DPP (Cth) v KMD
[2015] VSCA 255
•17 September 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0080
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| K M D | Respondent |
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| JUDGES: | MAXWELL P, WEINBERG and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 March 2015 |
| DATE OF JUDGMENT: | 17 September 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 255 |
| JUDGMENT APPEALED FROM: | Director of Public Prosecutions v [KMD] (Unreported, County Court of Victoria, Judge Allen, 7 April 2014) |
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CRIMINAL LAW – Appeal – Sentence – Crown appeal – Drug trafficking (three charges) – High-end marketable quantities – Offender ‘near the top’ of syndicates – High culpability– Sentence 11 years’ imprisonment, non-parole period of 7 years – Whether manifestly inadequate – Comparable cases – Importance of quantitative comparisons – Offender also admitted importation offences – Whether adequately taken into account – Totality – General deterrence – Residual discretion – Sentence manifestly inadequate – Resentenced (14 years’ imprisonment, non-parole period of 11 years) – Crimes Act 1914 (Cth) s 16BA, Criminal Code (Cth) ss 302.3, 307.2, Criminal Code Regulations 2002 (Cth) sch 3.
CRIMINAL LAW – Sentence – Sentencing principles – Totality – Multiple offences – Judge applied ‘moderate and cumulate’ approach – Orthodox approach requires fixing of appropriate sentences for individual offences – Orthodox approach to be followed except in special circumstances – No justification for departure in present case – Johnson v The Queen (2004) 78 ALJR 616 followed.
CRIMINAL LAW – Sentence – Sentencing principles – Parity – Sentencing relativities – Comparison with low sentence for unrelated offences – Whether ‘understandable sense of grievance’ – No parity issue – Language of ‘grievance’ to be avoided – Objective test – Whether sentencing differential reasonably open – Teng v The Queen (2009) 22 VR 706 followed.
PRACTICE AND PROCEDURE – Appeal – Sentence – Crown appeal – Time limits – Extension of time – Appellant’s solicitor sought advice on time limit from Registry officer – Erroneous advice provided and relied on – No disregard of time limit – Bona fide attempt to comply – Extension granted – Criminal Procedure Act 2009 ss 288(1), 313.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms W Abraham QC with Mr R F Pirrie | Commonwealth Director of Public Prosecutions |
| For the Respondent | Mr O P Holdenson QC with Ms M J Mykytowycz | Lethbridges |
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MAXWELL P
WEINBERG JA
BEACH JA:
Summary
This appeal concerns sentencing for drug trafficking offences under the Commonwealth Criminal Code (‘the Code’). The respondent (‘KMD’) pleaded guilty to three separate charges of trafficking heroin. Each involved a ‘marketable quantity’ of heroin. Unusually, he also admitted two offences of importing a marketable quantity of heroin, and asked that those offences be taken into account in sentencing.[1]
[1]Crimes Act 1914 (Cth) s 16BA.
As will appear, the sentences imposed on the trafficking charges were, respectively, 8 years’, 7 years’ and 4 years’ imprisonment. The total effective sentence was 11 years’ imprisonment, and a non-parole period of 7 years was fixed.
The sentencing task was unusually complicated. First, each of the trafficking and importation charges comprised multiple transactions and the judge was presented with considerable detail about each of the transactions. Secondly, the principal trafficking charges (charges 1 and 2) rested on quite different conduct, detected in the course of separate investigative operations. Each of those operations gave rise to charges against a large number of other offenders. By the time KMD came to be sentenced, nine other offenders had already been sentenced in connection with the first operation and 13 others in connection with the second operation.
The Commonwealth sentencing scheme for offences of drug trafficking and importation is quantity-based. This means that the quantity trafficked (or imported) will ordinarily be a key indicator of offence seriousness, and a key point of comparison between cases.
Axiomatically, the sentencing synthesis in any given case must take into account the full range of relevant considerations, of which quantity is only one. But — to the extent that quantity bears on sentence — it is most important that the information provided to a sentencing judge about quantity be presented as simply and clearly as possible, to enable the judge to make meaningful judgments (and comparisons) about relative offence seriousness. Regrettably, that did not occur in the present case.
There were, however, three distinctive features of this sentencing task, which were highlighted on the plea and again on the appeal. First, and unusually in a trafficking case, KMD fell to be sentenced as a principal. The judge found that his position was ‘near the top’ of each of the relevant trafficking syndicates. Secondly, on each of the two principal trafficking charges, the quantity trafficked was at the highest end of the quantitative scale for a marketable quantity; that is, it was approaching 1.5 kilograms of pure heroin in each case. (The maximum penalty for trafficking in a marketable quantity is 25 years’ imprisonment.)[2] Thirdly, the judge was obliged to impose a heavier sentence on each of those two charges because an importation offence had also to be taken into account.
[2]Criminal Code s 302.3.
For reasons which follow, we have concluded that the sentences imposed did not adequately reflect these features, all of which pointed towards a more severe sentence. Nor, in our view, did the orders for cumulation sufficiently reflect the separate criminality involved in the principal trafficking charges.
The result, in our opinion, was a total effective sentence and non-parole period which are manifestly inadequate, that is, outside the range reasonably open in the circumstances of the case.[3] We would allow the Director’s appeal and resentence KMD to a total effective sentence of 14 years’ imprisonment. We would fix a non-parole period of 11 years.
[3]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (‘Karazisis’).
Circumstances of the offending
KMD pleaded guilty to three charges of trafficking in a marketable quantity of a controlled drug.[4] He also admitted two charges of aiding and abetting the importation of a marketable quantity of a border controlled drug.[5] He asked that the importation offences be taken into account in sentencing pursuant to s 16BA of the Crimes Act 1914 (Cth). As appears from the table below, those offences were taken into account in the sentences respectively imposed on charges 1 and 2 on the indictment.
[4]Contrary to ss 11.2A(1) of the Code in respect of two of the charges and 302.3(1) of the Code in respect of all three charges.
[5]Contrary to ss 11.2 and 307.2(1) of the Code.
KMD was sentenced as follows:
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a marketable quantity of a controlled drug (heroin) 25 years and/or 5000 penalty units 8 years Base[6] s 16BA Item 1 Aid and abet the import of a marketable quantity of a border controlled drug 25 years and/or 5000 penalty units Taken into account on Charge 1 2 Trafficking in a marketable quantity of a controlled drug (heroin) 25 years and/or 5000 penalty units 7 years 2 years s 16BA Item 2 Aid and abet the import of a marketable quantity of a border controlled drug 25 years and/or 5000 penalty units Taken into account on Charge 2 3 Trafficking in a marketable quantity of a controlled drug (heroin) 25 years and/or 5000 penalty units 4 years 1 year Total Effective Sentence: 11 years Non-Parole Period: 7 years Pre-sentence Detention Declared: 1088 days 6AAA Statement: 13 years 6 months (non-parole period 9 years 6 months) [6]Under Commonwealth sentencing law, cumulation of sentences is achieved by fixing later commencement dates for the second and subsequent sentences: Crimes Act 1914 (Cth) s 19.
As mentioned earlier, KMD’s offending came to light as a result of two separate investigative operations. The first, known as ‘Operation Raptor’, took place in 2009. In the period August – September 2009, KMD engaged in the conduct which gave rise to the first trafficking charge and the importation which constitutes the first of the admitted offences.
The second operation, known as ‘Operation Rattlesnake’, took place between August 2010 and April 2011. During that period, KMD engaged in the conduct which gave rise to the second and third of the trafficking charges and the second of the admitted importation offences.
As senior counsel for the Director emphasised on the appeal, the 2009 offending was quite separate from the 2010–2011 offending. The heroin imported and trafficked was supplied to different people in each period. This is relevant to the consideration of cumulation and totality.[7]
[7]See [89]–[97] below.
The 2009 offending
Operation Raptor was an investigation into alleged large-scale trafficking of heroin in the Collingwood and Richmond areas by two suspects, Thanh Hang Nguyen (‘Hang’) and Allan Yam (‘Yam’). The investigation revealed that Hang and Yam were organising couriers to bring heroin into Australia via Melbourne Airport. KMD, who was based in New South Wales at the time, was using his established contacts in Vietnam to assist Hang and Yam’s couriers to obtain heroin to import into Australia.
Between 12 August and 16 September 2009, KMD facilitated three importations of heroin. This conduct forms the basis of the first aid and abet charge taken into account under s 16BA. The importations are identified by the following known details:
Importation Date Importer Quantity of heroin 1 4 September 2009 Thi Kim Xuan Bui 8 ounces gross (112 grams pure) 2 10 September 2009 Joe Duc Nguyen 137 grams gross (68 grams pure) 3 15 September 2009 Than Thi Tran 8 ounces gross (63–94 grams pure) TOTAL Approx 18.5 ounces (488.35 grams) gross
(approx 57% purity – approx 243.85-275.5 grams pure)VALUE Wholesale: $194,250 – $212,750
Street: $442,950 (20% purity) – $885,900 (10% purity)
Hang and Yam were also relying on KMD as a domestic source of supply of heroin in Australia. On five occasions between 23 August and 16 September 2009, Yam travelled to Cabramatta, New South Wales, to purchase heroin from KMD. A system was developed by Hang and Yam which would facilitate the transactions with KMD for the sale of heroin at a typical price of approximately $10,000 per ounce.
The transactions which form the basis of charge 1 are identified by the following known details:
Transaction Date Quantity of heroin Payment 1 23 August 2009 10.5 ounces (294 grams) of mixed purity Unknown 2 25–26 August 2009 Unknown quantity $197,000 3 31 August 2009 34.5 ounces (976.35 grams) of mixed purity $345,000 4 7 September 2009 Unknown quantity Unknown 5 14 September 2009 808 grams (pure component) $240,000 in part payment TOTAL Approx 95 ounces (approx 2670.35 grams) gross
plus two unknown quantities (approx 57% purity)VALUE Wholesale: $1,194,550 $1,289,500
Street: $2,760,000 (20% purity) $5,500,000 (10% purity)
The 2010–2011 offending
Operation Rattlesnake was an investigation designed to uncover an alleged drug syndicate involved in the importation of heroin from Vietnam to Australia through the use of various couriers who imported the drug by concealing it within their bodies. The investigation was carried out by State and Federal agencies between August 2010 and April 2011.
Charge 2 is concerned with KMD’s supply of heroin to two traffickers, Lon Bui and Hanh Tu Vo, who on several occasions trafficked heroin, often at KMD’s direction, by travelling from Victoria to New South Wales and returning to Victoria to on-sell it. The transactions which form the basis of charge 2 are identified by the following known details:
Supply date Supplied quantity of heroin 1 2 November 2010 4 ounces 2 9 November 2010 10 ounces 3 18 November 2010 10 ounces 4 26 November 2010 – 4 December 2010 10 ounces 5 14 December 2010 6 ounces 6 16 December 2010 – 22 December 2010 Unknown quantity 7 30 December 2010 Unknown quantity 8 22 February 2011 8 ounces 9 21 March 2011 10 ounces 10 22 March 2011 14 ounces 11 5 April 2011 2 ounces 12 9 April 2011 5 ounces TOTAL 79 ounces (approx 2716 grams) gross
plus two unknown quantities
(approx 70% purity)VALUE Wholesale: $829,500 $908,500
Street: $2,850,000 (20% purity) $5,700,000 (10% purity)
Between 18 September and 29 December 2010, KMD also facilitated arrangements for the provision of heroin to couriers in at least four separate importations of heroin. This conduct forms the basis of the second aid and abet charge taken into account under s 16BA. The importations are identified by the following known details:
Importation Date Importer Quantity of heroin 1 18 September 2010 Van Thi Ngoc Nguyen 7 ounces 2 22 September 2010 Van Vo 5 ounces 3 21 October 2010 Loan Thuy Vo 5 ounces 4 29 December 2010 ‘Identified Female’ 4.5 ounces TOTAL 21.5 ounces (602.33 grams) gross
(70% purity – 421.63 grams pure)VALUE Wholesale: $225,750 $247,250
Street: $632,000 (20% purity) $1,260,000 (10% purity)
Charge 3 relates to two separate transactions for the sale of heroin, which took place in Sydney between KMD and Donny Nguyen. The heroin had a wholesale value in the range $168,000–$184,000. On 1 February 2011, police in Sydney observed the exchange of six ounces of heroin between Trung Nguyen, acting at KMD’s direction, Dien Bao Nguyen and Donny Nguyen. Donny Nguyen and Dien Bao Nguyen were arrested and the six ounces of heroin was found concealed in Dien Bao Nguyen’s underpants. Donny Nguyen was arrested and released. On 7 February 2011, KMD supplied Donny Nguyen with a further 10 ounces of heroin before Donny Nguyen returned to Melbourne where he was arrested with the 10 ounces of heroin hidden in his shorts. The transactions are identified by the following known details:
Supply date Supplied to Supplied quantity of heroin 1 1 February 2011 Dien Bao Nguyen 6 ounces gross 2 7 February 2011 Donny Nguyen 10 ounces gross TOTAL 16 ounces (455.4 grams) gross
(73% purity 335.46 grams pure)VALUE Wholesale: $168,000 - $184,000
Street: $490,000 (20% purity) – $981,000 (10% purity)
Extension of time
KMD was sentenced on 7 April 2014. Under s 288(1) of the Criminal Procedure Act 2009, an appeal by the Director against the sentence had to be commenced by the filing of a notice of appeal within 28 days after that date. The notice of appeal therefore had to be filed on or before 5 May 2014.
On 14 April 2014, a solicitor from the office of the Director contacted the Court of Appeal Registry, inquiring whether the Easter public holidays (Good Friday and Easter Monday) and the Anzac Day public holiday were counted in the calculation of the 28 days. Later that day, a Registry officer advised the solicitor by email that the public holidays were not to be counted for this purpose, meaning that if a sentence was handed down on Monday 7 April, the 28th day would fall on 8 May.
This advice was incorrect. There was no basis for excluding the public holidays from the calculation of the time for filing of the notice of appeal. The office of the Director relied on the advice, however, and the Director’s notice of appeal and written case were filed on 8 May 2014. At the time of filing, a senior solicitor in the office of the Director confirmed in writing the previous advice from the Registry.
As a result, the Director now applies under s 313 of the Criminal Procedure Act2009 for an extension of time within which to file the notice of appeal. The application was strenuously opposed by those representing KMD. They submitted that the conduct of the solicitors representing the Director was ‘simply unsatisfactory’, on the basis that:
·there was no need to seek advice from the Registry;
·it was well known that Registry staff could not, and should not, be called on to provide advice ‘concerning the operation and effect of the law’; and
·the advice purportedly given by the Registry officer should not have been relied upon.
In our view, these criticisms are well-founded. It is the responsibility of any legal practitioner conducting litigation in any court to be fully familiar with the relevant time limits and, in particular, with the rules with respect to the calculation of time. The provisions governing the filing of the notice of appeal in the present case are perfectly clear. It was quite inappropriate for the solicitor to seek ‘advice’ from the Registry and, likewise, to rely on the ‘advice’ without independently verifying its correctness.
That being said, however, we consider that this is an appropriate case to exercise the discretion to grant an extension of time. We reject the submission for KMD that it was a case of ‘blatant disregard’ of the time limits. Plainly enough, it was no such thing. The unchallenged evidence before the court is that, far from disregarding the time limit, the solicitor took steps to ascertain when time expired. On the basis of the information provided by the Registry, arrangements were then made to ensure that the documents were filed before the date indicated. In short, the solicitor’s intention at all times was to ensure that the notice was filed in time.
Two final points should be made. First, the initiation of a Director’s appeal against sentence is a matter of some significance, the appeal being brought in the public interest and for the maintenance of sentencing standards. It seems to us to be most undesirable that the filing of the present notice of appeal should have been left until (what was wrongly believed to be) the very last day for filing. Leaving it so late creates obvious — and wholly unnecessary — risks of procedural non-compliance. Secondly, this case should serve as a salutary reminder to Registry officers that they should not respond to requests for advice of this kind.
The seriousness of the offending
The sentencing judge referred to the ‘very deep gravity’ and the ‘gross seriousness’ of this offending.[8] These descriptions were, with respect, entirely justified having regard to the role which KMD played, his culpability and the quantities of heroin involved. We deal with each of these matters in turn.
[8]Reasons [27].
As to KMD’s role, his Honour said:
I do not think that it is necessary for me to decide precisely where you were in the hierarchy. On any view, you were somewhere near the top. As I understand it, that is accepted by your counsel. You may have, from time to time, sought permission and followed instructions of others, but at the very least, you were an extremely highly placed and trusted facilitator in relation to all of this conduct. It is clear from the evidence before me that you, in turn, were giving instructions, permissions, authority to others who acted below you. At the end of the day, it is accepted by your counsel that you must be sentenced on the basis that you carried out an important and high role in these two syndicates, each of which was involved in the trafficking of heroin in large quantities, at the high end of the marketable range.[9]
[9]Reasons [34] (emphasis added).
On the appeal, counsel for KMD drew attention to the judge’s statement that KMD ‘may have, from time to time, sought permission and followed instructions of others’, and to the description of him as a ‘facilitator’. This description, it was said, was ‘not all that different’ from that which would be applied to anyone involved in trafficking above the level of ‘mere courier’.
Although counsel for the Director did not take issue with his Honour’s description of KMD’s role, they submitted that the critical findings were that he was ‘somewhere near the top’, was ‘extremely highly placed and trusted’ and had an ‘important and high role’. They submitted that there should be no diminution of the significance of those findings.
The Director’s submission should be upheld, in our view. A review of the factual basis of the plea reveals that, in respect of the trafficking offences, KMD was properly described as ‘near the top’. The prosecutor was careful to point out to his Honour that it was only in respect of the importation offences that KMD had been a ‘facilitator’. KMD had pleaded guilty to the trafficking charges as a principal, as a supplier of heroin to wholesalers, and there was ‘absolutely no evidence’ that he had engaged in that conduct at the direction or under the instruction of anyone.
As to culpability, KMD’s motivation was purely financial. The judge made the following finding:
As far as your financial benefit was concerned, it was clearly a profitable business from your point of view. The evidence reveals, as I have said, not only were you in possession of a large quantity of jewellery and cash when you were apprehended on 15 April 2011, but you had acquired a half-share in a milk bar business which had been purchased for $50,000; that you had assisted your sister and your cousin, one of the co-accused, financially in significant ways. For example, you had paid your cousin’s mortgage, of approximately $174,000, on her home in Melbourne in order to assist her on one occasion. The evidence reveals that very large sums of money were transferred to Vietnam with your cousin's assistance to various members of your family and that you sent large sums of money to ‘Ut’ when she was travelling in Vietnam.[10]
[10] Reasons [35]. The role of ‘Ut’ is discussed below.
It follows, as the Director submitted on the appeal, that KMD’s culpability was very high. His participation in these drug enterprises was entirely voluntary. He was not a gambler, was not under financial pressure and was not a drug user himself. He was evidently driven solely by the prospect of financial reward, and must be taken to have calculated that taking the risk of a lengthy prison term was justified by the potential rewards.
As to quantity, his Honour described the quantity trafficked under each of charges 1 and 2 as being ‘at the high end of the marketable quantity range’. Quantity is, of course, a very significant sentencing factor, given that this is a quantity-based sentencing regime.[11] As will appear, there was some imprecision in the quantification of the amounts of pure heroin involved but it is clear that the quantities trafficked were at the highest end of the quantitative range for marketable quantity offences.[12]
[11]Adams v The Queen (2008) 234 CLR 143 (‘Adams’); see DPP (Cth) v Thai [2014] VSCA 122 [9] (‘Thai’).
[12]See [63] below.
General deterrence
The sentencing reasons made no mention of general deterrence. This is surprising since, as the Director’s submission correctly pointed out, general deterrence is a matter which must be given very great weight in sentencing for offences of this kind.
The line of authority in this Court is clear and compelling. In R v Su,[13] the Court said:
[13](1997) 1 VR 1.
The Court of Criminal Appeal has said over the years, and this court has re‑iterated, that the elements of punishment and general deterrence are of particular importance, that those who engage in this trade, which has not inappropriately been termed ‘evil’, play for high stakes.[14]
The following year, in R v Carey,[15] Winneke P said:
[T]hose who engage in the illicit drug trade, no matter what their status in the enterprise, must expect heavy sentences in which general deterrence will be the principal purpose of the punishment …[16]
[14](1997) 1 VR 1, 76.
[15](1998) 4 VR 13 (‘Carey’).
[16](1998) 4 VR 13, 17; also see R v Pang (1999) 105 A Crim R 474, 476; Wong v The Queen (2001) 207 CLR 584, 607–8 [64].
The Director also relied on the following propositions, laid down by the NSW Court of Criminal Appeal in 2010, which Maxwell P endorsed in Nguyen & Phommalysack v The Queen:[17]
The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.[18]
[17](2011) 31 VR 673 (‘Nguyen and Phommalysack’).
[18](2011) 31 VR 673, 681–2 [34]. The propositions were enunciated in R v Nguyen (2010) 205 A Crim R 106, 126–8 [72] (‘Nguyen’).
In Thai, after quoting the second of these propositions, the Court said:
The importance of achieving consistency with sentences passed in comparable cases goes hand in glove with that requirement [of general deterrence].[19]
[19][2014] VSCA 122 [11].
As the Director submitted on the appeal, general deterrence was of particular importance in the present case. As we have said, KMD chose to be a drug trafficker for reasons of pure greed. He made a calculated decision to take the ‘risk/reward’ gamble, and did so repeatedly during the periods August–September 2009 and November 2010–April 2011. Moreover, as noted earlier, the trafficking which constitutes charge 3 continued even after KMD’s customer had been arrested.[20] The sentence imposed needed to send a powerful message to others like him.
[20]See [21] above.
Quantity of drugs trafficked/imported
Each of the charges to which KMD pleaded guilty involved trafficking in a ‘marketable quantity’ of heroin. Each of the importation offences which he asked to have taken into account in sentencing likewise involved a ‘marketable quantity’ of heroin.
The Commonwealth Code (like the corresponding State statute, the Drugs, Poisons and Controlled Substances Act 1981) specifies for each drug the minimum quantity which will constitute a marketable quantity of that drug. Under both schemes, the specified minimum is expressed as a quantity of the drug in pure form. There is no provision for marketable quantities of drugs when mixed with other substances.[21]
[21]Whereas in relation to both ‘commercial quantity’ and ‘large commercial quantity’ offences, the Victorian statute specifies (in the alternative) quantities of each drug in pure form and in a mixture; see Drugs, Poisons and Controlled Substances Act 1981 s 70, sch 11.
For trafficking offences,[22] sch 3 to the Criminal Code Regulations 2002 (Cth) (the ‘Regulations’) specifies for each ‘controlled drug’ the following quantities:
·a trafficable quantity;
·a marketable quantity; and
·a commercial quantity.[23]
In each case, the quantity specified is the minimum necessary to establish the relevant offence with respect to that drug.
[22]Which are offences with respect to ‘controlled drugs’: see Code s 302.3.
[23]Criminal Code Regulations 2002 (Cth) sch 3.
In the case of heroin trafficking, the minimum specified for a marketable quantity is 250 grams, and the minimum specified for a commercial quantity is 1.5 kilograms. Accordingly, the offence of trafficking in a marketable quantity of heroin will be committed when the quantity trafficked falls in the range between 250 grams and 1.5 kilograms.
To complicate matters, however, the importation offences under the Code involve only two quantity thresholds. Hence sch 4 to the Regulations specifies for each ‘border-controlled’ drug the minimum quantity which will constitute:
·a marketable quantity; and
·a commercial quantity.[24]
In the case of heroin, the minimum for a marketable quantity is 2 grams (rather than 250 grams, as it is for the trafficking offences) and the minimum for a commercial quantity is 1.5 kilograms (the same as for the trafficking offences).
[24]Ibid sch 4.
Relevantly for present purposes, therefore, the offence of trafficking in a marketable quantity of heroin can involve anything from 250 grams up to (but not including) 1.5 kilograms. The offence of importing a marketable quantity of heroin, on the other hand, can involve anything from 2 grams up to (but not including) 1.5 kilograms.
This distinction appears to have been overlooked in the present case, as the Director’s appeal submission contained the following erroneous statements in relation to the trafficking charges to which KMD pleaded guilty:
A marketable quantity of heroin is greater than 2 grams pure and less than 1.5 kilograms pure. … Each [of charges 1 and 2] was upwards of 700 times the marketable quantity of 2 grams pure heroin.
The correct position was that each of those charges involved ‘upwards of’ five times the minimum marketable quantity of 250 grams pure heroin.[25]
[25]The error was acknowledged by the Director when the matter was drawn to his attention after the hearing.
As noted earlier, charge 1 comprised five separate occasions of trafficking over a period of approximately four weeks. Of these:
·three transactions alone involved 2.246 kilograms of heroin powder; and
·the other two transactions involved a large but unknown quantity.
Charge 2 comprised 12 trafficking transactions over a period of approximately five months, involving a total of 2.212 kilograms of heroin powder. Charge 3 involved trafficking over a seven day period, with two transactions and a total quantity of 448 grams of heroin powder.
Quantity-based sentencing
In Adams,[26] the High Court confirmed that sentencing for offences of drug importation was governed by ‘a quantity-based penalty regime’.[27] (The same is true for trafficking offences under the Code.) The Court held that the applicable provisions did not permit a sentencing judge to differentiate between drugs based on an assessment of the relative harm likely to be caused. Although the Code differentiates between drugs in designating the trafficable and commercial quantities, the Court said, the same penalty regime applied to the quantities so designated.[28]
[26](2008) 234 CLR 143.
[27]Ibid 146 [2]. The same is true of State trafficking offences: see R v Pidoto and O’Dea (2006) 14 VR 269.
[28]Adams 146 [3].
Thus, the same maximum penalty is prescribed for importing a commercial quantity (or a marketable quantity, as the case may be) of any of the controlled drugs. In Adams,[29] the drug which had been imported was MDMA. The commercial quantity of MDMA having been specified, the Court said, it was ‘a matter of mathematical calculation’ to determine the relationship between the quantity imported and the specified commercial quantity.[30]
[29](2008) 234 CLR 143.
[30]Ibid 147 [8].
As this Court has previously held, quantity is a very significant indicator of offence seriousness. Other things (such as role and culpability) being equal, it is the measure of seriousness. The propositions formulated by the New South Wales Court of Criminal Appeal in Nguyen[31] (which were cited by the prosecutor on the plea in the present case) include the following, which are of particular relevance to the present question:
[A]lthough the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
[T]he statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type.[32] In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.[33]
[31](2010) 205 A Crim R 106.
[32]See also Chan, Lo & Nguyen [2010] NSWCCA 153 [114]–[115].
[33](2010) 205 A Crim R 106, 126–8 [72] (citations and numbering omitted) (emphasis added). See Nguyen v The Queen (2011) 31 VR 673, 682 [34].
As the High Court stated in Hili v The Queen,[34] consistency in federal sentencing ‘is to be achieved through the work of the intermediate courts of appeal’.[35] And in seeking consistency, the Court said, ‘sentencing judges must have regard to what has been done in other cases’.[36] Past sentencing decisions
can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence.[37]
Unsurprisingly, therefore, the parties to sentence appeals invariably rely on other sentencing decisions for the purpose of comparison.[38]
[34](2010) 242 CLR 520.
[35]Ibid 537 [56].
[36]Ibid 536 [53].
[37]Ibid 537 [54] (emphasis altered), quoting Simpson J in DPP (Cth) v De La Rosa (2010) 243 FLR 28, 98 [304].
[38]See, eg, Lau v The Queen [2011] VSCA 324 [50]–[53] (‘Lau’); Alavy v The Queen [2014] VSCA 25 [21]–[24]; R v Nikolovska (2010) 209 A Crim R 218 [65].
Since, in cases like the present, quantity is a guide to offence seriousness, comparisons by reference to the quantity of drug trafficked or imported will usually be illuminating. Such comparisons are straightforward enough where the two cases to be compared involve the same drug. Very often, however, comparisons will need to be made between cases where different drugs are involved — for example, where one case involves heroin and the other involves cocaine.
No sentencing judge presented with the raw quantities of drugs involved is in a position to make a sensible comparison. Likewise, to describe the amount trafficked — as the Director did on this appeal — as representing ‘more than 120 times the minimum marketable quantity’ provides little meaningful guidance as to the seriousness of the offence, in either absolute or relative terms. The same can be said of references to the estimated wholesale or retail value of a particular quantity of drugs.
As Maxwell P suggested in Pham v The Queen,[39] if a past sentence is to give a sentencing judge a meaningful basis for comparison, the quantities involved must be converted to a common denominator.[40] Fortunately, this can be done very easily. Since the upper limit of marketable quantity for each drug is the specified minimum commercial quantity, it is possible to convert every marketable quantity into a percentage of the commercial quantity (CQ) for that drug. Moreover, that conversion can be done with precision. As the High Court said, it is ‘a matter of mathematical calculation’.[41] In Holder,[42] this court said:
For the purpose of ascertaining the relative seriousness of one trafficking (or importation) offence as against another, it will ordinarily be of assistance to convert the weight of the drug into multiples of LCQ (or CQ, if the offence relates to a commercial quantity). Whenever relative seriousness is in issue in this way, prosecutors and defence counsel should present their plea submissions accordingly.[43]
[39][2014] VSCA 204 (‘Pham’).
[40]Ibid [34]; see DPP v Holder (2014) 41 VR 467, 470 [10] (‘Holder’).
[41]Adams (2008) 234 CLR 143, 147 [8].
[42](2014) 41 VR 467.
[43]Ibid 470 [10].
An example will illustrate. Let it be assumed that the sentencing court is dealing with an offender who trafficked 750 grams of heroin. Under the Regulations, that represents 50 per cent of a CQ. The prosecution wishes to rely — for the purposes of comparison — on the sentence imposed on a different offender, who imported 750 grams of cocaine. Because the CQ of cocaine is 2 kilograms, that quantity represented only 37.5 per cent of a CQ. Although the raw quantities were the same in each case, converting them into percentages of CQ in this way would tell the sentencing court that — so far as quantity is a measure of seriousness — the case before the court was materially more serious than the case relied on as the comparator.
In the present case, the available information did not permit such mathematical precision, although this was not made clear to the sentencing judge until immediately before he handed down the sentence. The material before his Honour appeared to specify the purity of the heroin the subject of the first two trafficking charges. As a result, after reserving his sentencing decision at the conclusion of the third day of the plea hearing, the judge used the stated purity percentages to undertake his own calculations.
Just before commencing to deliver his sentence, his Honour informed the prosecutor that those purity percentages produced the result that the quantity of pure heroin trafficked on charge 1 was approximately 1.52 kilograms and on charge 2 approximately 1.91 kilograms — in both cases, more than a commercial quantity. The prosecutor then explained that, because a number of the amounts trafficked had not been physically seized, it had not been possible to calculate purity precisely. That was why the amounts trafficked were described as ‘high end marketable quantities’. As a result, his Honour was told, he should ignore the purity estimates.
This sequence of events seems, with respect, quite unsatisfactory, given the significance of quantity as a guide to offence seriousness. Similar imprecision surrounded the figures provided on the appeal. As already noted, the Director’s submission asserted that, for each of charges 1 and 2, the amount trafficked was ‘upwards of 700 times the marketable quantity of 2 grams pure heroin’. (This was not disputed by counsel for the respondent). Ignoring the error identified earlier,[44] the submission meant — as a matter of pure arithmetic — that the amount trafficked was asserted to be in excess of 1.4 kilograms of pure heroin.
[44]For trafficking offences, the minimum marketable quantity is 250 grams, not 2 grams.
Following the appeal hearing, the Court enquired of the Director how that quantity had been calculated. The Director’s response was in these terms:
Calculation of the quantity for each charge was achieved by a mathematical formula applying the lowest available purity percentages from the seized amounts to the gross amounts of the alleged transactions. When the relevant percentages were applied to the known gross quantities, the amounts were in excess of a marketable quantity of 1.5 kilograms pure. However, for the purposes of the plea, the Crown in effect acknowledged [that] the figures and percentages used (plus the unknown quantities) carried a degree of estimation and extrapolation that enabled a plea of guilty to a high end marketable quantity. The learned sentencing judge was invited to and did sentence on this basis.
At all times the details of the transactions relating to each charge were before the learned sentencing judge to enable him to establish the relevant level of criminality by reference not just to quantity but to conduct, price and the number of transactions.
With respect, it is not appropriate to leave it to a sentencing judge to ‘establish the relevant level of criminality’ in this way. As the judge in the present case told the prosecutor — on more than one occasion — what he wanted was much less detail about ‘who went where, who was observed doing what and this, that and the other’,[45] and much greater clarity and specificity about the quantities trafficked and the amounts paid. At one point, his Honour asked the prosecutor to
just tell me what it is alleged was trafficked on each count, what the value is approximately in relation to each count rather than me trying to work it out because I might get it wrong…
[45]At one stage, his Honour described the factual detail as ‘all this claptrap’.
As we have said, the ‘relevant level of criminality’ revealed by the quantity trafficked (or imported) can be simply conveyed to a sentencing judge by expressing the quantity as a percentage (or a multiple, as the case may be)[46] of the applicable CQ. In the present case, the quantity trafficked on each of charge 1 and charge 2 exceeded 1.4 kilograms of heroin, which means that in each case it exceeded 93 per cent of CQ. Plainly enough, that falls at the highest end of the range for a marketable quantity offence.
[46]See, eg, Holder (2014) 41 VR 467.
As pointed out earlier, quantity is only one of the sentencing considerations to be taken into account. But it will usually be a very important consideration, and it is essential that relevant information on quantity be presented as simply and clearly as possible.
The sentences on charges 1 and 2 had also to encompass the importation offences which KMD admitted. They involved, respectively:
·between approximately 244 and 275 grams of pure heroin; and
·approximately 421.6 grams of pure heroin.
Expressed as percentages of CQ, the imported quantities were between approximately 16.3 and 18.3 per cent of CQ, and 28.1 per cent of CQ respectively.
In summary, then, this case had a number of distinctive features, as follows:
(a) the trafficking the subject of charges 1 and 2 involved, in each case, a quantity at the very upper end of marketable quantity;
(b) KMD’s role in the trafficking was ‘near the top’;
(c) his culpability was very high; and
(d) the sentence to be imposed on each of charges 1 and 2 had to be increased to take into account the importation offences which KMD had admitted.
Comparable cases
In the present case, the judge specifically asked the prosecutor whether he would be referring to any ‘similar scale trafficking cases’. The prosecutor responded in the negative, saying that there was ‘very little directly on the point’. Counsel then referred the judge to three sentencing decisions involving trafficking (or importation) of a commercial quantity, in one case involving multiples of a commercial quantity. As already noted, that offence carries a maximum of life imprisonment and — because of the greater quantity — is by that measure significantly more serious.
It is not clear why the judge was not referred to tables of sentences imposed for offences with respect to a marketable quantity of drugs. At the time of sentence, at least two such tables were available, the first being that attached to the decision of this Court in OPQ v The Queen,[47] the second being the table attached to the decision of this Court in Lau.[48]
[47](2012) 221 A Crim R 424 sch 1 (‘OPQ’).
[48][2011] VSCA 324.
As senior counsel for the Director submitted on the appeal, a high end marketable quantity offence may, depending on the circumstances, be more serious — and call for a heavier sentence — than a low end commercial quantity offence. To that limited extent, reference to commercial quantity sentences may be of assistance in a case involving marketable quantity offences. As will appear, we have identified several such decisions for that purpose.[49]
[49]See [80] below.
But the decisions to which the prosecutor referred could not have assisted the judge. The first of the three[50] involved a charge of conspiracy to traffick a commercial quantity of heroin and methylamphetamine. (The offender also pleaded guilty to a charge of conspiracy to import heroin and a money laundering charge involving $4.7 million). So substantial was the trafficking, and so significant was the offender’s role, that the sentencing judge described it as ‘approaching the worst category of conduct for which life imprisonment would be appropriate’.[51] The sentence he would have imposed on the trafficking charge was 27 years’ imprisonment. Because, however, of the offender’s substantial assistance to the authorities and early plea of guilty, the judge reduced the sentence by 50 per cent, to the 13.5 years referred to by the prosecutor in the present case.[52] In short, there was no possible comparison to be drawn between that case and this.
[50]R v Hong Phong Le [2008] NSWDC 320.
[51]Ibid [22].
[52]Ibid [27]–[31].
The second case[53] involved a conspiracy to traffic more than 3.5 kilograms of pure heroin (or more than two multiples of CQ). That offence attracted a sentence of 12 years’ imprisonment. The principal charge, however, was that of money laundering, involving the sum of more than $15 million. On a Crown appeal, the sentence on that charge was increased from 10 years’ imprisonment to 13 years’ imprisonment, and the total effective sentence was increased to 16 years’ imprisonment, with a non-parole period of 10 years and 8 months.[54] Again, the case had no relevant similarity to the present case.
[53]R v Van Loi Nguyen (2010) 204 A Crim R 246.
[54]Ibid 258–9 [68].
The third case referred to was that considered by this Court in Trandy v The Queen.[55] The senior person in the trafficking syndicate, Trandy, was sentenced for two separate money laundering offences (involving more than $7.5M) and for conspiracy to traffick in a commercial quantity of heroin. He was sentenced to nine years’ imprisonment on the latter charge.[56] Given the money laundering offences, the prosecutor’s reference to the total effective sentence (13 years with a minimum of 11 years) could not have assisted the sentencing judge in dealing with the present case.
[55][2009] VSCA 321.
[56]Ibid [9].
Unsurprisingly, his Honour responded to these references by saying to the prosecutor, ‘It’s hard to see the pattern in their sentences’. He subsequently told defence counsel that he viewed the other decisions as ‘a distraction’.
On the appeal, senior counsel for the Director relied on the table of marketable quantity sentences which was provided to the Court in Director of Public Prosecutions (Cth) v Kim Hoang Thai[57] and which was ultimately attached to the reasons for judgment. (That decision was handed down after sentence was delivered in the present case.) The Director also relied on the decision in Thai itself, where the offender had pleaded guilty to:
·conspiracy to import a marketable quantity of heroin, being approximately 1.25 kilograms of pure heroin (83 per cent of CQ); and
·trafficking a marketable quantity of heroin, being 343 grams of pure heroin (22.9 per cent of CQ).
She was sentenced on the first charge to seven years’ imprisonment and on the second charge to four years’ imprisonment. The total effective sentence was nine years’ imprisonment, and a non-parole period of five years was fixed.
[57][2014] VSCA 122.
In dismissing the Director’s appeal against sentence, the Court in Thai said:
Putting aside the requirements of parity, we would accept that the sentence imposed in this case was inadequate. Despite the substantial mitigatory considerations which operated in favour of Thai, the nature and gravity of her offending, the high level of her moral culpability and the undoubted need for general deterrence of this kind of criminality would ordinarily demand a significantly more punitive penalty. Judged as best we can by comparison to otherwise comparable cases, a sentence of nine years’ imprisonment with a non-parole period of five years for the nature and gravity of offending here involved presents as prima facie too merciful.[58]
[58]Ibid [22] (emphasis added).
As the court noted, the quantity imported was ‘substantial’.[59] It was ‘only just shy of’ the commercial quantity threshold of 1.5 kilograms.[60] No fewer than nine couriers had been involved in importing the heroin into Australia, and the offender had
played an active hands-on and managerial role in the enterprise and her involvement was prolonged and critical. The extent of her moral culpability was high.[61]
[59]Ibid [9].
[60]Ibid [9].
[61]Ibid [10].
What was critical to the failure of the Director’s appeal, however, was the Court’s acceptance that the sentencing judge had been bound to take the requirements of parity into account. The offender’s de facto husband (‘Vo’) was the principal offender but he had received a much lower sentence. The Court said:
Therein, it seems to us, lies the essence of the matter. Vo’s level of criminality was greater than Thai’s and yet Vo received a sentence of only two years and 10 months’ imprisonment with a minimum term of only one year. Certainly, the reasons for that included Vo’s parlous state of health and the extent of his cooperation with the authorities. But, as the judge said, the fact that Vo received a much lesser sentence than Thai is in one sense hardly fair; especially given that it was Vo who pushed and pulled Thai into the ways of offending. More precisely, even though Vo’s particular circumstances demanded that he receive a lesser sentence than Thai, the parity principle still required that, up to a point, due proportion be maintained between Vo and Thai in light of their personal circumstances and the respective degrees of their individual criminality. The sentence which the judge imposed was calculated to achieve that balance.[62]
[62]Ibid [25].
As already noted, the distinctive features of the present case (in relation to charges 1 and 2) are KMD’s role, the quantities trafficked and his high culpability. In each of those respects, the position of the offender in Thai was similar. It is therefore significant for present purposes that, but for the constraint of parity, the Court in Thai would have regarded the sentence of seven years imposed on the trafficking count as inadequate, and the offending as requiring ‘a significantly more punitive penalty’.
Very many of the other ‘marketable quantity’ sentences for Commonwealth drug offences involve couriers, they being the participants typically at greatest risk of interception and arrest. Attached to Maxwell P’s reasons in Pham was a schedule of sentences imposed on couriers who had pleaded guilty to offences of importing (or attempting to possess) border-controlled drugs, and who had no relevant prior convictions.[63]
[63]Pham [2014] VSCA 204.
Given the distinctive features of KMD’s offending, the best available guidance to sentencing range is provided by considering the sentences imposed in three categories, that is, sentences respectively imposed:
(e) for low-end commercial quantity offences;
(f) on couriers for very high-end marketable quantity offences; and
(g) on those with more significant roles, for offences involving upper end marketable quantities.
Table A annexed to these reasons includes sentences in each of these categories.
These sentences are all drawn from published tables.[64] The significance of the ‘courier’ sentences, of course, is that a person in KMD’s position — ‘near the top’ — would be expected to receive a significantly higher sentence than a courier for an offence involving a comparable quantity.
[64]See Nguyen and Phommalysack (2011) 31 VR 673; Thai [2014] VSCA 122; OPQ (2012) 221 A Crim R 424; Pham [2014] VSCA 204.
Taking into account the other offending
As noted at the outset, in imposing sentence on KMD for charges 1 and 2, the judge took into account the importation offences which KMD had admitted. It was common ground that the correct approach to determining sentence in such circumstances was as described by the NSW Court of Criminal Appeal in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002.[65]
[65](2002) 56 NSWLR 146.
In that case, the principal judgment was given by Spigelman CJ (with whom Wood CJ at CL and Grove, Sully and James JJ agreed). His Honour emphasised that the sentencing court was ‘concerned and concerned only with’ imposing sentence for the principal offences before the court, ie those to which the offender had pleaded guilty.[66] In his Honour’s view, it was
no part of the task of the sentencing court to determine appropriate sentences for [the additional offences] or to determine the overall sentence that would be appropriate for all the offences and then apply a ‘discount’ for the use of the procedure.[67]
[66]Ibid 157-8 [35] (emphasis in original).
[67]Ibid 158 [39].
What had to be done, however, was to
identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge.[68]
As a result, his Honour said
Although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be give greater weight by reason of the course of conduct in which the accused has engaged. The second is the community’s entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence.[69]
[68]Ibid 158 [40].
[69]Ibid 159 [42].
Spigelman CJ described the following propositions as ‘well established and … uncontroversial’:
First, the entire point of the process is to impose a longer sentence … than would have been imposed if the primary offence had stood alone. Secondly, it is wrong to suggest that the additional penalty should be small. Sometimes it will be substantial.[70]
[70]Ibid 155 [18] (citations omitted).
The judge in the present case having been referred to this decision, he stated as follows:
In essence, as both parties have agreed should be the case here, the court held that the point of the process of taking into account other offences as provided for in s 16BA of the Commonwealth Crimes Act is to impose a longer sentence than would be imposed for the principal offence to which you have pleaded guilty had that offence stood alone. As the court made clear, in that case:
‘Although the court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would have otherwise been appropriate for the particular offence.’
That is what we will do.
The contention advanced by the Director on this appeal was that, although his Honour expressed his intention to impose heavier sentences on charges 1 and 2 than would otherwise have been appropriate, the sentences actually imposed did not reflect any such increase in sentence. Although the importation offence involved much smaller quantities than did the trafficking the subject of charges 1 and 2, the quantities are nonetheless significant. As noted earlier, the quantities imported were, respectively, between 16.3 and 18.3 per cent of CQ and 28.1 per cent of CQ. An examination of the table appended to Maxwell P’s reasons in Pham[71] reveals that the importation, by a courier, of a quantity between 16 per cent and 30 per cent of CQ would attract a sentence of between six and nine years’ imprisonment.
[71][2014] VSCA 204.
In our opinion, that submission has real force, especially when regard is had to the comparable sentences in Table A. As far as we are aware, none of those sentences involved the taking into account of another admitted offence.
Totality and sentencing for multiple offences
The principle of totality is invoked when an offender is sentenced for more than one offence. Stated simply, the principle requires that the total sentence imposed on the offender should be proportionate to the ‘total criminality’ constituted by the conduct the subject of the separate offences.
The jurisprudence of this Court recognises that there are two possible approaches to the structuring of a sentence where multiple offences are involved. The first approach is to impose what the judge regards as the appropriate sentence on each individual charge and then rely on the statutory presumption of concurrency, in whole or part, to arrive at an appropriate total sentence. The second approach involves lowering the individual sentences below what would otherwise be appropriate, to enable a portion of each sentence to be cumulated to arrive at the total effective sentence.[72] The latter approach is referred to as the ‘moderate and cumulate’ approach.[73]
[72]See Mill v The Queen (1988) 166 CLR 59, 62-3.
[73]See R v Izzard (2003) 7 VR 480, 485–6 [21]–[23].
In R v Lomax,[74] decided in March 1997, Ormiston JA expressed the view that the first approach was preferred. That is, it was
preferable to impose individual sentences which so far as practicable are appropriate for each count and to make them concurrent or largely so, even to the extent of directing concurrency to a greater degree than might otherwise have been justified, rather than to impose lower sentences which are individually appropriate and by making numerous orders for cumulation to reflect each separate episode of offending, albeit to achieve the very same end of a just total effective sentence.[75]
His Honour gave clear and cogent reasons for this preference.[76]
[74][1998] 1 VR 551.
[75]Ibid 563.
[76]Ibid 564.
In Director of Public Prosecutions v Grabovac,[77] decided the following month, his Honour expressed the same view.[78] In passing, his Honour noted that the ordinary principles as to cumulation required a sentencing judge as far as practicable to identify separate events giving rise to specific charges and to recognise them by ordering at least a degree of cumulation. This was done, his Honour said
to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity, if all sentences for a series of unconnected offences were to be served concurrently.[79]
[77][1998] 1 VR 664.
[78]Ibid 677.
[79]Ibid 676.
Earlier, in Mill v The Queen,[80] the High Court had made clear that, where practicable, the first approach was to be preferred.[81] As senior counsel for the Director pointed out, this position was reaffirmed in 2004 in Johnson v The Queen.[82] In that case, Gummow, Callinan and Heydon JJ noted the preference expressed in Mill
for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. [The later decision of] Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands.[83]
[80](1988) 166 CLR 59.
[81]Ibid 63.
[82](2004) 78 ALJR 616.
[83]Ibid 624 [26] (emphasis added).
In the present case, the sentencing judge sought assistance from the prosecutor about the application of the principle of totality. He asked the prosecutor to confirm that totality had to be considered not only in arriving at the total effective sentence and non-parole period but also ‘in relation to each individual sentence’. The prosecutor’s response was as follows:
Yes. Moderate and cumulate. … Especially when you’re dealing with … a whole range of sentences, as you are.
Shortly afterwards, when the prosecutor submitted that KMD’s offending should be punished more severely than that of Hang (to whom he had supplied heroin), the judge responded in these terms:
But you concede that when I factor in the question of totality I must moderate the sentence?
The prosecutor answered in the affirmative.
With respect, the prosecutor’s response was both incorrect and incomplete. First, on no view of the law was the judge bound to moderate any of the sentences in order to comply with totality. Secondly, his Honour should have been informed that the preferable approach — described by the High Court in Johnson as the ‘orthodox approach’[84] — was not to moderate at all but to fix appropriate sentences for the individual charges. Thirdly, the prosecutor should have pointed out that there was nothing about the case which called for a departure from the orthodox approach. Once appropriate sentences had been fixed, the consideration of totality would guide the determination of how much cumulation should be ordered.
[84](2004) 78 ALJR 616, 624 [26].
As we have said, in R vLomax[85] Ormiston JA spelt out in clear and cogent terms the considerations which favour the preferred approach. In our view, that approach should be clearly understood to be the orthodox approach, in accordance with Johnson.[86] It should be departed from only when some special feature of the case (for example, multiple victims of an offence of violence) requires such a departure.
[85][1998] 1 VR 551.
[86](2004) 78 ALJR 616.
In the present case, in our view, the individual sentences on charges 1 and 2 needed to be substantially higher. We propose a sentence of 10 years’ imprisonment on each of those charges. Moreover, as noted earlier, the criminality involved was quite separate, and a significant degree of cumulation was warranted.
Relevance of sentence imposed on associate
In his sentencing reasons, the judge noted that, as the investigation in Operation Raptor developed, it became clear that Hang and Yam were using KMD as a source of supply of heroin in Australia. As noted earlier, Yam, at Hang’s direction, had travelled to Cabramatta, in New South Wales, on at least five occasions between 23 August and 16 September 2009 in order to purchase heroin from KMD.
It became clear to the investigators, his Honour said, that KMD was operating ‘a loose partnership’ with a woman who was referred to throughout the proceedings as ‘Ut’.[87] His Honour further noted that KMD’s initial involvement in the offending came as a result of his having been sponsored by Ut to come to Australia. The submission advanced by defence counsel on the plea was that it was through Ut that KMD had become involved in these drug syndicates from 2009.
[87]Reasons [8].
Ut was charged with trafficking a trafficable quantity (said to be ‘not less than 100 grams’). The maximum penalty for that offence is 10 years’ imprisonment. Ut pleaded guilty but only after her trial was under way. The same sentencing judge sentenced her, in October 2013, to three years’ imprisonment and had ordered that she be released on a recognisance[88] after serving two years.
[88]Under s 20(1)(b) of the Crimes Act 1914.
On the plea in the present case, counsel for KMD submitted that because of the low sentence imposed on Ut
there is, and would be on [KMD’s] part, a justifiable sense of grievance which Your Honour should take into account in tempering the sentence which Your Honour would otherwise impose.
When the judge pointed out — and defence counsel conceded — that this was not a ‘classic parity situation’, counsel maintained nevertheless that there was ‘an injustice in the sentence that [Ut] received’. This was said to be so because of evidence given subsequently (on a Basha inquiry held before the start of KMD’s trial) that Ut’s role had been much more significant than his Honour had been told.
His Honour responded that the argument was ‘much more difficult’ than on a conventional parity argument. He said to defence counsel that acceptance of the submission would require him
to first make a positive finding that I sentenced Ut on an incorrect factual basis, that in fact her involvement was far more extensive and serious than I was informed, and upon which I sentenced her.
In response, the prosecutor pointed out — quite correctly — that there was no basis for a parity argument. There was no overlap at all between the offending for which Ut was sentenced and the offending for which KMD was to be sentenced. Moreover, the prosecutor pointed out, a parity question could only arise if there was a legal, rather than an emotional, basis for any ‘grievance’.
Acknowledging that the argument was not about parity as such, his Honour said that he would still not discount the possibility of
some moderation of the sentence. It might be minimal, but some moderation of the sentence if I found that there was an understandable sense of grievance on the part of [KMD] in the circumstances, if I found that Ut in fact was his boss.
In his reasons, the judge addressed the matter as follows:
On the question of parity, your counsel submitted that some weight, by way of mitigation, should be given to the fact that your co-accused, [‘Ut’], received a very low sentence in light of the evidence that has emerged in relation to the significance of her involvement in this matter. It was submitted that for you to receive a far higher sentence would leave you with a justifiable sense of grievance on the basis that you had been treated so disproportionately from the way in which "Ut" had been treated by way of sentence. It was submitted that taking this into account, there should be some tempering of the sentence to be imposed upon you. Your counsel of course conceded that the established principles of parity do not apply in this case because there are so many significant differences between your case on one hand and the case of Miss Tran on the other. But nevertheless, your counsel submitted that there should be some tempering of the sentence. The Crown submitted that I should ignore the sentence that was imposed on Miss Tran. I have decided to give some minimal weight to the unusual circumstances whereby ‘Ut’ received such a disproportionately low sentence compared to the sentence that I will be imposing upon you. That minimal weight will be accorded, by way of mitigation, not pursuant to the principles of parity, but really in the exercise of the Court's discretion of mercy, taking into account the understandable sense of grievance that you might experience as a result of the significant gap, disproportionality between the respective sentences.[89]
[89]Reasons [45] (emphasis added).
It can be seen that, although his Honour said he was not applying the principles of parity, he nevertheless took into account what he described as ‘the understandable sense of grievance’ which KMD might experience because of ‘the significant gap’ between the sentences. With respect, however, the concept of ‘understandable sense of grievance’ had no part to play in the present sentencing exercise.
In sentencing law, that phrase has a quite specific connotation. It is only ever used when a question of sentencing parity is under consideration and only for the purpose of expressing a submission (or a conclusion) that there is an unjustified sentencing disparity between co-offenders. Put simply, KMD was not a co-offender with Ut. She was sentenced for a different, and less serious, offence. There was no basis, in our opinion, for reducing the sentence to be imposed on KMD by reference to the much lower sentence which his Honour had imposed on Ut.
As appears from the reasons, his Honour appears to have accepted that the factual basis on which he had sentenced Ut may have been (through no fault of his own) erroneous and that, as a result, KMD might feel — in a subjective sense — aggrieved at the leniency she had received. But that circumstance could have had no bearing on the sentence which the law required be imposed on KMD.
First, if there was to be any revisiting of the factual basis of the Ut sentence, that needed to be done on proper material so that the issue could be investigated thoroughly and appropriate findings made. Secondly, as the prosecutor pointed out, the notion of a ‘justifiable’ or ‘understandable’ sense of grievance has nothing to do with the offender’s subjective state of mind. As the Court has said previously, it is simply a way of expressing the conclusion that a sentencing differential was not reasonably open to the judge given the relevant similarities and differences between the offending (and the offenders).[90] In our view, use of the ‘not reasonably open’ language is preferable, as it removes any suggestion that the offender’s subjective view has any relevance to the Court’s task.
[90]Teng v The Queen (2009) 22 VR 706, 710 [17], citing Maxwell P’s statement in R v Wolfe [2008] VSCA 284 [9].
Prospects of rehabilitation
On the plea, defence counsel tendered certificates in relation to various courses of self-improvement, education and rehabilitation which KMD had undertaken during the three years he had spent in custody awaiting sentence. His Honour accepted that those certificates
demonstrate that you do have a desire to rehabilitate yourself and that you do have prospects of rehabilitation. They certainly demonstrate that you are doing all that you can to rehabilitate. In addition to that, I understand that you have also been engaged in employment whilst you have been in custody and, again, that augurs well in terms of your prospects of rehabilitation.[91]
[91]Reasons [26].
His Honour continued
Exhibit 2 was a sad letter from your niece, written in your support. She describes the person that she believes you to be, from her perspective. It is one of the ironies of life that one reads letter of this kind in cases of this nature. Despite the very deep gravity of your offending, the seriousness of your offending, and the inescapable conclusion that you will face a very long time in gaol, deservedly, on the other hand, there are various aspects of your life which are positive. One of them has been your very significant commitment to your family, your sister and nieces in particular in Australia, your family in Vietnam and, ironically, the great deal of community work that you have performed for the Vietnamese community in Vietnam and in Australia. It is one of the mysteries of life that a criminal, which is what you are, such as you, can on the other hand be capable of such goodness. I have taken into account what your niece has put in that letter. I should say there are letters from two of your nieces in Exhibit 2, the other from [another person]. I have taken into account the contents of those letters. From our point of view, of course, they demonstrate again that despite the gross seriousness of your criminal offending, you do have prospects of rehabilitation and those prospects of rehabilitation will be given particular weight by me in the minimum non-parole period that I fix.[92]
[92]Reasons [27] (emphasis added).
The submission for the Director on this appeal was that little weight should have been given to the content of the letters from family members. As the submission pointed out:
The family of [KMD] benefited from the offending. The home of [his] cousin … was described as ‘the bank’. She was sentenced for dealing with the proceeds of [KMD’s] offending totalling $1.384M. On the plea it was conceded that a lot of money was sent to Vietnam and some of that money was used to support [KMD’s] family and (different) cousin …
Further, it was said, rehabilitation deserved to be given little weight in the absence of any evidence of remorse on KMD’s part.
In our view, there is real force in these submissions. Nothing in the material before the sentencing judge suggested that KMD’s prospects of rehabilitation were deserving of any special weight.
The plea of guilty
The judge noted that KMD had only indicated his intention to plead guilty after the pre-trial examination of Lam had concluded. His Honour said it ‘was not an early plea by any means’.[93] His Honour accepted, however, that because KMD would otherwise have faced four separate trials, the plea was
extremely significant in terms of your acceptance of responsibility and the facilitation of the course of justice.[94]
[93]Reasons [25].
[94]Reasons [25].
His Honour said that he had given ‘significant weight’ to the plea.[95] On this appeal, the Director accepted that KMD was entitled to a substantial discount for the plea of guilty, having regard to its utilitarian benefit. The Director contended, however, that the discount was ‘simply too great’, given that KMD had shown no remorse and that little weight should have been given to his prospects of rehabilitation.
[95]Reasons [41].
Other mitigating factors
The other matters on which KMD could rely in mitigation, and which the judge took into account in his favour, were as follows:
·the delay of three years between his arrest and the passing of sentence, during which (the judge accepted) the matters had been hanging over his head and had left him in ‘a state of uncertain suspense’. His Honour accepted that this was ‘in itself a form of punishment and mitigatory’;[96]
·the risk of deportation, upon release from jail. This was said to be an additional burden. His Honour regarded this as a ‘relatively minor matter’ but said he would ‘give it some minimal weight’;[97] and
·the absence of prior convictions.[98]
[96]Reasons [42].
[97]Reasons [43].
[98]Reasons [44].
As to the last of these, it is well established that in sentencing for serious drug offences of this kind, prior good character is of much less significance than it might otherwise be.
Residual discretion to dismiss the appeal
It has long been accepted that, although the Court hearing a Crown appeal may conclude that the sentence under challenge is manifestly inadequate, the Court retains a residual discretion to dismiss the appeal. The scope of this discretion was discussed extensively in the majority judgment of this Court in Director of Public Prosecutions v Karazisis.[99]
[99](2010) 31 VR 634 [73]–[78], [100]–[115].
On this appeal, senior counsel for KMD drew our attention to the recent decision of the High Court of Australia in CMB v Attorney-General for New South Wales.[100] The Court there allowed an appeal from a decision of the New South Wales Court of Criminal Appeal, which had allowed an appeal by the Attorney-General against a sentence pronounced by the District Court. In that State, Crown appeals are governed by s 5D(1) of the Criminal Appeal Act 1912 (NSW), which provides as follows:
The Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said court may seem proper.[101]
[100](2015) 89 ALJR 407 (‘CMB’).
[101](Emphasis added).
In CMB, the High Court held unanimously that the approach required by s 5D was that set out by Heydon JA in R v Hernando,[102] as follows:
if [the Court of Criminal Appeal] is to accede to the Crown’s desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appellable error in the sentencing judge’s discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.[103]
[102](2002) 136 A Crim R 451.
[103]CMB (2015) 89 ALJR 407, 415 [34] citing R v Hernando (2002) 136 A Crim R 451, 458 [12].
It followed, the High Court concluded, that having decided that the sentence under appeal was manifestly inadequate, the Court of Criminal Appeal had fallen into error by treating
the residual discretion thereby enlivened as a hurdle for [the respondent offender] to surmount rather than as the second of the hurdles for the Attorney-General to surmount.[104]
In short, the Crown bore the onus throughout — first, to establish that the sentence was manifestly inadequate and, secondly, to persuade the Court to exercise its discretion to vary the sentence.
[104](2015) 89 ALJR 407, 415–6 [36].
Senior counsel for KMD submitted that the High Court’s ruling was applicable to the present case. Senior counsel for the Director did not demur. A similar submission was upheld by this Court recently in Director of Public Prosecutions v Zhuang.[105]
[105][2015] VSCA 96 [49].
Onus apart, senior counsel for KMD quite properly accepted that his client needed to identify matters which would bear on the exercise of the residual discretion. He relied essentially on three matters. The first was that the Director had been obliged to seek an indulgence in the form of an extension of time. This point may be disposed of shortly. The extension having been granted for the reasons given earlier, it has no bearing on the disposition of the substantive proceeding.
Secondly, counsel invoked the following statement by French CJ and Gageler J in CMB[106] about the purpose of Crown appeals against sentence. Adopting what Barwick CJ said in Griffiths v The Queen,[107] their Honours reaffirmed that an appeal by the Crown
should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.[108]
[106](2015) 89 ALJR 407.
[107](1977) 137 CLR 293.
[108](2015) 89 ALJR 407, 415 [35], quoting Griffiths v The Queen (1977) 137 CLR 293, 310.
Their Honours clarified that the reference to matters of principle ‘must be understood as encompassing what is necessary to avoid … manifest inadequacy or inconsistency in sentencing standards’,[109] words adopted from Everett v The Queen.[110] These words suffice to dispose of this point. For the reasons we have already given, resentencing in this case is ‘necessary to avoid manifest inadequacy or inconsistency in sentencing standards’.
[109](2015) 89 ALJR 407, 415 [35].
[110](1994) 181 CLR 295, 300.
The third point relied on was that, in the absence of directly comparable sentencing decisions, this Court was in what were described as ‘uncharted waters’. The submission highlighted the difficulty experienced by the Crown in identifying for the judge (or for this Court) a specific case, or series of cases, which would indicate the applicable sentencing range. It was submitted that this difficulty meant that, if the Court concluded that the sentence was manifestly inadequate, it would be appropriate — and sufficient — to state that conclusion and then dismiss the appeal. This course would, it was said, provide quite sufficient guidance as to future sentencing standards.
We are not persuaded by that argument. It is not unusual for a sentencing court, or for this Court on appeal, to have to decide a sentencing question without the assistance of a directly comparable case or cases. Indeed, with offences less commonly prosecuted than drug offences, that circumstance is presumably quite common. In such circumstances, as appears from the foregoing reasons, the Court adopts the conventional common law method of reasoning by analogy and extrapolation from the available sentencing information (of which there is a great deal) and applying established sentencing principles. In no meaningful sense were these ‘uncharted waters’.
We are mindful of the fact that the sentencing judge did not receive the level of assistance from the prosecution which he was entitled to expect. The High Court reaffirmed in CMB that the Crown had ‘a duty to assist a sentencing court to avoid appealable error’.[111] Counsel for the respondent did not, however, contend that there had been any breach of that duty in this case.
[111][2015] HCA 9 [38], [64].
Conclusion
For the foregoing reasons, we would allow the appeal and quash the sentence imposed in the court below. We would resentence KMD as set out in the table below. In arriving at this sentence, we have had regard to the tables setting out the sentences imposed on KMD’s co-offenders, which were provided to the sentencing judge on the plea.
Charge Offence Maximum Sentence Cumulation 1 Trafficking in a marketable quantity of a controlled drug (heroin) 25 years and/or 5000 penalty units 10 years Base s 16BA Item 1 Aid and abet the import of a marketable quantity of a border controlled drug 25 years and/or 5000 penalty units Taken into account on Charge 1 2 Trafficking in a marketable quantity of a controlled drug (heroin) 25 years and/or 5000 penalty units 10 years 3 years s 16BA Item 2 Aid and abet the import of a marketable quantity of a border controlled drug 25 years and/or 5000 penalty units Taken into account on Charge 2 3 Trafficking in a marketable quantity of a controlled drug (heroin) 25 years and/or 5000 penalty units 4 years 1 years Total Effective Sentence: 14 years Non-Parole Period: 11 years 6AAA Statement: 17 years, non-parole period 13 years
As noted earlier, the desired degree of cumulation will be achieved by postponing the commencement date of the second and third sentences. That will be reflected in the orders of the Court.
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TABLE A
COMPARABLE CASES: SENTENCING FOR TRAFFICKING AND IMPORTATION UNDER CRIMINAL CODE ACT 1995 (CTH)
Part 1: Low-End Commercial quantity
| Case | Plea | Relevant Priors | Multiples of Commercial Quantity | Drug | Sentence on individual charge | TES | NPP | Role | Comment |
| Ng v The Queen [2010] NSWCCA 232 | G | - | 1.63 | Heroin | 11y 3m (import) | 11y 3m | 7y 3m | Courier; aware of quantity | Sentence was ‘within the range of appropriate discretion’ |
| R v Ong (2007) 176 A Crim R 366 | NG | Attempt to possess commercial quantity of heroin | 1.25 | Heroin | 15y (conspiring to import) | 15y | 11y | Planned the importation | Sentence was ‘extremely lenient’ but Crown appeal dismissed Offence committed on parole |
| R v Jain [2004] VSCA 30 | G | - | 1.039 | Heroin | 10y (import) | 10y | 7y | Courier; aware of quantity | NPP reduced from 8 to 7 years Sentence ‘very substantial’ but ‘within range’ |
Part 2: High-End Marketable Quantity—Courier
| Case | Plea | Relevant Priors | Percentage of Commercial Quantity | Drug | Sentence on individual charge | TES | NPP | Role | Comment |
| Tran v The Queen (2007) 172 A Crim R 436 | G | - | 98.2% | Heroin | 10y (import) | 10y | 5y | Courier | Sentence reduced from 15 years’ imprisonment, non-parole period 7 years |
| Poh Kau Lau v The Queen [2011] VSCA 324 | G | - | 94.64% | Methamphetamine | 9y (import) | 9y | 6y | Courier | Sentence was ‘stern’, but ‘not beyond the range’ |
| Beqiri v The Queen (2013) 37 VR 219 | G | - | 84.6% | Cocaine | 5y, 6m (possess) | 5y, 6m | 3y, 4m | Courier | Sentence reduced from 6 years’ imprisonment, non-parole period 3 years 9 months |
| R v Jimson [2009] QCA 183 | G | - | 84.34% | Cocaine | 8y (import) | 8y | 4y, 6m | Courier | There was ‘no error’ in exercise of sentencing discretion |
| R v Harris [2009] QCA 370 | G | - | 74.4% | Cocaine | 7y (attempt to possess) | 7y | 4y | Courier; provided post box | Sentence was ‘clearly appropriate’ |
| Alavy v The Queen [2014] VSCA 25 | G | - | 53.04% | Methamphetamine | 7y (import) | 7y | 5y | Courier | Manifest excess not made out; sentence ‘seems to be fairly typical of the levels of imprisonment fixed for offending of this very serious nature’ |
Part 3: Upper-End Marketable Quantity—Offender Played Significant Role
| Case | Plea | Relevant Priors | Percentage of Commercial Quantity | Drug | Sentence on individual charge | TES | NPP | Role | Comment |
| Nakhla v R [2011] NSWCCA 143 | G | - | 71.55% | Cocaine | 9y, 6m | 9y, 6m | 5y, 9m | Offender was a ‘trusted lieutenant’ and ‘extremely active participant’ | Upheld on appeal |
| R v Nikolovska [2010] NSWCCA 169 | G | - | 71.55% | Cocaine | 7y, 6m | 7y, 6m | 4y, 9m | Offender’s ‘contribution was significant and strategic … over several months; offender was ‘clearly below the importer [Nakhla]’ The ‘breach of [employer’s] trust was fundamental to [the offender’s] criminality | Re-sentenced on Crown appeal |
| Lee v R [2012] NSWCCA 123 | G | - | Charge 2: Charge 3: 118.53% | Heroin Heroin and meth-amphetamine | 7y (conspiracy to import) 6y (conspiracy to traffick) | 12y | 8y | Organising role for syndicate including organising importation for Vietnam | Additional charge of conspiracy to deal with money intending it would become an instrument of crime (sentence: 5y, 6m) was included in TES |
| Isaac v R [2012] NSWCCA 195 | G | - | Charge 1: 35.8% Charge 2: 35.8% Charge 3: 42.8% | Heroin | 8y, 4m 8y, 4m 7y, 6m (all charges) | 9y, 10m | 7y, 5m | ‘Played a significant role’ ‘The conduit between the principals and may have been responsible ultimately for distribution within the community’ | |
| R v Todorski (2010) 267 ALR 593 | G | - | 55.4% | Heroin | 6y, 6m | 6y, 6m | 3y, 9m | Described as ‘crucial link’ in chain of operations Culpability at upper end of mid-range of such offences | |
| Nguyen v R [2010] NSWCCA 132 | G | - | 46.5% | Heroin | 9y | 9y | 6y | Valued, high level functionary whose activities were integral/indispensable to the distribution of heroin from Sydney to Melbourne | |
| Lindsay v R [2012] NSWCCA 124 | G | Lengthy priors in UK | 17.6% | Cocaine | 8y, 6m | 8y, 6m | 5y, 6m | ‘More than a mere courier’ |
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