Quang Be Tran v The Queen
[1997] FCA 528
•12 JUNE 1997
C A T C H W O R D S
CRIMINAL LAW - appeal against severity of sentence.
SENTENCE - pleas of guilty - whether sufficient weight given by sentencing judge to various factors relating to appellant - it was.
SENTENCE - whether plea of guilty will normally attract a discount or reduction in length of prison sentence particularly if it is persuasive evidence of contrition - principle established.
SENTENCE - whether remarks of sentencing judge regarding deterrence of persons bringing drugs into jurisdiction indicated any intention to impose undue heavy sentence - they did not.
SENTENCE - fundamental principles - whether provisions of s.429 of Crimes Act (ACT) intended to bring about substantial change - controversial - lack of argument at appeal - need to be argued in future appeal.
Proceeds of Crime Act 1991 (ACT), s.74, and para.45(2)(b)
Drugs of Dependence Act 1989 (ACT), s.164
Crimes Act 1900 (ACT), Part XII, s.429, s.429A and s.429B
R v. Holder; R v. Johnston [1983] 3 NSWLR 245
Jurkovic (1981) 6 A.Crim.R. 215
Omar and Others (1991) 55 A.Crim.R. 373
Radecic (1990) 51 A.Crim.R. 209
Suen v. R (unreported, Full Court of the Federal Court of Australia, 2 June 1987).
Rumble v. The Queen (unreported, Full Court of the Federal Court of Australia, 21 June 1996)
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
QUANG BE TRAN v. THE QUEEN
No. ACT G70 of 1996
Coram: Davies, Miles and Finn JJ
Date: 12 June 1997
Canberra
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY ) No. ACT G 70 of 1996
DISTRICT REGISTRY )
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME
COURT OF THE AUSTRALIAN CAPITAL
TERRITORY
BETWEEN: Quang Be Tran
Appellant
AND: The Queen
Respondent
CORAM: Davies, Miles and Finn JJ
DATE: 12 June 1997
PLACE: Canberra
MINUTE OF ORDER
THE COURT ORDERS THAT:
The appeal be dismissed and the sentence of the Supreme Court be confirmed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY )
DISTRICT REGISTRY ) No ACT G 70 of 1996
GENERAL DIVISION )
On appeal from the Supreme Court
of the Australian Capital Territory
BETWEEN: QUANG BE TRAN
Appellant
AND: THE QUEEN
Respondent
Coram: Davies, Miles & Finn JJ.
Date: 12 June 1997
Place: CANBERRA
REASONS FOR JUDGMENT
Davies J: I have had an opportunity to read the reasons for judgment prepared by Miles J. I agree with his Honour that the sentence imposed was appropriate and that the trial Judge's discretion did not miscarry. In my opinion, this is not a suitable case in which to consider at length the philosophy underlying sections 429, 492A and 429B of the Crimes Act 1900 (ACT). I treat the sections as meaning what they say. The sentence imposed upon the appellant was "just and appropriate." I agree with the orders proposed.
I certify that this is a true copy of the reasons
for judgment of the Honourable Justice Davies.
Associate:
Date: 12 June 1997
IN THE FEDERAL COURT OF AUSTRALIA )
AUSTRALIAN CAPITAL TERRITORY ) No. ACT G 70 of 1996
DISTRICT REGISTRY )
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME
COURT OF THE AUSTRALIAN CAPITAL
TERRITORY
BETWEEN: Quang Be Tran
Appellant
AND: The Queen
Respondent
CORAM: Davies, Miles and Finn JJ
DATE: 12 June 1997
PLACE: Canberra
REASONS FOR JUDGMENT
MILES J. This is an appeal against the severity of a sentence imposed by Gallop J. in the Supreme Court of the Australian Capital Territory on 25 October 1996. The appellant was committed for sentence on 26 August 1996 on a charge of money laundering contrary to s.74 of the Proceeds of Crime Act 1991 (ACT). In the Supreme Court the appellant continued his plea of guilty on that charge. He also pleaded guilty on arraignment to one count of possession of a traffickable quantity of a prohibited substance, namely heroin, for the purpose of sale or supply to another person, contrary to s.164 of the Drugs of Dependence Act 1989 (ACT). Both offences were committed in early June 1996.
On the charge of possession of a traffickable quantity of a prohibited substance for sale or supply, the appellant was sentenced to imprisonment for seven years with a non-parole period of three years, both to commence from the date the appellant went into custody, namely 8 June 1996. On the charge of money laundering, his Honour said that he regarded it as part of the same set of circumstances and that he deemed it inexpedient to impose any penalty. His Honour also made an order under para.45(2)(b) of the Proceeds of Crime Act 1991 (ACT) that the Public Trustee take custody and control of a bank account conducted in the name of the appellant.
The facts were not in dispute and may be taken conveniently from his Honour’s remarks on sentencing.
The appellant, who had some previous acquaintance with Canberra, came from Sydney with a female co-offender in a rented car on or about 30 May 1996. The car was exchanged for another at the Canberra airport. On 3 June 1996 they booked into a motel in north Canberra where accommodation was reserved until 10 June 1996. The proprietor or manager of the motel noticed that an unusual number of persons were visiting the appellant’s room and alerted police. The appellant was placed under observation and apprehended on 7 June 1996. He was found to have on his person $1,185 in Australian currency and 15 small balloons each containing a quantity of heroin in so-called rock form. Within the motel room was found a number of items of equipment commonly associated with the heroin trade such as a set of electronic measuring scales, aluminium foil, 300 empty balloons, a knife blade on which traces of white powder were found and a small amount of cannabis. A mobile phone rang repeatedly in the room during the police operation and when police answered, it was clear that there were prospective customers trying to get in touch with the appellant in order to obtain heroin from him.
In an interview conducted through an interpreter in the Vietnamese language, the appellant told the police that he had purchased rock heroin and heroin in powdered form at Cabramatta in New South Wales for $6,400. He brought the heroin to Canberra and commenced to sell it. He admitted to “cutting” the heroin and packaging it first in foil and then in the balloons. He claimed to have sold about half an ounce while in Canberra.
The heroin seized was analysed and found to weigh 36 grams and to contain about 50 per cent of the pure substance.
His Honour found that the case was one of serious criminality and that the appellant qualified as a heroin dealer in “the mid-range”. There can be no doubt that these findings were correct.
The appellant was born in Vietnam on 10 October 1965 and arrived in Australia from Thailand as a refugee in 1990. He eventually settled in Sydney and managed to gain employment for some of the time he has been in this country. He has also been in receipt of social security payments and in respect of at least some of such payments he was awaiting sentence in the ACT Magistrates Court when he was sentenced in the Supreme Court. He has returned to Vietnam four times and married on the third occasion. His wife travelled to Australia shortly thereafter, but they do not live together. He lives in a de facto relationship with the co-offender who is also in receipt of social security benefits.
The appellant blamed gambling at casinos at Sydney and Canberra for the commission of the offences.
Several grounds appearing in the notice of appeal were abandoned, including a proposed further ground relating to the restraining order made under para.45(2)(b) of the Proceeds of Crime Act 1991 (ACT). The thrust of the appellant’s case on appeal was that his Honour did not give sufficient weight to various factors, namely the plea of guilty, reform and rehabilitation and the subjective features relating to the appellant, in particular the hardship imposed on him and his family by the sentence imposed.
With regard to consideration to the plea of guilty, it was submitted that whilst his Honour expressly acknowledged that he took it into account, the sentence did not reflect that factor adequately or at all. It is an established principle of sentencing that a plea of guilty will normally attract a discount or reduction in the length of a prison sentence, particularly when it is persuasive evidence of contrition. It is also clear that the amount of reduction will depend on the circumstances, and, if the offence is serious enough to justify the maximum sentence, a plea of guilty will not allow the offender to escape the consequences of the criminality in question: R v. Holder; R v. Johnston [1983] 3 NSWLR 245 cited in McDonald v. R (1994) 120 ALR 629.
Whilst there may be a question whether it would have been appropriate to sentence the appellant to more than seven years in the event of a conviction following a plea of not guilty and subsequent verdict, the fact is that this was a serious example of an offence which carries a maximum sentence of 25 years imprisonment under s.164 of the Drugs of Dependence Act 1989 (ACT).
It has been said time and again both in the Supreme Court and in this Court that persons convicted of participating in the insidious illegal drug trade can expect to receive heavy punishment and there is no reason to treat the appellant as any exception. Where the trafficking is carried out purely for commercial purposes, the sentencing judge is entitled to treat the offences as more serious than where the offender sells or supplies a small amount in order to finance a continuing drug addiction. As long ago as 1981 in this Court in Jurkovic (1981) 6 A.Crim.R. 215, Fox J. with whom Kelly J. and Ellicott J. agreed, in the context of a court dealing with an appeal against sentence endeavouring to ensure that there is a measure of consistency among sentences for the same offence, said at 220:
“Two factors seem uniformly to be regarded as important. One is the amount of the drug, in terms of pure heroin. The other is whether, supply being a purpose, the supply was to be for straight out commercial profit (the more serious case) or for financing the prisoner’s own addiction; in the latter case part would doubtless be for his own use. In the last- mentioned type of case, five years’ imprisonment is in general at or towards the top of the range, if the amount involved is small.”
In the light of these remarks, which have been followed and adopted many times, it needs only to be added that the amount in this case was far from small and that his Honour was correct in finding that the appellant was a mid-range dealer. Furthermore, the relatively high concentration of heroin in the mixture which the appellant was selling to Canberra users appears to have been relatively high.
Otherwise there is little to be gained by looking for other cases with similar facts in order to try to establish what other differently constituted courts have done by way of sentencing drug offenders. References to such decisions of the Full Court of this Court in Omar and Others (1991) 55 A.Crim.R. 373 and Radecic (1990) 51 A.Crim.R. 209 indicate that the sentence imposed in the present case, whilst possibly at the top of the range, is not such that this Court should interfere with it.
It was submitted that his Honour treated as an aggravating factor the fact that the appellant brought the heroin into the Territory for the purpose of sale and expressly stated that the “clear message” had to be conveyed to people in the Cabramatta area that offences of this nature would be met with gaol sentences. Counsel for the appellant suggested that a heavier sentence was being visited upon the appellant because he was not a resident of the Territory. However, I do not think that his Honour’s remarks indicate any intention to impose a heavier punishment for that reason. It is well known that heroin is not produced or manufactured within the Territory and the trade within the Territory depends upon the drug being brought in illegally from elsewhere. It is also well known that Cabramatta is both a centre for distribution of the drug and a place which gives easy access to Canberra. The evil of supplying users with highly concentrated heroin brought into the Australian Capital Territory was recognized by this Court in Suen v. R (unreported, Full Court of the Federal Court of Australia, 2 June 1987). Not only was his Honour entitled to regard those aspects as matters of aggravation, but, further, they required a stern deterrent to persons like the appellant who might be minded to come to Canberra for the purpose of drug distribution.
Further, the element of deterrence is sufficiently important on the facts of the case for it to be said that the sentence and his Honour’s reasons do not depart from the principles laid down in decisions of this Court already mentioned.
However, there is a remaining related matter which is of some concern. Part XII of the Crimes Act 1900 (ACT) was introduced into the Crimes Act by amendments passed in 1993. Division 1 is headed “General Principles and Procedures”. The relevant sections came into force on 15 November 1993 and provide as follows:“Sentencing to be just and appropriate
429. (1) The sentence imposed by a court for an offence shall be just and appropriate.
(2) Without limiting the generality of subsection (1), the sentence shall, as far as practicable, be such as to -
(a)facilitate the offender’s rehabilitation into society; and
(b) encourage the offender to make appropriate reparation to any victim of the offence.”
Section 429A sets out some of the matters to which a court shall have regard in determining the sentence to be imposed upon a person. They include:
“.....
(f) any action the person may have taken to make reparation for any injury, loss or damage resulting from the offence;
.....
(i) the deterrent effect that any sentence or order under consideration may have on any person;
.....
(l) the prospect of rehabilitation of the person;”
Section 429B provides that the Court shall not increase the severity of the sentence that would otherwise be imposed because of a number of specified factors. One of these factors is the prevalence of the offence.
These provisions have been considered, albeit briefly, by this Court in Rumble v. The Queen (unreported, Full Court of the Federal Court of Australia, 21 June 1996) in which Higgins J. at p.5 stated that the provisions were not intended to effect a shift in sentencing objectives and that the objectives of sentencing set out in s.429 do no more than reflect sentencing principles as they had developed at the time of the amendments. His Honour added that whether the matters specified in s.429B have made any substantial changes is a matter of some controversy.
When sitting in the Supreme Court, I have expressed the view more than once that in my respectful opinion s.429, on the face of it, appears intended to bring about substantial change in fundamental principles of sentencing. The ultimate objective of protection of the public, which brings with it the need for general deterrence, is not mentioned in s.429. It also appears that s.429A (in which it appears that particular deterrence but not general deterrence is one of the several matters to be taken into consideration) is to be read subject to s.429. Whereas general and particular deterrence, rehabilitation and denunciation have been considered to be the classic objectives of sentencing to which a court should have regard in discharging its primary duty to protect the public, it appears to me that rehabilitation and reparation are elevated now to a position above and beyond other objectives. Such an approach would appear to be in accordance with some contemporary theories of restorative justice as well as in accordance with the plain words of the legislation.
However, in view of the importance of recognizing such a radical change in sentencing principles and practice, the judgment of this Court in Rumble and the lack of argument on the point in the present appeal, it may be preferable not to offer a definitive opinion on s.429 and Part XII at the present time. Subject to the views of the other members of the Court, I would direct that on the next occasion when an appeal against sentence comes before a Full Court in Canberra, the parties should be directed prior to the hearing that the Court would wish to hear full argument on the meaning and effect of Part XII and in particular of s.429 of the Crimes Act.
I would order that the appeal be dismissed and the sentence of the Supreme Court be confirmed.
I certify that this and the eight (8) preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles.
Associate:
Date: 12 June 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
AUSTRALIAN CAPITAL TERRITORY )
) No. ACT G70 of 1996
DISTRICT REGISTRY )
)
GENERAL DIVISION )
ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: QUANG BE TRAN
Appellant
AND: THE QUEEN
Respondent
CORAM: Davies, Miles and Finn JJ
DATE: 12 June 1997
PLACE: Canberra
REASONS FOR JUDGMENT
FINN J
I agree with the order proposed by Miles J for the reasons he has given. I concur in the view he has expressed that it is appropriate for a Full Court to hear full argument on the meaning and effect of Part XII of the Crimes Act and in particular of s429.
I certify that this page is a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated:12 June 1997
Counsel for the appellant: Mr. J. Sabharwal
Solicitors for the appellant: Legal Aid Office (ACT)
Counsel for the respondent: Mr. T. Buddin, SC
Solicitors for the respondent: ACT Director of Public Prosecutions
Date of hearing: 9 April 1997
Date of judgment: 12 June 1997
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