Duong v Director of Public Prosecutions (Cth)
[2021] VSCA 136
•17 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0261
| MINH DUONG | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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| JUDGE: | NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 17 May 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 136 |
| JUDGMENT APPEALED FROM: | [2020] VCC 1379 (Judge Cahill) |
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CRIMINAL LAW – Application for extension of time to file application for leave to appeal against sentence – Applicant pleaded guilty to one charge of trafficking a commercial quantity of a controlled drug (methamphetamine) (8 years and 6 months’ imprisonment), one charge of trafficking a marketable quantity of a controlled drug (heroin) (4 years’ imprisonment) and one charge of failing to comply with an order to provide telephone passwords (12 months’ imprisonment) – Total effective sentence of 10 years and 9 months’ imprisonment with a non-parole period of 6 years and 9 months – Whether sentences imposed for trafficking offences offended the principle of totality and/or rule against double punishment – Whether judge failed to take into account heightened value of guilty plea in context of COVID-19 pandemic – Whether individual sentences, cumulation, total effective sentence and non-parole period are manifestly excessive – Application for extension of time granted – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances. |
NIALL JA:
Over a six-week period between April and June 2019, the applicant conducted a business of trafficking both methamphetamine and heroin. The applicant controlled the operation, sourcing drugs, communicating with potential purchasers and arranging sales. He directed a co-offender, Huu Phuoc Le (‘Le’), to undertake other activities in relation to quantities to be sold and their prices. On two occasions the applicant travelled to Sydney to meet potential suppliers.
The size of the operation is in part revealed by the quantity of drugs sold and the inventory located in a search of premises used by the applicant. In total, the applicant and Le made 18 sales of methamphetamine and six sales of heroin, and a relatively substantial quantity of drugs was found in their possession for sale. The quantity sold and the quantity found in their possession for the purpose of sale is revealed in the following table:
Methamphetamine (Charge 1)
Heroin (Charge 2)
Sold
1,109 g (gross)
(18 sales)
171.5 g (gross)
(6 sales)
In possession for sale
2,747.2 g (pure)
324.1 g (pure)
Total
3,856.2 g (gross)
495.6 g (gross)
5.14 x commercial quantity (750 g pure)
1.98 x marketable quantity (250 g pure); or 0.33 x commercial quantity (1.5 kg pure)
The drugs were sold both to other dealers and, in smaller quantities, to customers for their personal use. As an indication of scale, one transaction involved the sale of 500 g of methamphetamine and other transactions were of lesser, but substantial, or unspecified amounts. At the time of the applicant’s arrest two mobile phones were seized and, subsequently, the police applied for an order under s 3LA of the Crimes Act 1914 (Cth) requiring the applicant to provide the passcodes necessary to access them. He refused to comply with the order which constituted an offence to which he also pleaded guilty.
The applicant was sentenced to a term of imprisonment structured as follows:
Charge Offence Maximum penalty Sentence Cumulation 1 Trafficking a commercial quantity of a controlled drug (methamphetamine)[1] Life 8 years and 6 months Base 2 Trafficking a marketable quantity of a controlled drug (heroin)[2] 25 years 4 years 2 years 8 Failing to comply with an order to provide telephone passwords[3] 10 years 12 months 3 months Total effective sentence: 10 years and 9 months’ imprisonment. Non-parole period: 6 years and 9 months’ imprisonment. Pre-sentence detention: 455 days. Section 6AAA declaration: 13 years and 6 months’ imprisonment with a non-parole period of 9 years. [1]Criminal Code (Cth) ss 302.2(1) and 311.2(1).
[2]Ibid ss 302.3(1) and 311.2(1).
[3]Crimes Act 1914 (Cth) s 3LA(6).
Reasons for sentence
The judge commenced by noting that the applicant had a number of relevant criminal convictions.[4]
[4]DPP v Duong [2020] VCC 1379, [29]–[34] (‘Reasons’).
(a) On 4 December 2013, he was sentenced at the Magistrates’ Court for trafficking and possessing methylamphetamine, firearms and driving offences to 15 months’ imprisonment;
(b) on 11 September 2014 on an appeal, the County Court sentenced him for violent offences and possessing amphetamine to an aggregate term of 18 months;
(c) on 12 May 2015, the applicant was sentenced in the County Court to a total effective sentence of 3 years’ imprisonment with a non-parole period of 18 months for violent offences and possessing a drug of dependence; and
(d) on 12 September 2016, he was sentenced to 7 days’ imprisonment for possession of a prohibited weapon.
The judge recorded that the applicant was 35 years of age at the time of sentence and 34 when the offending took place. As a young person he came with his family to Australia as refugees. His family life was unhappy; his father drank heavily and was violent. His parents separated when the applicant was 14 years of age. Shortly thereafter he dropped out of school and started using drugs. By the age of 22, he was heavily addicted to methamphetamine and Xanax.[5]
[5]Ibid [43].
After a period of imprisonment, which began in mid-2013 and ended in late-2017, the applicant obtained work as a labourer with his stepfather, who operates a construction business, but fell back into drug use and started selling drugs to support that habit.[6]
[6] ` Ibid [44].
Despite an unhappy family background, the applicant has a close relationship with his sister, contact with her sons and was, for a number of years, in a relationship with the mother of his eight year old son.[7] She maintains contact with the applicant and supports him.[8]
[7]Ibid [46]–[47].
[8]Ibid [47].
As recorded by the judge, the applicant relied in mitigation on his early guilty plea, the risk of deportation as a result of the offending, the additional burden of prison isolation and lockdown conditions during the pandemic and his prospects of rehabilitation.[9] His rehabilitation was said to be supported by the positive steps he had taken since being remanded in custody, his skills for useful employment, strong family support and his desire to be a good father to his son.[10]
[9]Ibid [52].
[10]Ibid.
In his reasons for sentence the judge referred to various authorities which make clear the importance of general deterrence and denunciation.[11] The judge noted that specific deterrence was an important sentencing factor considering the applicant’s prior convictions and imprisonment for drug trafficking.[12]
[11]Ibid [94], [96], [99], [104], [118].
[12]Ibid [97].
After noting the importance of the quantity of drugs to any assessment of the gravity of the offending, the judge noted that the methamphetamine found at the apartment was 3.65 times the commercial quantity and the heroin was 1.29 times the minimum amount constituting a marketable quantity.[13] The judge noted that the wholesale value of the drugs seized from the applicant was in the order of $500,000 and more than $1 million if sold on the streets.[14] The judge inferred from the number of substantial drug sales and the quantity of drugs and cash seized that profit was the applicant’s primary motive.[15] The judge was prepared to accept that as a two-person business the operation was relatively less sophisticated than other commercial-scale drug syndicates.[16] His Honour accepted that the offending fell below mid-range for this type of crime.[17]
[13]Ibid [100]–[101].
[14]Ibid [98].
[15]Ibid [104].
[16]Ibid [105].
[17]Ibid [106].
The judge noted that the plea of guilty had ‘very high utilitarian value’ in part because drug trafficking charges are notoriously difficult and expensive to prosecute, often involving long trials that can be a substantial burden on the community.[18] The judge accepted that the applicant was remorseful and that by reason of the COVID-19 pandemic, restrictions would render conditions of imprisonment more onerous than usual.[19] He also accepted that the risk of deportation would make imprisonment additionally harder for the applicant.[20]
[18]Ibid [109].
[19]Ibid [111].
[20]Ibid [112].
Perhaps unsurprisingly, the judge viewed the prospects of the applicant’s rehabilitation with caution.[21] He noted that whether or not the applicant would reoffend depended substantially on whether or not the applicant could be abstinent from drugs.[22]
[21]Ibid [115].
[22]Ibid.
Having regard to the proposed grounds of appeal, it is necessary to refer to how the judge dealt with concurrency between the methamphetamine and heroin charges. In that respect, the judge said:
As you are to be sentenced for more than one offence, and because there is an overlap in your offending conduct between all charges, I have also moderated the individual sentences, and made orders for partial cumulation, to achieve a sentence which properly reflects your total criminality.
…
The trafficking of different drugs deserve separate recognition in the sentencing process.[23]
[23]Ibid [116]–[120].
Proposed grounds of appeal
The applicant has applied for an extension of time within which to file an application for leave to appeal his sentence on the following proposed grounds:
1.The sentences imposed offend the principle of totality and/or doubly punish the applicant. In particular:
(a)the sentences imposed do not reflect the overlap in the offending the subject of Charges 1 and 2; and
(b)the mere fact that two different drugs were trafficked did not, in the circumstances of this case, justify the imposition of a greater sentence than would be the case had a proportionately greater quantity of one drug been trafficked.
2.The learned sentencing judge erred in failing to take into account the heightened utilitarian value of the applicant’s guilty pleas due to the consequences of the Covid-19 pandemic, and the applicant’s willingness to facilitate the course of justice indicated by his guilty pleas in these circumstances.
3.The individual sentences, orders for cumulation, total effective sentence and non parole period are manifestly excessive in light of the overlap between the offences and the applicant’s early guilty pleas, together with other factors in mitigation.
In circumstances where the delay was not inordinate, a reasonable explanation has been provided and the respondent does not oppose the application, I will grant the extension of time sought by the applicant.
Ground 1
Parties’ submissions
The applicant submits that he conducted a single drug trafficking business dealing in both heroin and methamphetamine. By way of illustration, the applicant points to the following factors:
(e) the offending occurred over the same six-week period of time;
(f) the same people were involved in trafficking the drugs;
(g) almost all of the same customers were involved with all but one purchaser of heroin also purchasing methamphetamine;
(h) common methodology was employed; and
(i) both drugs were found in his possession at the same time.
The applicant accepts that the judge was aware of the need to give effect to the principle of totality and avoid double punishment. However, it is submitted that the resulting sentence, in which 50 per cent of the 4 year sentence imposed on charge 2 was ordered to be served cumulatively upon the sentence on charge 1, cannot be reconciled with a proper application of principle. He submits that the judge wrongly focused on the fact that two different drugs were sold and that the conduct constituting charge 2 added only minimal criminality to charge 1.
The respondent submits that the judge paid proper regard to the principle of totality. The judge said that he was moderating the individual sentences and stated that he would ‘temper’ the orders for cumulation. The respondent acknowledges that there was a degree of overlap between charges 1 and 2, however, it notes that charge 2 involved additional criminal conduct which made it appropriate to impose some additional sentence. The fact that two different drugs were involved deserved separate recognition, particularly because the applicant was running a business supplying two different drugs and each charge related to separate and distinct sales.
The respondent submits that in those circumstances, the judge properly directed himself as to both totality and the risk of double punishment, and the degree of cumulation ordered was not greater than warranted.
Consideration
The judge was entitled to treat the applicant as having engaged in a substantial drug trafficking business involving both heroin and methamphetamine. The judge was not obliged to aggregate the quantity of drugs and sentence as if the applicant were only engaged in the sale of a single drug.
The fact that two drugs were involved supports the conclusion that the applicant was able to service a range of demands within the overall business. It was open to the judge to treat the sale of heroin and methamphetamine as distinct. To adopt an observation of Priest JA in McNaughton v The Queen,[24] as the trafficking of the heroin involved ‘a distinctive drug in the [applicant’s] cornucopia, [it] deserved separate recognition in the sentencing process’.[25] Even though there was significant overlap between the customers, the offending in relation to the heroin reflected additional criminality and warranted some measure of cumulation.[26] The applicant in effect operated both at a wholesale and user level and the diversity of drugs was obviously an aspect of the business. It is important to note that the quantity of heroin was substantial in itself and does not indicate that it was merely an incidental aspect of the business.
[24][2014] VSCA 174.
[25]Ibid [61].
[26]O’Loughlin v The Queen [2017] VSCA 325, [27] (Weinberg JA).
The judge was plainly aware of the need to recognise the overlap in the offending relating to the two drugs. The overlap arose because, in some respects, the applicant adopted the same business model or methodology in relation to both drugs. In order to reflect the overlap, the judge said that he had moderated the individual sentences.
Having regard to the applicant’s criminal history, which included offences both for violence and drugs for which periods of imprisonment had been imposed, the significant quantity of drugs involved and the importance that must be given to general deterrence and denunciation, it is apparent from the sentence he imposed that the judge gave effect to his stated intention. The sentence imposed on charge 1 can properly be seen as lenient given the matters just mentioned. Equally, the sentence imposed on charge two, were it standing alone, would properly be seen as moderate. Both sentences show that a degree of moderation has been applied with an eye to totality.
When the judge came to assess the overall level of criminality and make orders for concurrency, he arrived at a total effective sentence of 10 years and 6 months’ imprisonment for the two drug charges. Within the bounds marked out by the principles associated with the manifest excess ground: ‘The discretion to order cumulation between counts is a very broad one. It should not be unnecessarily circumscribed. Reasonable minds will differ as to whether cumulation should be ordered and if so in what amount.’[27]
[27]R v Hogan [2008] VSCA 279, [29] (Maxwell P, Redlich JA and Robson AJA).
Applying that approach, in my view, it is not arguable that in doing so, the judge must have failed to reflect the overlap in the offending or given a disproportionate sentence merely because two drugs were involved.
Ground 1 must be rejected.
Ground 2
Parties’ submissions
The applicant’s submissions on this ground commence by recording his submission on the plea that there was an increased utilitarian value in his guilty plea as a result of disruptions caused by the COVID-19 pandemic. However, he submits that the judge failed to have regard to this added utility and only took into account the additional burden of imprisonment created by pandemic restrictions.
The applicant says that although the judge recognised the very high utilitarian value of his plea given the difficulty of prosecuting drug offences, the judge made no reference to the additional value of the plea in facilitating the course of justice in the context of the pandemic. The applicant also points to the declaration made under s 6AAA of the Sentencing Act 1991 as supporting the submission on the basis that the moderation in sentence attributable to the plea of guilty (21 per cent of the total effective sentence and 25 per cent of the non-parole period) would be conservative even in ordinary times.
The applicant says that the current backlog of approximately 1,000 criminal jury trials in the County Court means that the benefit to the administration of justice of a plea of guilty is significantly heightened and must be reflected in sentence.
The respondent submits that the judge ascribed ‘very high utilitarian value’ to the plea of guilty and concluded that the applicant was entitled to ‘a demonstrable sentencing benefit’.[28]
[28]Reasons [109]–[110].
The respondent acknowledges that the judge did not specifically refer to the plea as having greater value or benefit in the context of the pressures on the court system as a result of the current pandemic, however, he did record the applicant’s submission to that effect, and must be taken to have accepted it.
Consideration
The respondent’s submission must be accepted.
In assessing the weight to be given to the applicant’s plea of guilty, the judge took into account its utilitarian value and gave it great weight. I am not persuaded that the judge undervalued the utilitarian value merely because he did not explicitly refer to the benefit that a plea of guilty has in the current context.
The judge, like all judicial officers, would be acutely aware of the burdens and delays that the pandemic has caused to the judicial system. Obviously, with the inability to hold jury trials for an extended period, the backlog has grown. Equally, it is obvious that a plea of guilty relieves some of the pressure on the system.
As the respondent also submits, nothing can be gained from the s 6AAA statement. The following observation of this Court explains why:
It is well established that, due to the artificiality in the formulation of a s 6AAA declaration and the fact that the process of instinctive synthesis involves a balancing of multiple — and often competing — sentencing considerations, such a declaration is generally not to be taken to exhibit error.[29]
[29]Blango v The Queen [2018] VSCA 210, [59] (Whelan and Kyrou JJA), citing Saab [2012] VSCA 165, [58]–[61]; Zogheib v The Queen (2015) 257 A Crim R 454, 468–70 [60]–[64]; Maybus v The Queen [2017] VSCA 125, [52].
The applicant under this ground fails to give the reasons a fair reading as a whole. I am unpersuaded that the judge ignored the submission nor did he fail to take into account, in a full and proper way, the utilitarian value of the plea.
Ground 2 is not reasonably arguable.
Ground 3
Parties’ submissions
The applicant submits that, having regard to the various mitigating factors, the sentence is wholly outside the available range. The applicant highlights his early guilty pleas, the additional burden of imprisonment arising from his fear of deportation, pandemic-induced restrictions, the applicant’s awareness of the impact of his incarceration on his child and the expectation that he will not have the opportunity of being paroled in the event that the Commonwealth revokes his permanent residency. He also points to the fact that he grew up in an environment of dysfunction and violence and that in assessing the prospects of rehabilitation his past recidivism following release must be seen in the light of the fact that he had been released from prison on the last occasion without the benefit of supervision under parole.
The respondent submits that the judge gave sufficient weight to the mitigating factors and the head sentence and non-parole period were appropriate in the circumstances.
Consideration
Neither the total effective sentence nor its individual components are manifestly excessive.
Dealing first with charge 1, the maximum prescribed penalty for charge 1 is life imprisonment. The applicant was involved in a business which trafficked over 3.8 kg of methamphetamine, which was approximately 5.14 times the commercial quantity. The trade conducted by the applicant occurred over a relatively compressed timeframe, demonstrating that he was able to procure and sell substantial quantities of methamphetamine within a short period of time. Given the applicant’s history, and the quantity of drugs involved, the short timeframe does not suggest an impulsive or aberrant episode. Rather, it shows the escalation of an established pattern of criminal wrongdoing. It follows that not only are the personal matters relatively modest, but specific deterrence remained a critical factor in the sentencing discretion. Past terms of imprisonment have not deterred the applicant from offending. Indeed, it appears that over time, the scale of his offending has significantly increased.
The need for general deterrence in this context is also well established. Indeed, the importance of general deterrence means that the significance to be attached to factors that are personal to the offender may have to be reduced. In the present case, the factors personal to the applicant were in many respects relatively modest.
It is true that he had a childhood of some deprivation, however, he has family support and a child. He has employable skills. Notwithstanding these factors, almost certainly as a result of his own addiction, he has been engaged in the sale of drugs for an extended period of time.
The risk of deportation can be a significant matter.[30] However, it appears that when he was last convicted, his permanent residency was revoked but he was able to have that decision reversed. As a result of the current conviction, his permanent residency will be cancelled and he is understandably pessimistic about having that reversed for a second time. More importantly, however, the risk of deportation has not in the past deterred the applicant from substantial criminal conduct.
[30]Allouch v The Queen (2018) 276 A Crim R 1, 8 [39]; [2018] VSCA 244 (Beach and Weinberg JJA); Loftus v The Queen [2019] VSCA 24, [79] (Whelan AP and Niall JA).
By no means can it be said that the term of imprisonment imposed for charge 1 was out of line with current sentencing practice.
The judge was obliged to give separate consideration to the criminality involved in charge 2.
It was well open to the judge to order a degree of cumulation in relation to the heroin and the duration of 2 years was not manifestly excessive.
Conclusion
The application for an extension of time within which to file an application for leave to appeal is granted. The argument that the sentence or its individual components are manifestly excessive is unsustainable. The application for leave to appeal is refused.
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