Nguyen v The Queen

[2011] VSCA 139

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2008 0991

THANH TUNG NGUYEN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG JA and KING AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 May 2011
DATE OF JUDGMENT	11 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 139
JUDGMENT APPEALED FROM	R v Nguyen (Unreported, County Court of Victoria, Judge L Ross, 19 December 2008)

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CRIMINAL LAW – Appeal against sentence – Trafficking in commercial and marketable quantities of controlled drugs – Sentenced to total effective sentence of nine years’ imprisonment with non-parole period of seven years – Sentence imposed not more severe than that sought by Crown – No basis for submitting that Crown’s range implied greater than usual gap between total effective sentence and non-parole period – No ‘double punishment’ in sentencing for both counts – Purity of drug low – Quantity of drugs of most importance – Gravity of offending and mitigating factors justified lower sentence than imposed – Appeal allowed – Re-sentenced – Total effective sentence seven years and six months’ imprisonment with non-parole period five years and six months. 

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Appearances:	Counsel	Solicitors
For the Appellant	Mr C Beale	Victoria Legal Aid
For the Crown	Mr M D Phillips	Commonwealth Director of Public Prosecutions

WEINBERG JA
KING AJA:

1. The appellant, Thanh Tunh Nguyen, pleaded guilty in the County Court at Melbourne to two counts of trafficking in a controlled drug, contrary to the provisions of the Criminal CodeAct 1995 (Cth). Count 1 alleged trafficking in a commercial quantity of MDMA (commonly known as ‘ecstasy’). It carried a maximum of life imprisonment. Count 2 alleged trafficking in a marketable quantity of methamphetamine (commonly known as ‘ice’). It carried a maximum of 25 years’ imprisonment.

1. The appellant was sentenced to a term of nine years and six months’ imprisonment on count 1, and three years’ imprisonment on count 2.  Both sentences were ordered to commence on the same date, and were therefore effectively to be served concurrently.  A non-parole period of seven years was fixed.  It was conceded by the Crown on the plea that the criminality disclosed in count 2 was entirely subsumed within count 1, given that the tablets that the appellant had trafficked consisted of a combination of MDMA and methamphetamine. 

1. At the time of his arrest, the appellant was in possession of some 77,787 tablets.  The total weight of the tablets came to 24.5 kilograms.  Of that total weight, there were 881 grams of MDMA and 266 grams of methamphetamine.  The commercial quantity for MDMA is 500 grams, and the marketable quantity for methamphetamine is 250 grams. 

1. The appellant’s arrest on 30 October 2007 came about as a result of an investigation by the Australian Federal Police (‘AFP’) into trafficking in ecstasy in the St Albans area.  The AFP had obtained telephone intercept warrants, and had recorded various calls between the appellant and others on two separate days, 20 October 2007 and 29 October 2007. 

1. The appellant’s wife was arrested at the same time.  She ultimately pleaded guilty, at a later date and before a different judge, to trafficking in the same drugs. 

1. The telephone intercepts, together with scales and various other items of paraphernalia found in the appellant’s home, made it clear that he was engaged in trafficking a significant number of tablets.  When questioned by the police, he freely acknowledged that he had had these tablets in his possession.  He claimed, however, that he was merely minding them for someone who had offered him $10,000 to look after them for a period of two days or so. 

1. The sentencing judge rejected that claim.  His Honour was fully justified in doing so.  The recorded conversations made it clear that the appellant was involved in the movement of at least 500 of the tablets and, inferentially, many more. 

1. Turning then to the appellant’s background, he was born in Vietnam in 1976.  He was one of nine children.  He contracted polio at the age of six, and this left him with a permanent limp.  He had only limited education.  He came to this country in 2000, when he was aged 24.  He was, at the time of this offending, married with four young children.  We were told from the Bar table this morning that he has a fifth child, currently living in Vietnam.

1. The appellant had attempted, unsuccessfully, to operate a hot bread business during 2005 and 2006.  When the business folded, he found himself unemployed, and basically unemployable.  It was said that he became involved in drug trafficking because of his financial predicament, and the need to support his wife and his children.

1. There was evidence that the appellant was remorseful for his actions.  The sentencing judge accepted that evidence.  He also took into account the appellant’s early plea of guilty.  The Crown conceded, and his Honour found, that the amount of the drug involved in relation to count 1 was ‘towards the lower end of the scale’ for a commercial quantity, and, plainly, the amount involved in relation to count 2 was only just above the marketable quantity.  His Honour accepted that the evidence went no further than to show trafficking on two separate days within a period of just over a week. He added, however, that the case involved trafficking in ‘vast quantities’ of drugs and that the penalty had to reflect that fact.  He then sentenced the appellant as earlier indicated.

1. There are three grounds of appeal.  The first is manifest excess; the second complains of a failure on the part of the sentencing judge to give proper consideration to the Crown submission as to the appropriate sentence; and the third complains of ‘double punishment’.

1. There is nothing in ground 2.  The Crown submitted that the appropriate range for this offending would be a total effective sentence of between eight and 11 years, and a non-parole period of between five and eight years.  The sentence of nine years and six months, with a non-parole period of seven years, fell squarely within that range. 

1. For reasons that we cannot quite fathom, the appellant contends, in his written submissions, that the sentencing judge imposed a sentence that was ‘more severe’ than that sought by the Crown.  The short answer to that submission is that his Honour did no such thing. 

1. The argument in support of ground 2 also contends that the Crown’s submission as to range implicitly accepted that there should be a greater than usual gap between the total effective sentence and the non-parole period.  That conclusion can only be reached if one takes the highest figure of the Crown’s proposed range on the total effective sentence, then takes the lowest figure of the Crown’s proposed range on the non-parole period, and treats these figures as the Crown’s position regarding the length of any such gap.  There is no basis whatever for doing so. 

1. In our opinion, ground 3 is also without merit.  The appellant trafficked in two quite separate drugs, albeit the tablets that he possessed were made up of both.  The sentencing judge dealt with this matter appropriately by making the sentences on both counts wholly concurrent.  To have imposed no punishment on count 2 on the basis of ‘double punishment’, in purported compliance with Pearce v The Queen,[1] would have meant ignoring the separate criminality involved in trafficking in methamphetamine, while dealing only with the criminality involved in trafficking in MDMA. 

   [1](1998) 194 CLR 610.

1. Ground 1, however, seems to us to be persuasive.  The sentence imposed on count 1 was not only severe, but out of kilter with the general length of sentences imposed for trafficking in drugs of this kind and in this quantity.  It must be remembered when considering the gravity of any drug trafficking offence, that it is the quantity of the drug that is trafficked that is of greatest reliance.  In the present case, the appellant was in possession of a vast number of tablets, but the purity of the drug was extraordinarily low.  That had to be borne in mind.  Furthermore, it was conceded by the Crown at the hearing of the appeal that, although the appellant’s role was significant, he was not the ‘mastermind’ behind a bigger drug organisation operating at a higher level.  In effect, the applicant was operating ‘down the line’ of that larger organisation.

1. In combination, the appellant’s lack of any prior convictions, his early plea of guilty, his evident remorse and good prospects of rehabilitation, as well as the background of financial strain that led to his offending, all justified a significantly lower sentence on count 1 than that imposed. 

1. We note, in that regard, that his Honour said that had it not been for the plea of guilty, and the remorse which accompanied it,  he would have imposed a sentence of thirteen years’ imprisonment and fixed a non-parole of ten years.  That would have been an inordinately heavy sentence, even after a contested trial, for offending of this nature.  It suggests that his Honour, when he sentenced the appellant as he did, gave too much weight to the sheer number of tablets involved, and too little weight to the actual quantum of the drugs in question.  It also suggests that his Honour gave insufficient weight to the mitigating factors that were present.

1. In our respectful opinion, this sentence fell outside the range reasonably available to the sentencing judge for offending of this nature, by this particular offender. 

1. We consider that the appeal should be allowed and that each sentence imposed below should be set aside.  In lieu thereof, we would sentence the appellant to a term of seven years’ and six months imprisonment on count 1, and two years’ imprisonment on count 2.  We would order that both sentences commence on this day, thereby rendering them wholly concurrent.  The total effective sentence would therefore be seven years and six months’ imprisonment.  We would fix a non-parole period of five years and six months. 

1. We should indicate that, but for the appellant’s plea of guilty, we would have sentenced him to a term of nine years and six months’ imprisonment on count 1 and three years’ imprisonment on count 2, wholly concurrent.  We would have fixed a non-parole period of seven years. 

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