Thi Thuy Tam Tran v The Queen
[2022] VSCA 45
•1 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0259
THI THUY TAM TRAN Applicant v THE QUEEN Respondent ---
JUDGES: MAXWELL P and PRIEST JA WHERE HELD: MELBOURNE DATE OF HEARING: 28 January 2022 DATE OF JUDGMENT: 1 April 2022 MEDIUM NEUTRAL CITATION: [2022] VSCA 45 JUDGMENT APPEALED FROM: [2020] VCC 1631 (Judge Cahill) ---
CRIMINAL LAW – Appeal – Sentence – Trafficking in commercial quantity of heroin – 1.56 times commercial quantity threshold – Sentenced to 10 years and 6 months’ imprisonment with 7 year non-parole period – Whether manifestly excessive – Whether parity principle infringed – Co-offender trafficked greater quantity over longer period – Co-offender given lower head sentence and non-parole period – Sentencing differential reasonably open –Sentence within range – Leave to appeal refused – Criminal Code 1995 (Cth) ss 302.2(1) and 311.2(1).
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APPEARANCES: Counsel Solicitors For the Applicant Ms C Dwyer Giorgianni & Liang Lawyers For the Respondent Ms K Breckweg Ms A Pavleka, Solicitor for Public Prosecutions (Cth) MAXWELL P
PRIEST JA:1 The applicant, who is known as ‘Lina Tran’, pleaded guilty in the County Court on 9 September 2020 to one charge of trafficking in a commercial quantity of a controlled drug.[1] The charge encompassed four transactions involving packages of heroin. The applicant was sentenced on the basis that she trafficked in at least 2,340 grams of heroin, which is 1.56 times the commercial quantity threshold.
[1]Contrary to ss 302.2(1) and 311.2(1) of the Criminal Code (Cth).
2 On 9 October 2020 the applicant was sentenced to 10 years and 6 months’ imprisonment with a 7-year non-parole period, as set out in the table below.[2]
[2]DPP (Cth) v Tran [2020] VCC 1631 (Judge Cahill) (‘Sentencing Remarks’).
Charge on indictment
Offence
Maximum
Sentence
7
Trafficking a commercial quantity of a controlled drug
Life imprisonment
10 years and 6 months’ imprisonment
Non-parole period
7 years
Pre-sentence declaration
634 days
Section 6AAA declaration
13 years and 6 months’ imprisonment with a non-parole period of 9 years and 6 months
3 The applicant now seeks leave to appeal against that sentence on two grounds, expressed as follows:
Ground 1: In all the circumstances, the head sentence and non-parole period imposed upon the Applicant and the head [sentence] and non-parole period imposed upon the co-offender Zainal, give rise to a justifiable sense of grievance.
Ground 2: When regard is had to the following:
·an accurate characterisation of the Applicant’s role;
·the Applicant’s plea of guilty and the stage at which it was entered;
·the increased burden of imprisonment on the Applicant;
·the Applicant’s prospects for rehabilitation;
·the Applicant’s conduct in custody; and,
·the Applicant’s remorse;
the head sentence and non-parole period are manifestly excessive.
4 For reasons which follow, we would refuse leave to appeal.
Factual background
5 At the time of the offending, the applicant was aged 47. She was born in Vietnam and migrated to Australia in 1992. She was involved in an international drug trafficking syndicate, the primary business of which was importing heroin into Australia. She was charged with collecting, transporting and delivering packages (referred to as ‘tickets’) of heroin. She acted under the direction and supervision of Michelle Tran, who was the Melbourne-based head of the syndicate.
2 October 2018 — first ‘ticket’
6 As mentioned, the single charge of commercial quantity trafficking embraces four separate transactions, taking place between 2 and 24 October 2018. On 2 October the applicant went to a city hotel to collect the first ‘ticket’ from Hana Zainal, a citizen of Malaysia and flight attendant employed by Malindo Air. Zainal was in possession of a package of heroin weighing approximately one kilogram, which she had imported from Malaysia that morning. After arriving at the hotel with Michelle Tran, the applicant carried a paper bag, evidently containing cash, to the level 1 toilets, where Zainal was waiting with a green bag containing the heroin. The applicant and Zainal exchanged the bags.
3 October 2018 — ‘sample’
7 The next day, the applicant went to a restaurant with Michelle Tran and Kha Tien Ngo, a heroin dealer and member of the syndicate ‘of significant standing’. There they met with ‘CO Tony’, an undercover operative posing as a potential buyer of heroin. It was agreed that CO Tony would purchase a one-ounce sample of heroin from Michelle Tran, who said that the sample came from the package of heroin she had received the day before.
8 Michelle Tran told the applicant to walk to the nearby home of a co-offender to retrieve the sample, which the applicant did. The applicant returned to the restaurant and placed the sample inside an empty cigarette packet handed to her by Michelle Tran. This cigarette packet containing the heroin sample was then walked outside and handed to another undercover operative, ‘CO James’, who was waiting in a car nearby. The sample was later confirmed to weigh 26.7 grams and to contain 20.1 grams of pure heroin.
10 October 2018 — second ‘ticket’
9 On 10 October 2018, the applicant went with Michelle Tran to the same hotel, where she again met with Zainal in the level 1 toilets. She collected a package of heroin from Zainal which the latter had imported that morning. The package weighed 1041.4 grams. The applicant and Michelle Tran then travelled with the heroin to a café. It had been agreed with CO James that the heroin would be exchanged there for $195,000. A further $5,000 would be collected for the one-ounce sample. Using codewords, Michelle Tran instructed Ngo over the phone to alert CO James to their arrival. At the café, at Michelle Tran’s instruction, the applicant handed CO James the package of heroin and took possession from him of a bag containing $200,000 in cash. The package was later confirmed to weigh 1041.4 grams and to contain 750.8 grams of pure heroin. The applicant and Michelle Tran then travelled by car back to the hotel where Zainal was staying. The applicant went inside the hotel with the bag of cash while Michelle Tran waited in the car. The applicant returned to the car soon after.
24 October 2018 — third ‘ticket’
10 On 21 October the applicant again went with Michelle Tran and Ngo to meet with CO Tony. Using codewords, arrangements were made for the purchase by CO Tony of two further ‘tickets’, or packages of heroin, which were to arrive in Melbourne on 24 October.
11 Zainal arrived in Melbourne as part of the cabin crew of a Malindo Air flight on 24 October. She was carrying a 1,056.7 gram package of heroin. An audio-visual surveillance device had been installed in Zainal’s room at the same hotel where she had previously met with the applicant. Surveillance footage captured her removing three packages from her underwear, unwrapping them and placing them in a bag.
12 At 9:10 am the applicant travelled with Michelle Tran to the hotel. They again went to the level 1 toilets. An audio-visual surveillance device had also been installed in those toilets. Surveillance footage showed the applicant and Michelle Tran enter the toilets, followed soon after by Zainal. The applicant and Zainal entered a cubicle and Zainal gave the applicant the bag she had filled with heroin.
13 The applicant and Michelle Tran left the hotel and took a taxi to the location Michelle Tran had arranged to meet CO James. The applicant got out of the taxi and stood on the footpath while Michelle Tran called Ngo and told him to ask for the door of the location to be opened. Ngo called CO James and told him, using a codename, that Michelle Tran had arrived. The applicant went to the front door while Michelle Tran waited on the footpath a short distance away. CO James opened the front door and invited both women inside. Michelle Tran declined to enter the premises and directed the applicant to do so, which the applicant did. Inside, the applicant took the heroin out of her handbag. The package weighed 1056.7 grams and contained 840 grams of pure heroin. She took $195,000 in cash from CO James. After counting it and placing it in her handbag, she left the premises, rejoining Michelle Tran in the taxi outside.
14 The applicant and Michelle Tran then returned to the hotel. The applicant met with Zainal in the level 1 toilets and gave her $155,000 in cash.
Arrest and police interview
15 Michelle Tran was arrested on 8 January 2019. The applicant was arrested on 14 January 2019. The mobile phone she had been using was subscribed in a false name and appeared to have been reset to factory settings. In her record of interview the applicant initially denied any involvement in drug trafficking. She said that Michelle Tran was a friend of hers and that she was aware of her arrest but had not been aware of her drug trafficking activities. The applicant denied assisting Michelle Tran in the drug trafficking business and said that she had never discussed drugs with her.
16 When asked about the hotel where she had met with Zainal, the applicant initially said she had never heard of it. She denied having attended that hotel on 10 October 2018 and receiving heroin from Zainal. Eventually, after being told about the undercover operatives and being shown photographs of her at the hotel, she admitted her involvement in the drug trafficking enterprise. She admitted that she had been paid $3,000 for each of the transactions she participated in, but subsequently resiled from that admission.
17 The applicant indicated an intention to plead guilty to the charge of trafficking a commercial quantity of a controlled drug at a committal mention on 18 November 2019.
The plea hearing
18 On the plea, the applicant’s counsel conceded that a term of imprisonment with a non-parole period was the only appropriate sentence in her case. She submitted, however, that the offending was ‘a low-level example’ of commercial quantity trafficking, in view of the following mitigating factors:
The applicant’s role in the trafficking enterprise was ‘limited’. The applicant assisted only in the movement of drugs and cash (as opposed to their distribution and sale) and was always accompanied by Michelle Tran, under whose direction and supervision she acted at all times. This, it was submitted, indicated that the applicant had ‘no independent role’ in the hierarchy, and was not trusted to hold such a role. The role she held was inessential, even ‘superfluous’. In oral submissions, the applicant’s counsel submitted that the applicant was more like a ‘porter’ than a courier.
The applicant was involved in trafficking a relatively small quantity of drugs.
The applicant’s involvement was confined to a limited period: three weeks. She ceased her involvement voluntarily in October 2018, after which Michelle Tran continued to import heroin without the applicant’s involvement.
The applicant’s offending was not financially motivated. It was submitted that the applicant had been motivated by her friendship with Michelle Tran and a feeling of indebtedness to her due to support, assistance and small monetary gifts Michelle Tran had previously provided. The applicant’s admission in her police interview that she had been paid $3,000 for each transaction was said to have been untrue. The applicant, her counsel suggested, made that admission under pressure, in a state of confusion, and because she wished to tell police ‘what they wanted to hear’.
19 The applicant’s personal circumstances were put before the Court. They relevantly included:
The applicant was born into difficult financial circumstances, and left school after the equivalent of Year 11 in order to marry. The marriage lasted only three years.
She is close with her family, who are supportive. Her parents, devout Buddhists who reside in Vietnam, are in ill health. This, it was submitted, would add to the applicant’s burden of imprisonment, given she may be unable to see them again.
She has a daughter, Vy, born in July 2009 who has no relationship with her biological father. Vy is presently cared for by a friend of the applicant, who lives in Sydney. A letter from the friend was tendered, attesting to the applicant’s good character and speaking of the adverse impact on Vy’s mental health of her mother’s absence. Vy had been seeing a counsellor since the applicant’s incarceration, a letter from whom was also tendered. While it was not submitted that the hardship caused to the applicant’s daughter rose to the level of exceptional circumstances, it was suggested that it demonstrated a reduced need for specific deterrence, good prospects for rehabilitation and an increased burden of imprisonment.
The applicant’s employment history in Australia consisted largely of intermittent casual work. Her most recent work was in 2016, cleaning offices, and she was receiving Centrelink benefits before her arrest.
The applicant has some history of drug use, which began following her witnessing a violent incident in her public housing flat in 2004. She subsequently experienced post-traumatic stress symptoms, which she self-medicated with heroin. After seeking help from a GP she relapsed but ceased when she became pregnant in 2008. After giving birth, she was on suboxone until 2010. Since that time she has used heroin occasionally before her arrest for the current offending.
The applicant admitted only a limited criminal history, comprising several convictions in 2005 for drug-related offending arising from a single incident in which her car was searched by authorities. For this offending, she received a suspended sentence.
The applicant had used her time in custody productively, working as the head cook for her unit, attending the gym daily and attending religious services at the Temple until it was closed due to COVID-19. She had completed several courses, related to mental health, drug and alcohol education and English language.
The applicant’s time in custody has been adversely affected by the COVID-19 pandemic. Apart from the discontinuance of religious services, she cannot receive visits, which is particularly hard in respect of her daughter, with whom she only has contact via a once-weekly video call.
20 A report of psychologist Warren Simmons dated 29 June 2020 was tendered. Mr Simmons reported that Mr Tran accepted that she worked as a drug ‘runner’ for payment, and received ‘$50 or so’ per transaction. He found no evidence of psychological conditions, and considered she had few anti-social traits. Mr Simmons assessed her likelihood of further offending as ‘limited’ and her prospects of rehabilitation as ‘good’.
21 Counsel for the applicant accepted the primary importance of general deterrence in offending of this type, but submitted that the need for general deterrence was ‘mildly moderated’ in the present case. The rationales for general deterrence — the difficulty of detecting such offending and the potential for large profit[3] — were said to have less force because the applicant’s role was ‘non-essential’ and she was not financially motivated.
[3]Nguyen v The Queen (2011) 31 VR 673, 681–3 [34] (Maxwell P) (‘Nguyen’).
22 It was further submitted that the applicant should be afforded the maximum sentencing discount for her plea of guilty. The plea was said to be of a particular utilitarian benefit, having been entered at the earliest possible opportunity and having obviated the need for a lengthy and complicated trial in circumstances of a backlogged criminal justice system due to the pandemic. The plea of guilty, as well as her efforts to rehabilitate herself while on remand, should be taken into account as a show of contrition. The applicant’s prospects of rehabilitation were said to be excellent, given her age, limited criminal history, strong family support, conduct in custody and the psychological assessment of Mr Simmons.
23 Reliance was placed on a table extracted from De La Rosa v The Queen,[4] demonstrating sentencing ranges in respect of drug importation offences based on features such as the quantity of drugs imported and the offender’s role.[5] It was submitted that the applicant’s offending fell within the lowest sentencing range identified. The applicant also supplied six cases[6] that were said to be comparable, in which sentences imposed ranged from 8 years’ imprisonment with a non-parole period of 5 years and 6 months to 5 years and 6 months’ imprisonment with a non-parole period of 3 years.
[4](2010) 79 NSWLR 1; [2010] NSWCCA 194 (‘De La Rosa’).
[5]Ibid 53 [224] (McClellan CJ at CL).
[6]DPP (Cth) v Gow (2015) 252 A Crim R 573; [2015] NSWCCA 208; Foley v The Queen [2019] VSCA 99; DPP (Cth) v Kazemi [2016] VCC 431; DPP (Cth) v Omar [2019] VSCA 188; DPP (Cth) v Kromah [2017] VCC 2014; DPP (Cth) v Watkins (a pseudonym) [2020] VCC 25 (‘Watkins’).
24 Finally, it was submitted that the principle of parity required that the applicant’s sentence be significantly lesser than those of her co-offenders Michelle Tran, Ngo and Zainal, on the basis that the applicant’s offending fell ‘far below’ their offending.
25 On the plea, the prosecutor disputed the characterisation of the applicant’s role in the enterprise as ‘non-essential’ and as not involving the reposing of trust. Conceding that the applicant’s role was not as significant as that of Michelle Tran and that she was not directly involved in ‘operational matters’, the prosecutor argued that she was still ‘vital and indispensable’ to the operation of the enterprise. This was because the applicant acted as a ‘shield’ for Michelle Tran, carrying out the physical acts of trafficking to prevent any forensic link between Michelle Tran and the drugs. This demonstrated, contrary to the applicant’s submission, the placing of a high degree of trust in the applicant.
26 It was submitted that the applicant’s moral culpability was high, albeit within the context of her comparatively limited role. For example, her presence at the 3 October meeting at which the one-ounce ‘sample’ was provided demonstrated she was aware of the overall activities of the trafficking enterprise.
27 The prosecutor also took issue with the applicant’s submission that her offending was not profit-driven. The prosecutor pointed to the ‘common sense’ presumption described in Nguyen that a person who imports drugs does so for profit, absent any evidence to the contrary.[7] He urged the judge to reject as without foundation the applicant’s suggestion that her statement to police (that she was paid $3,000 per transaction) was false and induced under pressure. He likewise urged the judge to reject her later claim to Mr Simmons that she was paid only ‘$50 or so’ per transaction and her even later claim on the plea that she received no payment at all.
[7] Nguyen (2011) 31 VR 673, 682 [34] (Maxwell P); see also R v Nguyen (2010) 205 A Crim R 106, 127 [72] (Johnson J, Macfarlan JA agreeing at 109 [1], RA Hulme J agreeing at 137 [137]); [2010] NSWCCA 238 (‘Nguyen & Pham’).
28 The prosecutor adopted the view (first expressed by the judge at the plea hearing) that the applicant, in having ‘underplayed’ to Mr Simmons the extent of the anticipated reward and of her role in the enterprise, had undercut the remorse otherwise demonstrated by her early plea of guilty and conduct while in custody.
29 The prosecutor also provided to the Court a table of comparable cases in which sentences were imposed for importing a commercial quantity of a border controlled drug (contrary to s 307.1 of the Criminal Code (Cth)), and trafficking in a commercial quantity of a border controlled drug (contrary to s 302.2(1) of the Criminal Code (Cth)).[8]
[8]These included Kleindyk v The Queen [2016] WASCA 123, Le v The Queen [2017] NSWCCA 26, and R v Ruzehaji (2018) 132 SASR 302.
Sentencing remarks
30 The judge noted that the maximum penalty for the offence of trafficking in a commercial quantity of a controlled drug was life imprisonment, and that this demonstrated the seriousness of the offence. Citing Nguyen & Pham,[9] Nguyen[10] and Lieu v The Queen,[11] his Honour set out the sentencing principles applying to the offence as follows:
The offender’s role and involvement in the enterprise, the sophistication of the enterprise and the amount of drugs involved are relevant to the assessment of the seriousness of the offending.
Because of the difficulty of detecting the offending and the great harm to the community it occasions, significant weight is to be given to the principle of general deterrence.
A significant sentence should be imposed for offending of any level.
As a matter of common sense, it should be inferred, absent evidence to the contrary, that a person who trafficks drugs does so for profit.
[9]Nguyen & Pham (2010) 205 A Crim R 106, 127 [72] (Johnson J, Macfarlan JA agreeing at 109 [1], RA Hulme J agreeing at 137 [137).
[10](2011) 31 VR 673, 681–3 [34] (Maxwell P).
[11](2016) 263 A Crim R 173, 185 [41]–[43] (Beach and Kaye JJA, Redlich JA agreeing at 175 [1]); [2016] VSCA 277.
Prior good character is generally to be given less mitigating weight.[12]
[12]Sentencing Remarks [52].
31 The judge stated that the quantity and value of the drugs the applicant trafficked was substantial, with a wholesale value of approximately $600,000 and street value likely three to four times greater. The quantity was 1.56 times the commercial quantity threshold.[13]
[13]Ibid [53].
32 The judge rejected the applicant’s characterisation of her role as ‘non-essential’ and not one of trust. He deemed the applicant’s role ‘integral … in the trafficking enterprise’:
As [Michelle Tran’s] trusted aide, you had an important position in the hierarchy. She shared the syndicate’s supply and pricing information with you and trusted you to collect and deliver substantial quantities of drugs and cash for her.[14]
[14]Ibid [54]–[55].
33 The judge assessed the applicant’s moral culpability as high, noting the ‘reasonable degree’ of planning, coordination and sophistication, including the collection and delivery of drugs and cash as well as coordination of sales and buyers. The offending also involved efforts at concealment, including the use of codes and phones subscribed in false names. The judge noted that there were no extenuating circumstances proffered for the offending and that the only ‘common sense explanation’ for the applicant’s choice to take on the risk of offending was the potential for substantial financial profit.[15]
[15]Ibid [57]–[60].
34 In his Honour’s view, it ‘[defied] belief’ that the applicant expected, as she told Mr Simmons, to receive only around $50 for her involvement. Her admission to police that she was paid $3,000 for each transaction was ‘more likely true’. He did not accept the applicant’s counsel’s suggestion that the latter figure had been given by the applicant under undue pressure from police.[16]
[16]Ibid [57]–[61].
35 The judge took into account the applicant’s early plea of guilty and accorded it significant utilitarian value. He accepted the plea and the applicant’s ‘positive response to [her] time in custody’ as evidence of remorse.[17] The degree of remorse was qualified, however, by: the applicant’s false denials and evasive answers in her police interview; her efforts to downplay her offending to Mr Simmons and at the plea; and her ‘implausible contention’ as to the limited extent of her expected financial reward.[18]
[17]Ibid [64].
[18]Ibid [65].
36 The judge viewed as relevant the applicant’s prior drug-related convictions which, he noted, warranted the imposition of a term of imprisonment for a first-time offender.[19] He attached less weight to those prior convictions given the passage of time but noted that the applicant’s attempt to understate her involvement in that offending (as she had done also in relation to the present offending) was relevant to his assessment of remorse and rehabilitation prospects.[20]
[19]See [19] above.
[20]Sentencing Remarks [66].
37 The judge acknowledged that Mr Simmons had assessed the applicant’s prospects of rehabilitation as good, but questioned the reliability of this assessment due to the applicant having given him ‘the mistaken impression that [her] offending behaviour was minimal’. His Honour instead assessed the prospects of rehabilitation as ‘reasonable’, taking into account the applicant’s ‘creditable progress’ in custody and her clear desire to be a good mother to her daughter.[21]
[21]Ibid [67].
38 As to the burden of imprisonment, the judge took into account that this would be increased due to the applicant’s separation from her daughter and isolation from her family, as well as the impact of COVID-19.
39 The judge had regard to the principle of parity, acknowledging that he must take into account the sentences he had imposed on two of the applicant’s co-offenders, Zainal and Beng Goh, in formulating the sentence to be imposed on the applicant. His Honour noted that both Zainal and Goh were first-time offenders and foreign nationals. Like the applicant, both had entered pleas of guilty: Zainal to a charge of importing a commercial quantity of a border controlled drug and Goh to a charge of trafficking a marketable quantity of a controlled drug.
40 His Honour assessed Zainal’s offending as more serious than that of the applicant, involving more instances (eight importations) and a greater quantity of drugs (the quantity of heroin was at least 2.68 times the commercial quantity),[22] and taking place over a longer period of time. Unlike the applicant, however, there were in Zainal’s case ‘genuine extenuating circumstances’ which meant that considerations of mercy weighed on the sentencing exercise. We refer to these circumstances below.
[22]See DPP (Cth) v Zainal [2020] VCC 1690 [50] (Judge Cahill) (‘Zainal’). As with the applicant, including the amount of pure heroin likely contained in packages that were not intercepted would have increased this figure to some 4.15 times the commercial quantity.
41 Goh’s offending was regarded as less serious than the applicant’s. It involved only a single instance and a lesser quantity of drugs. The judge found his progress towards self-reform whilst in custody ‘exceptional’ and consequently rated his prospects of rehabilitation as excellent. A shorter-than-usual minimum term was thus appropriate in his case.[23]
[23]Sentencing Remarks [71]–[74].
42 The judge took into account current sentencing practices. Having identified the relevant sentencing principles from the comparable cases presented by both counsel, his Honour stated that he used those cases as a ‘yardstick’ against which to measure the applicant’s sentence, making appropriate adjustments for differences in the circumstances of offending and offender.
43 The judge found that the applicant’s offending was more serious than in any of the six cases relied on by defence counsel, except for Watkins.[24] That case, however, involved ‘exceptional features personal to the offenders’, which distinguished it from the applicant’s case. His Honour also found that her offending was more serious than those classified as the least serious examples of commercial quantity drug importation in the table taken from De La Rosa.[25]
Proposed grounds of appeal
[24]Watkins [2020] VCC 25.
[25]For which the sentencing range was identified as six years and three months’ to eight years’ imprisonment with non-parole periods of three years to four years and six months: see De La Rosa (2010) 79 NSWLR 1, 51 [214]–[215] (McClellan CJ at CL).
Proposed ground one – parity
44 The first proposed ground invokes the principle of parity and is expressed as follows:
In all the circumstances the head sentence and non-parole period imposed upon the Applicant and the head [sentence] and non-parole period imposed upon the co-offender Zainal, give rise to a justifiable sense of grievance.
45 The applicant complains that the differential between her sentence and the lesser sentence (9 years and 6 months’ imprisonment with a non-parole period of 4 years and 9 months) imposed upon Zainal was not justified by the differences in their respective circumstances identified by the judge.
46 The parity principle requires that the sentences imposed upon co-offenders reflect the differences in their culpability and personal circumstances. It is an aspect of equal justice and speaks to the rule of law’s fundamental need for consistency.[26] As such, there should be no unjustifiable differences between the sentences of co-offenders; equally, co-offenders’ sentences may reasonably differ where relevant differences justify differentiation.[27]
[26]See Nipoe v The Queen [2020] VSCA 137, [38]–[40] (Maxwell P, Niall and Emerton JJA) (‘Nipoe’).
[27]Lowe v The Queen (1984) 154 CLR 606; R v Postiglione (1997) 189 CLR 295; R v Wolfe [2008] VSCA 284, [9] (Maxwell P, Weinberg JA agreeing at [22], Hargrave JA agreeing at [23]); McCloskey-Sharp v The Queen [2015] VSCA 87, [17] (Osborn JA); Gorman v The Queen [2019] VSCA 128, [41] (Priest and Kaye JJA); Collins v The Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA).
47 A differential, or lack of differential, between sentences may justify appellate intervention where it cannot be explained by the reasons for sentence.[28] But, as with complaints of manifest excess or inadequacy, appellate intervention will not be called for unless the sentencing differential — or the failure to differentiate — was not open to the judge in the reasonable exercise of their discretion.[29] This is because, as this Court has stated repeatedly, the sentencing exercise is not a quantitative one. It does not call upon judges to assign a precise value to each sentencing consideration and factor particular to the case and then weigh them with mathematical precision. This ‘conventional statement of principle is all the more relevant when co-offenders, each with common and different culpabilities, and each with similar and different circumstances, fall to be sentenced’.[30]
[28]Nipoe [2020] VSCA 137, [39].
[29]Chamma v The Queen [2020] VSCA 232, [60] (Priest, Beach and T Forrest JJA) (‘Chamma’).
[30]Chamma [2020] VSCA 232, [58].
48 It follows that, even where co-offenders play similar roles in the offending and share arguably similar personal circumstances, the qualitative process of a sentencing judge’s instinctive synthesis will not necessarily produce identical sentences. The hurdle which stands in the way of a ground of manifest excess similarly applies here: the fact of a sentencing differential (or its absence) is not sufficient to demonstrate error in the sentencing exercise; the appellant must show that it was not reasonably open to the judge to differentiate (or not differentiate) between the co-offenders.
49 In this case, the applicant relies on the judge’s assessment of Zainal’s offending as more serious than her own, and on the fact that Zainal imported a greater amount of heroin, on more occasions, and over a greater period of time. She points out that Zainal used a position of trust, that of flight attendant, in order to offend and, in contrast to the applicant, only ceased offending when she was caught. The applicant acknowledges the differences in personal circumstances which weighed in Zainal’s favour — that she was a first-time offender and that his Honour was moved to exercise mercy in his sentencing of Zainal due to her ‘genuine extenuating circumstances’. But those differences do not, it is submitted, weigh sufficiently against the objective gravity of Zainal’s offending to justify the imposition of a higher sentence on the applicant.
50 This submission must be rejected. In our view, it was open to his Honour to differentiate the applicant’s sentence from Zainal’s in the way he did, essentially for the reasons which he gave. His Honour accepted that Zainal’s offending was more serious than the applicant’s, stating: ‘Over a three month period she brought eight tickets of heroin into Australia’.[31] But, in determining to impose on Zainal a head sentence of 9 years and 6 months (around 10 per cent lower than the applicant’s) and a non-parole period of 4 years and 9 months (around 33 per cent lower), his Honour took into account stark differences between the personal circumstances of the co-offenders.
[31]Sentencing Remarks [73].
51 We deal first with remorse and rehabilitation. In relation to the applicant, the judge concluded that ‘the degree of [her] remorse’ was qualified by her ‘false denials and evasive answers to police at interview’; her efforts to ‘play down’ her offending to the forensic psychologist and to the Court; and her ‘implausible contention’ that she was only paid $50 each time.[32] Contrasted with this were Zainal’s ‘full and frank admissions’.[33] The judge found Zainal ‘profoundly remorseful’ and considered that she had shown ‘true insight’ into her offending.[34] These factors led the judge to assess Zainal’s prospects for rehabilitation as excellent, as opposed to the applicant’s merely ‘reasonable’ prospects.
[32]Ibid [65].
[33]DPP (Cth) v Zainal [2020] VCC 1690, [59].
[34]Ibid [63].
52 The most significant difference, however, was that in Zainal’s case, there were circumstances that displaced the presumption that the offending was motivated by profit, and which raised considerations of mercy.
53 In both cases, the judge applied the ‘common sense’ presumption described in Nguyen that a person who imports drugs does so for profit.[35] In the applicant’s case, that presumption was not displaced; the judge positively rejected her claim that she had acted on motives of friendship rather than monetary gain. In Zainal’s case, by contrast, the judge accepted that her offending had been motivated by a ‘desperate need for money’ for hospital treatment for her daughter’s serious medical condition. His Honour was satisfied that those extenuating circumstances explained Zainal’s offending and her taking of the risk involved. In those ‘exceptional circumstances’, Zainal was ‘deserving of some leniency’.[36] In short, the presumption from Nguyen did not apply to Zainal’s offending: profit was not the motive. That being so, general deterrence could reasonably carry less weight in his Honour’s calculation of her sentence.
[35]See footnote 7 above.
[36]Sentencing Remarks [65].
54 Those circumstances also readily explain why the judge fixed a non-parole period of 50 per cent of the head sentence in Zainal’s case, reflecting his stated intention to exercise mercy. The fact that mercy was not a factor in the applicant’s sentence explains why her non-parole period was a higher proportion (66 per cent) of the head sentence.
55 For these reasons, in our view, there was no infringement of the principle of parity. The applicant has failed to make out proposed ground 1.
Proposed ground two – manifest excess
56 The second proposed ground complains of manifest excess in the applicant’s sentence. The applicant correctly states that the ground of manifest excess is difficult to establish. To make good such a ground, the applicant must show that the sentence imposed was so severe as to fall outside the range of sentences reasonably open to the judge in the exercise of his sentencing discretion.[37]
[37]Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
57 The applicant contends that the judge overstated the seriousness of the offending, by mischaracterising her role and the extent of her relationship with Michelle Tran. His Honour, it is submitted, wrongly viewed the applicant’s role as ‘integral’ to the enterprise and erred in stating that there was ‘a reasonable degree of planning, coordination and sophistication to [her] offending’.
58 We see no error in his Honour’s assessment, which he explained in the following terms:
You were engaged in a commercial activity which involved repeated acts of trafficking. You played an integral role in the trafficking enterprise.
You were a runner, as you described it, for a sophisticated transnational drug syndicate. As [Michelle Tran’s] trusted aide, you had an important position in the hierarchy. She shared the syndicate’s supply and pricing information with you and trusted you to collect and deliver substantial quantities of drugs and cash for her.
You knew she was operating a large-scale drug importation and trafficking business. She boasted the heroin she sold was of the highest purity available in Australia. You were involved at the top level of domestic distribution.
There was a reasonable degree of planning, coordination and sophistication to your offending, which involved covert meetings with Zainal to collect the imported heroin, with Ngo to coordinate sales, and buyers, to deliver drugs and collect cash.
It also involved the use of codes and phones subscribed in false names to conceal the illegal activities.[38]
[38]Sentencing Remarks [55]–[58].
59 Thus, while it may be accepted that the applicant did not occupy an especially senior role within the drug hierarchy or exercise decision-making power, it was clear that she was trusted by a senior member of the syndicate, Michelle Tran, with extensive knowledge of its operations. She was also entrusted with the crucial (to Michelle Tran) task of carrying out the physical exchanges of drugs and cash, in order to shield Michelle Tran from the associated risk. And, plainly enough, there was a degree of planning and coordination associated with the applicant’s offending.
60 The applicant further submits that the judge undervalued the measure of remorse evidenced by her early plea of guilty. We reject that submission. His Honour acknowledged the early guilty plea and the applicant’s positive conduct while in custody as evidence that the applicant felt remorse. It was perfectly open to him, on the other hand, to take into account factors which showed that her remorse was qualified.
61 The applicant raises other mitigating factors including various personal circumstances, the additional burden of imprisonment occasioned by family separation, and her reasonable prospects of rehabilitation. As set out above, all of these factors were acknowledged and taken into account in the judge’s sentencing reasons.
62 In essence, the applicant’s complaints under this ground go to the weight attached by the judge to the various matters of aggravation and mitigation. Absent specific error, complaints about weight can only be addressed by examining the sentence imposed.[39] In our view, there is nothing about the applicant’s sentence which suggests that his Honour gave inappropriate weight to any of the relevant factors. In reaching that conclusion we have reviewed all of the appellate decisions in the table provided to the judge by the prosecutor, including the three which the applicant addressed in detail in her written case.[40]
[39]DPP v Terrick (2009) 24 VR 457, 459–60 [5] (Maxwell P, Redlich JA and Robson AJA); see also Smith v The Queen [2020] VSCA 159 [12] (Maxwell P, Kyrou and Weinberg JJA).
[40]This table of cases is discussed in more detail in Tran v The Queen [2022] VSCA 44.
63 Proposed ground 2 must be rejected.
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