Tran v The Queen
[2021] VSCA 292
•27 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0233
| THU TRANG TRAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 October 2021 |
| DATE OF JUDGMENT: | 27 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 292 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Tran (Unreported, County Court of Victoria, Judge Quin, 9 October 2020) |
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CRIMINAL LAW – Appeal – Sentence – Whether sentence manifestly excessive – Possessing tobacco knowing that it was imported with intent to defraud the revenue – Total effective sentence of 3 years’ imprisonment with recognisance release after 22 months – Appeal allowed – Resentenced to 2 years’ imprisonment with recognisance release after 14 months – Customs Act 1901 (Cth) s 233BABAD(2).
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | Mr J R Sutton | Richard Revill Lawyers |
| Respondent | Ms K Breckweg | Office of the Director of Public Prosecutions (Cth) |
PRIEST JA:
I agree with Walker JA.
WALKER JA:
Thu Trang Tran pleaded guilty to a single charge of possessing tobacco products knowing that the goods were imported with intent to defraud the revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). The maximum penalty for that offence is 10 years’ imprisonment and/or a fine not exceeding $17,980,194.95. The offending occurred between 16 August 2019 and 24 October 2019. It involved a sophisticated operation, in which Ms Tran employed others in a ‘rolling house’ and in customer service at her duty free store, Dubai Gifts and Tobacconist (‘Dubai Gifts’). She had dedicated premises for mass production, retail sales and the supply of cigarettes in a clandestine manner. She directed and maintained records of the business. Ms Tran also leased a number of properties or storage facilities for purposes associated with the business. Some $3.596 million of duty was evaded, and none of that amount has been repaid. However, Ms Tran called in aid various mitigating factors.
The sentencing judge sentenced Ms Tran to a term of 3 years imprisonment and ordered that she be released on a recognisance release order after serving a period of 22 months. The sentencing judge recorded that, pursuant to s 6AAA of the Sentencing Act 1991, if Ms Tran had not pleaded guilty she would have imposed a sentence of six years imprisonment with a non-parole period of four years. Ms Tran now seeks leave to appeal against that sentence, on the sole ground that it is manifestly excessive.
For the reasons that follow, I would grant leave to appeal and allow the appeal.
Relevant statutory provisions and sentencing principles
Because this was an offence against a law of the Commonwealth, the sentencing judge was required to sentence Ms Tran in accordance with the principles applicable to sentencing for such offences set out in Part 1B of the Crimes Act 1915 (Cth), in particular, s 16A(2), which sets out matters that the sentencing court is required to take into account.
In addition, matters relevant to sentencing for offending contrary to s 233BABAD are as follows:[1]
[1]See Rv Zhang [2017] SASCFC 5, [37]–[38]; and see generally R v Saleh [2015] NSWCCA 299 (‘Saleh’); Barakat v DPP (Cth) [2020] VSCA 185 (‘Barakat’).
(a) the amount of duty defrauded;
(b) the scale of the enterprise including the quantity of tobacco imported or possessed;
(c) the logistics or sophistication of the endeavour;
(d) the role of the offender, particularly whether an offender was a principal offender or following the instructions of others;
(e) the period of the offending;
(f) the expected financial gain and high level of potential rewards may flow from the offending;
(g) whether the loss to the revenue has been repaid;
(h) whether the offending involved other illegal activity, such as the use of false identities;
(i) whether the offender was involved in the distribution and sale of the tobacco products in Australia; and
(j) general deterrence, particularly in the context of an offence that is difficult to detect and which carries the potential for significant financial reward.
The offence under s 233BABAD is one against the revenue. Accordingly, offending is properly considered in the context of taxation and similar offences and guidance may be taken from sentences imposed in matters of that kind. Having said that, it is not correct to characterise this type of offending as victimless, or of a lower level of criminality. Offending of this nature is not victimless; ‘although the Commonwealth was the party defrauded, those disadvantaged were the taxpayers of Australia generally’.[2] Various decisions of this Court involving the evasion of taxation or similar offending point to the need to consider the protection of the revenue when sentencing for matters of this kind.[3] It has been said that general deterrence is the primary sentencing consideration in such cases.[4] Where general deterrence takes priority, factors such as prior good character, excellent prospects of rehabilitation and age are usually afforded less weight than might otherwise be given.[5]
[2]R v Liddell [2000] VSCA 37, [6]. See also Hili v The Queen (2010) 242 CLR 520, 540 [63]; [2010] HCA 45; DPP v Rumpf (1987) 29 A Crim R 64, 70.
[3]DPP (Cth) vGregory (2011) 34 VR 1, 17 [57]; [2011] VSCA 145 (‘Gregory’); DPP vBulfin [1998] 4 VR 114, 132 (‘Bulfin’).
[4]Commissioner of Taxation v Cocaj [2004] QCA 69, [9]; R v Kopa; Ex parte DPP (Cth) [2004] QCA 100, [3]; Gregory (2011) 34 VR 1, 15 [51]; [2011] VSCA 145; Bulfin (1988) 4 VR 114, 132. See also the Explanatory Memorandum to the Customs Amendment (Smuggling Tobacco) Bill 2012 (Cth), which inserted s 233BABAD.
[5]Barakat [2020] VSCA 185, [53]–[54]; DPP (Cth) v Thomas (2016) 53 VR 546, 613 [193]; [2016] VSCA 237; Gregory (2011) 34 VR 1, 15–16 [51]–[54]; [2011] VSCA 145; R v Gajjar [2008] VSCA 268, [27]–[28]; DPP (Cth) v Page [2006] VSCA 224, [37]; R v Thomas [1999] VSCA 204, [16].
Finally, as the respondent submitted, it is relevant that the provisions that regulate the importation, distribution and sale of tobacco are aimed at regulating a harmful product. The current legislation was introduced as part of attempts to reduce the incidence of tobacco consumption in Australia by removing the availability of cheap tobacco. In addition, it reflects the fact that there is no ability for the inspection of testing of illegally imported tobacco for potentially harmful contaminants.[6] When s 233BABAD(2) was enacted, it increased the maximum penalty for the offence fivefold — from 2 years to 10 years — to provide a strong deterrent to criminals and to demonstrate the seriousness of this offending.[7]
[6]Commonwealth, Parliamentary Debates, Senate, 23 August 2021, [42] (David Feeny).
[7]Saleh [2015] NSWCCA 299, [32]; Hussein vThe Queen [2016] VSCA 212, [31] (‘Hussein’).
In light of the above matters, serious examples of offending under s 233BABAD(1) are sufficiently grave as to warrant a sentence of full-time imprisonment.[8]
[8]See Saleh [2015] NSWCCA 299, [7], [37]–[43]; Barakat [2020] VSCA 185, [54]–[55]; Gregory (2011) 34 VR 1; [2011] VSCA 145, where it was said that in many, if not most cases, imprisonment will be the only sentencing option for serious taxation fraud in the absence of powerful mitigating factors.
Circumstances of the offending
The circumstances of Ms Tran’s offending are, in summary, as follows.[9] Her offending arose as a consequence of her role in the possession of a large amount of tobacco located at Dubai Gifts, a business she operated with her husband, Be Hien Nguyen. Tobacco and other related items were also found in her home and other locations associated with her and the business.
[9]See Reasons [5]–[19].
The total amount of tobacco and the type possessed by Ms Tran was as follows:
(k) 2,611,918 cigarettes, with duty evaded being approximately $2.4 million.
(l) 867.1225 kilograms of loose leaf tobacco, with duty evaded being approximately $1.1 million.
(m) 23.051 kilograms of molasses tobacco, with duty evaded being $29,776.59.
The total amount of duty evaded was $3,596,038.99.
Ms Tran was registered as the sole director and secretary of the company that owned Dubai Gifts. The company’s registered address was her home address. In September 2019 Ms Tran attended an estate agent and indicated she was leasing the Dubai Gifts shop, having taken over the business. She paid the rent.
Between 2 June 2019 and 8 October 2019, Ms Tran and her husband were under surveillance and observed travelling on numerous occasions between their home, Dubai Gifts, and the following locations:
(n) a premises or warehouse in Kings Park (‘the rolling house’), where Ms Tran employed workers to roll and package tobacco and cigarettes for sale at Dubai Gifts. This property was leased by Ms Tran in April 2017;
(o) Storage King Thomastown, where numerous boxes of illicit cigarettes were located;
(p) Storage King Caroline Springs, where 336 boxes of loose-leaf plant material consistent with lotus leaf, which is used as a filler for rolling cigarettes, totalling approximately 4 kilograms were located; and
(q) Ms Tran’s parents’ home in Lalor, where more boxes of loose leaf plant material consistent with lotus leaf were located.
Ms Tran was observed loading goods, including boxes and bags, transporting them between those locations and unloading boxes into other unknown vehicles in the lane behind Dubai Gifts.
Between 3 June 2019 and 21 October 2019, telephone intercepts revealed Ms Tran, via phone calls and texts, discussing the sale or purchase of tobacco, as well as the operations of the business she was running. During these calls Ms Tran represented herself as the owner of a cigarette sales business. She liaised with customers and suppliers and instructed her husband to collect and distribute stock. It was apparent that Ms Tran sourced tobacco from overseas.
A search warrant was executed at Dubai Gifts and various items were seized. Cigarettes and loose pouch tobacco were located in cupboards or hidden compartments under the counter, where legitimate stock was displayed. A ledger was located that recorded handwritten payments and tobacco prices, including costs for specific brands. The ledger also recorded various phone numbers and notes about money and payments.
Two employees of Dubai Gifts identified Ms Tran as the manager and revealed their knowledge of the store stocking and selling illegal cigarettes and their awareness of the places they were hidden or concealed. They indicated that the illegal cigarettes were sold in accordance with a price list that Ms Tran had provided and although there were some legitimate sales, the majority of the sales were of illegal cigarettes. Additionally, a customer told investigators that she had been to Dubai Gifts and would buy cheap cigarettes there.
A warrant was also executed at Ms Tran’s home and a substantial amount of tobacco, including cigarettes and loose-leaf tobacco, were located there. Also located at her home were a significant number of unfilled cigarette tubes and documents consistent with the phone intercept material relating to her business.
The rolling house was set up with workstations with rolling machines and tobacco. Large numbers of boxes with packaged, rolled cigarettes and loose plant material, being both tobacco and lotus leaf filler, equipment and notes relating to mixing tobacco and cigarettes were located and seized.
Two storage units that Ms Tran had leased at Storage King in Thomastown and Caroline Springs were searched and various items were seized. Additionally, a property leased for Ms Tran’s son in Sunshine and her parents’ home in Lalor were both searched and items seized relating to Ms Tran’s tobacco business.
None of the addresses associated with Ms Tran or her husband are or have been licenced as a place to grow, store or deal in tobacco or to manufacture tobacco products. The domestic manufacture of excisable tobacco ceased in the latter half of 2015 and the last manufacturing licence was cancelled in November of 2015. There is thus no legitimate manufacture of tobacco products within Australia.
Ms Tran’s personal circumstances
At the time of sentence, Ms Tran was 48 and lived with her husband and children. Her husband was also charged with an offence under s 233BABAD, but he has not yet been dealt with by the courts.
Ms Tran was born in Vietnam and came to Australia with her family when she was 12, in 1984. The family made the journey to Australia by sea and were accepted as refugees. In 1992 she married her first husband, with whom she had five children. The relationship was violent and abusive, and after 17 years it ended. Ms Tran met her current husband in 2010 and they married in 2013. They had a child together in 2012, who tragically died at five months. In 2014 she and her husband moved to Shepparton to take over the lease of a zucchini farm. It was not a profitable enterprise and ultimately Ms Tran left that business and returned to Melbourne. Around this time, Ms Tran commenced working as a cigarette roller for another family, which she chose to do because of her parlous financial state. She regarded herself as the primary provider for her family.
In mid-2019 Ms Tran was provided with an opportunity by her tobacco suppliers to take over Dubai Gifts. At that time a restaurant business she had attempted had failed and she was in significant debt.
On the plea Ms Tran relied upon a report from Luke Armstrong, a consultant psychologist. His report set out extremely distressing details regarding Ms Tran’s journey from Vietnam by sea, including a violent sexual assault, and the significant impact that the events had on her. As the sentencing judge observed, that was a horrific experience for a young girl. Mr Armstrong explained that that experience impacted significantly on Ms Tran’s functioning. He expressed the opinion that Ms Tran’s childhood, combined with the events that occurred on the voyage to Australia, led to her developing features of PTSD from a very young age, which were undetected and untreated. Mr Armstrong said as follows:
Ms Tran has experienced chronic PTSD symptoms throughout her life. … [C]entral features of this condition brought about distortions in Ms Tran’s thinking, contributing to her decision to offend and engage in actual offending behaviour.
Mr Armstrong identified the following central features of PTSD, as defined in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders, that in his view impaired Mr Tran’s thinking at the time of her decision to offend and her subsequent offending:
·Exposure to actual or threatened death, serious injury or sexual violence.
·Negative alterations in cognitions … specifically ‘persistent or exaggerated negative beliefs or expectations about oneself, other or the world…’
·Persistent inability to experience positive emotions…
Mr Armstrong said that a combination of these beliefs distorted Ms Tran’s judgment. Further, Mr Armstrong expressed the opinion that Ms Tran required treatment to deal with her unresolved mental health issues and that she now recognises this need.
As to the prospect of custody, Mr Armstrong observed that Ms Tran is the primary carer for six minor children and that she cannot imagine being separated from them. He said that given that, it was likely Ms Tran’s mental anguish would be amplified ‘by the distorted (PSTD) view that being separated from her children [would mean] she has failed completely as a primary provider’. He also observed that her PTSD would be exacerbated by a term of imprisonment.
The sentencing judge’s decision
After setting out the nature of the offending the sentencing judge described Ms Tran’s personal circumstances. She noted that, on the basis of Mr Armstrong’s report, Ms Tran’s counsel relied on R v Verdins.[10] She also noted that the prosecution accepted that Verdins applied, such that there should be some reduction in Ms Tran’s moral culpability[11] and that the weight to be given to both specific[12] and general deterrence[13] should be reduced. Her Honour stated that she accepted that submission.[14] She also accepted that imprisonment would be more burdensome for Ms Tran, as a consequence of her impaired mental functioning and as a consequence of the the COVID-19 pandemic, which would make prison more burdensome for Ms Tran because she would be unable to see her family an children in face to face visits.[15]
[10](2007) 16 VR 269, 276 [32]; [2007] VSCA 102, where this Court set out what are now referred to as the ‘Verdins principles’.
[11]This reflects Verdins principle 1.
[12]This reflects Verdins principle 4.
[13]This reflects Verdins principle 3.
[14]Reasons [33].
[15]Reasons, [34]-[35].
The sentencing judge considered in turn various matters set out in s 16A(2) that were relevant. Her Honour took into account Ms Tran’s plea of guilty, and accepted that it was indicative of remorse.[16] She accepted that Ms Tran’s prospects of rehabilitation were good.[17]
[16]Reasons [36]–[37].
[17]Reasons [40].
In relation to deterrence the sentencing judge:
(r) accepted that Ms Tran’s financial position would act as a deterrent to her, but held that specific deterrence nonetheless has some application, ‘given the protracted nature of the offending’ and Ms Tran’s role in it;[18]
(s) held that general deterrence was an important sentencing consideration given the maximum penalty of 10 years imprisonment, the financial rewards associated with this kind of offending, the difficulty of detection and the erroneous view that offending of this kind is ‘victimless’.[19]
[18]Reasons [41].
[19]Reasons [42].
Her Honour referred in general terms to comparable cases as providing guidance, but she did not discuss particular cases in her sentencing remarks. She observed that the cases to which she was referred had quite different factual bases, involving importation rather than possession and the running of a business.[20]
[20]Reasons [43].
The sentencing judge concluded as follows:
Your offending involved a sophisticated operation, with you involved or dealing with a number of aspects of the tobacco business including employment of others in a rolling house and customer service at Dubai Gifts. You had a dedicated premises for mass production, retail sales and the supply of cigarettes in a clandestine manner. You directed and maintained records of the business. You leased a number of properties or storage facilities for purposes associated with the business.
In financial terms a substantial amount of duty was evaded — $3.596m — and none of those funds have been recovered.
I accept the objective gravity of your offending is high and that general deterrence has an important role to play.
I also take into account matters in mitigation, including your personal circumstances, particularly your early experiences and the impact on you, the burden of imprisonment, your plea and good rehabilitation prospects.[21]
[21]Reasons [45]–[48].
The parties’ submissions
As noted above, Ms Tran relies upon a single ground of appeal, namely that the sentence imposed was manifestly excessive. In support of this ground, in her Written Case she pointed to particular errors she says occurred in the sentencing synthesis:
(t) The sentencing judge’s reference to ‘protracted offending’, when in fact the charges related to a period of 10 weeks, suggest that Ms Tran has been punished for uncharged matters.
(u) The sentencing judge did not consider whether, under Verdins principle 4, specific deterrence should have been eliminated as a sentencing consideration.
(v) The sentencing judge did not consider whether, under Verdins principle 3, general deterrence should have been eliminated as a sentencing consideration.
(w) Contrary to the requirement in s 16A(2)(p), the trial did not separately consider the probable effects of the sentence on Ms Tran’s family and dependents.
In oral submissions Ms Tran put her argument somewhat differently: that these matters meant that specific and general deterrence should have been significantly reduced in weight, potentially down to being eliminated altogether. That is, her arguments concerning the Verdins principles were framed as an argument that, given the sentence imposed, the sentencing judge must have given insufficient weight to those principles. Ms Tran also submitted that, although the sentence imposed on Ms Tran ‘tracks closely’ with comparable cases, those cases lacked the mitigating features present in her case.
The respondent contended that the sentence imposed was not manifestly excessive. Given the facts set out above, and the sentencing principles applicable to offending of this kind, the respondent submitted that Ms Tran’s offending was objectively serious. It involved a sophisticated and sustained criminal enterprise, involving sourcing and possession of large-scale amounts of tobacco product, the production of cigarettes for clandestine sale, the employment of staff to roll and sell cigarettes and the leasing of multiple premises to conduct the business.
As to the mitigating factors on which Ms Tran relies, the respondent submitted that the trial judge had had regard to those factors. More specifically, the respondent observed that:
(x) the sentencing judge accepted that the principles outlined in Verdins were enlivened and there should be some reduction in the applicant’s moral culpability and in the weight to be given to general and specific deterrence;
(y) her Honour accepted and gave weight in mitigation of sentence to the fact that imprisonment would be more onerous for the applicant given her impaired mental condition and that it was likely that her mental condition would exacerbate in prison; and
(z) the applicant’s early plea of guilty and its corresponding demonstration of a willingness to facilitate the course of justice and remorse, and its utilitarian value were taken into account as was the applicant’s lack of prior convictions.
The respondent also referred in some detail to the comparable cases to which the sentencing judge had been taken on the plea. The respondent submitted that those cases involved considerably less serious offending than Ms Tran’s offending, so that even though they lacked the same mitigating factors as Ms Tran, the sentences were nonetheless comparable and provided an indication of the appropriate sentencing range.
The respondent observed that the sentencing judge had concluded that the sentence she would impose would not exceed a head sentence of 3 years, thereby allowing release on a recognisance, despite the prosecution submission that this course would be inappropriate.
The respondent submitted that the sentence imposed was well within the appropriate range for offences of this nature when the correct sentencing principles are applied and the sentences imposed in comparable cases are considered.
Consideration
As noted above, Ms Tran advances a single proposed ground of appeal — that the sentence imposed was manifestly excessive. In order to succeed on such an application, it is necessary for an applicant to establish that the sentence imposed by the judge was wholly outside the range available in the sound exercise of the sentencing discretion.[22]
[22]Clarkson v The Queen(2011) 32 VR 361, 384 [89], [2011] VSCA 157; DPP v Karazisis(2010) 31 VR 634, 662–3 [127]; [2010] VSCA 350 (‘Karazisis’).
I observe at the outset that at least some of the matters raised in Ms Tran’s Written Case might properly be thought to be allegations of specific error. However, as specific error is not alleged as a ground of appeal, I have treated these matters as, in effect, particulars of the ground alleging manifest inadequacy. As such, they are no more than possible explanations for the sentencing outcome which is impugned. They are relevant therefore as part of an overall consideration of whether the sentence was in the available range.
In my view the proposition that the sentence imposed was manifestly excessive is made out. When proper consideration is given to the mitigating factors relevant to Ms Tran’s case, including but not limited to her impaired mental functioning, the sentence imposed was not open, even when taking into account the sentencing principles relevant to offending of this kind.
I commence by observing that Ms Tran’s offending was serious in nature. This is reflected in the following matters:
(aa) the sophisticated nature of the offending, involving multiple premises, a retail business and multiple employees;
(bb) the key role played in the enterprise by Ms Tran, who was the ‘principle offender’ in relation to the criminal enterprise;
(cc) the period of months over which the offending occurred, which can, contrary to Ms Tran’s submission, properly be described as ‘protracted’;
(dd) the period of preparation for the offending, including establishing a network for the supply and distribution of illegal tobacco products, demonstrating that the offending was not spontaneous;
(ee) the high volume of tobacco involved and the correspondingly large sum of money defrauded from the revenue, namely $3,596,038.99;
(ff) the fact that none of the lost revenue has been repaid.
Having regard to the maximum penalty of 10 years’ imprisonment, which reveals the seriousness with which the legislature views this kind of offending, the role of specific deterrence, and the importance of general deterrence in relation to offending of this kind, a sentence of imprisonment was plainly warranted. I also consider that the sentencing judge was correct, given the gravity of the offending, to place some emphasis on general deterrence.
However, in my opinion Ms Tran’s personal circumstances and history mean considerably less weight ought to be given to general deterrence in the present case than might otherwise be appropriate. That is particularly so given her early plea of guilty, her lack of prior convictions, her good prospects of rehabilitation, and the fact that, as the sentencing judge accepted, Ms Tran’s offending was for reasons of financial hardship, not greed.
In relation to Ms Tran’s submission that the trial judge failed to consider the impact of the sentence on Ms Tran’s family and dependents, as required by s 16A(2)(p), it is plain that the sentencing judge gave no express, independent consideration to that matter. Her Honour’s only express consideration of Ms Tran’s family and children occurred when she considered the impact of imprisonment on Ms Tran[23] and Ms Tran’s prospects of rehabilitation.[24] However, the authorities make clear that s 16A(2)(p) is engaged only if exceptional circumstances are established.[25] No submission was put to the sentencing judge that there were exceptional circumstances warranting consideration of Ms Tran’s family circumstances in this case. Nor was any material placed before the sentencing judge to make good such exceptional circumstances. In light of the way the plea proceeded, it is not now open for Ms Tran to complain that the trial judge failed to take into account the impact of the sentence on Ms Tran’s family.
[23]Reasons [35].
[24]Reasons [39].
[25]Markovic v The Queen (2010) 30 VR 589, 603 [77]; [2010] VSCA 105. See also Huynh v The Queen [2015] NSWCCA 167, [33]–[34]; R v Ibbetson [2020] QCA 214, [28]–[29]; HJT v Western Australia [2020] WASCA 120, [59]; R v Constant (2016) 126 SASR 1, 18–23 [53]–[67]; [2016] SASCFC 87.
Importantly, as discussed above, the sentencing judge took into account Ms Tran’s difficult history and her impaired mental functioning. The sentencing judge accepted that the Verdins principles applied, such that there should be some reduction in the applicant’s moral culpability and in the weight to be given to both specific and general deterrence. The sentencing judge also quite properly gave some weight to the fact that imprisonment would be more burdensome for Ms Tran given her impaired mental functioning and the existence and impact of COVID-19 on persons subject to incarceration. In light of her Honour’s express reference to those matters, I do not think it can be said, as Ms Tran did in her Written Case, that the sentencing judge failed to consider whether specific or general deterrence should be eliminated altogether as sentencing considerations.
I also note that no argument of that kind was put to the sentencing judge on the plea. In that regard, counsel for the prosecution described Mr Armstrong’s report as ‘very compelling’ and accepted that it engaged the Verdins principles. Counsel accepted that those principles required ‘some moderation’ of Ms Tran’s moral culpability and the weight to be given to specific deterrence and general deterrence. However, he submitted that the ‘offset’ required by Verdins had to be weighed against the prolonged period of offending, the planning involved and the exploitative nature of Ms Tran’s business.
Ms Tran’s counsel’s submissions on Verdins were as follows:
We rely upon the psychological material and the Verdins aspect which [the prosecutor] very fairly and squarely raised.
Later, he said this:
And I haven’t addressed your Honour in any detail on [Mr Armstrong’s report] but there are a number of sensitive and personal matters there which we do rely upon.
…
And we agree with what [the prosecutor] very, very fairly said as there are some compelling aspects of it.
In addition, Ms Tran’s counsel accepted that both specific and general deterrence were relevant matters for the sentencing judge to take into account. He said this:
So when 16A of the Act is looked at and I think both [the prosecutor] and myself refer to it in various ways, there are a number of items which you have to take into account.
…
And they include deterrence which looms pretty large here. And it’s both individual and general.
In light of the way the plea proceeded, it is not now open for Ms Tran to complain that the trial judge failed to eliminate specific and general deterrence from consideration.
However, while accepting that the trial judge considered Verdins, I consider that she failed to give the various Verdins principles independent and sufficient weight. The treatment of Verdins was very brief. But in truth Ms Tran’s impaired mental functioning engaged four of the Verdins principles:
(gg) First, it engaged Verdins principle 1, by reducing Ms Tran’s moral culpability for her serious offending.
(hh) Second, it engaged Verdins principle 3, by supporting the proposition that general deterrence should be moderated as a sentencing consideration.
(ii) Third, it engaged Verdins principle 4, by supporting the proposition that specific deterrence should be moderated as a sentencing consideration.
(jj) Fourth, it engaged Verdins principle 5, because a sentence of imprisonment would weigh more heavily than on a person in normal mental health.
Each of these matters was accepted by the prosecution. And while it might be said that the sentencing judge was not assisted a great deal by counsel for Ms Tran in how the Verdins principles fell to be applied, I consider that the sentence imposed, coupled with the presence of other mitigating factors, suggests that her Honour failed to give these matters sufficient weight.
In my opinion a sentence of 3 years imprisonment is manifestly excessive, when one takes account of the Verdins principles, in addition to the various other factors in mitigation. Ms Tran’s impaired mental functioning was significant, and it had contributed to her offending. As the prosecution recognised, it required a moderate reduction in the weight to be given to both specific and general deterrence. Although the sentencing judge referred to the matters that engaged Verdins, I infer that she cannot have given those issues the weight they require.[26]
[26]DPP v Terrick(2009) 24 VR 457, 460 [5]; [2009] VSCA 220.
In my opinion, it was not reasonably open to the sentencing judge to impose a head sentence of 3 years imprisonment if she had given proper weight to all the relevant circumstances of the offending and of the offender.[27] I am thus driven to conclude that in one or more respects the sentencing judge must have misapplied relevant sentencing principles.
[27]Karazisis (2010) 31 VR 634, 662–3 [127]–[128]; [2010] VSCA 350.
It remains to say something about reference to current sentencing practices, gleaned from comparable cases. Of course, comparable cases are not precedents and care must be exercised in how they are used to assess the appropriateness of a sentence in a given case. While, reviewed as a whole, comparable cases may assist to reveal a possible pattern or range of previous sentences, it has been emphasised that such an examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by the cases, is necessarily correct, or that the upper or lower limits of those sentences are immutable.[28]
[28]See, eg, DPP v Dalgliesh (a Pseudonym) (2017) 262 CLR 428, 450 [68], 453 [82]; [2017] HCA 41; Djordjic v The Queen [2018] VSCA 227, [74]; Sutic v The Queen[2018] VSCA 246, [97].
In this matter, the prosecution referred to three relevant cases: Saleh, Hussein, and Barakat.[29] I note that two of those cases (Saleh and Barakat) concerned offending against s 233BABAD(1) of the Customs Act, that is importation of tobacco with intent to defraud the revenue; and only one of the cases concerned offending against s 233BABAD(2), that is the possession of tobacco that has been imported with intent to defraud the revenue. As the prosecution submitted, it is appropriate to consider cases concerning s 233BABAD(1) when sentencing for an offence against s 233BABAD(2). However, some care must be taken to account for the different nature of the offending captured by each provision, so as to ensure that the offending in question is truly comparable.
[29]Because the relevant offences are Commonwealth offences it is appropriate to have regard to sentencing practices across Australia: R v Pham (2015) 256 CLR 550, 556 [17]–[18], 557–8 [24]; [2015] HCA 39.
In Saleh the offender was charged with aiding and abetting the importation of tobacco knowing that it was imported with intent to defraud the revenue, contrary to s 233BABAD(1) of the Customs Act. After a plea of guilty he was given a 20 month suspended sentence upon entering into a good behaviour bond. The NSW Court of Criminal Appeal upheld a Crown appeal against sentence, imposing instead a sentence of three years’ imprisonment, with a non-parole period of two years. In contrast with the present case, Mr Saleh was not the principal offender; his involvement had been aiding and abetting the importation of tobacco by freight forwarding and customs clearance of the goods post-importation, before arranging for their unpacking and transportation. In addition, the amount of revenue defrauded — $996,997.50 —was significantly less than in the present matter. Importantly, Mr Saleh had more limited mitigating factors than Ms Tran. A psychological report had found him to be ‘emotionally vulnerable’, which mitigated his moral culpability ‘a little’,[30] but there was nothing to suggest that general and specific deterrence ought to be moderated. Nor were there other significant mitigating factors. In addition, Mr Saleh had prior convictions that removed the leniency that might be applied to a first time offender.[31] And there was no finding as to prospects of rehabilitation.
[30]Saleh [2015] NSWCCA 299, [19].
[31]Ibid [20].
In Hussein the offender pleaded guilty to one charge that he had attempted to commit an offence against s 233BABAD(2) of the Customs Act. He was sentenced to a term of 2½ years’ imprisonment, with release after 12 months on a recognisance release order. The total duty sought to be evaded was $8,356,776.78. The offender was not involved in the importation of the tobacco, rather he was involved in unpacking and transporting the container of imported tobacco.[32] This Court refused leave to appeal against sentence on the ground of manifest excess. The revenue there sought to be avoided was significantly greater than the revenue avoided in this case, but the offender’s role in that case was considerably less significant than Ms Tran’s role in the present offending. However, this case lacked the other significant mitigating factors present in Ms Tran’s case. In particular, there was no invocation of Verdins.
[32]Hussein [2016] VSCA 212, [33].
In Barakat the comparable offender, Hassan Barakat, pleaded guilty to a single charge of importing tobacco products with the intention of defrauding the revenue in breach of s 233BABAD(1) of the Customs Act. He was originally sentenced to a term of 4 years and 3 months’ imprisonment, with a non-parole period of 2 years and 6 months. This Court allowed his appeal against sentence resentenced him to 3 years and 3 months’ imprisonment, with a non-parole period of 2 years. The offending involved an intent to defraud the Commonwealth of $3,967,334.4.[33] The offending involved a ‘rolled up’ charge encompassing three individual importations. The offender in that case had coordinated the importation of all three consignments of tobacco and had the main role in arranging the transportation of the tobacco once it had been imported. The offending in that case was somewhat different to the offending in the present case, but the duty evaded was very similar. Having said that, the role played by Ms Tran in the present case was in some respects more serious, because it involved the operation of a commercial business over several months, as discussed above. Further, and importantly, in Barakat significant weight was given in mitigation of the offender’s sentence to reflect the delay of nearly five years between the offending and the imposition of sentence.[34] However, other than that feature, this case lacked significant mitigating factors of the kind present in Ms Tran’s case. Again, there was no invocation of Verdins.
[33]Barakat [2020] VSCA 185, [64].
[34]Ibid [32].
Finally, in oral argument the respondent also referred to the decision of this Court in Al Mahmoud v Director of Public Prosecutions (Cth).[35] In that case the appellant had pleaded guilty to one charge of importing tobacco products with the intention of defrauding the revenue under s 233BABAD(1) and one charge of possession of tobacco products, knowing that the goods were imported, with intent to defraud the revenue under s 233BABAD(2). The amount of tobacco imported was very large, approaching 3,994 kilograms. Following a plea in mitigation, the sentencing judge sentenced the appellant to a term of imprisonment of three years and six months on charge 1, and four months on charge 2. The total effective sentence was three years and 6 months’ imprisonment and a non-parole period of 24 months was fixed. The offender appealed on the basis that the sentence imposed was manifestly excessive. He relied on the following mitigating factors: his plea of guilty, a late change in the evidence relied on by the prosecution, his previous good character, his good prospects of rehabilitation, the poor health of his wife, and the current pandemic. This Court dismissed the appeal. Niall JA, with whom Priest JA agreed, said this:
In my view, this was serious offending undertaken for profit and with a very large amount of duty evaded. The appellant was the principal offender in an elaborate and relatively sophisticated importation. The judge accepted that the offending took place at a time of significant financial stress for the appellant whose business was under strain. His good prospects of rehabilitation reduced the need for specific deterrence. Necessarily, for offending of this kind, general deterrence plays a central role in sentencing.[36]
[35][2021] VSCA 240.
[36]Ibid [41].
Again, this case lacked significant mitigating factors of the kind present in Ms Tran’s case. And again, there was no invocation of Verdins.
On its face, the sentence imposed by the sentencing judge was not inconsistent with the sentences imposed in the comparable cases to which the Court was taken. However, Ms Tran has the benefit of other mitigating factors not applicable in the comparable cases — it is unnecessary to discuss all of them — which differentiate her case from those other cases.
In my opinion, given her various mitigating circumstances, Ms Tran’s sentence ought to have been considerably less than the sentences imposed in the comparable cases. That is, those cases confirm, rather than deny, the excessive nature of the sentence imposed on Ms Tran.
In light of the matters set out above, the sentencing judge’s decision was attended by error. The sentence imposed was manifestly excessive. However, that conclusion should be seen to be the product of the unique circumstances attending this case. It should not be viewed as setting a benchmark, let alone providing guidance more generally as to sentencing practice for similar offending.
Conclusion
For these reasons, leave to appeal should be granted and the appeal be allowed.
Given that conclusion, it is necessary for this Court to resentence Ms Tran. In light of the seriousness of Ms Tran’s offending, and notwithstanding the significant mitigating factors, I am of the view that a sentence of imprisonment is warranted. Ms Tran’s moral culpability, although reduced, was not eliminated. That and the need for general deterrence, which was also not eliminated as a sentencing consideration, justify the imposition of a custodial sentence.[37]
[37]Saleh [2015] NSWCCA 299, [42]; Bulfin [1998] 4 VR 114, 132.
I would sentence Ms Tran to a term of 2 years’ imprisonment, and I would order that she be released on a recognisance release order after serving a period of 14 months. Pursuant to s 6AAA of the Sentencing Act I record that, had Ms Tran not pleaded guilty, I would have imposed a sentence of 4 years with a non-parole period of 2 years and 6 months.
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