Luong v DPP (Cth)
[2013] VSCA 296
•24 October 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0090
| HUNG VAN LUONG |
| Applicant |
| V |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| Respondent |
AND
S APCR 2012 0025
| MINH QUANG NGUYEN |
| Applicant |
| V |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| Respondent |
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| JUDGES | REDLICH and COGHLAN JJA and WILLIAMS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 October 2012 and 11 December 2012 |
| DATE OF JUDGMENT | 24 October 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 296 |
| JUDGMENT APPEALED FROM | DPP (Cth) v Nguyen (Unreported, County Court of Victoria, Judge Campton, 15 December 2011) DPP (Cth) v Luong (Unreported, County Court of Victoria, Judge Campton, 30 March 2012) |
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CRIMINAL LAW – Leave to appeal against conviction – Attempt to possess commercial quantity of unlawfully imported border controlled drug – Whether trial judge erred in directing the jury as to the elements of the attempted offence – Whether absolute liability applies in attempt offences – Purpose of absolute liability in the Criminal Code Act 1995 (Cth) – Onourah v The Queen [2009] NSWCCA 238 distinguished – Whether trial judge erred in directing the jury as to the law of possession and its application to the facts – Direction given in accordance with Kural v The Queen (1987) 162 CLR 502 – Whether verdicts unsafe and unsatisfactory – Whether the trial miscarried as a result of trial counsel failing to lead evidence of good character – Leave to appeal refused.
CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Attempted importation of commercial quantities of three different border-controlled drugs – One transaction – Whether error by orders for cumulation - Whether sentence manifestly excessive – Whether regard had to principles of totality and proportionality – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Hung Van Luong | Mr T Danos | Michael J Gleeson & Associates |
| For the Applicant Minh Quang Nguyen | Mr A D Dickenson | Valos Black & Associates |
| For the Director | Mr O P Holdenson QC Mr D D Gurvich | Director of Public Prosecutions (Cth) |
REDLICH JA:
I agree with Coghlan JA that the applications for leave to appeal against conviction of both applicants should be refused.
I also agree with Williams AJA that the application by Hung Van Luong for leave to appeal against his sentence should be refused.
COGHLAN JA:
After a joint trial in the County Court of Victoria, lasting 15 days, the applicants were convicted of the offences set out in the table below. On 15 December 2011 the applicant Minh Quang Nguyen (‘Minh’) and on 30 March 2012 the applicant Hung Van Luong (‘Hung’) were each sentenced as set out. Although both applicants were convicted of the same three charges, the period of offending for the applicant Hung was between 23 June and 12 July 2008 and for the applicant Minh on about 12 July 2008.
Count Offence Maximum Sentence Cumulation HUNG 1 Attempt to possess commercial quantity of unlawfully imported border controlled drug (cocaine) [ss 11.1 and 307.5(1) of the Criminal Code Act 1995 (Cth)] Life
10 years
BASE
2 Attempt to possess commercial quantity of unlawfully imported border controlled drug (methamphetamine) Life
10 years
2 years 6 months
3 Attempt to possess commercial quantity of unlawfully imported border controlled drug (MDMA) Life
10 years
2 years 6 months
Total Effective Sentence: 15 years’ imprisonment Non-Parole Period 11 years Pre-sentence Detention: 230 days
Other matters: Sentence on Count 1 to commence 30/3/2012
Sentence on Court 2 to commence 30/9/2014
Sentence on Count 2 to commence 30/3/2017Count Offence Maximum Sentence Cumulation MINH 4 Attempt to possess commercial quantity of unlawfully imported border controlled drug (cocaine) [ss 11.1 and 307.5(1) of the Criminal Code Act 1995 (Cth)] Life
3 years
Concurrent
5 Attempt to possess commercial quantity of unlawfully imported border controlled drug (methamphetamine) Life
3 years
Concurrent
6 Attempt to possess commercial quantity of unlawfully imported border controlled drug (MDMA) Life
3 years
Concurrent
Total Effective Sentence: 3 years’ imprisonment Non-Parole Period Recognisance release order after 514 days (which was time served at date of sentence)
Both applicants seek leave to appeal against conviction on the following grounds:
1)The judge misdirected the jury as to the elements of the offence.
2)The judge misdirected the jury as to the application of the law of possession as it related to the facts.
3)The verdicts of the jury are unsafe and unsatisfactory.
The applicant Hung makes application to add a proposed additional ground as follows:
4)The trial of the applicant miscarried as his defence was based on his lack of knowledge of the contents of the ‘foot spas’. To bolster that defence, counsel for the applicant (at the trial), should have led before the jury that the applicant was of good character. The failure to do so removed a legitimate consideration from the jury in assessing whether they could be satisfied beyond reasonable doubt of the applicant’s knowledge of the content of the ‘foot spas’
Minh has been at large on the Recognisance Release Order since December 2011.
Hung also seeks leave to appeal against sentence.
In support of the proposed additional ground for leave to appeal against conviction, an application was made to allow Hung to subpoena prosecuting counsel and his instructing solicitor in relation to conversations which they may have had with the applicant’s counsel at trial (not counsel on the application). We heard argument in relation to that application on 11 December 2012. At the conclusion of the argument the Court refused permission for the issue of the subpoena for reasons which will be set out below.
The Facts
On 20 May 2008 in Newark, New Jersey US Customs agents found 21.8 kg of methylamphetamine (29 times the maximum amount defined in the Criminal Code Act 1995 (Cth) (‘the Code’) as a ‘commercial quantity’)[1], 6.3 kg of MDMA (12.6 times a commercial quantity under the Code) and 29.1 kg of cocaine (14.5 times a commercial quantity).
[1]Criminal Code Act 1995 (Cth) s 314.1(1).
The drugs were in a container which was to be sent to Australia. There were 45 boxes in the container and 7 of the boxes contained foot spas in the bottom of which the drugs were concealed. They had an estimated combined street value of $98.5 million.
The drugs were seized in the US and the container arrived in Australia on 25 June 2008. Between 26 and 30 June 2008 members of the Australian Federal Police placed packages of inert substance in the foot spas where the drugs had been and installed a listening device in the container. Thi Kim Phung Nguyen (‘Aunty Phung’), the wife of the applicant Minh was heavily involved in the importation. She had dealings with a major organiser of the shipment called Sau who is the applicant Hung’s brother.
Aunty Phung who ultimately gave evidence for the prosecution, recruited one Phuong Bich Nguyen (‘Phuong’) to make the arrangements in Australia for the importation. Phuong also gave evidence for the prosecution.
On 23 June 2008 Hung, Aunty Phung and Phuong started to make arrangements to rent commercial premises to store and deal with the container. Hung gave money, which he had received from Sau, to Aunty Phung to pay for the rental. They rented a factory in Sunshine.
On 3 July Manh Le (‘Manh’) came from Canada to assist in dealing with the container. When Manh arrived he was met by Hung and Aunty Phung. Hung took him to the Guiding Star Motel in Brooklyn. Hung gave him cash, a SIM card for his phone and an additional mobile phone to enable him to contact some Sydney drug dealers. Manh also became a prosecution witness.
Hung visited the factory twice before the container was delivered. On one occasion he covered the windows with black plastic which he had purchased for that purpose on Aunty Phung’s instructions. At some stage he also purchased tools to be used in unpacking the container.
Lawfully intercepted telephone conversations showed that Hung was involved in the payment of container fees. He also contacted suspected Sydney drug dealers.
On 10 July Hung, Phuong and Manh went from a private address in Brooklyn to a customs broker in Tullamarine where Manh paid the broker $12,403.40 in cash for the clearance of the container. The three of them then returned to the motel in Brooklyn.
The container was delivered to the factory at about 4.00 pm on 11 July 2008 and Manh and Phuong attempted to unpack it but were not able to do so. They returned to the motel in Brooklyn. Aunty Phung spoke to Minh who was then living in Brooklyn and asked him to come and work for them for a day or two. She did not tell him about the nature of the consignment. Aunty Phung later passed on Minh’s telephone number to Phuong whom she asked to arrange for Minh to come by taxi and stay overnight at the motel. Phuong did as she was told.
A few minutes later, Aunty Phung again spoke to Phuong and told her not to ‘say anything [about the drugs] when [Minh] comes up’ and to ‘remind Manh as well’.
At about 8.00 am on 12 July 2008 Hung, Minh, Phuong and Manh all went to the factory. Hung left a few minutes later. At 8.18 am Minh asked what was inside the container and Manh said ‘chairs and others’. It was accepted that Minh only became aware of the drugs once the first foot spa was cut open. He was said to have appeared ‘surprised’, ‘apprehensive’ and ‘scared’. During the morning Minh assisted Phuong and Manh to unpack the container.
Three Sydney drug dealers arrived at the factory at 11.45 am.
At about the same time, the AFP attended at the premises with a search warrant. They found the shipping container had been unpacked and the foot spas with the ‘drugs’ opened. Phuong, Manh and Minh were arrested. Hung was arrested shortly afterwards driving nearby.
Hung made a ‘no comment’ interview. Minh did give an interview through an interpreter which is referred to in more detail under proposed ground 3.
Neither applicant gave evidence.
Minh’s defence was that his actions in and of themselves did not amount to an attempt to possess a border controlled substance. And in the alternative that if possession was made out, his continued involvement in the unpacking was the only available option to him in the circumstances.
Hung’s defence was that he had no knowledge of there being a border-controlled substance contained within the foot spas and that his entire involvement was for the purposes of setting up a legitimate business being Tina Kim Nail Supplies.
Proposed Ground 1 – The learned trial judge misdirected the jury as to the elements of the offence.
The applicants contend that the learned trial judge erroneously directed the jury when her Honour said that they did not need to be satisfied that either accused intended that the border controlled substance that he was alleged to have attempted to possess was a substance that had been unlawfully imported or that it was in a commercial quantity.
This argument was essentially a rehearsal of the argument put forward by counsel for Minh at the trial in an unsuccessful no case submission.
The offence of possession of a commercial quantity of a border controlled drug is set out in s 307.5 of the Code:
307.5Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants
(1)A person commits an offence if: [2]
[2]Sub-sections 307.5(2) & (3) establish the requisite fault elements.
(a)the person possesses a substance (Fault element: intention or knowledge) ; and
(b)the substance was unlawfully imported (Fault element: absolute liability); and
(c)the substance is a border controlled drug or border controlled plant (Fault element: recklessness); and
(d)the quantity possessed is a commercial quantity (Fault element: absolute liability).
...
(4)Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.
This offence is the substantive offence that was the subject of the attempt in this appeal. The law of attempt is set out in s 11.1 of the Code.
11.1 Attempt
(1)A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2)For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3)For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
(3A)Subsection (3) has effect subject to subsection (6A).
(4)A person may be found guilty even if:
(a)committing the offence attempted is impossible; or
(b)the person actually committed the offence attempted.
...
(6)Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(6A)Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
...
Attempt is not otherwise defined within the Code but the wording of s 11.1 is similar to that of the conspiracy provision (s 11.5) in that the first subsection, being s 11.1(1), creates the offence and the second subsection, being s 11.1(2), imposes a condition for a finding of guilt. Section 11.5 relevantly provides:
11.5 Conspiracy
(1)A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
…
(2)For the person to be guilty:
(a)the person must have entered into an agreement with one or more other persons; and
(b)the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c)the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
(2A)Subsection (2) has effect subject to subsection (7A).
…
(7A)Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.
The High Court in R v LK; R v RK[3] considered the conspiracy provision and the plurality stated that where the meaning of a word is not defined within the Code, assistance can be gained through the common law.[4] They stated that the physical elements of the offence of conspiracy were wholly contained in the first subsection of s 11.5, to which fault elements in the second subsection (s 11.5(2)(b)) attached.[5] Gummow, Hayne, Crennan, Kiefel and Bell JJ went on to say:
Proof of intention to commit an offence does not require proof or knowledge of or belief in a matter which is the subject of a special liability provision.[6]
[3]241 CLR 177.
[4]Ibid [93]-[107] (Gummow, Hayne, Crennan, Keifel and Bell JJ).
[5]Ibid [141].
[6]Ibid [117].
To try and draw a direct correlation, however, between the conspiracy and attempt provisions in terms of the requirements for a finding of guilt with respect to s 11.1(2) is not so straightforward. This is due to s 11.1(3) which specifically nominates the fault elements of each physical element of the substantive offence.[7]
[7]There is not a similar provision in s 11.5 of the Code.
It is common ground between the parties that the attempt offence contains a single physical element and the fault element is intention.[8] It is also agreed that s 11.1(3) provides that intention and knowledge are fault elements in relation to each physical element of the offence attempted subject to s 11.1(6A).
[8]Pursuant to s 5.6(1) of the Code.
What needs to be proved beyond reasonable doubt by the prosecution is that:
1.The accused attempted, in that the conduct engaged in was more than merely preparatory, to possess a commercial quantity of an unlawfully imported border controlled drug (Fault element: intention)
But the prosecution must also establish the following[9] for a finding of guilt:
2.the substance the accused attempted to possess would have been unlawfully imported (Fault element: absolutely liability);
3.the substance the accused attempted to possess would have been a border controlled drug (Fault element: knowledge or intention); and
4.the quantity of the substance the accused attempted to possess of the substance would have been a commercial quantity (Fault element: absolute liability)
[9]In accordance with R v LK; R v RK.
The complaint under this ground arises from suggested uncertainty as to how the fault elements of the substantive offence, namely absolute liability, interact with the fault elements of attempt (s 11.1(3) subject to s 11.1(6A)) when one or more of the physical elements are not in existence.
The applicants contend that pursuant to s 11.1(3) the fault element for sub-ss 307.5(b) and (d) is not one of absolute liability but rather intention or knowledge and therefore the judge misdirected the jury as to what it was that they needed to be satisfied of beyond reasonable doubt before they could return with a verdict of guilty.
The applicants concede that the plain meaning of s 11.1(6A) allows for any special liability provisions attached to a substantive offence, to also be attached to the attempted offence. However, they submit that an alternative interpretation should be taken to the plain meaning of s 11.1(6A) when on the facts a physical element of the substantive offence is absent as the law of attempt requires a specific offence to be attempted. Counsel argue that if a particular physical element of a specific offence has not yet come into existence, and there is no intention to bring that element into existence, then there can be no means of identifying what offence is being attempted without being able to refer the offence back to the knowledge or intention of the accused.
The argument continues that absurd results could ensue if it were permitted for there to be an absence of a specific intention as to quantity or an absence of the physical existence of a relevant quantity of a border controlled drug[10] or an absence of specific intent to attempt to possess an unlawfully imported substance or an absence of the physical existence of an unlawfully imported substance.[11] The notion being that a person who was only attempting to unlawfully import a border controlled drug contrary to s 307.6 (marketable quantity) could in fact be charged with and found guilty of an attempt of s 307.5 (commercial quantity) as the person would satisfy all the physical elements of the latter offence or could be guilty of an attempt to possess a substance which was not unlawfully imported or without any intention to possess an unlawfully imported substance.
[10]Under Part 9.1, Division 307, Subdivision B of the Code.
[11]The argument was focussed more on the absence of the element of quantity rather than the absence of a substance being unlawfully imported.
Reliance is placed upon a decision by the New South Wales Court of Criminal Appeal in the case of Onuorah v The Queen.[12] In that case the court was considering the meaning of s 11.1(6) and its interaction with a statutory defence under s 307.6(5) of the Code to the substantive offence. Particular reliance was placed upon the following passage where Hodgson JA (with McClellan CJ at Common Law, Howie, Hoeben and Fullerton JJ agreeing) stated:
The language of s 307.6(5), in the context of s 307.6 as a whole, strongly implies that it operates only where there is in fact a border-controlled drug that has been unlawfully imported, but the accused did not know this: that is, it should be read if it applied if the accused ‘did not know that the border-controlled drug [that is, the border-controlled drug which was in fact unlawfully imported] was unlawfully imported’.[13]
[12](2009) 76 NSWLR 1 (‘Onuorah’).
[13]Ibid [43].
The applicants contend that this approach should be the same approach taken to s 11.1(6A) when a physical element does not exist.
The respondent submits that the trial judge did not err in the direction given. It is submitted that a person can be found guilty even when an attempt to commit an offence is impossible pursuant to s 11.1(4)(a). It was further submitted that there is nothing in s 11.1(3A) or in s 11.1(6A) which limits or qualifies the operation of s 11.1(4)(a). If there were limitations, the respondent submits, it would then make it more difficult for the prosecution to prove the offence attempted than it would be to prove the substantive offence as it would elevate the requirement of proof of two of the fault elements for the offence attempted.
The respondent submits that the absurd results alluded to by the applicants would not arise as the requirement of proof as to quantity and unlawful importation are the same regardless of whether a person is charged with the substantive offence or of the attempted offence. The effect of the absolute liability fault element is that there does not need to be proof of an intention as to the quantity and it does not allow for a defence of honest and reasonable mistake as to quantity.
It is lastly submitted by the respondent that even if the judge erred as alleged by the applicants, no miscarriage of justice has occurred as the applicants’ conduct was such that an attempt to possess the drugs was manifest and clearly intentional.
I do not consider that Onuorah supports the applicants’ argument. It is not authority for the proposition that when a physical element does not exist that s 11.1(6A) will not apply. The respondent took this Court to the following passage in the judgment of Hodgson JA in the same case:
If one restricts attention to the elements of the attempted offence, then, in my opinion, in accordance with Britten, the question in truth turns on whether an accused person intends each element of the relevant crime to occur, and in pursuance of that intention does acts that are not merely preparatory but are sufficiently proximate to the intended commission of the crime. Where an element of the relevant offence is that there be a border-controlled drug that has been imported into Australia, then for there to be an attempt there must be an intention that there be such a drug that has been imported; but it is not necessary that this actually be the case. (However, as appears below, the distinction between the facts of this case and those of R v Mai could possibly have significance in relation to the defence provided by s 307.6(5) of the Criminal Code.) [14]
[14]Ibid [30].
Hodgson JA further stated that when an accused is exercising the positive defence pursuant to s 307.6(5), he can only do so if the physical element of s 307.6(1)(b) is in existence. Hodgson JA was only limiting a discrete statutory defence that, in his view, required the existence of a physical element for it to operate. Onuorah is not authority for the proposition that all statutory defences and the general application of s 11.1(6) is so limited in the event that a physical element of the substantive offence is not in existence.
I now turn to the argument concerning that of absurd results in the application of absolute liability. The Code sets out the parameters of how absolute liability is to operate:
6.2 Absolute liability
…
(2)If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a)there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
(3)The existence of absolute liability does not make any other defence unavailable.
It would follow that the effect of attaching absolute liability to these two physical elements of unlawfully importing and commercial quantity is to shift the onus onto the accused to raise a statutory defence to negate the physical element.
The purpose of absolute liability is not set out in the Code.
By s 15AB(1) of the Acts Interpretation Act 1901 (Cth), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in the Act and the purpose or object underlying the Act.
The Commonwealth Criminal Code: A Guide to Practitioners states:
Most offences require proof that the offender did something and did it intentionally, though strict or absolute liability may be imposed for circumstances or results of that act of which the offender was completely and perhaps excusably ignorant.
…
Absolute liability is uncommon in state and territorial law. Instances commonly involve displacement of the common law defence of reasonable mistake of fact by specialised statutory defences which may narrow the scope of the common law defence or place the burden of proof on the accused. In Commonwealth law the imposition of absolute liability, though frequently encountered, is usually restricted to those elements of offences which mark the constitutional or conventional limits of Commonwealth criminal jurisdiction…It may often be the case that offenders against provisions of this kind act in complete ignorance of the fact that their conduct causes injury to Commonwealth rather than state or territorial interests. But ignorance or mistake on this score, however rational or however common, ordinary, expected or ‘reasonable’, is no excuse at all. The fact that the victim of criminal conduct was a Commonwealth rather than state or territorial official marks a jurisdictional boundary; it is not a distinction which bears on culpability.[15]
[15]Commonwealth Attorney-General's Department in association with the Australian Institute of Judicial Administration, The Commonwealth Criminal Code : A Guide for Practitioners (2002), 245
In terms of the physical element of the drug being unlawfully imported, the applicability of absolute liability is to enliven Commonwealth jurisdiction with respect to this offence. The origin of Division 307 offences in the Code came from s 233B of the Customs Act 1901 (Cth).[16] Prior to its transfer into the Code, s 233B was modified to bring it in line with what its corresponding offences would become under the Code. It was modified in the sense that the legislature added the application of absolute liability in s 233B offences to the physical element of a substance being unlawfully imported. Kellam J, as his Honour then was, discussed the modification in referring to the explanatory memorandum in Re Pong Su (No 10):
[16]This was transferred into the Code through the passing of the Law and Justice Legislation Amendment Serious Drug Offences and Other Measures) Act 2005 and became Chapter 9, Part 9.1, Division 307.
Furthermore, in dealing specifically with s 233B of the Act the memorandum states:
These offences have attracted notable litigation, including the landmark High Court cases of He Kaw Teh v R .and Kingswell.. While these cases are critical of the provision, the aim of this Bill is to make the provision work as it does now once the Criminal Code principles apply.
The memorandum dealt with the application of absolute liability in s 233B(1A) and stated:
... it is not necessary to prove that a person knew that the goods in his or her possession had been imported into Australia, but it is a defence if the person proves lack of knowledge.
This statement is accompanied by a further statement referring to absolute liability under s 233B(1A).
Clearly these are matters that describe the limits on Commonwealth jurisdiction in the regulation of drug trafficking and are in no way concerned with the actual culpability of the defendant under the Criminal Code and as under the existing law, the prosecution still has to prove the defendant intended to possess or convey prohibited imports. [17]
[17][2005] VSC 10, [19]-[21] (citations omitted).
To reconcile the rationale that absurd results follow if the physical element of quantity is not present, a detailed analysis is needed of ss 313.3 and 313.4 of the Code which provide the following alternative verdicts:
313.3 Alternative verdict—offence not proved
If:
(a)in a prosecution for an offence against this Part, the trier of fact:
(i)is not satisfied that the defendant is guilty of the alleged offence; but
(ii)is satisfied, beyond reasonable doubt, that the defendant is guilty of another offence against this Part; and
(b)the maximum penalty for the other offence is not greater than the maximum penalty for the alleged offence;
the trier of fact may find the defendant not guilty of the alleged offence but guilty of the other offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
313.4 Alternative verdict—mistake as to quantity of drug, plant or precursor
(1)This section applies if:
(a)an offence against this Part (other than Division 307) is prosecuted; and
(b)the offence involves a commercial quantity or a marketable quantity of a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor; and
(c)the trier of fact would, apart from this section, have found the defendant guilty of the offence.
(2)If:
(a)the defendant proves that, at the time of the alleged offence, he or she was under a mistaken belief about the quantity of the drug, plant or precursor; and
(b)if the mistaken belief had been correct, the defendant would have been guilty of another offence against this Part; and
(c)the maximum penalty for the other offence is less than the maximum penalty for the alleged offence;
the trier of fact may find the defendant:
(d)not guilty of the alleged offence; but
(e)guilty of the other offence.
Note: A defendant bears a legal burden in relation to the matter in paragraph (2)(a) (see section 13.4).
It follows that if the prosecution has charged an accused with trafficking a border controlled drug in a commercial quantity and absolute liability is applied to the commercial quantity, an accused can raise the defence that he only intended to traffick in a marketable quantity. It will then be a question for the jury to assess on the prosecution’s evidence what the accused believed was the true quantity of the border controlled substance intended to be trafficked.
The alternative verdicts available in ss 313.3 and 313.4 and the defence under s 313.4 are not available to Division 307 offences. The reason for this can be explained by looking at the explanatory memorandum to the Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Bill 2005:
Finally, proposed Division 307 creates new offences of importing and exporting border controlled precursors based on the generic precursor offences recommended in the MCCOC Report.
Whilst there is significant overlap between the import-export offences in proposed Division 307 and other offences in proposed Part 9.1, there are also significant differences. The proposed Division 307 offences have been designed to accord as closely as possible to the offences they are replacing in the Customs Act. A guiding principle has been to ensure that the offences in proposed Division 307 are no more difficult to prove than the existing offences in the Customs Act. For that reason, commercial intention is not an element of any of the proposed Division 307 offences. Instead, absence of a commercial intention is available as a defence for some proposed Division 307 offences in a manner that reflects the current operation of the Customs Act offences.
The alternative verdict provisions in proposed sections 313.4 and 313.5 do not apply to the proposed Division 307 offences as alternative verdicts of that kind are not currently permitted for the Customs Act offences.
However, consistent with offences in other Divisions, absolute liability attaches to the circumstance of quantity of border controlled drug for offences in this proposed Division. This means that the prosecution does not need to prove that the defendant knew, or was reckless as to whether, the quantity imported or exported was a commercial quantity (for the top tier offences) or a marketable quantity (for the middle tier offences). This reflects the situation with the current import-export offences in section 233B of the Customs Act. In those offences, quantity is not an element of the offence but, under section 235, a factor that determines the applicable maximum penalty. Consequently, there is no need for the prosecution to prove fault as to quantity in order for a penalty of life imprisonment to be imposed.
The proposed Division 307 offences are designed to ensure that they will be no more difficult to prove than the existing offences in section 233B of the Customs Act, which they will replace. The new import-export precursor offences in proposed Subdivision D are consistent with the other import-export offences in relation to the element of quantity.[18]
[18]Emphasis added.
The purpose of applying absolute liability to certain physical elements of Division 307 offences is to facilitate proof of factors where knowledge or intention is not to be the basis of culpability. The prosecution must nevertheless prove the physical element of the quantity of the border controlled drug. In the same way, to prove the attempted offence, the prosecution must prove what would have been the quantity of a border controlled drug, had it not been replaced by an inert substance.[19] This prevents the absurd results that were postulated by the applicants from occurring.
[19]Section 11.1(4)(a) of the Code.
Further, it does not appear expressly or impliedly that the legislature intended there be a restriction on the application of s 11.1(6A) when a physical element of the substantive offence is not in existence. Indeed s 11.1(6A) was introduced into the Code through the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 some five years after the law of attempt was established in the original enactment of the Code. While it was not mentioned in the explanatory memorandum or second reading speech, one would imagine that if the legislature intended for there to be a restriction on its operation then the provision would have been drafted accordingly.
I do not find that there has been an error in the judge’s direction to the jury and I would refuse leave on this ground.
Proposed Ground 2 – The learned trial judge erred in that she misdirected the jury as to the application of the law of possession as it related to the facts
Both applicants complain about the following passage from the charge relating to the element of possession:
As counsel correctly said in their closing addresses, possession does not require that the thing or substance be in the actual physical custody of the person. A person can possess a thing if it is in his physical custody, but also if he has control over it either alone or jointly with other persons.
The prosecution case, obviously with respect to Hung, is that he had control over the substances either jointly with the other people involved in the drug importation, Aunty Phuong and Manh Le and that he knew that there were drugs in the foot spas. With respect to Minh, he was apprehended in the factory when the drugs had been discovered in the foot spas.
Defence counsel for Minh had something to say about this and about whether or not Minh was in possession. His argument was that he was not, that he exercised no control over the drugs, that he stood off you will remember to one side against the side of the factory wall and that he did not know anything about the drugs being in the foot spas and that he was not exercising control like Phuong and Manh Le were on that particular occasion. These are matters for you to decide, ladies and gentlemen of the jury, but the prosecution case is that both men had possession of the substances or the inert substance, the drugs, in the terms of exercising control.
With intention to possess the substance, it must be proved beyond reasonable doubt by the prosecution that the men intended to possess the substance, the drugs. The prosecution must prove beyond reasonable doubt that they intended to possess the contents of the foot spas. In other words that they meant to possess the narcotic substances in the foot spas. If you were satisfied beyond reasonable doubt on the evidence that the accused actually knew or were aware that there were drugs in the foot spas, then you would be satisfied, or you could be satisfied beyond reasonable doubt that they meant to possess the substances. In that way knowledge or awareness is relevant to intention and I think that is not a very complicated thing.
However, a belief falling short of actual knowledge on the part of the accused that there were drugs in the foot spas can also sustain an inference of knowledge. The prosecution does not have to prove that the accused actually knew that there were drugs in the foot spas. If you were satisfied beyond reasonable doubt that the accused believed that the foot spas in the container contained narcotic substances, that would sustain an inference of intention. I have already given you directions on the drawing of inferences and how you have to be careful in a criminal case of doing that, and I will not repeat them here.
You understand that the prosecution case is that at all times Hung knew that there were drugs, narcotic substances in the foot spas, that he was actively involved in this scheme and the prosecution case is that even if Minh did not know about the drugs prior to the foot spas being opened, he knew there were drugs at that stage and he continued to assist the others. If you are satisfied beyond reasonable doubt that the accused was aware of the likelihood in the sense that there was a real chance that his conduct involved the possession of narcotics and he nevertheless persisted in that conduct, that would be sufficient to infer an intention to possess. I will take you to the other three matters with respect to possessing the drugs and I will be going into more details about the defence, Hung's defence and Minh's defence shortly.[20]
[20]Emphasis added.
Counsel for Minh argues that the direction above, which was given in accordance with Kural v The Queen,[21] should not have been given. The reason being that the direction is appropriate when a defence is raised that an accused was not aware that the drugs were in his possession. Here the question was whether or not Minh exerted control over the disposition of the substance once he believed he was dealing with a border controlled substance.
[21](1987) 162 CLR 502 (‘Kural’)
Exception was taken by counsel at the trial to the direction which led to the learned trial judge saying this in the charge:
Mr Dickenson also made some submissions with respect to possession, and that was that in relation to the issue of possession, Mr Dickenson suggested to you that Minh was not one of the persons who was going to possess the drug or have custody and control of the drugs. That was Manh Le and Phuong. He was not getting any payment for his part in unloading the container, he was not responsible for taking any drugs out of the factory, he did not know there were drugs in the foot spas. Really what Mr Dickenson is saying is that he had no choice but to shut up, put his head down and get on with it. That is what Mr Dickenson has said in his closing address.
Now I remind you that as far as Minh is concerned, the prosecution has to prove that Minh intended to possess the substituted drugs and the prosecution have to prove beyond reasonable doubt that Minh meant to have custody or control of the substituted drugs. You have to look at all the evidence in relation to that. And in relation to Minh's defence, you are looking at whether or not he reasonably believed that circumstances of a sudden or extraordinary emergency existed and that committing the offence was the only way to deal with the emergency, and then you consider whether the conduct is a reasonable response to the emergency.[22]
[22]Emphasis added.
Counsel for Minh contends that this further direction was not sufficient to prevent the jury taking into account an irrelevant consideration.
Hung’s written case mirrored Minh’s written case for this ground. A different argument was advanced at the hearing of the appeal. Hung now contends that the direction should have been given but the trial judge should not have stated that knowledge was relevant to the fault element of possession. Rather the fault element of possession was whether or not a person intended to engage in the possession of the substance pursuant to s 5.2(1) of the Code. No exception was taken by counsel for Hung at the trial to the charge.
The respondent submits that there was no error with the direction and the further direction given was in accordance with s 300 of the Code and binding High Court authority of Kural.
Possession is defined in s 300.2 of the Code as:
possession of a thing includes the following:
(a) receiving or obtaining possession of the thing;
(b)having control over the disposition of the thing (whether or not the thing is in the custody of the person);
(c) having joint possession of the thing.
The decision in Kural was a decision by the High Court relating to a charge of importing a narcotic substance pursuant to s 233B(1)(b) of the Customs Act1901(Cth). As already mentioned, this offence then became the foundation for Division 307 offences within the Code. The section at the time, however, was as follows:
(1) Any person who:
(b)imports into Australia any prohibited imports to which this section applies or exports from Australia any prohibited exports to which this section applies;
…
shall be guilty of an offence.
As the offence originally existed, there was no separation of the physical elements relating to conduct and physical elements relating to circumstance as is now the case with Division 307 offences in the Code.
In Kural, the appellant denied any knowledge of the narcotic substance that he had imported into Australia. The question on appeal was what it was the Crown needed to establish for a jury to be satisfied beyond reasonable doubt that the appellant knew that the substance imported was a narcotic substance. Mason CJ, Deane and Dawson JJ, in their joint judgment said:
Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct.[23]
[23]Kural 505.
In Saad v The Queen, Mason CJ, Deane and Dawson JJ who applied the same reasoning in Kural stated the following:
As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the possession of narcotic drugs if it is proved beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug.[24]
[24](1987) 70 ALR 667, 669.
In R v Tang, Gleeson CJ said:
The physical element was conduct (which includes a state of affairs); the fault element was intention. It was, therefore, s 5.2(1) that was relevant. A person has intention with respect to conduct if he or she means to engage in that conduct. Knowledge or belief is often relevant to intention.
…
In so far as a state of knowledge or belief is factually relevant to intention as the fault element of the offence, it is knowledge or belief about the facts relevant to possession or using, and knowledge or belief about the facts which determine the existence of the condition described in s 270.1. This is a condition that results from the exercise of certain powers. Whether the powers that are exercised over a person are ‘any or all of the powers attaching to the right of ownership’ is for a jury to decide in the light of a judge’s directions as to the nature and extent of the powers that are capable of satisfying that description. This is not to ignore the word ‘intentionally’ in s 270.3(1). Rather, it involves no more than the common exercise of relating the fault element to the physical elements of the offence.[25]
[25](2008) 237 CLR 1 (with Gummow, Hayne, Heydon, Crennan and Kiefel JJ agreeing) [47], [49].
Trial counsel summarised Hung’s position as follows:
One thing is not disputed: this container did arrive on 11 July 2008. The question is whether it can be imputed that the knowledge of Mr Hung at the relevant time was that there were drugs in the container.
And later in his closing:
At the outset of this trial Hung Luong, through the interpreter, said he was not guilty of the three offences. By doing that he said one of two things: ‘I didn't know what was in them.’ ‘I was not attempting to take possession of the drugs, taking possession and assisting in the process of the container and the foot spas’, is what he says. He says, through my cross-examination, that he wasn't an underling but a mere scapegoat, a scapegoat through the auspices of the lies of Manh Le and Lisa Phuong. It's clear he was a driver, it's clear he provided money, but what is not clear to the requisite standard of beyond reasonable doubt is that he had knowledge of what was inside the foot spas. That is the sole issue at the end of the day for you, as is the issue of taking possession of the drugs.
So, at the outset of my opening to you, or closing to you - pardon me - that is the item there which Hung is said to have had knowledge of what was inside. Can you rule out the position that he had knowledge of foot spas? Can you be satisfied beyond reasonable doubt that he knew that drugs were in the foot spas?
It is clear from the passages above that knowledge, actual or inferred, of there being a narcotic substance within the foot spas was relevant to the consideration by the jury of Hung’s intention to possess.
Minh’s knowledge of the existence of a border controlled substance within the foot spas was also a valid consideration with respect to an intention to possess. It would not have discharged the prosecution’s burden of proof. Its purpose for the jury was to illustrate how Minh proceeded to act once he became aware of its existence. That is to say it was relevant for the jury to reach a conclusion as to possession by assessing Minh’s continued participation in the unpacking even in the face of the belief that he was unpacking what he thought were drugs. The judge’s further direction emphasised to the jury that they had to be satisfied beyond reasonable doubt that Minh had to have custody or control of the drugs in order to be satisfied of possession.
I would refuse leave on this ground.
Proposed Ground 3 – The verdicts of the jury were unsafe and unsatisfactory
Both applicants contend that the respective verdicts of guilt against them are unsafe and unsatisfactory.
Minh
It is Minh’s contention that in light of his defence, the Crown did not disprove beyond reasonable doubt that there was not a sudden or extraordinary emergency pursuant to s 10.3 of the Code.
The learned trial judge ruled that the defence of sudden and extraordinary emergency was a defence that should go to the jury:
I am satisfied that the defence has met the evidentiary burden as defined in the Code. I am satisfied that there is evidence that the accused could have reasonably believed that circumstances of sudden or extraordinary emergency existed.
The preponderance of the evidence from Phuong, Aunty Phung and Manh is that the accused men did not know about the drugs. The surveillance tape and his comment recorded on it support this interpretation, as does his record of interview.
With respect to sub-s.10B(b), the evidence is not as clear. However, there was evidence that the doors were locked and that Minh had been deceived. In addition, there were people in the factory that he did not know and others involved outside.
On his record of interview (question 177), when Minh was asked why he did not leave when he saw the drugs, he said, ‘I thought if I chose to leave at that time, I was afraid they might kill me.’ I consider that his record of interview, combined with the evidence that there were only two doors, which were locked and the roller door was probably locked, is sufficient to satisfy the evidentiary burden on the accused. However, I am not satisfied that there is no case to answer. The accused remained for some three and a half to four hours and was involved during that period in breaking open the foot spas after the drugs were discovered. I am not satisfied that this is a case that should not go to the jury. I am not satisfied that the jury could not reach a conclusion beyond reasonable doubt of the guilt of the accused.
The judge then charged the jury in some detail as to the matters put forward by both the prosecution and the defence specifically in relation to this statutory defence.
The defence of sudden and extraordinary emergency is set out in s 10.3 of the Code:
10.3 Sudden or extraordinary emergency
(1)A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2)This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency
It is submitted that because the applicant had no knowledge of the enterprise until opening the first spa, and upon opening the first spa he then became fearful of leaving the premises, it can then be inferred that he was in fear for his life if he did not continue to unpack the foot spas. The applicant did not give evidence at the trial and relied on his record of interview and the evidence from the prosecution’s witnesses to support his defence. The evidence of Minh being in fear of his life, which it is said created the sudden and extraordinary emergency, came first from his reaction of ‘Oh my God’ which was recorded on the listening device in the factory, second from Phung’s description that Minh appeared scared at this point in time and lastly from Minh’s record of interview which consisted of the following questions and answers:
Q136 What did you see when you opened the boxes?---I saw a bath, white colour and a sink, a tub, a white colour tub. And when that person cut something and I saw that and I was sort of trembling at the time when I saw that.
…
Q140 Why didn’t you leave the factory when you saw the drugs?---I thought if I chose to leave there at the time I afraid that they might kill me.
…
Q176 They took the panels inside the doors off?---I don’t know. When I cut it open I saw that and I thought to myself I’m going to die. And because of that I just left there and left other people to go on with it.
Q177 Did they say anything to you?---No, they didn’t say anything. But I thought that if I walk out they might kill me because at the time they only lock the door.
The evidence that Minh’s conduct thereafter was the only reasonable way to respond to the sudden or extraordinary emergency is said to have consisted of the following factors:
· The factory doors were locked;[26]
[26]ROI Q&A 107.
· There were a number of people involved in the operation;[27]
[27]ROI Q&A 141.
· It was clear that this was a substantial drug shipment;[28]
[28]ROI Q&A 158.
· His lack of English meant he could not call the police;[29]
[29]ROI Q&A 139.
· He had been deceived by his wife, Manh and Phuong;[30]
[30]ROI Q&A 131.
· That he gained nothing through his involvement;[31] and
· Aunty said in cross-examination that she believed had Minh known about the drugs he would not have come to assist.
[31]ROI Q&A 152, 154.
The prosecution contended at the trial that while an emergency may have existed upon the opening of the first foot spa, it dissipated as time went on in the morning. It further contended that Minh did not stand to one side but continued to assist with the unpacking which was not the only reasonable approach that Minh could have taken in the circumstances. The evidence proffered by the respondent to negate the defence was:
· The timeframe of approximately 3 ½ hours that Minh remained at the factory once he became aware of the drugs;
· His continued assistance in cutting open the foot spas;
· The absence of any threats or pressure; [32]
[32]No witness gave evidence in examination-in-chief or in cross-examination of threatening or putting pressure on Minh.
· The applicant’s friendly relationship with Phuong and Manh having socialised together the night before; [33]
[33]ROI Q&A 113, 118, 128.
· The applicant’s opportunity to call the police or his wife or someone who spoke Vietnamese; and
· The ample opportunities Minh had to exit the factory.
The task for the jury was twofold. Firstly, they had to assess whether or not they believed beyond reasonable doubt that Minh was not in a sudden or extraordinary emergency. If they were satisfied that the prosecution had not disproved beyond reasonable doubt that a sudden or extraordinary emergency did not exist, they then needed to consider whether or not Minh’s conduct was the only conduct reasonably available to him in the circumstances.
In returning a verdict of guilty, the jury must have been satisfied that either a sudden or extraordinary emergency did not exist or that Minh’s conduct was not reasonable in the circumstances. That verdict is now challenged on the ground that it is unsafe or unsatisfactory.
The test to be applied in assessing whether a verdict is unsafe or unsatisfactory is well established in M v The Queen:
The question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.[34]
[34](1994) 181 CLR 487, 493.
In order for the jury to reject the defence of the applicant, the prosecution had to have established beyond reasonable doubt that any of the three sub-sections of s 10.3(2) were not reasonably believed by the applicant. The test as to what substantiates ‘reasonably believed’ is set out in s 8.4(2) of the Code:
If any part of a defence is based on reasonable belief, in determining whether that reasonable belief existed, regard must be had to the standard of a reasonable person who is not intoxicated.
With respect to the defence, the jury were charged in accordance with the law and no complaint was made about the charge or any evidence that had been admitted during the trial. The question for the jury was a quintessential jury question.[35] He could not have been convicted unless the jury were satisfied beyond reasonable doubt that after he became aware of the presence of the ‘drugs’ that he continued to voluntarily assist in the unpacking of them. Making my own assessment of the evidence I am satisfied it was open to the jury to conclude that he voluntarily continued to assist unpacking when he need not have done so. The verdict is neither unsafe or unsatisfactory.
[35]R v Hendy (2008) 191 A Crim R 81, [25] (per Maxwell P).
Hung
Hung contends that the verdict is unsafe and unsatisfactory because the jury could not have been satisfied on the evidence that he knew there were illicit substances being imported in the foot spas. It was his contention during the trial that the work he carried out was for a legitimate business, working for Tina Kim Nail Supplies.
Hung made a no comment record of interview and did not give evidence at the trial. The evidence of Hung’s lack of knowledge of the drugs was to be found in the evidence given by Aunty Phung and Phuong.
The prosecution’s case was entirely circumstantial but it was overwhelming. As outlined by the trial prosecutor in his final address, 12 propositions were relied upon to prove beyond reasonable doubt that Hung was an active member of the enterprise. They were:
· That Hung was involved in the leasing of the factory at 55 Vella Drive. It was Aunty Phung’s evidence that Sau contacted Hung to give Aunty Phung $6000 for the lease of the factory;
· That Hung picked up Manh Le from the airport on 3 July 2008, took him to a hotel and gave him $1,000 and a SIM card over the next couple of days. Hung also took Manh to the factory to have a look at it;
· That Hung went with Manh Le to Bunnings to buy plastic which he then put up to cover the windows at the factory. This was done on the direction of Aunty Phung;
· Payment arrangements for charges relating to a container on 9 July 2008 and the relevant phone call transcripts between Hung and Phuong attached to those arrangements;
· Hung going to Hunters Customs Brokers on 10 July 2008 with Manh Le and giving an envelope to Manh Le for him to go in and pay;
· Hung’s involvement with Tuan and Hai, known drug traffickers from Sydney, over the preceding days prior to 12 July 2008;
· Hung’s communications with various people on 11 July, the day of the delivery, including Aunty Phung, Manh Le and from Sau an hour or two before the container arrived;
· Hung’s attempt to enter the factory on 11 July and the surrounding phone calls relating to that attempt, including Sau calling Manh Le and asking him to open the door for his younger brother;
· Hung having some responsibility in the enterprise - he had the keys to the factory on 12 July, directed Aunty Phung and Manh at different times to change their SIM cards and gave Manh Le money;
· Hung’s conduct on the morning of 12 July providing transport, going and buying tools from Bunnings with Manh Le, according to Phuong coming back to the factory a third time to bring school bags along with the LG phone records of the activity that occurred on Hung’s phone that morning;
· Hung’s palm print on the bag of one of the tools found in the factory; and
· The purchasing of tools from Bunnings.
The evidence during the trial from Phuong and Manh Le at times did show inconsistencies and her Honour gave a very detailed direction about unreliable witnesses to the jury.
Having gone through the evidence that supported the prosecutor’s 12 points I do not find that the verdict was unsafe or unsatisfactory. It was a very strong circumstantial case. It was plainly open to the jury to be so satisfied as to Hung’s guilt.
Proposed Ground 4 - The trial of the applicant miscarried as his defence was based on his lack of knowledge of the contents of the ‘foot spas’. To bolster that defence, counsel for the applicant (at the trial), should have led before the jury that the applicant was of good character. The failure to do so removed a legitimate consideration from the jury in assessing whether they could be satisfied beyond reasonable doubt of the applicant’s knowledge of the content of the ‘foot spas’.
At the hearing of the appeal, counsel for Hung sought to add this ground. The proposed ground is said to have some force because a good character direction was given by the trial judge with respect to Minh but not with Hung. It is said that an inference could have been drawn by the jury as to the lack of good character of Hung and how this may have affected their deliberations.
No evidence had been provided to support this ground. The applicant had been unable to get in contact with trial counsel or the trial instructing solicitor as they both were no longer in the country. The applicant wanted to relay conversations his counsel had with trial counsel for the prosecution (junior counsel on the application). It was accepted by counsel for the applicant that any conversation he had had with trial counsel had not been ‘on the record’. Objection was taken by the respondent. That objection was based on a longstanding ethical rule that disclosing private conversations between barristers in the same proceeding is not permitted. This is pursuant to r 57 of The Victorian Bar Incorporated Practice Rules:
A barrister shall not disclose to the court, whether in examination, cross-examination or otherwise, any communication between the barrister and legal representatives appearing in the proceedings for any other party to the proceedings:
(a) except by consent;
(b) unless what occurred resulted in the creation of some contractual or other legal relationship; or
(c) unless it was expressly stated before or at the commencement of such communication that matters communicated should not be regarded as without prejudice or privileged from use or disclosure.
The Court made it clear that it would be inappropriate to hear the details of the content of any such conversation.
Counsel for the applicant then said that at sometime during the morning an email had been received from trial counsel which put him in a difficult position. He wished to further investigate the matter. The Court agreed to allow written submissions to be submitted one week later following the hearing of the application. No written submissions were filed, instead an affidavit from the applicant’s current instructing solicitor, from the same firm who had instructed at trial, was filed which exhibited the email that had been sent from trial counsel. In the email trial counsel said the following:
In the lead up to trial, telephone intercept material and statements of the Informant, along with three roll-over witnesses, indicated that Mr Luong was and had been involved in previous importations. Indeed in discussions with Counsel for the Crown … it was made clear that if we raised good character then this information may be used in rebuttal thereof in line with SOMA's case. As a result of these discussions and after taking instructions from the client, character was not to be lead.
Furthermore, I recall that Aunty and two other roll-over witnesses for the Crown were able to detail Luong's involvement in other illegal activities, and the Crown was not going to call this evidence at trial. In the event that we had run evidence of good character through the three main Crown roll-over witnesses, as the co-accused did, we would have run the risk of such evidence being elicited by them in the trial. The Informant also advised that there were other investigations pertaining to Mr Luong and others in relation to similar activities as that with which he was presently charged. In discussions I had with the Informant, my instructor and [counsel for the Crown], I was advised that these areas should not be traversed into as they would bring out negative evidence pertaining to Luong. I spoke with Luong about this through the interpreter and he agreed to not cross-examine on those areas as the potential for prejudice would be too great. There was no potential prejudice in respect of the co-accused.
It was decided not to cross-examine the various Crown witnesses as to Luong's involvement outside of the specific investigation and charges for which was facing.
The co-accused was in an entirely unique position as compared with Luong and did not have the potentially adverse evidence which would have arisen in the event that positive character evidence were led by Luong at trial.
The affidavit also stated that following the appeal hearing, the instructing solicitor and appeal counsel had had a conference with the applicant in which the applicant, through an interpreter, stated that he had not had any discussions as to prior convictions or ‘good character’ with his trial counsel. It was further stated in the affidavit that it was intended to subpoena both trial counsel and instructing solicitor for the respondent to give evidence on the matter. The respondent objected to this course.
A further mention of the matter was listed for 11 December 2012.
At the further hearing, counsel for the applicant stated his position that if he could prove that trial counsel’s email was false, then an argument could be advanced that there was an inference that trial counsel did not turn his mind to good character.
There was no basis upon which to conclude that the content of the email was false. No affidavit had been filed by the applicant stating his knowledge of the matters alleged in the email. No attempt had been made by the applicant’s legal representatives to speak with the informant in order to ascertain whether there was any falsity in what was stated in trial counsel’s email.
At the hearing, senior counsel for the respondent referred to a statement made by Aunty Phung dated 13 October 2010. In the statement, Aunty Phung said the following:
Sometime in March 2008, Sau called me and asked me to collect the package from a marble factor in Millers Rd, Altona and told me to deliver it to a Canadian couple. I picked up the package from the factory and shortly after that I got call from Sau’s brother, Hung van Luong. Hung met with me and we talked about the package. He told me he was not happy about this type of business and that he could have got into it 10 years ago but he didn’t like it and that he only did it because his brother asked him to. The two of us then gave the package to the Canadian couple.
This part of her statement was not led in the trial. It would have been relevant to show a prior relationship between Aunty Phung and Hung but it would have been evidence of bad character and entirely prejudicial.
Senior counsel for the respondent also submitted that it was his instructions that there were ongoing investigations as to other matters at the time of the trial. It was said that further evidence could be provided of the ongoing investigations but telephone intercepts would need to be analysed and this could take some time.
Good character was led on behalf of the co-accused. It was likely that the issue had been considered by trial counsel, the probabilities are that a forensic decision was made not to call such evidence. That is consistent with the content of the email.
The Court refused the application for the issue of the subpoenas referred to in the affidavit. Although not expressly stated this proposed ground came very close to an allegation that trial counsel was incompetent. In Gallant v The Queen,[36] a very similar case was argued on the basis of the incompetence of counsel. Howie J (with whom McLellan CJ at Common Law and Adams J agreed) set out a careful and detailed analysis of the use of character evidence and the circumstances in which failure to lead such evidence would create a miscarriage of justice. In that case the appeal was dismissed. It is illustrative of the difficulties which arise in cases of this kind.
[36][2006] NSWCCA 339.
The pursuit of this proposed ground was entirely unsatisfactory. It is not reasonably arguable that there was any error made by counsel at trial.
The application for leave to appeal against conviction should be refused.
I have had the advantage of reading the draft reasons of Williams AJA and agree with her Honour for the reasons that are set out below that the application for leave to appeal against sentence by Hung should be refused.
WILLIAMS AJA:
I agree with Coghlan JA, for the reasons his Honour gives, that each of the applicants should be refused leave to appeal against conviction.
I will now deal with the application by Hung for leave to appeal against his sentence.
He seeks that leave on the following proposed grounds:
1.The learned sentencing Judge erred in the cumulation of sentences imposed in relation to Counts 2 and 3 on Count 1 in that Her Honour failed to have regard or give weight to the one transaction rule in the sentencing process.
2. The total effective sentence of 15 years with a non parole period of 11 years was manifestly excessive having regard to:
(a)the [offender’s] role in the commission of the offences,
(b)the [antecedents] of the offender,
(c)the delay in having the matter concluded,
(d)the lack of prior convictions of the offender,
(e)the prospects of the [offender’s] rehabilitation
(f)hardship to the [offender’s] family,
(g)the [offender’s] intellectual constraints, and
(h)the sentencing and roles of the co-offenders.
3.The learned sentencing judge failed to have regard to totality and proportionality in sentencing the offender.
Circumstances of offending
Hung’s sentence and the circumstances of his offending are set out in the reasons of Coghlan AJA, which I gratefully adopt.
The learned sentencing judge accepted that Hung did not play ‘a major role’ in the organisation of the importation of the drugs. She concluded that he did not know the amount of drugs involved, but considered that it must have been obvious to him from the method of importation and the arrangements made for collection of the drugs that a not insubstantial amount was involved.[37] She also accepted what was common ground in the plea, namely, that his role had been akin to that of his co-offender, Phuong. Her Honour said that she had taken that similarity and the sentences imposed upon the applicant’s co-offenders into account in sentencing him.
[37]DPP (Cth) v Luong (Unreported, County Court of Victoria, Judge Campton, 30 March 2012), [38] (‘Reasons for Sentence’).
The sentences imposed upon three of those co-offenders have already been considered by this Court.
Phuong
By the time Hung was sentenced, Phuong had pleaded guilty to one count of attempted importation and one count of attempted possession of all of the drugs before a different judge in the County Court. She had been sentenced to ten years’ imprisonment for the attempted importation and seven years’ imprisonment for the attempted possession. Two years of the attempted possession sentence had been cumulated upon the base sentence for the attempted importation. Her total effective sentence was 12 years’ imprisonment with a minimum term of eight years.
The sentencing judge had indicated that he would have imposed a sentence of 14 years’ imprisonment with a non-parole period of 10 years, but for the discount under s 21E of the Crimes Act 1914 (Cth) for Phuong’s future cooperation. His Honour had also stated that, but for her plea, her sentence would have been one of 16 years’ imprisonment with a minimum of term of 12 years.
Phousadeth Phommalysack
Another of Hung’s co-offenders, Phousadeth Phommalysack, had also pleaded guilty to a single count of attempted possession of the imported drugs and had been sentenced to twelve years’ imprisonment with a minimum term of nine years. He and Phuong were sentenced at the same time by the same judge. The judge had sentenced Phommalysack on the basis that Phuong had been ‘above him in the hierarchy’, being guilty of two offences, not one.
Phuong and Phommalysack had both appealed against their sentences.
On appeal, Phuong’s sentence had been challenged as manifestly excessive. Maxwell P, with whom Redlich JA agreed, had rejected this characterisation. The learned President had said:
In my opinion, the sentence imposed on [Phuong] was well within the range reasonably open to the sentencing judge, full weight being given to her very significant cooperation and to the risks associated with it. Though not a principal, [Phuong] played the key role in the critical phase of the enterprise – ensuring that the container was safely landed, delivered and unpacked. She was, as the judge said, ‘an integral facilitator of the importation.’
And this was importation on a massive scale. A notable feature of the present case is that each of the appellants faced single counts (importation/possession), each referable to the entire shipment of drugs. In other cases, participants in drug importations have been sentenced on a series of separate counts, each count being referable to a different drug forming part of the imported shipment…
Had there been separate counts in the present case, some cumulation between counts would have been appropriate. [38]
[38]Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 691-2 [69]–[72] (‘Nguyen and Phommalysack’).
Phommalysack had not challenged his sentence for manifest excess and the Court had rejected his argument that the sentencing judge had erred by taking, for comparison purposes, the sentence which he would have imposed on Phuong ‘but for’ the s 21E co-operation discount.
In the course of hearing the appeals against Phuong and Phommalysack’s sentences, the Court had been referred to sentences imposed for similar Commonwealth offences in this and other States. Both Maxwell P and Redlich JA had cited those sentences, when considering whether Phuong’s sentence was manifestly excessive. Redlich JA had noted the need to achieve a ‘broad level of conformity’ with them and had concluded that her sentence fell towards the lower end of the applicable range they established.
Aunty Phung
On 3 October 2011, following guilty pleas, the learned sentencing judge herself had sentenced Aunty Phung to 12 years’ imprisonment on one count of importation of a commercial quantity of all of the drugs and eight years’ imprisonment on one count of attempting to possess all of the drugs. Three years of the sentence on the second count had been cumulated upon that in respect of the first, resulting in a total effective sentence of 15 years’ imprisonment. Her Honour had fixed a non-parole period of 11 years and six months. She had declared that, in the absence of a plea of guilty, she would have sentenced Aunty Phung to 19 years’ imprisonment with a non-parole period of 15 years. She had also stated that, but for the undertaking to provide further assistance the prosecution in further proceedings, she would have sentenced her to 17 years’ imprisonment with a non-parole period of 14 years.
Aunty Phung had challenged her sentence on grounds which included an alleged failure to comply with the parity principle in relation to the sentence imposed on Phuong.
On 5 June 2012, after Hung’s sentence (sentencing on 30 March 2012) this Court dismissed Aunty Phung’s appeal,[39] recognising, amongst other distinguishing factors, her ‘higher level’ role, in terms of responsibility, in the attempted importation, the earlier plea made by Phuong and Phuong’s earlier co-operation.[40] Osborn JA (with whom Buchanan JA agreed) noted, too, that Aunty Phung did not argue that her sentence was manifestly excessive.[41]
[39]Nguyen v The Queen [2012] VSCA 119.
[40]Ibid [22].
[41]Ibid [29].
Personal circumstances
The sentencing judge made findings as to Hung’s personal circumstances. He was born on 15 September 1958 in South Vietnam. He was 53 years old when sentenced. His impoverished parents had lost their rice farm after the Vietnam war. He had little education, leaving school after completing grade four, with only the most basic literary skills. He arrived in Australia in 1981 at the age of 23, after several months in a refugee camp. After some years, he found employment as a machine operator. He worked in three factories, spending 14 years at one.
In 1991, Hung had sponsored his wife to come to Australia. At the time of the plea, they had been married for some 20 years and had two children. Their 18 year old daughter suffered from a Dandy-Walker malformation which had required surgery in the past. Their four year old son, Damien, had an Autism Spectrum Disorder.
The sentencing judge accepted Hung’s dedication to his children and recognised that his imprisonment would result in considerable hardship to them. He had been the primary care-giver, as his wife had been in full time employment before his incarceration. His son’s psychological well being was reported to have been ‘greatly disturbed’ by his father’s absence and his behaviour had become difficult for his mother to control.
The judge also referred to reports from a Forensicare psychologist, Professor Michael Daffern. He had concluded that Hung was a simple man and likely to be, at best, at the low average level in terms of his intellectual ability. Professor Daffern also thought that his psycho-social situation had been compromised by unemployment, financial difficulties and some intermittent conflict with his wife about occasional gambling and alcohol use. He had found Hung was difficult to assess because of his language difficulties. The Judge observed, too, that close relatives had also characterised Hung as a very slow learner, saying that he was not an organised leader or someone with the capacity to plan logically or carry out complicated functions.
Grounds 1 and 3
Hung submits that, when regard is had to the fact that all three counts arose out of the one transaction, the cumulation ordered by the learned sentencing judge was excessive and breached the sentencing principles of totality and proportionality.
The principles of totality and proportionality do require that an appropriate overall sentence be imposed, made up of appropriate individual sentences cumulated to some extent to recognise the separate offending behaviour whilst avoiding a ‘crushing’ disposition.[42] There is no reason in principle why sentences for separate counts of attempted possession of drugs should not be cumulated simply because the counts are all referable to what might be described as a single transaction. Indeed, in his judgment in the appeals by Phuong and Phommalysack, Maxwell P referred to cases in which such cumulation had occurred[43] and noted that some cumulation between the counts would have been appropriate if Phuong had been charged with separate offences in relation to the different drugs. He observed, in this context, that the aggregate quantity of the drugs exceeded the respective levels for ‘commercial quantities’ under the Code, many times.[44]
[42]DPP v Gravobac [1998] 1 VR 664, 680 (Ormiston JA (Winneke P and Hedigan AJA agreeing)).
[43]Citing R v Pham [2010] VCC 935; R v Tang [2009] VCC 1609; R v Nguyen; R v Pham (2010) 205 A Crim R 106.
[44]NguyenandPhommalysack (2011) 31 VR 673, 692 [72].
Whilst her Honour did not expressly refer to the totality or proportionality principles in her detailed sentencing remarks, it is not reasonably arguable that she erred as alleged. In my view, it was appropriate for her to recognise the individual crimes as she did, notwithstanding that they had occurred at the same time. Each was a very significant offence, warranting cumulation to the extent ordered.
Leave to appeal should be refused in relation to grounds 1 and 3.
Ground 2
Hung also argues that his total effective sentence is manifestly excessive, having regard to his role in the overall offending. In other words, he contends that it was not reasonably open, in the exercise of the sentencing judge’s discretion, for her to impose the total effective sentence and fix the non-parole period she did, according proper weight to all relevant considerations.
Hung lists a number of mitigating factors and argues that, whilst they might have been taken into account by the judge, she failed to give them sufficient weight. The factors were:
(a)his role in the commission of the offences;
(b) his lack of prior convictions;
(c) the delay in having the matter concluded;(d)his lack of prior convictions;
(e) his prospects of rehabilitation;
(f) hardship to his family;
(g) his intellectual constraints, and
(h) the sentencing and roles of his co-offenders.
I am not satisfied that it was not reasonably open to the judge to impose the sentence she did in all the circumstances to which she adverted. Her Honour stated her primary obligation under s 16A(1) of the Crimes Act 1914 (Cth) to impose a sentence of appropriate severity in all the circumstances of the offence. She indicated that she had balanced the mitigating factors she had mentioned (which included those upon which Hung now relies) and the need for general deterrence in cases involving large amounts of prohibited drugs.
Significantly, her Honour had regard to Hung’s low intellectual functioning, accepting that it would have impaired his skill to exercise appropriate judgment. She stated that she had moderated general deterrence as a sentencing consideration in accordance with the principles enunciated in Tsiaras[45] and Verdins[46]. She took into account the sentences imposed on Hung’s co-offenders and the agreement that his role had been akin to that of Phuong.[47] She also noted the delay of three and a half years from the time the offences had been committed in Hung’s case, having regard to the strain that would have caused and the opportunity it had provided for some rehabilitation.[48]
[45]R v Tsiaras [1996] 1 VR 398.
[46]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 [13]-[22], [32] (Maxwell P, Buchanan and Vincent JJA).
[47]Reasons for Sentence [42]
[48]Reasons for Sentence [49].
I agree with the respondent that her Honour carefully considered the ‘key reference points’ for sentencing and comparison of sentences in similar cases, identified by McClellan CJ at CL in DPP (Cth) vDe La Rosa.[49] Those reference points are the quantity of the drugs, the offender’s role, any reward to the offender, any assistance to authorities by the offender, the offender’s criminal history and prospects for rehabilitation.
[49](2010) 79 NSWLR 1, 64-6 [267] (‘De La Rosa’); see NguyenandPhommalysack (2011) 31 VR 673, 683 [35] (Maxwell P, Redlich JA agreeing).
Maxwell P in Nguyen and Phommalysack[50] set out general principles for the guidance of sentencing judges, formulated by the New South Wales Court of Criminal Appeal in R v Nguyen; R v Pham.[51] They include three which are particularly relevant to the assessment of Hung’s sentence:
7.The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
8.The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
9.Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.[52]
[50](2011) 31 VR 673, 681-3 [34] (Maxwell P (Redlich JA agreeing)).
[51](2010) 205 A Crim R 106, 126-8 [72] (Johnson J (McFarlane JA, RJ Hulme J agreeing)).
[52]NguyenandPhommalysack (2011) 31 VR 673, 682 [34] (Maxwell P (Redlich JA agreeing).
In my opinion, Hung’s sentence was clearly within range in the reasonable exercise of the sentencing discretion. This is highlighted by reference to Phuong’s sentence. Phuong, who had pleaded guilty and cooperated with authorities, received what may be regarded as a comparable sentence which this Court refused to set aside. She, too, had no prior convictions and was otherwise of a good character. Her prospects of rehabilitation were considered very good and it was recognised that incarceration would bear heavily upon her because it would involve separation from a 13 year old son who had no contact with his father.
Further, the Court regarded Phuong’s offending as falling within the category which, in Victoria and elsewhere, had attracted head sentences of between 18 and 24 years’ imprisonment and non-parole periods of 10-16 years.[53]. Indeed, Redlich JA took the view that, having regard to the need for conformity in sentencing for Commonwealth offences and the comparison between Phuong’s sentences and those imposed elsewhere, hers were not only within the reasonably open range, but at its lower end.[54] There were also the significant distinguishing mitigatory factors of Phuong’s early plea and cooperation with police, absent in the case of Hung.
[53]Referring to categorisation by McClelland CJ at CL in De La Rosa (2010) 79 NSWLR 1, 73-131 (Schedule).
[54](2011) 31 VR 673, 699 [104].
The appropriateness of Hung’s sentence can also be demonstrated by reference to Aunty Phung’s total effective sentence of 19 years’ imprisonment with a 15 year minimum term. Whilst her role may have involved greater responsibility, Hung, notwithstanding his limitations, had a not insignificant role in the organisation, facilitation and commission of very serious crimes.
I do not consider the ground of manifest excess to be reasonably arguable and leave to appeal on ground 3 should also be refused.
The application should be dismissed.
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