Kev v The Queen

[2015] VSCA 232

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0114

CHHODAPHEA KEV	Applicant
v
THE QUEEN	Respondent

S APCR 2015 0029

SAMBATH SOK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	BEACH JA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 September 2015
DATE OF JUDGMENT:	1 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 232
JUDGMENT APPEALED FROM:	DPP v Kev (Unreported, County Court of Victoria, Judge Dean, 19 May 2014)

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CRIMINAL LAW – Sentence – Applications for leave to appeal – Importing commercial quantity of border controlled drug (12.36 kg of heroin) – Possessing a commercial quantity of a border controlled drug (12.36 kg of heroin) – Eight times the prescribed commercial quantity – Both applicants sentenced to a total effective sentence of 14 years and 9 months, with a non-parole period of 11 years – Parity – Parity principles not infringed – Errors contended for not reasonably arguable – Sentence not manifestly excessive – No reasonable prospect that sentence would be reduced – Applications for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant, Kev	Mr M A Thomas	Grigor Lawyers
For the Applicant, Sok	Mr B Walmsley QC	Condello Lawyers
For the Crown	Mr D D Gurvich	Commonwealth Director of Public Prosecutions

BEACH JA
ROBSON AJA:

Introduction

1. On 15 April 2014, following a 16 day trial in the County Court, the applicants, Chhodaphea Kev and Sambath Sok were each found guilty of one charge of importing a commercial quantity of a border controlled drug (heroin) contrary to s 307.1(1) of the Criminal Code 1995 (Cth) and one charge of possessing a commercial quantity of an unlawfully imported border controlled drug (heroin) contrary to s 307.5(1) of the Criminal Code 1995 (Cth). Following plea hearings on 16 April and 5 May 2014, the applicants were sentenced on 19 May 2014 as follows:

Applicant Kev
Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Importing a commercial quantity of a border controlled drug [Criminal Code 1995 (Cth) s 307.1 (1)]	Life imprisonment [Criminal Code 1995 (Cth) s 307.1(1)]	14 years 9 months	Concurrent
2	Possessing a commercial quantity of an unlawfully imported border controlled drug [Criminal Code 1995 (Cth) s 307.5 (1)]	Life Imprisonment [Criminal Code 1995 (Cth) s 307.5 (1)]	6 years	Concurrent
Total Effective Sentence:		14 years 9 months
Non-Parole Period:		11 years
Pre-sentence Detention Declared:		130 days

Applicant Sok
Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1	Importing a commercial quantity of a border controlled drug [Criminal Code 1995 (Cth) s 307.1 (1)]	Life imprisonment [Criminal Code 1995 (Cth) s 307.1(1)]	14 years 9 months	Concurrent
3	Possessing a commercial quantity of an unlawfully imported border controlled drug [Criminal Code 1995 (Cth) s 307.5 (1)]	Life Imprisonment [Criminal Code 1995 (Cth) s 307.5(1)]	6 years	Concurrent
Total Effective Sentence:		14 years 9 months
Non-Parole Period:		11 years
Pre-sentence Detention Declared:		164 days

1. On 10 November 2014, Priest JA refused Kev’s application for leave to appeal against his sentence. Pursuant to s 315(2) of the Criminal Procedure Act 2009, Kev has elected to renew his application, and seeks leave to appeal against his sentence on the following ground:

The sentence imposed upon the applicant [Kev], in comparison with the sentence imposed upon the co-accused [Sok] offends the principle of parity.

1. In addition to the application made by Kev, Sok seeks leave to appeal against his sentence on the following grounds:

1.The learned trial judge erred, and his sentencing discretion miscarried, in his determination that as the heroin, the subject of the charges, was a very substantial quantity, the applicant’s offending was properly described as of the utmost seriousness.

2.The learned trial judge erred, and his sentencing discretion miscarried, by failing to accept as mitigating circumstances that the applicant’s judgement was impaired for the offending, as a consequence of drug addiction, and further, that his participation in it was motivated by a desire to feed that addiction.

3.The learned trial judge erred, and his sentencing discretion miscarried, in failing to take into account sufficiently, or at all, the applicant’s prospects for rehabilitation.

4.        The sentence imposed is manifestly excessive.

Circumstances of the offending

1. On 29 March 2012, five parcels containing heroin were posted from a post office in Phnom Penh, Cambodia to two rental properties in Melbourne, one in Keysborough and the other in Springvale.  The applicants had each been involved in arranging for the rental of those properties.

1. On 1 March 2012, Sok, with Kev’s knowledge, travelled to Cambodia to arrange for the heroin to be posted to Australia.  Sok returned to Australia on 2 April 2012.

1. On 4 April 2012, one of the five parcels arrived in Australia.  On 10 April 2012, it was delivered to the rental property in Springvale that the applicants were occupying.  That parcel contained 2.4 kilograms of heroin suspended in 14 kilograms of liquid.  Both applicants were present when the parcel was delivered and knew that it contained heroin.  These events constituted the charges of possessing a commercial quantity of an unlawfully imported border controlled drug, for which the applicants were convicted.

1. On 6 April 2012, the other four parcels arrived in Australia and were examined by Customs on 8 April 2012.  The parcels were consequently examined and analysed by AFP forensic science officers who found that the parcels contained a total of 9.96 kilograms of heroin suspended in 57.26 kilograms of liquid.

1. On 13 April 2012, the heroin in three of the parcels was substituted with an inert substance and delivered to the rented property in Keysborough, in a controlled delivery.  The fifth parcel was not delivered.

1. Kev collected the three parcels from the Keysborough property and transported them to the Springvale property where both applicants were arrested by police.  The applicants had submerged three of the parcels in water to deactivate any listening or surveillance device that had been placed in them.

1. In total the five parcels contained 2,678 individual sachets of liquid labelled ‘Ginseng instant dyeing beauty star 30ml’.  The total quantity of pure heroin in the sachets was 12.36 kilograms, which was valued at between $8 million and $15 million wholesale.  These events constituted the offences of importing a commercial quantity of a border controlled drug, for which the applicants were convicted.

1. On 13 April 2012, Sok, in his recorded interview with police, stated that he had consumed opium earlier that morning by having three or four smokes using a pipe, and used opium three or four times a day.

The judge’s reasons

1. The judge commenced his reasons for sentence with a description of the applicants’ offending.[1]  His Honour then said:

   [1]R v Kev (Unreported, County Court of Victoria, Judge Dean, 19 May 2014) [5]–[12] (‘Reasons’).

As observed by the President of the Court of Appeal, Maxwell P, in Nguyen v R and Phommalysack v R [2011] VSCA 32, in relation to the offence of importation of a commercial quantity of a border-controlled drug:

"Where a commercial quantity of a drug is imported, the maximum penalty for importation and for possession is life imprisonment.  Self-evidently, therefore, the offence is to be viewed as being of the utmost seriousness.  The sentencing regime being quantity-based, the scale of the importation will be a very significant factor in sentencing.  Ordinarily, the larger the quantity imported the more serious will be the offence (other things being equal)."

Clearly, your offending is a serious example of the offence of importation and the offence of possession of a commercial quantity of a border-controlled drug.

Whilst it is not possible to precisely determine the roles you each played in the importation of the heroin, I accept that you entered an agreement with one another to import it and that you both must have occupied trusted and significant positions in a wider organisation involved in this offending.  Persons who participate at your level in the importation of a commercial quantity of heroin for profit must expect the imposition of a substantial term of imprisonment upon conviction.  The sentence that I impose must be calculated to deter you and others from offending in this way.  Illegal drugs of dependence cause incalculable damage to our society and the community must be protected from people like you.  You must also be punished for what you have done, and I detect no evidence of remorse in either of your cases.[2]

[2]Ibid [13]–[15].

1. The judge then turned to the personal circumstances of each of the applicants.  In respect to Kev, the judge said:

Chhodaphea Kev, you were born on 8 January 1974 in Cambodia and you are now aged 40.  Your family suffered persecution in Cambodia at the hands of the Pol Pot regime and fled that country when you were 11.  You resided in a refugee camp in Thailand until 1988 when your family arrived in Australia as refugees and settled in Sydney.  Following your secondary education you qualified as a fitter and turner and you have worked in that capacity and in demolition.  You are married and have three young children.  You have no prior convictions.  Your family reside in Sydney and I accept that your imprisonment in Victoria will cause a degree of hardship to them.  You were on bail for two years prior to your trial and have not re-offended.  I am prepared to accept that your prospects of rehabilitation may properly be described as reasonable.[3]

[3]Ibid [17].

1. With respect to Sok, the judge said:

Sambath Sok, you were born on 4 April 1979 in Cambodia and you are now aged 35.  You have admitted two prior court appearances in New South Wales in 2003 and 2009 for offences of violence, and your counsel also informed me that your family has sought an intervention order against you due to your violent behaviour.

You arrived in Australia as a refugee at the age of approximately 16 and completed Year 10 at Cabramatta High School in New South Wales.  Your family circumstances were disrupted and it would appear that you have had no contact with your parents or siblings for some years.  Your work history is intermittent, and whilst you are a qualified forklift driver, you have not worked regularly.  You are married but separated and have two children.

I have received in evidence a psychological report of Mr Timothy Watson-Munro, a consulting and forensic psychologist, detailing your psychological profile and developmental history.  I accept that you suffer from a longstanding polysubstance abuse disorder and you also suffer from depression and anxiety.  I accept that you were using heroin and methylamphetamine at the time of your offending, but I do not accept that this impaired your judgement to any significant degree.  Furthermore, I do not accept that your participation in this offending was to feed your addiction.  You played a significant role in the importation of a very substantial quantity of heroin for profit.  In my opinion, any assessment of your prospects of rehabilitation must be guarded.[4]

[4]Ibid [18]–[20].

1. The judge concluded:

Whilst it is clear that your respective personal circumstances differ, in my opinion those differences do not warrant the imposition of different sentences in your respective cases, and it was not submitted by your counsel or the prosecution that I should impose different sentences in respect of you. 

It is also accepted by counsel for the prosecution that the sentence I impose on the charge of possession of a commercial quantity of an unlawfully imported border-controlled drug should be served concurrently with the sentence I impose for the charge of importing a commercial quantity of a border-controlled drug.[5]

[5]Ibid [21]–[22].

The resolution of Kev’s application

1. The principles governing parity are well established.  As has been said before, 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.  As the plurality observed in Wong v The Queen,[6] equal justice requires identity of outcome in cases that are relevantly identical;  whereas, it requires different outcomes in cases that are different in some relevant respect.  Further, in cases where an appellate court has to consider whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach that is taken is relevantly analogous to that which arises when it is said that a sentence is manifestly excessive.[7]

   [6](2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ).

   [7]See generally, Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Wong v The Queen (2001) 207 CLR 584; Green v The Queen (2011) 244 CLR 462.

1. Kev and Sok received the same sentence.  Kev submits that ‘in the present case there were clear distinctions to be drawn in the personal circumstances between [Kev] and [Sok] which bore upon both the head sentence to be imposed … [and] the non-parole period’.  It was contended that there was a ‘clear distinction’ between Kev and Sok in terms of their respective antecedents, character and prospects of rehabilitation.

1. However, the most significant factor in the sentencing of Kev and Sok was the objective seriousness of their offending.  The quantity of pure heroin imported by them was approximately eight times the prescribed commercial quantity.  Further, the judge rightly held that the roles of Kev and Sok in the offending could not be distinguished.  Additionally, while there were differences in the personal circumstances of each applicant, those differences were plainly recognised by the judge, and dealt with in his reasons for sentence.  Sok’s prior convictions were not for drug related offences, they were for less serious offences that were dealt with summarily, and for which no sentence of imprisonment was imposed.  The fact of Kev’s lack of prior convictions was not of great moment in the context of the serious offending of which he had been convicted involving, as it did, the importation of such a significant amount of a border controlled drug.

1. We are unable to see any error in the judge’s conclusion that the differences in the respective personal circumstances of the applicants did not warrant the imposition of different sentences in this case.

The resolution of Sok’s application

1. Sok makes four complaints about the sentence imposed upon him:  first, Sok submits that the judge was wrong to describe his offending as of ‘the utmost seriousness’ (ground 1);  secondly, Sok submits that the sentencing discretion miscarried when the judge failed to accept, as mitigating circumstances, the fact that Sok’s judgment was impaired in relation to the offending as a consequence of his drug addiction, and the fact that Sok’s participation in the offending was motivated by a desire to feed that addiction (ground 2);  thirdly, Sok submits that the judge erred in not taking into account sufficiently, or at all, Sok’s prospects for rehabilitation (ground 3);  and fourthly, Sok contends that the sentence imposed was manifestly excessive (ground 4).

1. Sok’s argument on ground 1 commences with an analysis of dictionary definitions of the word ‘utmost’, noting that these definitions include ‘of the greatest possible degree or amount’ or ‘at the furthest limit’.  The point is then made that there are more serious examples of the offences for which Sok was convicted than the circumstances of Sok’s offending.  The argument appears to proceed as if the judge’s reasons were some sort of statute or deed that falls to be construed by this Court.  Of course, nothing could be further from the truth.  A judge’s reasons for sentence are not to be construed as if contained in a statute or deed.[8]

   [8]R v Groom [1999] 2 VR 159, 160 [3] (Tadgell JA).

1. There was nothing wrong with the judge describing the offending in this case as being of the utmost seriousness.  Plainly, importing a multiple of the prescribed commercial quantity of a border controlled drug is of the utmost seriousness.  There is no basis for contending that in so describing the offending the judge fell into error or failed to appreciate the true objective seriousness of the present offending.  Ground 1 is wholly devoid of merit.

1. The short answer to ground 2 is that, on the evidence before him, it was open to the judge not to accept that Sok’s addiction to heroin impaired his judgment to any significant degree, or that Sok’s participation in the offending was to feed Sok’s addiction.  This was not some street level trafficking engaged in by an addict for the purpose of feeding an addiction.  Having regard to the amount and value of the drug involved, it is difficult to see how it can be sensibly contended that the judge erred when he failed to accept that Sok’s participation in the offending was to feed Sok’s addiction.  Further, we see no basis for concluding that the judge was bound to accept that Sok’s judgment was impaired to any significant degree at the time of his offending.  Ground 2 must be rejected.

1. Similarly, ground 3 is without substance.  When one looks at the evidence called on the plea, and all of the circumstances personal to Sok, we see no basis for concluding that the judge was wrong when he assessed Sok’s prospects of rehabilitation as ‘guarded’.

1. Finally, we turn to Sok’s complaint about manifest excess.  As has been said many times before, manifest excess is a difficult ground to make out.  The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[9]

   [9]R v Abbott (2007) 170 A Crim R 306.

1. In our view, notwithstanding the mitigatory factors that were relied upon by Sok, and taken into account by the judge, the objective seriousness of Sok’s offending well-justified the sentence imposed by the judge.  Far from being manifestly excessive, the sentence imposed was entirely appropriate.

1. It follows from what we have said that none of Sok’s proposed grounds of appeal are reasonably arguable.  Further, there is no reasonable prospect that the Court of Appeal would reduce Sok’s sentence.[10]

   [10]See ss 280(1) and 281 of the Criminal Procedure Act 2009.

Conclusion

1. Both applications for leave to appeal must be refused.

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