Stanley v The Queen
[2017] VSCA 54
•20 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0011
| STANLEY (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and FERGUSON JJA and BEALE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 October 2016 |
| DATE OF JUDGMENT: | 20 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 54 (First Revision 20 March 2017) |
| JUDGMENT APPEALED FROM: | DPP v [Stanley] (Unreported, County Court of Victoria, Judge Hannan, 11 December 2015) |
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CRIMINAL LAW – Application by offender for leave to appeal against sentence – Applicant received a total effective sentence of nine years and six months’ imprisonment with a minimum term of seven years – Whether total effective sentence, individual sentences and minimum term manifestly excessive – Total effective sentence included a sentence of eight years imprisonment for trafficking in a large commercial quantity of a drug of dependence – Current sentencing practices – Comparable cases – Whether current sentencing practices for trafficking in a large commercial quantity of a drug of dependence are inadequate – Not appropriate in the circumstances to decide that issue – Application refused – Rv Kilic [2016] HCA 48 – Duncan v The Queen [2010] VSCA 92 – Dagher v The Queen [2011] VSCA 119 – Ibrahim v The Queen [2013] VSCA 227 – R v Nguyen, Ngyuen & Pham [2007] VSCA 165 – R v Nguyen [2008] VSCA 141 – R v Nguyen, Dang, Ly & Nguyen [2008] VSCA 235 – Kumar v The Queen [2013] VSCA 191.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Dickinson QC with Mr R Edney | Doogue O’Brien George |
| For the Respondent | Ms F Dalziel | Mr John Cain, Solicitor for Public Prosecutions |
REDLICH JA:
I have had the benefit of reading in draft the reasons of Beale AJA and for the reasons he gives would refuse leave to appeal.
FERGUSON JA:
I agree with Beale AJA.
BEALE AJA:
Introduction
On 11 December 2015, following pleas of guilty, the applicant was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Trafficking in a Drug of Dependence – large commercial quantity [s 71 Drugs, Poisons and Controlled Substances Act 1981] | Life imprisonment [s 71 Drugs, Poisons and Controlled Substances Act 1981] | 8 years | Base |
| 2 | Trafficking in a Drug of Dependence [s 71AC Drugs, Poisons and Controlled Substances Act 1981] | 15 years’ imprisonment [s 71AC Drugs, Poisons and Controlled Substances Act 1981] | 18 months | 8 months |
| 3 | Possession of a drug of dependence [s 73 Drugs, Poisons and Controlled Substances Act 1981] | 5 years’ imprisonment [s 73 Drugs, Poisons and Controlled Substances Act 1981] | 8 months | 3 months |
| 4 | Possession of an Unregistered Category E Longarm [s 6A(3) Firearms Act 1996] | 7 years’ imprisonment [s 6A(3) Firearms Act 1996] | 12 months | 4 months |
| 5 | Possession of an Unregistered Category E Longarm [s 6A(3) Firearms Act 1996] | 7 years’ imprisonment [s 6A(3) Firearms Act 1996] | 12 months | 3 months |
| Summary Charge 8 | Deal with property suspected of being proceeds of crime [s 195 Crimes Act 1958] | 2 years’ imprisonment [s 195 Crimes Act 1958] | 8 months | — |
| Summary charge 11 | Possession of Cartridge Ammunition without licence [s 8 Firearms Act 1996] | 60 penalty units or 12 months’ imprisonment [s 8 Firearms Act 1996] | Convicted and fined $300 | — |
Total Effective Sentence: | 9 years 6 months | |||
Non-Parole Period: | 7 years | |||
| Pre-sentence detention declared declaration pursuant to s 18(1) of the Sentencing Act 1991: | 345 days | |||
| 6AAA Statement: 11 years 6 months with a NPP of 9 years. | ||||
| Other relevant orders: Disposal Order (drugs and paraphernalia); Forfeiture Order (cash); Forfeiture Order (firearms). | ||||
The applicant was refused leave to appeal against sentence by Osborn JA[1] but renewed the application for leave pursuant to s 315(2) of the Criminal Procedure Act 2009.
[1]Stephen Stanley (a Pseudonym) v The Queen, unreported, 20 April 2016.
Proposed Ground of Appeal
There is one proposed ground of appeal:
Ground 1 – The sentences imposed on the charges of trafficking in a large commercial quantity of a drug of dependence, trafficking in a drug of dependence, possession of a drug of dependence and two charges of possession of an unregistered category E longarm firearm and the orders for cumulation:
(i) were manifestly excessive; and
(ii) outside the range of sentences reasonably open in the circumstances of the offence and the offender; and
(iii) resulted in a total effective sentence and non-parole period that was manifestly excessive.
For the reasons that follow, I would refuse leave to appeal.
Background
In refusing the applicant’s initial application for leave to appeal, Osborn JA wrote a detailed summary of the factual background, which I gratefully adopt. That summary reads as follows:
On New Years’ Eve in 2014, the applicant was residing in an apartment in the CBD of Melbourne. At 10:15 am on that day, police executed a search warrant at that apartment. The applicant was present at the time and arrested during the search. Police found a significant amount of various illicit drugs and items commonly associated with drug-dealing. 2.398 kilograms of substances containing methylamphetamine were present. Approximately 2.3 kilograms of this was at a purity of approximately 80% or 90%. There were 21 snap-lock bags that each contained roughly 28 grams of the drug. Other snap-lock bags contained significant quantities of the drug. Other amounts of the drug were stashed in different parts of the apartment.
Additionally, other drugs were on the premises, including smaller quantities of cocaine, namely 13.7 grams of approximately 20% purity (charge 2), and ketamine, ephedrine, butanediol, MDMA and heroin (charge 3, a rolled-up charge).
Two firearms were found in the apartment. One sawn-off shotgun was found in a cupboard in the bedroom (charge 4) together with cartridge ammunition (summary charge 11). A further double barrelled sawn-off shotgun was found behind the couch (charge 5).
$4,150 in cash was in the applicant’s wallet (part of summary charge 8) and $40,000 worth of cash was found within a safe (part of summary charge 8), which safe also contained the applicant’s passport.
Further paraphernalia commonly associated with drug-dealing was in the apartment, including a money-counting device, three mobile telephones, a laptop, various documents, and boxes containing small snap-lock bags.[2]
[2]Ibid [4]–[6].
I note that the quantity of methylamphetamine trafficked was almost two and a half times a large commercial quantity (LCQ) of that drug, that is, one kilogram mixed.[3]
[3]Drug Poisons and Controlled Substances Act 1981, Schedule 11, Part 3, Column 1B.
I also note that the applicant, whose date of birth is 19 July 1991, was 23 at the time of the offending.
Sentencing Reasons
After summarising the circumstances of the offending, the sentencing judge stated in her sentencing reasons that the offending was serious, especially the LCQ trafficking (Charge 1). She described it as ’planned, calculated offending’ As to where Charge One fitted on the spectrum of LCQ trafficking, her Honour referred to two matters — the quantity of the drugs and the duration of the offending, which she noted was limited to a single date ( 31 December 2014) — but she did not express a conclusion.
Her Honour outlined the applicant’s personal history and circumstances. The applicant was born in China, an only child. His father was in the armed services before becoming chairman of a union. His mother was a kindergarten teacher. In his early teens, the applicant came to Australia with his mother to further his education. He failed to complete Year 12. In 2009, the applicant’s visa expired but he remained in Australia. He worked as a butcher and later as a kitchen hand. He lost the kitchen hand job in July 2014. Her Honour remarked ’you were young, without a visa, and without employment and this is the context in which you became involved in this offending.’[4]
[4]DPP v [Stanley] [2015] VCC 1830 (‘Sentencing Reasons’)[17].
Her Honour did not accept that the applicant’s role in the offending was limited to being a ’lab rat’, that is, consuming drugs to test for purity. Instead she found that the applicant was ’an active and trusted participant in the drug activities’[5] although not the principal.
[5]Ibid [19].
Her Honour said that the applicant’s girlfriend’s visa had expired and that his mother’s visa was soon to expire which would leave him without the usual supports in gaol.[6] She accepted that his lack of English had caused him difficulties in gaol, as had lockdowns following the prison riots in the winter of 2015.[7]
[6]Ibid [20].
[7]Ibid [22].
Her Honour did not accept that the applicant had been drug dependent. Whilst she referred to a psychologist having diagnosed the applicant with a stimulant disorder, she said ’there is no objective evidence of use relevant to my sentencing task.’[8]
[8]Ibid [23].
Her Honour however accepted the psychologist’s diagnosis that the applicant had a major depressive disorder and that gaol may be harder for him as a consequence of that disorder in combination with his vulnerability, naivety and impressionability and limited English.
Notwithstanding his plea of guilty prior to committal, her Honour did not find that the applicant was remorseful. She said: ’Contrition is difficult to gauge in circumstances where you were still denying the offending as recently as this month when you were assessed by [the psychologist] and in circumstances where I have not accepted your version of events’ (about merely being a lab rat). [9]
[9]Ibid [26].
Her Honour assessed the applicant’s prospects of rehabilitation as positive.[10] He had no prior convictions and was 24 years of age at the date of sentence, being 11 December 2015.
[10]Ibid [25].
Current sentencing practices
The law in relation to current sentencing practices was recently reviewed by the High Court in Rv Kilic,[11] a case of intentionally causing serious injury (by fire). The High Court said:
Section 5(2)(b) of the Sentencing Act 1991 (Vic) require[s] [courts] to have regard to ’current sentencing practices’. The evident purpose of that requirement is to promote consistency of approach in the sentencing of offenders. Consideration of ’current sentencing practices’ will include, where appropriate, the proper use of information about sentencing patterns for an offence. The requirement of currency recognises that sentencing practices for a particular offence or type of offence may change over time reflecting changes in community attitudes to some forms of offending...
Their Honours in the Court of Appeal observed, correctly, that examination of cases... may provide a relevant ’yardstick’ by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a ’broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle’.[12]
[11]R v Kilic [2016] HCA 48. See also DPP (Cth) v Thomas [2016] VSCA 237 [173]–[176] for a recent and comprehensive summary of the jurisprudence regarding current sentencing practices.
[12]R v Kilic [2016] HCA 48 [21]–[22] (citations omitted).
Charge One — LCQ trafficking
In written submissions, the applicant relied on Dagher v The Queen,[13] Duncan v The Queen[14] and Ibrahim v The Queen[15] as comparable cases.
Dagher v The Queen[16]
[13]Dagher v The Queen [2011] VSCA 119 (‘Dagher’).
[14]Duncan v The Queen [2010] VSCA 92.
[15]Ibrahim v The Queen [2013] VSCA 227.
[16]Dagher [2011] VSCA 119.
Dagher pleaded not guilty but was convicted of trafficking in a LCQ of MDMA (Count One), for which he received a sentence of nine years’ imprisonment. He pleaded guilty to several other offences. He received a total effective sentence of nine years and nine months’ imprisonment with a minimum period of 6 years. In relation to Count One, the amount trafficked was 4.77 kilograms (mixed), almost five times a LCQ of MDMA (1 kilogram mixed). The purity of the drug is not revealed in the judgment. Nor is the duration of the trafficking spelt out but there is reference in the judgment to ’the limited time span of the criminality.’[17]Mitigating circumstances were delay (approximately two years and eight months between arrest and sentence)[18] and drug abuse.[19] Aggravating circumstances were that Dagher, who was 31, had priors for drug offences and was on a suspended sentence for trafficking and other offences at the time of the relevant offence.
Duncan v The Queen[20]
[17]Ibid [42].
[18]The offending occurred in August 2006 and the trial judge passed sentence in April 2009.
[19]Dagher [2011] VSCA 119 [42].
[20]Duncan v The Queen [2010] VSCA 92.
Duncan pleaded guilty to trafficking in a LCQ of MDMA on a single day. The amount of MDMA was 1.561 kilograms. The sentencing judge imposed a sentence of six years imprisonment with a non-parole period of three years for that offence. The sentencing judge also sentenced Duncan on three other charges (Count Two — possess drug of dependence, Count Three — use false documents and Count Four — obtain a financial advantage by deception). He cumulated six months of the sentence on Count Three, making a total effective sentence of six years and six months’ imprisonment and declared a non-parole period of three years. On appeal, the sentence for possessing a small amount of methylamphetamine (2.75 grams) was held to be manifestly excessive but in resentencing Duncan, this Court did not alter the sentence of six years for LCQ trafficking or the total effective sentence or the non-parole period. Relevant sentencing considerations were the sentencing judge’s finding that it was a lower range example of the offence of trafficking in a LCQ, that Duncan did not stand to make much financially out of his involvement, that he pleaded guilty at the earliest possible opportunity, he had no prior convictions, there was delay (arrested July 2005, sentenced April 2008) and he had rehabilitated himself whilst on bail.
Ibrahim v The Queen[21]
[21]Ibrahim v The Queen [2013] VSCA 227.
Ibrahim pleaded guilty to trafficking a LCQ of methylamphetamine on a single day. He was sentenced to eight years’ imprisonment for that offence. The quantity trafficked was 1.3241 kilograms mixed, mostly of street level purity.[22] The offending occurred whilst he was on bail for three counts of trafficking simpliciter, to which he ultimately pleaded guilty and was sentenced to a total effective sentence of five years and four months’ imprisonment with a non-parole period of three years. Ibrahim had no relevant prior convictions. The sentencing judge ordered that five years and eight months be served cumulatively on the sentence imposed earlier for the three counts of trafficking simpliciter, making a total effective sentence of 11 years. A new non parole period of eight years was fixed. Under the ground of manifest excess, ’it was submitted that it was excessively severe to impose such a sentence on an offender aged only 30, who had pleaded guilty, whose offending occurred on one day, whose criminality was at the lower end, was an addict, and who had evidenced remorse’. The Court rejected this submission and found that the sentence of eight years for LCQ trafficking was open.
[22]Ibid [12] — ’Purity ranged from 1.6 per cent to 20 per cent (the majority of the substance was at the lower end for purity — around street level or slightly above)’.
In oral submissions, the applicant relied on a further four cases: R v Nguyen, Nguyen & Pham,[23] R v Nguyen,[24] R v Nguyen, Dang, Ly & Nguyen,[25] and Nguyen & Tran v The Queen.[26]
R v Nguyen, Ngyuen & Pham[27]
[23]R v Nguyen, Ngyuen & Pham [2007] VSCA 165.
[24]R v Nguyen [2008] VSCA 141.
[25]R v Nguyen, Dang, Ly & Nguyen [2008] VSCA 235.
[26]Nguyen & Tran v The Queen [2015] VSCA 76.
[27]R v Nguyen, Ngyuen & Pham [2007] VSCA 165.
Pham and Tam Nguyen pleaded guilty to trafficking in a LCQ of heroin.
Neave JA commented that the offending by both was:
at the lower end of the range for this offence. [Pham, like Tam Nguyen] was essentially an addicted street dealer who dealt in relatively small amounts of heroin.[28]
[28]R v Nguyen, Ngyuen & Pham [2007] VSCA 165, 26.
Pham was sentenced to seven years’ imprisonment with a minimum of four years and six months but, on appeal, that was reduced to five years’ imprisonment with a minimum of three years. Tam Nguyen was sentenced to nine years’ imprisonment with a minimum of six years and six months but, on appeal, that was reduced to six years and two months with a minimum of four years.[29]
[29]There was a handling charge for which he received 6 months’ imprisonment, 2 months of which was made cumulative on the sentence of 6 years’ imprisonment for the trafficking count.
Pham trafficked 2.010 kilograms[30] over 13 months, a LCQ being one kilogram mixed. Mitigating circumstances were that Pham trafficked to fund his own addiction and was only charged with LCQ trafficking because of his admissions as to the quantities, his early guilty plea, his remorse, his lack of prior drug convictions, his only priors being Children’s Court priors which were not serious, his youth (20–21), his good prospects of rehabilitation, that his sole asset — a car given to him by his mother who had since died — had been confiscated, and his difficult upbringing he had a violent alcoholic father, he was a refugee and he commenced using heroin after his mother was diagnosed with cancer. Neave JA, with whom Buchanan and Ashley JJA agreed, considered the original judge’s sentence manifestly excessive but also found specific error (failure to properly take into account confiscation of the car). As mentioned, the Court of Appeal re-sentenced Pham to five years’ imprisonment with a minimum term of three years’ imprisonment.
[30]R v Nguyen, Ngyuen & Pham [2007] VSCA 165, 13. During the oral hearing, the amount trafficked by Pham was miscalculated as approximately kilograms, based on the group trafficking about 14g a day over 10 months (appeal transcript at p21) but the judgment indicates that while the group purchased about 14 grams a day, they used half themselves and sold half.
Tam Nguyen trafficked 1.368 kilograms over 10 months but his role was greater than Pham’s. Aggravating circumstances were that he had prior convictions for drug offences, including six priors for trafficking. Mitigating circumstances were that it was because of his admissions as to quantities that he was charged with LCQ trafficking, he trafficked to fund his own addiction, he entered an early plea of guilty, he was remorseful and he was a youthful offender. As mentioned, the Court of Appeal resentenced Tam Nguyen to a total effective sentence of six years and two months (six years for the LCQ trafficking) with a minimum term of four years’ imprisonment.
It is convenient to mention here that the respondent in the present proceedings submitted that the cases of Pham and Tam Nguyen are distinguishable: they were each a few years younger than the applicant, they were heroin addicts trafficking at street level, and it was only because they made admissions as to quantities that they were charged with trafficking a large commercial quantity. The respondent submitted that they ’provide a clear example of the circumstances in which longer duration offending is capable of being less aggravated, or accompanied by greater mitigation, than single date offending.’”[31]
R v V.T. Nguyen[32]
[31]Respondent’s supplementary submissions, dated 4 November 2016 [7].
[32]R v Nguyen [2008] VSCA 141.
V.T. Nguyen, who was in his late thirties, pleaded guilty to trafficking in a LCQ of heroin over a period of about eight months and was sentenced to seven years’ imprisonment with a minimum period of four years and six months which, on appeal, was reduced to six years and six months’ imprisonment with a minimum term of four years.
His role was that of a distributor for a large scale commercial drug operation. When police raided his home, they found 406 grams of heroin, a cutting agent known as Manitol, a set of electronic scales, a commercial heroin press, $87,200 in cash and $20,000 in Crown Casino chips. Neither the total amount of the heroin trafficked by V.T. Nguyen, or its purity, is stated in the judgment.[33] Aggravating circumstances were that he had prior convictions, including priors for trafficking. Mitigating circumstances were that he trafficked to fund his addiction, there was no evidence of enrichment, he pleaded guilty at the first reasonable opportunity, he was remorseful, he came from a disadvantaged and impoverished background and whilst on bail he had taken steps to rehabilitate himself.
[33]There is a reference to two amounts of heroin totalling 753 grams but that is less than a LCQ mixed.
The respondent in the present proceedings submitted that V.T. Nguyen’s case is distinguishable because he trafficked ’a bare LCQ’,[34] he received ’no benefit beyond servicing his addiction’[35] and he was ’a former child refugee [who was] a long term recovering heroin addict.’[36]
R v Nguyen, Dang, Ly & Nguyen[37]
[34]Respondent’s supplementary submissions dated 4 November 2016 [8].
[35]Ibid.
[36]Ibid.
[37]R v Nguyen, Dang, Ly & Nguyen [2008] VSCA 235.
Dang, Ly and Hai Nguyen pleaded guilty to trafficking in a LCQ of heroin as part of a syndicate. Dang and Ly each trafficked in approximately 12 kilograms of heroin, Hai Nguyen in approximately 4.7 kilograms of heroin. The applicant in the current proceedings submitted that Hai Nguyen was the relevant ’yardstick’.
Hai Nguyen was sentenced to eight years’ imprisonment with a minimum of five years’ imprisonment, which on appeal, was held to be within the range of sentences open to the sentencing judge. The quantity trafficked by Hai (4.7 kilograms) was almost five times a LCQ. The purity was not specified in the sentencing remarks. The duration of the trafficking was approximately seven months. He had what was described as a significant role as an ’intermediary and facilitator’ in the syndicate, and sometimes trafficked at street level himself.
Aggravating circumstances were his 17 prior convictions from four court appearances, including three priors for trafficking heroin and prior prison sentences which had failed to deter him.
Mitigating circumstances were his youth, his emotional dependence on his step mother Dang (who was a co-offender higher up in the syndicate), his early plea of guilty, his remorse, the fact that he offended mainly to fund his drug addiction, the delay of four years between arrest and sentence, the fact that he abstained from drugs during those four years and the fact that there was no subsequent offending whilst on bail.
The respondent in the present proceedings submitted that Hai Nguyen’s case was distinguishable from the applicant’s case because he was a long term heroin addict, he offended at age 21 ’under the influence of leading co-offenders who included his stepmother Dang upon whom he was emotionally dependent’[38] and he had achieved ’significant rehabilitation during the four year delay.’[39]
Nguyen & Tran v The Queen[40]
[38]Respondent’s supplementary submissions dated 4 November 2016, [10].
[39]Respondent’s supplementary submissions dated 4 November 2016 [10].
[40]Nguyen & Tran v The Queen [2015] VSCA 76.
Tran and Nguyen both pleaded not guilty but were convicted of trafficking in a LCQ of heroin. The amount trafficked over a period of three months was 1.8 kilograms. Tran, the principal offender, was sentenced to eight years’ imprisonment with a minimum of five years and six months. Nguyen was sentenced to five years and six months’ imprisonment with a minimum of three years and nine months. Tran appealed against conviction and sentence, Nguyen conviction only. The appeals were dismissed.
As regards roles, Tran was the principal and Nguyen was her confidant. Nguyen acted as an intermediary with Tran’s suppliers. Nguyen both received, and passed on, messages on behalf of Tran, and at her direction assisted with transactions to purchase heroin. Nguyen also assisted in raising of funds to buy substantial quantities of heroin, and held the proceeds of sale on Tran’s behalf. Nguyen also accompanied Tran, and sometimes drove her, to a number of different locations as part of his general involvement in the business of trafficking.
Aggravating circumstances were the fact that it was Giretti trafficking and there was no remorse. Mitigating circumstances were that Tran was a mature woman with no prior convictions, there was delay, and she had stood trial twice on other matters and been acquitted.
Submissions
Based on these seven cases, the applicant submitted that a head sentence of six years’ imprisonment would be about the upper limit for his LCQ trafficking.
The applicant placed particular reliance on Dagher. In written submissions, the applicant said that ’Dagher illuminates that something has gone wrong with the sentencing of the applicant.’[41]
[41]Applicant’s Written Case [6].
It will be recalled that Dagher pleaded not guilty, trafficked almost five times a LCQ, had prior convictions for drug offences and was on a suspended sentence at the time of the relevant offence. The sentence Dagher received for LCQ trafficking was only one year more than the sentence the applicant received. The minimum term for Dagher (six years) was one year less than what the applicant received.
The respondent submitted that trafficking on a single day can be more serious than trafficking over an extended period:
A person who has in possession for sale, at a single point in time, a quantity of drug more than double the applicable LCQ threshold is involved in the business of trafficking at a higher level than a person who over the course of multiple transactions over many days accumulates and surpasses that threshold. The first is a large scale business with the capability of trafficking multiples of a LCQ on a given day, the second a small or medium sized business which does not have that capability.[42]
[42]Respondent’s supplementary submissions, dated 4 November 2016 [3].
The respondent submitted that the applicant’s offending was a mid-range example of LCQ trafficking. In relation to the alleged comparable cases, the respondent submitted that:
The conduct described in [R v Nguyen, Nguyen & Pham [2007] VSCA 165] can be categorised as lower level offending, whereas the offending by Hai Nguyen, Loan Thi Tran, Duncan, Dagher and Ibrahim together with the applicant, are examples of mid-range offending.
If those characterisations are accepted, these four cases confirm that the applicant…was sentenced in accordance with current sentencing practice, and that his sentence is not manifestly excessive.[43]
[43]Respondent’s supplementary submissions, dated 4 November 2016 [18]–[19].
In reply, the applicant submitted that the respondent’s submissions:
[f]ail to appreciate the significance of a between dates charge which is laid on a Giretti basis… Thus the cases referred to by the applicant by their nature involve significant (sic) greater criminality than offending on a single date. As Ormiston J said at p140 [of Giretti]:
[F]or there must be, and is a vast difference between a conviction which relates to the carrying on of a trade in drugs for a sixteen month or even a three months period and one which related to a single transaction , over even two or three transactions of sale, purchase, delivery or receipt of drugs…[44]
Analysis re Charge One
[44]Applicant’s further written submissions, dated 29 November 2016 [1], [4].
In Kumar v The Queen,[45] Maxwell ACJ stated:
[T]he ground of manifest excess is very difficult to establish. It involves demonstrating to the satisfaction of this Court that it was not reasonably open to the sentencing judge, taking all relevant matters into account, to impose the sentence in question on the particular offender for the particular offending. That is a stringent test, founded on the basic principle that sentencing is for judges and magistrates at first instance and not for the Court of Appeal. We intervene only where something is shown to have gone clearly or badly wrong.[46]
[45][2013] VSCA 191.
[46]Ibid [24] (citations omitted).
Although the applicant’s trafficking was limited to a single day, it was not a low range example of the offence. Having regard to the quantity and purity of the methylamphetamine[47] and her Honour’s unimpugned finding that the applicant’s role in the venture was a significant one, the objective seriousness of the offending falls in the mid-range. It was not street level trafficking by any means.
[47]Almost two and half times a LCQ, most of which was between 80 to 90% pure.
Despite the existence of significant mitigating considerations — the plea of guilty prior to committal, the absence of priors and the applicant’s relative youth (23 at the time of the offending) — a sentence of eight years’ imprisonment for a mid-range example of this offence does not initially strike one as outside the range of sentences open to her Honour, remembering that the maximum penalty for LCQ trafficking is life.
Nor is one is driven to the conclusion that something went ’clearly or badly wrong’ with the exercise of her Honour’s sentencing discretion when one turns to current sentencing practices for LCQ trafficking, and in particular the cases relied on by the applicant. Some of the cases suggest that the sentence imposed by her Honour was a stern one but that is not tantamount to a sentence that was manifestly excessive.
The cases relied on by the applicant involve sentences for LCQ trafficking ranging from five years’[48] to nine years’ imprisonment.[49] A sentence of eight years’ imprisonment is hardly an outlier.
[48]R v Nguyen, Dang, Ly & Nguyen [2008] VSCA 235.
[49]Dagher [2011] VSCA 119.
As previously mentioned, the applicant placed particular reliance on Dagher. Certainly, Dagher only received one more year of imprisonment than the applicant in circumstances where he had trafficked almost five times a LCQ and pleaded not guilty. Further, he had prior convictions for drug offences and was on a suspended sentence for drug trafficking when he engaged in LCQ trafficking. But in rejecting Dagher’s appeal against sentence, the Court of Appeal said that the sentence imposed on him was ’far from being manifestly excessive.’[50] In other words, the Court was of the view that that the sentence imposed on him was not at the upper end of the appropriate range.
[50]Ibid [46].
Even if it is accepted that Dagher’s offending was worse than the applicant’s and was attended by more circumstances of aggravation, her Honour was not obliged to treat the applicant as if he was Dagher’s co-offender. In other words, she was not obliged by the parity principle to impose a sentence on the applicant considerably less than that imposed on Dagher. Considerations of parity inform the application of current sentencing practices but they do not constrain sentencers in unrelated cases to the same extent as sentences imposed on co-offenders.
In two comparable but unrelated cases, one judge may be inclined to impose a sentence at the bottom end of the range. The other judge may take a different view. Provided the second judge does not exceed the upper end of the range of sentences open to him or her, he or she can impose a significantly heavier sentence. The sentencing discretion has not miscarried in either case. The applicant’s submission that ’Dagher illuminates that something has gone wrong with the sentencing of the applicant’ takes too narrow a view of the discretion reposed in a sentencing judge. Sentences are not precedents. No one sentence is correct: there is always a range of sentences open. Dagher does not establish that the applicant’s sentence was manifestly excessive.
Like the applicant, Tran, Ibrahim and Hai Nguyen received sentences of eight years’ imprisonment for LCQ trafficking. Of these three cases, Tran provides the most support for the applicant’s argument, even though the Court of Appeal said that the sentence of eight years’ imprisonment with a minimum term of five years and six months was ’clearly within range.’[51] Tran engaged in Giretti trafficking over a three month period and pleaded not guilty. The amount of heroin trafficked by her was 1.8 times a LCQ. She was not an addict. Much of the profits from her trafficking went on gambling, which was not a mitigating circumstance. But for the same reasons given above regarding Dagher’s case, Tran’s case does not establish that the sentence imposed on the applicant exceeded the range of sentences open to her Honour.
[51]Nguyen & Tran v The Queen [2015] VSCA 76 [67].
As for Ibrahim, he trafficked significantly less than the applicant (1.3 times a LCQ), the drug was mostly of low purity and he was an addict. Even though Ibrahim was on bail for trafficking offences at the time of the relevant offence, and was subsequently convicted of those offences, he fell to be sentenced on the main charge as an offender with no prior convictions. His case does not suggest that the applicant’s sentence was outside the range. On the contrary, it suggests it was well within range.
Hai Nguyen, who was a couple of years younger than the applicant at the time of his offending, trafficked over a period of seven months and trafficked almost five times a LCQ. He also had a significant criminal history but these aggravating circumstances were offset to some extent by the fact that he offended mainly to fund his own addiction, there was a long delay of four years between arrest and sentence and he was under the negative influence of his drug trafficking stepmother on whom he was found to be emotionally dependent. The sentence of eight years’ imprisonment given to Hai Nguyen for LCQ trafficking does not mean that the applicant should have received less.
Leaving to one side for the moment the matters mentioned in [53] above, those allegedly comparable cases where the offenders received sentences of significantly less than eight years’ imprisonment — Pham (five years), Tam Nguyen (six years) Duncan (six years ) and V.T. Nguyen (six years and six months) — are, as the respondent contended, distinguishable on the basis that there were significant mitigating circumstances which are not present in the applicant’s case.
Charge 2 – Trafficking in a drug of dependence
Charge 2 related to the 13.7 grams of cocaine, which was approximately 20 per cent pure. This was more than four times a trafficable quantity of cocaine, which is three grams mixed. A commercial quantity of cocaine is 500 grams mixed. The maximum penalty for trafficking in a drug of dependence is 15 years’ imprisonment. The applicant received a sentence of 18 months’ imprisonment (that is, only 10 per cent of the maximum) of which eight months was made cumulative on the base sentence imposed on Charge 1. Neither the sentence or the order for cumulation were outside the range open to her Honour.
Charge 3 – Possession of a drug of dependence
Charge 3 related to the possession of the remaining drugs found in the apartment occupied by the applicant, namely ketamine, ephedrine, butanediol, MDMA and heroin. It was a rolled up count. The maximum penalty for possession of a drug of dependence is five years’ imprisonment. The applicant received a sentence of eight months’ imprisonment (that is, only 13 per cent of the maximum), of which three months was made cumulative. Neither the sentence nor the order for cumulation were outside the range open to her Honour.
Charge 4 and 5– Possession of an unregistered category E longarm
Charges 4 and 5 related to the two sawn off shot guns. The maximum penalty for each offence is seven years’ imprisonment. On Charge 4, the applicant received 12 months’ imprisonment, (that is, approximately 14 per cent of the maximum) of which four months were made cumulative and on Charge 5, he received 12 months’ imprisonment, of which three months were made cumulative. Given the fact that both guns had been modified, and were possessed in connection with commercial drug trafficking, both sentences and the orders for cumulation were well within range.
In summary, the individual sentences and the orders for cumulation were, in my view, appropriate.
Whether current sentencing practices adequate for LCQ trafficking
As mentioned above, in oral argument the applicant relied on several cases not referred to in his written submissions, namely R v Nguyen, Nguyen & Pham; [52] R v Nguyen; [53] R v Nguyen, Dang, Ly & Nguyen; [54] and Nguyen & Tran v The Queen. [55] Accordingly, this Court permitted the respondent to file and serve additional written submissions dealing with these cases. It also invited the respondent to address in its further written submissions the adequacy of current sentencing practices for LCQ trafficking. The respondent took up this invitation, devoting the second part of its supplementary written submissions to this topic and including a copy of written submissions filed by the respondent in R v Gregory (a pseudoynm)[56] dealing with the related issue of whether current sentencing practices for trafficking in a commercial quantity of a drug of dependence are inadequate. The oral hearing for Gregory was conducted on 4 November 2016 before Maxwell P, Redlich and Beach JJA. Judgment is reserved.
[52]R v Nguyen, Ngyuen & Pham [2007] VSCA 165.
[53]R v Nguyen [2008] VSCA 141.
[54]R v Nguyen, Dang, Ly & Nguyen [2008] VSCA 235.
[55]Nguyen & Tran v The Queen [2015] VSCA 76.
[56]Case No. S APCR 2015 0254, currently under consideration by the Court of Appeal (‘Gregory’).
The applicant’s further written submission in response did not deal at all with the alleged inadequacy of current sentencing practices for trafficking in a LCQ. It is far from ideal to tackle this important issue in the absence of a contradictor, and in circumstances where it is not necessary to decide the issue. Whether current sentencing practices for LCQ trafficking are inadequate is also linked to whether current sentencing practices for commercial quantity (CQ) trafficking are inadequate, a matter under consideration in Gregory. If this Court in Gregory determines that current sentencing practices for CQ trafficking are inadequate, this may have a knock on effect. Given these considerations, and my conclusion that the applicant’s sentence for LCQ trafficking was not manifestly excessive based on current sentencing practices, I am of the view that it is inappropriate in the present case to determine whether current sentencing practices for LCQ trafficking are inadequate.
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