R v Tran
[2000] VSCA 95
•15 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 78 of 2000
| THE QUEEN |
| v. |
| THI GHET TRAN |
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JUDGES: | PHILLIPS, C.J., CALLAWAY and CHERNOV, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 15 May 2000 | |
DATE OF JUDGMENT: | 15 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 95 | |
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Criminal law – Sentencing – Trafficking in heroin during operational period of suspended sentence for similar offence – Disadvantaged background – General deterrence – Totality – Sentencing Act 1991, s.31(6)(b).
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr P.A. Coghlan, Q.C. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr D. Grace, Q.C. and Mr R. Melasecca | Melasecca Zayler |
PHILLIPS, C.J.:
I shall ask my brother Callaway to give the first judgment in this matter.
CALLAWAY, J.A.:
The applicant pleaded guilty in the County Court to one count of trafficking in heroin contrary to s.71 of the Drugs, Poisons and Controlled Substances Act 1981. The maximum custodial penalty is 15 years' imprisonment. She admitted one previous conviction in the Magistrates' Court, also for trafficking in heroin, for which she had been sentenced to 12 months' imprisonment wholly suspended for two years on 4th March 1998. The instant offence, which was committed on 15th July 1998, breached the order suspending that sentence, but at the time of the plea the applicant had not been dealt with under s.31 of the Sentencing Act 1991, and that is still the case. On 5th April 2000 the learned County Court judge sentenced her to three years' imprisonment with a non-parole period of 20 months. A declaration was made regarding 15 days' pre-sentence detention and orders were made under the Confiscation Act 1997 and s.464ZF of the Crimes Act 1958.
The applicant seeks leave to appeal against sentence on six grounds, each of which is expressed with some particularity. Accordingly, except for paragraph (iii) of ground 1, which counsel abandoned, I shall set them out in full:[1]
[1]In doing so I shall emend the word “appellant” to read “applicant” in grounds 1, 3 and 5.
"1. That the sentence was manifestly excessive in that:
(i)The sentence imposed was for a single day discrete trafficking;
(ii)having regard to the applicant's subservient and minimal role in the offending under the influence of the main trafficker as described by the informant and accepted by the learned sentencing judge;
…
(iv)the factors taken into account by the learned sentencing judge that:
a)the applicant pleaded guilty at an early stage;
b)the personal circumstances of the applicant make depressing reading;
c)the applicant was the subject of domestic violence of a significant nature;
d)that she may not have been focused on the court process at the time of the suspended sentence being imposed;
(v)the applicant was not an appropriate medium for a deterrent sentence having regards to:
a)her limited education;
b)her limited understanding of the court process;
c)her overall simplicity and lack of sophistication;
d)the need for mercy having regard to her three children aged 20 (at university), aged 10 (at school) and 14 months in her full time care;
e)her limited role in the offending, that she was a mule for the main offender who had absconded;
f)her successful rehabilitation, including acceptance, understanding, employment and independence;
g)the delay in the sentencing confirming her success (covered below);
h)her lack of priors prior to the meeting of the co-offender.
2.That the learned sentencing judge was in error in limiting the cases where an offender is not an appropriate medium for a deterrent sentence to those of mental illness. The court is not limited to situations of extreme mental illness or limited intellect. The court may acknowledge that there are social and educational limitations which may have the same effect.
3.That the learned sentencing judge did not take into sufficient account the time that had passed coming up to the hearing of the plea and in particular:
a)he was in error in attempting to attribute the notion of fault to the question of delay;
b)he did not have sufficient regard to the significant factors that had taken place over this delay in that:
(i)the applicant was 4 months pregnant at the time of the offence, the child had since been born and was 14 months old at the time of sentence;
(ii)there had been considerable counselling of a psychological nature that was progressive and successful;
(iii)the applicant was finally coping not only on her own but for her children;
(iv)there had been no further offending;
(v)the applicant now understood the significance of her offending;
(vi)the applicant had made efforts to assist the police in the locating of the co-offender.
4.That the difference between the head sentence and the minimum term to be served before being eligible for release on parole was insufficient having regards to:
(i)The words expressed by his Honour that this was a case in which mercy should be part of the sentencing process. Although his Honour indicated this, the sentence imposed does not reflect his Honour's stated intentions that the sentence be tempered by relevant matters;
(ii)the need for rehabilitation to take place for a considerable period as expressed by his Honour under the supervision of the Adult Parole Board.
5.That although it was not the role of the sentencing judge to take into account the breach of suspended sentence in the sentencing equation, his Honour should have in his calculations taken judicial notice of the fact that any such sentence is required by the legislation to be cumulative and accordingly the consequences of the applicant's offending would result in a further 12 months being added to his Honour's minimum term unless exceptional circumstances be shown.
6.That the learned sentencing judge should have noted the particular constraints of the Sentencing Act in having the originating court deal with a breach of suspended sentence, created artificial and unreal sentencing limitations which would lead to a sentencing injustice. His Honour, in noting that it was not possible for the learned sentencing judge to take into account the consequences of the breach of suspended sentence and that he was constrained in any event from doing so, should have however taken into account the consequences. His Honour should however have taken significant notice of the consequences and the effect that they would have and in not doing so he fell into error in that:
(i)the learned sentencing judge felt constrained by the prior offending and was in error in rejecting out of hand an intensive correction order. In so doing he was constrained by the factor that this offence had breached a suspended sentence. His Honour should have taken judicial notice of the fact that a sentencing disposition involving an intensive correction order would result in not only the intensive correction order but also a consequent suspended sentence which would have the same effect as the role desired to be played by his Honour by the Adult Parole Board;
(ii)the learned sentencing judge felt again constrained in imposing a further suspended sentence. His Honour in this respect did not take into sufficient account that the maximum period imposed by a suspended sentence of imprisonment could be raised to three years imprisonment. A sentence so imposed would have had the triple effect of achieving all of the factors voiced by the learned sentencing judge in that:
(a)the increase to the maximum available sentence that is able to be suspended would mark deterrence;
(b)it would be a signpost and a significant indicator to a magistrate hearing the consequent breach;
(c)it would allow the learned sentencing judge to put into effect his expression of tempering the sentence by reference to relevant matters and the showing of mercy in the exceptional circumstances of the case."
The circumstances of the offence may be briefly stated. Shortly after midday on 15th July 1998, police saw the applicant get into a motor car parked in the car park of a block of flats in Flemington. She was carrying a bag. They followed her to a nearby hotel, where she was intercepted. The bag was found to contain $11,000 in cash, a bank book and a set of keys. The applicant was taken back to her flat, where a search revealed a silver foil package and a green plastic package each containing white powder. The total quantity was 3.04 grams. Each package was found to contain heroin, which was approximately 50% pure. The trafficable quantity of a substance including heroin under the relevant schedule to the Drugs, Poisons andControlled Substances Act is three grams. Later that day the police searched another flat in the same block of flats. They entered using a key taken from the set of keys located in the applicant's bag. She had arranged some months earlier to rent a room from the tenant of the second flat. The search revealed a number of green plastic bags and some white plastic bags each containing white or off-white compressed powder. The total quantity of that powder was 44.6 grams, of which 37.6 grams were approximately 50% pure, 6.1 grams were 80% pure, 0.2 gram was 90% pure and 0.7 gram was 50% pure. In the rented room the police also found a set of Tanita scales and $3,300 in cash. The total cash found, $14,300, together with the scales, were the subject of a forfeiture order, being one of the orders to which I have earlier referred.
On the occasion in respect of which the applicant received a suspended sentence approximately 13 grams of heroin had been found in her flat.
At the time of the offence with which we are concerned the applicant was pregnant with her fourth child. The father was a man called Tue, for whom the informant accepted that the applicant was a "mule", being an intermediary between Tue and a milk bar which was the retail outlet for the heroin. The evidence against her was her possession of the drugs, cash and scales, but the informant's interpretation of events was referred to without objection on the plea.
The applicant believed that Tue would look after her and took the suspended sentence as confirmation of that belief. It was submitted below, and the submission was repeated before us, that she had little understanding of the nature and effect of the suspended sentence. Dr Lester Walton put the matter this way in his oral evidence on the plea:
" ... I think when she became involved in this drug trafficking the first time around and she was reassured by her then partner that there would be no effective consequences were she to be caught, and of course, to some extent that proved to be true, in the sense that I think she was thinking it was gaol or nothing, and then in her own mind, the fact that she was not incarcerated more or less equated to the fact that she had been acquitted, and though I couldn't say that it would be impossible for her to understand the concept of a suspension of sentence in a very concrete way, at a practical level, a day-to-day level and a meaningful level, I don't think it penetrated her awareness, what she was much more focused upon was what the boyfriend had said and effectively what he said came true."
Similarly, Dr Wong, a psychologist who furnished two reports and gave evidence on the plea, said that the applicant did not seem truly to understand the first sentence imposed on her; she knew that she would not have to go to gaol, which was in effect what Tue had promised her; she believed that he would take care of her; and it was not until she was arrested the second time that she became fully aware of her wrongdoing. Dr Walton agreed that the applicant would have understood that she was in serious trouble when she was arrested for the first offence and would have known that she was breaking the law when she committed the second offence on 15th July 1998. I do not read Dr Wong's evidence as differing from that opinion. Lack of understanding of a suspended sentence may elicit sympathy but, as Mr Coghlan submitted, it is not a mitigating factor that a person believes that she will be protected by a more powerful criminal.
The applicant's background and level of sophistication are important to understand the grounds of appeal. They emerged from the expert evidence to which I have already alluded and were discussed at some length in the learned judge's sentencing remarks. I shall set out some of the relevant portions and paraphrase others. Addressing the applicant, his Honour said:
"I turn to matters which are personal to you. You are now 39 years of age and have lived in Australia since about 1981. You were born in Vietnam and were the youngest of 12 children. Your family lived in a primitive and remote fishing village some 350 km from Ho Chi Minh City. Your schooling was virtually non-existent and you have had very few opportunities in a life which has been harsh for you. You married at the age of 17. This was a marriage which your parents arranged, and that marriage ultimately ended in divorce in Australia. You and your then husband fled Vietnam in 1980 and your experiences as a boat person, and in a Malaysian refugee camp, are graphically detailed in Dr Wong's first psychological report and also in the evidence which he gave during the plea. Your childhood and your years as a teenager, as recorded by Dr Wong, make depressing reading, and I have no reason to doubt the history that you recounted although you did not give evidence during the plea.
Dr Wong detailed your difficulties which you experienced in Australia, difficulties exacerbated by your inability to understand English and learn the language, and by the conduct of your then husband who, when the clothing industry deteriorated, in about 1994, commenced to drink alcohol excessively and he became very physically aggressive and violent towards you. You and your three children separated from your husband and, in time, you filed for divorce. After the separation, according to Dr Wong's report, your living conditions fell below poverty level and, again according to the report, you became involved in gambling at the casino and borrowed money for that purpose. You met Tue at the casino. He befriended you and he became your supplier. To Mr Rochford, counsel for the Office of Public Prosecutions, Dr Wong said that you told him that your gambling debt was in the order of $3500, an amount which you have apparently repaid over the space of about eight months."
His Honour then referred to Dr Walton's opinion that the applicant was not intellectually disabled or psychotic but was a simple person lacking in sophistication who had lived in a very isolated community. (I interpolate that her isolation would have continued in Australia, having regard to her lack of English.) The learned judge said that he agreed with that opinion. He acknowledged that, in a sense, Tue took over the applicant's life. They often lived together in the rented room in the second flat and Tue was her supplier. He has since deserted her. After mentioning the earlier sentence, of which his Honour said this offence appeared to be a replica, the applicant's pregnancy and the birth of her child, then aged about 14 months, his Honour continued:
"You have two daughters, aged about 21 years and 19 years respectively, and a son, 11 years of age. Your sister lives in Thornbury and she was described to me as a single mother with four children. You have resumed work as a sewing machinist, on a casual basis, and it is to your credit that you have not reoffended since you were arrested on this charge. You have also, in addition to repaying your gambling debt, according to Dr Wong, refrained from further gambling. Mr Melasecca [the applicant's solicitor] put you in contact with the Australian-Vietnamese Women's Welfare Association, but I am far from satisfied that you have taken advantage, on any regular basis, of the opportunity to improve your English by attending classes, as was suggested, by that organisation. I accept that your regular consultations with Dr Wong have been beneficial for you. You have not been a user of drugs yourself."
It cannot be said that his Honour failed to consider the applicant's background or her prospects of rehabilitation.
Mr Grace argued the grounds in a practical and compendious fashion, turning first to the topic of manifest excess. He submitted that the learned judge failed to give sufficient weight to the circumstances mentioned in paragraphs (i), (ii) and (iv) of ground 1. Because paragraphs (i) and (iv) speak for themselves, counsel focussed particularly on paragraph (ii), taking us not only to the sentencing remarks but also to the depositions. He emphasised that the applicant was not under surveillance and this was what the informant described as a "one-day hit or miss" offence. I have already mentioned that she speaks no English. The informant said that she needed an interpreter and that, although some persons in like case being interviewed grasp much of what is said to them, the applicant "just didn't understand". Mr Grace emphasised that the applicant was a simple person from a disadvantaged background whose role, he submitted, was limited and entirely subservient.
The next topic counsel addressed was general deterrence. We were taken to Dr Wong's two reports, with a view not only to showing the kind of person the applicant was and her unfortunate background but also her efforts toward rehabilitation, including fifteen counselling sessions with Dr Wong, her cessation of gambling, reduction of medication and positive attitude both to personal relationships and to "starting her life in a positive way again". Those efforts were, counsel implied, all the more creditable having regard to the lack of opportunities the applicant has enjoyed, compounded by the exploitation she suffered at the hands of Tue. Counsel conceded that general deterrence is not excluded in the case of such an offender but submitted that it did not apply in full measure and should not have been given the weight that his Honour gave it. General deterrence should be sensibly moderated, counsel submitted, in the case of a person like the applicant, by analogy with the way in which it is sensibly moderated in the case of serious psychiatric illness and intellectual disablement. Passages were read from R. v. Richards and Gregory[2] and R. v. Kelly[3]. Counsel submitted that similar considerations applied.
[2][1998] 2 V.R. 1 at 9-10.
[3][2000] VSCA 59 at [16-17] and [33].
For my own part I am unpersuaded of the utility of this analogy. I think no more is involved than the truth that, in the sentencing mix, mitigating factors may have greater weight and general deterrence less weight when an applicant's background and present disadvantages are taken into account.
The third topic developed in oral submissions related to the period of 21 months between the applicant's apprehension and the date of sentence. There had been a number of adjournments of the committal proceedings because of her pregnancy, another adjournment to give her an opportunity to assist the authorities in locating Tue, which she was genuinely unable to do, and an adjournment in the County Court between November 1999 and March 2000 because of the absence of an interpreter on the former date. His Honour said that he did not regard the delay as significant, and of course, in itself, in the circumstances I have outlined, it was not. The difficulty, counsel submitted, was that his Honour misapprehended the submission made below under the rubric of delay. It was not that it entitled the applicant to clemency but rather that it had given her the opportunity to engage in a process of rehabilitation and to re-order her life and that she had taken advantage of that opportunity. Accordingly, it was said, his Honour had erred in saying that the delay was not of any real significance.
Finally Mr Grace submitted, as a further branch of the argument on manifest excess, that there should have been a shorter non-parole period relative to the head sentence and that the likely consequences of breach of the order suspending the earlier sentence should have been taken into account.
Counsel below referred to the fact that an application was likely to be made for the applicant's youngest child to be with her in prison but that such applications were not automatically granted; they were considered on their merits and took time to process. By way of information only, Mr Grace told us that the applicant is in prison at Deer Park and that her now 16-month-old daughter has been with her for the last two weeks.
I have already referred to one of Mr Coghlan's submissions. In addition, he submitted that the learned judge had given no more than appropriate weight to general deterrence, had correctly regarded delay as insignificant in itself but had taken account of rehabilitation, had fixed an appropriate non-parole period and had properly left the breach of the order suspending the earlier sentence to the Magistrates' Court. In particular, counsel emphasised the serious nature of the offence, the applicant's previous conviction and the fact that the offence was committed only a few months after leniency had been extended to her. He reminded us of recent statements in this Court concerning the firming up of sentences for trafficking in heroin and like drugs and the emphasis to be given to general deterrence, citing by way of example R. v. Pantsis[4] and R. v. Berisha[5].
[4][1998] VSCA 134, especially at [12].
[5][1999] VSCA 112.
Three principal complaints had emerged from Mr Grace's submissions to which Mr Coghlan was responding. They were, first, that the learned judge had given insufficient weight to mitigatory factors personal to the applicant; secondly, that his Honour had placed too much weight on general deterrence when those factors were borne in mind; and, thirdly, that his Honour had not appreciated that delay was relied on not because of any fault on the part of the prosecuting authorities but as the setting in which the applicant had, as it was said, re-ordered her life.
It was my impression when I read the plea that the learned judge and counsel were to some extent at cross purposes about delay. As I have said, the adjournments had been partly on account of the applicant's pregnancy and partly to see whether she could assist in the apprehension of Tue. This was far removed from a case like R.v. Schwabegger[6], but counsel did not say that it was a case of that kind. His submission focussed on what he called the "rehabilitation process" and the "educational process" in which the applicant had been engaged during the time that had elapsed.
[6][1998] 4 V.R. 649.
So, too, with general deterrence, counsel was not submitting that this was a case like R. v. Anderson[7] or the more recent cases dealing with serious mental illness and intellectual disability, but only, "as a practical submission", that less weight should be given to general deterrence because the applicant was a simple person who had been manipulated.
[7][1981] V.R. 155.
Merely to say that his Honour and counsel were at cross purposes or that the precise purport of counsel's argument was not successfully conveyed is not, however, to identify specific error. The question in the circumstances I have described is whether, as a consequence, it can be said that too little weight was given to the rehabilitation and education to which counsel referred or too much weight to general deterrence in the inevitable sentencing mix. The case is, therefore, one where the applicant must ultimately rely on an allegation of manifest excess particularised by considerations of weight.
Her moral culpability is less than that of a better-educated person willingly participating in a criminal scheme, uninfluenced by a stronger personality. To that extent I am not without sympathy for her and I admire Mr Melasecca's unremitting labours on her behalf, of which there is ample evidence in the appeal book. But to give too much weight to her lack of sophistication and the dominant influence of Tue, or to the plight of her younger children, would be to obscure the seriousness of the offence and the fact that the applicant had, only a few months before, been given a suspended sentence in similar circumstances.
The learned judge was rightly not concerned with the consequences of breach. They are for the Magistrates' Court, where totality will be one of the matters to be taken into account. The magistrate may direct total or partial concurrency, if appropriate, pursuant to s.31(6)(b) of the Sentencing Act. The requirement of "exceptional circumstances which have arisen since the order suspending the sentence was made" mentioned in sub-s.(5A) applies to the question whether to restore the sentence and order the offender to serve it. It does not apply to s.31(6)(b).
To my mind the sentence imposed, including the non-parole period, was clearly within the range and, for the reasons I have endeavoured to explain, specific error is not made out. Because the sentence is clearly within the range, I am not prepared to infer that his Honour failed to give sufficient weight to the applicant's progress whilst on bail or gave too much weight to general deterrence.
I would therefore dismiss the application.
PHILLIPS, C.J.:
I agree with the conclusions expressed by Callaway, J.A. and I would subscribe to his reasons for judgment.
CHERNOV, J.A.:
I also agree that, for the reasons given by Callaway, J.A., the application should be dismissed.
PHILLIPS, C.J.:
The order of the Court is that the application for leave to appeal against sentence of the applicant stands dismissed.
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