from $306,000 (wholesale) to $597,000 (street-level value). The applicant, who identified himself as Jack Ray, was present at the Mitcham address when the equipment was delivered. In a subsequent series of phone calls and messages the applicant disclosed that he knew that there was something missing from the backpack, was concerned that he would be blamed for its absence, and that he may have to pay ‘200,000’ in compensation. In other messages the applicant discussed Alberto’s demand for ‘100,000’ as a deposit for further consignments and how there were ‘those behind [Alberto] and supply him with drugs’.
Upon his return to Perth on 17 February 2017 the applicant was arrested. He was remanded in custody on that day and has remained in custody now for over four years. In the meantime the applicant was charged with trafficking cannabis. It is necessary to summarise the circumstances of this offending
The Western Australian offending
On 4 February 2017, while in Melbourne with his brother, Kevin Huynh, the applicant arranged by phone to go with his brother and another man to the airport. The applicant gave his brother instructions in relation to checking some luggage at the airport and what he should do at the destination airport (Perth), including that Kevin Huynh should go to a taxi rank at which time the applicant would provide him with an address. Before Kevin Huynh boarded his flight, the applicant texted to him an address in Morley, a suburb of Perth, which Kevin Huynh wrote down. Upon his arrival in Perth, Kevin Huynh was arrested and found to be in possession of a suitcase containing cannabis weighing 15.7 kilograms and with a street value between $105,000 and $157,000.
After a trial, the applicant was convicted of attempting to sell or supply a prohibited drug.[2] On 20 December 2018 he was sentenced to two years and three months’ imprisonment in the District Court of Western Australia. This was backdated to 17 February 2017 and he served the whole of this sentence without release on parole. This sentence expired on 16 May 2019. The Commonwealth charges in relation to the cocaine importation were withdrawn from the Western Australian legal system, apparently for want of jurisdiction. The applicant was then rearrested and extradited to Victoria to face the cocaine importation charge in the County Court. The applicant pleaded guilty and his plea hearing was initially heard on 5 February 2020, however, the judge’s proposal to sentence the applicant later in February was aborted as a result of the applicant dismissing his lawyers. The plea hearing then resumed on 11 February 2021.
[2]Misuse of Drugs Act 1981 (WA) ss 6(1), 33(1).
The applicant was sentenced as follows.
Charge Offence Maximum penalty Sentence Cumulation 1. Import marketable quantity of a border controlled drug[3] 25 years’ imprisonment 7 years N/A Total effective sentence: 7 years’ imprisonment Non-parole period: 4 years 8 months Pre-sentence detention declaration: 651 days 6AAA statement: None made [3]Namely, cocaine, contrary to Criminal Code (Cth) s 307.2(1).
The judge’s reasons for sentence
I have considered the judge’s comprehensive and careful sentencing reasons. His Honour assessed the offending as a ‘serious instance’ of the offence, and the applicant’s moral culpability as ‘very high’.[4] In making this assessment, the judge took into account the extent of the applicant’s involvement in the importation, which was ‘hands-on, integral and high level from the outset’, and that, although he was assisted by his co-offender Nguyen, he ‘completed each key role’ himself, and her role had been secondary and performed under his instructions.[5] The judge noted, however, that there was no evidence that the applicant’s involvement had extended beyond the importation of the cocaine, to its supply or sale.[6]
[4]CDPP v Huynh [2021] VCC 175, [26] (Judge Lyon) (‘Reasons’).
[5]Ibid [23].
[6]Ibid [22].
The judge noted the sentencing principles specific to drug importation offences. General deterrence is to be given chief weight on sentence, given the difficulty of detecting the offence and the great social harm it inflicts, and ‘[a]ccordingly, stern punishment will be warranted in almost every case’. Involvement in a drug importation enterprise at any level must attract a significant sentence in order to serve the interests of general deterrence. Consequently, the personal circumstances of the offender are to be given less mitigating effect than they might otherwise have for other offences.[7]
[7]Ibid [25].
Other sentencing principles to be given weight in the sentencing exercise were specific deterrence, denunciation, just punishment and, ‘to an extent’, protection of the community.[8]
[8]Ibid [27].
The judge set out the applicant’s personal circumstances, including his prior criminal history:
You are 47 years of age and you were born on 1 January 1973 in Vietnam. You completed schooling to Year 10 in Vietnam. Your sister had earlier migrated to Australia, and in 1991 when you were 18 years of age, you arrived in Australia under the sponsorship scheme. Your transition to Australian life was made more difficult by the fact that you had initially had no English language skills.
In 1993, you contracted tuberculosis. You also became an Australian citizen. You had been studying English language intensely at the time of your illness and (although it was conceded by your counsel) incorrectly, you blame your study regime as the cause of you contracting the disease. You continued your education in Australia and completed VCE in 1995. During that time and afterwards you worked diligently in various manual jobs to save money.
In 2001, you opened a coffee shop business in Victoria Street, Richmond. At the same time, you became involved in a serious romantic relationship.
By 2008, the business was going badly. Although initially you attributed the downturn of the business to the global financial crisis, you later learned that your business partner had been, in effect, stealing from the business.
Over the years, you had been what is benignly referred to as a recreational drug user. However, when you lost your business, your use of drugs became more frequent and intense. In 2009, you appeared before the Magistrates’ Court on dishonesty offences and you were fined. In June 2010, you were placed on an undertaking on charges of possession of methylamphetamines and ecstasy, and on failing to answer bail. In 2011, you were imprisoned for 150 days, with another 90 days suspended, on the charge of trafficking in methylamphetamines. You breached that suspended sentence by committing further offences, and you were ordered to serve the balance of that sentence.
In 2013, you were again before the Magistrates’ Court for possession of drugs, contravention of a suspended sentence and a community order, dealing in suspected proceeds of crime and, significantly, charges of trafficking methylamphetamine and trafficking cocaine. On 24 September 2013, you were ordered to serve 14 months’ imprisonment with a non-parole period of six months.
Finally in this respect, in April 2014 you were again before the Magistrates’ Court and you were fined for possession of a prescription drug and possession of counterfeit money.
After this time, you moved to Western Australia in an apparent effort to make a fresh start and rid yourself of drug influences.
You met your current partner (and co-accused in this matter) Ms Nguyen in 2015. You were both users of methylamphetamine and heroin.
Ms Nguyen fell pregnant in December 2016. As you were both arrested and remanded in February 2017, the baby was born in custody.I was told you have only seen your child briefly on one occasion, some three years ago. Your daughter Serena lives with your partner’s parents in Melbourne and is now three and [a] half years old. Again, [your counsel] stated that you feel self-resentment for missing your daughter’s milestones of development.
Since you have been in custody, you have completed a number of courses.
I was provided with certificates from those courses. In addition, I received a letter from Anthony Giacominato, another prisoner who works as a peer listener. He is impressed by your efforts to improve your vocational prospects and work towards your rehabilitation to overcome your drug addiction. I also received a letter from Caraniche, detailing your efforts to address your drug addiction. Finally in this respect, I received evidence of drug analysis which indicate you have not used drugs whilst in custody.
You have reasonable English language skills, and you are able to communicate with other prisoners whilst in custody. Nevertheless, [your counsel] said that you still suffer from some social isolation. You have however done your best to assimilate with other prisoners and to participate in group-related activities. I was told that you are taking care to rid yourself of bad choices and your previous associates and you are embarking on skills and strategies to resist negative influences.
[Your counsel] pointed to your previous work history has a cleaner, and working in a bakery and takeaway café, at a pillow factory and then setting up your own café which you ran for about eight years until its close. Even when you were in the grip of your addiction, you made some money buying and selling furniture. This venture lasted until sometime in 2016.
You consider yourself to still be in a relationship with Ms Nguyen, and you hope that she will return to Victoria to live you and your child once you complete your sentence of imprisonment. Ms Nguyen is currently on parole in Western Australia.
Your family have not visited you since you have been in custody in Victoria.
Your father passed away whilst you were in custody.
Your mother is now 85 years of age and in frail health. Her ill health prevented her from visiting you whilst you were in custody in Western Australia. It appears to have also prevented her visiting you in custody upon your return to Victoria. For much of 2020, visits were restricted to Zoom connections. Although other family members support your mother, [your counsel] told me that you feel grief and self-loathing for your absence from her.[9]
[9]Ibid [29]–[45].
The judge took into account the principle of parity. He correctly noted that that principle did not require that the two co-offenders receive the same sentence, and took account of the ‘significant differences’ between their respective personal circumstances, particularly the applicant’s significant previous criminal history.[10] The judge noted that the sentence of six years’ imprisonment and non-parole period of three years and nine months reflected discounts for Ms Nguyen’s plea of guilty and cooperation with authorities. While the judge in Nguyen’s case formulated her sentence on the basis that she and the applicant were ‘broadly equal participants as opposed to one partner directing the other’, that judge also concluded that the applicant was ‘the instigator’ and that Nguyen had become involved at a later stage than the applicant.[11]
[10]Ibid [48].
[11]Ibid [46].
The judge turned to the impact of delay and totality, and noted that, in the circumstances of the applicant’s case, these considerations were intertwined.[12] It was apparently accepted that it was the existence of the earlier Western Australian court processes and sentence that, as a matter of practicality, prevented the Commonwealth charge from being brought in Victoria until 2019.[13]
[12]Ibid [49].
[13]Ibid [53].
The judge noted that, in relation to the Commonwealth matter, the applicant had served 651 days’ pre-sentence detention at the time of sentence. The judge also noted the applicant’s counsel’s submission that, due to the Western Australian charge, the applicant had been continuously imprisoned since 17 February 2017.[14] Quoting Mill v The Queen,[15] the judge considered that the principle of totality had application in such a case. This was
a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time.[16]
[14]Ibid [51]–[52].
[15](1988) 166 CLR 59 (‘Mill’).
[16]Ibid 66 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
Consequently, the judge took into account the period of imprisonment served in Western Australia in formulating sentence for the instant offending, the earlier offending being similar in kind and committed during the same period of time.[17]
[17]Reasons [57].
The judge also had regard to those matters required by s 16A of the Crimes Act 1914 (Cth), noting that the sentence he imposed would be of a severity appropriate in all the circumstances of the offence, and that he took into account the relevant considerations listed in sub-s (2).
The judge found that there was ‘no particular evidence of remorse’, noting that the applicant did not ‘particularly cooperate’ with police upon his arrest and initially denied involvement in the importation. Remorse was not ‘automatically’ inferred from either the plea of guilty or the courses taken to address drug issues whilst in custody. These factors were regarded as ‘at best’ evidence that the applicant was developing insight into the need to rehabilitate.[18] It was noted that the applicant’s attempts to address his drug problem were recent and yet to be tested outside the confined environment of prison.[19] As such, the judge assessed the applicant’s rehabilitation prospects as ‘guarded’.[20]
[18]Ibid [60].
[19]Ibid [63].
[20]Ibid [64].
The judge considered that the applicant’s guilty plea had utilitarian benefit, having averted the need for a contested committal.[21]
[21]Ibid [61].
Finally, the judge took account of comparable cases both from Victoria and other States. In doing so, the judge noted that he could not be ‘unduly influenced by the sentences imposed in other cases’. The sentence he imposed had to be based on his own consideration of the objective factors, matters personal to the applicant and the sentencing principles.[22] However, his Honour regarded as ‘useful in determining the appropriate sentence to impose in this case’,[23] the sentences imposed in the following cases:
·R v UE:[24] plea of guilty; 314 times the marketable quantity of methamphetamine; sentence of six years’ imprisonment with three years and eight months non-parole.
·Alpha v The Queen:[25] plea of guilty; 342 times the marketable quantity of cocaine; sentence of six years’ imprisonment with three years and eight months non-parole.
·Matthews v The Queen:[26] plea of guilty; 270 times the marketable quantity of ecstasy; Verdins factors applicable; sentence of four years and three months’ imprisonment with two years and six months non-parole.
·Siddiqi v The Queen:[27] conviction after trial; 740 times the marketable quantity of cocaine; sentence of seven years and six months’ imprisonment with three years and nine months non-parole.
·DPP v Garzon:[28] plea of guilty; 435 times the marketable quantity of cocaine; sentence of seven years’ imprisonment with five years non-parole.
·DPP v Chen:[29] conviction after trial; 573 times the marketable quantity of heroin; eight years and six months’ imprisonment with six years non-parole.
[22]Ibid [68]–[69].
[23]Ibid [66].
[24][2016] QCA 58 (‘UE’).
[25][2015] NSWCCA 225 (‘Alpha’).
[26][2014] VSCA 291 (‘Matthews’).
[27][2015] NSWCCA 169 (‘Siddiqi’).
[28][2018] VCC 484 (‘Garzon’).
[29][2018] VCC 1348 (‘Chen’).
Consideration
The applicant appeals against this sentence on a single proposed ground, which reads as follows:
Ground 1:In all the circumstances, the total effective sentence and non-parole period are manifestly excessive. Specifically, the learned [sentencing] judge failed to give sufficient weight to:
(a)the principle of totality;
(b)the applicant’s plea of guilty and its considerable utility; and
(c)delay.
The applicant correctly acknowledges that grounds of appeal alleging manifest excess do not admit of much argument. Such grounds require the applicant to demonstrate, without the need to pinpoint any specific error, that the sentence is nonetheless wholly outside the range available in the reasonable exercise of the sentencing discretion,[30] such as to bespeak error in itself.[31] In this case, the applicant does allege implied error, although this is not the subject of a discrete ground of appeal. Nevertheless, he still confronts the formidable obstacle of demonstrating that it is arguable that the ultimate sentence was so severe or excessive that it was wholly outside the available range.
[30]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA)
[31]Hanks v The Queen [2011] VSCA 7, [22] (Bongiorno JA).
In this case, that assessment must take into account the earlier term of imprisonment served in Western Australia. As was said in R v Todd[32] and later affirmed by the High Court in Mill,[33] in the situation where an offender has already served a term of imprisonment in another state for offending which is ‘closely related in time and character’ to the offending for which he or she currently falls to be sentenced, the principle of totality must bear on the instant sentencing exercise.[34] This case clearly falls into the kind of case described in Todd and Mill, the offending in both States involving drug offences committed in the same period of time. The ‘proper approach’ in such a case is
to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all [the] offences … in one jurisdiction and had been sentenced at one time.[35]
[32][1982] 2 NSWLR 517 (‘Todd’).
[33]Mill (1988) 166 CLR 59, 65–6.
[34]Todd [1982] 2 NSWLR 517, 519 (Street CJ).
[35]Mill (1988) 166 CLR 59, 66.
The sentencing judge clearly took totality into account. He considered both this offending and the Western Australian offending and, taking into account the sentence already served in respect of the latter, came up with a sentence that appropriately reflected the applicant’s overall criminality for the two sets of offending. The judge correctly characterised the Commonwealth offence as serious and the applicant’s moral culpability as very high. This offending involved the importation of a considerable amount cocaine (437.5 times the marketable quantity and roughly 44% of the commercial quantity), in which the applicant’s role was clearly integral and high-level, giving instructions rather than receiving them. The offending in Western Australia involved similar amounts of the relevant drug and a similarly senior role in the enterprise.
By a process of simple arithmetic, if the sentence served in Western Australia is added to the sentence imposed on the Commonwealth offence the practical effect is a total effective sentence of nine years and three months, with a non-parole period of six years and 11 months (given that the applicant was not released on parole during his previous term of imprisonment). Bearing in mind that, had the two offences been dealt with together, some measure of concurrency would likely have been appropriate given the offences were closely related in time and nature, that overall sentence, in my view, is well within the range of sentences reasonably available for the consolidated offending. High-level offending in two states against a background of earlier similar offending calls for stern punishment. Assuming that conclusion is correct, then the Commonwealth sentence, the subject of this application, is also well within the available range in the reasonable exercise of the sentencing discretion.
It is unnecessary to descend into a granular comparison of the cases considered by the judge.[36] None of those offenders had a Mill/Todd-type totality issue acting to compress the relevant sentences. Conversely, most had other compressive factors. Each of the offenders in UE, Alpha, Matthews and Garzon pleaded guilty and cooperated, some extensively, with police. Siddiqi, who ran a trial, was 19 at the time of offending and Chen had no prior convictions. In truth, as is often the case, there is no direct set of comparators to the applicant’s offending and circumstances and I agree with the judge that it is ‘inappropriate to be unduly influenced by [these] sentences’.
[36]UE [2016] QCA 58; Alpha [2015] NSWCCA 225; Matthews [2014] VSCA 291; Garzon [2018] VCC 484; Siddiqi [2015] NSWCCA 169; Chen [2018] VCC 1348.
In my view it is not reasonably arguable that the sentence imposed upon the applicant for the current offending, even when considered in conjunction with the sentence previously served in Western Australia, is manifestly excessive. Leave to appeal will be refused.
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