R v Tien
[1998] VSCA 6
•22 July 1998
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 30 of 1998
31 of 1998
48 of 1998
THE QUEEN
v
CUONG MANH TIEN TAM HOANG PHAM THANH CHINH TRUONG
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| JUDGES: | TADGELL, CHARLES and BUCHANAN, JJ.A. |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 July 1998 |
| DATE OF JUDGMENT: | 22 July 1998 |
| MEDIA NEUTRAL CITATION: | [1998] VSCA 6 |
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Criminal law - Sentence - Trafficking in and possession of heroin - Role of addiction in crimes - Parity - Meaning and application of concept of parity - Sentences not manifestly excessive.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. N.T. Robinson | Solicitor for Commonwealth DPP |
| For the Applicant Tien | Mr. P.F. Tehan QC and | Haines & Polites |
| Ms. L.A. Taylor | ||
| For the Applicant Pham | Mr. O.P. Holdenson | Stary & George |
| For the Applicant Truong | In Person |
TADGELL, J.A.:
I shall invite Mr Justice Buchanan to deliver the first judgment.
| BUCHANAN, J.A.: |
The applicants were charged with offences arising from the possession and sale of heroin as the result of an undercover operation conducted by the Australian Federal Police in the western suburbs of Melbourne. Each of the applicants supplied heroin which was purchased by Neil Jones, an undercover policeman, or entered into an agreement for the sale of heroin to Neil Jones.
Thanh Chinh Truong and Tam Hoang Pham were committed for trial on charges of conspiracy to traffic in heroin contrary to s.79(1) of the Drugs Poisons and Controlled Substances Act. The maximum penalty for the offences was a fine of $100,000 or 15 years' imprisonment. In addition Truong was committed for trial on charges of trafficking in heroin contrary to s.71(1) of the Act and possession of a prohibited import, being heroin, contrary to provisions of the Customs Act. The maximum penalty for trafficking is the same as that for conspiracy to traffic.
On 10 February 1998 Truong and Pham pleaded guilty to the charges of conspiracy and Truong pleaded guilty to the charge of trafficking. Truong was sentenced to 18 months' imprisonment on the charge of conspiracy, and 3 years' imprisonment on the charge of trafficking. The learned sentencing judge ordered that 6 months of the sentence for conspiracy be served cumulatively upon the sentence for trafficking, producing a total sentence of 3 years and 6 months. His Honour directed that the applicant serve a minimum of 2 years before he was to be eligible for parole. Pham was sentenced to 5 years' imprisonment and a minimum term of 3 years' imprisonment was fixed.
Cuong Manh Tien was committed to stand trial on charges of trafficking in and possession of heroin contrary to the provisions of the State Act, and pleaded guilty upon arraignment in the County Court. On 16 February 1998 he was sentenced to 3 years' imprisonment on one count of trafficking and 2 years' imprisonment on a second count of trafficking and to 6 months' imprisonment for possession. The sentences for trafficking were cumulated, producing a total sentence of 5 years. The learned sentencing judge fixed a minimum term of 3 years and 6 months before the applicant was to be eligible for parole.
The circumstances of the offences for which Thanh Chinh Truong was sentenced were that he sold 6.7 grams of 72.8 per cent pure heroin to the undercover policeman at a price of $2,650 and together with Tam Hoang Pham arranged the sale of 8 ounces of heroin to the policeman at a price of $52,000. In the course of that transaction there was also discussion of sales at prices of $110,000 and $120,000. The applicant's sole ground of appeal is that the sentence is manifestly excessive.
The applicant Truong is 32 years of age. His role was as a point of contact for purchasers of heroin. He did not buy or sell drugs in his own right, but was rewarded by payment of a commission. The applicant arrived in Australia about 10 years ago and has since worked in the motor industry and as a farm labourer.
The applicant was a user of heroin. However, the learned sentencing judge, properly in my view, distinguished the position of this applicant from that of a helpless addict dealing at street level solely to support his addiction. See Bouchard (1994) 84 A.Crim.R. 499 at pp.501-502 per Callaway, J.A.
The learned sentencing judge said that he took into account the
applicant's plea of guilty.
In my view the scale of the transactions which the applicant facilitated warranted the sentencing judge's description of him as "a not insignificant player". The trade is abhorrent. Those who participate in it are responsible for destroying otherwise normal lives, drug induced crime and sometimes death.
I consider the sentence was within the range of sentences appropriate to the offence and the circumstances of the applicant. I would dismiss the application.
Tam Hoang Pham participated with Truong in the conspiracy to traffic in heroin. At the time of the commission of the offences he was 18 years of age.
The applicant arrived in Australia at the age of 10 years to live with a father he had not seen since he was two years old, and who left the applicant and his brother largely to fend for themselves while he worked. Like others of his age in the western suburbs, the applicant has struggled to obtain work. He left school at Year 11 and completed 6 months of a motor mechanic's course.
The learned sentencing judge said that the applicant was:
"Willing and able to play your part in getting this large quantity of drug on to the streets of Melbourne. To borrow a description, you are a middle man well above street level operating on a substantial scale".
Both the applicants involved in the conspiracy had like prior convictions. Pham had been ordered to pay $150 to the Court Fund in respect of charges of handling stolen goods and possessing and using cannabis. Truong had been fined $100 for possessing and using cannabis. The difference between the sentences, in my view, is to be explained by the more important role played by the younger applicant, who, unlike his associate, had the means to obtain the very large quantities of heroin being discussed. Truong, on the other hand, was the contact point between the purchaser and Pham the supplier. Truong's reward was to have been a commission, which is some indication of his lesser role.
In my opinion the sheer scale of the business conducted by Pham with Truong's assistance justifies the sentence imposed upon Pham, while making due allowance for the applicant's plea of guilty, his modest prior convictions and his relatively young age.
Mr Holdenson, counsel for Pham, submitted that the sentence was out of proportion to the applicant's misconduct, having regard particularly to the fact that no heroin was delivered and the role of the applicant in the commission of the offence. He cited Savvas v. The Queen (1995) 183 C.L.R. 1, in which the members of the Court said that a person convicted of conspiracy was not to be sentenced for anything other than the conspiracy. The appellant was not to be sentenced for substantive offences for which he had never been put on trial.
In my opinion there is nothing to indicate the learned judge sentenced the applicant for the crime of trafficking, that is, an executed sale of drugs. Rather, it appears that the applicant was punished solely for the offence of which he stood convicted, which was the criminal agreement constituting the conspiracy, and not the substantive offence. The agreement was clearly established, and it was the significance of the quantity the subject matter of the agreement that led to the sentence imposed upon the applicant.
Mr Holdenson submitted that insufficient weight was given to the age and personal circumstances of his client. He said that having regard to the applicant's age, his prospects of rehabilitation were more important than general deterrence. At page 51 of the transcript the learned judge said:
"The sentencing process involves a balance of the community's oft- stated interest in emphasizing the rehabilitation in the punishment of offenders in your age group and with the community's interest in deterring drug traffickers. In your case, the quantity of the drug in which you were prepared to deal was an outrage and the purity of the sample is to be noted. Whilst acknowledging the mitigatory considerations to which I have referred and, in particular, your age at the time of offending, the behaviour involved in this conspiracy calls for a sentence of the order I propose".
In my opinion the learned judge was justified in concluding that the significance of the offence itself required a sentence be imposed notwithstanding the priority normally accorded to the rehabilitation of young offenders.
I would dismiss the application of Pham.
The applicant Cuong Manh Tien is 36 years of age. On each of two occasions he sold a significant quantity of heroin to Neil Jones, the undercover policeman. On the first occasion 27.9 grams of 62 per cent pure heroin was sold. On the second occasion 6.9 grams of 77.8 per cent pure heroin was sold. On both occasions Jones reached the applicant through the intermediary Quong Hoan Le. The offence of possession was the result of police executing a search warrant at the applicant's residence and finding 16 grams of pure heroin.
On 2 September 1993 a charge against the applicant of trafficking in heroin had been adjourned for 2 years on the applicant entering into a recognisance.
According to Mr Tehan, one of Her Majesty's counsel, who appeared with Ms Taylor, for the applicant, the learned sentencing judge committed two specific errors. The first was his rejection of the principle of parity between the applicant and Le. The second was his refusal to see drug addiction on the part of the applicant as a mitigating factor.
As to parity, the learned judge said there was a significant difference between the applicant and Le, who was sentenced to 2 years' imprisonment with a non-parole period of 16 months, a sentence that was wholly suspended for a period of two years. Le received a relatively small reward, he was involved principally to fund his drug addiction and he was a street level dealer.
Counsel placed the applicant above Le in the drug dealing industry, but only just above him. In my view in doing so he glossed over significant differences between the two. Le was a point of contact. He did not buy or sell, but introduced buyer and seller. The applicant, on the other hand, was a principal who determined when and on what terms to sell. Truong described the applicant as a "delivery boy". If by that he meant the applicant was no more than a conduit for the transmission of drugs, it is at odds with the evidence of the conduct of the applicant. He acted as the seller of the drugs which Jones bought, not as the messenger for the seller.
In the course of his plea before the sentencing judge, counsel for the applicant conceded that an immediately effective custodial sentence was appropriate. Accordingly, the relevant comparison is the 2-year term given to Le and the 3 years given to the applicant. In my view there was parity between the sentences once the difference between the offences, or the offenders, was recognised. I use the word "parity" in the sense of an appropriate comparability. I do not think that in saying he rejected the application of the principle of parity the learned sentencing judge was using the word in the way I have described. Rather, his Honour appears to have rejected the notion that the offenders were in the same position.
The second error was said to be his Honour's statement that the evidentiary material in support of the contention that the applicant was addicted to heroin was tenuous, so that it was problematic whether he was an addict.
Counsel referred to other material said to show the applicant's addiction: the applicant's own statements to the police, and the level of trafficking in which he was engaged and the lack of evidence of wealth as a consequence of that trafficking.
I do not regard any of those matters as particularly cogent. The sentencing judge invited counsel for the applicant to lead some evidence of addiction. None was forthcoming. The applicant himself did not give evidence and the doctor whose statement in a letter was said to show addiction was not called.
In any event, if the applicant was a heroin addict, he was not shown to be dealing in drugs for the purpose of feeding his addiction. The applicant was not a street dealer operating a business as a result of and solely because of his addiction.
Finally, it was submitted that the overall sentence of 5 years was manifestly excessive having regard to what were said to be the applicant's reasonable prospects of rehabilitation, and that this was the applicant's first term of imprisonment.
As to rehabilitation, it is to be noted that the first offence for which the applicant was sentenced was committed during the currency of a recognisance in respect of an earlier offence, and the second offence was committed while the applicant was on bail in respect of the first offence.
In my opinion the scale of trafficking in which the applicant engaged meant that the term of imprisonment imposed upon him was within the learned judge's discretion. I also consider the minimum term he set was appropriate.
I would dismiss the application.
| TADGELL, J.A.: |
I agree that each of these applications should fail and for the reasons Buchanan, J.A. has assigned. I wish to add only a few words about what is sometimes called the principle of parity of sentencing between co-offenders. Compare Postiglione v. The Queen 189 C.L.R. 295 at 309, per McHugh, J.
Mr Tehan submitted for the applicant Tien that the sentencing judge's remarks indicated that his Honour had ignored the so-called principle. In the course of his sentencing remarks addressed to the applicant Tien, the learned judge said:
"I reject the submission that the principle of parity should apply to the
sentence imposed on your co-offender."The co-offender to whom the judge was alluding was one Le, who had pleaded guilty to trafficking by way of the same transactions in July 1995 as those which had given rise to the charges preferred against the applicant Tien by the Commonwealth Director of Public Prosecutions in the first presentment upon which he was arraigned.
There was debate before us upon the meaning of the passage I have just quoted and, I am obliged to say, understandably so. Apart from its ambiguity and infelicity, the passage seems to me to foster a misunderstanding of the concept with which the judge was required to deal. Although it is no doubt convenient as a matter of shorthand expression to refer to "the principle of parity", the concept is not to be likened to a principle of physics or mathematics which is necessarily to be applied, or necessarily to be withheld from application, in a particular case.
As I understand it the concept simply is that, when two or more co- offenders are to be sentenced, any significant disparity in their sentences should be capable of a rational explanation. In the absence of such an explanation a more lenient sentence imposed on one of them will be likely to engender a justifiable sense of grievance in the other or others, and a justified sense of grievance is inconsistent with a fair system of justice. It is, as I should think, inappropriate ever to say that the "principle of parity", understood in that way, should not apply as between co-offenders. The concept is always to be borne steadily in mind when co- offenders are to be sentenced, whether together or separately, or by one judge or more than one. To say that the concept should not "apply" in a case such as this is, I should fear, to invite a submission of the very kind that Mr Tehan made.
As it is, I do not treat the learned judge as having abandoned the concept. His Honour did distinguish between the criminal conduct of the applicant Tien and that of Le. The distinction his Honour drew was, in my opinion, sufficient to provide an appropriate rational explanation of the discrepancy between the sentence that had been earlier imposed on Le by Judge Curtain and the sentence imposed upon the applicant Tien by the learned judge in this case.
Each of the applications should, in my opinion, be dismissed.
| CHARLES, J.A.: | |
| 43 | I agree with both judgments that have been delivered and accordingly |
that all three applications should be dismissed.
TADGELL, J.A.:
The judgment of the Court on each application is that the applications
are dismissed.
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