Thuy Thanh Thi Tran v The Queen

[2022] VSCA 44

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0245

THUY THANH THI TRAN	Applicant
v
THE QUEEN	Respondent

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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 44
JUDGMENT APPEALED FROM:	[2020] VCC 1748 (Judge Cahill)

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CRIMINAL LAW – Appeal – Sentence – Manifest excess – Trafficking in commercial quantity of methamphetamine – Single transaction – 1.06 times commercial quantity threshold – Applicant supplied methamphetamine for sale – Enlisted son to deliver methamphetamine – Sentenced to 10 years and 6 months’ imprisonment with 7 year non-parole period – High culpability – Significant mitigatory factors – Whether sentence outside available range – Sentencing standards – Comparable cases – Sentence comfortably within range - DPP (Cth) v Omar [2019] VSCA 188 considered – Criminal Code 1995 (Cth) s 302.2(1).

CRIMINAL LAW – Appeal – Sentence – Parity – Identical sentence imposed on heroin ‘runner’ involved in same drug enterprise – Whether offending comparable – Whether open to judge not to differentiate – Similar culpability and mitigatory factors – Parity not infringed – Irrelevance of s 6AAA statements – Saab v The Queen [2012] VSCA 165 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Grace QC	Melasecca, Kelly & Zayler
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P
PRIEST JA:

1. On 8 September 2020 in the County Court the applicant pleaded guilty to one charge of trafficking in a commercial quantity of a controlled drug, methamphetamine.[1]  The gross weight of the drug was 997.8 grams;  the pure weight was 798.2 grams.  This represented 1.06 times the threshold for a commercial quantity of methamphetamine. 

   [1]Contrary to the Criminal Code (Cth) s 302.2(1).

1. The judge sentenced her to 10 years and 6 months’ imprisonment with a 7 year non-parole period, as follows:[2]

   [2]DPP (Cth) v Tran [2020] VCC 1748 (‘Sentencing Remarks’).

Charge on indictment	Offence	Maximum	Sentence
8	Trafficking a commercial quantity of a controlled drug.	Life imprisonment	10 years and 6 months’ imprisonment
Non-parole period		7 years
Section 6AAA declaration		13 years’ imprisonment with a non-parole period of 9 years
Pre-sentence detention		600 days

1. In her notice of application for leave to appeal the applicant contends that the sentence was manifestly excessive (‘proposed ground 1’), that the judge erred by not adequately reflecting the worth of her plea of guilty (‘proposed ground 2’) and that the judge erred in relying, for parity purposes, on the sentence imposed on another member of the syndicate, Thi Thuy Tam Tran (‘Lina Tran’) (‘proposed ground 3’).

1. We have concluded that leave to appeal should be refused.  What follows are our reasons for that conclusion.

Factual background

1. The applicant was 55 at the time of the offending.  She was known to a drug trafficking syndicate which imported and trafficked heroin throughout the Melbourne area.  One member of the syndicate, Kha Tien Ngo, asked the applicant to supply him with a kilogram of methamphetamine so he could sell it to a customer.

1. The applicant supplied Ngo with the kilogram of methamphetamine (charge 8), engaging her son, Khoi Phan, to deliver it.  The applicant facilitated and oversaw the delivery, which Phan effected on 18 December 2018.  The purchase price of the methamphetamine was $120,000 per kilogram.  The applicant asserted to Ngo that if the transaction was successful and she made enough money from it to recover the wedding ring she had pawned, she would ‘quit’.

1. In a subsequent transaction involving the proposed supply of five kilograms of methamphetamine, Ngo dealt directly with Phan.  The applicant was not charged with participation in this offending.  When she was arrested the applicant denied involvement in drug trafficking and provided innocent explanations for intercepted telephone conversations between her and Ngo.  It was conceded by her plea to charge 8 that these explanations were false.[3]

   [3]Ibid [138].

The plea hearing

1. The applicant’s counsel on the plea asserted that the applicant’s reward for her participation was to be $10,000 to $20,000.  The judge accepted this as realistic.  Further, in response to questioning from the bench, the applicant’s counsel accepted that she had pressured her son into delivering the methamphetamine, and also pressured him into allowing his home to be used to store drugs and money (large quantities of both were found at his house). 

1. The applicant admitted the following prior offending:

·In 2004, she was fined $900 for two counts each of using a false document to another person’s prejudice and making a false document to another person’s prejudice, five counts of obtaining property by deception, one count of attempting to obtain property by deception, and one count of fraudulently altering and using identification (no conviction).  No convictions were recorded.

·In 2006, she was convicted of one charge of handling, receiving or disposing of stolen goods and one charge of dealing with property suspected to be the proceeds of crime. She was sentenced to 3 months’ imprisonment, wholly suspended for 12 months.

·In 2010, she was fined $400 for shop theft (valued at less than $600).  Again, no conviction was recorded.

·In 2015, she was fined $750 for theft.  Again, no conviction was recorded.

·In 2017, she was fined $2,000 for shop theft and going equipped to steal.  Again, no convictions were recorded.

1. The applicant’s counsel emphasised the following matters in comprehensive written and oral plea submissions:

·The applicant’s plea was to an isolated transaction within a much larger framework of offending.  She could only be sentenced for the discrete offence to which she pleaded guilty.  The plea was made at a very early stage, before the committal hearing.

·The surrounding evidence (recorded conversations) demonstrated that her motivation was to recover her ‘wedding ring’ and that she needed the money to repay gambling debts.

·There was no evidence of enrichment beyond the applicant’s expected reward for participation in the offending.

·She was physically and mentally ill.  Some of her troubles might to some extent be psychosomatic, but in recent times she had also suffered from stomach pains, an ovarian cyst (now removed), cancer of the uterus (in remission following a hysterectomy), hypertension and diabetes.

·Since her arrest in March 2019 she had been treated for a number of ailments, including:  diabetes;  knee, back, bowel and chest pain;  toothaches;  dizziness;  vision deficits;  fatigue;  and dermatitis.

·She was one of six children, now scattered around the globe.  Her husband died two weeks after the birth of her first child, Jennifer.  Two weeks after that, she escaped Vietnam to Australia by boat with her one-month-old daughter.  She was at sea for nine days with no food and limited water.  In 1990, she moved to Melbourne with Jennifer.  She worked as a sewing machinist, entered into a new relationship, and gave birth to Khoi in 1992, and then a second daughter, Tram, in 1993.  The relationship was physically abusive. 

·Her relationship ended in 2002.  She commenced gambling at Crown Casino as a distraction.  Initially her gambling was on a small scale but it became larger.  She married a fellow gambler in 2004.  Her second husband left her in 2017. 

·Dr Sandra Nguyen, a psychologist, had diagnosed the applicant as suffering from a major depressive disorder with anxious distress, a severe gambling disorder in sustained remission, and an illness anxiety disorder.  Dr Nguyen also opined that the applicant was remorseful, was of impaired mental functioning at the time of the offending and would not cope well with imprisonment.

·The applicant’s prior convictions were more a product of her straitened economic circumstances than of any underlying dishonesty.

·Her guilty plea ought be accepted as ‘high value’ evidence of remorse, a willingness to facilitate the course of justice and as carrying a high utilitarian value.

·The applicant’s mental illnesses were causally connected to the offending and thus reduced her moral culpability.[4]  (At the plea hearing, counsel retreated from this submission, and appeared to accept that the applicant’s mental health issues were relevant to her personal circumstances rather than having a direct bearing on her moral culpability.)

·The distress caused by her separation from her children and grandchild was such as to enliven the principles of mercy.[5]

·Custodial measures to control the spread of COVID-19, together with the added anxiety of being a prisoner already at an increased risk (due to age) in a high-risk environment, had added to the applicant’s burden.

·The applicant ‘is elderly’[6] and faces imprisonment for the first time in her life.

[4]R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).

[5]See Markovic v The Queen (2010) 30 VR 589.

[6]In fact, the applicant was only 57.

1. The prosecutor acknowledged the plea was made at an early stage.  He submitted that, while the judge was dealing with a single offence committed on a single day, he could nevertheless take into account the broader criminal context leading up to the applicant’s offending.  Her phone was subscribed to a false name and address, she spoke covertly about trafficking, she ignored warnings from her daughter and she involved her son in trafficking activity.  The applicant had demonstrated the capacity to source a large quantity of high-quality methamphetamine.  The prosecutor contended that the applicant’s moral culpability was therefore serious, but not at the highest level.  The prosecutor accepted there was a degree of remorse, and that the applicant would experience hardship in custody.

Sentencing remarks

1. The judge noted that defence counsel had not persisted with his Verdins submissions.  He nonetheless accepted that the applicant had suffered depression and had done so since at least 2017, and said he would take it into account as part of her general circumstances.[7]

   [7]Sentencing Remarks [58]–[61].

1. The judge referred to a table of comparable cases provided by the prosecution.[8]  As discussed further below,[9] this table contained decisions of courts of criminal appeal dealing with sentences imposed for commercial quantity drug importation and trafficking.  His Honour noted that the sentences under consideration in those cases ranged from 8 to 18 years.  He said that, after making ‘appropriate adjustment for the differences in the circumstances of the offending and the offender’, he had used those cases as a ‘yardstick’ in evaluating the appropriate sentence.

   [8]Ibid [160].

   [9]See [20]–[23] below.

1. The judge noted that the maximum penalty for this offence was life imprisonment.  In his Honour’s view, the maximum demonstrated with ‘unmistakeable clarity’ the seriousness of the offending.[10]  His Honour described as well-established the matters to be considered in sentencing for commercial quantity trafficking, namely:  

   [10]Sentencing Remarks [114].

(a)        the offender’s role in the enterprise;  

(b)       the importance of the principle of general deterrence, given the ‘great harm’ stemming from the distribution of illicit drugs;

(c)        the common sense inference that the offender (absent evidence to the contrary) trafficked for profit;  and

(d)       that prior good character is (generally) given less weight in serious offending such as this.

1. The judge considered the applicant’s moral culpability to be high.[11]  The judge made the following findings, which were not challenged on this application:[12]

   [11]Ibid [123].

   [12]Ibid [116]–[122], [124], [126].

·‘[Y]ou supplied Kha Ngo with 1 kilogram of methamphetamine which he sold for $120,000, plus a delivery fee of $2,000 paid to your son.’

·‘You knew Ngo was a major drug dealer’.

·‘[Y]ou were in a position to supply [Ngo] with a commercial quantity of methamphetamine.’

·‘The pure weight of the methamphetamine was 798.2 grams which is 1.06 times the threshold amount for a commercial quantity under federal law.’

·‘[The methamphetamine] had a street value between $200,000 and $460,000.’

·‘[Ngo] was looking to you to supply further amounts’ which ‘indicated that you occupied a position of some influence in the commercial drug-trafficking world.’

·‘There was a reasonable degree of organisation and sophistication to your offending which involved … covert meetings with Ngo, and the use of codes and a phone subscribed in a false name to conceal your illegal activities.’

·‘[Y]ou … pressured your son to assist you in your drug trafficking’.

·‘[Y]our account that you received a commission of between $10,000 and $20,000 is credible.’

·The applicant was entitled to a ‘significant benefit for [her] guilty plea and its early timing’.  The judge also accepted that this plea evidenced remorse, as did the applicant’s post-fact expressions of ‘guilt and shame’.

1. The judge stated that, whilst personal factors carry less weight for offending of this type, he took into account the applicant’s difficult early life, her suffering in an abusive and violent relationship, and her various medical ailments.  He assessed her prospects for rehabilitation as reasonable.[13]

This appeal

[13]Ibid [127]–[128].

Proposed grounds 1 and 2

1. Proposed grounds 1 and 2 are expressed as follows.

Ground 1:The sentence imposed upon the Applicant is manifestly excessive in all the circumstances of the offence and of the Applicant.

Particulars:     It is implicit that the learned sentencing judge failed to give sufficient weight to:

(a)       the early plea of guilty:

(b)       remorse;

(c)       prospects of rehabilitation;

(d)      disadvantaged background both in Vietnam and Australia;

(e)the suffering endured in an abusive and violent relationship with the father of her two youngest children;

(f)       depressive illness and other medical ailments;

(g)       Covid-19 factors.

Ground 2:The learned sentencing judge erred in failing to give the Applicant a sufficient discount for her early plea of guilty.

1. As senior counsel for the applicant properly acknowledged, proposed ground 2 is, in reality, a particular of proposed ground 1.[14]  He was content for us to deal with it as such.

   [14]See, eg, 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).

1. The principal submission advanced in support of these grounds was that, when regard was had to the sentences imposed in the comparable cases provided to the judge by the prosecution, it could readily be seen that the applicant’s sentence was outside the available range.  It must be inferred, so it was said, that insufficient weight had been given to the matters relied on in mitigation.  Counsel referred in particular to the applicant’s troubled life, her poor mental health, the increased custodial burden of her medical ailments and the impact of COVID-19-related anxiety.

1. The ‘Table of Comparable Cases’ supplied by the prosecution relevantly contained summaries of nine decisions of intermediate appellate courts.  These decisions concerned sentences imposed for the Commonwealth offences of commercial quantity drug importation (five decisions) and commercial quantity drug trafficking (four decisions).[15]  For each case, the table set out in summary form the circumstances of the offending, the offender’s role, the quantity of drug imported or trafficked (expressed as multiples of the applicable commercial quantity), whether the offender had pleaded guilty or not guilty, and the pertinent personal circumstances of the offender.  

   [15]The commercial quantity importation cases were: DPP (Cth) v Omar [2019] VSCA 188 (‘Omar’);  Lim v the Queen [2017] VSCA 246; R v Banker [2016] QCA 74; Legault v The Queen [2014] NSWCCA 271; R v Agboti (2014) 246 A Crim R 72; [2014] QCA 280. The commercial quantity trafficking cases were: R v Ruzehaji (2018) 132 SASR 302; R v Nakash [2017] NSWCCA 196; Le v The Queen [2017] NSWCCA 26; Kleindyk v The Queen [2016] WASCA 123.

1. Presented in this helpful way, comparable cases can serve as a ‘yardstick’ for a sentencing judge, in just the way the judge in the present case said these cases had assisted him.[16]  Senior counsel for the applicant having drawn our attention to each of the nine relevant decisions in the table, we have reviewed each of them for ourselves.  Far from persuading us that the applicant’s sentence was manifestly excessive, however, that review confirmed that the sentence was within range.  The comparable cases also reinforce what was said by this Court in the first case in the table, Omar, about sentencing standards for offending of this kind.

   [16]R v Pham (2015) 256 CLR 550, 558 [26], 560 [29] (French CJ, Keane and Nettle JJ).

1. In Omar, this Court (Maxwell P, T Forrest and Weinberg JJA) upheld an appeal by the Commonwealth Director against a sentence of 5 years and 6 months’ imprisonment imposed on a drug courier for importing (by air) a quantity of heroin equivalent to 1.77 times the commercial quantity.  Increasing the sentence to 8 years’ imprisonment with a non-parole period of 5 years, the Court said:

We have looked at a number of decisions of this Court, and other courts, as to the applicable sentencing standards.  Those decisions show that sentences for offending of this scale and nature tend to approach double figures, depending of course on individual circumstances.  It must be borne in mind that the maximum penalty for [commercial quantity] trafficking is life imprisonment.[17]

[17]Omar [2019] VSCA 188, [17].

1. The most obvious difference between that case and this is the role which the applicant played.  Far from being a mere courier, the applicant was a supplier of the drug.  She knew Ngo to be a significant drug trafficker, and had sufficient influence herself to procure one kilogram of mixed but high-quality methamphetamine at relatively short notice.

1. Furthermore, the judge correctly found the applicant’s moral culpability to be high.  As her counsel properly conceded in this Court, her conduct in enlisting her son to deliver the methamphetamine elevated her culpability.  And there was no reduction in moral culpability on Verdins grounds.  The offending was reasonably sophisticated, and the applicant received, or at least expected to receive, significant financial reward — between $10,000 and $20,000.

1. We do not accept the submission that the judge failed to give proper weight to the various factors in mitigation, including the applicant’s early plea of guilty.  It is apparent from his Honour’s reasons that the judge was alive to those factors and considered them in some detail in his comprehensive and careful sentencing reasons.  The judge, in our view, did not allow the principle of general deterrence to ‘swamp’ other sentencing principles.  In our view, the sentence imposed was comfortably within the range available to his Honour given the mitigating factors, and was some distance from the top of that range.  We consider the reasons for sentence to be a model of clarity and balance. 

1. Leave to appeal is refused on proposed grounds 1 and 2.

Proposed ground 3

1. Proposed ground 3 is expressed as follows:

The learned sentencing judge erred in relying upon the sentence he imposed on Lina Tran for parity purposes in the sentencing of the Applicant.

1. Under the heading ‘Parity’, the judge noted that he had already sentenced Lina Tran, who had pleaded guilty to one charge of ‘unrelated trafficking’ in a commercial quantity of heroin.  He had sentenced her to 10 years and 6 months’ imprisonment, with a non-parole period of 7 years.[18]  His Honour said that, while Lina Tran’s offending had involved more episodes of trafficking, her position as a ’runner’ was lower in the drug trafficking hierarchy than the applicant’s position as ‘a methamphetamine supplier’.  He regarded their culpability as ‘similar’.[19]

   [18]Her application for leave to appeal against sentence was heard concurrently with the present application.

   [19]Sentencing Remarks [157]–[158].

1. The complaint advanced under this ground is that the judge wrongly treated the Lina Tran sentence as a ‘benchmark’ in determining the sentence to be imposed on the applicant.  The comparison was, counsel submitted, ‘completely misplaced’. As the argument developed, however, the essential contention was that the imposition of identical sentences could not be justified given what were said to be material differences favouring the applicant.

1. It is necessary to set out briefly the circumstances of Lina Tran’s offending.  Lina Tran was a member of the drug syndicate with which the applicant was involved.  The Melbourne-based head of the syndicate was Michelle Tran.  As we have said, a major business of the syndicate was to import heroin into Australia.  Between 2 and 24 October 2018, Lina Tran collected and delivered four packages of heroin at Michelle Tran’s direction.  The total quantity was, the judge considered, 1.56 times the commercial quantity threshold.  The wholesale value of the heroin was approximately $600,000 and the street value around three to four times greater.[20]  The judge found that Lina Tran’s moral culpability was high and that her offending was reasonably sophisticated, involving the use of codes and falsely subscribed mobile phones.[21]  

   [20]DPP (Cth) v Tran [2020] VCC 1631, [53] (Judge Cahill).

   [21]Ibid [58], [59].

1. Although Lina Tran and the applicant were not co-offenders, the judge was right to treat the concept of parity as relevant.[22]  The parity principle is but one manifestation of the principle of equal justice, and the applicant is entitled to argue that the lack of sentencing differentiation between herself and Lina Tran infringed that principle.  She maintains that there were relevant differences between them, which had to be reflected in different sentences.[23]

   [22]Farrugia v The Queen (2011) 32 VR 140, 146–7 [26]–[27] (Redlich and Bongiorno JJA); Mendieta-Blanco v The Queen [2020] VSCA 265, [31]–[33] (Priest, Kaye and T Forrest JJA).

   [23]Wong v The Queen (2001) 207 CLR 584, 608 [65] (Gaudron, Gummow and Hayne JJ) (‘Wong’); Green v The Queen (2011) 244 CLR 462, 472–3 [28] (French CJ, Crennan and Kiefel JJ).

1. We reject that contention.  In our view, it was open to the judge not to distinguish between the applicant and Lina Tran, for the reasons which he gave. Although Lina Tran’s trafficking involved more transactions and a slightly greater multiple of the commercial quantity, the applicant had a much more significant role.  As we have already said, she was a supplier of methamphetamine, whereas Lina Tran was a ‘runner’ of heroin.

1. There was otherwise little to distinguish them.  Their culpability was viewed as ‘similar’;  both pleaded guilty at a very early stage;  both had prior convictions of some but not great significance;  both had COVID-19 sentencing considerations to be taken into account;  the applicant’s personal circumstances, particularly her personal history, was more disadvantaged than that of Lina Tran.  Both women would be separated from their children while in custody, although Lina Tran (aged 49 at the time of sentence) had a much younger family (one daughter, aged 12).

1. The applicant submitted that Lina Tran must have been given a greater sentencing benefit than the applicant for her plea of guilty, by reference to the respective s 6AAA statements:  Lina Tran’s notional head sentence, in the absence of her plea of guilty, was 6 months greater than that of the applicant, and yet, after her plea of guilty, her ultimate sentence was the same as that of the applicant.  This, so the argument goes, shows that Lina Tran received a sentencing benefit of 4 years and 6 months for her plea of guilty, whereas the applicant received a sentencing benefit of only 4 years.

1. This Court has repeatedly cautioned against structuring arguments on appeal against sentence around s 6AAA statements.  These statements are not part of the sentence imposed:

The principal obstacle to a determination that the notional sentence stated pursuant to s 6AAA can reveal specific error lies in the fact that sentences are the product of a process of instinctive synthesis.  Judges do not fix sentences by adding to and subtracting from a starting point periods of time they attribute to particular sentencing factors.  In order to comply with s 6AAA, a sentencing judge is required to guess the part played by one of a number of conflicting and contradictory elements in a synthesis of all the elements and ascribe a number to that element.  As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

So long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform.

It may be thought that there is more chance of an error in this artificial, contrived exercise than in the original synthesis.[24]

[24]Saab v The Queen [2012] VSCA 165, [59] (Buchanan, Weinberg and Mandie JJA) (emphasis in original) (citations omitted), quoting Wong (2001) 207 CLR 584, 612 [76] (Gaudron, Gummow and Hayne JJ).

1. The applicant proposes in this part of proposed ground 3 that we compare two ‘artificial, contrived’ exercises in order to conclude inequality of treatment.  We decline to do so.

1. Leave to appeal under proposed ground 3 is refused.

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