R v Tran - [2017] SASCFC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN
[2017] SASCFC 60
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Stanley)
31 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - DEALING AND DISTRIBUTION OF DRUGS - TRAFFICKING OR SALE AND SUPPLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ACTS INTENDED TO CAUSE OR CAUSING DANGER TO LIFE OR BODILY HARM OR SERIOUS INJURY - SENTENCE
Application for permission to appeal against two sentences imposed by two different District Court Judges.
On 16 December 2011 the applicant was sentenced for trafficking in a large commercial quantity of a controlled drug. At that time the applicant was already serving a life sentence for murder with a non-parole period of 22 years. The sentencing Judge, Rice DCJ, imposed a head sentence of nine years imprisonment to be served concurrently with the life sentence for murder and extended the non-parole period to 26 years.
On 19 December 2012 the applicant was sentenced for one count of recklessly causing serious harm to imprisonment for six years and 10 months to be served concurrently with the life sentence for murder and the trafficking sentence. The sentencing Judge, Davey DCJ, extended the parole period to 30 years and six months.
The applicant complains that the non-parole period is manifestly excessive and that both sentencing Judges erred in accumulating each of the non-parole periods on the non-parole periods previously imposed. Upon hearing of the application the applicant contended that neither of the sentencing Judges had adequate regard to the principle of totality in sentencing him.
The appeal is out of time by a period exceeding four years. The applicant applies for an extension of time to file the notices of appeal and contends that due to his withdrawal from illicit drugs, he was too depressed and shocked at the time of the original sentences to instruct his lawyers to appeal.
Held per Kelly J (Vanstone and Stanley JJ agreeing) refusing permission to appeal:
1.       The non-parole period of 30 years and six months ultimately imposed is, when all of the circumstances are taken into account, properly proportionate to the criminality of the applicant’s offending as a whole.
2.       Both of the learned sentencing Judges appropriately applied the principle of totality at the respective stages for which they were required to sentence the applicant.
3.       The application for an extension of time within which to file the notices of appeal is refused as the applicant has not proffered any adequate explanation for the delay.
Criminal Law (Sentencing) Act 1988 (SA) s 32A, referred to.
Police v Warren [2000] SASC 285; Postiglione v The Queen (1997) 189 CLR 295; R v Fyfe [2004] SASC 391, applied.
R v Copeland (No 2) (2010) 108 SASR 398; R v Cramp (2010) 106 SASR 304; R v Smoker (2016) 126 SASR 201; The Queen v Rossi (1998) 142 LSJS 451, considered.

R v TRAN
[2017] SASCFC 60
Court of Criminal Appeal: Vanstone, Kelly and Stanley JJ

VANSTONE J: I agree that the applications for an extension of time within which to appeal should be refused. I agree with the reasons of Kelly J.
KELLY J: The applicant, Ngoc Thai Tran, applies for permission to appeal against two sentences imposed by two different District Court Judges on 16 December 2011 and 19 December 2012 respectively.
On 16 December 2011 Rice DCJ sentenced the applicant for one offence of trafficking in a large commercial quantity of a controlled drug, namely methylamphetamine. At that time the applicant was already serving a life sentence for murder with a non-parole period of 22 years. The learned sentencing Judge imposed a head sentence of nine years imprisonment to be served concurrently with the life sentence for murder and reviewed and extended the non-parole period by four years, making a total of 26 years.
On 19 December 2012 Davey DCJ sentenced the applicant for one count of recklessly causing serious harm to imprisonment for six years and 10 months to be served concurrently with the life sentence for murder and the trafficking sentence. The learned sentencing Judge reviewed and extended the non-parole period by four years and six months, making a total non-parole period of 30 years and six months.
The applicant contends that the non-parole period is manifestly excessive and that both Judges erred; Rice DCJ by accumulating the non-parole period on the non-parole period of 22 years imposed by David J for the offences of murder and trafficking in a controlled drug and Davey DCJ by accumulating the non‑parole period she imposed on the non-parole periods imposed by both David J and Rice DCJ.
The appeal is out of time by a period exceeding four years. The applicant applies for an extension of time within which to file the notices of appeal up to and including 3 March 2017.
A single Judge referred the question of permission to appeal and the application for an extension of time within which to file the notices of appeal to this Court.
Background
The four offences in respect of which the applicant was sentenced were committed between April and June 2008. On 1 April 2008 he committed the first offence of trafficking in a controlled drug for which he was ultimately sentenced by David J at the same time as he was sentenced for the murder of Paulo Miranda committed on 3 May 2008. The circumstances relating to the murder are particularly grave. The applicant, together with others, formed a plan to cause Mr Miranda grievous bodily harm which resulted in his death. There was no remorse or contrition shown by any of the participants, including the applicant. David J concluded that the applicant knew where the body of Mr Miranda could be found and gave no assistance to the authorities as to where it may be located. David J found it was a calculated, premeditated and brutal attack on Mr Miranda which led to his death. It was committed in the course of the applicant’s deep involvement with the illicit drug trade at a time when he was heavily involved in both dealing and using drugs. The drugs involved in the trafficking offence on 1 April 2008 were worth between $43,000 and $44,000.
The offence of trafficking in a large commercial quantity of methylamphetamine for which the applicant was sentenced by Rice DCJ on 16 December 2011 was committed on 19 June 2008. The sentencing Judge found that the applicant was a leader and organiser toward the top of the scale for offences of trafficking in a large commercial quantity of the drug. The methylamphetamine the subject of this charge was of high quality and worth between $500,000 and $1 million depending on how it was sold. The applicant pleaded guilty to this offence on the first day of his trial.
The offence of recklessly causing serious harm was committed on 3 June 2008. The circumstances of this offence were also very grave. It was committed only one month after the murder of Mr Miranda. At that time the applicant was still involved in dealing in drugs and, like Mr Miranda, the victim of the offence was said to have owed a debt to the applicant. The offending against the victim was part of a deliberate exercise in enforcement attached to the business of the illicit drug trafficking in which the applicant was then heavily involved. The victim suffered catastrophic injuries which left him permanently partially paralysed on the right side of his body and with significant brain damage. He requires ongoing care and will never work again.
The chronology of court appearances and events occurring after the applicant’s arrest in June 2008 is relevant to his application for an extension of time.
The applicant was arrested and taken into custody on 27 June 2008 in relation to the violent offence committed on 3 June 2008. He was then arrested for the murder of Mr Miranda whilst in custody on 9 October 2008 and formally remanded in custody on that matter from the next day, namely 10 October 2008.
For the offence of violence, namely recklessly causing serious harm for which he was ultimately sentenced by Davey DCJ on 19 December 2012, the first trial commenced on 7 December 2010. The jury returned a verdict of guilty on the charge of aggravated recklessly causing serious harm. On 22 December 2010 the applicant filed a notice of appeal against that conviction. On 7 June 2011 the Court of Criminal Appeal allowed his appeal and sent the matter back for retrial.
When the matter came on for trial on 10 December 2012 the applicant pleaded guilty to the lesser offence of recklessly causing serious harm.
For the offence of murder committed on 3 May 2008 the applicant stood trial in the Supreme Court on 7 February 2011. A jury returned a verdict of guilty on 31 March 2011. The applicant then pleaded guilty to the offence of trafficking in a controlled drug on 14 April 2011. On 21 April 2011 the applicant filed a notice of appeal against the murder conviction. Later, by notice dated 16 May 2011 and filed in the Court on 27 May 2011, he abandoned that application.
On 22 August 2011, the morning of the date the trafficking in a large commercial quantity of methylamphetamine charge was set for trial, the applicant pleaded guilty.
In sentencing the applicant for that offence the sentencing Judge said:
As for you Ngoc Tran, I have taken into account the matters referred to by Justice David in his sentencing remarks for the murder and drug trafficking offences. You are now aged 27 years. You also have a significant drug addiction. You came to Adelaide to get away from the drug culture in Sydney but, after some time here, you fell into drugs again. You have a number of prior convictions for offences mainly in New South Wales, many of them breaking and entering and dishonesty offences. You have previously served short periods of imprisonment. As mentioned previously, your situation is quite unusual because you are serving a life sentence with a non-parole period of 22 years from 10 October, 2008. You have about 19 years to go at present. As things presently stand, you might be released when you are aged 46 years. On that basis, about half of your life will have been spent in gaol. You will be a different man than you are now when you are eventually released on parole. I should not extend your non-parole period by such an amount such that it would be crushing upon you.
…
Ngoc Tran, you are going to serve a long time in gaol in any event. I have reduced what would otherwise have been a greater extension of your non-parole period having regard to what the law refers to as totality. In other words, I have to have regard to the fact that you are going to serve a huge period of time in custody in any event and I have increased your non-parole period by four years.
When it came time to sentence the applicant for the earlier offence of recklessly causing serious harm, the second sentencing Judge noted the sentencing remarks of both David J and Rice DCJ in relation to the murder and drug trafficking offences. She said that she would not declare the applicant to be a serious repeat offender in light of “your existing very lengthy sentence”. She then observed:
I have regard to all of the circumstances including your plea, personal circumstances, your age and particularly the fact that you already face a very substantial term of imprisonment. I also have had very specific regard to the remarks at paragraph 103 in the matter of R v Copeland (No.2).[1]
…
In arriving at the head sentence and the extension of the non-parole period I have had particular regard to your existing sentence. The sentence that you already face, and the non-parole period as extended, could be said to be crushing. You are a young person and you will spend most of the rest of your life in prison. I have had regard to all of the circumstances before me, including the very serious permanent injuries occasioned to the victim and the circumstances in which you inflicted them. In my view, this matter requires the extension of the non-parole period, as I have ordered, notwithstanding that it may be said that the total sentence is severe.
Her Honour then imposed a sentence of six years and 10 months imprisonment and extended the non-parole period by four years and six months.
[1] (2010) 108 SASR 398 at [103].
Arguments on appeal
The principal argument put by counsel for the applicant in support of the application for permission to appeal was that insufficient regard was paid by both District Court Judges to the application of the principle of totality resulting in the applicant ultimately receiving a non-parole period which is crushing.
Counsel for the applicant contended that as all of the offences committed by the applicant occurred over a relatively short period of time between April and June 2008, the sentencing Judges, when applying the totality principle, should have considered what sentence and non-parole period would have been appropriate had the same judge sentenced the applicant for all of the offences. It was contended that in failing to do so, a total non-parole period has been imposed which is manifestly excessive. Counsel for the applicant also contended that the Judge’s statement in the final sentence of her sentencing remarks – that the circumstances required an extension of the non-parole period – was indicative of error.
Consideration
In my view there are three reasons why permission to extend the time within which to appeal should be refused in this matter.
First, the non-parole period of 30 years and six months ultimately imposed is, when all of the circumstances are taken into account, properly proportionate to the criminality of the applicant’s offending as a whole.
Second, on any view of the matter both District Court Judges properly acknowledged and applied what is described as the principle of totality when imposing the respective sentences for the trafficking offence and the offence of recklessly causing serious harm.
Finally, the applicant has not proffered any adequate explanation for the delay in filing a notice of appeal for a period of well in excess of four years since the date the last sentence was imposed.
The principle of totality
I turn now to deal with the complaint that neither District Court Judge properly applied the principle of totality.
A succinct and clear explanation of what is commonly referred to as the principle of totality is to be found in the often quoted remarks of King CJ in The Queen v Rossi:[2]
There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect.
[2] (1988) 142 LSJS 451 at 453.
It is not a routine step to be followed in every case. However, where an offender is to be sentenced for multiple offences it is sometimes necessary for a court to take a last look at the totality of the sentences to determine if it is, in all of the circumstances, so crushing as to require amelioration. What is required is an evaluation of the overall criminality involved in all of the offending for which the offender is to be sentenced. There must be an appropriate relativity between the totality of the criminality and the totality of the sentences.[3]
[3] Postiglione v The Queen (1997) 189 CLR 295 per McHugh J at 308.
In R v Cramp[4] Kourakis J (as he then was) observed:
It does not follow, therefore, that a reduction will always be necessary where cumulative sentences are imposed. In some cases the persistent offending may require greater punishment and for that reason too no downward reduction will be necessary after conducting the overall review. The application of the totality principle cannot be allowed to lead to a position where, in effect, offenders receive a “bulk discount”. All that is required is that the sentencing judge considers whether the sum of the sentences imposed is disproportionate to the criminality of the underlying offences. If the individual sentences have been framed so that the accumulation does not result in any disproportion, there need not be any reduction.
[footnote omitted]
Finally, as this Court observed in R v Smoker,[5] it follows that the extension of mercy where an overall sentence is not disproportionate to the overall criminality of the conduct, will be a rare occurrence.
[4] (2010) 106 SASR 304 at [61].
[5] (2016) 126 SASR 201 per Lovell and Hinton JJ at [85].
Here the applicant submits that although both District Court Judges purported to apply the principle of totality, neither in fact gave sufficient weight to the principle, resulting in a sentence of 30 years and six months, which it is submitted is manifestly excessive for such a young man.
That submission again directs attention to the criminality of all of the offending for which the applicant was sentenced.
The applicant’s offending in each case was indeed grave. The offence of murder was committed in the course of the applicant’s business of high-level drug dealing and demonstrated that he was prepared to and did use lethal force in the furtherance of his business. There has not been, nor could there be, any complaint about the non-parole period of 22 years imposed by David J for the offence of murder and the earlier trafficking offence in April 2008.
However, although the victim of the second offence of violence on 3 June 2008 did not die, the circumstances in which the applicant committed that offence were equally as serious as the murder of Mr Miranda a month earlier. The applicant was still deeply involved in the trafficking of drugs and the injuries were inflicted as part of the applicant’s enforcement of the payment of debts in the business of trading drugs. The victim suffered catastrophic injuries which left him with permanent partial paralysis and significant brain damage.
Standing alone it is difficult to see how that offence could have attracted a head sentence of less than 10 years, let alone a non-parole period as low as four years and six months absent the application of the principle of totality. In my view the only way the head sentence of six years and 10 months and the non‑parole period of 4 years and six months imposed by the District Court Judge is explicable is if the Judge did take into account the totality principle.
The same observation applies to the sentence for the trafficking offence. This offence was a serious example of trafficking in a substantial quantity of methylamphetamine, the purity of which was 44 per cent with a value of up to $1 million. The low non-parole period of four years imposed can only be understood if it is accepted that the Judge did take into account the principle of totality when sentencing.
It is obvious on the face of their sentencing remarks that both District Court Judges were acutely conscious of the need to ameliorate the sentence to be imposed in light of the pre-existing non-parole period of 22 years.
In this context it is important not to lose sight of the fact that the Parliament has imposed a minimum mandatory non-parole period of 20 years for the crime of murder. The Parliament has made it plain that the non-parole period for the crime of murder is not to be reduced or undermined in any way except in the limited circumstances set out in s 32A of the Criminal Law (Sentencing) Act 1988 (SA).

By these remarks I am not suggesting that the Court should not have taken into account the fact that the applicant was serving a mandatory minimum non-parole period, in this case, of 22 years. That was plainly part of the personal circumstances of the applicant and the main reason why the task confronting both District Court Judges on sentence was complicated. However, there must be a limit to the extent to which subsequent sentences can be ameliorated by reference to the totality principle in cases where an offender is serving the bulk of a substantial period of imprisonment as a consequence of the imposition of a mandatory minimum sentence. In each case there must be an appropriate balance struck.
Indeed, as Kourakis J (as he then was) pointed out in R v Copeland (No 2),[6] in a passage to which the second District Court Judge explicitly adverted when sentencing, the need for a reduction in these circumstances is precisely because the severity of the term of imprisonment increases exponentially as it increases in length.
[6] (2010) 108 SASR 398 at [103].
However, even though the task for both District Court Judges was a difficult one in the circumstances, I consider that each approached their task with evident care and in imposing low non-parole periods for the offences for which each was sentencing, ultimately did strike the right balance.
As to the complaint about the use of the expression “requires” by Davey DCJ in the context of explaining to the applicant why she extended the non-parole period by four years and six months, I do not consider that it was anything other than an acknowledgement by the Judge that, even though the principle of totality justified some reduction, the applicant would nevertheless ultimately receive a severe sentence. In my view her Honour was using the word requires interchangeably with the word “warrants”. It is also significant that the impugned sentence came at the end of her sentencing remarks, after she had explained in some detail why she imposed the sentence she did.
To the extent that the applicant is now in the position where he must serve an additional eight years and six months as a consequence of the two further offences for which he was sentenced, that is necessarily a consequence of his decision to commit four very grave offences, each of which standing alone would have attracted substantially higher non-parole periods.
I turn now to consider the issue of whether the applicant should be given an extension of time within which to file the notices of appeal.
The Court has the power to extend time for the filing of the notice of appeal. However, in this case it is necessary to look carefully at the principles which govern any such application.
It is well established that the Court will consider the length of the delay, the reasons for the delay and whether the prospective appeal is viable or not. When examining the reasons for delay an applicant has an obligation to explain the reasons with frankness and candour and there must be some material advanced upon which the Court can exercise its discretion. The longer the delay, obviously the more exceptional or substantial the explanation for it will need to be.[7]
[7] R v Fyfe [2004] SASC 391 per Doyle CJ (with whom Perry and Vanstone JJ agreed) at [10]; Police v Warren [2000] SASC 285 per Gray J at [16].
In this case the applicant has sworn an affidavit on 7 March 2017 in which he claims to have been too depressed and shocked at the time of the original sentence to instruct his lawyers to appeal. He does not dispute that he was legally represented throughout all of the court matters that he has been involved in since 2008. He claims that it took him a number of years after being remanded in custody to be truly rid of the effect of the drugs to which he was addicted and he was only recently able to comprehend the sentences that were imposed.
The suggestion implicit in the applicant’s affidavit that the applicant was medically unfit due to his withdrawal from illicit drugs for a period of well over four years is not supported by any medical report. The suggestion that he was unable to instruct his lawyers stands in stark contrast to the fact that he did in fact instruct lawyers to appeal his convictions for murder and for the offence of aggravated recklessly causing serious harm. The applicant continued to be represented by competent and experienced solicitors and counsel throughout that period.
It is now four years and five months since the last sentence was imposed by the District Court Judge on 19 December 2012. There has been a very substantial delay which, in my view, is not adequately explained by the applicant’s affidavit. For the reasons I have given I consider that the submission made by the applicant is contradicted by other evidence.
In any event, having considered the proposed appeals, for the reasons I have given I consider they have little merit. Both District Court Judges in my view appropriately applied the principle of totality at the respective stages for which they were required to sentence and in the end imposed sentences which are proportionate to the overall criminality of the applicant’s conduct.
For these reasons, I would not grant the applicant permission to appeal or an extension of time within which to file the notices of appeal.
STANLEY J: I agree with the orders proposed by Kelly J and her reasons.