Luu v The King
[2024] VSCA 267
•14 November, 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0117 |
| SON LUU | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 14 November, 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 267 |
| JUDGMENT APPEALED FROM: | [2024] VCC 48 (Judge Dalziel) |
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CRIMINAL LAW – Sentence – Application for leave to appeal against sentence – Importing commercial quantity of border controlled drug – 11.9 kgs of pure methylamphetamine – 15 times commercial quantity threshold for methylamphetamine – Sentence of 12 years, with non-parole period of 8 years – Manifest excess – Whether sentence manifestly excessive – Not reasonably arguable that sentence manifestly excessive – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr PJ Smallwood | ||
| Respondent: | Ms K Breckweg with Ms E Addams | ||
Solicitors | |||
| Applicant: | Valos Black & Associates | ||
| Respondent: | Commonwealth Director of Public Prosecutions | ||
BEACH JA:
On 5 April 2023, the applicant pleaded guilty in the County Court to one charge of importing a commercial quantity of a border controlled drug (methylamphetamine) contrary to s 307.1 of the Criminal Code (Cth). The maximum penalty for importing a commercial quantity of a border controlled drug is life imprisonment.
On 2 February 2024, following a plea hearing on 29 January 2024, the applicant was sentenced to 12 years’ imprisonment, with a non‑parole period of eight years.[1] Pursuant to s 6AAA of the Sentencing Act 1991, her Honour declared that, but for the applicant’s plea of guilty, she would have sentenced him to 16 years, with a non‑parole period of 12 years.
[1]DPP v Luu [2024] VCC 48 (‘Reasons’).
The applicant now seeks leave to appeal against sentence. His proposed ground of appeal is that the sentenced imposed was manifestly excessive.
Circumstances of the offending
At just before 9.00 am on 8 June 2022, the applicant and Amy Mai Nguyen (‘Nguyen’) arrived at Melbourne via Qantas Airlines flight 94, from Los Angeles. Once in the airport, Nguyen removed a suitcase from the baggage carousel and handed it to the applicant. A short time later, the applicant approached the Department of Agriculture, Fisheries and Forestry gate marshal at the passenger processing area. When the gate marshal asked him if he had anything to declare, he did not answer. Instead, he followed Nguyen who had been directed to the quarantine screening lane.
In the examination area, the applicant handed his incoming passenger card to biosecurity officers. That completed card indicated that the applicant intended to holiday in Australia for 10 days. The card stated that the address for the applicant in Australia would be ‘874 Hume Hwy Bass Hill, Bankstown 2197 Vic’. The card also provided that the applicant was not bringing any potentially prohibited goods into the country, including illicit drugs. The applicant declared that he was bringing food and plant items into the country.
The applicant’s suitcase was examined by an X‑ray machine. It appeared to contain several packages of organic material. A biosecurity officer opened the suitcase and found seven cardboard boxes, similar in size and shape to a shoe box. Each box was wrapped in a clear plastic film. Within each box was a black plastic bag containing a white crystalline substance.
Nguyen stated (in English) that the contents of the boxes were makeup and then the applicant said ‘shoes’. After observing the crystalline substance inside the black plastic, the applicant said the Vietnamese word for salt. He then put one of his fingers into the substance and licked it off his finger. Footage shows that the applicant was then visibly uncomfortable and gesticulated vigorously with his hand in front of his mouth. The substance was tested and returned a presumptive result for methylamphetamine.
The applicant was then interviewed by Australian Border Force officers. In the Reasons,[2] the judge noted that the applicant made the following admissions:
(a) You said you were carrying it for a friend, and that it was some kind of cosmetic.
(b) You did not open the package to check what it was before carrying it.
(c) You stated that the address on your incoming passenger card was correct, and you said you did intend to stay in Australia for 10 days and you were planning to depart on 18 June rather than the date on your itinerary that is 2 July 2022.
(d) You said you had been travelling with a friend who helped you complete your incoming passenger card and that you had not understood all the questions on it.
(e) You had not packed the bag yourself and you did not know who had packed the bags, you were simply asked to take this along. It was supposed to contain some beauty products but you did not know exactly what was in there.
(f) You said that an elderly friend with whom you had coffee with had asked you to bring this item along and that it was supposed to be for a nail salon.
[2]Ibid [7].
The applicant was arrested and remanded in custody. When he was further interviewed by the Australian Federal Police, he said:
The suitcase is not mine. I carried it for a friend. I only have a backpack so I don’t know what is in the suitcase for my friend. I just help him by taking to the airport and give it to a person that he told me to.
The substance in the suitcase was analysed and found to be comprised of 14 portions of a crystalline substance, concealed in 13 vacuum sealed bags and one plastic shopping bag. All of the substance was located in the seven cardboard boxes. The gross weight of the white crystalline substance was 18.55 kgs. It was a mixed substance, of which 64.3 per cent was a methylamphetamine. Thus, the weight of pure methylamphetamine which the applicant brought into the country was 11.9 kgs. As the judge observed,[3] this amounted to 15.9 times the commercial quantity threshold (0.75 kg) for that drug.
[3]Ibid [9].
Prior to his arrival in Australia, a booking had been made in the applicant’s name and in the name of Nguyen. This booking was for both of them to depart Los Angeles, on 4 June 2022 and then arrive in Australia on 6 June 2022. That booking had been made on 28 May 2022. On that same day, the applicant took a screenshot of a Viber message which had been sent to his mobile phone from a contact recorded as ‘Chanel’. That message read ‘874 Hume Hwy, Bass Hill, Bankstown, 2197’.
Two days later (30 May 2022), a photograph of the applicant was sent to Nguyen’s mobile phone. The following day (31 May 2022), a booking was made at a different travel agent in California in the names of the applicant and Nguyen. They were both to depart from Los Angeles on 6 June 2022 on Qantas Airways flight 94, which was to arrive in Melbourne on 8 June 2022. The return flight was booked for 2 July 2022. On that same day a sub‑class 601 Electronic Travel Authority visa was issued in the name of the applicant.
On 3 June 2022, the applicant sent Chanel a message. It was in Vietnamese and has been translated into English as ‘send 500 no more money to spend’.
On 6 June 2022, at least six phone calls were recorded as incoming or outcoming between the applicant and Chanel. Later on 6 June 2022, the applicant and Nguyen checked in for the Qantas flight at Los Angeles International airport. They were allocated seats in the same row of their flight. At the airport, the applicant checked in one suitcase which weighed 25 kgs, and he carried a backpack which contained his personal items. It was the suitcase that he checked in which contained the methylamphetamine. It did not contain any of the applicant’s personal items.
On 7 June 2022, at least six further phone calls were recorded as incoming or outcoming between Chanel and the applicant.
Reasons for sentence
After summarising the circumstances of the applicant’s offending,[4] the judge said that a significant factor in assessing the gravity of the offending was the weight of the drug: 11.9 kgs of methylamphetamine, which was 15.9 times the commercial quantity for methylamphetamine. The judge described this as ‘a very large amount of that drug’.[5] The judge then said that the gravity of this type of offending was demonstrated by the maximum penalty – being life imprisonment.[6]
[4]Ibid [2]–[16].
[5]Ibid [17].
[6]Ibid.
The judge then turned to the applicant’s role in the offending, saying that he acted as a courier. The judge described this as a ‘low level role, in a drug importation, and one most liable to detection’.[7] Her Honour noted, however, that ‘bringing border controlled drugs into the country is a crucial step to that substance then being disseminated in the community’.[8]
[7]Ibid [19].
[8]Ibid.
The judge noted that the prosecution put its case against the applicant on the basis that he was aware that there was a substantial risk that his suitcase contained a border controlled drug; and that it was not alleged against the applicant that he was aware that the total weight of pure drugs was at the high level which the applicant had in fact imported. The judge said that it was unreasonable to conclude, however, that the applicant did not appreciate (at any level) that whatever was in his suitcase was of a substantial volume or weight.[9]
[9]Ibid [21].
In summarising the applicant’s personal circumstances, the judge noted the following matters:
(1)The applicant was born in Vietnam in 1946 and was 78 at the time of sentencing. His father passed away when he was young, and his mother passed away about 5 years ago. He is the youngest of 3 siblings. He was married in Vietnam and lived there until about 1979.
(2)In 1979, the applicant fled to Indonesia on a boat with his wife and daughter. He stayed in Indonesia in an immigration detention facility, before moving to Canada as a refugee. He lived in Canada for about 5 years, before moving to California. He is a Canadian citizen.
(3)The applicant’s work history included running a takeaway business, owning a video rental store and, more recently, working as a kitchen hand in restaurants.
(4)The applicant has not had any contact with his family since being in custody in Australia. He did not report any issues with gambling, drugs or alcohol.[10]
[10]Ibid [23]–[26].
The judge referred to reports which had been tendered on the plea: specifically, the report of Laura Fleming, a forensic psychologist who assessed the applicant in June 2023; and the report of Rachel O’Meara, a clinical neuropsychologist, who assessed the applicant in October 2023.[11] The judge noted Dr O’Meara’s opinion that the applicant was ‘experiencing a decline in a range of cognitive functions’ and that this would impact the applicant’s ability to make friends in custody, as well as making him more vulnerable in prison.[12]
[11]Ibid [22], [33]–[34].
[12]Ibid [33]–[34].
The judge referred to the following matters in mitigation:
(1)The applicant pleaded guilty at an early stage, and the utilitarian value of his plea was ‘somewhat increased by reason of the impact of the pandemic on the operations of the court’.[13]
(2)While the only evidence of remorse was the applicant’s plea of guilty, his plea facilitated the administration of justice and was an indication by the applicant of his acceptance of his wrongdoing.[14]
(3)The applicant had been in custody since 8 June 2022, and prison conditions were continuing to be adversely affected by the pandemic during that year and, ‘to some extent’, into 2023. The applicant has been isolated while in custody due to his language barrier and his age. He has had no contact with his family or any friends since being remanded in custody. The judge said, however, that because the applicant came into Australia in order to commit his offence, the hardship he would endure by reason of the separation from his family carried less weight in mitigation.[15]
(4)The cognitive decline the applicant had suffered (as referred to in Dr O’Meara’s report) would contribute to his isolation in custody, making him more vulnerable in prison and making it more difficult for him to understand and abide by the rules.[16]
(5)The applicant’s age, and the fact that he had reached the age of 76 when he came to Australia, without acquiring any prior convictions, was a significant factor in the applicant’s favour. The high likelihood that the applicant would live out the rest of his life in prison here in Australia with no contact with family or friends was also of significance.[17]
[13]Ibid [28]–[29].
[14]Ibid [30].
[15]Ibid [31]–[32].
[16]Ibid [33]–[34].
[17]Ibid [35]–[36].
The judge said that general deterrence carried significant weight in the sentencing discretion but that, given the applicant’s age and circumstances, specific deterrence and protection of the community had ‘no weight’, and rehabilitation was not an issue.[18]
[18]Ibid [37].
The judge addressed current sentencing practices, referring to Yip v The Queen,[19] R v Agboti,[20] Legault v The Queen,[21] Green (a pseudonym) v The Queen,[22] and R v Zalapa.[23] After referring to the circumstances of these cases and the sentences imposed in them,[24] the judge said ‘that it was clear that in all the circumstances the only sentence open was a term of imprisonment.[25]
[19][2017] VSCA 231.
[20][2014] QCA 280.
[21][2014] NSWCCA 271.
[22][2020] NSWCCA 358.
[23][2018] NSWCCA 191.
[24]Reasons, [38]–[41].
[25]Ibid [42].
The judge concluded her reasons for sentence by saying that, having regard to all the factors raised on the plea hearing, the applicant would be sentenced to 12 years’ imprisonment, with a non‑parole period of 8 years.[26]
[26]Ibid.
Applicant’s submissions
In contending that the sentence imposed was manifestly excessive, the applicant advanced two particulars:
1.The sentence imposed was manifestly too long given the applicant’s age, his guilty plea, the absence of any prior criminal history and the evidence of his cognitive decline.
2.There is an unjustifiable disparity in outcome between the sentence imposed on the applicant and the sentences imposed in Qui v The Queen; Ng v The Queen.[27]
[27][2019] VSCA 147 (‘Qui’).
In relation to the applicant’s disparity particular, the applicant observed that Qui was a case involving the sentence appeals of two offenders who had each brought into Australia suitcases containing commercial quantities of heroin. The applicant highlighted the following matters:
(1)Each offender in Qui was charged on the basis that they were only liable for the importation of heroin contained in that offender’s suitcase. Additionally, they were each charged on the basis that they were reckless as to whether the contents of the suitcase they brought into Australia contained a border controlled drug.
(2)The offender Qui’s suitcase had in it 64 packages, containing 22.6 kgs of bulk powder, 16.3 kgs of which was pure heroin. Qui pleaded guilty on the day his trial was due to start. He was 39 when first sentenced. He was resentenced on appeal to 9 years’ imprisonment, with a non‑parole period of 6 years.
(3)The offender Ng’s suitcase had in it 60 packages, containing 21.9 kgs of bulk powder, 13.4 kgs of which was pure heroin. He pleaded not guilty and was convicted at trial. His low intellectual functioning reduced his culpability, and he was 33 when the offending was committed. He was resentenced on appeal to 10 years and 6 months’ imprisonment, with a non‑parole period of 7 years.
(4)Both offenders were sentenced on the basis that they were couriers. A third offender, Nicholas Kavvadas, collected both suitcases. He pleaded guilty to importing the 29.7 kgs of heroin in both suitcases. He was 20 when the offending was committed, and was sentenced in the County Court to 9 years’ imprisonment with a non‑parole period of 5 years and 9 months.
Relying upon a passage in the judgment of Maxwell P in Tawfik v The Queen,[28] the applicant submitted that the imposition of a heavier sentence on him, relative to the sentences imposed on Qui, Ng and Kavvadas ‘point[ed] to there having been an infringement of the equal justice norm’. The applicant observed that Ng was convicted at trial; the criminality and culpability attaching to Kavvadas’s offending was higher in light of the quantity of border controlled drugs he imported; and Qui’s plea was a late plea.
[28](2021) 64 VR 561, 563 [3]–[4].
The applicant then submitted that, by contrast, he (the applicant) fell to be sentenced as a 78 year old first offender in cognitive decline. There is a very real prospect that he could die in jail in, what is for him, a foreign country. He did not arrange the importation. He did not fall to be sentenced on the basis that he knew that his suitcase contained methylamphetamine, let alone that it contained 11.9 kgs of methylamphetamine. As the applicant put it, the combination of those circumstances, in addition to him having pleaded guilty, underscored the conclusion that the sentence imposed was manifestly excessive.
The applicant’s ultimate submission was that the sentence imposed was unreasonable or plainly unjust. He also submitted that it was manifestly too long and that a different sentence should be imposed upon the sentencing discretion being re‑exercised according to law.
Consideration
As can be seen from the above, the applicant’s submissions rely heavily upon what is said to be the ‘unjustifiable disparity’ between the sentences imposed and/or referred to in Qui, and the sentence imposed on the applicant. The premise of these submissions is, of course, that Qui is a comparable case with the applicant’s case.
As to comparable cases, this court has said before that it is important to bear in mind the necessary limitations in deriving any current sentencing practices from an examination of the sentences that have been imposed in such cases.[29] More specifically, as this court said in Lieu v The Queen:[30]
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so‑called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[31]
[29]See, for example, Surtees v The King [2023] VSCA 42, [15] (Kyrou and Kaye JJA), [70] (Walker JA).
[30][2016] VSCA 277.
[31]Ibid [46] (Beach and Kaye JJA, with whom Redlich JA agreed at [1]). See further, Hili v The Queen (2010) 242 CLR 520, 535–537 [48]–[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), 520 [77] (Heyden J); [2010] HCA 45; R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ); [2015] HCA 39; Perry v The King [2023] VSCA 218, [31] (Beach and Walker JJA); Shams v The King [2024] VSCA 260, [188]–[189] (McLeish, Orr and Kaye JJA).
Moreover, as the High Court has emphasised in Director of Public Prosecutions (Vic) v Dalgleish,[32] while s 5(2)(b) of the Sentencing Act provides that current sentencing practices are a relevant consideration in the determination of a sentence in each case, nevertheless that factor is only one of a number of considerations which must be taken into account in the exercise of the sentencing discretion.[33]
[32](2017) 262 CLR 428; [2017] HCA 41.
[33]Ibid 434 [9] (Kiefel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ).
The offending the subject of this court’s decision in Qui occurred at a different time, and was different from, the offending for which the applicant fell to be sentenced. Additionally, the background of the applicant and the backgrounds of Qui, Ng and Kavvadas were also different. Relevantly:
•Qui was sentenced for importing 10.86 times the commercial quantity threshold for heroin,[34] and Ng was sentenced for importing 8.93 times the commercial quantity threshold; whereas the applicant, as I have already observed, was sentenced for importing an amount of methylamphetamine which was 15.9 times the commercial quantity; and
•in resentencing Qui and Ng, parity with the relatively modest sentence imposed on Kavvadas, in the County Court, was a significant issue.[35]
[34]The commercial quantity threshold for the heroin imported by Qui, Ng and Kavvadas was 1.5 kgs.
[35]Qui [2019] VSCA 147, [3], [78]–[83].
While the sentences imposed on Qui, Ng and Kavvadas were lower than those imposed on the applicant, this of itself does not bespeak any unjustifiable disparity. Nor does it say anything about whether the sentence imposed on the applicant was within the permissible range of sentencing options available to the judge. Having examined the facts and circumstances, including the circumstances of the offenders, in Qui as disclosed by this court’s judgment in that case, I am not persuaded that there is any unjustifiable disparity between the sentences imposed in that case and the sentence imposed by his Honour. This may, at least in part, explain why Qui was not in fact even cited to the judge during the course of the plea hearing.
In any event, the applicant’s proposed ground of appeal is one of manifest excess. As has been said many times before, the ground of manifest excess will only succeed if it can be shown that the sentence imposed was wholly outside the range of sentencing options available to the sentencing judge.[36] That is, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he or she did if proper weight had been given to all of the relevant circumstances of the offending and the offender. As has also been said many times, this is a stringent requirement, difficult to satisfy.[37]
[36]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[37]Ibid.
While, as the judge correctly acknowledged, the applicant’s role in the drug importation was a ‘low level role’,[38] his offending was a serious example of a very serious offence. The seriousness of the offence is underscored by the fact that the maximum penalty for it is life imprisonment. The size of the applicant’s importation is also a measure of the seriousness of the applicant’s offending. As this court said in Qui:
It is a well‑established principle of sentencing, in cases involving the importation of a border controlled substance, that the amount of drug involved in the importation is a particularly relevant factor in determining the objective seriousness of the offence and the culpability of the offender.[39]
[38]Reasons, [19].
[39]Qui [2019] VSCA 147, [58]. See also Wong v The Queen (2001) 207 CLR 584, 609 [67]–[70].
While there were significant matters in mitigation to be taken into account on the applicant’s behalf, all of which were referred to by the judge in her Honour’s reasons for sentence, as the judge correctly said, general deterrence carried significant weight in the sentencing discretion.[40]
[40]Reasons, [37].
Having synthesised the circumstances of the applicant and his offending, I am not persuaded that it is reasonably arguable that the sentence imposed by the judge was wholly outside the permissible range of sentencing options available to her. In those circumstances, the applicant’s application for leave to appeal against sentence must be refused.
Conclusion
The application for leave to appeal against sentence is refused.
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