Tran v The Queen
[2021] VSCA 278
•7 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0131
| HOANG NGOC TRAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | KAYE and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 29 September 2021 |
| DATE OF JUDGMENT: | 7 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 278 |
| JUDGMENT APPEALED FROM: | [2020] VCC 536 (Judge Stuart) |
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CRIMINAL LAW — Appeal — Application for leave to appeal against sentence — Attempt to possess commercial quantity of a border controlled drug — Principle of parity — Manifest excess — Applicant sentenced to 23 years and six months’ imprisonment with non-parole period of 15 years and six months — Applicant’s head sentence 3.76 times that of co-accused — Whether disparity in sentences justified by differences in roles of co-accused — Whether minor factual errors led judge to mischaracterise applicant’s role in drug importation enterprise — Applicant was ‘trusted organiser’ of one part of enterprise — Criminal Code (Cth) ss 11.1(1), 307.5(1); R v Nguyen (2010) 205 A Crim R 106, Tran v The Queen [2017] VSCA 346, Collins v The Queen [2015] VSCA 106 applied — Application for leave to appeal granted — Appeal allowed — Applicant resentenced to 18 years’ imprisonment with non-parole period of 12 years.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Ms C A Boston | Balmer & Associates |
| For the Respondent: | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
KAYE JA
T FORREST JA:
On 25 January 2019 the applicant, Hoang Ngoc Tran, pleaded guilty to one charge of attempting to possess a border controlled drug in a commercial quantity. The drug involved methamphetamine.
His co-accused, Tu Ngoc Ho, pleaded guilty to the same charge on 19 February 2019.
A plea hearing before a County Court judge took place over seven sitting days between August 2019 and April 2020. Ho contested various facts relevant to his role in the offending and this occupied much of the seven sitting days. The applicant did not contest any factual aspect of his plea.
A second co-accused, Thienh Anh Ngo, was acquitted at trial.
On 29 April 2020, the applicant and Ho were sentenced as follows.
Tran
Charge
Offence
Maximum Penalty
Sentence
1
Attempt to possess a commercial quantity of the border controlled drug (methamphetamine), contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth)
Life imprisonment
23 years and 6 months
Non-Parole Period: 15 years and 6 months’ imprisonment Pre-sentence detention declared: 1127 days 6AAA declarations: 28 years’ imprisonment with a non-parole period of 21 years
Ho
Charge
Offence
Maximum Penalty
Sentence
1
Attempt to possess a commercial quantity of the border controlled drug (methamphetamine), contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth)
Life imprisonment
6 years and 3 months’ imprisonment
Non-Parole Period: 3 years and 9 months’ imprisonment Pre-sentence detention declared: 1127 days 6AAA declarations: 9 years’ imprisonment with a non-parole period of 6 years
The applicant Tran seeks leave to appeal on nine separate grounds.
Ground 1:
The sentences imposed give rise to a justifiable sense of grievance, when compared with the sentences imposed upon the applicant’s co-accused.
Ground 2:
The learned sentencing judge erred in his characterisation of the applicant’s role.
Ground 3:
The learned sentencing judge erred in sentencing the applicant for acts which predated the period of the offending.
Ground 4:
The learned sentencing judge erred in finding that the applicant expected a considerable financial reward, and that he was motivated by greed.
Ground 5:
The learned sentencing judge erred in finding that the applicant deliberately absented himself from the vast bulk of the exercise of retrieving the packages from the gates on 29 March 2017 so as to distance himself from the possibility of being associated with this enterprise.
Ground 6:
The learned sentencing judge erred in failing to take into account the Mills principles, in circumstances where the applicant was aged 25 at the time of the offence.
Ground 7:
The learned sentencing judge erred in failing to take into account the increased burden of the applicant’s imprisonment on account of his concern about being deported.
Ground 8:
The learned sentencing judge erred in failing to take into account the additional burden of imprisonment occasioned by the applicant’s anxiety regarding Covid-19.
Ground 9:
The head sentence and non-parole period are manifestly excessive, having regard to the significant factors in mitigation, including the applicant’s guilty plea, as well as the principle of parity.
At the plea hearing, counsel for Tran consented to the tender of the Summary of Prosecution Opening for Plea (‘SPO’). In view of the issues raised by a number of the grounds, it is necessary to reproduce relevant portions of that agreed factual summary.
CIRCUMSTANCE[S] OF THE OFFENDING
On 1 March 2017, Australia Trade and Shipping Pty Ltd, a company that provides import and export shipping services to Australia from China, received notification from a company named K & L Trading Pty Ltd that an importation comprising two shipping containers was due to be imported into Australia.
On 18 March 2017, two shipping containers addressed to K & L Trading Pty Ltd, 93 East Derrimut Crescent, Victoria, 3030 arrived in Melbourne.
Four invoices were subsequently issued to K & L Pty Ltd by Australian Trade and Shipping Pty Ltd for the shipping costs of the two containers. On 17 and 18 March 2017, the Offender TRAN paid these costs in cash at the Commonwealth Bank Sunshine and Highpoint branches.
PREPARATION FOR RECEIPT OF IMPORTATION
At 3:51 pm on 21 March 2017, NGO attended at Bunnings, Sunshine and purchased a number of Makita brand cutting discs. On 21 March 2017, TRAN contacted KADS Plant Hire to hire a forklift for 4 days. TRAN identified himself as ‘HOANG’ and gave the phone number 0432 210 170. TRAN hired the forklift on behalf of the company ‘K & L Trading’ and he paid $500 in cash. TRAN also gave Tien NGO’s phone number, 0411 843 589, as a contact for hiring the forklift. The hire arrangement was from 22 March 2017 for 4 days.
Between 22 and 24 March 2017, a person identifying himself as ‘John Chan’ called Jeffrey Shaw at Australia Trade and Shipping Pty Ltd and enquired about the delivery of importation SIG1702J024A. ‘Chan’ was told that the two containers were on ‘border hold’ and were likely being x-rayed. On 24 March 2017 Jeffrey Shaw emailed ‘John Chan’ to advise that Customs had withdrawn the ‘clear’ status on container SIG1702J024A. On 27 March 2017, Jeffrey Shaw emailed ‘John Chan’ to advise that SIG1702J024A was cleared by customs and delivery would be likely between 11:00 am and midday on 28 March 2017. On 27 March 2017 ‘John Chan’ emailed Jeffrey Shaw and provided mobile number 0411 116 938 for a person named ‘Hong’ whom he said would be at the factory for delivery at 11:00 am the following day. At 10:12 pm, ‘John Chan’ emailed to provide another number for Hong being 0402 930 603.
DECONSTUCTION AND FORENSIC ANALYSIS
On 23 March 2017, the two containers inside importation SIG1702J024A were inspected by Australian Border Force (ABF) officers. One of the shipping containers was red and the other was blue. Each shipping container contained 50 steel gates. X-ray of container SGCU2205902 revealed that 10 of the gates, all of which were red, contained anomalies within their structure. Further examination revealed that each red gate contained a number of packages concealed within its panels. In total, 301 foil packages were removed from inside steel panels on the left and right hand side of each of the 10 gates. Each package had an outer foil bag that contained two clear clip seal bags (one inside the other) of methamphetamine.
Subsequent formal forensic analysis of the contents of the 301 foil bags revealed that they contained 229.6 kilograms of pure methamphetamine.
RECONSTRCUTION AND CONTROLLED DELIVERY
On 26 March 2017, the steel gates were replaced inside the two containers for the purposes of conducting a controlled delivery. An inert substance had been put inside the panels of each of the 10 red metal gates that had originally contained drugs and these were placed in container SGCU2205902.
At 12:03 pm on 28 March 2017, two undercover police operatives, purporting to be delivery drivers, arrived at K & L Trading Pty Ltd, 93 East Derrimut Crescent with shipping containers SEGU1281597 and SGCU2205902. The controlled delivery was video recorded on body camera footage by one of the officers. Upon arrival, NGO was sitting in the front courtyard of the premises in a silver Toyota Camry registration number 1BV1HI. TRAN was sitting on a forklift to the right of the factory roller door.
TRAN and NGO assisted the undercover officers in unloading the shipping containers from the truck. TRAN and NGO assisted the undercover officer with cutting a small pin from a container joiner. To cut the small pin, TRAN and NGO used a Makita branded green coloured angle grinder, which appeared to be new, and a crowbar. TRAN subsequently signed three delivery documents for the two shipping containers using the name ‘Adam’.
At 12:48 pm NGO and TRAN departed the factory in vehicle 1BV1H1 and travelled to 103 Whitesides Avenue, Sunshine where they resided along with HO. NGO left the premises in 1BV1H1 at 1:25 pm and travelled to another address in Mulhall Drive, St Albans, where he collected some mail from the mailbox. He then returned to the Derrimut Crescent factory at around 2:18 pm in the company of HO. A short time later, TRAN also returned to the factory.
UNLOADING THE CONTENTS OF THE SHIPPING CONTAINERS — 28 MARCH 2017
On 28 March 2017 at 2:58 pm TRAN, using phone number 0411 116 938, sent a message to HO’s mobile number 0411 698 483 that read: Inside the green / blue gate.
Between 3:30 pm and 4:20 pm TRAN was observed inside the Derrimut factory assisting NGO and HO to open container SGCU2205902. At 4:20 pm TRAN departed the Derrimut factory in a silver Mazda Sedan registration UEB381.
Between 4:26 pm and 4:40 pm, NGO and HO removed the gates from container SGCU2205902. NGO operated the forklift whilst HO assisted NGO from the floor.
At 5:18 pm TRAN received a call on mobile 0411 116 938 from an unknown number and the following was discussed:
Caller: Hello.
Receiver: Hello young bro.
Caller: I am down here, I (inaudible)
Receiver: I’ve known, just take, take photos, take photos of all that you see not, not normal.
Caller: OK.
Receiver: I, I say this, when talking on the phone or taking photos, don't let pe, people outside see, see.
Caller: OK.
Receiver: I say this, I’ve meant, that box, that box is the second box? Not the first box, is it?
Caller: Umm, yeah the second box.
Receiver: The second box. Um, the, the, the second cord in, in, inside. We haven’t moved to the spot, is that correct?
Caller: Not yet.
Receiver: Um, um, yes, see, see, see inside. Maybe it inside, not outside.
Caller: Yes, yes, OK.
Receiver: Yes, yes but looking through that hole, seen anything?
Caller: I, inside very dark, I haven’t shone the torch. Let me see.
Receiver: No, no. That's fine. In brief, see anything not normal then take photos. Take photos near then far. As soon as, being opened, take photos right away. Take photos of all, keep all. Any matter talk tonight, OK. Don't call anymore.
Caller: OK.
Receiver: Delete the numbers yeah.
Caller: Yes, yes.
Receiver: OK
Between 6:25 and 8:15pm HO and NGO continued to remove gates from the shipping container. A surveillance device inside the factory and police surveillance shows:
(a)At 6:25 pm, NGO removed green metal gates using a forklift. HO assisted NGO on foot.
(b)At 6:28 pm, HO walked inside the warehouse of 93 East Derrimut Crescent and appeared to be carrying electrical extension leads and an angle grinder.
(c)At 7:18 pm, HO and NGO removed gates from the shipping container. NGO continued to use a forklift whilst HO assisted on foot.
(d)At 7:29 pm HO and NGO placed blue and red gates on the factory floor.
(e)At 7:39 pm, HO and NGO moved the blue gates to the opposite end of the factory floor.
(f) At 8:12 pm, HO handled a cutting disc tool.
At 8:30 pm, NGO and HO left the Derrimut Factory in 1BV1HI and travelled to 103 Whitesides Avenue, Sunshine where they remained.
REMOVAL OF THE PACKAGES FROM INSIDE THE STEEL GATES — 29 MARCH 2017
On 29 March 2017 at 7:30 am NGO, HO and TRAN arrived at the Derrimut Factory. Between 7:48 am and 7:52 am video from the surveillance device shows TRAN, HO and NGO using a forklift to remove the gates from the two shipping containers. TRAN, HO and NGO accessed the inert substance secreted within the 10 red gates and were observed moving a red gate to the opposite part of the factory.
At 7:57 am, TRAN left the Derrimut factory in vehicle UEB381. At 8:40 am TRAN using phone number 0411 116 938 sent 4 text messages to NGO, who was using mobile 0411 843 589, as follows:
1. TRAN - you two take the goods out of the blue/green container/gate
2. TRAN - Do it with extra care to avoid the body being pressed down
NGO – ok
3. TRAN – that one just leave there
4. TRAN – I’m waiting for the response
NGO – Ok
On 29 March 2017 at 9:40 am TRAN returned to the Derrimut factory in vehicle UEB381 and departed at 10:55 am.
RECORDING AND COUNTING OF PACKAGES OF INERT SUBSTANCES
On 29 March 2017 at 11:02 am TRAN using mobile phone number 0411 116 938 called NGO and instructed him to ensure all the materials were counted correctly and to tell HO to recount correctly:
TRAN: Allo Bro
NGO: Hello
TRAN: um, no counted again enough?
NGO: I am counting
TRAN: after counting …
NGO: yeah
TRAN:the amount should be correct. After counting, you, you because ah, the forklift will be returned this afternoon, then pull, try to pull, pull out and put in order there
NGO: yeah
TRAN:pull, pull out there, then shut the door and go home. Tell TU to recount carefully
NGO: Take that home or leave here?
TRAN: leave, leave, leave the whole lots there. Don’t take home any
NGO: ok
At 11:12 am TRAN again called HO to enquire about the progress of counting and instructed him to leave the items in the toilet:
TRAN: Hello
HO: not yet, not yet, I haven’t finished counting.
TRAN: um… after the counting done maybe
HO: you wait a little while, yes?
TRAN:after the counting done, leave then in the toilet, then you two go open that then go home
At 11:20 am TRAN called HO and [told] him to leave 50 aside in a box:
TRAN:Tu. Okay yeah?
HO:Yes, ive been counting to the last one.
TRAN:leave it 50 separately, one 50, 50 a box leave it aside, because someone may come to take 50
HO:Ok
TRAN:Ok, ok, count correct then message me, ok?
At 11:25 am, NGO called TRAN and advised him that everything counted was accurate. At 11:27 am TRAN sent a text message to NGO’s phone number 0411 843 589 asking if they had been counted correctly and NGO responded ‘Finished/done’. At 11:28 am TRAN sent a message to NGO ‘try to look outside the frames to see if they been dropped or fallen out or not’ and NGO responded ‘ok’.
Between 11:33 [am] and 11:39 am TRAN and NGO communicated further discussing how NGO should wait to pour water onto ‘the machine’, look again if any are short, and not touch the ‘black object’. TRAN confirmed with NGO ‘Short now means short of two pieces, correct?’ and told NGO ‘Look for, try to find them for me’.
At 11:41 am, TRAN called NGO to confirm that NGO has searched to see if any packages have dropped somewhere:
NGO: Hello
TRAN: Seen them?
NGO: No, No
TRAN: seen none, true
NGO: Yeah, true
TRAN:having searched all the boxes that have been opened and still seen none?
NGO:yeah, the other side correct, this side, have begun to find one, two pieces
TRAN: try to search again if dropped somewhere nearby
NGO: Yeah
TRANSPORT OF SUBSTITUTED MATERIAL TO 103 WHITESIDES AVENUE
From 11:30 am to 12:30 pm, TRAN instructed NGO and HO to:
(a) Reverse a vehicle into the factory
(b)Load up the vehicle with the substituted packages in the boot of the car
(c)Drive home and ensure that nobody is following NGO and HO when they are driving; and
(d)Drive straight into the garage, delete all messages from TRAN
At 11:44 am TRAN called NGO and had the following conversation:
NGO: Hello em
TRAN: found nothing?
NGO: No
TRAN: seen nothing at all?
NGO: seen nothing at all, checked thoroughly
TRAN:you now, reverse the car back in OK? Leave all there, reverse the car, then put… hey….listen carefully
NGO: put in what
TRAN: put into the car, put in the boot, move the car back in, move closest to the wall. Don’t let anyone see. Put in the car then drive home and park in the park in front of the house. Park a bit further away from home. Don’t park too close to the house.
NGO: at the park in front of our house?
TRAN: Yes, park farther up…. Or park on Mr Con’s street
NGO: yeah park, uh the dead end street that turns into the other road.
TRAN: that’s okay, do it quickly and close the door
TRAN: put them all in the car
AT 11:47 am, NGO reversed vehicle 1BV1HI into the Derrimut factory. NGO and HO subsequently loaded the packages containing substituted material into the vehicle. At 11:51 am TRAN called NGO and NGO confirmed the ‘stuff’ had been loaded into the car and TRAN advised him to drive the car carefully.
At 11:56 am NGO and HO were observed placing placed a number of flat pack boxes into vehicle 1BV1HI. At 12:00 pm TRAN sent a text message to NGO instructing NGO to park the car in front of the house and to delete all messages from him.
At 12:03 pm, NGO drove vehicle 1BV1HI out of the factory with HO as passenger.
At 12:07 pm, TRAN asked NGO ‘returned yet?’ and NGO responded ‘driving still on the way’. At 12:08 pm, TRAN messaged NGO and told him ‘tell Tien to drive carefully’ and ‘observe if anyone is following behind’. NGO responded ‘ok’. At 12:15 pm, TRAN messaged NGO and again asked ‘returned yet?’ and ‘where are you right now on the road?’ to which NGO responded ‘arrived at the railway’.
ARRIVAL AT 103 WHITESIDES AVENUE
At 12:16 pm TRAN sent a message to NGO’s mobile ‘tell Tien to drive straight into the Garage’. At 12:19 pm, NGO and HO arrived at the home they shared with TRAN at 103 Whitesides Avenue, Sunshine, drove into the driveway and parked behind vehicle UEB381. Subsequently, NGO opened the driveway gate and TRAN moved vehicle UEB381 to allow vehicle 1BV1HI to be parked towards the rear of the driveway.
At 1:14 pm, NGO departed 103 Whitesides Avenue in vehicle UEB381 and drove to the factory at Derrimut to return the forklift to KADS Hire. At 2:04 pm, NGO arrived at the Derrimut Factory where a white KADS Hire truck collected the forklift and drove it away from the Derrimut factory.
At 2:09 pm, TRAN sent an SMS to NGO asking if he was back yet and NGO replied ‘about to go back. he is driving / preparing to leave he is collecting the car’. NGO then locked the gates of the Derrimut factory and drove to 103 Whitesides Avenue, Sunshine where he arrived at 2:23 pm.
APPREHENSION
At 2:45 pm on 29 March 2017, police attended [103] Whitesides Avenue, Sunshine. TRAN was apprehended lying face down on the rear deck of the premises. After his arrest, TRAN stated in English ‘I’m not a bad guy, God’ and ‘Oh well, that’s life.’
Both HO and NGO attempted to hide from police to avoid apprehension. When the first attending police members approached through the backyard of the premises, HO ran from the back door to the front door. When HO subsequently observed Federal Agent Law open the front door, he turned around and ran down the hallway. HO was located standing behind a curtain in the front bedroom and arrested.
NGO was located hiding in the laundry, standing below a removed manhole in the ceiling.
SEARCH WARRANTS
Police located and seized the following items from the residential address at 103 Whitesides Avenue:
(a)301 packages of inert substituted material located in 5 suitcases and one white cardboard box inside the boot, on the front seat, on the back seat and on the floor of the backseat of vehicle 1BV1HI which was parked at the rear of 103 Whitesides Avenue. Each of the 5 suitcases had a small white piece of note paper affixed to the top of it with a handwritten number of either ’60,’ ‘60’, ’55,’ ’55’ and ’50.’ The number ‘21’ was hand written on a small white piece of notepaper attached to the cardboard box. The number of packages of inert substance stored inside the 5 suitcases and 1 box accurately matched with the number affixed to the top of the 5 suitcases and 1 cardboard box;
(b)Victoria registration plate 1BV1HI on the back deck of the premises next to a screwdriver. The registration plate had been removed from the Toyota Camry which was used to transport the 301 packages of inert substituted material;
(c) Grey gloves located on top of the coffee table inside the lounge room;
(d)Face mask, black jacket and pair of gloves in the boot of vehicle 1BV1HI;
(e)Bunnings receipt for a Makita cutting disc dated 21 March 2017 located in the driver’s side door of vehicle 1BV1HI;
(f) Business card for KADS Plant Hire;
(g) Dark blue Adidas cap on the coffee table of the lounge room;
(h) Part of a yellow container seal in the rubbish bin in the backyard;
(i)1 yellow high visibility jumper with a hood, 1 pair of navy blue shorts and brown belt located in Bedroom 3 under the ironing board;
(j)1 high visibility yellow and blue jacket with a high visibility yellow shirt located in the boot of vehicle UEB381;
(k)1 a pair of black and white Adidas branded men’s [shoes] on the front door step;
(l) Various mobile phones and electronic devices;
(m)Apple iPhone, Huawei mobile phone, Apple iPad and 1 x white mobile phone identified by TRAN as belonging to him.
The applicant and Ho participated in police interviews. Both denied any participation in the offending.
The wholesale value of 301.6 kilograms of methamphetamine ranges between $36.2 million and $75.4 million.
Neither the applicant nor Ho have any prior criminal history. Both men participated in a contested committal hearing on 8 February 2018. Subsequently, Tran indicated an intention to plead guilty on 22 January 2019, and, as we have stated, did so on 25 January 2019. Ho also pleaded guilty on 25 January 2019, at the conclusion of pre-trial argument.
The pleas of guilty
The prosecution made comprehensive submissions on sentence. Relevantly, it submitted:
·The maximum penalty for this offence is life imprisonment. This is objective confirmation that Parliament views this type of offending very seriously.
·Principles of general deterrence and denunciation are primary considerations in sentencing for this offence.
·An offence of attempted possession where the drug has been intercepted and replaced with an inert substance is not in a less serious category than an offence of importation.[1]
·The pure weight of the drug was 316.13 times the commercial quantity (‘CQ’) threshold.
·The roles of both Tran and Ho were critical to the offending. Tran was involved in all stages of the attempted possession of methamphetamine. Ho was less involved but importantly involved nonetheless.
·Inferentially, financial gain was the motive for both offences.
·Given that both offenders were residing in Australia unlawfully at the time of their apprehension, the prospect of deportation does not constitute an additional punishment to be taken into account in mitigation of sentence.
·The sentencing practices in comparable cases throughout Australia must be considered to ensure national sentencing consistency.
·In particular the highest CQ multiple previously considered was in Kuo v The Queen[2] (189.3 times the CQ).
·The Court was reminded that it must consider the issue of parity.
[1]Nguyen v The Queen (2011) 31 VR 673, 682–3 [34] (points 12 and 13) (Maxwell P) (‘Nguyen and Phommalysack’).
[2][2018] NSWCCA 270 (‘Kuo’).
A significant component of the prosecution submissions dealt with the issue of whether Ho had knowledge that the substance imported was a border controlled drug or was merely reckless as to that fact. The issue was ultimately determined against Ho and it is unnecessary to set out those submissions.
Having regard to comparable sentences referred to by the Crown, counsel for the applicant submitted that:
·Imprisonment was inevitable.
·Tran was 25 years of age at the time of offending and 28 at the time of sentence.
·He was born in Vietnam and has two older sisters.
·He was a victim of paternal violence as a child. He completed secondary school in Vietnam and completed one and a half years of a construction degree. He then worked in construction in South Korea.
·He came to Australia in 2013 to study business and construction at Swinburne University.
·He discontinued his course and his student visa lapsed in 2014 or 2015. He remained in Australia.
·He commenced a relationship in 2016 which, at the time of the plea, continued albeit that the applicant was obviously separated from his partner.[3]
[3]The applicant was on remand from the time of his arrest until the time of sentence.
·His younger sister has married and settled in Australia.
·He does not have an extensive substance abuse history, but was a cocaine user at the time of his arrest.
·Insofar as the offending is concerned, counsel submitted that the applicant was promised sponsorship for a working visa and employment in a coffee shop in return for assisting in an important job. He was also promised a ‘financial gain’, although the amount was not discussed. He claimed to have been coerced into continuing with the job after becoming apprehensive about its size when the lives of his sister and partner were threatened.
·It was conceded that Tran was aware of the number of packages that were expected to be in the gates and that this was conveyed to his co-accused.
·His conduct was relatively unsophisticated. He did not conceal his identity when hiring the forklift or when signing for the gates when they were delivered. He used normal SMS text messages to communicate with his co-accused.
·He cooperated with investigators during the execution of the search warrant on his house.
·His plea ought be considered to be early and had a significant utilitarian value. It was evidence of remorse, as were his assertions to his psychologist.
·There had been a substantial delay — of over three years —between the offending and sentence through no fault of the applicant. It ought be treated as a mitigating factor.
·The current global pandemic, and the vulnerability of the applicant as a prisoner on remand, was a significant source of anxiety, making prison more burdensome. The absence of personal visits also added to the burden.
·The applicant’s youth (though at age 25 at the time of offending, not a ‘youthful offender’ in the R v Mills[4] sense) and lack of prior convictions ought weigh in his favour, as must his good-to-excellent prospects of rehabilitation.
·The certainty of future deportation would be a hardship associated with his offending and its detection.
[4][1998] 4 VR 235, 241 (Batt JA, Phillips CJ agreeing at 1, Charles JA agreeing at 1) (‘Mills’).
Counsel for Tran tendered a medico-legal psychological report of Carla Ferrari, dated 8 March 2019, two certificates of completion of prison courses, and two letters of reference.
The judge’s reasons for sentence
The judge stated that he was satisfied that the co-accused Ho had actual knowledge that the materials he attempted to obtain were border controlled drugs.[5] His Honour then set out the circumstances of offending having ‘rel[ied] heavily on the summary of prosecution opening for plea for this purpose’.[6] We shall not repeat those circumstances. The judge observed that when the Toyota Camry, loaded with 301 packages, was driven from the Derrimut factory to the Whitesides Avenue address, counter-surveillance measures were undertaken.[7] The boot, rear seat and floor of the car were full of packages.[8]
[5][2020] VCC 536, [4] (Judge Stuart) (‘Reasons’).
[6]Ibid.
[7]Ibid [46]–[48].
[8]Ibid [49].
The judge correctly observed that the Commonwealth legislative scheme is quantity-based.[9] The judge then referred to the 13 sentencing propositions relevant to drug importation cases that were distilled from established authority in R v Nguyen,[10] and which were cited with approval by this Court in Nguyen and Phommalysack. Those principles are:
[9]Ibid [52].
[10](2010) 205 A Crim R 106.
1.The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
2.Problems may emerge when a sentencing court attempts to categorise the role of an offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the court.
3.It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
4. Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
5.Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
6.As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
7.The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
8.The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
9.Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
10.The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.
11.Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
12.Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.
13.Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.[11]
[11]Nguyen and Phommalysack (2011) 31 VR 673, 681–2 [34] (Maxwell P), quoted in Reasons [53].
The judge then reviewed ‘suggested comparative cases’, albeit that they usually involved much lower quantities of border controlled substances. His Honour expressed understandable caution in concluding that they disclosed any range for the instant offence, let alone a correct one.[12] He concluded this analysis by stating:
It is necessary therefore to turn to the general principles as articulated by his Honour Maxwell P [in Nguyen v Phommalysack] cited above in order for me to arrive at what I consider to be the appropriate sentences for each of you, taking into account all relevant matters in the instinctive synthesis approach that I must and will take.[13]
There is no error in this conscientious approach, nor has any been suggested.
[12]Reasons [62]. His Honour stated that he found himself ‘somewhat in the position that Beach and Kaye JJA adverted to in Lieu v The Queen [2016] VSCA 277’ at [46] of that judgment.
[13]Reasons [63].
In the context of objective criminality, the judge noted that the maximum sentence for the offence is life imprisonment,[14] that the quantity in this case was 229.6 kilograms and thus 306 times the CQ,[15] and had been valued between $36.192 million and $75.4 million.[16] Had this shipment not been detected the consequences of it entering the community would have been devastating.[17] His Honour, after referring to the judgment of Hamill J in R v Yuan,[18] commented that the amount of methamphetamine in this case was ‘simply staggering’.[19]
[14]Ibid [65].
[15]Ibid [66].
[16]Ibid [68].
[17]Ibid [69].
[18][2015] NSWCCA 198, [70].
[19]Reasons [71].
Given the maximum penalty and the quantity of the substance in this case, the judge observed that ‘this is offending which, depending on the accused’s knowledge and role … is potentially at the high end of objective gravity in this very serious offending’.[20] This statement is unarguably correct.
[20]Ibid [72].
His Honour then reviewed the activities of the two accused and their respective roles in the offending. It would be doing an injustice to the quality of these reasons for sentence to summarise these passages. We shall reproduce them in full:
I turn to what each of you actually did. Firstly, in relation to you, Mr Tran, you paid $10,340 cash, being the cost of the shipment of the containers. You arranged the logistics, the delivery of the containers. You arranged the hire of the forklift, its delivery and its use. You were present for part of the delivery and unloading of the containers. You were party to the commencement of the accessing of the parcels in the gates. You gave various and assorted direction to both Mr Ho and Mr Ngo to take photos of containers, be cautious of others seeing inside the Derrimut factory and to delete numbers and messages. You directed counting and recounting of the packages and the search for two apparently missing packages. You directed the setting aside of initially 21 packages and later 50 packages. On the drive from the Derrimut factory to your home you advised the driver to drive carefully to observe if anybody was following behind the vehicle. You enquired as to where the car was in its travel. You directed how the car was to be parked, initially away from the premises and then towards the rear of the driveway of the premises.
In terms of you, Mr Ho, you were involved in forcing open the gates and retrieving the packages, the counting and recounting of the packages as directed, the separating out of 21 and 50 packages into two separate boxes, the loading of the packages into the Camry, the disguising by hiding the packages in the back seating area by placing flattened cardboard boxes on top. You received and acted upon the phone calls as with directions from Mr Tran. You were present in the travel from the Derrimut factory to your home address.
In your case, Mr Tran, turning to the question of the duration of your involvement, your involvement with these shipping containers dates back to 17 and 18 March 2017, when you paid in cash for the shipping costs of the container and, on 21 March 2017, the hiring of the forklift truck used to unload the heavy gates from the containers. Your criminal conduct spans the two days of 28 and 29 March 2017.
You on the other hand, Mr Ho, had a more limited role timewise than Mr Tran. Your criminality only commenced on 29 March 2017 upon the cutting open of the first gate and the recovery of the packages hidden inside.
Though I have not given detailed reasons as to why I am not satisfied beyond reasonable doubt of any earlier criminal involvement in this enterprise, in essence the reason for that decision is because I was not satisfied beyond reasonable doubt, having regard to your evidence, of any earlier criminal involvement. The evidence against you was equivocal and though I was satisfied to a high degree of probability that you were aware on 28 March 2017 this, being an aggravating feature, must be proven beyond reasonable doubt. But plainly, on 29 March 2017 when you were a party to the cutting open of the gates and the recovery of the large number of packages and the counting of them, at that point of the cutting open of the gates you knew that the contents of the packages were a border controlled drug.
I turn to the question of whether, and when, each of you knew the size of the consignment in question. In relation to you, Mr Tran, by 28 March 2017 you knew that the gates contained a substantial quantity of border controlled drugs and, at least, by 29 March 2017 you knew the actual quantity of border controlled drugs which were to be recovered from the gates. This is evidenced by your knowledge that 10 of the 100 gates contained a border controlled drug and indeed which gates they were. You were present on 29 March 2017 when the first packages were removed from the first gate after it had been cut open. You directed that two sets of parcels, containing 21 and 50 parcels respectively, were to be set aside. Your repeated direction to count and recount the total number of packages in order to look for missing parcels clearly demonstrates that by 29 March 2017 you knew the precise number of parcels that were to be in the 10 gates.
On the other hand you, Mr Ho, only became aware of the size of the consignment during the course of the removal of the parcels from the 10 gates.
As to the question of expected financial return, in … Director of Public Prosecutions (Cth) v Maxwell[21] … in the joint judgment of Maxwell P, Weinberg and Priest JJA, their Honours at paragraph[s] 21 and 22 wrote:
[21](2013) 228 A Crim R 218.
In addition to the weight of the drugs imported (or trafficked), the financial reward received or anticipated by the offender is relevant to the objective gravity of the offence. Other things being equal, an importation which is undertaken because it will bring — or is expected to bring — a large financial reward to the offender will be more serious than one where the expected reward is small or non-existent. The underlying proposition is that the greater the (anticipated) reward of criminal conduct such as this, which inflicts such harm on the community, the higher the offender’s moral culpability.
As the High Court stated in Wong [v The Queen]:[22]
[22](2001) 207 CLR 584.
In general, … the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed.[23]
In your case, Mr Tran, the reward that you expect to receive is not known for your involvement in this enterprise, however, given its size and its value, in the tens of millions of dollars wholesale, I am satisfied that the only reasonable inference to be drawn is that the reward you expected was to be considerable. Thus, your involvement in this case was entirely motivated by greed.
In relation to you, Mr Ho, consistent with my finding that you only became aware of the existence of the parcels upon the opening of the first gate on 29 March 2017, your role on 28 March 2017 was that of a labourer, with your expectation on that day of receiving $150, or thereabouts, being the usual pay that you would get. Upon you becoming aware of the contents of the gates it cannot be said whether your reward would be little or much. If it were little, it would be a mitigating factor. If it were a great amount it would of course be an aggravating feature. In the circumstances where I cannot on the balance of probabilities find that your reward was to be as little as $150, and cannot find beyond reasonable doubt that your reward was to be much greater, as an aggravating feature it is a matter that I must put entirely aside in relation to you.
So, I turn to your respective roles. Your roles were very different from each other. You, Mr Tran, were the trusted organiser of this part of the enterprise, arranging everything from the collection of the containers, their delivery to the storage facility, the availability of the forklift, the recruitment of both Mr Ho and Mr Ngo as labourers, and then couriers, and you giving directions to them throughout both days. Those directions included ensuring that the packages were found, counted and recounted, countersurveillance directions for the trip from the storage facility to your residence and all the other small things that are referred to in the text messages and the spoken conversations that shows that your role was that of the trusted organiser of this enterprise.
You on the other hand, Mr Ho, only knew the true purpose of your engagement by Mr Tran upon the first gate being cut open. Thereafter you, without question or any dissent, willingly did all the things required of you, including the counting and recounting of the packages and the separation of two boxes containing the 21 and 50 packages. You further were involved in relaying messages during the course of the trip back to your premises at a point in time where you well knew the sheer size of the border controlled drugs that you helped to unpack and move.
In short you, Mr Tran, played a pivotal role in a critical part of this enterprise. You, Mr Ho, played a discrete but also critical role in recovering and transporting these 301 packages. In your case, Mr Tran, your moral culpability is at the extremely high level. On the other hand, in relation to you, Mr Ho, your moral culpability approaches the high level, though for a relatively short period of time.
It is to be borne in mind that what occurred on 29 March 2017 was a critical part of the successful enterprise of retrieving the packages that had been so cunningly hidden in the 10 gates. You, Mr Tran, well knew the dangers associated with this particular part of the enterprise and, I am satisfied beyond reasonable doubt, it was with that in mind that you absented yourself from the vast bulk of the exercise of retrieving the packages from the gates on 29 March 2017 and used Mr Ho and Mr Ngo as couriers, distancing yourself all the while to protect yourself from the possibility of being associated with this enterprise.[24]
[23]Ibid 608 [64] (Gaudron, Gummow and Hayne JJ) (emphasis added).
[24]Reasons [74]–[87].
The judge then summarised the applicant’s background, as outlined in counsel’s submissions.[25] His Honour considered the applicant’s substance abuse to be of ‘no moment’ to his prospects of rehabilitation. The judge referred to letters of support written by Tran’s girlfriend and sister. He then turned to the psychological report of Ms Ferrari. The judge effectively stated that insofar as that report raised the issue of exploitation of Tran as a vulnerable and coerced individual, he rejected it and adhered to his finding that Tran was a ‘trusted agent’ for his employers and that he carried out his role in the importation enterprise with no appearance of reluctance and ‘did so for greed’.[26]
[25]Ibid [88]–[103].
[26]Ibid [99].
The judge noted Tran’s expression of remorse to Ms Ferrari, and accepted that the applicant was now remorseful and appreciated the full gravity of his conduct.[27]
[27]Ibid [100]–[103].
The judge set out Ho’s personal background, which was unremarkable. He was 23 years old at the time of offending and 25 at the time of sentence. He was born in Vietnam, where his parents remain. He is an only child. At the time of sentence his mother was terminally ill. After completing secondary school he came to Australia on a student visa. The transition was difficult and he deferred his studies because of language difficulties. He worked in menial jobs and regularly sent money home to his family.[28] The judge, having heard evidence from Ho on the contested factual aspects of the plea, formed the view that he was a ‘somewhat naive and compliant young man, in stark contrast to the way in which Mr Tran conducted himself on 28 and 29 March 2017’.[29]
[28]Ibid [104]–[108].
[29]Ibid [109].
The judge noted that each accused pleaded guilty and were entitled to a utilitarian sentencing benefit as a consequence.[30] The pleas were also accepted as evidence of remorse. After referring to Azzopardi v the Queen,[31] his Honour turned to Tran’s position. His Honour said:
In relation to you, Mr Tran, you were 25 years old. You are a mature man. You carried yourself with authority. It was you who exhibited not inconsiderable organisational skills. What you did was not in any way spontaneous or explained in part by your suggested youth. This is precisely the situation described in Kuo … In the joint judgment of Hoeben CJ at CL, Davies and Hamill JJ at paragraph 91, their Honours wrote:
The difficulty in this case is to find guidance in the decided cases as to how to deal with the particular facts which involve a very large importation (in excess of 180 times a commercial quantity) of a prohibited drug. Kuo’s age is not of great assistance to him because this was not a spur of the moment offence involving a lack of maturity, impulsivity and emotion. He was part of a sophisticated plan, the purpose of which was to import into Australia a very large quantity of a dangerous drug. This was very much adult offending and should be treated as such from a sentencing point of view.[32]
[30]Ibid [110].
[31](2011) 35 VR 43, 53–4 [34]–[36], 57 [44] (Redlich JA).
[32]Reasons [113].
The judge declined to allow Tran any sentencing benefit for the prospect of deportation.[33] He considered that the three-year delay between apprehension and sentence was relevant, and he accepted that prison would be made more onerous for both accused consequent upon isolation, language difficulties and the COVID-19 lockdown effects on prison life. The judge also took into account the serious ill-health of Ho’s mother.[34]
[33]Ibid [115].
[34]Ibid [116]–[118].
The judge stated that general deterrence and denunciation were the primary sentencing matters to be taken into account. Stern punishment was necessary to deter others, notwithstanding Tran’s good prospects for rehabilitation and Ho’s very good prospects.[35]
[35]Ibid [119].
Insofar as parity is concerned, the judge concluded by stating:
There are many reasons which I have endeavoured to articulate as distinguishing between your respective roles and personal circumstance[s] and in the latter regard your youth, Mr Ho, and your concerns for your mother in Vietnam. Therefore, there is need for a very significant and different sentence to be imposed upon you, Mr Tran, than that imposed on you, Mr Ho.
I have reflected long and hard about the sentences that I must impose on each of you, both still young men. In relation to you, Mr Tran, your criminality is of very high order in attempting to commit an offence of great gravity. In relation to you, Mr Ho, your criminality is towards the lower end of very serious offending.[36]
This application
[36]Ibid [120]–[121].
Grounds 1 and 2: Parity and mischaracterisation of role
It is convenient to consider grounds 1 and 2 together. The combined effect of these grounds is to contend that the disparity between the two sentences cannot be explained either by any differences in personal circumstances between Tran and Ho, or by Tran’s greater role in the offending, or by any combination of these factors.
Tran, in written submissions, contends that the disparity is extraordinarily large:
The applicant received a head sentence (23 years and 6 months) which is 17 years and 3 months longer — and 3.76 times — that imposed on HO (6 years and 3 months). There is only a two-year age difference between the two men, however HO will complete his sentence in 2023 at the age of 29, whilst the applicant will be aged 49 when he completes his sentence in 2040. Their pre-sentence detention was identical.
Further, the applicant received a non-parole period (15 years and 6 months) which is 11 years and 9 months longer — and 4.13 times — that imposed upon HO (3 years and 9 months).
Further, the section 6AAA declarations (which do not themselves give rise to specific error) are in this case indicative of underlying error as regards parity. The applicant pleaded guilty at an earlier stage than his co-accused, and unlike HO did not contest any aspects of the plea, yet he received a head sentence discount of just 16%, compared to HO’s 30%, and a non-parole period discount of only 26%, compared to HO’s 37.5%.[37]
[37]Emphasis in original.
Tran went on to submit that the age difference between the co-accused was only two years, neither had any prior criminal history, and Ho’s mother was, it seems, receiving palliative care in Vietnam.
In oral submissions counsel for Tran conceded that his role was significantly more criminally culpable than Ho’s role but submitted that the disparity in sentences was so great as to be inexplicable by reference to their respective roles and subjective circumstances. She contended that the respective 6AAA declarations were disproportionately different, and bespoke underlying error.
Ground 6 was argued as a particular of ground 1: it was submitted that there was no good reason for the judge to conclude that Ho’s prospects for rehabilitation were ‘very good’ while Tran’s were merely ‘good’. In support of ground 2, the applicant advanced the submission that the judge had erred in ascribing to Tran responsibility for collection and delivery of the containers to the warehouse and thus it was not open to his Honour to conclude that Tran was a ‘trusted organiser’. It was never established that ‘John Chan’[38] was an alias used by the applicant.
[38]See SPO at [7] of these reasons.
The respondent submitted that it was reasonably open to the sentencing judge to differentiate between the offenders in the way in which he did,[39] giving ‘proper weight to the similarities and differences between them as regards culpability, criminal record and personal circumstances’.[40] The respondent noted that in determining a complaint of marked disparity between co-offenders’ sentences, the court must bear in mind that sentencing is not a mechanical exercise where circumstances are measured with arithmetical certainty. The proper approach involves an instinctive synthesis of the relevant competing circumstances.[41]
[39]See Collins v the Queen [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (‘Collins’). See also Gorman v The Queen [2019] VSCA 128, [41] (Priest and Kaye JJA) (‘Gorman’).
[40]See Barbaro v The Queen [2012] VSCA 288, [63] (Maxwell P, Harper JA and T Forrest AJA).
[41]See Tran v The Queen [2017] VSCA 346, [22]–[24] (Ashley JA) (‘Tran’).
The respondent submitted that the judge had proper regard to the principle of parity and that no ‘justifiable sense of grievance’ could arise given that Tran’s role was ‘pivotal’ to the offending and ‘far more critical and extensive’ than that of Ho. Tran was a trusted organiser of the ‘delivery and retrieval end of the enterprise’ and bore responsibility for overseeing and directing the activities of both Ho and Ngo. By 28 March 2017, Tran knew that the gates concealed a substantial quantity of drugs, and by 29 March he knew the actual quantity of drugs so concealed. Against this, Ho’s activities were limited to retrieving packages from the gates, counting and recounting the packages, loading and disguising the packages in the car, and transporting them — all under Tran’s direction. Ho only knew the true purpose of his engagement when the first gate was cut open on 29 March; his offending was limited to that day, whilst Tran’s offending spanned 28 and 29 March.
The respondent submitted that it was open to the judge to find Tran’s criminality to be of a ‘very high order’, whereas Ho’s was ‘towards the lower end of very serious offending’,[42] and that it was also open to his Honour to conclude that Ho’s personal circumstances had a greater mitigating effect than those of Tran.
[42]See Reasons [121]
We are not satisfied that the applicant has established ground 2. In short, whilst we consider that the judge made relatively minor factual errors in drawing together the factors that led him to characterise Tran as a ‘trusted organiser of this part of the enterprise’,[43] there was an abundance of evidence that would justify that conclusion in any event. Specifically, the judge stated that Tran ‘arranged the logistics [and] the delivery of the containers’.[44] In a further passage, the judge stated that the applicant ‘arrang[ed] everything’, including ‘collection of the containers [and] their delivery to the storage facility’.[45] It may be accepted that it was no part of the evidence that Tran himself arranged for collection of the containers or their delivery. The respondent did not contend otherwise. Notwithstanding this, the other evidence about Tran’s activities amply justified the judge’s characterisation. In particular, we refer to the following:
[43]Ibid [84] (emphasis added).
[44]Ibid [74].
[45]Ibid [84].
·Tran paid the shipping costs of the two containers on 17 and 18 March 2017.
·Tran arranged for the forklift hire and for its delivery.
·Tran directed the use of the forklift and the manner in which Ho and Ngo were to access the parcels concealed within the gates.
·Tran directed an unknown caller to take photographs of any concerning abnormalities observed during the unpacking process.
·Tran directed the setting aside of 21 packages, and later 50 packages.
·Tran directed the manner in which the car transporting the packages was to be driven and parked.
·Tran was criminally involved over 28 and 29 March 2017.
·Tran was present when the 301 packages were delivered to the home he shared with Ho and Ngo.
·The assertive language and content of the applicant’s recorded conversations with his employees bespoke his command over them.
There was ample evidence to justify the judge’s conclusion that Tran was a ‘trusted organiser of this part of the enterprise’ and the error the applicant attributes to him is entirely immaterial. Leave to appeal on ground 2 must be refused.
The question remains whether the disparity in sentences between Ho and Tran was reasonably open to the sentencing judge. Tran’s head sentence was 376% that of Ho; his minimum term before parole eligibility was 413% that of Ho.
In Collins, the established principles relating to the principle of parity were set out:
The principles governing parity are well-established. Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way in which he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[46]
These principles were recently cited with approval in Gorman.[47]
[46]Collins [2015] VSCA 106, [23] (Whelan, Santamaria and Beach JJA) (citations omitted).
[47]Gorman [2019] VSCA 128, [41] (Priest and Kaye JJA).
We are mindful that sentencing is not a mechanical exercise wherein comparative circumstances of offenders are weighed with arithmetical certainty,[48] however, disparity arguments inevitably involve numerical comparison together with an evaluation and comparison of other, less commensurable factors. Our conclusion after taking account of all these factors is that the gulf between the two sentences is manifestly excessive and apt to give rise to a justifiable sense of grievance.
[48]See Tran [2017] VSCA 346, [24] (Ashley JA).
The vast disparity between the sentences can only be explained by the differences in role between the two co-offenders. Apart from the sad predicament of Ho’s mother, there was little in the personal circumstances of the co-offenders to distinguish them. Both were relatively young (Ho 23 at the time of offending, Tran 25), neither had any prior criminal history, and each would likely be deported upon completion of his sentence — though in Ho’s case this outcome was welcomed due to his anxiety about his mother in Vietnam.[49]
[49]Reasons [118].
It may be accepted that Ho’s participation in the offending demonstrated a significantly lower criminality than did Tran’s, however, Ho’s criminality was serious nonetheless. At one stage in the oral hearing counsel for the respondent described Ho as a mere ‘patsy’, although, upon reflection, this descriptor was amended to ‘foot soldier’. In our view, this undervalues Ho’s limited but highly criminal involvement. Ho contested his state of knowledge at the plea hearing and, as we have observed, contended that his involvement was reckless. The judge found that he had actual knowledge that the 301 packages that he helped retrieve, count, recount and transport contained a border controlled drug. We note that in the SPO the prosecutor described Ho’s role as ‘critical’:
[T]he Crown’s position is that both Mr Tran[’s] and Mr Ho’s roles were critical. Mr Ho in particular had a very important role in what he did on both days and particularly the removal [of the drugs] from the gates and assisting Mr Ngo … and what he did in relation to counting and recounting.
Later on the plea the prosecutor had the following exchange with the judge:
PROSECUTOR: Yes, discrete but critical I think was the quote I’ve got. I fully endorse that characterisation, your Honour. It’s one day, the knowledge only starts — or the criminality for Mr Ho only commences at the time the gate — the first gate was cut open and the first package was removed.
HIS HONOUR: Nonetheless he engaged in very serious offending.
PROSECUTOR: And he continued. He didn’t desist and was [involved in] all of the transport, back in the car, all of the subterfuge that was used and all the rest of it. Subterfuge is the wrong word, counter-surveillance measures.
Tran’s offending took place over two days, although his prior activities in making payment for shipping and hiring the forklift help place his offending, and his role in the offenders’ hierarchy, into context. It was accepted on the plea that Tran engaged Ho and Ngo to carry out the labour relating to the retrieval of the drugs. It was further accepted that Tran himself was engaged by those higher up the criminal hierarchy to carry out this hazardous aspect of the importation. Tran was a trusted employee carrying out a role vital to the offending, with an expectation of significant gain. It is plain that he was considerably more criminally culpable than Ho, who acted at Tran’s behest and whose financial expectations could not be evaluated on the evidence. However, whether Tran was 376% more criminally culpable than Ho is another question.
There were other, less important distinctions between the two offenders. Ho ran from the police, while Tran gave up immediately. Tran pleaded guilty at a slightly earlier stage and his plea was factually uncontested. Both men ran a contested committal. Ho contested significant facts at his plea hearing. Delay was an important factor going particularly to the favour of Tran, whose sentence was delayed for many months as a consequence of Ho’s factual contest and the impact of COVID-19 on the court schedule.
Notwithstanding the differences in their roles, we have concluded that the very considerable disparity between the sentences of Tran and Ho was not reasonably open to his Honour. Despite the conscientious and thorough analysis of the underlying facts by this very experienced judge in the criminal jurisdiction, the difference in their respective sentences is of such magnitude that it could not reasonably be ascribed to the differences in their respective roles and circumstances. The difference in their sentences was such as to give rise to a justifiable sense of grievance on Tran’s part.
Leave to appeal is granted on ground 1, and the applicant has established that ground.
Our conclusion on ground 1 will require us to resentence the applicant, nevertheless in deference to the high quality of the judge’s sentencing reasons we shall briefly express our conclusions as to grounds 3–8. Ground 9 (manifest excess) need not be considered.
Ground 3
The applicant contended under this ground that the judge erred in sentencing the applicant for acts which predated the period of offending. There is nothing in this ground. The judge certainly used the applicant’s prior payment of the shipping costs (17 and 18 March) and hiring of the forklift (21 March) as background or context to the offending.[50] This was relevant to Tran’s role in the events of 28 and 29 March 2017, but was not part of the offending conduct for which he fell to be punished. The judge was astute to this distinction and made it clear:
In your case, Mr Tran, turning to the question of the duration of your involvement, your involvement with these shipping containers dates back to 17 and 18 March 2017, when you paid in cash for the shipping costs of the container and, on 21 March 2017, the hiring of the forklift truck used to unload the heavy gates from the containers. Your criminal conduct spans the two days of 28 and 29 March 2017.[51]
[50]See ibid [74].
[51]Ibid [76].
Leave to appeal under ground 3 is refused.
Ground 4
Ground 4 advances the contention that it was not open to the judge to conclude that Tran expected a considerable financial reward and was motivated by greed. This ground contains no more merit than ground 3. It was advanced from the Bar table by plea counsel for Tran that his expectation was that he would receive sponsorship towards Australian citizenship and a job in a coffee shop. This assertion was unsupported by any evidence. Our conclusions as to the applicant’s role are essentially those of the trial judge, which are set out at [20] of these reasons.[52] As has been stated several times, he was a trusted organiser of this part of the enterprise, engaged by those higher up in the informal criminal hierarchy. From 28 March, he knew that the gates being imported contained a substantial quantity of a border controlled drug, and by 29 March, it is clear, he knew the precise amount expected with sufficient precision that he called for a count and then a recount of it. It was not only open to the judge to conclude beyond reasonable doubt that the reward Tran expected was ‘considerable’, but, in our view, given the size and value of the drug consignment, this conclusion was irresistible.
[52]With the exception of the ‘collection and delivery of the containers’ as set out at [36] of these reasons.
Leave to appeal on ground 4 is refused.
Ground 5
The applicant submits under this ground that the judge erred in finding that the applicant deliberately absented himself from the vast bulk of the exercise of retrieving the packages from the gates so as to distance himself from the criminal enterprise and thus to avoid detection. We consider that it was open to the judge to reach this conclusion. On 28 March 2017 the applicant was observed at the Derrimut factory for approximately two and a half hours in all. Ho and Ngo were present at that location for at least five hours. On 29 March Tran was present for approximately one hour and 45 minutes, in the morning. Ho and Ngo were at the factory for about four and a half hours, after which they drove the Toyota Camry loaded with the 301 drug packages to 103 Whitesides Avenue, where the two lived with Tran. Throughout the period from approximately 11:00 am to 12:15 pm, Tran issued instructions via phone calls or text messages concerning removal, counting and recounting, searching for any missing packages, packing the car and counter-surveillance measures to be taken.
We consider that it was open to the judge to be satisfied that Tran wished to absent himself from the factory out of a desire to avoid apprehension in the event that the unpacking exercise was detected. That is what drug importers do.
We would refuse leave to appeal on ground 5.
Ground 6
As we have noted, ground 6 was argued as a particular of ground 1. It need not be further discussed although the applicant’s youth at the time of offending and prospects for rehabilitation will be taken into account in the resentencing exercise.
Ground 7
This ground contends that the judge failed to take into account the increased burden of imprisonment on the applicant due to his concern about being deported. It will be recalled that the judge declined to take account of this factor. In his sentencing reasons, his Honour stated:
In relation to you, Mr Tran, the prospect of your deportation has been raised as a matter that I should take into account. However, your student visa expired on 28 April 2013, approximately four years prior to this grave offending. You only remained in Australia whilst you avoided detection. You did not seek any extension of your visa and thus you were an unlawful non-citizen. To take into account the prospect that you have lost an opportunity to remain in Australia, given the gravity of your offending against Australian law and the potential consequences to our community had this enterprise not been detected, would make it perverse for me to take any such loss of opportunity into account.[53]
[53]Reasons [115].
The applicant contended that in this passage the judge focused only on deportation as a further punishment, and not on its adding to the burden of imprisonment. This distinction is elusively subtle. In our view, even if there is some philosophical difference between further punishment and an additional burden upon existing punishment, it is meaningless in common-sense sentencing. Leave to appeal on ground 7 is refused.
Ground 8
The applicant contends that the learned sentencing judge failed to take into account the additional burden of imprisonment occasioned by the applicant’s anxiety regarding COVID-19. It must be remembered that the plea hearing commenced in August 2019 and concluded in late April 2020. The community’s knowledge of COVID-19 was embryonic at that stage, as was any effect of it on sentencing jurisprudence.
In his sentencing remarks, the judge emphasised that he took the consequences of COVID-19-related lockdown conditions into account, together with the loss of privileges that would otherwise be available to the applicant while imprisoned. There is no error in this approach, although in our resentencing exercise, knowing what we know now about COVID-19, its highly infectious Delta strain, and the additional burden of anxiety created by the unsuitability of the prison environment for COVID-safe measures, we may give this factor more weight than would have been the case were we sentencing the applicant in 2020. Further, from the vantage point of late 2021, in resentencing Tran, we will view the utilitarian value of his plea of guilty along the lines suggested in Worboyes v The Queen.[54]
[54][2021] VSCA 169 (‘Worboyes’).
Resentence
We take into account the following factors in resentencing the applicant:
(a) The size and scope of the offending. It is at the highest level and calls for stern punishment.
(b) The applicant’s role in the offending. He was a trusted organiser of the attempted unpacking and transporting of all 301 packages that constituted the drug shipment. He directed the activities of Ho and Ngo, who he recruited to his part in the enterprise. He was motivated by greed and expected considerable enrichment. In turn, the applicant was employed by others to carry out his role in the offending and was given orders by them as to how this should be effected. We accept the judge’s characterisation of Tran as a ‘trusted organiser of this part of the enterprise’. We have emphasised this phrase because it is clear that Tran’s role, while trusted by his superiors in the overall criminal enterprise, and critical to its success, was confined to two days of criminality and represented a discrete aspect of the overall attempted importation. That said, Tran’s criminality in this most serious offence carrying a maximum penalty of life imprisonment is high.
(c) The lesser criminality of Ho’s role in the offending. As we have observed, Ho was recruited by Tran, was involved criminally for only one day and was very much subservient to Tran, receiving orders and acting upon them. He was not, however, a ‘foot soldier’. By the end of the attempted importation, Ho had knowingly unpacked and delivered what he thought was a vast quantity of a border controlled substance. Whilst Tran’s offending was grave, Ho’s offending was serious itself and cannot now be trivialised.
(d) The three-year delay from arrest to sentence. We consider this to be a factor that weighs in the applicant’s favour. Tran was arrested on 29 March 2017 and remanded in custody; he participated in a contested committal hearing in February 2018; he attended various preliminary hearings throughout 2018; and he pleaded guilty upon arraignment on 25 January 2019. Thereafter, over the next 15 months, the plea proceeded in a piecemeal fashion due to COVID-19-related interruptions and Ho’s factual contest at his plea. The delay is substantial, although probably unavoidable given the unusual circumstances that have tested the court system in the last year and a half.
(e) The absence of prior convictions.
(f) Tran’s good prospects for rehabilitation.
(g) The need to give general deterrence primacy in the sentencing equation. Denunciation must also be given weight.
(h) The applicant’s remorse, evinced by his plea of guilty and psychological report.
(i) The utilitarian value of the applicant’s plea of guilty, which is particularly significant in the context of the COVID-19 pandemic.[55]
[55]See Worboyes [2021] VSCA 169.
(j) The COVID-19-related restrictions in the prison system, which have added to the burden of imprisonment. The applicant has had two visits in 18 months. We also refer to our remarks under ground 8.
(k) The principle of parity. The resentencing exercise must reflect an appropriate and proportionate disparity between the applicant’s sentence and that of Ho.
(l) The 13 sentencing propositions set out in Nguyen and Phommalysack and at [16] of these reasons.
Conclusion
For the foregoing reasons, we grant the applicant leave, and allow the appeal against sentence on ground 1, and order that the sentence imposed on 29 April 2020 be quashed. In its place, we order that the applicant be imprisoned for 18 years. We direct that 12 years of that sentence be served before the applicant becomes eligible for parole. It is appropriate that we indicate that, if we were sentencing the applicant in the absence of the sentence imposed on his co-accused Ho, our sentence would have been significantly higher.
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