R v Tran
[1999] VSCA 161
•8 September 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 10 of 1999
THE QUEEN
v
LUONG DAI TRAN
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JUDGES: BROOKING, TADGELL and CHERNOV, JJ.A. WHERE HELD: MELBOURNE DATE OF HEARING: 8 September 1999 DATE OF JUDGMENT: 8 September 1999 MEDIA NEUTRAL CITATION: [1999] VSCA 161 ---
CRIMINAL LAW - Sentencing - Drug trafficking - Hardship while on remand -
Whether manifestly excessive - Principles - Comparison with sentences in other cases.
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APPEARANCES: Counsel Solicitors For the Crown Ms R.E. Carlin P.C. Wood, Solicitor for
Public ProsecutionsFor the Applicant Mr P.F. Tehan, Q.C. and Douglas Arden Mr G. Hughan BROOKING, J.A.:
Chernov, J.A. will deliver the first judgment.
CHERNOV, J.A.:
On 1 February 1999, the applicant, who is now aged 34 years, pleaded guilty in the County Court at Melbourne to a presentment containing one count of trafficking heroin between 4 May 1998 and 2 July 1998 contrary to s.71(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 ("the Drugs Act"). The maximum penalty for that offence is (and was at the relevant time) 15 years' imprisonment, or a fine not exceeding $100,000, or both. This was the applicant's first conviction on a drug-related, or any other, charge. After hearing a plea in mitigation made on the applicant's behalf, the sentencing judge ordered on 2 February 1999, that he be sentenced to five years and six months' imprisonment with a non-parole period of three years.
Further orders were made by his Honour upon application by the Crown and with the applicant's consent which included, inter alia, a pecuniary penalty order (PPO) against the applicant in the sum of $29,600. Shortly after his arrest, the applicant effected a sale of his premises. Moneys recovered from its sale were held in trust pursuant to the now repealed Crimes (Confiscation of Profits) Act 1986. Since the moneys so seized exceeded the amount of the forfeiture, the relevant order recited directions for its release. Relevantly, the PPO required the payment to the State of the sum of $29,600 with the balance of $5,200 to be paid to the applicant's wife.
The applicant seeks leave to appeal against sentence on grounds which were amended pursuant to leave granted by the Registrar on 2 September 1999. In general terms, the grounds on which the applicant relies are that his Honour failed to take into account in his sentencing considerations, or give sufficient weight to, certain mitigating factors and that the sentence is manifestly excessive.
Before examining the applicant's arguments in support of those grounds, it is convenient to summarise the relevant circumstances surrounding the commission of the trafficking offence. Through an undercover and surveillance operation, police procured wholesale purchases of heroin from the applicant on four occasions between 4 May and 18 June 1998. As a result of three of those purchases, the police acquired four ounces of 80% pure heroin for amounts totalling $29,000. The other sale involved three grams of 40% pure heroin for the sum of $600. An arrangement was made with the applicant for the purchase of a further five ounces of heroin on 2 July 1998 for the agreed price of $29,000. At the meeting when this final transaction was to take place, namely 2 July 1998, the applicant was arrested. A search of his premises conducted immediately after his arrest produced, so far as may be relevant, a set of electronic scales, but no heroin was found. When he was interviewed by the police not long after his arrest, the applicant denied all drug-related allegations put to him. He insisted that he was arrested whilst in the vehicle with a friend and that they were counting money so that they could go to the Crown casino. According to the evidence given at the hearing of the plea in mitigation, the street value of the heroin involved in the trafficking offence, including the 2 July 1998 proposed transaction, was in excess of $100,000.
The material put before his Honour during the plea in mitigation revealed, inter alia, that the applicant was born in Vietnam and arrived in Australia with his wife and their then only child in 1987. He worked hard in this country seeking to provide for his family and in 1993, he started his own clothing manufacturing business in which he worked virtually 14 hours a day, seven days a week. During this period, a second child was born into the family. In about February 1998, the applicant turned to drugs, he claims in order to obtain relief from pressing financial, business and family problems. He started trafficking to support his own habit, the heroin requirements of his friends and, as his Honour found, to support his family financially, although as matters turned out, the latter goal was not achieved.
Turning to the grounds of appeal, the first ground claims that his Honour failed to take into account the fact that the applicant had been assaulted within the prison whilst on remand and that he had not seen his family for approximately five months. It seems that in October 1998, while on remand, the applicant was assaulted by other prisoners and suffered some injuries. Further, because the prison authorities took the view that the applicant's wife had smuggled or sought to smuggle contraband to the applicant, she was banned from visiting him for six months. Consequently, the applicant had not seen his wife and children for some five months before the hearing of the plea in mitigation. It was put on behalf of the applicant, that since his Honour did not refer specifically to those matters in his judgment, he did not take them into account in his sentencing considerations. It was contended that, therefore, his Honour fell into error. From his sentencing remarks, it seems clear that his Honour assumed that the applicant's wife was wrongly deprived of the right to visit the applicant and that this caused a hardship to him during his pre-sentence detention. For present purposes, it can be assumed that the beating to which the applicant was subjected during this period is relevant to sentencing considerations. The real question, however, is whether his Honour took them into account in his sentencing considerations.
It is plain that on the plea in mitigation the applicant's counsel canvassed with his Honour in some detail the assault to which the applicant was subjected by the other prisoners whilst on remand, the injuries arising from it, the need for medical attention and the fact that, as a result, the applicant lived "in fear nearly every minute of the day". This incident provoked the prison authorities to shift him to another prison unit where he was unlikely to be harassed, although he remained separated, apparently, from the unit designated for Vietnamese prisoners. It was further submitted to his Honour that any prison sentence that the applicant served would be "doing it hard". In connection with the assault, counsel for the applicant tendered in evidence letters from the prison authorities which his Honour marked as exhibits. The applicant's counsel also dealt in his submission with the fact that the applicant's wife had been stopped from visiting him for a six-month period, to the detriment of the applicant's wellbeing.
In his sentencing remarks, his Honour acknowledged and said that he had regard to the particular hardship suffered by the applicant whilst in custody. In my view, this is clear in his remark "[Y]ou have been in custody since your arrest and as detailed by counsel it has been time "done hard", as he put it, and this will probably continue". It was submitted by Mr Tehan that this sentence did not reflect recognition by his Honour of the above hardship under which the applicant laboured whilst detained on remand. It was claimed that his Honour was referring in that sentence, to other matters which were put on the plea, such as the placement of the applicant in a unit with very few Vietnamese-speaking prisoners notwithstanding that the applicant could only speak Vietnamese. In my view, however, a fair reading of that sentence in the context of the submissions that were put to his Honour on behalf of the applicant, shows that he did take into account matters "detailed by counsel" which related to the applicant's experience of detention since his arrest. I should make it clear, however, that even if I am wrong in so construing his Honour's sentencing remarks so that it is assumed that he made no mention of the two specific incidents, I would conclude nevertheless that, having regard to the whole of the sentencing remarks, the submissions that were put before him by counsel, his considerable experience as a trial judge and the operation of the presumption of regularity, his Honour did take those incidents into account in sentencing the applicant.
Hence, in my view, ground 1 must fail.
The second ground is concerned with the claim that in his sentencing considerations, his Honour gave insufficient weight to the following matters, namely, the applicant's plea of guilty, his addiction to heroin, the fact that a PPO was made, the applicant's loss of his home and business, his lack of prior convictions and the fact that the applicant was serving his sentence in a non-Vietnamese prison unit. It has not been suggested that his Honour gave those matters no weight in his sentencing considerations; rather, it was submitted that his Honour's error lay in the fact that he did not give them sufficient weight.
In relation to the plea of guilty, Mr Tehan argued, in effect, that had his Honour applied a sentencing discount which properly recognised that plea, the head sentence would have been much less than 5½ years' imprisonment. Put another way, Mr Tehan contended that if an appropriate sentencing discount had in fact been given by his Honour, then the starting sentence to which that discount was applied was excessive. That his Honour gave a sentencing discount on account of the applicant's plea of guilty is clear from his sentencing remarks. There is no fixed formula which his Honour was required to apply in determining the amount of such a sentencing discount; it was a matter of discretion for him. Moreover, in considering this issue, his Honour was entitled to have regard to the fact that the plea may not have been prompted altogether by genuine remorse on the part of the applicant as distinct from a recognition of the inevitable, given the evidence that was available against him from the undercover surveillance operation. His Honour also recognised, as he was entitled to do, that when first interviewed by the police, the applicant not only falsely denied involvement in the offence, but told the police a pack of lies.
In my view, no error of sentencing discretion has been demonstrated in relation to that issue.
As to the other mitigating factors which according to the applicant were not given sufficient weight by his Honour, there is nothing in the sentencing remarks which supports such a claim. All of them were dealt with by his Honour and it is mere assertion to say that his Honour did not give them due weight. I mention that in relation to the applicant's lack of prior convictions, it is well established, and was accepted by Mr Tehan, that this is of less than usual significance in drug offence cases. I also note that the applicant's use of heroin was not the only reason for his engaging in the offence. The other reasons were that he supplied heroin to some of his friends and that he sought thereby to raise money to overcome his financial problems. Thus, the weight to be given to this factor should be determined having regard to the circumstances to which I have just referred. Mr Tehan's real argument was that an inference to the effect contended for was to be drawn from the fact that the sentence is manifestly excessive. In my view, that argument must also fail because, for the reasons that I will give shortly, it is my opinion that the sentence is not manifestly excessive.
It follows from what I have said that in my view ground 2 must also fail.
In support of the contention that the sentence was manifestly excessive, Mr Tehan pointed to R. v. Berisha [1999] VSCA 112, where a sentence of eight years was imposed on Berisha for the offence of trafficking heroin contrary to s.71(1)(a) of the Drugs Act. It was less than one-third of the maximum penalty of 25 years. Mr Tehan sought to draw comfort from the fact that the applicant here pleaded to a less serious offence, yet the sentence under attack was greater than one-third of the maximum penalty. He also pointed to the Court's characterisation in Berisha of the sentence as "severe and ... at or near the top of the appropriate range". I note in passing, however, that the sentence was not considered manifestly excessive by the Court. Nor did the Court consider as manifestly excessive the sentence of 10 years' imprisonment with a non-parole period of 7½ years imposed on each of Berisha's two co-accused, who were convicted after trial. Mr Tehan sought to demonstrate that the position of the applicant in this case was in the relevant sense, better than that of Berisha, who had pleaded guilty to the more serious offence. He argued that, as was the case with Berisha, the applicant had pleaded guilty and had reasonable prospects of rehabilitation, but, unlike Berisha, the applicant here had other significant mitigating personal circumstances such as a good work history, isolation within the prison system and other hardships.
It is trite that in seeking to determine the appropriateness or otherwise of the sentence in one case, little assistance can be gained from examining the sentence or sentences imposed in another or other cases, because each turns on the circumstances peculiar to it. In my view, on a fair reading of Berisha, the circumstances relevant to the imposition of the sentence were materially different from those which apply to the applicant. Moreover, even if one were to undertake the sort of examination that was put forward by Mr Tehan, it is not meaningful to compare only the head sentences imposed in the two cases; the comparison should extend to the sentence as a whole. The non-parole period in Berisha was six years, which was over two-thirds of the head sentence, whereas here, his Honour fixed a lenient non-parole period of three years, which is a little over one-half of the head sentence. In all the circumstances, I consider that it is not helpful to compare the sentence imposed on the applicant in this case with that which was imposed on Berisha for the purpose of determining whether the sentence under attack is manifestly excessive.
In considering that issue, it is to be borne in mind that it is not just a question of whether the Court of Appeal would have imposed a lesser sentence. The question is whether the sentence imposed is within the range of sentences appropriate to the particular offence and the offender. In my view, even if the sentence can be properly characterised as being on the high side, which I do not think is the case, it is nevertheless within the range of sentences available to be imposed.
The offence of trafficking is a serious one, attracting as it does a maximum penalty of imprisonment of 15 years. This Court has pointed out on a number of occasions the harm that is caused to the community by such activity (see, for example, Berisha, per Charles, J.A. at paras.32 and 33; per Tadgell, J.A. at paras.39 and 40 and R. v. Pantsis [1998] VSCA 134, per Tadgell, J.A. at para.12). The extent of trafficking in which the applicant was engaged was substantial. He was in the business of trading in heroin and ceased only because he was arrested. Consequently, specific and general deterrence are important principles which must be applied in determining the appropriate sentence to be imposed. In particular, general deterrence should be given prominence in the sentencing considerations. His Honour obviously had regard to those matters, as he did to the mitigating factors, when performing the difficult task of determining what sentence should be imposed on the applicant.
In my opinion, the head sentence of 5½ years was within the range open to his Honour. Thus, it is my view that the sentence is not manifestly excessive. Consequently, ground 3 must fail.
It follows that, notwithstanding the able arguments advanced by Mr Tehan, I am of the view that for the reasons given, the application should be refused.
BROOKING, J.A.:
I agree.
TADGELL, J.A.:
I also agree.
BROOKING, J.A.:
The application is dismissed.
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