R v Nguyen
[2002] VSCA 43
•20 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 62 of 2001
| THE QUEEN |
| v. |
| QUOC HUY NGUYEN |
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JUDGES: | CALLAWAY, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 March 2002 | |
DATE OF JUDGMENT: | 20 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 43 | |
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Criminal law - Sentence - Trafficking in a drug of dependence - Manifest excess - Disparity between the head sentence and the non-parole period - Parity of treatment with co-offender - No demonstrable error.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr M.J. Croucher | Lewenberg & Lewenberg |
CALLAWAY, J.A.:
I shall ask Vincent, J.A. to deliver the first judgment.
VINCENT, J.A.:
During the month of September 1999, information was received by the National Crime Authority that a Vietnamese male, known as "Kevin" and subsequently identified as the appellant, had heroin for sale at a purchase price of $55,000 per 350-gram block. Acting on this information, at approximately 1.35 p.m. on 10 September 1999, a registered informer with the Authority operating under the name "Brian" arranged to meet this person in King Street, Richmond and where he discussed with him the possible purchase of a quantity of this drug. A further meeting took place on 14 September, and on 16 September a covert Victorian Police operative using the name "Di Taylor" met with the appellant, to whom she was introduced by "Brian", to discuss arrangements for a proposed transaction. At that meeting it was agreed that a motel room would be booked for 20 September and that Ms "Taylor" would be informed of its location one hour before she was to arrive. She was to bring the purchase money, which would be counted, after which the heroin would be secured elsewhere. They would then return to the motel room, where "Brian" was to remain with the appellant's wife, and then go their separate ways.
At approximately 12.36 p.m. on the appointed day, "Di Taylor" and "Brian" met the appellant in a room at the Novotel Bayside Hotel in The Esplanade, St Kilda. The appellant was shown the sum of $220,000 in cash, which he then counted. This represented the purchase price of four blocks of heroin. He was asked if he could arrange to supply two further blocks, the money for which would be picked up at 1 p.m. The appellant said that he could sell them a total of six 350-gram blocks of heroin. During the conversation the appellant told "Brian" and "Di Taylor" of some problems he had encountered in similar transactions in the past, relating that he had lost about $600,000 in the previous year as the result of the arrest of a friend in connection with another dealing. After a number of mobile telephone calls in which the appellant spoke in Vietnamese and some further discussion between those present in the room, it was decided that the transaction would take place in the car park of the North Melbourne Cricket Ground Social Club in Fogarty Street, North Melbourne and that the appellant would meet "Brian" and Ms "Taylor" at that location.
At approximately 5 p.m. on the same day, "Di Taylor" arrived at the appointed place. A vehicle driven by the appellant entered the car park at approximately 5.20. After a short conversation, the appellant drove from the car park and travelled to Canning Street, North Melbourne, where his vehicle remained until 5.55 p.m. In the meantime, "Di Taylor", in company with "Brian", waited in the car park. The appellant then returned and again spoke to "Di Taylor", leaving once more at approximately 5.59 p.m. and returning to Canning Street, where two people entered the vehicle. They have been identified as Lisa Dang and Hai Lam Tran. The three then travelled back to the car park, arriving at approximately 6.02 p.m. "Di Taylor" alighted from her vehicle. She opened the right rear door of the appellant's vehicle and got inside. She observed a white plastic shopping bag on the floor of the front passenger area at the feet of Hai Lam Tran. He removed one package from the bag and handed it to her. It consisted of two blocks of a substance packed together with brown tape. Tran cut a small hole in the package with his keys and exposed white material. He handed the plastic bag to Lisa Dang, who was seated in the rear passenger seat next to "Di Taylor". Ms "Taylor" then attempted to take the shopping bag and leave the vehicle. There was a short struggle, after which she left the car. The occupants were then arrested by a team of police who were in the near vicinity.
A search of the vehicle revealed the presence of four blocks of material, wrapped in waxed paper and taped in pairs with brown plastic tape. Examination of the items revealed that one of them weighed 359.4 grams, another 346.8 grams, a third weighed 351.9 grams and a fourth weighed 350.5 grams. The calculated weight of the material in the packages was 159 grams, 154 grams, 157 grams and 228 grams respectively. This represented a relative heroin purity of 45.6%, 44.5%, 44.8% and 65.2%.
The appellant was subsequently presented before the County Court at Melbourne on one count of trafficking in a drug of dependence and entered a plea of guilty. After hearing a plea in mitigation of penalty, a sentence of imprisonment for a period of seven years was imposed, in respect of which the sentencing judge fixed a non-parole period of five years. Having been granted leave to do so, the appellant seeks to overturn both the head sentence and the non-parole period. Although reliance has been placed upon a number of grounds set out in his amended notice of appeal, effectively three contentions have been advanced which, it has been argued, require the intervention of this Court. They are:
1.that the sentence imposed can be seen to be manifestly excessive in all of the circumstances;
2.that there is insufficient disparity between the head sentence imposed and the non-parole period fixed in all of the circumstances;
3.that the sentence imposed upon the appellant infringed the principle of parity of treatment of co-offenders when regard is had to the sentence subsequently imposed by the same judge upon the appellant's co-offender, Hai Lam Tran.
Manifest excess
The contention that the sentence imposed upon the appellant was manifestly excessive in the circumstances is set out in a single ground in the notice of appeal, (ground 5). Four further grounds, 1, 2, 3 and 4, were argued before this Court as particulars of that complaint. In effect, they assert:
1.that the sentencing judge failed to have sufficient regard to the appellant's entry of a plea of guilty at the first opportunity;
2.that he failed to take into account sufficiently or at all the appellant's endeavours towards his rehabilitation and the likelihood of his success in this regard;
3.that he failed to take into account sufficiently or at all the appellant's former association with the woman who was involved in what was described as the drug scene and with whom he was no longer involved;
4.that his Honour failed to take into account in an appropriate fashion a concession made by the prosecution that the appellant was "a middle man" in the single drug transaction alleged against him.
It is apparent, however, upon perusal of his Honour's sentencing remarks, that he did direct attention to each of these considerations. First, with respect to the entry of a plea of guilty, the sentencing judge said: "You have pleaded guilty to this offence virtually at the first opportunity that you had." He then went on to refer to the appellant's demonstrated remorse for his actions, and he described his opportunities for rehabilitation as "excellent". In this context it is to be observed that the judge made specific reference to the continuing support available to the appellant from his understandably disappointed family. His Honour indicated that he had had regard to the relative youth of the appellant and his work history. He adverted to the absence of prior convictions and the role of the appellant in the transaction, which he described as that of a "go-between" or "middle man". He accepted that the appellant became involved in the activity through his girlfriend, stating:
"You have become involved in this insidious drug scene through your girlfriend, who introduced you to those who were apparently active participants in the drug culture. This relationship is now dissolved."
His Honour was at pains to ensure, in his carefully crafted remarks, that he attributed proper weight to all factors that were capable of militating towards mitigation of the penalty to be imposed. There is, in my view, nothing in those remarks or in the sentence imposed which could give rise to a sense of concern that he may have undervalued any of them.
The sentencing judge was also conscious, as he demonstrated by reference to a number of statements made in this Court, of the serious view that is taken of engagement in the trafficking of a commercial quantity of heroin. With respect to the circumstances leading to the appellant's involvement in the matter, his counsel submitted in the course of the plea in the court below:
"I am not going to submit to Your Honour that the motivation for this was an overwhelming use of heroin."
A little later:
"What he says is that he was an occasional user, one or two times per week by way of smoking it, and how he got into that was through the friend of his then partner, and no doubt, I suppose, what could be called a social use led into conversations about getting involved in that industry."
Counsel also said that his client wanted money to assist a relative in Vietnam who required an operation. However, nothing much seems to have been made of that rather vague and somewhat implausible suggestion.
The appellant clearly played an important role in the commission of a very serious crime. No adequate, or even inadequate, explanation was seriously proffered for his conduct which appears to be nothing more than engagement in a straightforward commercial activity, undertaken in direct defiance of the law enacted in an endeavour to minimise the damage occasioned to our society by the evil of drug abuse. I am unable to detect any flaw in the approach adopted by the sentencing judge with respect to this consideration.
Finally, I do not consider that the sentence at which he arrived could be regarded as falling outside the range of those available in the circumstances. Grounds 1, 2, 3, 4 and 5 must fail, in my opinion.
The disparity between the head sentence and the non-parole period - ground 6
The contention was advanced before us that, even if the head sentence could be regarded as within the range available to the sentencing judge, when regard is had to the factors operating in mitigation of penalty in this case, the fixing of a shorter non-parole period would reasonably have been anticipated. No reasons were advanced by the judge for the particular choice he made. Accordingly, the argument proceeded, the circumstances invited the scrutiny of this Court. As Callaway, J.A. pointed out in his judgment in R. v. VZ[1], the failure to give reasons does not inevitably betoken error, but it does invite scrutiny if the non-parole period is unusual by comparison with other cases or having regard to the facts in the instant case or the course of the plea. There must be a discrete consideration of the relevant factors, bearing in mind that there is no standard non-parole period, standard proportion or standard gap.
[1][1998] VSCA 32 at [13].
Although it would, perhaps, have been better had his Honour made specific reference to the considerations which impacted upon his decision to fix a non-parole period in this case, there is, however, in my opinion, nothing in the material which suggests that he may have fallen into error in this respect. The non-parole period could not be described as manifestly inappropriate in the circumstances, or even as calling for some explanation as to the basis upon which it was determined.
I would dismiss this ground.
Parity - ground 7
The co-offender, Hai Lam Tran, pleaded guilty before the same judge on 7 February 2002 to one count of trafficking in a drug of dependence and he was sentenced to imprisonment for a period of five years with a non-parole period of three years for his part in the transaction.
There is little point in setting out a comparison of the personal circumstances applicable to the two men, who were of similar age, in roughly similar family circumstances and with similar backgrounds. Neither had any prior convictions and both were accepted as having pleaded guilty at the earliest opportunity.
It would appear from his remarks that the sentencing judge was influenced in his decision to impose a lesser sentence upon Tran by two major considerations. The first related to the general circumstances under which Tran became involved in the activity. His Honour accepted evidence that this offender had become involved in gambling and the abuse of drugs at around the time of his father's illness and death in 1995, stating:
"You were substantially indebted because of gambling and your now use, for that time of illicit drugs, being heroin and marijuana. The subculture within your society from which you had borrowed now had you entrapped, and to survive you became a runner in their insidious industries."
He also accepted that, since the commission of this offence approximately two-and-a-half years beforehand, Tran had proceeded "a long way down the track of rehabilitation". This in his Honour's view augured well for the future, although he expressed understandable reservations as Tran had not extricated himself completely from the abuse of drugs. Second, his Honour accepted that this offender played the role of "courier" or "minder", in differentiation from the appellant, who was said to be a "middle man" or a "go-between". It is to be observed that this distinction was regarded as significant by counsel for the appellant in his submissions before the judge in the course of the plea, when he said:
"He's not just a courier but he's a step further up the chain, in the distribution chain of the person who deals with the buyers."
I do not consider that it has been demonstrated that the judge fell into error in distinguishing between the two co-offenders on either of these bases. Nor is it my view that the appellant would be entitled to a justifiable sense of grievance concerning the differences in the sentences imposed in the circumstances.
In summary, I would dismiss this application.
CALLAWAY, J.A.:
I agree.
BUCHANAN, J.A.:
I also agree.
CALLAWAY, J.A.:
The order of the Court is:
Appeal dismissed.
(R. v. Quoc Huy Nguyen)
CERTIFICATE
I certify that the preceding 7 pages are a true copy of the reasons for judgment of Callaway, Buchanan and Vincent, JJ.A. of the Court of Appeal of the Supreme Court of Victoria delivered on 20 March 2002.
DATED the day of 2002.
Associate
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