R v Tien & Tien
[2007] VSCA 56
•3 April 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| No 307 of 2006 |
| THE QUEEN v CUONG MANH TIEN |
| No 306 of 2006 |
| THE QUEEN v TRUNG VAN TIEN |
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JUDGES: | VINCENT and REDLICH JJA and HABERSBERGER AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 March 2007 | |
DATE OF JUDGMENT: | 3 April 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 56 | |
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CRIMINAL LAW – Sentencing – Trafficking in drugs of dependence (heroin) – Cultivating a narcotic plant (cannabis L) – Theft of electricity – Question of appropriate cumulation – Parity – Appellants father and son – Family influence on youth offending – Held not manifestly excessive, no parity issue, youth and addiction appropriately weighed by trial judge – Appeals dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D A Trapnell | Ms A Cannon |
| For the Appellant C M Tien | Mr L C Carter | Andrew George |
| For the Appellant T V Tien | Mr M R Simon | C Marshall & Associates |
VINCENT JA:
I agree that these appeals should be dismissed for the reasons given by Habersberger AJA in his judgment.
REDLICH JA:
I agree with Habersberger AJA.
HABERSBERGER AJA:
On 11 September 2006 Cuong Manh Tien ("the first appellant") and his son Michael Trung Van Tien ("the second appellant") both pleaded guilty before the County Court at Melbourne to one count of trafficking in a drug of dependence, namely diacetylmorphine (heroin), between 7 July and 2 December 2004 (count 1) and to one count of cultivating a narcotic plant, namely cannabis L, between 1 September and 9 November 2004 (count 2). The first appellant also pleaded guilty to one count of theft of electricity between 1 September and 9 November 2004 (count 3).
After hearing pleas in mitigation the learned judge, on 22 September 2006, sentenced the first appellant on count 1 to imprisonment for 3 years; on count 2 to imprisonment for 18 months; and on count 3 to imprisonment for 3 months. Her Honour ordered that 12 months of the sentences imposed in respect of counts 2 and 3 be served cumulatively on the sentence on count 1, making a total effective sentence of 4 years' imprisonment. A non-parole period of 2½ years was ordered to be served. The learned judge sentenced the second appellant on count 1 to imprisonment for 18 months; and on count 2 to imprisonment for 12 months. Her Honour ordered that 6 months of the sentence imposed on count 2 be served cumulatively on the sentence on count 1, making a total effective sentence of 24 months' imprisonment. It was further ordered that 15 months of that sentence be suspended for a period of 2 years.
Each of the appellants was granted leave to appeal against sentence on 8 December 2006. Due, apparently, to a lack of communication between Victoria Legal Aid and the firm of solicitors engaged to act on behalf of the first appellant, which resulted in a failure to file a full statement of grounds by the due date, the first appellant's appeal was deemed dismissed on 12 February 2007. By a notice dated 19 March 2007, the first appellant applied pursuant to rule 2.09.3(4) of the Supreme Court (Criminal Procedure) Rules 1998 to have the appeal reinstated. This was not opposed by the Crown. In the circumstances, the Court decided that the first appellant's appeal should be reinstated.
The relevant factual background is as follows. Operation Foody was an investigation conducted by the Major Drug Investigation Division of Victoria Police, which targeted heroin trafficking by members of the Vietnamese community in the western and inner suburbs of Melbourne. Eleven people, including the first and second appellants, were charged with various offences as a result of Operation Foody. Five of the 11, including the first and second appellants, pleaded guilty and they were all sentenced at the same time by her Honour. The Crown case was that a Minh Tam Dang and his wife Nga My Dang supplied quantities of heroin to a number of other people, including the first and second appellants, who would then sell the heroin to others. In addition, it was alleged that the first and second appellants were involved in the hydroponic cultivation of cannabis at a house in Brooklyn on behalf of the Dangs.
The first appellant, who was aged 42 years at the time of the offending, came to Australia in 1985, after a number of years in a refugee camp in Hong Kong. He turned to heroin following the break up of his marriage and difficulties in obtaining employment. The first appellant admitted five prior convictions from two court appearances. In 1993 he was convicted of possession of a prohibited import, heroin, and trafficking in a drug of dependence, heroin. On the first count, he was placed on a 2 year good behaviour bond and the second count was adjourned upon him entering into an undertaking to undergo treatment for drug addiction. In 1998, he was sentenced by the County Court on two counts of trafficking in heroin and one count of possession of heroin, and sentenced to a total effective sentence of 5 years' imprisonment with a non-parole period of 3½ years. He breached his parole by use of an illicit drug and he was returned to prison and completed his sentence. Thus, the offences in question were committed some 18 months after he was finally released from gaol. In October 2005, the first appellant completed a 6 month sentence of imprisonment for cultivating cannabis and, in July 2006, a 42 day sentence for burglary and theft, involving the Dangs' house and their credit cards. The Dangs had been refused bail following the arrest of the Operation Foody offenders and the first and second appellants were then living in the garage of the Dangs' house.
The amount of heroin involved in the first appellant's trafficking was 80 grams, of which 56 grams was trafficked on the second last day of the period alleged. Much of the other 24 grams of heroin was for his own use. Her Honour found that his roles included being the "taster" of the heroin and doing odd jobs helping out the Dangs. The amount of cannabis located at the house in Brooklyn was 55 plants and two small seedlings, totalling approximately 2.2 kgs. in weight. Her Honour found that the first appellant's role was that of a house-sitter, although he was to have received some share of the proceeds of the sale of the crop.
The second appellant, who was aged 19 years at the time of the offending is the son of the first appellant. He was born in a refugee camp in Hong Kong and came to Australia as an infant. His family was constantly on the move. The second appellant was raised principally by his mother, although he remained in contact with his father despite the father's separation from his wife, his drug addiction and his time in gaol. The second appellant's mother also resorted to heroin trafficking and has served a prison term.
The learned sentencing judge was told that the second appellant became addicted to heroin whilst in Year 9 at school. Although he managed to abstain from time to time, upon his father's release from prison they both relapsed into heroin use. The second appellant admitted 12 prior convictions from four court appearances. They included possession and trafficking in heroin, for which the Children's Court placed him on a good behaviour bond, which he breached, and possession and trafficking of heroin for which he was sentenced to 5 months' imprisonment, which sentence was wholly suspended for 6 months. That period expired in June 2004, some three months before these offences. In October 2004, the second appellant was placed on a community based order of 12 months' duration, for burglary. Part of the period of the present offending therefore occurred whilst the second appellant was undergoing a community based order. On 12 July 2006, the appellant was fined $2,000 for breach of the community based order and sentenced to 14 days' imprisonment wholly suspended for 6 months.
The amount of heroin involved in the second appellant's trafficking was approximately 6.2 grams. Intercepted telephone conversations between the second appellant and Minh Tam Dang and his fingerprints on light shades at the house in Brooklyn demonstrated that he had played some role in the cultivation of the cannabis. It was not suggested that he was to share in the profits from the sale of the crop.
Evidence was given at the hearing of the plea by Hong Hai Nguyen that he had employed the second appellant as a scaffolder for the last 12 months and that recently he had seen nothing to suggest that the second appellant had been using drugs. Mr Nguyen said that he regarded the second appellant as an adopted son.
I turn then to consider the appeal of the first appellant, Cuong Manh Tien. Three grounds of appeal were relied on by counsel on behalf of the first appellant. I will deal with them in the order in which they were argued.
Ground 2 was that the learned sentencing judge erred by ordering an excessive amount of the sentences imposed on counts 2 and 3 to be served cumulatively on the sentences imposed on count 1. In dealing with the question of cumulation, her Honour said at [16]:
"As Counts 2 and 3 were committed as part of the same episode, although they involve discrete offences, I propose to make no order in respect of those sentences so that by operation of law they will be served concurrently with each other. But the offences the subject of Counts 1 and 2 are discrete offences occurring at different times and places, and involving different forms of criminality."
It was submitted by Mr Carter on behalf of the first appellant that it was not correct for her Honour to treat the offences as occurring at "different times" when, in fact, the period of the offending overlapped. I agree, however, with the submission by Mr Trapnell for the respondent that her Honour's references to the offences "occurring at different times and places" is explicable by reason of the fact that the individual acts which were committed in the course of each episode of offending occurred at different times and places. He submitted by way of example that there was no suggestion that trafficking in heroin occurred at the house in Brooklyn or at the same time as a specific act of cultivation.
It was also submitted by Mr Carter that although the first appellant's role of house sitting the cultivation of the cannabis was separate from his role in the heroin trafficking, which was said to be primarily that of a "taster" of the heroin, the periods of the offending overlapped. He submitted that each offence was a manifestation of the first appellant's heroin addiction and that he was dependent on the Dangs for his supply of heroin. In the circumstances, Mr Carter submitted, her Honour erred in failing to give greater weight to the first appellant's personal circumstances and the prima facie rule of concurrency.[1] Mr Carter conceded that he could not argue that some degree of cumulation was inappropriate. Rather, he submitted that, as a result of the excessive cumulation, the principle of totality was infringed. I do not agree with the submission that sentencing error was shown in the order for cumulation made in this case. In my view, her Honour was entitled to consider the trafficking of heroin and cultivating of cannabis as discrete episodes of criminal behaviour which justified a significant degree of cumulation. As Mr Trapnell submitted, the individual sentences were open and the total effective sentence was open, given the seriousness of the discrete offences and the first appellant's significant and relevant prior criminal history. There was, in the circumstances, "good reason" for the cumulation.[2]
[1]R v Mantini [1998] 3 VR 340 at 348 per Callaway JA, with whom Phillips CJ and Batt JA agreed.
[2]R v Fuller-Cust (2002) 6 VR 496 at [49] per Batt JA.
Accordingly, in my opinion, the first appellant's ground 2 fails.
Ground 3 was that the sentence imposed on the first appellant for the trafficking of heroin count offended the principle of parity in sentencing when contrasted with the sentences imposed on the co-accused Thang Hong Ho and Kie Thi Luu. Initially, reliance was also placed on the comparison with a third co-accused, Thi Nam Phan, but this was abandoned at the hearing. Mr Carter sought to contrast the position of the first appellant with those of the two co-accused in terms of the level of trafficking, the roles played and in the motivation.
Mr Ho was sentenced to 30 months' imprisonment wholly suspended for 30 months. The amount of heroin involved in his trafficking was about 154 grams, or almost twice the amount of the first appellant. Mr Ho was said to be an intermediary who was paid a commission on sales. He trafficked for commercial gain, in order to save the airfare to visit his dying mother in Vietnam. When interviewed he denied any involvement.
Ms Luu was also sentenced to 30 months wholly suspended for 30 months. The amount of heroin involved in her trafficking was 168 grams, more than twice the amount of the first appellant. She also trafficked for commercial gain. Although it was said on the plea that Ms Luu's role was limited to taking telephone messages about drug dealing for a boarder at her house, she knew enough to organise deliveries, use codes and negotiate prices with the Dangs. She initially denied any involvement.
Mr Carter acknowledged that neither of the co-accused had any prior convictions. He submitted, however, that the first appellant's prior convictions needed to be understood in the context of his addiction to heroin and that his moral culpability was reduced as a result of his addiction, compared with that of those, such as Mr Ho and Ms Luu, who trafficked for commercial gain.[3]
[3]See, for example, R v Nagy [1992] 1 VR 637 at 640 per McGarvie J; R v Bernath [1997] 1 VR 271 at 276 per Callaway JA, with whom Winneke P and Brooking JA agreed; R v McKee and Brooks [2003] VSCA 16 at [13] per Buchanan JA, with whom Eames JA agreed, and at [21] per Vincent JA.
It was submitted, therefore, that an objective observer would share the first appellant's sense of grievance that his sentence was longer than each of these two co-offenders' sentences and that he may have to serve all of his term in prison.
In my opinion, the parity argument fails. The learned sentencing judge clearly emphasised the importance of the first appellant's prior convictions and the need for specific deterrence given that previous imprisonment had not stopped him from re-offending. In the circumstances, a sentence of 36 months' imprisonment was quite appropriate compared with Mr Ho's and Ms Luu's 30 months, notwithstanding the first appellant's addiction. Moreover, as Mr Trapnell pointed out, although the amount of heroin trafficked by the first appellant was less than that of Mr Ho and Ms Luu, the period of his offending was significantly greater – 149 days in his case compared to Ms Luu's 17 days and Mr Ho's 38 days. I also note that it appeared that Mr Ho did not resume trafficking after he returned from his filial visit to Vietnam and that Ms Luu did not offend once the boarder left.
Nor could the first appellant complain about the fact that each of the two co-offenders' sentences of imprisonment was wholly suspended, whereas he was ordered to serve at least 2½ years of his sentence. I refer in this regard to what was said by King CJ in R v Wilton:
"The correct approach to the sentencing of these co-offenders was for the sentencing Judge to consider first the length of the sentence of imprisonment which was appropriate to each offender. In doing so it was relevant to consider, among other things, the proper proportion which the sentences should bear to one another in the light of the respective degrees of culpability of the co-offenders and their respective circumstances. Having determined the length of the sentences, the learned Judge ought to have applied his mind to the offenders individually and ought to have considered in relation to each offender whether he was of the opinion that, having regard to the matters mentioned in the section or any of them, it was expedient to suspend the sentence. In that latter process considerations of disparity have no part."[4]
This was the approach followed by her Honour in this case.
[4](1981) 28 SASR 362 at 367. This passage was cited with approval by Eames JA in R v McConkey (No. 2) [2004] VSCA 26 at [34]. Buchanan JA and Smith AJA agreed with Eames JA.
Unlike the first appellant, neither Mr Ho nor Ms Luu had any prior convictions. As Mr Trapnell submitted, at the respective ages of 51 and 45 years, the fact of previous good character was a significant mitigating factor in their cases. Her Honour was entitled to give them a "last chance" of avoiding imprisonment by wholly suspending their sentences. This was particularly the case where her Honour found that there were good prospects of rehabilitation of each of these offenders. The same could not be said of the first appellant. Moreover, at the plea hearing, the Crown had accepted that it was open to her Honour to wholly suspend any sentence of imprisonment of these two offenders and Ms Phan.
Under the third and final ground of appeal (ground 1), it was submitted that the individual sentences on counts 1 and 3, the total effective sentence and the non-parole period were manifestly excessive. I do not agree. All of the mitigating factors relied on by the first appellant, the early pleas of guilty, the first appellant's admissions to police, the low level of his involvement in a small amount of trafficking, the fact that his offending arose out of addiction to heroin, his limited role in the cultivation of a small amount of cannabis, the fact that his prior convictions stemmed from his heroin addiction and the need to take into account totality in sentencing, were all referred to by the learned judge in her sentencing remarks. In the circumstances of this case, I consider that the individual sentences imposed, the total effective sentence and the non-parole period were within the range of a sound discretionary sentence.
In my opinion, therefore, the first appellant's appeal should be dismissed.
I turn then to consider the appeal of the second appellant, Michael Trung Van Tien. Again, only three grounds of appeal were relied on by counsel on behalf of the second appellant. I will deal with them in the order in which they were argued.
Ground 2 was that the learned sentencing judge erred in failing to have sufficient regard to the second appellant's youth. Mr Simon accepted that the learned sentencing judge had referred to the second appellant's youth in her sentencing remarks. He also accepted that, in the appropriate case, the principles relating to youth and rehabilitation, as set out in R v Mills,[5] have to give way to other considerations such as specific and general deterrence. He submitted, however, that the second appellant's criminal history was not such that it could displace rehabilitation as a very important sentencing consideration. Given the low level of the second appellant's offending, his unfortunate upbringing and his prospects of rehabilitation as demonstrated by his stable employment for some 12 months, it was submitted that the individual sentences and the total effective sentence imposed demonstrated that the principles relating to youth and rehabilitation had been relegated to an unjustifiable degree.
[5][1998] 4 VR 235 at 241 per Batt JA, with whom Phillips CJ and Charles JA agreed.
Mr Trapnell referred to the following passage from the judgment of Batt JA in R v Bell:
"As regards youth, I would add - and this is relevant also to the ground of manifest excessiveness - that it seems necessary to state again that the general propositions accepted in R v Mills [1998] 4 VR 235 at 241 are just that - general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstances, including, it is to be noted, the circumstances of the offence as well as those of the offender. Youth cannot in all cases keep an offender from gaol. In this case, the applicant was not a first offender. … The case is therefore one where, subject to any particular considerations, besides rehabilitation general deterrence and specific deterrence must bulk large in informing a sound discretionary determination."[6]
He submitted that the learned judge gave prominence to the second appellant's youthfulness in her sentencing remarks and that her Honour was entitled to take a cautious view of his prospects for rehabilitation given his addiction to heroin, his past offending and his breaching previous dispositions aimed at his rehabilitation. Mr Trapnell further submitted that it was relevant to both the second appellant's prospects for rehabilitation and the importance of specific deterrence that the present offending was committed whilst he was on a community based order. He submitted that the offences were clearly serious and that general deterrence and denunciation were relevant sentencing considerations.
[6][1999] VSCA 223.
Having carefully considered everything said by Mr Simon in respect of this ground, much of which engenders sympathy for the second appellant's circumstances, I have concluded that it has not been demonstrated that the individual sentences imposed and the total effective sentence were outside the range open to her Honour in the particular circumstances of this youthful offender.
Ground 1 was that the learned sentencing judge erred in imposing a sentence on the appellant for the count of trafficking that gave rise to a justifiable sense of grievance, when that sentence was compared to those imposed on the co-offenders. Again, this is a parity argument but, this time, it was based on a comparison of the second appellant's sentence for trafficking with those imposed on all three co-offenders, Mr Ho, Ms Luu and Ms Phan.
Ms Phan was, like the second appellant, a heroin user. The amount of heroin involved was 74 grams, a similar quantity to the first appellant. She was sentenced to 2 years wholly suspended for 2 years. Her Honour accepted that she was essentially trafficking in small amounts of heroin for her own use.
Mr Simon relied on three matters which he submitted favoured the second appellant in comparison to the co-offenders. They were his youth, his lesser role and his addiction. He acknowledged, however, that there were matters, such as the prior criminal history and the additional offending, which counted against the second appellant.
The lesser role of the second appellant in the trafficking of heroin was acknowledged by the Crown during the plea. It was said that he was at the bottom of the hierarchy of all of the co-offenders. Obviously, the amount involved was significantly less. The second appellant's youth and addiction were both referred to and taken into account by her Honour in her sentencing remarks. But once again there was, as her Honour said at [29], "the need to specifically deter you from re-offending where previous dispositions have clearly failed to do so." Nevertheless, as Mr Trapnell submitted, the three co-offenders were given significantly higher sentences for trafficking heroin than the second appellant received – Mr Ho's and Ms Luu's 30 months and Ms Phan's 24 months compared to the second appellant's 18 months. For the reasons previously given in respect of his father's appeal, the second appellant cannot complain about the fact that the co-offenders' sentences were wholly suspended. Given his prior convictions, the conclusion by the learned sentencing judge that this option was no longer open in respect of the second appellant was a view that her Honour was plainly entitled to take. I therefore consider that this ground of appeal fails.
The second appellant's final ground of appeal was ground 5. This ground was that the learned sentencing judge erred in imposing a sentence on the count of cultivation which was not sufficiently disparate to that imposed on his father. The relevant comparison was, of course, between the sentence of 12 months imposed on the second appellant for cultivation of cannabis and the 18 month sentence imposed on the first appellant.
Mr Simon emphasised all of the differences between the two offenders – their ages, their respective roles, their prior histories and their prospects for rehabilitation. He argued that the second appellant was only involved as a result of his assisting his father. As previously mentioned, her Honour noted the second appellant was more involved in the cultivation than he initially maintained. On the other hand, her Honour also recorded in her sentencing remarks that the evidence was that the profits of sale were to be shared between the Dangs and the first appellant, not the second appellant.
Despite the focus of Mr Simon's submissions on the situation of the second appellant, caught up in his heroin addicted father's offending, I cannot conclude that, in the circumstances, the difference in the sentences imposed on the two appellants for the cultivation offence demonstrated any sentencing error. The second appellant received a sentence one third less than his father. Thus, the sentence imposed by her Honour reflected a clear recognition of the second appellant's tragic circumstances.
This means that, in my opinion, the second appellant's appeal should also be dismissed.
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