Ngo v The Queen
[2021] VSCA 21
•16 February 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0201
| PAUL NGO | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 February 2021 |
| DATE OF JUDGMENT: | 16 February 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 21 |
| JUDGMENT APPEALED FROM: | DPP v Ngo & Anor (Unreported, County Court of Victoria, Judge Doyle, 21 August 2020) |
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CRIMINAL LAW – Appeal – Sentence – Plea of guilty – Conspiracy to traffick in a commercial quantity of controlled drugs – Dealing with the proceeds of crime – Dealing with money suspected of being the proceeds of crime – Total effective sentence 18 years 8 months’ imprisonment with 12 years 10 months non-parole – Applicant and co-offenders ran contested committal and contested plea – Whether specific error in exercise of sentencing discretion – Whether judge failed to apply principle of totality – Whether sentence manifestly excessive – Leave to appeal refused – Zogheib v The Queen [2015] VSCA 334, Lieu v The Queen [2016] VSCA 277.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D A Dann QC | Papa Hughes Lawyers |
| For the Respondent | Mr K T Armstrong, with Ms M J Brown | Ms S McNaughton SC, Commonwealth Director of Public Prosecutions |
KAYE JA
NIALL JA:
The applicant pleaded guilty in the County Court at Melbourne to two charges of conspiracy to traffick in a commercial quantity of controlled drugs, one charge of dealing with the proceeds of crime, and one charge of dealing with money suspected of being the proceeds of crime.
Following a plea made on his behalf, the applicant was sentenced to a total effective term of 18 years and 8 months’ imprisonment with a non-parole period of 12 years and 10 months’ imprisonment. That sentence was constituted as follows:
Charge on Indictment Offence Minimum
PenaltySentence Cumulation 1.
Conspiracy to traffick in a commercial quantity of controlled drugs
Life imprisonment
15 years
10 months’ imprisonment
Base sentence
2.
Conspiracy to traffick in a commercial quantity of controlled drugs
Life imprisonment
15 years
6 months’ imprisonment
2 years’ imprisonment
3.
Dealing with the proceeds of crime
25 years’ imprisonment
5 years’ imprisonment
Nil
10.
Dealing with money suspected of being the proceeds of crime
3 years’ imprisonment
2 years’ imprisonment
10 months’ imprisonment
Total Effective Sentence:
18 years 8 months’ imprisonment
Non-Parole Period:
12 years 10 months’ imprisonment
Pre-sentence detention declared:
701 days’ imprisonment
6AAA Declaration:
23 years’ imprisonment with a non-parole period of 18 years’ imprisonment
The applicant seeks leave to appeal against that sentence on the following four grounds:
Ground 1:The Learned Sentencing Judge erred in finding that ‘there is an erosion of the utilitarian value of the plea and the extent to which your pleas evidenced a willingness to facilitate the course of Justice and are indicative of remorse.’
Ground 2:The Learned Sentencing Judge erred in sentencing the Applicant on charge 10 on the basis that ‘you were engaging in criminal activity involving substantial enrichment over a number of years leading up to your arrest in September 2018.‘
Ground 3:The Learned Sentencing Judge erred in failing to impose individual sentences that accorded with his stated intention to impose moderated individual sentences to comply with the requirements of Totality.
Ground 4:The individual sentences for charges 1, 2 and 3, the total effective sentence and the non-parole period are manifestly excessive.
Circumstances of the commission of the offences
Charges 1, 2 and 3 arose out of the applicant’s activities as the head of a drug trafficking syndicate that operated in the western suburbs of Melbourne. The conspiracies that were the subject of charges 1 and 2 consisted of agreements by the applicant with co-offenders to traffick in a commercial quantity of methamphetamine and heroin. The two charges reflected successive phases of the activities of the syndicate. Charge 1 spanned the period from 31 May 2018 to 10 August 2018. In that period, the applicant conducted the syndicate with the assistance of his co-offender, William Do (‘Do’). On 10 August 2018, Do was replaced in the syndicate by another co-offender, Huy Hoang. Charge 2 covered the period of operation of the syndicate between 10 August 2018 and 20 September 2018.
In his capacity as head of the syndicate, and as part of the two agreements that constituted the conspiracies, the applicant was involved in a range of activities including: sourcing and purchasing of drugs; transactions for the sale of those drugs; collection and storage of drugs; collection and storage of cash; setting the prices of the sale of drugs; and maintaining records of the various transactions.
The prosecution relied on a number of overt acts to demonstrate the nature and scale of the drug trafficking activity involved in both conspiracies. A substantial number of those overt acts consisted of identified sales of the two drugs. In respect of charge 1, the identified sales, as found by the sentencing judge, involved in excess of 6 kilograms of methamphetamine and in excess of 2 kilograms of heroin. In the period covered by charge 2, the identified sales, as found by the sentencing judge, involved over 750 grams of methamphetamine and more than 700 grams of heroin.
Charge 3 related to the dealing by the applicant with the proceeds of the drug trafficking that was the subject of the conspiracies that were the subject of charges 1 and 2. The total amount of the proceeds, involved in charge 3, was $1,178,610. That amount included transfers between various accounts. The applicant was sentenced on the basis that the actual amount deposited, in the period covered by charge 3 (June to September 2018), was $588,612.
Charge 10 covered the period between 3 July 2014 and 30 May 2018. The total amount involved in charge 10 was $1,999,743.25.
In his reasons for sentence, the judge found that the applicant was the primary beneficiary of the profits generated by the syndicate.[1] In addition to the money that was the subject of charges 3 and 10, the applicant purchased a property at Avondale Heights for approximately one million dollars, drove a 2018 Lamborghini, and purchased personalised number plates to that vehicle at a cost of $66,000.
[1]DPP v Ngo (Unreported, County Court of Victoria, Judge Doyle, 21 August 2020), [14] (‘Reasons’)
The activities of the syndicate were the subject of investigation by Australian Federal Police between May 2018 and September 2018. At the time of his arrest on 20 September 2018, the applicant had in his possession a key to a ‘safe house’ at a co-offender’s residence and a key to a Toyota Prado vehicle that was used in the course of the activities of the syndicate. In the course of their search, police located 3.2 kilograms of pure methamphetamine and 1.37 kilograms of pure heroin in a hidden compartment in the Prado. Police also found ammunition and two firearms, one of which was loaded and actioned.
The applicant, and his co-offenders, Do and Tony Tran (‘Tran’), ran a contested committal proceeding which took a number of days. The matter was then booked in for a trial in the County Court. It subsequently resolved, with the applicant pleading guilty to each of the charges in March 2020. Although the applicant and his co-offenders pleaded guilty, they put in issue a number of the drug transactions relied on by the prosecution as overt acts in furtherance of the conspiracies. The issues related to the quantum of drugs trafficked, the type of drugs trafficked, and, in some cases, whether any trafficking occurred. The contested hearing in relation to that aspect of the plea took place over some five days, following which the sentencing judge delivered a ruling on the facts that were in dispute.
Applicant’s previous convictions
The applicant was born on 31 August 1985. He has a number of previous convictions, the first of which was on 9 July 2001. On that date, he came before the Sunshine Children’s Court on one charge of theft of a motor vehicle. The charge was adjourned without conviction and the applicant was released on a bond to be of good behaviour. Subsequently, on 15 June 2004, the applicant was convicted, and placed on a community based order for 12 months, on one charge of trafficking heroin, one charge of using heroin, and one charge of possession of a controlled weapon without excuse.
On 17 May 2006, the applicant pleaded guilty in the Supreme Court to two charges of intentionally causing serious injury and one charge of aggravated burglary. Those charges arose from an incident in which the applicant shot two men at close range with a .22 semi-automatic handgun. He was sentenced to 8 years and 6 months’ imprisonment with a non-parole period of 4 years and 6 months. He was released on parole on the expiration of the minimum term fixed by the sentencing judge. The applicant’s most recent previous conviction was in January 2011 when he was convicted and fined by the Sunshine Magistrates’ Court on one charge of possession of cocaine.
The plea
At the time of sentence, the applicant was 34 years of age. He was aged 32 years during the period of the offending in charges 1,2 and 3.
The applicant is the youngest of seven siblings. His six older siblings were born in Vietnam. His eldest brother was killed in the Vietnam War, and subsequently his parents fled the country with their remaining children, arriving in Australia as refugees. The applicant’s upbringing was dysfunctional and difficult, in which his father resorted to alcohol-fuelled violence in the family home. As a result of the conflict in the home, the applicant ran away and experienced a period of homelessness. It was during that time he was introduced to drugs and he soon became addicted to them. His addiction intensified during his teenage years and interrupted his education. In that context, he became involved in drug trafficking and associated offending.
The applicant was incarcerated for the first time in adult custody when he was 19 years of age in respect of the three charges on which he was subsequently sentenced by the Supreme Court. He was released on parole when he was 23 years of age. While he was in custody, one of his older brothers committed suicide. Subsequently, in November 2011, his great niece died in tragic circumstances after having been left in a hot car by her mother. In 2016, the applicant met his girlfriend Chelsea Pham, and in June 2017, his daughter April was born. However, their relationship deteriorated, and they separated shortly after April’s birth. After the separation, Chelsea Pham took April and moved to Sydney. At the plea, it was put that following that breakup, the applicant relapsed into drug use as a coping mechanism. In November 2017, he suffered further tragedy when his sister was killed by her then boyfriend.
The applicant was examined by Mr Patrick Newton, clinical psychologist, and Mr Newton’s report was tendered on the plea. Mr Newton assessed the applicant to be of at least average intelligence. He considered that the applicant manifested mild depressive symptoms, which were a reaction to his legal problems and also the separation from his daughter. Mr Newton noted that the applicant’s drug addiction had dominated his life since the age of 15 years with a number of adverse consequences. He considered that the applicant met the criteria for a diagnosis of a severe substance use disorder which was in remission in the controlled environment of prison.
Mr Newton further considered that the applicant presented with significant behavioural and personality problems, which could be traced to his chaotic and disturbed childhood. Those problems were exacerbated by his drug addiction which underpinned his offending conduct.
Reasons for sentence
In his reasons for sentence, the judge noted that the applicant had the overall control of the drug trafficking activities of the syndicate. The applicant, by his conduct, had demonstrated a high level of knowledge of illicit drugs available for purchase, including the quantity and quality, and the wholesale pricing and branding, of the drugs.[2] The judge also noted that the applicant, as a principal offender, was the main beneficiary of the very substantial profits that the enterprise generated during its lifetime.[3] The judge considered that the amounts involved in charge 3 illustrated the scale of the applicant’s drug trafficking, the sophistication of his conduct, his overriding motivation for the offending, and his moral culpability.[4] The judge further noted that, in the second phase of the enterprise (which was the subject of charge 2), the drug business involved the presence of firearms and ammunition.[5] His Honour further considered that charge 10 (dealing in suspected proceeds of crime) added to the criminality of the applicant’s overall offending, and that that charge was at the top of the range of the spectrum for such offending.[6] Overall, the judge regarded the applicant’s moral culpability as ‘very significant’.[7]
[2]Ibid [8].
[3]Ibid [14].
[4]Ibid [39].
[5]Ibid [41].
[6]Ibid [42].
[7]Ibid [43].
In respect of the guilty pleas by the applicant, the judge accepted that the conspiracy charges had been laid shortly before the committal proceeding, and that, in the circumstances, time was needed to clarify the particulars and ambit of the prosecution case. However, his Honour considered that it was open to the applicant to have pleaded before the committal and to have resolved the remaining disputes within the confines of such a plea.[8] The judge stated (in a passage which is the subject of ground 1):
Further, a lengthy contested plea took place in this matter. You were successful in some of the arguments but in respect of a number of the larger transactions you were not. The fact remains though that your pleas have substantial utilitarian value. The evidence in this case is voluminous and any trial would have occupied a significant period. The objective utilitarian value of a plea is heightened in the current environment, with jury trials suspended. You have saved the police witnesses the time involved in giving evidence at a trial and at least some of them having to attend the trial daily. I accept that the contested plea in the case was conducted as efficiently as it could have been. Nonetheless, there is an erosion of the utilitarian value of the plea and the extent to which your pleas evidence a willingness to facilitate the course of justice and are indicative of remorse. Those matters are qualified, to a degree, by the stage at which your plea was entered and by the unsuccessful contest in relation to a number of the disputed transactions. I emphasise these qualifications relate only to the conspiracy charges. I have not been told, and I do not understand there was ever any challenge in respect of the proceeds of crime charges for either of you, or for the cultivation charge against you, Mr Do.[9]
[8]Ibid [50].
[9]Ibid [51].
The judge then referred to the totality principle, which he regarded as being ‘highly relevant’ to the sentencing of the applicant, having regard to the continuing nature of the conspiracy charges and their overlap with the dealing which was the subject of charge 3. The judge accepted that that principle was important in order to avoid double punishment and to avoid imposing a crushing sentence.[10]
[10]Ibid [52].
The judge accepted that while the applicant’s abuse of drugs, which stemmed from his dysfunctional childhood, had caused him to be engaged in criminal conduct, he did not accept, in its entirety, the assessment of Mr Newton that it underpinned his criminal conduct. Rather, his Honour considered that the applicant’s offending was motivated largely by the enormous financial rewards that are available from large-scale drug trafficking.[11] The judge assessed the applicant’s prospects of rehabilitation as being poor, but noted that the applicant had complied with the significant parole period imposed by the Supreme Court in 2006, which demonstrated that he was capable of complying with supervision.[12]
[11]Ibid [75].
[12]Ibid [76].
Ground 1 — submissions
Under ground 1, counsel for the applicant noted that the judge found that there had been an ‘erosion’ of the utilitarian value of the pleas, and of the extent to which the pleas evidenced a willingness to facilitate the course of justice, and to which they were indicative of remorse, by reason of two factors. The first factor was the timing of the plea. The second factor was the unsuccessful contest, on the plea, as to a number of disputed transactions.
In respect of the first factor, counsel submitted that the judge erred in not accepting that the applicant’s guilty pleas had been made at the earliest reasonable opportunity. Counsel noted that the conspiracy charges, to which the applicant ultimately pleaded guilty, were only laid shortly before the committal. At the time of the committal, the overt acts, which particularised the conspiracy charges, comprised sixty-eight individual transactions, involving 35.36 kilograms of methamphetamine and 8.34 kilograms of heroin. Following the contested hearing in the course of the plea, and the judge’s ruling, the overt acts were reduced to thirty individual transactions, comprising 12.65 kilograms of methamphetamine and 4.5 kilograms of heroin. In those circumstances, it was submitted, it was unrealistic for the judge to have expected the applicant to have pleaded guilty before the committal hearing, on the basis of seriously over-stated particulars, and in the absence of cross-examination on those matters at the committal.
In respect of the second factor, counsel submitted that the judge erred in concluding that there was an erosion of the utilitarian value of the plea by reason of the unsuccessful contest by the applicant of a number of the disputed transactions during the contested hearing. Counsel noted that no evidence was required to be called on the contested plea. While the applicant was unsuccessful in respect of a number of disputed transactions, the contested plea did result in a significant reduction of the identified quantities the applicant was found to have trafficked by overt acts. Further, the applicant’s situation was complicated by the fact that, following the committal hearing and before the contested plea, an offer had been made to attempt to resolve the outstanding issues relating to the disputed transactions.
In response, counsel for the respondent submitted that the judge gave appropriate weight to the applicant’s plea of guilty. Counsel noted that the judge accepted that the plea occupied less court time than a contested trial, that there was a significant utilitarian benefit from the plea of guilty, and that that benefit was magnified in circumstances where jury trials had been suspended. The judge also considered that the contested plea was conducted as efficiently as it could have been. Counsel further submitted that in the course of the plea before the sentencing judge, the discussion concerned not whether the applicant’s plea had been made at the earliest reasonable opportunity, but rather whether it was made at the earliest available opportunity.
Counsel for the respondent further noted that in the plea, the prosecution had identified twenty-nine specific transactions of trafficking (by selling) as some of the overt acts in furtherance of the conspiracies. The applicant contested fourteen of those transactions. The prosecution case, in respect of those fourteen contested transactions, was that the applicant had trafficked 9.5 kilograms of methamphetamine and 2.765 kilograms of heroin. The judge’s findings, on those transactions, were that the applicant had trafficked seven kilograms of methamphetamine and 2.511 kilograms of heroin.
Counsel submitted that the applicant had qualified his pleas of guilty to charges 1 and 2 by denying the overt acts which were ultimately proven against him. Further, the applicant and his co-offenders ran a five-day contested plea which reduced the utilitarian value of the plea in respect of the overt acts that were upheld by the sentencing judge.
Ground 1 — analysis and conclusions
Ground 1, and ground 2, of the proposed grounds of appeal, contend that the judge made a specific error in the exercise of the sentencing discretion. In considering such a ground, it is important to bear in mind the nature and function of sentencing reasons, and the manner in which they are delivered in courts in this State. In that respect, the following passage, from the judgment of this Court in Zogheib v the Queen[13] is relevant:
In considering the first question, it is important to bear in mind that, in this State, sentences are delivered orally in the second person, and are directed specifically to the offender who stands for sentence. Ordinarily, sentencing judges strive to express their reasons for sentence in terms that will be understood by the offender, and by other lay persons in court. In such a process, a degree of brevity, and, on occasions, of imprecision of expression, does intrude, because of the nature of the sentencing process. For that reason, it is important to construe sentencing remarks by a judge in their proper context, and not with an eye that is assiduous to detect error in the sentencing process. In that respect, the observations of Tadgell JA in his dissenting judgment in R v Groom, are apposite, namely, that a ‘... judge’s sentencing remarks are not to be construed as if contained in a statute, a will or a deed’.[14]
[13][2015] VSCA 334.
[14]Ibid [55] (Kaye JA) (citations omitted). See also DPP v Majok [2017] VSCA 135 [35] (Priest, Kyrou and Kaye JJA).
In considering ground 1, the starting point is that it is clear, from the passage of the judge’s sentencing reasons quoted above, that his Honour gave substantial weight to the applicant’s pleas of guilty as a mitigating factor. The judge noted that although a lengthy contested plea took place, nevertheless the pleas by the applicant had ‘substantial utilitarian value’. His Honour observed that the evidence in the case was voluminous, that a trial would have occupied a significant period, and that the pleas saved police witnesses from giving evidence at the trial and some of them from having to attend the trial daily. His Honour also noted that the objective utilitarian value of the plea was ‘heightened’ because of the suspension of jury trials by reason of the COVID-19 pandemic.
Thus, it is plain that the judge did attribute significant utilitarian value to the plea made by the applicant. It was in that context that his Honour observed that there was ‘an erosion’ of the utilitarian value of the plea, of the extent to which the pleas evidenced a willingness to facilitate the course of justice, and were indicative of remorse, and that those matters were ‘qualified, to a degree’. As understood in its proper context, it would seem that the degree of erosion of the value of the plea, referred to by the judge, was quite moderate. Properly construed, it is apparent that, notwithstanding the two qualifications specified by the judge, nevertheless he attributed substantial weight to the pleas of guilty by the applicant as a mitigating factor. As we will discuss under grounds 3 and 4, in view of the dimension and gravity of the applicant’s offending, and taking into account his previous convictions, the individual sentences, and the total effective sentence, imposed on the applicant were quite moderate, even taking into account that he pleaded guilty. It is evident, from those sentences, that the judge did give significant weight to the pleas as a relevant mitigating circumstance.
In the present case, it was relevant for the judge to consider when it would first have been reasonable for the applicant to have pleaded guilty to the charges on which he was sentenced.[15] In the paragraph that preceded the passage in the sentencing remarks that is impugned by ground 1, the judge considered that question. His Honour noted that the conspiracy charges were laid shortly before the committal, and that, in the circumstances, time was needed to clarify the particulars and the ambit of the prosecution case. In that respect, the judge noted that the applicant had achieved a substantial reduction of the charges following the committal proceeding. He also accepted that relevant material was elicited at the committal, and that, in such a complicated matter, some time was needed to resolve the case. The judge then qualified those observations by noting that it had still been open to the applicant to plead guilty before the committal and ‘sort through the remaining disputes’ in the course of the plea.[16]
[15]Atholwood v R (1999) 109 A Crim R 465, 468 [10]; [1999] WASCA 256 (Ipp J); Cameron v the Queen (2002) 209 CLR 339, 345 [20]–[21]; [2002] HCA 6 (Gaudron, Gummow and Callinan JJ).
[16]Reasons [50].
The question which must be determined on this application is not whether this Court agrees with the analysis made by the judge, or whether this Court would have reached the same conclusion concerning the timing of the plea. Rather, the question is whether the judge erred in considering that it had been open to the applicant to plead guilty before the committal.
In determining that question, it is relevant that, in March 2020, the applicant pleaded guilty to the same conspiracy charges which had been served on him before the commencement of the committal proceeding. Thus, it was possible for the applicant to plead guilty before the committal proceeding, accompanied by an express qualification that, in doing so, he reserved the right to put in issue a number of the overt act, relied on by the prosecution, as evidencing the nature and extent of the conspiracy.
Certainly, at the committal proceeding, and subsequently, the applicant successfully put in issue a substantial number of the overt acts on which the prosecution relied as demonstrating the nature and dimension of each of the two conspiracies. In particular, as a result of the cross-examination undertaken at the committal proceeding, a number of the overt acts, and the volume of the methamphetamine and heroin that was alleged to have been trafficked, was significantly reduced. The question is whether, in such circumstances, it was open to the judge to conclude that the first reasonable opportunity for the applicant to plead guilty to the two conspiracy charges was at a point before the commencement of the committal proceeding.
The determination of that question must depend, substantially, on the particular facts and circumstances of the case. In that respect, it is important to note that, in the course of the contested part of the plea, the judge became acquainted with a substantial amount of the detail of the prosecution case against the applicant and his co-offenders. It is apparent from the ruling by the judge, on the contested issues, that his Honour had the benefit of examining the nature and extent of the case against the applicant. In that respect, he was well placed to make an assessment whether it would have been reasonable for the applicant to have entered his pleas of guilty before the committal proceeding. In that light, it was open to the judge to conclude that the applicant could have pleaded guilty to the conspiracy charges before the committal proceeding. Accordingly, we are not persuaded that there was any error by the judge in considering that the weight to be attributed to the pleas of guilty, as mitigatory factors, was qualified ‘to a degree’ by the stage at which the applicant entered those pleas.
The second factor, leading to the ‘erosion’ of the mitigatory weight of the pleas, was the unsuccessful contest by the applicant in relation to a number of the disputed transactions. In the course of the plea hearing, in considering that aspect of the judge’s reasons, it is important to bear in mind that, in the immediately preceding passage, the judge expressly accepted that the contested plea was conducted ‘as efficiently as it could have been’.[17]
[17]Ibid [51].
In the course of the contested part of the plea, the applicant put in issue some fourteen different transactions. He succeeded on seven of them, and the prosecution succeeded on the balance. However, as counsel for the respondent pointed out in submissions, that degree of success by the applicant, in the contested plea hearing, did not result in a substantial reduction of the volumes of methamphetamine and heroin that were the subject of trafficking as part of the overt acts of the two conspiracies.
In determining the seriousness of offences of trafficking, it is well recognised that the weight or quantity of drugs involved is a factor of some importance, in demonstrating the dimension and nature of a drug trafficking enterprise undertaken by an accused person.[18] The applicant unsuccessfully put in issue seven overt acts that were alleged to have been undertaken in furtherance of the two charged conspiracies, and that involved the trafficking of seven kilograms of methamphetamine and 2.511 kilograms of heroin. By doing so, he did not accept responsibility for that part of the conspiracies. The judge was entitled to conclude that the applicant, to that extent, qualified the pleas of guilty that he had made to the two conspiracy charges, and that the part of the contested plea, that related to those overt acts, mitigated the utilitarian value of the pleas made by the applicant. Accordingly, we do not accept that the judge erred in considering that the mitigatory weight to be attributed to the applicant’s pleas of guilty was qualified ‘to a degree’ by the unsuccessful contest which the applicant made in relation to some of the disputed transactions.
[18]Wong v The Queen (2001) 207 CLR 584, 609 [67]; [2001] HCA 64 (Gaudron, Gummow and Hayne JJ); R v Pham (2015) 256 CLR 550, 564 [45]; [2015] HCA 39 (Bell and Gageler JJ).
It follows, from the foregoing, that ground 1 of the application for leave to appeal must fail.
Ground 2 — submissions
Ground 2 concerns the characterisation by the judge of the offending which was the subject of charge 10. The period of the offending for that charge was between 3 July 2014 and 30 May 2018. In his reasons for sentence, the judge noted that the timeframe of the offending was over four years. His Honour then stated:
It is clear from the charges you have pleaded guilty to that you were engaging in criminal activity involving substantial enrichment over a number of years leading up to your arrest in September 2018.[19]
[19]Reasons [42].
Counsel for the applicant noted that it was impermissible for the judge to sentence the applicant, in respect of charge 10, on the basis that he had knowledge, or was reckless or negligent, as to the provenance of the money dealt with. It was submitted that, in that part of the sentencing reasons, the judge contravened that principle. In particular, it was submitted, the judge approached charge 10 on the basis that the money, that was the subject of that charge, was not only the proceeds of crime, but was the direct proceeds of criminal activity engaged in by the applicant. On such an analysis, the applicant must have known that the money, that was the subject of charge 10, constituted the proceeds of that criminal activity. Accordingly, it was submitted, the applicant was sentenced on a view of the facts that was inconsistent with the charge to which he had pleaded guilty, and which was consistent with a more serious offence which had a more significant maximum sentence attached to it.
In response, counsel for the respondent submitted that the comment by the judge, that it was clear from the charges that the applicant had engaged in criminal activity involving substantial enrichment over a number of years, constituted a statement of fact that reflected the applicant’s offending over that entire period. That offending included the offending alleged in charge 10, which occurred over a period of four years, and which involved the applicant conducting 109 transactions, 101 of which were deposits into accounts that he controlled. The agreed amount, involved in charge 10, was at least $1,999,743.25, over a period of four years in which the applicant was declaring a minimal taxable income. Accordingly, it was submitted, there was nothing in the transcript of the plea, or the reasons for sentence, that suggested that the judge had attributed an impermissible mental element to the applicant’s conduct for charge 10, or otherwise erred in his approach in determining the sentence for that charge.
Ground 2 — analysis and conclusions
In essence, it is contended on behalf of the applicant, under ground 2, that the judge erred by sentencing the applicant, on charge 10, on a factual basis which involved the applicant committing an offence that was more serious than that which was alleged in that charge. That contention is based on two principles of sentencing, neither of which were in contention.
First, in order to establish the guilt of the applicant of the offence in charge 10 — dealing with money (being $100,000 or more) reasonably suspected of being the proceeds of crime, contrary to s 400.9(1) of the Criminal Code (Cth) — it was not necessary for the prosecution to prove any subjective knowledge or belief by the applicant as to the provenance of that money. As the Court noted in Kao v The Queen,[20] the offence, that is prescribed by s 400.9, is at the bottom of the structured series of offences contained in Division 400 of the Code. In order to prove that offence, ‘… no mental element concerning the provenance of the money is required to be proved at all.’[21]
[20][2019] VSCA 84.
[21]Ibid [68] (McLeish and T Forrest JJA).
Secondly, in sentencing the applicant on charge 10, it was not permissible for the judge to take into account or rely on facts or circumstances, which would have rendered the applicant guilty of a separate and more serious offence, and thus liable to a more serious penalty.[22]
[22]R v De Simoni (1981) 147 CLR 383, 392 (Gibbs CJ; Mason and Murphy JJ agreeing at 395); R v Newman [1997] 1 VR 146, 150–1 (Winneke P).
In essence, the applicant contends that the judge failed to comply with those principles, because he sentenced the applicant on charge 10 on the basis that the money that was the subject of that charge was not only the proceeds of crime, but was the direct proceeds of the criminal activity engaged in by the applicant, namely, the drug trafficking alleged in charges 1 and 2.
In our view, that proposition cannot be sustained. In his sentencing remarks, the judge did not state or infer that he sentenced the applicant on charge 10 on the basis that the money, that was the subject of that charge, was the direct proceeds of the criminal activity engaged in by the applicant and which was the subject of charges 1 and 2. In the paragraph of the sentencing reasons that preceded the passage in question, the judge described the role of the applicant in the drug trafficking syndicate that was the subject of charges 1 and 2.[23] His Honour then, in the next paragraph, turned to charge 10. His Honour stated:
Charge 10, dealing in suspected proceeds of crime, further adds to the criminality of your overall offending. The maximum penalty for this charge is just three years, but on any view, this must be at the top end of the spectrum for such offending. The timeframe of the offending is over four years leading up to these conspiracies and the amount is approximately $1.9 million comprised of 109 separate acts.[24]
[23]Reasons [41].
[24]Ibid [42].
Each of those observations, made by the judge in respect of charge 10, were unimpeachable. In the passage, which is the subject of ground 2, and which immediately followed those observations, it is apparent that the judge referred, not just to charge 10, but to all of the charges to which the applicant had pleaded guilty. His Honour commenced that sentence by stating that it was clear ‘from the charges’ (plural), to which the applicant had pleaded guilty, that he had been engaging in criminal activity, involving substantial enrichment, over a number of years leading to his arrest in September 2018.[25] It is clear, not only from the express use of the plural ‘charges’, but from the content of that passage, that the judge, by way of summary, characterised the totality of the offending to which the applicant had pleaded guilty.
[25]Ibid.
Further, and in any event, charge 10 involved the applicant engaging in criminal activity from which he derived substantial enrichment over a number of years. While, as noted, the offence itself did not involve any knowledge by the applicant of the provenance of the proceeds, nevertheless, it involved a large number of transactions (some 109) by which he had intentionally dealt with money (totalling $1.9 million) that was reasonably suspected of being the proceeds of crime. The intentional dealing by the applicant, with those proceeds, might fairly be described as the engagement by him in criminal activity involving substantial enrichment over a number of years.
For those reasons, we are not persuaded that, in the passage in the sentencing remarks in question, the judge failed to comply with the relevant sentencing principles to which we have referred. In particular, we do not accept that the judge sentenced the applicant on charge 10 based on a view of the facts which should have been the subject of a separate and more serious offence.
Accordingly, ground 2 must fail.
Ground 3 and ground 4 — submissions
Grounds 3 and 4 were argued together.
Counsel for the applicant acknowledged that the applicant’s offending was very serious and involved a number of aggravating factors. Accordingly, it was accepted that the judge was required to impose individual sentences that involved very substantial periods of imprisonment. The sentencing judge recognised that the principle of totality, and the need to avoid imposing double punishment and imposing a crushing sentence, remained important sentencing considerations. His Honour indicated that he intended to moderate the length of the individual sentences in order to accommodate the requirements of totality. However, it was submitted, a review of the individual sentences indicated that that process of moderation had not been implemented. Rather, it was submitted, the sentences imposed on each of charges 1, 2 and 3 are manifestly excessive.
Counsel submitted that apart from the need to comply with the principle of totality, there were, in addition, a number of important mitigating factors that were relevant to the determination of the applicant’s sentence. They included: the pleas of guilty; the circumstance (so it was submitted) that the pleas were made at the first reasonable opportunity; the very powerful utilitarian benefit associated with the pleas; the applicant’s remorse; the applicant’s distressing and dysfunctional upbringing; the increased burden of imprisonment on account of the COVID-19 pandemic; and the applicant’s steps towards rehabilitation while in custody.
In respect of the individual sentences, counsel noted that the judge imposed almost the same sentence for charge 2 (15 years and 6 months’ imprisonment) that was imposed in respect of charge 1 (15 years and 10 months’ imprisonment). However, it was submitted, the identified sales of methamphetamine and heroin, represented by the overt acts, were significantly more substantial in respect of charge 1 than in respect of charge 2. It was further submitted that although the judge recognised that, in imposing sentence in respect of charge 3, it was necessary to avoid double punishment, the sentence of 5 years’ imprisonment imposed in respect of that charge does not reflect any moderation in that respect.
In response, counsel for the respondent submitted that each of the individual sentences, the total effective sentence and the non-parole period, were entirely appropriate and are not manifestly excessive. Counsel noted that the judge specifically recognised the importance of the principle of totality, and his Honour applied that principle appropriately by ordering modest cumulation in respect of charge 2, and no cumulation in respect of charge 3.
In respect of the individual sentences, the total effective sentence and the non-parole period, counsel for the respondent noted that the applicant was sentenced on the basis of a number of relevant factors. In particular, the judge noted that the applicant’s offending involved very substantial criminality, as evidenced by the large number of individual criminal acts that constituted the overt acts. The applicant intended to traffick in multiples of commercial quantities of both substances. He was the principal offender and main beneficiary of the business. Accordingly, his moral culpability was very significant. The offending in charge 10 commenced thirteen months after the expiration of a significant term of imprisonment imposed in the Supreme Court for serious offending. The drug business (in the second phase) involved the presence of firearms and ammunition. The applicant’s prospects of rehabilitation were assessed as poor.
Counsel for the respondent further submitted that it is simplistic to contend that the sentence imposed on charge 2 was excessive because the identified sales of methamphetamine and heroin in that period were more confined than in charge 1. In addition to the number of sales and weight of drugs, the judge took into account other relevant factors, including the applicant’s possession of firearms, ammunition and large amounts of cash, the frequency of daily telephone calls, and the sophistication, scale and profitability of the enterprise in the second phase. Further, it was submitted, the second conspiracy was marked by the determination of the applicant to continue his offending notwithstanding that he was aware that the authorities were investigating him.
Grounds 3 and 4 — analysis and conclusions
In order to succeed, on the ground that the sentences imposed on the applicant were manifestly excessive, the applicant must demonstrate that the sentences were wholly outside the range of sentencing options available to the sentencing judge. In other words, it must be demonstrated that the sentences, which are the subject of the application for leave to appeal, are so excessive as to bespeak error by the judge in the exercise of his sentencing discretion, notwithstanding that no specific error may be identified in his Honour’s reasons for sentence.[26]
[26]Clarkson v The Queen (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); DPP v Macarthur [2019] VSCA 71, [58] (Ferguson CJ, Kaye and Weinberg JJA).
In addressing grounds 3 and 4, it is convenient, first, to address two discrete submissions advanced by counsel for the applicant concerning the sentences imposed on charges 2 and 3.
The first submission related to the sentence of 15 years and 6 months’ imprisonment imposed on charge 2, which was just four months less than the sentence imposed in respect of the offence that was the subject of charge 1. Counsel noted that the period of the conspiracy under charge 2 was significantly shorter than the period of the conspiracy alleged in charge 1, and that the amount of drugs trafficked in the period of the second conspiracy was significantly less than the amount trafficked in the period of the first conspiracy. In those circumstances, he submitted, the lack of sufficient disparity between the sentences imposed on the two charges supported the proposition that the sentence imposed on charge 2 of itself, was manifestly excessive.
We do not accept that submission. As counsel for the respondent correctly noted, there were a number of features, attaching to the conspiracy that was the subject of charge 2, that compounded the gravity of the offending of the applicant. In particular, on his arrest, the applicant was found in possession of firearms and ammunition, a large amount of cash, and a significant quantity of pure methamphetamine and pure heroin. His possession of the two firearms, one of which was loaded, was a circumstance of particular seriousness, in light of the applicant’s previous convictions. Further, the conspiracy was only brought to an end upon the applicant’s arrest, and it would seem that the applicant had persisted in conducting the enterprise, that was the subject of the second conspiracy, in circumstances in which he was aware that he was the subject of investigation by authorities.
Further, we do not accept the submission made by counsel for the applicant that the individual sentence of 5 years’ imprisonment on charge 3 was manifestly excessive, because it involved an element of double punishment. The amounts involved in charge 3 were particularly substantial. In light of the maximum sentence of 25 years’ imprisonment for the offence, and the applicant’s previous convictions, a sentence of 5 years’ imprisonment was quite moderate. In imposing that sentence, and directing that there be no cumulation to that sentence on the sentences imposed on charges 1 and 2, the judge was clearly alert to avoid imposing double punishment on the applicant.[27]
[27]Cf Pearce v The Queen (1998) 194 CLR 610, 623–4 [43]–[49]; [1998] HCA 57 (McHugh, Hayne and Callinan JJ); R v Grabovac [1998] 1 VR 664, 680 (Ormiston JA).
We turn then to the general proposition advanced under grounds 3 and 4 that the total effective sentence, the individual sentences and the orders for cumulation were manifestly excessive.
The principles, that apply to charges involving large scale drug trafficking, were conveniently stated in the following passage in Lieu v The Queen:[28]
The principles applicable to the offences to which the applicant pleaded guilty are well established, and need not be rehearsed at length. Essentially, the determination of the seriousness of the offending is informed by a range of factors, including the role of the offender, the position of the offender in the drug trafficking (or importing) hierarchy, the nature and extent of the offender’s involvement in the enterprise, the sophistication of the enterprise, and the amount of drugs involved, or intended to be involved, in the enterprise. In describing the role of the offender in the hierarchy, it is important that any shorthand label attaching to that role does not obscure the nature and extent of the actions and involvement of the offender.
In determining the seriousness of the offence, the weight or amount of the drugs involved is a factor of some importance. That circumstance is relevant to determining the dimension of the enterprise in which the offender is involved, and the amount of profit that was expected from the enterprise, which generally constitutes the primary if not sole motive for the offending. The weight or amount of the drugs involved might also indicate that the enterprise, in which the offender has been involved, was far reaching, and sophisticated. On the other hand, that factor, per se, is not necessarily the primary or overriding factor in determining the gravity of the offending under consideration.
It is well recognised that in cases such as this significant weight is attached to the principle of general deterrence. The difficulty of detecting importation offences, and the great and far reaching social consequences stemming from the proliferation of illicit drugs in the community, are factors which support the importance of the concept of general deterrence in sentencing for such offences. In particular, it is recognised that, in light of the very large profits that motivate importation and trafficking offences, it is important that the sentence imposed by the courts ‘... must signal to would be traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment ... ‘. On the other hand, the previous good character, and personal circumstances, of an offender in drug trafficking or importation offences are generally attributed less weight as a mitigating factor.
The essential criminality involved in a conspiracy charge lies in the joining by an offender in a secret combination with others to commit an offence. However, it is well accepted that, in assessing the degree of criminality involved in the offender’s participation in the conspiracy, it is necessary also to take into account the overt acts of the offender that reflect the content and duration of the offender’s involvement in the conspiracy.[29]
[28][2016] VSCA 277 (‘Lieu’).
[29]Ibid [41]–[44] (Beach and Kaye JJA) (citations omitted).
As counsel for the applicant correctly acknowledged, the offending by the applicant was very serious. The conspiracies, that were the subject of charges 1 and 2, each involved the trafficking of very large amounts of illegal drugs. The applicant’s offending earnt him very substantial amounts of money. Plainly, the objective gravity of the offending, and the applicant’s moral culpability, were particularly high. In addition, the applicant had serious previous convictions.
The offending in charges 1 and 2 was particularly serious. The applicant was the head of a significant drug trafficking syndicate. In that capacity he was involved in a number of the activities of the syndicate. The scale of the drug trafficking that was involved, and the very large profits earned from it, were very much due to the applicant’s planning and his daily involvement.
Apart from the applicant’s pleas of guilty, there was little by way of mitigating circumstances upon which the applicant could rely. The applicant’s unfortunate dysfunctional upbringing certainly accounted for his abuse of illicit drugs and his previous involvement in offending. However, as the judge correctly noted, the offending in this case was largely motivated by the very significant financial rewards that were available to the applicant from large scale drug trafficking. In those circumstances, the judge was correct to consider that the principles, discussed by the High Court in R v Bugmy[30] had limited application as mitigating factors in the case.
[30](2013) 249 CLR 571, 594–5 [42]–[44]; [2013] HCA 37 (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
As was discussed in Lieu, in cases such as this, significant weight is attached to the sentencing purpose of general deterrence. In essence, it is important that the courts, by their sentences in such cases, make it clear to those who contemplate becoming involved in drug trafficking that, if they do so, and if they are detected, they will face long terms of imprisonment. It is only in that way that the law can seek to alter the calculus which otherwise motivates persons, such as the applicant, to be involved in that type of enterprise.
Taking into account the very substantial scale of the drug trafficking involved in charges 1 and 2, the applicant’s role in the drug trafficking syndicate, and the very significant financial rewards that were sought and derived from that drug trafficking, in all the circumstances of the case, the individual sentences imposed on each of the four charges, and the orders for cumulation, were quite moderate. Contrary to the submissions made on behalf of the applicant, the judge clearly had in mind, and observed, the principle of totality, by sufficiently moderating the sentence imposed on each of the charges, and providing for modest cumulation for the sentences imposed on charges 2 and 10 on the base sentence that was imposed on charge 1. By structuring the sentence in that way, the judge gave appropriate weight to the principle of totality, and to the need to avoid imposing double punishment, particularly in respect of the sentence imposed on charge 3. Accordingly we are not persuaded that the total effective sentence, the sentences imposed on the individual charges, or the orders for cumulation, were manifestly excessive.
It follows that grounds 3 and 4 of the application for leave to appeal must fail.
Summary of conclusions
For the foregoing reasons, the applicant has not succeeded on any of the grounds contained in the application for leave to appeal against sentence. Accordingly, the application is refused.
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