R v Ta & Nguyen
[2006] VSCA 79
•11 April 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 142 of 2005
No. 145 of 2005
| THE QUEEN |
| v. |
| KENSHIRO TA and LIEN MONG THUY NGUYEN |
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JUDGES: | CALLAWAY, CHERNOV and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 March 2006 | |
DATE OF JUDGMENT: | 11 April 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 79 | 1st Revision 11 April 2006 |
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Criminal law – Sentencing – Trafficking in heroin – Dealing with proceeds of crime – Whether substantial overlap between trafficking and dealing given adequate recognition – Whether appellants doubly punished – Appellants resentenced to shorter terms of imprisonment on dealing counts with total concurrency – Crimes Act 1958, s.194.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mrs M.M. Williams, S.C. | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
| For the Appellant Ta | Mr C.B. Boyce | Victoria Legal Aid |
| For the Appellant Nguyen | Mr T. Kassimatis | Leanne Warren & Associates |
CALLAWAY, J.A.:
I agree with Chernov, J.A.
CHERNOV, J.A.:
On 21 April 2005 the appellants, Kenshiro Ta (“Ta”), who is aged 28, and Lien Mong Nguyen (“Nguyen”), who is aged 27, pleaded guilty in the County Court at Melbourne to a presentment that alleged the following counts. Count 1 claimed that, between 2 March and 2 September 2004, Ta and Nguyen trafficked in a drug of dependence, namely heroin. Count 2 pleaded that, between 30 March and 2 September 2004, they dealt with proceeds of crime that included funds in an account at the National Australia Bank (No. 3-33), cash and other items of property. Count 3 alleged that between 13 August and 2 September 2004, Nguyen dealt with proceeds of crime, namely, funds in an account at NAB (No. 3-144). The maximum custodial sentence for each of these offences was 15 years. Ta admitted having been sentenced on 2 October 2003 without conviction for trafficking and using heroin. He was released on a community-based order for six months on special conditions. He also admitted to being sentenced without conviction on 4 February 2004 for using heroin. Nguyen admitted to being sentenced without conviction to a community-based order on 13 April 2004 on two charges of using heroin, three charges of trafficking in heroin, two charges of possessing property being proceeds of crime and other like offences. After hearing a plea for leniency made on their behalf, the learned judge sentenced Ta and Nguyen, on 6 May 2005, as follows. As to Ta, on count 1, four years and six months’ imprisonment and on count 2, twelve months’ imprisonment. His Honour ordered that six months of the sentence imposed on count 2 be served cumulatively with the sentence imposed on count 1, thereby producing a total effective sentence of five years’ imprisonment with a non-parole period of three years and six months. In respect of Nguyen, his Honour sentenced her to three years and six months’ imprisonment on count 1 and 12 months’ imprisonment on each of counts 2 and 3. His Honour ordered that three months of the sentence imposed on each of counts 2 and 3 be served cumulatively upon the
sentence imposed on count 1, and by implication upon each other, thereby producing a total effective sentence of four years’ imprisonment with a non-parole period of two years and six months.
By notices dated 18 May 2005, Ta and Nguyen sought leave to appeal against sentence and, on 21 October 2005, the President granted the leave sought pursuant to s.582 of the Crimes Act 1958. Before dealing with the grounds of appeal, it is necessary to set out briefly the circumstances of the offending and of the appellants.
In approximately 1996, Ta and Nguyen entered into a personal relationship that lasted for approximately four years. During this period Ta used heroin, but Nguyen did not. After they separated, Nguyen commenced using the drug and, as has been noted, in April 2004, she was convicted of drug related offences and was sentenced to a community-based order. At about that time, through Odyssey House, Nguyen managed to obtain premises at St Albans where Ta later joined her as a co-occupant. It was principally from those premises that Ta, with assistance from Nguyen, conducted the heroin trafficking operation. They opened and operated, in connection with the heroin sales, a joint bank account with the National Australia Bank – No. 3-33 – the records of which showed that, between 30 March and 1 September 2004, over $67,000 was credited to that account (by way of 31 credits) and that debit entries in relation to it came to a little over $61,000, leaving a balance of approximately $6,500 in the account on 1 September 2004. By the next day, the balance had dropped to a little over $5,500. Moreover, bank records disclosed that, on 17 and 18 August 2004, respectively, the amounts of $19,000 and $4,000 were transferred from the joint bank account into an account held by Nguyen at the National Australia Bank – No. 3-144. Apparently, the transfers were made in order to hide from Centrelink the fact that the appellants had an account with a substantial credit balance. On 2 September 2004, the credit balance in Nguyen’s account was $29,000. It was accepted by Ta and Nguyen that the money in those accounts came substantially from their sales of heroin.
On 2 September 2004, the police executed a search warrant at the St Albans premises and found there, amongst other matters, 28.3 grams of heroin (25 per cent pure), several bundles of cash totalling over $3,000, ten mobile telephones, 51 packets of new batteries, a DVD player, a play station and a CD player. The appellants were arrested and taken to a police station where they were separately interviewed. Ta told the police in his record of interview, amongst other matters, that the premises were used to sell heroin and that the heroin that was found by the police, as well as the other items to which reference has been made, were held as security for drug debts. He also said that, ordinarily, he received 10 to 20 telephone calls per day from prospective purchasers of heroin. During the three hours after his arrest, Ta received over 60 unanswered telephone calls on his mobile telephone from prospective heroin purchasers. At first, Ta denied having any connection with the money in the above bank accounts and falsely claimed that they were the proceeds of Nguyen’s gambling. Later, however, he admitted that the moneys were essentially proceeds of heroin sales. His explanation for the offending was that he needed to satisfy his heavy addiction to heroin. He claimed that he was using 1.5 grams of heroin per day.
In her record of interview, Nguyen told the police that she assisted Ta when customers came to the unit to purchase the drug, but she claimed that she did not handle it. She also confirmed that the proceeds of the heroin sales were deposited in account No. 3-33 and that, between about June and September 2004, Ta gave her between $10,000 and $15,000 to put into the joint account.
I now turn to summarise the relevant aspects of the appellants’ personal circumstances. Ta, who is of Chinese descent, was born in a refugee camp in Vietnam. He came to Australia when he was aged seven, but spoke no English. He nevertheless managed to gain entry to University High School where he studied for three years. His parents exercised strict control over his movements and his father physically abused him on the alleged basis of minor misbehaviour. He helped his mother by working full-time at home for a year and then returned to study and completed Year 12. Contrary to the strong views of his parents, he left home at the age of 20 and formed a relationship with Nguyen which angered his parents, principally because she was of Vietnamese descent.
Nguyen was born in Melbourne and, when she was aged ten, her mother left the family to live in San Francisco with another man, although she has maintained some telephone contact with her daughter. Nguyen’s father was an alcoholic and, when she was 13, raped her on the pretext that a fortune teller told him that if he had intercourse with her he would become rich. Because this did not occur, he attempted to rape her again, but Nguyen escaped and lived in a refuge in Carlton for three years. She then came together with Ta as I have described. His Honour considered that Nguyen’s role in the criminal enterprise was that of an aider and abettor and said that, for that reason, she should receive a lesser sentence than Ta. His Honour also recognised that Nguyen did not attempt to conceal the existence of the money and the other property and that she admitted their source.
I now proceed to deal with the submissions, first of Ta and then of Nguyen, made in support of their respective grounds of appeal.
The principal case advanced by each of the appellants was that his Honour erred in imposing a sentence in respect of the “dealing” counts, or alternatively, in his directions for cumulation, given the extensive overlap in culpability as between the two sets of counts. It is convenient to consider the contentions of the appellants together notwithstanding that Nguyen was charged with two counts of dealing with the proceeds of crime and Ta with only one. Mr Boyce for Ta and Mr Kassimatis for Nguyen argued that, on the Crown case (and on the material before the Court), the “dealing” by the appellants was limited to operating the joint bank account and receiving and retaining cash and other items that have been described earlier. Counsel emphasised that virtually the same conduct was also relied by the Crown to show the extent of the trafficking operation. Thus, it was said, there was significant overlap of culpability between the two sets of counts.
It follows, so it was claimed, that by imposing the sentences on the dealing counts, as well as the sentences on count 1, the appellants were doubly punished. Alternatively, it was said, in imposing the sentences on the dealing counts, recognition had to be given to the fact that the sentences on count 1 were reflective of all or nearly all of the conduct that was the subject of the other counts. It was said that, given the impugned sentences, it must follow that his Honour did not give any or any sufficient recognition to the above-mentioned overlap as between the sets of counts. Thus, the appellants claimed, on either basis the sentencing discretion has been vitiated.
It seems to me that where an offender is charged with a serious offence that also involved conduct that is of substantially lesser criminality but which, technically, amounts to a separate offence, there is much to be said for the appellants’ claim that the Crown should ordinarily consider not laying a separate charge for the related offence but should rely on the overlapping conduct as the context in which to assess the gravity of the serious offence. Where, however, charges are laid in respect of the serious offence and the overlapping conduct and the latter is taken into account for the purpose of determining the sentence on the serious offence, any sentence that is then passed in respect of the related conduct must reflect this fact. Like views have been expressed by this Court in R v. Beary.[1] In that case, the appellant pleaded guilty to numerous charges of theft of goods from supermarkets. She also pleaded guilty to money laundering that was said by the Crown to have been constituted by the sale of the stolen items to various “receivers”. She was sentenced to three years’ imprisonment on that count. The Court said that such sales, although strictly caught by the money laundering section (which prescribed a maximum custodial penalty of 20 years), were not the principal mischief against which the section was directed. Relevantly, Buchanan, J.A. pointed out that the principal charge against the appellant was theft and her culpability in respect of that offending was so closely intertwined with her sale of the stolen goods that it would have been better if the Crown had not charged the appellant with the money laundering count, but sought to have that conduct taken into account as part of the matrix of facts in respect of which the appellant was sentenced for theft. The Court, however, did not say that the sentence on count 27 amounted to double punishment. Their Honours considered that the sentencing discretion was vitiated for other reasons.
[1](2004) 11 V.R. 151 at 154 per Ormiston, J.A. and at 162 per Buchanan, J.A.
In the present case, it is apparent that, in terms of the criminality involved, count 1 was by far the more serious count and that the conduct that was closely related to it – dealing with the proceeds of crime – taken by itself, involved much less criminality. Thus, it would not have been inappropriate if the Crown had not laid the charges in counts 2 and 3 but relied on the conduct that is the subject of those counts as part of the context in which the sentence on count 1 should be determined. But the Crown decided not to adopt that course and the question is whether, by sentencing the appellants on the two sets of counts, the learned sentencing judge doubly punished them or, if not, whether he had insufficient regard to the overlap between the two sets of counts when imposing sentences on the “dealing” counts.
I consider that, by imposing the impugned sentences, the judge did not doubly punish the appellants. It is plain enough that, technically, the conduct that falls within the “dealing” counts did amount to the offence of dealing with the proceeds of crime. Such conduct involved the use of at least part of the funds in the joint bank account for the appellants’ own purposes – such as the transfer of the funds from the joint bank account into Nguyen’s bank account in August 2004 – and/or for facilitating the trafficking operation. As I have noted, the payments in and out of the joint bank account amounted to over $60,000 in a period of a few months. That conduct appears to fall within the definition of “dealing” with proceeds of crime.[2] The same could be said of the other items retained by the appellants that were located by the police when they executed the search warrants. As the High Court explained in Pearce v. The Queen,[3] the rule against double punishment is essentially concerned with the situation where the offender has been, or is to be, punished twice for the same criminal act or set of acts. Importantly, I think, their Honours cautioned that the identification of a single act as common to two offences may not always be straightforward but the exercise should not be attended by “excessive subtleties and refinements” and should be approached with common sense and “not as a matter of semantics”. Approaching the matter on this footing, I consider that the two respective sets of counts deal with separate criminal acts. As Mrs Williams for the Crown submitted, the conduct that is the subject of count 2, for example, is separate and distinct from that which is the subject of the offence of trafficking in heroin.
[2]See s.194 of the Crimes Act 1958.
[3](1998) 194 C.L.R. 610 at 621-624 per McHugh, Hayne and Callinan, JJ (citations omitted).
Nevertheless, I think that no, or insufficient, regard was had by the sentencing judge to the overlap in the conduct that formed the basis of the respective sets of counts when he determined the sentences on the “dealing” counts. Unfortunately, neither the appellants’ counsel nor the Crown directed the judge’s mind to the issue and there is nothing in the sentencing remarks to indicate that, when sentencing the appellants in relation to the “dealing” counts, his Honour had regard to the fact that much of the conduct relating to those counts formed the context in which the appellants were sentenced for trafficking. I also consider that the length of the sentences on those counts and the orders for cumulation reflect his Honour’s failure to have due regard to the overlapping criminality as between the two sets of counts. Such error, I think, vitiated the sentencing discretion, not only in respect of the dealing counts but, because of the above-mentioned overlap, also in respect of count 1. Thus, the appellants fall to be re-sentenced by this Court.
In the event that the Court might come to such a conclusion, Mr Kassimatis tendered material that shows that Nguyen has successfully undergone intensive drug rehabilitation programs whilst in prison, that she has been free from drugs for some time and has taken steps to enable her to achieve her stated aim of maintaining a drug free and crime free lifestyle upon release from prison. It is also apparent from the material that is referable to Ta that, whilst in gaol, he has taken positive steps to rehabilitate himself. Both counsel also emphasised the personal circumstances of the appellants to which I have briefly referred and other mitigating factors that operate in their favour. But in re-sentencing the appellants, it is necessary to have regard to the seriousness of the offences and the offending conduct as well as to the applicable sentencing principles. It is plain that the offences here were very serious, given the maximum custodial sentence prescribed for the offences. The offending conduct was also very serious and, although Nguyen played a lesser role in the criminal enterprise, she participated in it notwithstanding the opportunity given to her by a court, shortly before her re-offending, to rehabilitate herself. I will not repeat what this Court has said about the heinous nature of the offence of trafficking in a drug such as heroin, and it is obvious that the appellants, and Ta in particular, played a material role in spreading the misery, and worse, that accompanies the use of this drug. This Court has also said that such offenders play for high stakes and, if detected, can expect condign punishment and little mercy from the courts. The criminal enterprise was conducted for a considerable period of time and the amount of the drug trafficked was not inconsiderable, so that the principle of general deterrence has a significant role to play in the sentencing disposition. Moreover, Ta had prior convictions, in the extended sense of that term, for similar offences and had been found guilty of using heroin only four weeks before he commenced the offending conduct with which we are concerned. He also breached undertakings to the court in relation to drug abuse. Nguyen is in a similar position. She became active in the trafficking operation not long after she was sentenced to a community-based order. In those circumstances the appellants’ criminal history, although of not great duration, demonstrated that specific deterrence also assumes significance in the exercise of the sentencing discretion.
In the circumstances, I would re-sentence the appellants as follows. As to Ta, I would re-sentence him to four years and six months’ imprisonment on count 1 and to six months’ imprisonment on count 2, making a total effective sentence of four
years and six months’ imprisonment. I would fix a non-parole period of three years. In respect of Nguyen, I would impose a sentence of three years and six months’ imprisonment on count 1 and six months’ imprisonment on each of counts 2 and 3, making a total effective sentence of three years and six months’ imprisonment. I would fix a non-parole period of two years.
VINCENT, J.A.:
I agree in the disposition of these matters as proposed by Chernov, J.A. and I do so for the reasons advanced by him in his judgment.
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