Kim v The Queen

[2019] VSCA 149

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0151

BEN KIM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	KAYE and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 June 2019
DATE OF JUDGMENT:	26 June 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 149
JUDGMENT APPEALED FROM:	[2018] VCC 323 (Judge Campton)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a large commercial quantity of a drug of dependence – Trafficking in a drug of dependence – Possessing material for trafficking in a drug of dependence – Possessing tablet press – Handling stolen goods – Possessing a traffickable quantity of unregistered firearms – Related summary offences –Applicant sentenced to nine years and nine months’ imprisonment – Whether principle of parity infringed – Co-offenders differentiated – Principle of parity does not apply – Whether sentence and non-parole period manifestly excessive – Early guilty plea – Personality disorder – Serious offending – Leave to appeal refused – Gregory (a pseudonym) v The Queen [2017] VSCA 151 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Flynn QC	Ms C Flocke, Giorgianni & Liang Lawyers
For the Respondent	Mr P Bourke	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA

T FORREST JA:

Background

1. The applicant was a member of a group who trafficked and manufactured drugs in suburban Melbourne.  Other members of this group included Thuy Nguyen (‘Thuy’) and her son, Du Thanh Tran (‘Tran’).  Each operated a drug trafficking business with some cross-over and assistance being provided by the applicant and Thuy to each other.  The applicant and Thuy appeared to be in a relationship and divided their time between their addresses.  At material times, the applicant was unemployed and lived in a rental house in Mulga Street, Thomastown.

1. As a result of intercepted telephone conversations and SMS messages, it was established that between 14 August 2015 and 25 November 2015, the applicant was a participant in approximately 300 intercepted calls between either Thuy or Tran (whose phones were intercepted).  From 26 November 2015, the applicant’s phone was also intercepted.  Over the next 62 days, 450 calls were intercepted. 

1. The prosecution summary on the plea sets out the substance of some of these calls:

The intercepted calls evidence:

(1)       Kim —

(a)       sourced parts for the tablet press at his residence (e.g. dies).

(b) told Thuy that now he has the machine (tablet press) he can cut and produce.

(2)Kalaitzoglou and Rubinic provided assistance to Kim in drug manufacturing at his           residence ...

(3) Customers and potential customers making inquiries about the availability of drugs and prices.

(4) Kim making of arrangements with customers to supply drugs  Usually the arrangement was that the customer attended at Kim’s residence.  Kim might also attend at the customer’s residence …

(5)       Kim arranging to meet to supply drugs to customer —

(a)       [MC] on 6 occasions between 5/11/15 – 10/12/16

(b)       [AW] and [LP] on 7 occasions between 26/11/15 – 31/12/15.

(c)       [YH] on 5 occasions between 28/11/15 -1/1/16.

(d)      [DW] on 6 occasions between 3/12/15 – 11/1/16.

(e)       [KN] on one occasion – 25/12/15.

(6) A customer, [KN], complaining that Kim and Thuy had supplied him with a few grams short of the 28 gm. (ounce) methylamphetamine that he had purchased.  Kim told [KN] to calibrate his scales.  [KN] called Kim later and admitted he made a mistake. — charge 2 (part)

(7)       Payment and collection of drug debts owed to Kim.[1]

[1]We have anonymised the names of the applicant’s customers.

1. On 21 January 2016, the applicant and Thuy were arrested.  Search warrants were executed at their addresses.  At the applicant’s address, the police found:

(a)        MDMA powder (131 grams) and 3,468 MDMA tablets (charge 1 — trafficking in a large commercial quantity of a drug of dependence);

(b)        methamphetamine (67.7 grams) with 68–87 per cent purity (charge 2 — trafficking in a drug of dependence, methylamphetamine (95.7 grams).  This charge includes a discrete 28 gram quantity of methylamphetamine supplied to KN);

(c)        10.9 grams of diacetylmorphine (heroin) in powder form with 80 per cent purity (charge 3 — trafficking in a drug of dependence);

(d)       metorphan (3.4 grams), ketamine (5 grams), acetone, ether, scales, zip lock bags and laboratory glassware (charge 4 — possessing substances and equipment for the purpose of trafficking in a drug of dependence);

(e)        one tablet press (charge 5 — possessing a tablet press);

(f)         two rifles (charge 6 —handling stolen goods);

(g)        four handguns, two rifles and firearms components (charge 7 — possessing a traffickable quantity of unregistered firearms);

(h)        cartridge ammunition (summary charge 8 — possessing cartridge ammunition without a licence);

(i)         five samurai swords (summary charge 11 — possessing a prohibited weapon);

(j)         $5,085.97 (summary charge 13 — dealing with property suspected of being the proceeds of crime);

(k)        €105 (summary charge 14 — dealing with property suspected of being the proceeds of crime);  and

(l)         body armour (summary charge 15 — possessing body armour without exemption or approval).

1. It is apparent that the applicant was the principal of his own business, a consultant to Thuy’s similar business, and to a lesser degree, a consultant to Tran’s similar business.  The variety of drugs, drug paraphernalia, manufacturing equipment and prohibited weapons give some guide to the scope of the business.  The telephone intercepts confirm a particularly active and substantial enterprise.  He also offered assistance to and received assistance from others in the group, including Kalaitzoglou and Rubinic. 

1. Upon arrest, the applicant made selective answers in a recorded interview in which he largely denied offending and maintained that Thuy was his god-sister.  He asserted the tablet press was at his house because he was repairing it and the drugs located there were made by someone else who had used the press.  Her Honour Judge Campton did not accept these assertions.[2]

   [2]DPP v Kim [2018] VCC 323 [42] (‘Reasons’).

1. The applicant was sentenced as follows:
   
   

Charge	Offence	Maximum penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence (MDMA) — large commercial quantity Drugs, Poisons and Controlled Substances Act 1981 s 71	Life imprisonment	8 years’ imprisonment	Base
2	Trafficking in a drug of dependence (methylamphetamine) Drugs, Poisons and Controlled Substances Act 1981 s 71AC	15 years’ imprisonment	3 years’ imprisonment	12 months
3	Trafficking in a drug of dependence (diacetylmorphine) Drugs, Poisons and Controlled Substances Act 1981 s 71AC	15 years’ imprisonment	1 year’s imprisonment	3 months
4	Possessing substance, material, documents or equipment for trafficking in a drug of dependence Drugs, Poisons and Controlled Substances Act 1981 s 71A	10 years’ imprisonment	12 months’ imprisonment	3 months
5	Possessing a tablet press Drugs, Poisons and Controlled Substances Act 1981 s 71C	600 penalty units or 5 years’ imprisonment	6 months’ imprisonment	1 month
6	Handling stolen goods Crimes Act 1958 s 88	15 years’ imprisonment	9 months’ imprisonment	1 month
7	Possessing a traffickable quantity of unregistered firearms Firearms Act 1996 s 7C	1,200 penalty units or 12 years’ imprisonment	6 months’ imprisonment	1 month
Related Summary Offences
8	Possessing cartridge ammunition without a licence Firearms Act 1996 s 124	10 penalty units	$300 fine	N/A
11	Possessing a prohibited weapon Control of Weapons Act 1990 s 5AA	240 penalty units or 2 years’ imprisonment	3 months’ imprisonment	Nil
13	Dealing with property suspected to be the proceeds of crime Crimes Act 1958 s 195	2 years’ imprisonment	3 months’ imprisonment	Nil
14	Dealing with property suspected to be the proceeds of crime Crimes Act 1958 s 195	2 years’ imprisonment	7 days’ imprisonment	Nil
15	Possessing body armour without exemption or approval Control of Weapons Act 1990 s 8A(1)(d)	240 penalty units or 2 years	2 months	Nil
Total Effective Sentence:		9 years and 9 months’ imprisonment
Non-Parole Period:		7 years
Pre-sentence detention declared (s 18(1) of the Sentencing Act):		788 days
Section 6AAA statement (Sentencing Act):		15 years’ imprisonment with a non-parole period of 11 years

The ‘co-offenders’

1. The police operation that resulted in the arrests of the applicant, Thuy and Tran, also resulted in the arrests of a dozen other offenders.  It is unnecessary to set out their individual circumstances or sentences, save for Hai Thanh Quach and Stratos Kalaitzoglou.

1. The applicant submitted on this appeal that both Quach and Kalaitzoglou were co-offenders whose roles may be described as being closest to that of the applicant in this drug operation.  Quach was sentenced for storing a large amount of methylamphetamine and pseudoephedrine on behalf of a person he knew was a drug trafficker.  He stored these chemicals with the knowledge that an unnamed associate would use the drugs for trafficking purposes at some time in the future.  He was not sentenced on the basis that his criminal conduct was committed complicitly with the applicant.  4.8201 kilograms of methylamphetamine and 327 grams of pseudoephedrine were located at his residence.  $7,000 was also found at his premises but was not the subject of a charge.

1. By accepting a plea to trafficking in a drug of dependence of not less than a commercial quantity, the prosecution accepted that it was unable to prove the necessary state of mind of Quach in order to make out the more serious charge of trafficking in a large commercial quantity of that drug. 

1. Kalaitzoglou was dealt with for trafficking on a single day in a large commercial quantity of MDMA.  He pleaded guilty to eight other offences.  The charges and sentences are set out in the table below.  As part of the context to charge 1, the prosecution summary contained various drug-related interactions Kalaitzoglou had with the applicant throughout December 2015 and January 2016.  It is clear that like Quach, Kalaitzoglou was a part of a loose collection of offenders who each trafficked on their own behalves and who assisted each other when the occasion required it.  None of Kalaitzoglou’s offences were committed with the applicant and none of the applicant’s offences were committed with Kalaitzoglou.  During Kalaitzoglou’s plea hearing, both parties readily acknowledged that the applicant (and other offenders) were ‘not really co-offenders at all’.  His Honour Judge Gamble stated that ‘the points of dissimilarity are many and varied’ and ‘strict parity considerations do not apply’.

1. Quach was sentenced as follows:

Charge	Offence	Maximum penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence (methylamphetamine) — commercial quantity Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71	25 years’ imprisonment	5 years’ imprisonment	Base
2	Trafficking in a drug of dependence (pseudoephedrine) Drugs, Poisons and Controlled Substances Act 1981 (Vic) s 71AC	15 years’ imprisonment	2 years and 6 months’ imprisonment	12 months
Total Effective Sentence:		6 years’ imprisonment
Non-Parole Period:		4 years
Pre-sentence detention declared (s 18(1) of the Sentencing Act):		740 days
Section 6AAA statement (Sentencing Act):		8 years’ imprisonment with a non-parole period of 5 years

1. Kalaitzoglou was sentenced as follows:
   
   

Charge	Offence	Maximum penalty	Sentence	Cumulation
1	Trafficking in a drug of dependence (MDMA) — large commercial quantity Drugs, Poisons and Controlled Substances Act 1981 s 71	25 years’ imprisonment	4 years’ imprisonment	Base
2	Possessing a tablet press Drugs, Poisons and Controlled Substances Act 1981 s 71C	600 penalty units or 5 years’ imprisonment	9 months’ imprisonment	3 months
3	Possessing an unregistered Category A longarm Firearms Act 1996 s 6A	120 penalty units or 2 years’ imprisonment	6 months’ imprisonment	2 months
4 & 5	Recklessly dealing with proceeds of crime Crimes Act 1958 s 194(3)	10 years’ imprisonment	6 months’ imprisonment	2 months
6	Possessing substance, material, documents or equipment for trafficking in a drug of dependence Drugs, Poisons and Controlled Substances Act 1981 s 71A	10 years’ imprisonment	3 months’ imprisonment	1 month
7	Possessing drug of dependence (cannabis) Drugs, Poisons and Controlled Substances Act 1981 s 73	30 penalty units or 12 months’ imprisonment	4 months’ imprisonment	2 months
Related Summary Offences
11	Possessing cartridge ammunition without a licence Firearms Act 1996 s 124	10 penalty units	$750 fine	N/A
18	Possessing a registered Category B longarm without a licence Firearms Act 1996 s 6(2)	60 penalty units or 12 months’ imprisonment	6 months’ imprisonment	2 months
Total Effective Sentence:		5 years’ imprisonment
Non-Parole Period:		3 years
Pre-sentence detention declared (s 18(1) of the Sentencing Act):		694 days
Section 6AAA statement (Sentencing Act):		7 years’ imprisonment with a non-parole period of 5 years

The plea

1. The plea occupied two separate hearing dates, as her Honour requested a Forensicare psychiatric report to supplement the psychological report tendered by the applicant on the first hearing day.  In concise submissions, counsel for the applicant emphasised the following:

(m)      The applicant has a complex personal history, including that he was abandoned in Vietnam as a baby, and thereafter had a chaotic and disturbed childhood, ultimately being adopted by an Australian family.  The applicant claims to have been physically and emotionally abused, and at about 13 years old, he ran away to Sydney.  He saw a man he believed to be his brother shot to death.  Shortly afterwards, he commenced drug use.  He probably suffered personality disorders at this time, including Conduct Disorder and Reactive Attachment Disorder of Childhood.  Despite this, he completed his Victorian Certificate of Education successfully and apparently studied mechanical engineering.  He worked, mainly overseas, and also developed some skills as a cook.

(n)        The applicant has conducted several serious relationships as a adult and has a 15 year old male child.  There are three children to his main recent relationship and the applicant desires to rebuild that relationship in the future.

(o)        The psychologist, Mr Newton, diagnosed the applicant as suffering from Severe Methylamphetamine Use Disorder by DSM-5 criteria.  His personality adjustment is ‘deeply problematic’ and he meets the DSM-5 criteria for a Borderline Personality Disorder with anti-social features.

(p)       The Forensicare psychiatrist, Dr Pandurangi, agreed with Mr Newton’s formulation of the applicant’s personality features, but added that ‘[the applicant’s] personality difficulties do render incarceration more onerous compared to others who do not suffer from his condition’.  Accordingly, counsel for the applicant pressed that the sixth principle of R v Verdins[3] was engaged and that some moderation of sentence was called for on that account.

(q)        Counsel for the applicant conceded that the offending was serious and a substantial term of imprisonment would be imposed.  The applicant’s criminal history was relatively thin in the circumstances of a long-term drug user.

(r)        As to the applicant’s role in the offending, counsel for the applicant submitted his instructions were that in fact, his client was repairing the tablet press for another person and that the bulk of the MDMA was not his.  Counsel accepted that there was no evidence in the material to support these assertions.  He directed her Honour to the fact that only one of the firearms seized was capable of being discharged.

[3](2007) 16 VR 269 (‘Verdins’).

1. The prosecution’s opening captured the matters we have referred to in paragraphs 1, 2 and 5 of these reasons.  The prosecutor submitted that the applicant was a principal of his business.  Neither counsel disagreed with her Honour as to the relevance of Gregory (a pseudonym) v The Queen.[4]

   [4][2017] VSCA 151 (‘Gregory’).

The sentence

1. The judge stated that she had given the applicant a discount for his plea of guilty, as it saved the State the expense of a trial and the witnesses the ordeal of having to give evidence.[5]  Her Honour accepted that the early guilty plea demonstrated remorse on the applicant’s behalf.[6]

   [5]Reasons [37].

   [6]Ibid.

1. The judge also accepted that the applicant suffers from a borderline personality disorder, which was supported by the reports of Mr Newton and Dr Pandurangi, and that the applicant’s condition was a risk factor for his drug use and involvement with criminal activities.[7]  Her Honour further accepted Dr Pandurangi’s conclusion that the applicant’s time in custody will be more onerous than for those who do not suffer from a personality disorder.[8]

   [7]Ibid [38].

   [8]Ibid [39].

1. In sentencing, her Honour also took the following specific factors into consideration:

(s)        With respect to charge 1, a large commercial quantity of MDMA is one kilogram.  The applicant had more than double this amount.[9]

[9]Ibid [41].

(t)         The applicant was the principal in a drug trafficking operation.[10]  The evidence which supported this conclusion included:

[10]Ibid [42].

·    the intercepted calls revealed that the applicant sourced parts for a tablet press at his residence;

·    co-offenders assisted the applicant in manufacturing drugs at his residence;

·    customers made enquiries about the availability of drugs and prices to the applicant;

·    the applicant made arrangements to supply drugs to customers;

·    drug debts were collected on behalf of the applicant;  and

·    KN (a customer) had complained to the applicant that he was supplied with a few grams short of 28 grams of methylamphetamine.[11]

(u)       In drug related offending, protection of the community and general deterrence are important sentencing considerations.[12]  Her Honour referred to Gregory, in which this Court held that the current sentencing practices for commercial quantity were unduly compressed for offences at the upper end of seriousness, and did not reflect the inherent gravity of the offending, the impact on the community or the higher maximum penalty.

[11]Ibid.

[12]Ibid [43].

Ground 1 — Parity

1. Ground 1 was proposed as follows:

In all the circumstances,

a)        the sentence imposed on the applicant for charges 1, 2 and 3 on indictment G10229468; and

b)        the sentence imposed on his co-offender Hai Quach on indictment         G10229752

gave rise to a justifiable sense of grievance.

1. In oral argument, senior counsel for the applicant extended this parity argument to include the sentence imposed on Kalaitzoglou.

1. The principles governing a contention of disparity of sentence between co-offenders were conveniently summarised in Collins v The Queen:[13]

The principles governing parity are well-established.[14]  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.[15]  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.[16]  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]

[13][2015] VSCA 106 [23] (citations in original).

[14]See Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87 (‘McCloskey-Sharp’); Roujnikov v The Queen [2015] VSCA 97 [24]–[25] (Weinberg and Kyrou JJA) (‘Roujnikov’).

[15]Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462.

[16]Roujnikov [2015] VSCA 97, quoting McCloskey-Sharp [2015] VSCA 87 [17] (Osborn JA).

[17]Hilder v The Queen [2011] VSCA 192 [38]–[39] (Maxwell P).

1. In our view, this ground must fail.  There is no factual connection between the applicant and Quach or Kalaitzoglou that connects either of the men to the applicant as co-offenders.  They were not complicit in law, or in substance, to any of the offending alleged against the applicant.  At its highest, both Quach and Kalaitzoglou had a loose association with the applicant in drug trafficking activities in the northern suburbs of Melbourne, and, on occasions, had offered assistance to the applicant in his drug-related activities.  Kalaitzoglou had assisted the applicant in drug manufacturing at the applicant’s premises after he had acquired a tablet press.  This manufacturing was not the subject of any charge on the applicant’s or Kalaitzoglou’s indictments, but was part of the prosecution’s opening in the applicant’s plea hearing as ‘context’. 

1. The relevance of any association between the three men is contextual to each of them, but that is all.  We are fortified in this conclusion by the fact that the applicant’s counsel on the plea, an experienced and highly respected barrister, put no parity arguments to her Honour whatsoever, despite the fact that both Quach and Kalaitzoglou had been sentenced by the second day of the plea.  In our view, the explanation for this is clear — there was no parity argument to be put.  This ground fails on this basis.

1. Even if this conclusion is incorrect, the circumstances of both Quach and Kalaitzoglou are substantially dissimilar to the applicant’s circumstances.  Quach was sentenced for less serious offending, involving a less objectively culpable state of mind.  He was dealt with as, in effect, a storeman for another unnamed drug trafficker.  Kalaitzoglou was sentenced on a similar basis.  It was accepted that he was not the principal of a drug venture; rather, he was ‘housing’ the MDMA and the tablet press for others more deeply involved in the drug ring.  Those others were again unnamed.  Judge Gamble assessed Kalaitzoglou’s culpability as ‘quite serious’ and found that he provided a ‘layer of insulation’ for ‘those further up in the organisation’.

1. Unlike Quach or Kalaitzoglou, the applicant was the principal in his own thriving small business with a smorgasbord of products available.  There is no valid basis for a parity comparison even if Quach and Kalaitzoglou were co-offenders, which they are not. 

1. Leave to appeal on this ground must be refused.

Ground 2 — Manifest excess

1. Ground 2 of this appeal was proposed as follows:

When regard is had to the following circumstances:

·the plea of guilty,

·limited prior criminal history,

·the personal circumstances of the applicant,

·the absence of aggravating features

the individual terms of imprisonment imposed, the orders for cumulation and the non-parole period fixed are manifestly excessive.

1. In submissions, counsel for the applicant correctly accepted that a ground of manifest excess does not admit of much argument.  The ground has readily apparent merit or it does not.  For this ground to be successfully raised, the applicant must show that the impugned sentence or sentences are wholly outside the range of sentences available in the proper exercise of sentencing discretion.[18]  Put another way, the impugned sentence or sentences must be plainly unjust.[19]

   [18]Clarkson v The Queen (2011) 32 VR 361, 364 [89]; R v Macarthur [2019] VSCA 71 [58].

   [19]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ); Dinsdale v The Queen (2000) 202 CLR 321, 329 [22] (Gaudron and Gummow JJ).

1. We are not persuaded that any individual sentence on the total effective sentence can be correctly characterised as ‘wholly outside the range’.  The applicant was engaged in the business of drug trafficking for commercial gain.  As we have observed, he trafficked in relatively large amounts and was part of a loose network of like-minded individuals.  Whilst it is correct that he had a very limited prior criminal history, an unfortunate background and some entitlement to moderation on account of the sixth limb of Verdins, the principles of general deterrence and denunciation still loom large in the sentencing mix. 

1. In our view, her Honour was correct to regard this offending as serious.  On charge 1, the applicant possessed more than double the minimum quantity required for a ‘large commercial quantity’ and was appropriately assessed as a principal in his drug trafficking operation.  He was not warehousing this for some more senior member of his organisation.  He held it for sale on his own account for his personal enrichment.  Every other charge relates either directly or indirectly to this business and the applicant’s pursuit of it.

1. We wish to make it clear once more that long prison sentences await those who participate in this pernicious trade.  Those lengthy sentences are the occupational risk of the drug dealer and with modern policing techniques, that risk becomes greater by the day.  Should that risk become reality, the principles of general deterrence and denunciation will normally be accorded particular prominence in the sentencing mix.  Those who choose to embark on the business of drug trafficking must understand that they will lose their liberty for an extended period.  It is only in this way that the courts can discourage those lured by greed into an enterprise that is so harmful to our community.

1. We consider that her Honour appropriately took into account all that could be said on the applicant’s behalf and imposed sentences and orders for cumulation that sit comfortably within the appropriate sentencing range. 

1. We would refuse leave to appeal on this ground.

Conclusion

1. For the foregoing reasons, the application for leave to appeal against sentence must be refused.

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