Du Thanh Tran v The Queen
[2018] VSCA 107
•1 May 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0024
| DU THANH TRAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 April 2018 |
| DATE OF JUDGMENT: | 1 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 107 |
| JUDGMENT APPEALED FROM: | DPP v Tran (Unreported, County Court of Victoria, Judge Campton, 11 December 2017) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking drugs of dependence (3 charges) – Sentenced to 2 years and 10 months’ imprisonment with non-parole period of 1 year and 10 months – Whether judge mistook facts of offending – Whether sentence involved double punishment – Whether sentence infringed principle of parity – Whether sentence was manifestly excessive – Errors contended for by applicant not reasonably arguable – Manifest excess not reasonably arguable – Application for leave to appeal refused.
CRIMINAL LAW – Appeal – Fresh evidence – Applicant’s visa cancelled after sentencing – Cancellation of applicant’s visa not throwing light on any pre-existing fact – Cancellation of visa not an event showing sentence has turned out to be excessive – No miscarriage of justice – Application to admit fresh evidence refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms G G Connelly | Ann Valos Criminal Law |
| For the Respondent | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
TATE JA
BEACH JA:
On 30 November 2017, the applicant pleaded guilty in the County Court to three charges of trafficking in a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981, and one charge of unlicensed driving contrary to s 18(1)(a) of the Road Safety Act 1986. Following a plea hearing, on 11 December 2017, the applicant was sentenced as follows:
| Charge on Indictment G10750641 | Offence | Maximum | Sentence | Cumulation |
| 1 | Traffick a drug of dependence (MDMA) | 15 years | 12 months | 2 months |
| 2 | Traffick a drug of dependence (heroin) | 15 years | 10 months | 2 months |
| 3 | Traffick a drug of dependence (methylamphetamine) | 15 years | 30 months | Base |
| Related Summary Offences | ||||
| 6 | Unlicensed Driving | 25 penalty units or 3 months | Fined $500 | N/A |
| Total Effective Sentence: | 2 years and 10 months’ imprisonment | |||
| Non-Parole Period: | 1 year and 10 months | |||
| Pre-Sentence Detention Declared: | 475 days | |||
| 6AAA Statement: 4 years’ imprisonment with a non-parole period of 3 years. | ||||
| Other Relevant Orders: 1. s 464ZF Forensic Sample Order. 2. Disposal Order. | ||||
The applicant seeks leave to appeal against his sentence on the following grounds:
1.The sentencing discretion miscarried because the sentencing judge mistook the facts upon which the applicant could be sentenced.
2.The sentencing judge erred in doubly punishing [the applicant].
3.The sentence imposed on charge 3 is manifestly excessive.
4.The orders for cumulation are manifestly excessive.
5.The judge erred in imposing a total effective sentence that offends the principle of parity.
6.This court should admit as fresh evidence and resentence the applicant on the basis that the applicant’s visa permitting him to remain in Australia has been cancelled.
Circumstances of the drug trafficking
In May 2015, police commenced an investigation into a group that trafficked and manufactured drugs in and around the suburbs of Melbourne. The investigation was extensive. It included telephone intercepts, covert surveillance and searches. The investigation established that, amongst others, the applicant and his mother, Thuy Kim Nguyen (‘Nguyen’), were drug traffickers. Each had their own operation, but in some areas, their operations overlapped and/or merged.
The applicant’s offending occurred between 4 August 2015 and 21 January 2016. He usually supplied drugs to customers at gambling venues or from his home. The applicant’s customers were low-level traffickers and users. The quantities he supplied in a single transaction were 3.5 grams or less. The applicant’s trafficking included collecting moneys from customers. He conducted his business using five mobile phones, each number of which was subscribed in a false name.
Nguyen ran a separate drug trafficking operation. The applicant was a contact point for Nguyen’s customers. He acted under her directions in relation to her drug trafficking operation.
During the period between 4 August and 27 October 2015, a warrant operating on the applicant’s phones revealed that he was involved in approximately 900 telephone calls and SMS texts that were drug-related. Warrants on Nguyen’s phone recorded two telephone calls from Tran on 1 August 2015, and 20 calls between 28 October 2015 and 20 January 2016, that were drug-related. Some of the communications intercepted were in code. Other parties to the intercepted calls included approximately 55 people who were either drug customers or potential customers.
Evidence obtained from the intercepted calls revealed that the applicant was involved in one transaction where he collected 28 grams of methylamphetamine from a supplier for a price of $7200. On another occasion, the applicant was a party to a proposed transaction to obtain further drugs from the same supplier for approximately $14,000. It was proposed that Nguyen would contribute $10,000 of that amount and the applicant would contribute the balance. While the summary of prosecution opening filed on the plea described this transaction as actually having occurred, in the course of the plea the prosecutor advised the judge that it was agreed that this was only a proposed transaction.
In some of the intercepted calls to which the applicant was a party it was possible to identify the amounts of drugs supplied. Those calls revealed the following quantities as having been trafficked:
·19.6 grams methylamphetamine in 11 transactions at a price of $450 per 1.7 grams.
·3.5 grams plus $250 worth of heroin in three transactions, the prices variously being $1400 for 3.5 grams, $450–$600 for 1.3–1.7 grams and $100 for 0.4 of a gram.
·7.9 grams plus $150 worth of a drug that may have been either methylamphetamine or heroin in five transactions.
·40 ecstasy tablets in four transactions.
Applicant’s background
The applicant was born in Vietnam on 4 June 1987. At the time of his offending, he was 28 years of age. At the time of sentencing, he was 30. The applicant’s parents separated when he was four years of age. When he was five, his mother (Nguyen) was sponsored to go to Australia. Nguyen left the applicant in Vietnam with his grandparents.
The applicant completed the equivalent of year 7 in Vietnam. He then went on to study glass cutting and the manufacture of aluminium doors, before commencing work in that industry.
In 2005, the applicant, then aged 18, was sponsored by Nguyen to move to Australia. After his arrival in Australia, the applicant gained employment doing labouring work and seasonal fruit picking. Later he moved to Darwin, commenced a relationship and had a son. The relationship did not last, and the applicant separated from his partner in 2014 and returned to Melbourne. It was put on the plea that this was when ‘things started to go downhill’ for the applicant. He became depressed and started using drugs and, on 22 September 2014, committed offences of possessing a controlled weapon, using an unregistered vehicle, resisting police and unlicensed driving.
The applicant was arrested and remanded in custody in respect of his current offending on 16 March 2016. On 3 July 2017 he was granted bail. The judge was told on the plea that over the 15 and a half months the applicant was in custody, he was able to address his drug addiction properly for the first time. The applicant participated in various programs in gaol and became drug-free.
At the time of the plea, the applicant was working fulltime in a nursery and was drug-free.
Reasons for sentence
The sentencing judge commenced her reasons for sentence with a description of the applicant’s offending.[1] In describing the circumstances of the applicant’s offending, the judge referred to the proposed $14,000 transaction as if the transaction had actually occurred. This reference was the subject of a correction by the prosecution, resulting in a revision of the judge’s reasons. It is this circumstance that forms the basis for proposed Ground 1.
[1]DPP v Tran (unreported, County Court of Victoria, Judge Campton, 11 December 2017) (‘Reasons’) [2]–[9].
The judge set out the applicant’s personal circumstances and his counsel’s submissions on the plea.[2] In the course of setting out these matters, the judge noted that the applicant relied upon the following matters in mitigation:
[2]Reasons [10]-[23].
·
the applicant’s early plea of guilty at a committal hearing on
3 July 2017;
·the fact that the applicant had utilised his time on remand to withdraw from drugs, and that the applicant had remained drug-free and away from his former drug associates since being granted bail;
·the applicant’s fulltime employment which was said to have ‘significantly improved [his] prospects of rehabilitation’;
·the lack of any evidence of any enrichment from the drug trafficking;
·the amount of the applicant’s trafficking and frequency was ‘not as serious as many of [his] co-accused’;
·the fact that the applicant had only been selling small amounts of methylamphetamine of 3.5 grams or less;
·the one occasion where the applicant had collected 28 grams was on behalf of another person.[3]
[3]Ibid [21].
In sentencing the applicant, the judge said that she took all of these mitigating matters into account. She said that she had also given the applicant ‘a discount’ for his early plea of guilty. In addition, the judge took into account that, while the applicant was on remand, ‘[he] commenced [his] rehabilitation process’.[4] The judge also observed again that, following his release on bail, the applicant had maintained his abstinence from drugs, had a fulltime job and had not reoffended.
[4]Ibid [24].
The revision of the sentencing reasons
The judge’s initial reasons (‘the Unrevised Reasons’) followed the form of the filed summary of prosecution opening. They took the form of a transcript of what her Honour said in Court at the time she delivered her sentence. In the Unrevised Reasons, the judge described the $14,000 transaction as a transaction where the applicant ‘obtained further drugs for approximately $14,000’. Specifically, the judge said:
In another transaction with the same supplier you obtained further drugs for approximately $14,000, your mother contributing half and you being told to make up the rest.[5]
[5]Unrevised Reasons [7].
During the course of the judge delivering her reasons for sentence, the prosecutor interrupted the judge and said:
Your Honour, at this stage could I before Your Honour passes sentence there is one matter that a correction needs to be made? The transaction of $14,000, your Honour may recall that it was agreed that it was a proposed transaction and the evidence does not substantiate or it was agreed that in fact the transaction was completed [scil, contemplated] for $14,000.[6]
[6]Ibid [23].
In the Unrevised Reasons, the judge is recorded as replying to the prosecutor as follows:
Yes, proposed transaction. I will indicate now that it does not make any difference in what I am going to do in that I have quantified the amount of methylamphetamine based on the amount found in his premises and also taking into account the 28 grams and I have not taken that into account because I did not know whether it went through or not, but I just should have said proposed.[7]
[7]Ibid [24].
The judge’s reasons were subsequently revised, after sentencing, to describe the $14,000 transaction as follows:
In a proposed transaction with the same supplier, you obtained further drugs for approximately $14,000. Your mother contributed half and you were told to make up the rest.[8]
The judge’s statement in response to the prosecutor’s interruption was also revised, so as to read:
Yes, proposed transaction. I will indicate now that it does not make any difference in what I am going to do, as I have quantified the amount of methylamphetamine based on the amount found in his premises. I have not taken the 28 grams into account because I did not know whether it went through or not. I should have said the proposed transaction of 28 grams.[9]
[8]Reasons [7].
[9]Ibid [27].
The following observations may be made about the revision that was prompted by the prosecutor’s interruption:
(1)In the Unrevised Reasons, the judge responded to the prosecutor’s correction by acknowledging that the $14,000 transaction was a proposed transaction. The judge then said that she quantified the amount of methylamphetamine based on the amount found at the applicant’s premises and the 28 gram transaction. Immediately, it should be observed that there was no methylamphetamine found at any premises in relation to the applicant.[10] The judge then said that she had ‘not taken that into account’. By that, it might be thought that the judge was saying that she had not taken the $14,000 transaction into account as a completed transaction.
(2)While the judge revised the sentence in the Unrevised Reasons dealing with the $14,000 transaction,[11] by inserting the word ‘proposed’ before the word ‘transaction’, the sentence continued with the statement that the applicant, in this proposed transaction ‘obtained further drugs for approximately $14,000’. That is, while the judge inserted the word ‘proposed’, she made no correction to the balance of the sentence (for example, by inserting the words ‘would have’ before ‘obtained’) in which it was stated that the drugs were actually obtained.
(3)In the Unrevised Reasons, the judge’s original response to the prosecutor suggests that she had not taken into account the $14,000 transaction. In the revised reasons (or Reasons), the judge expressly said that she has not taken the 28 gram transaction into account. It is not entirely clear why her Honour made this revision to her response to the prosecutor’s correction.
[10]Counsel for the applicant in this Court (not counsel who appeared on the plea) surmised that the judge may have been referring to a quantity of methylamphetamine (27.4 grams) found at the residence of Lan Thi Tran, another accused, whose offending was said to be interrelated with Nguyen’s offending. In our view, whether this was what her Honour meant can only be a matter of speculation at this stage.
[11]Unrevised Reasons [7] and Reasons [7].
Applicant’s submissions
Under proposed ground 1, the applicant submitted that, notwithstanding the judge’s correction, the revised reasons suggest that the judge may still have sentenced on an incorrect factual basis. The judge’s reference, in her reply to the prosecutor’s interruption, to the 28 gram transaction being a proposed transaction, rather than the $14,000 transaction being the one that was proposed, means that there is a significant risk that the applicant was sentenced on an incorrect (and more serious) factual basis — being one that involved the 28 gram transaction being merely proposed, but the $14,000 transaction actually being carried out.
In oral argument, counsel for the applicant made an additional complaint under proposed ground 1 that the judge had sentenced the applicant on the basis of a quantity of methylamphetamine found in the applicant’s premises. As we have already observed, there was no methylamphetamine found at any premises that might be described as ‘the applicant’s premises’.
With respect to proposed ground 2, the applicant submitted that, in the factual circumstances of this case, where it could not be said for many of the calls which drug was being discussed, ‘the challenge of avoiding double punishment in the sentencing of the applicant for three different Giretti[12] charges distinguished by the type of drug trafficked was considerable’. The applicant then contended that the ‘stern sentences’ imposed for each offence, plus the orders for cumulation, revealed that this ‘challenge’ had not been met by the judge.
[12]Giretti v The Queen (1986) 24 A Crim R 112.
Under proposed grounds 3 and 4, the applicant submitted that the sentence imposed on charge 3 and the orders for cumulation were manifestly excessive. In submitting that the sentence imposed on charge 3 was manifestly excessive, the applicant relied upon the following matters:
·all but one transaction involving methylamphetamine were small-quantity transactions to low-level traffickers and users;
·the applicant’s involvement in the 28 gram transaction was ‘simply to collect the drugs on behalf of another’;
·there was a need to avoid double punishment for the offending common with other charges;
·the $14,000 transaction was only a proposed transaction, and was nothing more than one ‘entertained’ by the applicant’s mother;
·the increased prevalence of trafficking in methylamphetamine only justifies a ‘relatively modest’ upward adjustment for sentences for that offence in a regime that otherwise does not distinguish between the type of drug trafficked;[13]
·totality;
·current sentencing practices;
·the absence of evidence of enrichment and the accepted link between the trafficking and the applicant’s own drug dependence;
·the applicant’s limited criminal history and lack of like offending;
·the rehabilitation undergone by the applicant, including his drug abstinence and fulltime employment; and
·the applicant’s early plea of guilty.
[13]See Haddara v The Queen (2016) 260 A Crim R 306; R vPidoto (2006) 14 VR 269.
In support of the submission that the orders for cumulation were manifestly excessive, it was contended that it was not open to the judge to impose any cumulation on the base sentence ‘in circumstances where the trafficking in different drugs was merged in the general business of trafficking’.
Under proposed ground 5, the applicant contended that he had a justifiable sense of grievance when his total effective sentence was compared to that imposed on Nguyen. In respect of two charges of trafficking a drug of dependence contrary to s 71AC of the Drugs, Poisons and Controlled Substances Act 1981, Nguyen was sentenced by the same judge, on 29 November 2017, to a total effective sentence of three years and three months’ imprisonment. In support of the proposition that there was an insufficient disparity between the sentence imposed on Nguyen and the sentence imposed on the applicant, the applicant relied upon the following matters:
·the Crown presented Nguyen’s offending as more serious than the applicant’s, with the applicant receiving and acting on directions from Nguyen;
·the 28 gram methylamphetamine transaction was one that involved the applicant collecting the drug for Nguyen;
·the period of Nguyen’s offending (127 days) was greater than that of the applicant’s offending (85 days);
·the quantifiable amounts for methylamphetamine were 94.4 grams for Nguyen, compared to 19.6 grams for the applicant (or 47.6 grams if the 28 gram collection was included); and 85 ecstasy tablets for Nguyen, compared to 40 for the applicant;
·Nguyen operated ‘at a higher level of the trafficking business than the applicant’; and
·aggravating factors in Nguyen’s offending (not present in the applicant’s case) were that Nguyen trafficked to her 15-year-old daughter, and that Nguyen’s offending took place while she was on a community correction order for other drug-related offending.
Finally, under proposed ground 6, the applicant sought to have admitted, as fresh evidence, the fact that his visa was cancelled on 7 February 2018.
Respondent’s submissions
The respondent submitted that there was no substance in any of the applicant’s proposed grounds, and that the application for leave to appeal should be refused.
In response to proposed ground 1, the respondent submitted that there was no basis for contending that the judge sentenced the applicant on a more unfavourable factual basis than that described in the prosecution opening. Indeed, if anything, it appeared that the applicant may have been sentenced on an unduly favourable basis. In support of that submission, the respondent contended that the revised version of her Honour’s reasons for sentence disclosed that she sentenced on the basis that both the 28 gram transaction and the $14,000 transaction were only proposed transactions.[14]
[14]Reasons [7], [27], [29].
In relation to proposed ground 2, the respondent submitted that there was no basis for contending that the judge had doubly punished the applicant. In particular answer to this ground, the respondent noted that:
·contrary to the applicant’s assertion, his offending was not limited to 85 days, but spanned the period from 4 August 2015 to 21 January 2016 (171 days);
·the applicant’s criminality involved obligations to his own business and to that of Nguyen’s, increasing his level of culpability beyond that involved in trafficking in a single business;
·the judge implicitly adjusted the sentences as between charges 1, 2 and 3 to account for aspects of commonality between the conduct subsumed in each charge;[15] and
·the total effective sentence was (in any event) lenient, and even if specific error was made out, the sentence should not be reduced because to do so would ‘render punishment derisory in all the circumstances of this matter’.
[15]See Dang v The Queen (2014) 43 VR 29, 48-9 [82]-[83] (‘Dang’).
In answer to proposed grounds 3 and 4, the respondent contended that, far from being manifestly excessive, the sentence on charge 3 and the orders for cumulation resulted, in all the circumstances, in a lenient sentence.
In response to proposed ground 5, the respondent noted that, contrary to the applicant’s submission, the applicant’s offending spanned a longer period than Nguyen’s. Moreover, during the offending periods, the applicant serviced
55 customers, whereas Nguyen serviced only 25 customers. The personal circumstances of the applicant and Nguyen were submitted to be ‘roughly similar’, with both having turned to drug taking late in life due to personal circumstances of distress, and both had become involved in trafficking to fund their own habits.
As to Nguyen’s CCO, this sentence was imposed for possessing drugs during the offending period. While there were the aggravating circumstances in Nguyen’s case identified by the applicant, Nguyen had two mitigating factors which contributed to her receiving a more lenient sentence than she might otherwise have received. First, Nguyen had a diagnosis of mental illness for which she was receiving treatment. Secondly, at the time of sentencing, Nguyen had 387 days of ‘dead time’ which she accrued while on remand for matters in respect of which she was later acquitted at trial.
In all the circumstances, there was no inappropriate disparity between the sentences imposed on the applicant and Nguyen.
Finally, the respondent submitted that the court should not admit the ‘fresh evidence’ of the applicant’s visa having been cancelled after he was sentenced. It was known at the time of sentencing that, given the mandatory visa cancellation provisions in the Migration Act 1958 (Cth), the applicant was subject to this risk, given the seriousness of his offending. Moreover, as the applicant conceded, no submission was made to the sentencing judge about the additional hardship that the prospect of a visa cancellation might entail.
Analysis
Proposed ground 2, alleging double punishment, is founded upon the contention that the length of the sentence imposed suggests that the judge failed to avoid imposing double punishment. That ground is related to proposed grounds 3 and 4 that make complaints of manifest excess. It is convenient to deal with those grounds together, after dealing with the specific issues raised by proposed grounds 1, 5 and 6.
Proposed ground 1
As we have already observed, there was confusion during the passing of sentence when the judge referred to the $14,000 transaction as if it had actually occurred. The prosecutor corrected the judge’s misstatement while her Honour was giving her reasons for the sentence that she was then about to impose.
In the Revised Reasons, the judge referred to the $14,000 transaction as a ‘proposed’ transaction. She went on to say, however, that in this proposed transaction the applicant ‘obtained further drugs’. Further confusion also arose when the judge referred to the 28 gram transaction as a proposed transaction, and when she referred to an amount having been found in the applicant’s premises. First, the 28 gram transaction was not a proposed transaction. That transaction actually occurred. Secondly, no amount was found in any premises of the applicant.
The short answer to proposed ground 1 is that, notwithstanding the confusion by her Honour about which transaction was only ‘proposed’ and her Honour’s reference to an amount found at the applicant’s premises, we are not persuaded that the judge sentenced the applicant on some more unfavourable factual basis than that opened by the prosecutor on the plea. We think it is tolerably clear that the judge sentenced the applicant on the basis that the $14,000 transaction was a proposed transaction. It is possible that she also (wrongly, but in the applicant’s favour) sentenced the applicant on the basis that the 28 gram transaction was only a proposed transaction.
While the meaning of the judge’s reference to an amount found in the applicant’s premises is unclear, we note that no counsel took up the issue with the judge during sentencing – even though the prosecutor had interrupted the judge for the purpose of correcting her erroneous statement about the $14,000 transaction.
Proposed ground 1 must be rejected.
Proposed ground 5
Proposed ground 5 makes a parity complaint in relation to the sentence imposed on Nguyen. The principles governing parity are well established.[16] As this Court said in Collins v The Queen:
Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[17]
[16]See Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharpv The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97 [24]–[25]; Collins v The Queen [2015] VSCA 106 (‘Collins’); Ryan v The Queen [2016] VSCA 255 (‘Ryan’).
[17][2015] VSCA 106 [23] (citations omitted).
In Hilder v The Queen,[18] Maxwell ACJ identified ‘the true nature of the question which must be addressed when the ground of parity is advanced’ as being ‘whether it was reasonably open to the judge in the circumstances of the case to differentiate — or fail to differentiate — between the co-offenders in the way he or she did’.[19] His Honour went on to say that there was a ‘close analogy with the stringency of the test of manifest excess’, and then said that, for a parity ground to succeed, ‘it must be shown that the conclusion as to sentence differentials was not reasonably open’.[20]
[18][2011] VSCA 192.
[19]Ibid [37].
[20]Ibid [38]; Collins [2015] VSCA 106 [23].
In Ryan v The Queen, this Court said:
As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance that justice has not been done. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, it does not involve judgment about the feelings of the person complaining of disparity. Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be ‘marked’ or ‘manifest’. No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.[21]
[21][2016] VSCA 255 [42].
In our view, there is nothing in the applicant’s parity complaint. While the applicant was lower in the hierarchy of Nguyen’s drug trafficking enterprise, his criminality involved not only his participation in that enterprise but also his participation in his own enterprise. The fact that larger quantities could be calculated from some of the Nguyen telephone intercepts than were capable of being calculated from the applicant’s telephone intercepts says little about the actual size of their respective enterprises. Moreover, as was submitted by the respondent, notwithstanding the aggravating circumstances of Nguyen’s offending, Nguyen was able to call in aid the diagnosis of a mental illness for which she was receiving treatment and the existence of more than a year of ‘dead time’ which she accrued while on remand for matters in respect of which she was later acquitted.
In the course of argument, counsel for the applicant cavilled with the proposition that the applicant was sentenced, not only for his involvement in Nguyen’s drug trafficking enterprise, but also for his involvement in his own separate drug trafficking enterprise. The submission was maintained that, in effect, there was one major enterprise. This enterprise was run by Nguyen, and the applicant was significantly lower in its hierarchy than was Nguyen. That submission, however, overlooks the agreed prosecution opening that there were two drug trafficking operations run by Nguyen and the applicant and that those operations ‘overlapped and/or merged’ in some areas. Moreover, it is again to be remembered that Nguyen’s operation only involved the trafficking in MDMA and methylamphetamine, whereas the applicant’s operation involved the trafficking of MDMA, methylamphetamine and heroin.
In all the circumstances, we are unable to see any impermissible disparity between the sentence imposed on Nguyen for her two charges of trafficking two drugs of dependence (39 months) and the sentence imposed on the applicant for his three charges of trafficking in three drugs of dependence (34 months). The applicant’s offending occurred over a longer period than Nguyen’s. His offending involved an additional drug and significantly more customers. Moreover, all other things being equal, the existence of the ‘dead time’ of 387 days in Nguyen’s case more than justified the similarity in the sentences imposed on Nguyen and the applicant in respect of their drug trafficking charges.
Proposed ground 5 must be rejected.
Proposed ground 6
In proposed ground 6, the applicant seeks to have admitted as fresh evidence, the fact that his visa was cancelled after sentencing. The principles to be applied when determining whether fresh evidence should be admitted after sentencing are well settled. They were summarised by Redlich JA in Nguyen v The Queen,[22] as follows:
[22][2006] VSCA 184 (‘Nguyen’).
It is common ground that this Court may, in limited circumstances — sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i) the new evidence must relate to events which have occurred since the sentence was imposed;
(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[23]
[23]Ibid [36]–[37] (citations omitted).
In his written case and oral submissions, the applicant acknowledged two issues with respect to proposed ground 6. First, no submissions were made to the judge by the applicant’s plea counsel concerning the prospects of the applicant’s deportation following the serving of any sentence of imprisonment that the judge might impose. Secondly, the prospect of the applicant’s deportation existed at the time of the plea ‘in substantially the same form as it exists following the cancellation of [his] visa’.
The applicant’s visa has been cancelled pursuant to s 501(3A) of the Migration Act 1958. That section provides for a mandatory cancellation if the relevant minister is satisfied that the applicant has a substantial criminal record or is serving a full-time sentence of imprisonment. The relevant provisions of the Migration Act 1958 were in force at the time of sentencing.
All that has occurred since sentencing is that a mandatory cancellation power, the existence of which was not unknown at the time of sentencing, has been exercised. We are not persuaded that the cancellation of the applicant’s visa throws significant new light on any pre-existing fact. Moreover, we are not satisfied, in any event, that any different sentence should now be substituted so as to avoid a miscarriage of justice. The offending for which the applicant was sentenced involved trafficking three different drugs over a significant period of time to a substantial number of customers. As was submitted by the respondent, no lesser sentence should have been passed by the judge. We are not persuaded that the cancellation of the applicant’s visa after sentencing alters that position.
The application to admit fresh evidence must be refused. Proposed ground 6 must be rejected.
Proposed grounds 2, 3 and 4
In proposed grounds 2, 3 and 4, complaint is made that the applicant has been doubly punished and that the sentence on charge 3 and the orders for cumulation are manifestly excessive. It follows from what we have already said that there is no substance in any of these complaints. In our view the sentences and orders for cumulation were, in the circumstances, moderate. While we would not embrace the respondent’s description of the applicant’s sentence as ‘lenient’, we are unable to conclude that the sentence imposed on the applicant or the orders for cumulation were manifestly excessive, in the sense of being wholly outside the permissible range of sentencing options open to the judge.[24]
[24]See for example, Clarkson The Queen (2011) 32 VR 361, 384 [89]; Hayes v The Queen [2017] VSCA 285 [47].
Moreover, there is no suggestion that the judge failed to take into account any of the mitigating factors upon which the applicant relied on his plea. In our view, it is not reasonably arguable that the applicant has been double punished or that any of the sentences or orders for cumulation were wholly outside the range of sentencing options available to the judge.
Proposed grounds 2, 3 and 4 must be rejected.
Conclusion
The application for leave to appeal must be refused.
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