Nguyen v The Queen

[2012] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0005

THI KIM PHUNG NGUYEN	Applicant
	v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	5 June 2012
DATE OF JUDGMENT	5 June 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 119
JUDGMENT APPEALED FROM	R v Nguyen (Unreported, County Court of Victoria, Judge Campton, 3 October 2011)

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CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal – Parity – Whether insufficient weight given to voluntary return to the jurisdiction – Application for leave to appeal dismissed. 

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Greg Thomas Barristers & Solicitors
For the Respondent	Mr D D Gurvich	Commonwealth Director of Public Prosecutions

BUCHANAN JA:

1. I will ask Justice Osborn to deliver the first judgment.

OSBORN JA:

1. On 3 October 2011, following pleas of guilty in the County Court, the applicant was sentenced by Judge Campton to 12 years’ imprisonment on a count of importing a commercial quantity of a border controlled drug (methamphetamine, cocaine and MDMA); and eight years’ imprisonment on a count of attempting to possess a commercial quantity of a border controlled drug (methamphetamine, cocaine and MDMA).  Three years of the sentence imposed on the second count were cumulated upon the sentence imposed in respect of the first count, resulting in a total effective sentence of 15 years’ imprisonment.  Her Honour fixed a non-parole period of 11 years six months.

1. The judge further declared that in the absence of a plea of guilty, the applicant would have been sentenced to 19 years’ imprisonment with a non‑parole period of 15 years.  She further specified that but for the appellant’s undertaking to assist the prosecution in further proceedings, the applicant would have been sentenced to 17 years’ imprisonment with a non‑parole period of 14 years.

1. Under the Commonwealth Criminal Code Act 1995[1] the maximum penalty for both the offences in issue is life imprisonment or 7,500 penalty units or both. 

   [1]Section 307.1, 307.8.   

Background facts

1. The applicant was born in Vietnam in 1971 and was 39 years’ old at the date of sentence.  In 1995, at the age of 25, she came to Australia with her then fiancée.  She married here, but separated from her husband soon afterwards.  She had three subsequent relationships, and had a child to each partner.  She initially worked as a

sewing machinist and then opened a restaurant.  She became involved with a Hui loan scheme and lost substantial moneys when a participant in the scheme absconded with the funds.  In turn, she lost the restaurant business and her house.  Subsequently, she formed a relationship with one of the customers from the restaurant named Sau.  He obtained a rental home for her, where she lived with her three sons, and it was he who proposed that she become involved the drug importation enterprise which led to her convictions.  In return for her involvement she was promised money, a house and a car. 

1. Sau was the principal of a group of offenders who attempted to import drugs from the United States of America.  The drugs were contained in foot spas which were placed in a container for shipment to Australia.  The container was intercepted by customs officers in the USA and then by Australian Federal Police upon its arrival in Melbourne.  The drugs were removed in the USA and substitutes were placed in the container by the AFP.  It was then delivered to the intended recipients and, shortly after it was opened, police arrested a number of those involved in the enterprise. 

1. This was a very large drug importation.  In round figures, 158.5 kilograms of substance containing 55 kilograms of pure drugs was seized.  This constituted many multiples of the defined commercial quantities applicable to the drugs involved.  The Crown estimated the street value of the drugs as follows:

Methamphetamine             $50 million

Cocaine  $16 - $32 million

MDMA  $6.9 - $16 million

1. At one point, Sau told the applicant that he needed good English speakers to deal with the importation arrangements.  The applicant recruited her niece Phuong Bich Nguyen (‘Phuong’) to assist.  Phuong owed the applicant money in a Hui scheme and was to receive $25,000 which would go towards repayment of her debt.  The applicant arranged for Phuong to move into her home and introduced her to Sau’s brother, Hung.  Hung provided the payments necessary for the importation and the applicant arranged for customs and other expenses to be paid. 

1. The applicant also arranged the lease of a factory to which the container was to be delivered. 

1. On 1 July 2008, shortly before the container was due, the applicant left Australia to join Sau in Vietnam.  Before she left, she provided Phuong with a mobile phone so that the applicant could continue to give detailed instructions to Phuong as to what she should do.  Subsequently, the applicant made numerous calls co-ordinating and organising the arrangements for the arrival and unpacking of the container.  These calls were intercepted by police. 

1. The applicant also gave instructions to Phuong as to how she should deal with two Sydney drug traffickers who it was intended would on-sell drugs received in the container. 

1. The applicant was with Sau at the time the container was unpacked at the factory and he spoke with co-offenders by phone as to what was revealed. 

1. The applicant was aware that a number of her co-offenders were immediately arrested and she remained in Vietnam until 29 August 2009.  She then returned to Australia and when initially interviewed in October 2009 made no admissions.  A contested committal was held in February 2010 at which it was indicated the matter might resolve into a plea of guilty and in September 2010 an indictment was filed, the applicant was arraigned and pleaded guilty and the matter was adjourned for a plea hearing.  The applicant co-operated with police and made statements in October 2010 and February 2011.  In addition, she agreed to give evidence against her co-offenders.  The informant acknowledged to the sentencing judge that the applicant had provided valuable evidence in respect of other offenders and, in particular, Sau.  Subsequently the applicant has given evidence upon the trial of two co‑offenders, Hung and Minh. 

1. At the time of the applicant’s sentence, two other co-offenders had been sentenced and appeals against those sentences had been dismissed by the Court of Appeal.  Phuong was sentenced to 10 years’ imprisonment for the attempted importation of a commercial quantity of border controlled drugs and seven years’ imprisonment for attempted possession of a commercial quantity of border controlled drugs.  The total effective sentence was 12 years with a non-parole period of eight years.  Phommalysack received a sentence of 12 years’ imprisonment with a non-parole period of nine years for one count of attempted possession of border controlled drugs.[2] 

   [2]See Nguyen and The Queen, Phommalysack and The Queen (2011) 207 A Crim R 380.

The grounds of appeal

1. The applicant seeks leave to appeal on two grounds which have been argued together. 

Ground 1:     The learned sentencing judge erred in failing to give sufficient weight to the fact that the applicant had voluntarily returned to Australia and thereby allowed for her own prosecution to proceed. 

Ground 2:     The learned sentencing judge erred in the application of the parity principle. 

1. It is submitted that, from a parity point of view, the most relevant sentence is that imposed on Phuong. 

1. It is emphasised that both offenders:

·    had no prior convictions;

·    had pleaded guilty;

·    had provided assistance to the prosecuting authorities; and

·    had undertaken to provide further assistance to the authorities, for which they were given a parallel discount. 

1. It is conceded that the applicant’s role was greater than that of Phuong in organising the importation and that, in all the circumstances, she had to receive a greater sentence than Phuong. 

1. Nevertheless, it is submitted that the applicant’s voluntary return from Vietnam to Australia was remarkable given that she knew of the arrest of her co‑offenders and could only expect to be arrested and imprisoned when she returned.  She chose to return when there was no ability to extradite her from Vietnam to Australia.

1. In these circumstances it is submitted that the applicant’s subsequent pleas of guilty and assistance to the authorities carry added weight.  Further, it is said the eventual disparity between the applicant’s sentence and Phuong’s sentence cannot be justified. 

1. The principle of parity is an aspect of equal justice.  Equal justice requires that like offences should be treated alike but, conversely, relevant differences between offenders will justify different outcomes.  The principle raises the question whether there is a marked disparity between the two sentences which gives rise to a justifiable sense of grievance on the applicant’s part.[3]

   [3]Postiglione v The Queen (1997) 189 CLR 295, 301; Lowe v The Queen (1984) 154 CLR 606, 610, 613, 623.

1. I do not accept that it is reasonably arguable that the sentencing judge erred in the application of the parity principle:

(a)       Phuong’s involvement in the importation was the result of the applicant’s actions and in particular the exploitation of their familial relationship and the debt Phuong owed her;

(b)       the applicant’s role was at a higher level of responsibility than that of Phuong and was vital  to the operation.  Phuong acted in accordance with the applicant’s directions

(c)       Phuong herself cooperated and undertook to assist the authorities immediately after her arrest when the applicant was still overseas.  Phuong also pleaded guilty materially earlier than the applicant.

(d)      the sentencing judge found that the applicant’s motive was one of substantial financial reward, although the judge accepted that the applicant probably felt a high level of emotional connection and financial dependence on Sau.  Conversely, it seems the level of financial reward expected by Phuong was relatively less, although it is difficult to quantify, and, more significantly, Phuong’s emotional connection and financial dependence arose from her relationship with the applicant.

1. Taken together, these factors mean that there can be no justifiable sense of grievance on the applicant’s part in respect of the disparity between the sentences imposed upon Phuong and herself. 

1. Insofar as the discount for the applicant’s voluntary return to Australia is otherwise concerned, the co-operation of an offender with the prosecuting authorities is one element of ‘a complex of interrelated considerations’.[4] It may be regarded specifically as bearing on the question of contrition under s 16A(2)(f) of the Crimes Act and co-operation under s 16A(2)(h). 

   [4]R v Gallagher (1991) 23 NSWLR 220, 227-8.

1. There is no precise formula for the quantification of the discount for cooperation, including cooperation which has as its initial element voluntary return to the jurisdiction. 

1. The sentencing judge expressly stated that she took into account the matters advanced on the plea in mitigation of the applicant’s offending.  As she recorded,[5] the first of those matters was that the applicant returned from Vietnam to Australia to face charges in circumstances where there was no operative extradition treaty. 

   [5]Sentence, [35]. 

1. The applicant invites the Court to infer that her Honour gave inadequate weight to this factor.  The Crown submits that the evidence shows the applicant returned to Australia for the sake of her children and that she was not motivated by contrition or the desire to cooperate with the authorities.  Moreover, when she returned more than one year after the commission of the offences, she denied her guilt.  There is some force in these submissions.  What they demonstrate is that it was for the sentencing judge to weigh the significance of the applicant’s cooperation in the context of the circumstances as a whole.  In my view, there is no basis for inferring that the judge gave inadequate weight to a factor she specifically acknowledged.

1. Moreover in Nguyen and The Queen,[6] the Court held that the sentences before it were well within the range.  The Court also pointed out that the offenders could have been sentenced on the basis of separate counts referable to commercial quantities of each of the drugs involved.  Phuong was described as playing a key role in the critical phase of the enterprise.  As I have explained, the present applicant’s role was at a higher level and she was also an ‘integral facilitator of the importation’.  As such, her criminality must be judged not solely by reference to the acts she alone did, but by reference to the joint enterprise in which she participated. 

   [6](2011) 207 A Crim R 380, [69]-[70].

1. Indeed, it is not submitted that the sentence imposed upon the applicant was, in itself, manifestly excessive.

1. In these circumstances, once the parity argument is rejected, the inference is simply not open that her Honour failed to give due weight to the factor of voluntary return to the jurisdiction.  Put another way, as Mr Dann conceded, Ground 1 is really a particular of Ground 2 in the present case. 

1. The grounds of appeal are not, in my view, reasonably arguable, and the application for leave to appeal should be dismissed.

BUCHANAN JA:

1. I agree.  The order of the Court is that the application for leave to appeal is dismissed.

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