Tran v The Queen

[2021] VSCA 311

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0235

HOANG TRAN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 November 2021
DATE OF JUDGMENT:	16 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 311
JUDGMENT APPEALED FROM:	[2020] VCC 1667 (Judge McInerney)

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CRIMINAL LAW – Appeal – Sentence – One Commonwealth offence (possess counterfeit money) – Six State offences – Total effective sentence on State offences 3 years, 9 months’ imprisonment with non-parole period of 2 years, 6 months – 4 months’ imprisonment on Commonwealth offence to commence upon completion of non-parole period – Whether sentence and commencement order on Commonwealth offence manifestly excessive – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr W Barker	Furstenberg Law
For the Respondent	Ms R L Harper	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
T FORREST JA:

Introduction and summary

1. On 23 September 2020, the appellant pleaded guilty to the charges set out in the table below and, on 15 October 2020, he was sentenced by a County Court judge as set out in that table:[1]

   [1]DPP v Tran [2020] VCC 1667 (‘Sentencing remarks’).

Charge	Offence	Maximum	Sentence	Cumulation
Indictment
1	Possess traffickable quantity of firearms [Firearms Act 1996 s 7C(1)]	10 years	3 years	6 months
2	Possess loaded firearm in a public place [Firearms Act s 130(1)]	10 years	3 years	Base
3	Possess firearm with no serial number [Firearms Act s 134C(1)]	4 years	9 months	1 month
4	Possess counterfeit money [Crimes (Currency) Act 1981 (Cth) s 9(1)]	10 years	4 months	To commence at end of non‑parole period
5	Possess a drug of dependence [Drugs, Poisons and Controlled Substances Act 1981 s 73(1)(b)]	1 year	3 months	Nil
6	Negligently deal with proceeds of crime [Crimes Act 1958 s 194(4)]	5 years	6 months	1 month
7	Unlicensed person store a firearm in an insecure manner [Firearms Act s 129A]	4 years	9 months	1 month
Related summary offences
4	Possess cartridge ammunition without a licence [Firearms Act s 124(1)]	40 penalty units	$826.10 fine	Not applicable
5	Possess controlled weapon without lawful excuse [Control of Weapons Act 1990 s 6(1)]	1 year	2 months	Nil
8	Commit indictable offence while on bail [Bail Act 1977 s 30B]	3 months	1 month	Nil
23	Possess prohibited weapon without exemption [Control of Weapons Act s 5AA]	2 years	2 months	Nil
Total effective sentence: 3 years and 9 months’ imprisonment
Non-parole period: 2 years and 6 months
Section 6AAA statement: 5 years’ imprisonment with non-parole period of 3 years and 4 months

1. On 1 June 2021, the appellant was granted leave to appeal against his sentence on the ground that the sentence in relation to charge 4 on the indictment and its commencement date are manifestly excessive.[2]

   [2]References to charges are references to charges on the indictment, unless otherwise specified.

1. For the reasons that follow, the appeal will be dismissed.

Circumstances of the offending

1. At approximately 6:00 pm on 6 August 2019, the appellant was driving his car along Ballarat Road, Sunshine.  Police officers intercepted and searched the car.  They located a loaded handgun (charge 2 — possess loaded firearm).  The serial number of the firearm had been removed (charge 3 — possess firearm with no serial number).

1. The appellant was arrested and transported to the Sunshine Police Station.  There, police searched him and found a ziplock bag containing 0.34 grams of methylamphetamine (charge 5 — possess a drug of dependence).  Police also conducted a further search of the vehicle and found three counterfeit $100 notes (charge 4 — possess counterfeit money).

1. On the following day, police executed a search warrant at the appellant’s residence.  They found two firearms in a convection oven box underneath the appellant’s dining table (charge 7 — unlicensed person store a firearm in an insecure manner).  One of the firearms had been stolen during a burglary in Delacombe on 22 July 2015 (charge 6 — negligently deal with proceeds of crime).

1. Charge 1 (possess traffickable quantity of firearms) relates to the three firearms described in [4] and [6] above.

1. During the searches, police also found ammunition (summary charge 4 — possess cartridge ammunition without a licence), two knives (summary charge 5 — possess controlled weapon without lawful excuse), as well as a butterfly knife, an extendable baton and a bayonet (summary charge 23 — possess prohibited weapon without exemption).

1. At the time of the offending, the appellant was on bail (summary charge 8 — commit indictable offence while on bail).

Appellant’s personal circumstances

1. The appellant was aged 39 at the time of offending and 40 at the time of sentencing.

1. The appellant was born in Vietnam.  He has six younger siblings.  In about 1987, his family fled Vietnam as refugees.  They first arrived in Hong Kong, where they resided in a refugee camp for about three years.  They arrived in Australia in 1990 and settled in the western suburbs of Melbourne.

1. The appellant could not speak English when he arrived in Australia.  He initially attended English school in Braybrook, before attending a number of other schools.  He left school part way through Year 11.

1. The appellant struggled at school due to a lack of English.  He was the subject of abuse by other students, including racial abuse.  He found comfort with other Vietnamese students with whom he could communicate.  However, they were negative peers who were involved in criminal conduct and drug abuse.

1. The appellant has a limited employment history.  After leaving school, he worked short-term as a landscaper and then a baker.  He has spent considerable time on the Centrelink employment program.  At the age of 37, he obtained a job through this program as a welder.

1. The appellant started abusing heroin at the age of 16 and has struggled with heroin addiction for the majority of his life.

1. The appellant is married.  He and a former partner have a son, with whom the appellant does not have any contact.

1. In 2013, the appellant was the victim of a home invasion.  Multiple offenders, including one of his cousins, broke into his home and assaulted him and his friend.  The offenders stabbed the friend in the head, paralysing him.  The appellant knew the offenders were part of a gang.  Police spoke to him about the incident and he was compulsorily examined.

1. Since then, the same people have terrorised the appellant with threats and assaults as retribution because they believed that he assisted police.  On one occasion, they drove past his mother’s house and discharged firearms into her home.  On another occasion, they kidnapped him and threatened to cut off his fingers.  He began to carry firearms as he believed this was the only way he could protect himself.  It was in this context that he committed the present offending.

1. The appellant has been in custody since his arrest.  He is in protection at Hopkins Prison as his dealings with the gang make him a targeted prisoner.

1. The appellant has an extensive criminal history commencing in 1996.  His prior convictions include dishonesty, firearms, weapons, drug and driving offences.  The dishonesty offences comprise possessing money being proceeds of crime, receiving property being proceeds of crime and dealing with property suspected of being proceeds of crime.

Principles relating to sentencing on a joint Commonwealth–State indictment

1. Section 19AJ of the Crimes Act 1914 (Cth) provides that a court may not fix a single non-parole period, or make a recognisance release order, in respect of both federal sentences of imprisonment and State sentences of imprisonment.

1. Section 19(3) of the Crimes Act 1914 (Cth) states as follows in relation to the commencement of federal sentences of imprisonment on a Commonwealth–State indictment:

Where:

(a)a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and

(b)the person is sentenced to imprisonment for more than one of the offences;

the court must, by order, direct when each federal sentence commences but so that:

(c)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and

(d)if a non-parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.

1. In Director of Public Prosecutions v Swingler, this Court set out in detail the difficulties which confront a sentencing judge when sentencing on a Commonwealth–State indictment.[3]  The Court identified the simplest approach as follows:

The judge can group all the State offences together, and first sentence upon them individually.  This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period.  That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime.[4]

[3](2017) 269 A Crim R 526, 541–6 [63]–[89]; [2017] VSCA 305 (‘Swingler’).

[4]Swingler (2017) 269 A Crim R 526, 544 [78], 546 [88]; [2017] VSCA 305 (citations omitted).

Sentencing remarks

1. The judge described the appellant’s offending as serious.  He stated as follows:

All of the offences here evoke serious criminality, especially when illuminated by [the appellant’s] prior offending.  [The appellant] is now 40 and, at least up to the date of this offending, he was not getting the message sent or detailed by Courts over numerous appearances for the last 20 years, that it is necessary for him to comply with the law.[5]

[5]Sentencing remarks [18].

1. The judge said that the appellant had a ‘disturbed childhood’.[6]  He noted that the appellant had been drug free and on a methadone course while in custody.  He stated that, given the appellant’s long history of addiction, ‘one has to be guarded as to [his] future’.[7]

   [6]Sentencing remarks [30].

   [7]Sentencing remarks [32].

1. The judge said that the appellant’s guilty plea was made at the earliest opportunity, indicating genuine remorse.  He stated that the guilty plea was utilitarian because it assisted the attainment of justice, especially where the ongoing operation of the Court’s processes was limited due to the COVID-19 pandemic.

1. The judge stated that he took into account that the appellant’s imprisonment would be more burdensome as a result of restrictions imposed in response to the COVID-19 pandemic.

1. In relation to charge 4, the judge remarked that he sentenced the appellant in accordance with the principles in Swingler.

Parties’ submissions

1. The appellant submitted that the sentence on charge 4 was manifestly excessive for seven reasons.

1. First, there is no evidence the counterfeit money was of a high quality or that the money was created by the appellant.

1. Secondly, the counterfeit money was not related to any of the other offences.

1. Thirdly, there were no aggravating features with respect to this offence.

1. Fourthly, the appellant has no prior convictions related to counterfeit money.  However, he conceded that his prior convictions for dealing with proceeds of crime are of some relevance.

1. Fifthly, the appellant pleaded guilty at an early opportunity.  The plea had significant utilitarian value because the Court and community were spared the cost and time of a contested hearing or trial for the charge, and the evidence against the appellant was not overwhelming.

1. Sixthly, the offending falls into the low range of offences of this kind. 

1. Seventhly, the sentence significantly exceeded current sentencing practices for the offence because the appellant received a greater sentence than the offender in Zogheib v The Queen.[8]  In that case, the offender pleaded guilty to possession of seven counterfeit $50 notes, as well as three State charges.  He was sentenced to a total effective sentence of 6 years’ imprisonment.  The sentence for possessing the counterfeit money was 3 months’ imprisonment, to commence upon the expiration of the non-parole period of 4 years and 3 months.  This Court dismissed his appeal against sentence.

   [8](2015) 257 A Crim R 454; [2015] VSCA 334 (‘Zogheib’).

1. The appellant argued that the offending in Zogheib was more serious than the present offending because, in that case, the offender had a prior conviction for possessing counterfeit money, and the counterfeit money was of a very high quality and $50 greater in notional value than that possessed by the appellant in the present case.

1. The appellant submitted that it would not be appropriate to regard the sentence of 4 months’ imprisonment as low because it is 3.33 per cent of the maximum penalty of 10 years’ imprisonment.  That was said to be so because dispositions other than incarceration were open in this case.  The appellant relied upon a Sentencing Advisory Council analysis which showed that, in the higher courts between 1 July 2014 and 30 June 2019, 45.4 per cent of those sentenced for knowingly possessing counterfeit money did not receive a term of imprisonment.

1. The appellant submitted that the order for the commencement of the sentence on charge 4 — after the non-parole period of 2 years and 6 months for the State offences — also made the sentence on charge 4 manifestly excessive.  He contended that the commencement order has the effect of extending the minimum term before he is eligible for parole by 4 months.

1. According to the appellant, having regard to the low level of seriousness of the offending the subject of charge 4 and the mitigating factors in his favour, the judge should not have imposed a term of imprisonment for that charge and that questions concerning extension of the non-parole period would not have arisen.

1. The Crown submitted that, in all the circumstances, the sentence imposed on charge 4 was within the range open to the judge.  Those circumstances were said to include the fact that the appellant had a lengthy prior criminal history, including relevant dishonesty charges, and the fact that he faced a number of other serious charges on the same indictment.

1. The Crown argued that the sentence imposed in Zogheib demonstrates that the sentence imposed in the present case was within the permissible range.

1. The Crown conceded that charge 4 is a lower-end example of possessing counterfeit money.

1. The Crown submitted that the structure of the sentence — with the sentence on charge 4 commencing at the end of the non-parole period — followed the usual course and was appropriate.

Decision

1. In our opinion, the ground of appeal is without merit.

1. The imposition of a sentence of 4 months’ imprisonment for possession of three $100 counterfeit notes upon an offender who has committed a multitude of other offences and has prior convictions for similar dishonesty offences was entirely appropriate.

1. We accept that, having regard to the features of the offending relied upon by the appellant, the offending was of relatively low seriousness. However, this is reflected in the very low sentence. Although non-custodial options may have been available for the offence, the fact remains that the custodial sentence that was imposed was 3.33 per cent of the maximum custodial sentence that was available. We reject the appellant’s contention that no custodial sentence should have been imposed in respect of charge 4. Further, we have not been assisted by the bare statistic referred to at [38] above.

1. We also reject the appellant’s submission that a comparison of the sentence imposed upon him with the sentence imposed upon the offender in Zogheib indicates that the former sentence exceeded current sentencing practices and fell outside the range of sentences reasonably open to the judge.  The offending in the two cases is not too dissimilar.  Although the offender in Zogheib had two prior convictions for possessing counterfeit money and the appellant did not have any such prior convictions, the appellant had prior convictions for similar dishonesty offences, namely, possessing, receiving and dealing with the proceeds of crime.  In these circumstances, it cannot be sensibly contended that the difference of one month between the sentences imposed upon the appellant and the offender in Zogheib takes the former sentence outside the available range.

1. In our opinion, the commencement date for the sentence for charge 4 is in accordance with the principles discussed in Swingler and is unobjectionable.  It is true that the nominated commencement date had the effect of extending the minimum term before the appellant was eligible for parole by 4 months, from 2 years and 6 months to 2 years and 10 months.  That represents about 75 per cent of the total effective sentence of 3 years and 9 months.  There is nothing unusual about that proportion.

1. For the above reasons, the appeal will be dismissed.

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