R v Dang; R v Dang
[2010] VSCA 13
•15 February 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. S APCR 876 of 2007
No. S APCR 877 of 2007
| THE QUEEN |
| v |
| MINH TAM DANG |
| AND |
| No. S APCR 879 of 2007 |
| THE QUEEN |
| v |
| NGA MY DANG |
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JUDGES: | WEINBERG and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 January 2010 | |
DATE OF JUDGMENT: | 15 February 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 13 | |
JUDGMENT APPEALED FROM: | R v Dang (Unreported, County Court, 29 October 2007, Judge Douglas) | |
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CRIMINAL LAW — Sentencing — Appeal against sentence — Manifest excess —
Non-parole period — Trafficking heroin — Cultivation of cannabis — Reference to effects of drugs — Limits of permissible comment — R v Pidoto and O’Dea (2006) 14 VR 269
CRIMINAL LAW — Sentencing — Procedure when fixing non-parole period —
Sentencing Act 1991, ss 11 & 14 — R v XA [2009] VSCA 52
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant Minh Tam Dang | Mr D.A. Dann | Christopher John McLennan |
| For the Appellant Nga My Dang | Mr A.P. Lewis | Lethbridges |
WEINBERG JA:
I have had the benefit of reading in draft the judgment of Bongiorno JA. I agree with his Honour’s proposed disposition of these matters.
BONGIORNO JA:
In the second half of 2004 Minh Tam Dang and his wife, Nga My Dang, engaged in significant drug dealing. That drug dealing came to an end as a result of a Victoria Police investigation code-named ‘Operation Foody’. On 2 December 2004 they were arrested and charged. Nga My Dang was charged only in respect of her trafficking in heroin. Minh Tam Dang was charged in respect of his heroin trafficking and also with cultivation of a narcotic plant, namely cannabis L, and with stealing electricity for use in that cultivation.
For various reasons, none of which was attributable to any fault on the part of either of the appellants, they did not stand trial until 2007. After an aborted trial in May of that year, they were again arraigned on 1 June 2007, each on a count of trafficking in a commercial quantity of heroin. They each pleaded not guilty to that charge but guilty to trafficking in heroin simpliciter. On 20 June they were each acquitted of the more serious charge but convicted of trafficking.
Minh Tam Dang was separately tried in respect of the cannabis offence and for stealing electricity before the same judge on 27 August 2007. He was found guilty of cultivation but not guilty of stealing electricity on 31 August.
A plea on behalf of both appellants was heard on 31 August. On 29 October 2007, Minh Tam Dang was sentenced to 18 months’ imprisonment with a non-parole period of 12 months in respect of his cultivation of cannabis and six years’ imprisonment in respect of trafficking in heroin. Twelve months of the cannabis sentence was cumulated on that for trafficking in heroin and a total non-parole period of five years was set. Nga My Dang was sentenced to four and a half years’ imprisonment with a non-parole period of three and a half years.
On 14 November 2008, Ashley JA granted each of the appellants leave to appeal pursuant to s 582 of the Crimes Act 1958.
Nga My Dang
The Crown case against both accused depended heavily upon evidence from undercover police operatives concerning purchases of heroin which they made from them. There were many such purchases, but in the case of Nga My Dang, her plea of guilty on arraignment to trafficking was specifically limited to her having sold heroin on only two occasions. This was despite the fact that, prior to her being committed for trial, she had offered to plead guilty in respect of eight such transactions.
The trial judge rejected a submission on behalf of Nga My Dang that she should be sentenced only in respect of those transactions which she admitted. Rather, her Honour proceeded to engage in a determination of Nga My Dang’s criminality, as she was required to do in such circumstances, in accordance with the principles expounded by the High Court in Cheung v The Queen.[1] She found, beyond reasonable doubt, that Nga My Dang had trafficked in 307.8 grams of heroin during the indictment period. Nga My Dang was accordingly sentenced on that basis.
[1](2001) 209 CLR 1.
Nga My Dang had no prior convictions. She was 40 years of age at the time of sentence and had three children who were then at school in Years 2, 5 and 6. She migrated to Australia from Vietnam in 1992, her parents having come here in 1987 as ‘boat people’. She has never been a drug user. Her trafficking in heroin was purely for financial gain.
The trial judge was satisfied that Nga My Dang and her husband engaged in the joint criminal enterprise of drug trafficking at a level considerably above street level. She referred, in her sentencing remarks, to conversations with covert police officers which were before the Court which demonstrated that she and her husband were able to supply relatively large quantities of heroin with varying degrees of purity ranging from 16% to 70%. Characterisation of their trafficking in this manner was entirely consistent with the evidence which her Honour heard.
Nga My Dang now appeals on three grounds.
Ground 1: manifest excess
This ground asserts manifest excess in respect of Nga My Dang’s head sentence and her non-parole period. It was said that the trial judge failed to give sufficient weight to applicable mitigatory factors. Nine such factors were identified. Apart from two of them which related to Nga My Dang’s offer to plead guilty to trafficking before her committal and her limited plea of guilty upon arraignment at her trial, which are the subject of a separate ground of appeal, the other matters which are said to indicate manifest excess in her Honour’s sentence were all matters which were specifically referred to in her Honour’s sentencing remarks.
It is clear that her Honour was conscious of Nga My Dang’s antecedents, of the fact that she was the mother of young children, that she had endured hardship during her life, that she had reasonable prospects of rehabilitation and that she was otherwise of good character. Her Honour specifically dealt with the question of delay and found that it was not attributable either to the Crown or to the defence. It was caused by the fact that the investigation which led to the arrest of Nga My Dang and her husband was part of a very large police investigation involving a large number of people. Nonetheless, her Honour specifically mitigated punishment in respect of both Nga My Dang and her husband because of that delay.
A sentence of four and a half years’ imprisonment for a first offence of trafficking in a significant quantity of heroin is not, of itself, excessive. However, the minimum term fixed by her Honour of three and a half years does invite appellate scrutiny having regard to its relationship to the head sentence.[2] It represents 78% of that sentence. On its face such a non-parole period, in the case of a 40 year old first offender with several mitigatory factors available to her, appears to be too high, certainly in the absence of any explanation as to why such a course was adopted. Counsel for the Crown in this Court did not seek to defend that non-parole period, effectively conceding that it was excessive. Nga My Dang is entitled to have the non-parole period that was fixed by the trial judge reduced. Otherwise she does not succeed on Ground 1.
[2]R v VZ (1998) 7 VR 693.
Ground 2: guilty plea
It was common ground before the trial judge that Nga My Dang offered to plead guilty in respect of eight heroin transactions at some time prior to her being committed for trial. Eventually the trial judge found that she should be sentenced on the basis of six of those transactions. A further complication was added by Nga My Dang having pleaded guilty to trafficking heroin upon arraignment at her trial. However, that plea of guilty was limited to two of the transactions eventually found by the judge to have occurred.
In her sentencing remarks the trial judge adverted to these circumstances and specifically said that she had taken into account both of the appellants’ indications that they would plead guilty to trafficking in determining the sentences she imposed. She said that she did so ‘to a limited extent, given the circumstances’. By including that qualification her Honour was making it clear that, although she took into account the utilitarian value of an offer to plead guilty for which Nga My Dang and her husband would be given credit, such an indication in the circumstances of this case did not entitle either of the applicants to consideration for having shown remorse for what they had done. It would have been difficult for her Honour to have attributed remorse as a motive for Nga My Dang’s ultimate plea of guilty on arraignment having regard to all that went before it and its limited nature.
There is no error in anything her Honour did with respect to the issue of Nga My Dang’s plea of guilty or her earlier indication of her preparedness to plead guilty. They were given appropriate weight in fixing her sentence.
Ground 3: remorse
The sentencing judge found that Nga My Dang was not entitled to any mitigation in her sentence because of remorse. When confronted with the difficulties that an argument as to remorse presented in this case, counsel for Nga My Dang did not press this ground further. In the circumstances there was no possibility of its being successful.
Determination
The head sentence of imprisonment imposed upon Nga My Dang by the trial judge should be confirmed but the non-parole period fixed in respect of that sentence should be reduced to three years. Thus, in lieu of the sentence originally passed, there should be a sentence of imprisonment of four and a half years with a non-parole period of three years.
Minh Tam Dang
Minh Tam Dang was tried with his wife on one count of trafficking in a commercial quantity of heroin. Like her, he was acquitted of that count but found guilty of the lesser offence of trafficking heroin. He was subsequently tried on one count of cultivating a narcotic plant, namely cannabis L, and one count of the theft of electricity. He was acquitted of the theft charge but convicted of the cultivation charge.
As indicated earlier, the trial judge, after hearing a plea, sentenced Minh Tam Dang to a total effective sentence of seven years’ imprisonment in respect of which she fixed a non-parole period of five years.
Minh Tam Dang was sentenced by the trial judge on the basis that he had been involved in the trafficking of 419.8 grams of heroin that was sold to covert police officers. Six specific transactions were identified and her Honour made reference to three further transactions which she found proved. Her Honour also took into account, with respect to the cultivation count, that the appellant was responsible for a hydroponically grown cannabis crop which was located at premises in Brooklyn. In all, 57 cannabis plants were located, together with hydroponic equipment, shaded lighting, electrical transformers, exhaust fans, ducting and water pumps—a significant operation.
Minh Tam Dang was 45 years of age at the time he was sentenced. He came from a remote village four hours south of Ho Chi Minh City from a family which was engaged in the netting of prawns. His education was limited, and when he was 10 his father was killed by a landmine. He, in effect, took over the family business, netted the prawns and travelled by canoe to nearby towns where he sold them. He left Vietnam in 1987 and eventually arrived in Australia after being in refugee camps in Thailand and Malaysia. He left a family of five children in Vietnam and, on arrival in Australia, met his co-accused whom he subsequently married and with whom he had three children. At all relevant times, Minh Tam Dang was a heroin addict but her Honour noted that, after the end of 2005, as a result of some treatment, he ceased his heroin use.
Minh Tam Dang had prior convictions for trafficking heroin to an undercover police officer at street level and for possession of heroin. He was sentenced, as was his wife, on the basis that he had committed the offences under consideration for financial gain, although some of the heroin he acquired was for his own personal use.
Minh Tam Dang appeals on three grounds.
Ground 1: harmfulness of heroin
In the course of her sentencing remarks the trial judge said:
Deterrence is the primary consideration which sentencing judges must bear in mind when sentencing people for trafficking in heroin. The use of drugs such as heroin results in misery and death of those caught in the web. Heroin also results in an escalation of crime as people desperate to have this illicit substance commit further crimes.[3]
[3]R v Dang (Unreported, County Court, 29 October 2007, Judge Douglas) [75].
Her Honour also said:
It is well-known that selling heroin causes untold misery and that each of you, a mother and a father of three young girls, would know the misery your involvement in the drug trade may have caused to other parents whose children have been using heroin.[4]
[4]Ibid [84].
With respect to cannabis her Honour said:
I must as a sentencing judge accord a considerable amount of weight to general deterrence, to deter like-minded people who think this is an easy way to make money. Minh Dang, you were involved in cultivating cannabis L for gain.[5]
[5]Ibid [78].
In sentencing each of the appellants the judge considered questions of general deterrence and, particularly in the case of Minh Tam Dang, special deterrence. She also referred to Minh Tam Dang’s prior conviction for trafficking heroin but took into account, in his favour, that he had no prior convictions in relation to cannabis.
Counsel for Minh Tam Dang argued that by referring to the harmful effects of heroin as she did and subsequently referring to cannabis her Honour had impermissibly imported into the sentencing process a gradation of seriousness which took into account the particular drug involved. He submitted that the decision of this Court (of five judges) in R v Pidoto[6] meant that her Honour had fallen into error in doing so.
[6](2006) 14 VR 269.
The effect of the decision in Pidoto was to prevent a sentencing judge taking into account as a relevant consideration the nature and extent of the harm caused by the particular drug with which he or she was concerned. Their Honours held that the nature and extent of the harm which a particular drug causes, both directly to users of the drug and indirectly to the community as a whole, is an irrelevant consideration in sentencing, the legislation having graded the seriousness of drug offences, not by reference to harm caused, but by reference to amounts involved—differentially for different drugs.
The drug involved in Pidoto was ecstasy which the sentencing judge had described as:
an amphetamine-based drug, commonly known as ecstasy, [which,] in my opinion[,] is emerging as a very significant community problem. On so many occasions one experiences really adverse behaviour, whether it is violence or some other type of adverse behaviour attributed to the use or abuse of this drug, and even more so, significant mental health problems being attributed to long term abuse of this drug. Accordingly this offence must be seen as trafficking in a very significant drug at a very significant level.
In R v D’Aloia,[7] Nettle JA, in considering himself bound by Pidoto, rejected a view of that case which would confine it to the impropriety of a sentencing judge seeking to form views about the relative harmfulness of the particular drug with which he or she was concerned. Habersberger AJA, in R v Karafilowski[8] (with whom Vincent and Nettle JJA agreed), reached a similar conclusion. In R v Yacoub,[9] another five members of this Court reaffirmed the principle expounded in Pidoto, at least as far as that principle related to the comparison of the harmfulness of one drug with others.
[7][2006] VSCA 237.
[8][2007] VSCA 156.
[9][2006] VSCA 203.
In DPP v McInnes,[10] another constitution of this Court (Maxwell P, Buchanan and Ashley JJA) referred to Pidoto and cautioned sentencing judges about comparing the ill-effects of one drug of dependence with another, or of bringing their own perception of the harm wrought by a particular drug of dependence to bear on the sentencing process. They went on to say:
It is, however, both necessary and appropriate for sentencing judges to take into account—as a general sentencing consideration—that drugs of dependence represent a significant social evil: they damage lives, families and society as a whole. Traffickers in drugs prey upon the young, the weak and the vulnerable. The high maximum penalties fixed by Parliament reflect the community’s abhorrence of this pernicious trade and the determination to punish severely those who profit from it.
[10][2009] VSCA 144.
In a similar vein in R v Ferguson,[11] yet another three judges (Maxwell P, Buchanan and Weinberg JJA) again referred to Pidoto and said:
Nothing said by the Court in Pidoto was, however, directed at remarks of a general character about the harm caused by trafficking in a drug of dependence. When read in their full context, the remarks of the sentencing judge in the present case can be seen to have been essentially of that character.
Their Honours then set out a long passage from the sentencing judge’s remarks in that case which was concerned with a former police officer convicted of conspiracy to traffick heroin. The sentencing judge’s remarks were similar to those used by this Court in McInnes. However, they went on to refer to the addictive and potentially lethal nature of heroin and its effects. The sentencing judge referred to the prisoner in that case having been a member of the Victoria Police Drug Squad which would have made him fully aware of the suffering and harm which would be caused by the drugs he conspired to traffick. The sentencing judge’s quoted remarks concluded with a reference to the seriousness of the crime of conspiracy to traffick heroin and its motive as being ‘ruthless and callous greed as elevating general deterrence to particular prominence in sentencing for such offences’. The Court of Appeal found no error in these comments of the trial judge.
[11][2009] VSCA 198.
In the instant case, although the sentencing judge imposed a considerably lesser sentence upon Minh Tam Dang for cultivating cannabis than she did for trafficking heroin, she did not inappropriately compare the harm caused by one with the harm caused by the other. Her comments, quoted above, were of a general nature, not unlike those of the sentencing judge in Ferguson or of this Court in McInnes. She said that she must accord considerable weight to general deterrence for the crime of trafficking in heroin. She called it the ‘primary consideration’ in such sentencing. Her comments as to the effects of heroin and her references to the prisoners in this case being a ‘mother and a father of three young girls who would know the misery caused to other parents whose children had taken heroin’ were general comments in relation to this drug which did not offend the principle in Pidoto.
The appellant has not demonstrated sentencing error as alleged in Ground 1.
Ground 2: non-parole period
This ground is concerned with the way in which the trial judge fixed Minh Tam Dang’s non-parole period of five years in respect of his total effective sentence of seven years. It alleges sentencing error by the trial judge in fixing a non-parole period in respect of his conviction for the cultivation of cannabis and then fixing a second non-parole period in respect of his aggregate sentence. His complaint is that, by proceeding in this way, the ultimate non-parole period was fixed in a
non-transparent way.
It seems clear from the trial judge’s sentencing remarks that she regarded herself as bound to deal with each of the two presentments upon which Minh Tam Dang had been found guilty separately. Accordingly she sentenced him to 18 months’ imprisonment with a minimum term of 12 months on the cannabis charge and then proceeded to impose a head sentence of seven years in respect of the heroin trafficking charge. She reached a total effective sentence of seven years by cumulating one year of the cannabis sentence upon the six years imposed for trafficking heroin and then fixed a non-parole period in respect of that total sentence of five years.
Although she did not specifically spell out the process by reference to the Sentencing Act 1991, the trial judge appears to have been acting in purported compliance with ss 11 and 14 of that Act. Section 11(2) permits a court to fix a
non-parole period in respect of any sentence of between one and two years’ imprisonment. Thus, on the face of it, her fixing a non-parole period of 12 months in respect of the cannabis sentence of 18 months appears to be regular. It would appear that her Honour did this because she considered the cannabis count, which had been the subject of a separate presentment and a separate trial, had to be dealt with separately from the heroin trafficking count.[12]
[12]Certainly, two presentments (or indictments) must be the subject of separate trials before separate juries: R v McDonnell (1928) 20 Cr App R 173; R v Olivo (1942) 28 Cr App R 163. McDonnell was followed in R v Landy [1943] VLR 73 (FC).
Her Honour then proceeded to impose a sentence in respect of the heroin trafficking count in circumstances in which s 14(1) of the Sentencing Act1991 would appear to have applied. The second sentence was imposed upon an offender who had been imprisoned in respect of an offence and had had a non-parole period fixed in respect of that sentence, which non-parole period had not expired. Section 14(1) required the Court to fix a new, single non-parole period in respect of all the sentences the offender was to serve or complete. Thus, in this case, her Honour then fixed that non-parole period at five years.
Were it not for a statement by Ashley JA (with whom Redlich JA agreed) in R v XA,[13] that would dispose of Ground 2. The judge would have acted in accordance with s 14(1) and no error would have been demonstrated. In R v XA, Ashley JA dealt with a slightly more complicated but not dissimilar situation. A trial judge had imposed a non-parole period in respect of a sentence imposed on one presentment and then a non-parole period on the total effective sentence calculated after taking sentences imposed on a second presentment into account. His Honour said:
With respect, where sentence is passed at the one time on more than one presentment, it is no different to the situation where sentence is imposed for more than one offence on the same presentment. A single non-parole period should be set, referable to the total effective sentence which results from consideration of the sentence passed in respect of all the offences—whether they be on one or more than one presentment.
[13][2009] VSCA 52.
His Honour did not refer to the statutory provisions referred to above, although s 11(4) of the Sentencing Act 1991 is not inconsistent with his approach.
The Crown did not concede sentencing error in what the trial judge did in the present case, although the prosecutor described the way in which her Honour fixed a non-parole period on one presentment before moving to the next presentment as being one which ‘would not now, if ever, be seen as orthodox’. He stopped short of conceding that it was wrong.
If the trial judge had sentenced Minh Tam Dang at the end of his first trial on which he was found guilty of trafficking heroin she would have imposed a head sentence and a non-parole period. After his second trial, so as to comply with s 14, she would have imposed a further head sentence, made an appropriate order for cumulation and fixed a new non-parole period. This is, in effect, what she did although she imposed the sentences in the reverse order and on the same day. There is no reason to believe that the sentences would have been different, or the final total effective sentence and non-parole period would have been different, had she acted in accordance with the judgment in R v XA.
Because of what Ashley JA said in R v XA, it would have been more consistent with usual practice had she imposed two head sentences, made an appropriate order for cumulation and then imposed a non-parole period upon Minh Tam Dang. But the course she followed did not involve sentencing error. However, even if it did involve such an error, having regard to the individual sentences, the order for cumulation and the non-parole period which her Honour set, there is no doubt whatsoever that the sentence was squarely within the range for an appropriate sentence having regard to the circumstances of this case. Of particular significance in the relevant context is the fact that the ratio between the non-parole period and the total effective sentence does not call for appellate scrutiny.[14] Nor would dismissal of his appeal give rise to any considerations of parity.
[14]R v VZ (1998) 7 VR 693.
This ground of appeal fails.
Ground 3: manifest excess
In the course of arguing the other grounds already dealt with, counsel for Minh Tam Dang argued that, in any event, a sentence of seven years with a non-parole period of five years was, in this case, manifestly excessive. He referred to a number of mitigating factors: the offer of his client’s early plea, the delay involved in disposing of these cases and his rehabilitation in the meantime so far as drug taking is concerned. Material was also before the Court concerning his conduct in prison since being sentenced, and the courses and rehabilitative exercises he has been engaged in. Having regard to Minh Tam Dang’s antecedents, including his prior convictions and, in particular, having regard to the serious offences of which he was convicted, the sentence imposed by the trial judge was entirely appropriate. However, even if the sentencing discretion had been re-opened, there would have been no reason to vary the sentence originally imposed. The criterion imposed by s 568(4) of the Crimes Act 1958 for this Court to interfere with a sentence was not met.
The ground of manifest excess is not made out.
Determination
In the case of Minh Tam Dang, the appeal should be dismissed.
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