Ky BOI Tran v The Queen
[2020] VSCA 284
•13 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0037
| KY BOI TRAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 November 2020 |
| DATE OF JUDGMENT: | 13 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 284 |
| JUDGMENT APPEALED FROM: | DPP v Tran [2019] VCC 1942 (Judge Lacava) |
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CRIMINAL LAW — Appeal — Dealing with money reasonably suspected of being proceeds of crime, trafficking in heroin and possessing a restricted substance — Total effective sentence of 3 years’ imprisonment with recognizance release order after 2 years— Whether individual sentence of 2 years’ imprisonment for dealing with money reasonably suspected of being proceeds of crime manifestly excessive — Whether excessive cumulation between sentences — Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Connolly | Paul Vale Criminal Law |
| For the Respondent | Ms K Breckweg | Commonwealth Director of Public Prosecutions |
PRIEST JA
T FORREST JA:
Introduction
On 1 November 2019, the applicant pleaded guilty in the County Court to a Commonwealth indictment charging him with one charge of dealing with money, being $100,000 or more, reasonably suspected of being the proceeds of crime[1] (charge 1); two charges of dealing with money, being less than $100,000, reasonably suspected of being the proceeds of crime[2] (charges 2 and 3); one charge of trafficking in a trafficable quantity of a controlled substance,[3] heroin (charge 4); and two charges of possessing a controlled drug,[4] methamphetamine and cocaine respectively (charges 5 and 6).
[1]Criminal Code (Cth), s 400.9(1). The maximum penalty is three years’ imprisonment or 180 penalty units (or both).
[2]Criminal Code (Cth), s 400.9(1A). The maximum penalty is two years’ imprisonment or 120 penalty units (or both).
[3]Criminal Code (Cth), s 302.4(1). The maximum penalty is 10 years’ imprisonment or 2000 penalty units (or both).
[4]Criminal Code (Cth), s 308.1(1). The maximum penalty is two years’ imprisonment or 400 penalty units (or both).
Following a plea, on 22 November 2020 the judge sentenced the applicant to three years’ imprisonment, and directed that he be released on a recognizance release order[5] in the sum of $2,000 for two years after serving two years’ of the sentence. It is convenient to set the sentence out in tabular form:
[5]Pursuant to s 19AC(1) of the Crimes Act 1914 (Cth), where a court imposes an aggregate sentence of imprisonment of three years or less, the court must make a single recognizance release order in respect of that sentence and must not fix a non-parole period.
Charge Offence Sentence Cumulation[6] 1 Dealing with money being $100,000 or more, reasonably suspected of being proceeds of crime 2 years Base 2 Dealing with money being less than $100,00, reasonably suspected of being proceeds of crime 6 months 6 months 3 Dealing with money being less than $100,00, reasonably suspected of being proceeds of crime 2 months — 4 Trafficking heroin 6 months 6 months 5 Possess a controlled drug (methamphetamine) $200 fine — 6 Possess a controlled drug (cocaine) $200 fine — Total effective sentence 3 years imprisonment and $400 fine Recognizance release order Release after 2 years, for a period of 2 years, on a recognizance in the sum of $2,000 Pre-sentence detention 254 days Section 6AAA statement 5 years with 3 years non-parole [6]Under s 19(2) of the Crimes Act 1914 (Cth), cumulation is effected by the court directing when sentences are to commence. In this case, the judge directed that the sentences on charges 1 and 3 were to commence ‘immediately’; the sentence on charge 2 was to commence at the completion of the sentence on charge 1; and the sentence on charge 4 was to commence at the completion of the sentences imposed on charges 1 and 2.
The applicant now seeks leave to appeal on two grounds. As will be seen, the grounds challenge the individual sentence on charge 1 — which relates to the applicant’s illicit dealing with the sum $575,000 —but also (in effect) the extent of cumulation ordered with respect to the sentences on charges 2 and 4 — relating respectively to his illicit dealing with the sum of $48,150 and his trafficking in heroin. The proposed grounds are formulated as follows:
1. The sentence on charge 1 was manifestly excessive in light of:
(a)The maximum penalty;
(b)The objective gravity of the offending;
(c)The applicant’s early plea of guilty; and
(d)Sentencing practices for this offence.
2. The order for the commencement of the sentences on charges 2 and 4 breached the principle of totality and produced a total effective sentence that was manifestly excessive.
For the reasons that follow, we would refuse leave to appeal.
The offending
It is necessary to summarise the applicant’s offending.
On 13 March 2019, Australian Federal Police (‘AFP’) executed a search warrant at the applicant’s residence. They found a trafficable amount of heroin, 8.1 grams pure weight (charge 4); methamphetamine, 0.5 grams pure weight (charge 5; cocaine, approximately 0.1 grams pure weight (charge 6); and a total $15,460 in cash (charge 3). Subsequent investigations revealed that the applicant:
· since 2012 had been unemployed and in receipt of social security payments;
· on 12 March 2019, purchased a used vehicle, for which he paid the seller $48,150 cash (charge 2);
· on 17 September 2016, made a cash deposit of $575,000 into a Crown Casino account held in his name, which he then transferred into the account of another (charge 1).
AFP officers found the quantities of heroin, methamphetamine and cocaine in a drawer within a cabinet which the applicant unlocked using a key. The heroin consisted of compressed powder wrapped in yellow tape, and the methamphetamine and cocaine were in two clip-seal bags. In the same drawer, police found two envelopes respectively containing $12,480 and $600 in cash; and in the applicant’s jeans, located in the premises’ ensuite, officers found $2,380 in cash (the total cash amounting to $15,460).
Parked outside the applicant’s premises was a white Audi A4. The applicant initially stated that the car did not belong to him, and he did not know anything about it. But when asked why the keys for that car were inside his premises, the applicant admitted that the Audi was his. Further enquiries revealed that the applicant had purchased the car the previous day. The car’s seller had privately advertised it on ‘carsales.com.au’. After negotiations and discussions, the applicant agreed to purchase the vehicle. On 12 March 2019, the applicant and the seller met at the Commonwealth Bank branch in Hampton East to finalise the sale. The applicant paid the agreed price for the car by handing $48,150 in cash to the seller.
AFP also located a card linked to a Crown Casino Rewards account in the applicant’s wallet. Investigations revealed that the account had been opened by the applicant in 1999 and held in his name ever since. According to Crown Casino records, the applicant went to the Casino premises at Southbank on 17 September 2016, made a cash deposit of $575,000 into his Rewards account, and, shortly afterwards, transferred that amount into the account of another person.
During a recorded conversation under caution, the applicant indicated that he was not employed. Subsequent enquiries with the Australian Taxation Office (‘ATO’) confirmed that he had:
· been in receipt of Newstart Allowance social security payments of $555.61 per fortnight since 2012;
· previously lodged tax returns with the ATO indicating a combined income of approximately $124,145.00 between 2009 and 2013 (averaging $31,036.25 per fiscal year);
· since 2013 reported no income beyond the Centrelink payments.
The applicant’s circumstances and the reasons for sentence
The applicant, now aged 45 years,[7] is an Australian citizen. He has a number of prior convictions, including three for trafficking heroin, in 1995, 1996 and 2001. The 1996 conviction resulted in a suspended sentence of imprisonment, which the applicant breached. In relation to the 2001 conviction, the applicant was sentenced to three years and six months’ imprisonment, with a non-parole period of 21 months.
[7]His date of birth is 8 March 1975.
In his sentencing remarks, the judge described charges 1, 2 and 3 as ‘each serious examples of what are serious offences’, although the judge accepted that ‘there is no evidence [the applicant] received a benefit from the transaction that amounts to Charge 1’. The judge also accepted that ‘this offending occurred in a context of loss of employment and of a broken relationship both of which led [the applicant] to relapse back into drug use’, his prior convictions suggesting that the applicant has ‘long suffered from heroin addiction’. He was on a methadone program in prison.
The judge said it was to the applicant’s ‘credit’ that he had pleaded guilty ‘at the earliest opportunity’ to the charges, the applicant thereby having saved the time and costs of a trial, admitted responsibility for his crimes, and facilitated the administration of justice. Because the applicant had pleaded guilty early he was ‘entitled to a reduction in sentence’, which would be reflected in the sentence passed. Further, the judge accepted that the applicant was remorseful for his offending. Prior to the execution of the search warrant he ‘requested to speak to police and assisted with the search and providing access to some devices’.
Although the applicant had remained drug free for 13 years, his relapse suggested that any predictions about use of drugs ‘must remain guarded’, so that the judge assessed his prospects of rehabilitation as ‘guarded’.
The judge had regard to the matters listed in s 16A(2) of the Crimes Act 1914 (Cth) ‘as well as all of the facts and circumstances pertinent to [the applicant]’. He observed that ‘the sentences imposed must have regard to deterrence, both general and specific and to denunciation’. The judge said he ‘must especially impose a just punishment’. He rejected a submission by the applicant’s counsel that a sentence of imprisonment providing for the applicant’s ‘almost immediate release, about 8 and a half months’, was appropriate. In the judge’s view, the offending ‘is too serious to impose such a disposition’.
Submissions of the parties
In this Court, counsel for the applicant submitted that the sentence on charge 1 — representing two thirds of the available statutory maximum — was wholly outside the range of sentencing options available to the sentencing judge. The objective gravity of the offending did not justify such a sentence, particularly when consideration is given to the matters in mitigation, most notably the applicant’s early pleas of guilty. Although the large amount of money was certainly a relevant factor in determining the objective gravity of the offending, counsel submitted, it would have been wrong in principle to single that factor out and give it undue weight in the sentencing exercise. It was not offending that occurred over a lengthy period of time, involving any planning or complexity, and there was no evidence that the applicant received any benefit from the transaction.
The conclusion that the sentence was manifestly excessive is bolstered by the table of comparative sentences for the offence relied upon by the prosecution before the sentencing judge. Of the eight sentences in the table, the highest sentence for this offence was 18 months’ imprisonment imposed in Arsiotis.[8] In that case, the offender pleaded guilty to offending relating to $990,050 as part of syndicate, in which he was in the middle of the hierarchy, for which he received a financial benefit of 7.5 per cent.
[8]Arsiotis v R [2015] NSWCCA 275 (Bathurst CJ, Hidden and Davies JJ) (‘Arsiotis’).
As to ground 2, counsel for the applicant submitted that the effect of the order for commencement of the sentence on charge 2 was for it to be served entirely cumulatively on charge 1, and the effect of the order on charge 4 was for it to be served entirely cumulatively on charges 1 and 2. The circumstances of the offending, counsel submitted, did not justify such orders. Counsel submitted that the failure to order the commencement of the sentences to allow for some concurrency between the charges was inappropriate having proper regard to the circumstances of the offences and the applicant, and resulted in a total effective sentence that was wholly outside the range of sentencing options available to the sentencing judge.
The respondent submitted that the sentence of two years’ imprisonment imposed on charge 1 was not wholly outside the range of sentences available to the sentencing judge. Charge 1 embraced conduct that represented a serious example of offending of this nature, and the sentence imposed adequately reflected a synthesis of the objective gravity of the offending and matters personal to the offender.
With respect to ground 2, the respondent submitted that a total effective sentence of three years’ imprisonment, with two years to serve, for four distinct and different instances of serious offending, was reasonably open to the sentencing judge.
Discussion
It is convenient to consider grounds 1 and 2 together. As we have said, the only individual sentence that the applicant challenges is that imposed on charge 1, relating to the applicant’s dealing with the sum of $575,000. In relation to charge 2 (relating to the applicant’s dealing with the sum of $48,150) and charge 4 (trafficking a trafficable amount of heroin) the applicant’s challenge is, in effect, to the degree of cumulation of the sentences on those charges effected by the orders for the commencement of those sentences.
Resolution of this application has not been free from difficulty. As we will explain, we consider three of the individual sentences to be problematic (in different ways), so too the general structure of the sentencing orders. We regard the total effective sentence and the recognizance release order, however, to be appropriate.[9]
[9]See Criminal Procedure Act 2009, s 280(1)(b).
Taking the sentence on charge 1 as a starting point, it appears to us that the sentence on that charge — dealing with money, reasonably suspected of being proceeds of crime, in the sum of $100,000 more — is stern, particularly when regard is had to the statutory maximum penalty; the kinds of sentence ordinarily imposed for that offence; and the applicant’s early pleas of guilty. That said, the fact that the sentence is stern does not carry with it the necessary concomitant that it is manifestly excessive. In the end we have come to the view that, despite inviting scrutiny, the sentence on charge 1 is not wholly outside the appropriate range (although it might be seen to be towards the top of that range).
On the other hand, given the applicant’s prior convictions for trafficking heroin, we regard the sentence on charge 4 — trafficking heroin — to be remarkably lenient. Though neither counsel sought to enlighten the sentencing judge as to the nature of the trafficking alleged, and the judge did not himself seek enlightenment, it is probable that all three proceeded on the basis that the applicant possessed the heroin the subject of charge 4 for sale.[10] Had we been called upon to sentence the applicant, we would have imposed a considerably more severe sentence on that charge, with significantly greater cumulation. As to that, it was not suggested that the money the subject of charges 1, 2 and 3 was the proceeds of trafficking, or that the applicant’s trafficking was other than separate and distinct from the conduct founding those charges.
[10]Section 302.1 of the Criminal Code (Cth) provides:
302.1 Meaning of traffics
(1) For the purposes of this Part, a person traffics in a substance if:
(a) the person sells the substance; or
(b) the person prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or
(c) the person transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or
(d) the person guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or
(e) the person possesses the substance with the intention of selling any of it.
Once more on the other hand, however, we consider the sentence on charge 2 to be very lenient, albeit that the degree of cumulation effected by the order for commencement of the sentence might be considered appropriate had a more suitable sentence been imposed on that charge.
Ultimately, notwithstanding the perceived difficulties with the individual sentences and cumulation between them, we consider that the total effective sentence and recognizance release order properly reflect the applicant’s criminality overall, and the aggravating and mitigating features. No lesser sentence would be appropriate.
For these reasons, leave to appeal against sentence will be refused.
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