R v Mong
[2002] VSCA 203
•13 December 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 160 of 2001
| THE QUEEN |
| v. |
| KHAI SIN MONG |
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JUDGES: | WINNEKE, P., CALLAWAY and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 December 2002 | |
DATE OF JUDGMENT: | 13 December 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 203 | |
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Criminal Law - Trafficking in heroin - Propensity evidence - Uncharged acts of trafficking to establish relationship - Severance - Adverse comment by judge on Crown witness on whose testimony defence relied - New trial directed on one of three counts - Sentences of seven years' imprisonment on each of remaining counts not manifestly excessive - Fresh directions for cumulation given and fresh non-parole period fixed - Crimes Act 1958, s.398A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. and Ms R. J. Orr | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr O.P. Holdenson, Q.C. and Mr S.E. Grant | Lewenberg & Lewenberg |
WINNEKE, P.:
I agree, for the reasons given by Callaway, J.A., that the conviction on count 1 should be quashed, and a re-trial on that count be had. I further agree with his Honour that no basis has been demonstrated for disturbing the convictions on counts 2 and 3. I also agree that the sentences of 7 years which the trial judge fixed for each of counts 2 and 3 were not manifestly excessive; and that the applicant should be re-sentenced on those counts in the manner proposed by Callaway, J.A.
CALLAWAY, J.A.:
Introduction
The applicant, who is now aged 52, pleaded not guilty in the County Court to one count of trafficking in heroin on or about 30th October 1998 (count 1), one count of trafficking in heroin on or about 12th February 1999 (count 2) and one count of trafficking in heroin between 3rd and 7th May 1999 (count 3). It was alleged, in the case of count 1, and conceded by the defence, that the quantity of heroin was not less than the applicable commercial quantity. The applicant was found guilty on all counts. After hearing a plea for leniency, the learned trial judge sentenced him to 10 years' imprisonment on count 1 and seven years' imprisonment on each of counts 2 and 3. Directions for cumulation were intended[1] to produce a total effective sentence of 14 years' imprisonment, in respect of which his Honour fixed a non-parole period of 11 years. The applicant seeks leave to appeal against both conviction and sentence.
[1]His Honour's intention was to direct that two years of each of the sentences imposed on counts 2 and 3 be served cumulatively upon each other and upon the sentence imposed on count 1, but the quadruplicate is in error and would produce a sentence of only 11 years' imprisonment.
Before turning to the grounds of appeal and counsel's submissions, I shall say something briefly about the facts. In the course of doing so, I shall refer to two of the witnesses as X and Y. A suppression order is in force in relation to their identities.
In late October 1998 Ling Por Tang and Ti Le Anh Nguyen, who resided in the same block of flats in Cabramatta, New South Wales, travelled to Melbourne, where they stayed at the Hilton Hotel. The applicant was the proprietor of the Ling Nan restaurant in the city. Tang gave evidence that he had known the applicant for many years and had regularly frequented his restaurant. On 30th October 1998 Tang and Nguyen went to the Crown Casino, where they met "Minh", an undercover police operative posing as a drug dealer. Tang's evidence was that he was looking for heroin to resell and asked several people where he could get it. There was later a meeting between Tang, Minh and a man called Hung (also known as "Bao") at the Hilton. At about 6 p.m. Tang and Nguyen left the Hilton to go to the Ling Nan restaurant. They were both under police surveillance.
Tang and Nguyen gave different accounts of what happened at the restaurant. Tang said that they were joined at their table by the applicant, who told them that someone had left a package for Tang upstairs and asked Nguyen to go and get it. Tang's evidence was that she went upstairs on her own to collect the package. Nguyen's evidence was that, while they were at a table in the restaurant, Tang told her to hand over her black handbag. She did so and Tang gave it to the applicant. Nguyen said that she and the applicant then left the table and went to a room upstairs, where the applicant produced a parcel wrapped in newspaper and put it in her handbag. He told her to be careful. She then rejoined Tang and they left the restaurant.
Tang and Nguyen subsequently drove to a location in East Melbourne, where they met Minh and exchanged one of two 12½ ounce blocks of heroin for $49,500 in cash. The other block remained in Nguyen's handbag. Tang and Nguyen were then arrested.
The applicant admitted pursuant to s.149A of the Evidence Act 1958 that Nguyen was observed coming back down the stairs and joining Tang. It was also conceded that the parcel wrapped in newspaper was transferred at the restaurant and that the applicant knew of its physical presence. The issue was whether he knew that it contained heroin. As I have already said, it was common ground that the two blocks constituted a commercial quantity.[2] The dispute on count 1 was therefore solely as to mens rea, in contrast with counts 2 and 3, where the applicant denied that the alleged trafficking had taken place at all.
[2]The block of heroin given to Minh weighed 348.5 grams with a purity of 80.2%. The block that remained in Nguyen's handbag weighed 348.8 grams with a purity of 69.1%. The total weight of the two blocks was 697 grams and the total weight of pure heroin was 520 grams.
The grounds of appeal that were argued do not require much to be said about counts 2 and 3. In February 1999 the applicant supplied a 12½ ounce block of heroin to Y for $47,000. It weighed 350.6 grams with a purity of 71.1%, equating to 249.2 grams of pure heroin.[3] In May 1999 the applicant agreed to sell another 12½ ounce block to Y for $46,000, but the sale did not eventuate as the applicant suspected that he was under surveillance. The judge inferred that that block would have contained approximately the same quantity of pure heroin as the block supplied in February. There is no need to say anything further regarding those transactions or to summarize the surveillance evidence. The evidence of X and Y, disclosing prior criminality in August 1998, which was relied on in relation to counts 2 and 3, is considered below.
[3]The applicable commercial quantity prescribed by the Drugs, Poisons and Controlled Substances Act 1981 in such a case was 250 grams: see R. v. Zhu (2000) 2 V.R. 421.
Although there were nine grounds of appeal in the notice of application for leave to appeal against conviction, only three were argued. Substituting initials for the names of the witnesses X and Y, those grounds were as follows:
1.The learned trial judge erred in refusing to sever count 1 from counts 2 and 3.
5.The learned trial judge erred in admitting into evidence the evidence of X and Y for 19th and 20th August 1998.
7.The learned trial judge erred in his treatment of the witness Tang in his charge, which was unfair to the applicant, and he should have discharged the jury as requested.
Ground 5
Mr Holdenson argued ground 5 first. Counts 2 and 3 related to a supply of heroin on or about 12th February 1999, and an intended sale between 3rd and 7th May 1999, by the applicant to Y. The evidence referred to in ground 5 related to conversations between X, Y and the applicant at the applicant's restaurant on 19th and 20th August 1998.
The crucial questions and answers in Y's evidence were:
"I want to bring you to a particular date in August 1998. Did you and Mr X go the Ling Nan restaurant on 19 August 1998 in particular?---Yes, I did, sir.
Did you go there to do something in relation to Mr Mong, 19 August 1998?---Yes, I did, sir.
What was that?---I went to apologise.
What was that about?---A few weeks before that I've asked, ordered three ounces of heroin.
From?---Mong Kai Sin.
Did you do that in front of other people?---Yes, I did.
Had that got Mr Mong angry with you?---Yes, it did.
So as a result of that were you going there to apologise - - - ?---Yes, I am.
- -- amongst other things?---Yes.
Mostly general relationship with him. Was Mr X involved in that process as well?---Yes, he was.
The next day 20 August, did you go back there and continue in that same topic of conversation that had been going on on 19 August - - -?---Yes, I did, sir.
- - -with Mr X, is that right?---Yes."
The crucial passage in X's evidence was the following:
"Did you introduce Mr Y to Mr Mong?---Yes, I did.
…
Coming to August of 1998 and in particular on 19 August 1998, did you go to the Ling Nan restaurant with Mr Y?---I did.
Did you have a particular reason why you wanted Mr Y to talk to Mr Mong on that day?---Yes.
Did that relate to him apologising for something that he'd done?---Yes, and something that Mr Mong was really - really angry with Mr Y, because Mr Y ask him about to supply him with few ounces of drugs in front of the other people, so Mr Mong was really angry.
And Mr Mong complained to you about that?---Yes, and he told the people that he wanted to see me about that, about something, and he told me that he wasn't happy about what Mr Y did, and I apologised on behalf of Mr Y, and then eventually I took Mr Y to Ling Nan restaurant … to apologise to Mr Mong.
Were you present when Mr Y did that?---Yes, but I did also the talking.
…
On 19 August did you have a conversation with Mr Mong about the three ounces you were just talking about?---Yes, I did.
What was the conversation with Mr Mong about the three ounces that you had with him?---I ask him whether he can help Mr Y, and that the answer is not for me, it's for Mr Y, and I told Mr Mong that Mr Y has been working for me quite good, and Mr Mong agree and then after that meeting Mr Mong was very happy with Mr Y.
When you say Mr Mong agreed, what did he agree to?---He agreed to supply Mr Y the three ounces.
Was there a price nominated?---The price I think is - I can't remember exactly - I think it's between $4800 to $5000 per ounce.
And on 20 August did you and Mr Y return to the restaurant and did the conversation about that same topic continue on that day as well with Mr Mong?---Yes, we did.
Mr X, on both of those occasions, that's 19 August and 20 August, did you have some sort of recording apparatus device so that these conversations were being recorded?---Yes, on both occasions."
The tapes, transcripts and competing translations were in evidence.
Counsel for the applicant sought to have the evidence relating to the conversations of 19th and 20th August 1998 "excluded". No one referred to s.398A of the Crimes Act 1958, but it was common ground that the evidence was propensity evidence. The prosecutor said that it explained the relationship between the applicant and Y, that it showed that the February transaction did not happen in isolation and that it would rebut any defence that Y had obtained the heroin the subject of counts 2 and 3 from a different source. The judge summed up the Crown's position by saying that it was contended that, although the evidence was propensity evidence, it was "admissible" for a legitimate purpose; that it was no different from any other situation in which propensity evidence is led; and that the proper test was "the balancing of prejudice and probative effect". The prosecutor agreed that that was the correct test.
His Honour ruled that the Crown was entitled to lead the evidence of the conversations of 19th and 20th August 1998. His reasons were as follows:
"I think the purpose[s] for which they're sought to be led are proper purposes as explained. They are relevant. There will be the risk of prejudice. I think the material - and that's the normal risk that one would expect because it suggests - because it's propensity evidence, that can be minimised to some extent, hopefully to a large extent or altogether by appropriate directions.
I think in the circumstances of the case where, insofar as one can tell what the defence [is], it is that it wasn't Mr Mong who supplied the heroin which doesn't seem to be disputed, it was supplied or obtained, then it must've been somebody else who supplied it. Then the material is relevant to rebut that defence, so I think it's properly admissible in the circumstances, balancing the likely prejudicial effect and its probative value. There will have to be, say normal, but the - yes, the normal warnings and directions given by way of warning."
There is a threshold question to consider: what was the nature of defence counsel's application? Was he contending that the evidence was inadmissible because it did not satisfy the test in s.398A(2) or was he conceding, or at all events not disputing, that it was admissible but asking the judge to exclude it in the exercise of his Honour's discretion? Section 398A prescribes a rule that must be satisfied before propensity evidence is admissible, not a discretion to exclude evidence that is admissible,[4] and it may be thought that the applicant's task would be more difficult on appeal if his complaint is not as to a wrong decision on admissibility but as to a wrong exercise of a discretion. There are indications both ways in the transcript, but I prefer the view that his Honour was ruling on admissibility in accordance with s.398A. In the first place, it should be presumed until the contrary is shown that an experienced judge and senior counsel are aware of the rule governing the admissibility of propensity evidence in this State. Secondly, his Honour's ruling was, as we have seen, that the evidence was "properly admissible in the circumstances".
[4]The relationship between s.398A and what is commonly called the Christie discretion is referred to in R. v. TJB [1998] 4 V.R. 621 at 632.
It was submitted that the purpose for which the evidence was led changed in the course of the trial from being evidence to rebut a "defence" that Y had obtained the heroin the subject of counts 2 and 3 from a source other than the applicant to its being evidence of a pre-existing relationship between the applicant and Y. I do not accept that submission. To my mind, they are just different ways of expressing the same idea. The prosecutor defended the evidence as relationship evidence when defence counsel sought to exclude it. It was intended to provide a more realistic context in which to evaluate the allegations that the applicant had supplied Y with heroin in February and May 1999. His Honour gave the customary directions about relationship evidence, including a propensity warning, when the evidence was given and again in the charge. That s.398A applies to relationship evidence appears from R. v. Best[5] and was part of the ratio decidendi of R. v. GAE[6].
[5][1998] 4 V.R. 603.
[6](2000) 1 V.R. 198.
It was assumed that the evidence was relevant to facts in issue in the proceeding. I consider that that assumption was correct.[7] The submission on behalf of the applicant was that, nevertheless, it was not just to admit the evidence having regard to its prejudicial effect. The substance of the argument was captured in the following paragraph of counsel's outline of submissions:
"The defence did not dispute that the applicant met Y in May 1998 nor that Y had been employed by the NCA to gather evidence against the applicant. The defence was a simple one: that Y was a liar motivated by a desire to justify his position as an informer. Given Y's unique position as an informer employed by the NCA it would not have appeared 'out of context' to the jury that he might say that he was provided heroin by the applicant. Y's evidence with respect to counts 2 and 3 did not need the August 1998 conversations to make it intelligible. Yet what was disclosed by those conversations was devastatingly prejudicial to the applicant, disclosing as it did, a separate criminal offence committed by the applicant."
The conversations were, it was said, too remote in time from February and May 1999 and disclosed not only a separate criminal offence but a criminal offence relating to heroin of similar purity and value.
[7]I understood senior counsel not to pursue a suggestion to the contrary in the outline of submissions.
It may be that relationship evidence is too readily admitted in criminal trials[8], but I am not persuaded that this evidence failed the test in s.398A(2). It did provide a more realistic context in which to assess the allegation that the applicant supplied Y in February and May 1999. It was no different in that respect from an allegation of a sexual offence between an adult and a child some months before the offence charged in the presentment. It is true that the applicant conceded that he already knew Y, but an adult might concede that he already knew a child. Y's position as an informer did not supply the context the Crown desired to prove and that proof would have been seriously weakened if X and Y had been restricted to saying that they met the applicant at his restaurant in August 1998. Given the warnings, of which no complaint is made, it was just to admit the evidence notwithstanding its prejudicial effect in connection with counts 2 and 3.
[8]See R. v. GAE at [1] and [20]-[22].
Ground 1
It is the prejudicial effect of that evidence in connection with count 1 that is of greater moment. Defence counsel below submitted that, if the judge allowed the evidence to be led, that would call in question the ruling given at an earlier stage of the trial refusing to sever the presentment. When the application for severance was made, his Honour had taken the view that a fair trial could be had on all three counts. That was before it was known that the Crown would lead the evidence of the conversations of 19th and 20th August 1998, albeit only in relation to counts 2 and 3 and on the basis that a direction would be given, as it was, that that evidence was irrelevant to count 1.[9] A fresh application for severance was not made, but that is of limited significance: the question is whether, in the events that happened, a single trial on count 1 together with counts 2 and 3 entailed a miscarriage of justice.[10]
[9]It is not clear that the evidence was irrelevant to count 1. It was conceded that the parcel the subject of that count was transferred and that the applicant knew of the physical presence of the parcel at the restaurant. The defence was that he did not know that it contained heroin. It may well have been relevant that he had on a previous occasion supplied heroin at the restaurant.
[10]R. v. Demirok [1976] V.R. 244 at 251-254; see also R. v. Guldur (1986) 8 N.S.W.L.R. 12 at 15 and R. v. Alexander and McKenzie [2002] VSCA 183 at [26].
I do not need to resolve that question. For reasons that I shall explain shortly, I consider that ground 7 is made out and that there will have to be a new trial on count 1, but I do not think that the jury's having heard the evidence on that count was apt to taint their verdicts on counts 2 and 3. They were given a "separate consideration" direction and there is no reason to suspect that they did not comply with it in relation to those two counts. It may have been unrealistic to expect them to put the evidence of the conversations of 19th and 20th August 1998, and perhaps the other evidence relating to counts 2 and 3, out of their minds when they considered count 1, but the converse is not the case.
Ground 7
Tang did not give the evidence that the Crown had expected. In his final address counsel for the applicant invited the jury to accept him as a witness of truth, for his evidence was consistent with the defence case on count 1 that the applicant did not know that the parcel contained heroin. Nguyen was an accomplice who had been given a sentencing discount for her willingness to testify against the applicant. If a doubt could be raised about her evidence, there was a real prospect of acquittal. Ground 7 has its genesis in a passage in the charge in which his Honour explained to the jury how they might test those parts of the evidence of Tang on which the defence relied. It will be necessary to set it out in full.
His Honour said:
“Let us look at the evidence in relation to count 1. There are two main witnesses, Mr Tang and Ms Nguyen, and I am summarising so bear that in mind. Mr Tang says, as I understand it, 'I wanted some heroin. I went to the Casino. I asked around if I could get some heroin there. I said, "I will be having dinner tonight at the Ling Nan restaurant". I went there that night. I had dinner, and Mr Mong said, "Oh, someone left you a package earlier today” and he got the package and that was a package of heroin.' That is, I understand, the main sting of Mr Tang's evidence.
Ms Nguyen says, 'We went to the restaurant. Mr Tang took my bag, gave it to Mr Mong. Mr Mong said, "Come upstairs". I went upstairs. Mr Mong put some blocks in my bag and said, "Be careful of these" and that turned out to [be] the heroin that we were caught with later on in the gardens'.
Well, you have to test the evidence given by all witnesses, and may I suggest as an exercise, as it were, that you test the evidence of these witnesses for a start and test it against what are called known facts, that is, facts admitted or not disputed or challenged, test it against the probabilities, and that is probably just another way of saying test it against your own commonsense and experience of the world and of behaviour.
Look at Mr Tang for a start and his evidence. What are the known facts? Well, these things, it seems to me, are admitted or not in any way challenged. Miss Nguyen received a package at that restaurant, it contained one and a half pounds in round figures of heroin. It was valued to the supplier anyway in the vicinity of a hundred thousand dollars. She received it in the restaurant. Mr Mong is the owner and/or manager of that restaurant, Mr Mong knew the package was there, Mr Mong is a friend of Mr Tang, the package was obtained shortly before the two of them were arrested in the gardens. It seems to me, it is a matter always for you, but that those things are not in dispute.
Let us test Mr Tang’s evidence against that. If Mr Tang’s evidence is correct, that means something like this, does it not, that a heroin supplier who had that quantity of heroin worth about that much to him on which he was able to put his hands at short notice would, on the basis of something heard in the Casino, take that amount of heroin to a restaurant he may never have heard of and leave it with someone, again he may never have met, without telling him what was in the parcel and ask that person to give it to a man that he, the supplier, for all we know had never met, if that man came in for dinner that day, there being no other details or instructions given to the man in the restaurant or to be passed on to the man who came to dinner. The supplier, in other words, would be taking the chance that the diner would somehow or other pay him sometime or other a sum of money which would be what he, the supplier, expects to get for the supply of the heroin, but which he has never told the man at the restaurant or the diner is the amount that he wants.
Test it further by looking at that evidence from the point of view of a supplier of heroin. Ask yourselves what would a supplier of heroin be likely to require before he would supply that amount of heroin. Would that supplier require that there be a previous arrangement made between the supplier and the purchaser as to the willingness of the supplier to supply that amount of heroin to him, would he require that there be an agreed time and place for the handing over of the heroin, that there be a place in which the heroin would be held in the possession of the supplier or under his watchful eye so that no harm could come to this block of heroin?
Would the supplier require that the heroin be provided not to a stranger but to someone that he knew well or somebody he could trust, would he require the quantity and the price of the heroin to have been agreed in advance, and as the heroin was not apparently to be paid for on the spot when it was handed over but was to be sold on to others, would he require that there would have been an agreement as to the price that was to be paid to him, the supplier, and any deductions that ought to be made by way of commission so that he, the supplier, would know that he is going to get what he wants to get for this? Would he require that there be arrangements in place about the time and place and circumstances under which he, the supplier, would be paid when this heroin is sold on and so on?
Ask yourselves whether that is the sort of scenario in which you would expect heroin of this quantity and amount to be changed over or handed over or whatever you like. In that way you can test the evidence of a witness against what I call the known facts and your own commonsense and experience, whatever your own commonsense and experience tell you about the probabilities of life in the real world. In the light of that, if you do that analysis, does it seem likely or probable to you or in accordance with your experience and commonsense that the evidence of Mr Tang is truthful and reliable, and that is the decision that you have to make in the light of the analysis that you make.”
A few lines were then devoted to the part of Tang's evidence on which the Crown still relied and the jury were told that they must also analyse and test the evidence of Nguyen and examine the surveillance evidence. No examples were given of how they might do that.
His Honour continued:
"You of course take into account the response made on behalf of Mr Mong to the evidence that has been led against him. As I understand that, that is, first of all, you should accept Mr Tang when he says that he came to the restaurant after being at the Casino and asking about it and there was a parcel there for him, and that Mr Mong, although he knew of the parcel, simply said, 'There's a parcel there for you' and apparently did not know what was in it, and therefore Mr Mong cannot be involved in this in any way. The accused man says you should accept that part of Mr Tang's evidence, and that is, as I say, a matter for you."
A strong warning was then given about Nguyen's evidence being that of an accomplice who had received a sentencing discount.
Defence counsel took vigorous exception to that analysis of the evidence of the witness on whom he relied, an analysis that went far beyond anything that had been said by the prosecutor in the course of his closing address. The judge asked what there was about the other witnesses that he should have put. There was no answer to that question, but the gravamen of the complaint was that his Honour had, in effect, descended into the arena. Counsel applied for a discharge of the jury, which was refused.
Counsel at the hearing of the application for leave to appeal against conviction repeated the complaints made below, adding that some of the assumptions against which the jury were invited to test Tang's evidence were speculative, for example, that Tang's supplier may never have heard of the Ling Nan restaurant and may never have met either the applicant or Tang.
There is no doubt that a trial judge is entitled to comment on the evidence so long as it has been made clear to the jury that such comments are like the arguments of counsel, to be accepted or rejected as the jury think fit. (A conventional direction along those lines was given at the start of the charge, together with a warning that the jury were not to look to the judge for a hint as to what facts they should find established or as to whether or not they should bring in a particular verdict.) In practice judges are usually reluctant to express their own views about the facts. Even in the present case his Honour's intention was to assist the jury in their own task of evaluating the evidence.
As the Privy Council said in Broadhurst v. R.[11]:
"The opinions of the presiding judge on issues of fact can often be of great assistance to the jury. But it is very important that the jury should be told that they are not bound by them nor relieved thereby of the responsibility for forming their own view. Nevertheless, a jury is likely to pay great attention to them: and even in a case where a proper warning is given, an appellate court may still intervene if it considers them far stronger than the facts warrant. In the present case no warning was given; and their Lordships consider also that, even had there been a warning, the Chief Justice went too far in revealing his views, so far that there was a danger of the jury being overawed by them. Their Lordships appreciate that the Chief Justice was anxious only to help the jury to take a true view of the case as he saw it, but unfortunately, in their Lordships' opinion, he saw it wrongly."
[11][1964] A.C. 441 at 464.
More recently, in RPS. v. R.[12], Gaudron, A.C.J., Gummow, Kirby and Hayne, JJ. said:
"But none of this must be permitted to obscure the division of functions between judge and jury. It is for the jury, and the jury alone, to decide the facts. As we have said, in some cases a judge must give the jury warnings about how they go about that task. And, of course, it has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge's other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel." (Footnote omitted; emphasis in the original.)[13]
[12](2000) 199 C.L.R. 620 at [42].
[13]See also Azzopardi v. R. (2001) 205 C.L.R. 50 at [50].
An appellate court is naturally reluctant to uphold a ground like ground 7. (That reluctance is illustrated by the last sentence of the passage quoted from the advice of the Privy Council in Broadhurst v. R. and the difficult task of trial judges was acknowledged by Gaudron, A.C.J., Gummow, Kirby and Hayne, JJ. in the immediately preceding paragraph of their Honours' judgment in RPS v. R.) In the present case, however, I am persuaded that his Honour's comments went too far. Tang's evidence was so favourable to the defence that he was not cross-examined. There was little or no criticism of him in the prosecutor's final address and much reliance by counsel for the applicant. The judge's comments left his evidence in tatters. True it is that they included two reminders that it was a matter for the jury and that the jury may well have disbelieved Tang in any event, but his Honour's analysis was devastating and all the more effective for being expressed as a series of examples of how to test Tang's evidence. It was included in the charge with the best of intentions but, in my respectful opinion, the passage set out in [22] caused the trial to miscarry.[14] The applicant was deprived of a chance of acquittal that was fairly open to him having regard to the course of the trial.
[14]See Maric v. R. (1978) 52 A.L.J.R. 631 at 634-635.
For these reasons I would grant the application for leave to appeal against conviction, allow the appeal in part, quash the conviction sustained by the applicant on count 1 and the sentence passed thereon and direct a new trial to be had on that count. The application for leave to appeal against sentence remains to be considered, but only in relation to the sentences imposed on counts 2 and 3.
Sentence
The amended grounds of appeal in the notice of application for leave to appeal against sentence read:
"1.The learned sentencing judge erred by imposing individual sentences on counts 1, 2 and 3 and a total effective sentence that were manifestly excessive in all the circumstances of the case.
2.The learned sentencing judge erred by failing to impose greater disparity between the total effective head sentence and the non-parole period.
3.The learned sentencing judge erred by imposing a sentence on count 1 that was manifestly excessive when compared to the sentences imposed for this offence upon the co-offenders Tang and Nguyen.
4.The learned sentencing judge erred by finding that the co-offender Tang's role was measurably subservient to that of the applicant.
5.The learned sentencing judge erred by discriminating between the applicant and the co-offenders Tang and Nguyen on the pragmatic and objective ground that Tang and Nguyen's plea of guilty had saved the community the expense of a trial."
Ground 4 was argued only as a particular of ground 3 and ground 5 was abandoned in the light of the decision of this Court in R. v. RND[15]. If the sentence imposed on count 1 is set aside, there is no need to consider grounds 3 and 4.
[15][2002] VSCA 192 at [17]-[19].
It was submitted that each of the sentences of seven years' imprisonment was manifestly excessive having regard to the applicant's age, the fact that his previous convictions were of little relevance to sentencing[16], his good work history and the character evidence that was led from two witnesses on the plea to the effect that he was hard-working and a good employer and had a modest life-style. For similar reasons, it was said, the applicant was a good candidate for rehabilitation and that should have been reflected in the non-parole period.
[16]The applicant had three previous convictions (soliciting for the purposes of prostitution in a public place, behaving in an offensive manner in a public place and intimidation), each of which was visited with a fine. The offences the subject of counts 2 and 3 were, however, committed during the period of a recognizance to be of good behaviour.
It was also suggested that the sentence imposed on count 3 should have been shorter than the sentence imposed on count 2 because the agreed sale of heroin the subject of count 3 did not take place. It is sufficient to say that that argument is not covered by any of the grounds of appeal, but I do not wish to give encouragement to the idea that it would have succeeded. The conclusion by no means follows that an unconsummated transaction is always to be punished less severely than one that is consummated. We are not dealing with an attempt but with a completed offence of trafficking. Even if the argument did succeed, it is unlikely that it would have any consequence for the total effective sentence.
If the other members of the Court agree in my conclusions on the application for leave to appeal against conviction, we need consider only whether either or both of the sentences imposed on counts 2 and 3 were manifestly excessive, an appropriate measure of cumulation and an appropriate non-parole period.
In my opinion neither of the sentences was manifestly excessive. The maximum custodial penalty for counts 2 and 3 was 15 years' imprisonment. The offences the subject of those counts were significant examples of trafficking in a drug of dependence. The quantities of pure heroin involved, or that would have been involved, were just below the commercial quantity. The applicant is not entitled to any discount for pleading guilty or co-operating with the authorities. There was no indication of remorse, indeed (his Honour said) quite the contrary. There were no special mitigating factors that cast doubt on the sentences imposed. The motive for the offences was greed. [17]
[17]If, at the retrial, the applicant is again convicted on count 1, he will be sentenced according to the evidence at that trial and the plea made at its conclusion. The trial judge will not be constrained by our assessment of the material available to us.
Clearly a measure of cumulation is called for. An appropriate measure is still two years, which would make a total effective sentence of nine years' imprisonment on these counts. I would fix a non-parole period of six-and-a-half years. That makes ample allowance for the applicant's prospects of rehabilitation, such as they are, without undermining the other purposes for which the sentences were imposed.[18]
[18] R. v. VZ [1998] VSCA 32 at [3], [15] and [22].
Orders
In summary, I propose orders in accordance with the following minutes:
1.Grant the application for leave to appeal against conviction, treat the appeal as instituted and heard instanter and allow the appeal in part.
2.Quash the conviction sustained by the appellant on count 1 and the sentence passed thereon.
3.Direct a new trial to be had on that count.
4.Set aside the directions for cumulation and the non-parole period fixed below.
5.In lieu thereof, direct that two years of the sentence imposed on count 3 be served cumulatively upon the sentence imposed on count 2, making a total effective sentence on those counts of nine years' imprisonment, and fix a non-parole period of six-and-a-half years.
6.Dismiss the application for leave to appeal against sentence.
As the total effective sentence and non-parole period are being varied, a fresh declaration should be made regarding pre-sentence detention.
BATT, J.A.:
I agree with Callaway, J.A.
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