Do v The King
[2023] VSCA 254
•24 October 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0087 |
| QUANG XUAN DO | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGE: | TAYLOR JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 24 October 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 254 |
| JUDGMENT APPEALED FROM: | DPP v Do & Ors (County Court of Victoria, Judge Chettle, 20 April 2023) |
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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 – Two charges of trafficking in large commercial quantity of drug of dependence (heroin and methylamphetamine) – Two charges of trafficking in drug of dependence – Possessing drug of dependence – Applicant trafficked over 4.45 times statutory large commercial quantity of heroin and over twice that of methylamphetamine for profit – Total effective sentence of 15 years’ imprisonment with 10 year non‑parole period – Whether sentence manifestly excessive – Leave to appeal refused.
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| Counsel for written submissions | ||
| Applicant: | Mr PJ Smallwood | |
| Respondent: | Ms M Mahady | |
Solicitors | ||
| Applicant: | City Group Legal | |
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | |
TAYLOR JA:
Introduction and summary
On 20 April 2023 the applicant pleaded guilty to two charges of trafficking in a drug of dependence that was not less than the applicable large commercial quantity (charges 1 and 2), two charges of trafficking in a drug of dependence (charges 5 and 7) and one charge of possessing a drug of dependence (charge 9). On the same day the applicant was sentenced as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation |
| 1 | Trafficking in a drug of dependence — large commercial quantity | Life imprisonment/ 5,000 penalty units | 13 years | Base |
| 2 | Trafficking in a drug of dependence — large commercial quantity | Life imprisonment/ 5,000 penalty units | 10 years | 2 years |
| 5 | Trafficking in a drug of dependence | 15 years | 6 months | Nil |
| 7 | Trafficking in a drug of dependence | 15 years | 6 months | Nil |
| 9 | Possessing a drug of dependence | 1 year/ 30 penalty units, or 5 years/ 400 penalty units[1] | 7 days | Nil |
| Total Effective Sentence: | 15 years’ imprisonment | |||
| Non-Parole Period: | 10 years | |||
| Pre-sentence Detention Declared: | 115 days | |||
| Section 6AAA Statement: | Total Effective Sentence: 20 years Non Parole-Period: 15 years | |||
| Other Relevant Orders: 1. Sentenced as a serious drug offender in respect of charges 1 and 2. 2. Forfeiture order. 3. Disposal order. | ||||
[1]The maximum penalty for possessing a drug of dependence is 1 year and/or 30 penalty units if the court is satisfied, on the balance of probabilities, that the offence was not committed for any purpose related to trafficking in that drug of dependence. Otherwise, the penalty is 5 years’ imprisonment and/or 400 penalty units: Drugs, Poisons and Controlled Substances Act 1981, s 73(1).
Prior to the plea and sentence on 20 April 2023 the applicant had applied for[2] and received[3] a sentence indication.
[2]Criminal Procedure Act2009 (‘CPA’), s 208.
[3]CPA, s 207.
The applicant now seeks leave to appeal against sentence on the single ground that the sentences imposed on charges 1 and 2 and the order for cumulation made on charge 2 are manifestly excessive.
For the reasons that follow leave to appeal should be refused.
Circumstances of the offending
Between 26 May 2020 and 15 September 2020 police electronically monitored conversations between the applicant and others which showed that he was selling high quantities of heroin and methylamphetamine. Throughout the relevant period the applicant trafficked a total of 3.64 kilograms of heroin (charge 1) and 1.61 kilograms of methylamphetamine (charge 2). The value of the trafficked heroin was between $450,000 and $600,000.
On 15 September 2020 police executed a warrant at the applicant’s home and seized two 350 gram blocks of heroin, about 350 grams of methylamphetamine, 6.5 grams of cocaine and 304 grams of cannabis. Police also seized $11,000 in cash, several mobile phones and a cash counting machine.
Both the cocaine and cannabis seized on 15 September 2020 were possessed for sale (charges 5 and 7 respectively). Charge 9 related to 0.9 grams of methylamphetamine seized by police on the same day.
The sentencing reasons
His Honour commenced his sentencing reasons[4] noting that the applicant and a co‑accused (Quoc Nguyen Lai) had pleaded guilty following a sentence indication hearing.[5] The judge then briefly summarised the offending, stating that the filed summary of prosecution opening was an agreed statement of facts.[6] His Honour recorded that the amount of heroin trafficked was 4.45 times the statutory amount for a large commercial quantity and that the amount of methylamphetamine trafficked was over twice the statutory large commercial quantity[7]. The judge noted the value of the trafficked drugs to be substantial.[8]
[4]DPP v Do & Ors (County Court of Victoria, Judge Chettle, 20 April 2023) (‘Reasons’).
[5]Reasons, [3].
[6]Reasons, [3].
[7]Reasons, [6].
[8]Reasons, [13].
The sentencing judge referred to the applicant’s two significant prior criminal matters. In November 2000 he was convicted of trafficking a drug of dependence and possession of money being proceeds of crime and fined $2,000. In December 2015 he received a total effective sentence of 4 years and 3 months’ imprisonment with a non-parole period of 2 years and 3 months for trafficking in a commercial quantity of a drug of dependence and possession of a drug of dependence.
His Honour described the applicant’s personal circumstances. He was born in Vietnam and arrived in Australia at the age of 13 years and is an Australian citizen. He completed schooling in Melbourne to year 11 level before undertaking a course to become a registered real estate agent. The applicant worked in that role for a short time and otherwise has been employed in restaurants and as a labourer. He was previously in a long-term relationship and has two children aged 10 and six. The applicant was 42 years of age at the time of sentence.[9]
[9]Reasons, [14]–[15].
The applicant has a long-term history of heroin use and, since 2020, had been a daily methylamphetamine user. After being admitted to bail for the subject offending, the applicant undertook residential rehabilitation at The Cottage in Shepparton. His Honour noted that such rehabilitation was to the applicant’s credit and reflected well on his rehabilitative prospects. The judge accepted that the applicant was remorseful for his offending but noted his concern that in light of the applicant’s prior history, those rehabilitative prospects were dependent on the applicant remaining drug free.[10]
[10]Reasons, [16], [36].
His Honour noted that trafficking in a drug of dependence in not less than a large commercial quantity is an intrinsically serious offence with a maximum penalty of life imprisonment. Parliament’s intention is that large-scale drug trafficking is to be punished sternly.[11] It is a standard sentence offence in which the standard sentence is 16 years.[12] His Honour observed both that the standard sentence is a legislative guide post[13] and that while the quantity of the drug must be given due weight in the sentencing calculus it should not swamp other considerations.[14]
[11]Reasons, [21].
[12]Reasons, [22].
[13]Reasons, [26]–[27].
[14]Reasons, [23].
As to the applicant’s role in the trafficking enterprise, his Honour said that it was clear that the applicant intended to make substantial profits.
In considering the principles of totality, his Honour noted the prosecution’s concession that there must be some concurrency to avoid a crushing sentence.[15] His Honour also referred to the importance of general deterrence in the sentencing exercise[16] and had regard to current sentencing practices.[17]
[15]Reasons, [28], [32].
[16]Reasons, [28].
[17]Reasons, [29].
His Honour noted that the applicant was to be sentenced as a serious drug offender and therefore, in respect of charges 1 and 2, protection of the community had to be regarded as the principal sentencing purpose. The judge referred to the prosecution’s concession that there was no need to impose a disproportionate sentence to achieve that purpose.[18]
[18]Reasons, [31].
The judge took into account the applicant’s pleas of guilty, noting their significant utilitarian value. He noted that they facilitated the course of justice, particularly because of the impact of COVID-19 upon the courts.[19] His Honour also considered the more onerous custodial conditions consequent upon the pandemic.[20]
[19]Reasons, [34]–[35].
[20]Reasons, [35].
Applicant’s submissions
The applicant submits that the conclusion that the sentences on charges 1 and 2 and the order for cumulation made on charge 2 are manifestly excessive can be reached by the combination of nine factors:
(a)The pleas of guilty, which were of significant utilitarian value and entered during the pandemic.
(b)The applicant’s remorse.
(c)The steps the applicant took towards rehabilitation at The Cottage whilst on bail.
(d)The applicant’s reasonable prospects for rehabilitation, if he remains drug free.
(e)The hardship the applicant has experienced in custody because of the pandemic.
(f)The applicant’s personal history.
(g)The nexus between the applicant’s drug use and offending.
(h)The applicant’s family support.
(i)Principles of totality.
Respondent’s submissions
The respondent submits that the sentencing judge carefully balanced all nine factors detailed above with the gravity of the offending. During both the sentence indication hearing and the plea, both counsel submitted that the offending was ‘mid-range’. In setting sentences below the standard sentence of 16 years for both charges 1 and 2, it is clear that the judge gave weight to all the factors in mitigation and the principles of totality. In short, the respondent submits that neither the sentences imposed nor the order for cumulation is manifestly excessive.
Analysis
It is plain from the Reasons that the judge weighed all matters put on behalf of the applicant in mitigation of sentence. The judge referred to and accepted as relevant, the applicant’s history as a migrant, his employment history, the disintegration of his long‑term relationship as well as that he is the father of two children, his long history of drug use, that his substance use disorder underlay the offending and his time in residential rehabilitation whilst on bail. Further, the judge referred to and accepted as relevant the applicant’s remorse, his good prospects of rehabilitation if he remains drug free, his pleas of guilty and their significant utilitarian value and the increased difficulty of custodial conditions consequent upon COVID-19.
The sentencing judge found the offending to be serious — a mid-range example of an intrinsically serious offence which carries life imprisonment as the maximum penalty. The judge referred to the fact that the applicant had trafficked over 4.45 times the large commercial quantity of heroin and over twice that of methylamphetamine and that the value of the drugs was substantial and the applicant intended to make significant profits from them. Further, the judge noted that the applicant had relevant prior convictions for trafficking simpliciter and trafficking a commercial quantity of a drug of dependence, that the standard sentencing scheme applied and that the applicant fell to be sentenced as a serious drug offender.
An appeal against sentence on the basis of manifest excess requires that sentence under consideration must be one that is ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion.’[21] It is insufficient that the appellate court would have imposed a different sentence. Absent specific error, the sentence on its face must reveal underlying error.
[21]Osman v The Queen [2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
The sentences imposed and the order for cumulation by the sentencing judge reveal no such error.
The sentencing regime for trafficking offences is quantity based,[22] but there is nothing in the sentences imposed to indicate that the judge allowed the quantity to swamp other sentencing considerations. Given the applicant’s prior history, his status as a serious drug offender and the standard sentencing regime, the imposition of a sentence below the standard sentence reflects that the judge appropriately balanced all relevant sentencing considerations and, further, applied the principles of totality to avoid a crushing sentence.
[22]R v Pidoto & O’Dea (2006) 14 VR 269, 272–3 [11]–[15] (Maxwell P, Callaway, Buchanan, Vincent and Eames JJA); [2006] VSCA 185.
Conclusion
Leave to appeal is refused.
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