Shakhanov v The Queen
[2019] VSCA 38
•6 March 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0069
| DMITRI SHAKHANOV | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 27 February 2019 |
| DATE OF JUDGMENT: | 6 March 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 38 |
| JUDGMENT APPEALED FROM: | [2018] VCC 276 (Judge Mullaly) |
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CRIMINAL LAW – Appeal – Sentence – Parity – Significant drug importation scheme – Appellant attempted to possess 107 kilograms of methylamphetamine – Appellant sentenced to 9 years’ imprisonment with non-parole period of 6 years – One co-offender sentenced to 10 years’ imprisonment with non-parole period of 7 years – Whether lower level of culpability and significantly better mitigating circumstances necessitated larger disparity – Another co-offender sentenced to 7 years’ imprisonment with non-parole period of 4 years – Whether similar offending and mitigating circumstances required the same or similar sentence – Appeal allowed – Appellant resentenced to 8 years’ imprisonment with non-parole period of 5 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Morrissey SC | S Zahr & Associates |
| For the Respondent | Mr P J Doyle | Ms A Pavleka, Commonwealth Director of Public Prosecutions |
PRIEST JA:
For the reasons given by Hargrave JA, whose judgment I have had the considerable advantage of reading in draft, I agree that the appeal should be allowed and that the appellant should be resentenced in the manner proposed by his Honour.
HARGRAVE JA:
The appellant, Dmitri Shakhanov, was one of a group of offenders involved in the attempted importation into Australia of 209.79 kilograms of pure methylamphetamine. A ‘commercial quantity’ of methylamphetamine is 0.75 kilograms. When arrested, Shakhanov had 143 times the commercial quantity of a substituted version of the substance in his possession. If the importation had been successful, the drugs had an estimated street value of between $31.1 million to $107 million.
Shakhanov pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled substance reasonably suspected of having been unlawfully imported, contrary to ss 11.1 and 307.8(1) of the Criminal Code 1995 (Cth). Shakhanov, along with co-offender Andrew Findlay, had been initially charged with attempted trafficking but those charges were withdrawn prior to the committal and the charge of attempted possession was substituted. The same maximum penalty applies to both attempted trafficking and possession offences.[1]
[1]Life imprisonment, or a fine of 7500 penalty units ($1,350,000), or both.
Shakhanov and Findlay conducted their pleas together on 12 December 2017 and were sentenced by a judge of the County Court on 9 March 2018.[2] Shakhanov was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years. Findlay was sentenced to a term of imprisonment of 7 years with a non-parole period of 4 years. Another co-offender, Vu Phi Nguyen, was earlier sentenced by a different judge of the County Court to a term of imprisonment of 10 years with a non-parole period of 7 years.[3] The disparity between these three sentences is the subject of Shakhanov’s appeal.
[2]DPP v Findlay & Shakhanov [2018] VCC 276 (‘Reasons’).
[3]DPP v Nguyen (Unreported, County Court of Victoria, Judge Maidment, 12 April 2017) (‘Nguyen Reasons’). Two co-offenders, An Vi and Raymond Lach, were each sentenced to 13 years’ imprisonment with a non-parole period of 9 years for their roles in the offending: DPP v Lach & Vi [2017] VCC 513 (Judge Maidment). Leave to appeal their sentences, including on the basis of a disparity with the sentence given to Nguyen, was refused: Vi & Lach v Director of Public Prosecutions (Cth) [2017] VSCA 254 (Beach JA) (‘Vi’). Another co-offender, Wei Cong Wong, was found guilty following a jury verdict on 16 August 2018 and was sentenced on 4 October 2018 to 15 years’ imprisonment with a non-parole period of 11 years: DPP v Wong [2018] VCC 1879 (Judge Gaynor).
The attempted importation came to light due to an investigation called Operation Bleue conducted by the Australian Federal Police (‘AFP’) in 2016, after a syndicate transferred $3,850,000 to a bank account in China. The police suspected the money was proceeds from the sale of illicit drugs.
Police surveillance identified a factory in Bayswater North that was regularly attended by suspects. They intercepted three shipping containers addressed to the factory, which had arrived in the Melbourne docks on 20 June 2016. Australian Border Force officials and members of the AFP detected the methylamphetamine, which had a purity of 80 per cent, hidden under a false floor. Over the next several days, AFP investigators substituted the methylamphetamine for rock salt, and reconstructed the false floor so it would not be apparent that the drugs had been intercepted. The containers were then delivered on 29 June 2016 with a surveillance operation in place.
On 30 June 2016, three other co-offenders[4] arrived at the factory and unpacked the substitute drugs into cardboard boxes. That evening, one of the co-offenders drove the van containing about half the substitute drugs to a location and left it unattended, where it was then collected by Nguyen. Nguyen unpacked the boxes and transferred the substitute drugs into various bags, buckets and containers, and then returned the van. Nguyen was subsequently arrested with what would have equated to 91.79 kilograms of pure methylamphetamine.
[4]An Vi, Raymond Lach, and Wei Cong Wong.
The next morning, two of the other co-offenders[5] loaded the remaining substitute drugs into the van and left it at a location. Shakhanov and Findlay, after exchanging text messages and phone calls that morning, met up in Bayswater North. Findlay then drove to another location, met with one of the other co-offenders,[6] then drove to the unattended van. Shakhanov drove to the unattended van separately.
[5]Vi and Lach.
[6]Vi.
At the van, Findlay removed the seven boxes containing the remaining substitute drugs and loaded them in his car. While he was doing this, Shakhanov was in a nearby location watching Findlay load the boxes. They then drove separately to the same location, where the pair unloaded the boxes into a shopping trolley obtained by Shakhanov.
Findlay then drove away from the scene, perhaps to return the borrowed car he was driving. Shakhanov remained at the scene and was soon arrested. Findlay was arrested when he reached his destination. The seven boxes that were handled by Shakhanov and Findlay contained what would have equated to 107.87 kilograms of pure methylamphetamine. Shakhanov was found with a Blackberry in his possession at the time of his arrest — a device used to communicate securely with co-offenders. Findlay did not have a Blackberry.
Ground of appeal
Shakhanov was granted leave to appeal by a judge of this Court.[7]
[7]Shakhanov v The Queen [2018] VSCA 183 (Whelan JA).
There is one ground of appeal, that:
[t]he Learned Trial Judge erred in imposing a sentence which was unacceptably disparate with the sentences imposed upon co-offenders Phi Nguyen and Andrew Findlay.
Shakhanov contends that his sentence of 9 years’ imprisonment (with a non-parole period of 6 years) should have been the same or substantially closer to the 7 years’ imprisonment (with a non-parole period of 4 years) for Findlay, and substantially less than the 10 years’ imprisonment (with a non-parole period of 7 years) for Nguyen.
Applicable legal principles
The legal principles applicable to a complaint of disparity are not in dispute.[8] This Court (Whelan, Santamaria and Beach JJA) in Collins v The Queen summarised the principles in the following terms:
Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[9]
[8]See, eg, Lowe v The Queen (1984) 154 CLR 606, 609–10 (Gibbs CJ), 610–11 (Mason J) (‘Lowe’); Postiglione v The Queen (1997) 189 CLR 295, 301 (Dawson and Gaudron JJ); Green v The Queen (2011) 244 CLR 462, 474–5 [31] (French CJ, Crennan and Kiefel JJ) (‘Green’); Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ); Collins v The Queen [2015] VSCA 106 (‘Collins’); Ryan v The Queen [2016] VSCA 255 (‘Ryan’); Vi [2017] VSCA 254.
[9]Collins [2015] VSCA 106 [23] (citations omitted).
To similar effect is the following summary of the principles by Weinberg, Whelan and Priest JJA in Ryan v The Queen:
As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance that justice has not been done. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, it does not involve judgment about the feelings of the person complaining of disparity. Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be ‘marked’ or ‘manifest’. No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.[10]
[10]Ryan [2016] VSCA 255 [42].
The key question, therefore, is ‘whether it was reasonably open to the judge in the circumstances of the case to differentiate — or fail to differentiate — between the co‑offenders in the way he or she did’.[11] If not, the offender will have a ‘justifiable sense of grievance’ concerning her or his sentence. This test is analogous to the stringent test for establishing manifest excess.[12] While this Court may reduce a sentence that it would not otherwise have considered manifestly excessive in order to avoid an unacceptable disparity,[13] it is not obliged to impose a sentence that is wholly inadequate simply because a co-offender received an excessively lenient sentence.[14]
[11]Hilder v The Queen [2011] VSCA 192 [37].
[12]Ibid [38]; Collins [2015] VSCA 106 [23] (Whelan, Santamaria and Beach JJA).
[13]Green (2011) 244 CLR 462, 474 (French CJ, Crennan and Kiefel JJ), citing Lowe (1984) 154 CLR 606, 609–10 (Gibbs CJ).
[14]See Capper v The Queen (1993) 69 A Crim R 64, 67–73 (Wallwork J), 73–4 (Anderson J); Lowe (1984) 154 CLR 606, 612–14 (Mason J).
In Nguyen v The Queen; Phommalysack v The Queen, this Court summarised the sentencing considerations to be taken into account in drug importation cases of this kind as follows:
1.The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
2.Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court.
3.It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
4.Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
5.Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
6.As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
7.The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
8.The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
9.Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
10.The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.
11.Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
12.Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.[15]
[15]Nguyen v The Queen; Phommalysack v The Queen (2011) 31 VR 673, 681–3 [34] (citations omitted) (‘Phommalysack’), citing R v Nguyen; R v Pham (2010) 205 A Crim R 106. See also Hoang v The Queen [2018] VSCA 86 [34] (Priest and McLeish JJA).
As Nguyen was sentenced first, it is convenient to first refer to the reasons for his sentencing.
Nguyen’s sentencing reasons
Nguyen pleaded guilty to a charge of attempting to traffick a commercial quantity of a controlled drug, and was sentenced by Judge Maidment in the County Court on 12 April 2017 to 10 years’ imprisonment with a non-parole period of 7 years.
The judge first noted Nguyen’s prior conviction in January 2008 for trafficking in heroin and dealing with property suspected to be proceeds of crime, for which he received a 12-month community based order.[16] The judge later noted that this prior conviction was ‘relevant’, although ‘was clearly very much less serious than this offending conduct’ and ‘was essentially borne out of an addiction that [he] then had to heroin and that [he] was trafficking substantially to support [his] own habit’.[17]
[16]Nguyen Reasons [1].
[17]Ibid [9].
The judge found that Nguyen had a good upbringing ‘in a good family with siblings who have obviously done well in their respective career paths and a family with a very strong work ethic as well as a supporting and loving environment…[and that Nguyen] had every opportunity in life’.[18]
[18]Ibid [11].
Notwithstanding the difficulty of a court attempting to characterise the role of an offender in a drug enterprise,[19] the judge made the following findings about Nguyen’s role:
[19]See Phommalysack (2011) 31 VR 673, 681 [34](2).
(1) Nguyen was not proven to be an ‘organiser’ or ‘investor’ in the scheme,[20] but his role was not ‘at the low end of the scale in terms of seriousness’.[21] The judge found that Nguyen’s role, while ‘very significantly lower than that of a principal’, was ‘a vital role for which a good deal of trust was imposed in [him]’ and was ‘clearly an important part of this very significant operation’.[22]
(2) Nguyen was recruited to participate in the criminal enterprise ‘not less than several months prior to the importation taking place’.[23] He participated in the enterprise at ‘at least four weeks prior’ to the arrest, and knew in advance it involved significant quantities of methylamphetamine.[24]
(3) Nguyen was in possession of two Blackberry phones at the time of his arrest, ‘at least one of which’ was provided to him for use as part of the criminal enterprise to enable secure communications between co-offenders.[25]
[20]Nguyen Reasons [18].
[21]Ibid [20].
[22]Ibid [20].
[23]Ibid [3].
[24]Ibid [4]–[5].
[25]Ibid [3]. Nguyen stated that the second Blackberry was not his, and was left in the van by a co-offender. The judge made no specific finding on the relevance of the second phone, and did not appear to place any weight on it. It was not argued before us that the two Blackberry phones, compared to the one Blackberry phone in the possession of Shakhanov, carried any comparative significance.
Nguyen claimed that his reward for the crime was to be $20,000. The judge did not accept that the reward was only $20,000, although he was unable on the evidence to determine the precise amount.[26] The judge found that there were no financial pressures which could possibly justify or explain Nguyen’s engagement in the crime, and that ‘[t]his was … an offence that was motivated by greed’.[27]
[26]Ibid [17].
[27]Ibid [12].
The judge did not accept that Nguyen had cooperated with police beyond confessing to the elements of the offence, and instead provided ‘largely self-serving statements to police aimed at minimising [his] involvement and exculpating [his] two brothers’.[28] Nguyen was said to have ‘weaved [his] account falsely around facts [he] knew or believed [he was] stuck with and those that did not implicate [him] more deeply in the offending conduct’.[29] Despite an early plea of guilty (in circumstances where the case against him would appear overwhelming), the judge was ‘not satisfied there is any evidence of genuine contrition or remorse’.[30]
[28]Ibid [6].
[29]Ibid.
[30]Ibid [8].
In Nguyen’s favour, the judge considered his prospects of rehabilitation as ‘at least reasonable, and probably good’.[31]
[31]Ibid [10].
Shakhanov and Findlay’s sentencing reasons
As mentioned above, Shakhanov and Findlay conducted their pleas together, and were sentenced by a different County Court judge on 9 March 2018 — almost one year after the sentence imposed on Nguyen. Shakhanov was sentenced to 9 years’ imprisonment with a non-parole period of 6 years, and Findlay was sentenced to 7 years’ imprisonment with a non-parole period of 4 years.
At the outset, it must be emphasised that the sentencing judge was entirely alive to issues of parity between Nguyen, Shakhanov and Findlay, and dealt with the issues in careful detail. As he noted: ‘[i]n cases of this kind, parity looms large’.[32] Indeed, the judge eventually concluded that consideration of their roles, personal circumstances, and ‘especially the principles of parity’ led him to impose ‘restrained’ sentences.[33]
[32]Reasons [60].
[33]Ibid [76].
The judge’s comparative analysis of the offending of the co-offenders will be dealt with under the relevant headings below. Overall, it is clear that general deterrence was the judge’s primary consideration in both cases. He stated:
I make clear my sentence must contribute to sending an unequivocal message of deterrence. It must be clear that if you are involved or get yourself involved in drug importation, especially in large volumes, then lengthy terms of imprisonment await. Deterrence to others is a principal, if not the principal purpose of the sentence. Deterrence to each of you to a degree is required given the seriousness of the crime, notwithstanding your past good characters.[34]
[34]Ibid [74].
The judge, when addressing Shakhanov and Findlay together, stated:
What is to be understood, that given the nature of the crime and the seriousness of this example of it, matters such as previous good character are of less weight. That said, aspects of your individual circumstances are not overlooked, especially with regard to what prospects each of you have for reform.[35]
[35]Ibid [43].
The judge further stated, while addressing Findlay:
Because of the seriousness of this crime, other sentencing matters mentioned already or set out in s.16A of the Commonwealth Crimes Act must take precedence over matter such as your prospects for rehabilitation.
But nonetheless, those matters are, in my view, positive for you. They weigh in your favour. It is just the actual weight to be given to them in this case is less than other factors tending more to punishment.[36]
[36]Ibid [56]–[57].
While these comments were directed to Findlay, it is clear given his Honour’s other findings that the words equally apply to Shakhanov. I agree with the judge’s view that general deterrence needs to be the primary consideration in matters of this type. However, it cannot entirely swamp the analysis.
The question for this Court is not whether it would have imposed the same sentences on the offenders, but instead whether it was reasonably open to the judge to impose the sentences which he did, given the sentence imposed on Nguyen and all of the circumstances relevant to each offender. If not, then Shakhanov has a ‘justifiable sense of grievance’ and must be resentenced.
Was the sentence given to Shakhanov reasonably open having regard to the sentence given to Findlay?
Shakhanov contends that there was no reasonable basis for the judge to distinguish between himself and Findlay, or alternatively, that there was no basis to distinguish their respective roles in the way that he did.
The plea was conducted by counsel for Findlay on the basis that ‘the differences between Mr Findlay and Mr Shakhanov are relatively minor’. Counsel for the prosecution on the plea addressed issues of parity as between Shakhanov and Findlay, pointing out that two other co-offenders, Vi and Lach, had received the same punishment — 13 years’ imprisonment — notwithstanding some differences in their involvement and circumstances.[37] Counsel submitted:
Your Honour, the Crown would say that they should, that is, Mr Shakhanov and Findlay, as they were clearly acting on a joint basis, be dealt with on a similar joint parity type of basis as between the two of them.
…
And if there is to be any disparity, Your Honour, it's submitted, and I'll develop later, that Shakhanov at least is in the same parity range or category, I should say, as Mr Nguyen.
[37]As earlier mentioned, leave to appeal on the grounds of parity as against each other, and as against Nguyen, was refused.
It is not necessary to set out the comparative personal circumstances of Shakhanov and Findlay, as the judge did not distinguish between them on this basis and it is not contended that he should have. Both Shakhanov and Findlay had either no — or minor — criminal histories,[38] both had difficult upbringings and personal setbacks,[39] both pleaded guilty, both showed genuine remorse and contrition,[40] and both have good prospects of rehabilitation.[41]
[38]Shakhanov had no prior convictions, Findlay had one Magistrates’ Court appearance relating to possession of cannabis which was dealt with by an adjourned undertaking without conviction.
[39]Reasons [46]–[51], [55], [66]–[70].
[40]Ibid [59], [73].
[41]Ibid [48], [56], [71]–[72].
The difference in the sentences that each man received were due to the judge’s different characterisation of their respective roles in the offending. The judge characterised Findlay’s involvement as ‘very much a transportation foot soldier at the lowest and briefest level of involvement and [he was] brought into it by Shakhanov’.[42] He found that Shakhanov was more involved than Findlay and his involvement was ‘akin to the behaviour of Nguyen’.[43]
[42]Ibid [35].
[43]Ibid [37].
The judge summarised the prosecution’s contentions on Shakhanov’s role in the offending as follows:
The prosecution contended that in your case, Mr Shakhanov, you having and using a BlackBerry, the communication device used by others in this enterprise, your organisation of Mr Findlay, your use of gloves at relevant times and the fact that the whole seven boxes were taken by you to be put in your car indicates that you were significantly involved in the enterprise.[44]
[44]Ibid [33].
While the judge did not explicitly accept these contentions, I infer from the sentencing reasons as a whole that they formed the basis for his conclusion as to the roles the two men had in the offending.
Early in his reasons, the judge summarised the text messaging and telephone exchange between Shakhanov and Findlay in some detail. The judge characterised the content of Shakhanov’s messages as ‘most anxious’,[45] compared to the ‘casual or less urgent behaviour’ of Findlay.[46] The judge said he would later return to the significance of these messages in his reasons, but did not do so expressly. However, I infer that the judge placed significant weight on these messages in characterising the respective roles of Shakhanov and Findlay. For that reason, I set the messages out in full below:[47]
[45]Ibid [10].
[46]Ibid [14].
[47]It is not known what was said on any telephone calls.
TIME TYPE SENDER/CALLER MESSAGE 12.09am SMS Shakhanov Plz plz on time 12.13am SMS Findlay I will deff. Just depen on my sister with the car 12.13am SMS Findlay She cut hair at 9:30 in black Rock 12.14am SMS Shakhanov Look just be there plz ill call u in day morning 12.22am SMS Findlay Okay. Night night 9.12am CALL Shakhanov 9.13am SMS Shakhanov Be here time 9.14am SMS Findlay Might have to train if she not back in time 9.14am SMS Findlay I bout to have shower for my smelly balls 9.15am SMS Shakhanov No no no u plz listan get it come ASAP 9.47am CALL Findlay 9.47am SMS Findlay [Findlay’s mobile number] called. No Voicemail message was left. (…) 10.01am SMS Findlay Is there another car? She’s gonna start abusing new 10.02am SMS Findlay Me* 10.42am CALL Shakhanov 10.43am CALL Shakhanov 10.43am CALL Shakhanov 10.43am CALL Shakhanov 10.59am CALL Shakhanov
Shakhanov submitted that any anxiety which is apparent in his messages cannot found an inference of a greater role. I agree. To the extent that the judge relied on the anxiety or urgency in the tone of Shakhanov’s messages, this would not form a safe basis to determine the role of parties in this case.
However, the messages demonstrate a level of deference to Shakhanov which leads to a valid inference that he recruited Findlay, or at least was more of an ‘organiser’ of Findlay’s role. This is fortified by the fact that only Shakhanov had a Blackberry device, the method of communication used between co-offenders, and that Shakhanov observed Findlay unload the boxes in what could be considered to be a supervisory manner.
Considering all of the above factors, it was reasonably open to the judge to characterise the respective roles of Shakhanov and Findlay in the way that he did. That being the case, there is no unacceptable disparity between the sentence imposed upon Shakhanov and that imposed upon Findlay.
I now turn to consider the sentence of Nguyen.
Was the sentence given to Shakhanov reasonably open having regard to the sentence given to Nguyen?
Given his past conviction for drug trafficking, his level of involvement in the importation, his poor post-offence conduct, and the enormous scale of the attempted importation, Nguyen’s sentence of 10 years’ imprisonment with a non-parole period of 7 years appears to be lenient.[48] Moreover, the following factors weigh in favour of the view that Shakhanov’s role, criminality, personal circumstances, and other mitigating factors warranted a significantly lower sentence than that imposed on Nguyen:
[48]There was, however, no appeal against Nguyen’s sentence by the Commonwealth Director of Public Prosecutions on the grounds of manifest inadequacy.
(1) As part of a negotiated plea, Shakhanov pleaded guilty to a charge of attempted possession and the prosecution withdrew the charge of attempted trafficking, principally because Shakhanov did not deal further with the drugs received. It must be noted, however, that both offences carry the same maximum penalty — life imprisonment. While an attempted trafficking charge is objectively more serious than an attempted possession charge, in the circumstances of this case it does not have a significant bearing on the underlying criminality, other than as relevant to point (2) below.
(2) Shakhanov did not open the boxes. Nguyen opened the boxes and divided the substitute drugs into separate containers, suggesting a greater involvement and founding the basis for the more serious charge.
(3) Shakhanov had a clean record, while Nguyen had a prior conviction for heroin trafficking.[49] However, prior good character generally is given less weight in drug importation cases than would otherwise be the case when general deterrence is the principal factor in the sentencing synthesis.[50]
[49]Nguyen’s prior conviction for heroin trafficking bore upon his moral culpability, his prospects of rehabilitation, his dangerous propensity (and the community’s need for protection), and the increased importance of specific deterrence as a factor in imposing sentence upon him: see R v O’Brien and Gloster [1997] 2 VR 714, 718.
[50]Phommalysack (2011) 31 VR 673, 682 [34](10).
(4) Shakhanov has a sympathetic background, growing up in constant fear of his heavily drinking father who was harsh to his mother. His mother left his father when Shakhanov was 12 and Shakhanov grew up in housing commission flats, leaving school at 16. Shakhanov also became blind in one eye at the age of 14.[51] Conversely, Nguyen was brought up in a good family and ‘had every opportunity in life’.[52]
[51]Reasons [38]–[40]. Despite his difficult early life, Shakhanov forged a career as a plasterer, has a stable relationship and a five-year-old son and had many positive references as to his good character.
[52]Nguyen Reasons [11].
(5) Shakhanov’s motivation was due to large financial pressures arising from debts incurred supporting his young family and mother.[53] While this is not necessarily a mitigating factor,[54] it stands in stark contrast to Nguyen’s position. Nguyen was ‘motivated by greed’, and was not under any financial pressures which could explain his engagement in the crime.[55]
[53]Reasons [39], [55].
[54]Phommalysack (2011) 31 VR 673, 682 [34](6); Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, 63–4 [261].
[55]Nguyen Reasons [12].
(6) Most significantly, Nguyen was found to have been recruited to participate in the operation ‘not less than several months prior’, and his participation began ‘at least four weeks prior’.[56] Indeed, on Nguyen’s own account, he met the importer in Hong Kong. No such finding was made against Shakhanov, and the judge explicitly found that Shakhanov’s involvement was less protracted than Nguyen’s.[57]
(7) Shakhanov showed genuine remorse and contrition, whereas Nguyen provided a self-serving and false account of events, and did not show genuine contrition or remorse beyond his plea of guilty.
(8) Nguyen’s plea of guilty came in circumstances where he had seen, handled, and packaged the substitute drugs, making the case against him overwhelmingly strong. Shakhanov’s plea of guilty was in circumstances where he had not opened the boxes. As stated by the judge when addressing the value of Findlay’s guilty plea, but in terms that equally apply to Shakhanov: ‘[t]he prosecution was relieved of proof of your knowledge of the contents of the boxes. No small matter.’[58]
[56]Ibid [3]–[4].
[57]Reasons [63].
[58]Ibid [73].
There is one factor weighing against Shakhanov in comparison with Nguyen. The weight of the drugs in his case was an additional 16 kilograms, itself equating to 21 times the commercial quantity. While this is generally speaking a highly relevant factor,[59] in my view its significance must be considered in light of the fact neither Nguyen nor Shakhanov were involved in the initial splitting of the importation into roughly two halves — Nguyen eventually ending up with roughly 46 per cent and Shakhanov with roughly 54 per cent. I infer that the precise amount that went to each man was likely to have been fortuitous. Nevertheless, it is a factor to which has some weight.
[59]Phommalysack (2011) 31 VR 673, 682 [34](4)–(5).
It is now appropriate to set out in full the judge’s conclusions in terms of parity between Shakhanov and Nguyen:
The principle of parity is part of the bedrock sentencing consideration of consistency.
You should not be left with any justifiable grievance by reason of the sentence I impose on you compared to the sentence I will impose on Mr Findlay and vice versa, and in comparison to the sentence imposed on Vy Nguyen for what was a different crime and to a lesser extent the other men sentenced by Judge Maidment.
The concept to emphasise here is that it must be a justifiable sense of grievance. In my view, the sentence imposed on Nguyen reflected his more protracted role in the criminal enterprise over some many weeks. His efforts at so called assistance to the authorities was seen as merely self-serving and did not warrant any reduction in sentence. He was not seen as contrite or genuinely remorseful beyond his plea of guilty. Judge Maidment, like myself here, could not calculate Mr Nguyen’s likely reward but he did not accept, as I have said, that the amount was as little as the $20,000 proffered by Mr Nguyen.
Of importance was Mr Nguyen’s prior conviction in 2008 for trafficking in heroin, which resulted in a 12 month community-based order. In the end I see some difference between your criminality and the more serious involvement of Mr Nguyen. When they are added to the more subjective circumstances connected to you, compared to him, I conclude there must be a difference and a lower sentence for you than that imposed on Mr Nguyen.[60]
[60]Reasons [61]–[64] (emphasis added).
I agree with the judge’s characterisation that Shakhanov’s involvement in the operation was less serious than that of Nguyen, and that Shakhanov’s personal circumstances were more favourable, requiring a lower sentence. However, the judge went on to say:
The difference cannot lead to me imposing a sentence that is not appropriate to all the circumstances of the crime committed by you as the offender. In my view, the lowest sentence I will announce is what justice requires and not some predetermined, precise percentage of that imposed on by a different judge on a different accused for a different crime. The sentence, in my view, simply applies to principles of parity as best I can do so.[61]
[61]Ibid [65].
I infer from this reasoning that the judge would have imposed a greater difference between the sentences of Shakhanov and Nguyen, but felt constrained by the lenient sentence that Nguyen received. The judge appears to have reasoned that the difference of only one year was justifiable, as any lower sentence for Shakhanov would be inadequate.
Considering the factors set out at [44]–[45] above, and considering the adequacy of any lower sentence in light of Shakhanov’s overall culpability, I am of the opinion that, viewed objectively, Shakhanov has a justifiable sense of grievance engendered by the sentence imposed upon him. Put another way, it was not reasonably open for the judge to sentence Shakhanov in the manner in which he did given the sentence imposed on Nguyen.
Conclusion
The appeal should be allowed. Shakhanov should be re-sentenced to 8 years’ imprisonment with a non-parole period of 5 years. In my view, this sentence adequately balances the consideration of parity between the three co-offenders, maintaining the finding of the judge that Shakhanov’s culpability is greater than that of Findlay, and less than that of Nguyen. While more lenient than may otherwise be the case, it is nevertheless an adequate sentence in all the circumstances.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that had Shakhanov not pleaded guilty to the offence and was found guilty, the sentence would have been 11 years’ imprisonment with a non-parole period of 8 years.
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