Tran v The Queen
[2012] VSCA 110
•22 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0312
| CHIEN TRONG TRAN | |
| Applicant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | MAXWELL P and NEAVE JA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 22 May 2012 |
DATE OF JUDGMENT: | 22 May 2012 |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 110 |
JUDGMENT APPEALED FROM: | R v Tran (Unreported, County Court of Victoria, Chief Judge Rozenes, 28 October 2011) |
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CRIMINAL LAW – Appeal – Sentence – Cultivation of narcotic plants and theft of electricity – Acquired brain injury and depressive illness – Reliance only on Verdins 5 and 6 on plea – No reliance on Verdins 1 or 3 despite evidentiary foundation – Whether causal connection between offending and mental condition required to mitigate general deterrence or moral culpability – Whether Verdins altered by Muldrock v The Queen (2011) 244 CLR 120 – No inconsistency between Verdins and Muldrock – Principles unaltered – Leave to appeal granted but appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Theo Magazis & Associates |
| For the Crown | Mr T Gyorffy SC | Mr Craig Hyland, Solicitor for Public Prosecutions |
MAXWELL P
NEAVE JA:
On 12 July last year the applicant, now aged 47, pleaded guilty to two charges of cultivation of narcotic plants and two charges of theft. He was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1 Cultivation of narcotic plants 15y 12m Base 2 Theft 10y 3m 1m 3 Cultivation of narcotic plants 15y 9m 3m 4 Theft 10y 2m 14 days Total Effective Sentence: 16m 2 weeks Non-Parole Period: 9m Section 6AAA Statement: 24m with a non-parole period of 18m
The applicant’s ex-wife and co‑offender pleaded guilty to one charge of possession of equipment for the purposes of trafficking and was sentenced to nine months’ imprisonment, suspended for two years.
The applicant seeks leave to appeal against sentence on the following ground:
The sentencing judge erred by:
(a)failing to properly or adequately mitigate the Applicant’s offending as a consequence of his brain injury;
(b)confining his mitigation of the Applicant’s sentence for his brain injury to the issues of whether gaol would weigh more heavily upon him or cause further decline in his mental health.
We note, as counsel pointed out, that no manifest excess ground is raised. Rather, this is said to be specific error.
Because of the applicant’s earliest possible release date of 27 July 2012, this matter has been referred to this Bench for determination of the leave application (without the ordinary process of a single judge considering the leave application) so that, if leave were granted, the appeal could be heard instanter. That is a process much to be commended. It reflects the Court of Appeal Registry’s policy of ensuring that, where non‑parole periods are to expire within a short time, the application or appeal, as the case may be, is brought on as quickly as possible.
There is before the Court an application for an extension of time within which to make the application for leave. We grant the extension of time and we would grant leave to appeal, but dismiss the appeal for reasons which follow.
Before stating our reasons, we would wish to record our appreciation of the high quality submissions afforded to the Court both in writing and orally. Oral argument was succinct and clear. It was a model of appellate advocacy on both sides.
The offending was summarised in the prosecution opening as follows:
On 31st March 2009, police executed a search warrant at a house at 169 McIntyre St Sunshine. The accused Tran was present and was arrested. Police found a large quantity of hydroponic equipment at the house, including plant pots, light shrouds, charcoal filters, electrical transformers, power boards and light globes. They also found documents connecting Tran and his co-accused (Tran’s ex-wife) to the house and another property at 11 Frobisher St Melton. They found documents connecting Tran to another property at 11 Neil St Sunshine. Police also found a set of keys containing a front door key and a garage key to a rear shed at 11 Frobisher St. These were located on the laundry window sill. It is the Crown case that both accused were living together on and off at 169 McIntyre St. Police also located a lease agreement for 11 Frobisher St between Hau and Le Tan Ny. Hau was the registered owner of the property.
Later that day, police executed a search warrant at 11 Frobisher St Melton. It was evident that nobody resided at the house. At this location police found a large scale hydroponic cannabis operation. A total of 97 plants were growing in 4 separate rooms in the house. The usable portions of the plants weighed 33.9 kilos. A commercial quantity of cannabis is 25 kilograms. A botanist who inspected the crop stated that the older plants had been growing for 11-13 weeks post nursery phase. Tran’s fingerprints were located on soft drink cans and a light shroud which was part of the growing apparatus.
Also found at 11 Frobisher St Melton was an electrical by-pass system which had enabled unmetered electricity to the value of $6662.26 to be stolen.
Police also located a computer and analysis of the hard drive revealed photos of the children of both accused and the accused Hau. Also on the computer was a document in the name of Hau regarding the birth of their daughter.
On 7th April 2009, police searched a house at 11 Neil St Sunshine. They gained access by using a key provided by Tran. The house had been purchased by him on 8th December 2007 through Douglas Kay Real Estate. Police found an electrical by-pass and the remains of a cannabis crop. The Crown is unable to say when the crop was grown or what quantity of cannabis was harvested. It is uncertain what quantity of electricity was stolen.
The accused Tran was arrested on 7th April and conveyed to the Sunshine police station. He was unfit to be interviewed.
Police charged Tran. They obtained a witness statement from Hau on 21st April 2009. She stated that she had leased 11 Frobisher St to another person and had no knowledge of any drug crop at the house. She produced a handwritten document purporting to be a lease between her and Chi Van Nguyen and said that she leased the property to him in October 2008. Following Tran’s committal, Hau was jointly charged with Tran in relation to both McIntyre St and Frobisher St. The Crown accepts that the evidence is insufficient to establish her complicity in these drug crops. She has instead pleaded guilty to possession of articles for the purposes of trafficking based on what was located at McIntyre St. She had denied any knowledge of the drug crops.
The Crown case is that Tran grew the crops at Frobisher St and Neil St. Although the cannabis located at Frobisher St exceeded the commercial quantity, the Crown does not assert that Tran intended to grow a commercial quantity of the drug. Hau is charged in relation to possession of the hydroponic equipment found at McIntyre St where she lived.
The sentencing remarks of the trial judge were summarised in the Registrar’s neutral summary as follows:
The applicant was born and educated in North Vietnam. He left school at the age of fourteen and worked as a farm labourer for seven years, and later entered the Vietnamese army.
The applicant left Vietnam in 1998 and spent three years in a refugee camp where he met his ex-wife and co-offender Hau. The applicant arrived in Australia in the early 1990s and worked in a number of trade jobs before being involved in a motor vehicle accident.
As a result of the accident, the applicant’s ability to care for himself was severely limited. He spent six months in a rehabilitation hospital and was then cared for by his ex-wife. He is now cared for by his son and daughter.
A report of Dr Danny Sullivan stated that as a result of the accident, the applicant:
a.Suffered severe brain and orthopaedic injuries which had, amongst other mental and physical repercussions, impacted his higher mental function and behaviour;
b.Is currently functioning at a very low functional level and suffers from 78% impairment;
c.Has a very poor prognosis and his condition is unlikely to improve;
d.Is unlikely to work again and cannot live independently.
Defence counsel sought to rely on Dr Sullivan’s report to support a submission that the fifth and sixth principles in Verdins[1] applied. The prosecution conceded the application of these principles but rejected any suggestion that his Honour could properly mitigate the applicant’s penalty based upon any reduction in his moral culpability. Defence counsel did not seek to persuade his Honour otherwise.
The applicant received a substantial payout from the Transport Accident Commission, and some of this money was used to purchase a property in Sunshine. As it was uncertain at the time of sentence if the property would be forfeited, his Honour did not have any regard to this fact in sentencing the applicant.
His Honour had serious reservations about the extent of the applicant’s involvement and thought it clear that the drug operation was a commercial one. Nonetheless, his Honour sentenced the applicant on the basis that he pleaded guilty to cultivation simpliciter and that it was arguable that he was not alone in the endeavour.
His Honour took into account the applicant’s plea of guilty, his lack of prior convictions and his mental and physical health so far as that is relevant to the application of the fifth and sixth principles of Verdins. His Honour did not accept that the applicant’s personal circumstances and his health issue were such as to justify, in the circumstances of his offending, anything other than a custodial sentence to be served immediately.
[1] R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).
It is clear, in our view, that the Verdins issues were appropriately – and thoroughly – explored by defence counsel on the plea in mitigation. As will appear, however, counsel for the applicant in this Court (who did not appear on the plea) drew attention to the High Court decision in Muldrock,[2] delivered subsequent to the plea. That decision, it is said, shows that error was inadvertently made by the sentencing judge.
[2] Muldrock v The Queen (2011) 244 CLR 120 (‘Muldrock’).
On the plea, defence counsel made it clear from the outset – and repeated it during argument – that he relied only on Verdins 5 and 6.[3] Twice defence counsel disavowed reliance on Verdins 1, that is, the proposition that moral culpability may be reduced by reason of the relevant mental impairment.
[3]The references are to the numbered propositions in Verdins (2007) 16 VR 269, 276 [32].
Counsel raised Verdins 3 and 4 (which are to do with general and specific deterrence respectively) but abandoned reliance on those propositions. We refer first to defence counsel’s statement, ‘ … I do take some comfort out of number 5 and number 6’. The judge later said ‘I think the clear position is that it’s 5 and 6 that really is the score points.’ Counsel then said, ‘and I confine myself to that’.
It is quite clear that defence counsel was properly alive to the discussion in Verdins (and in the cases to which Verdins refers) about both moral culpability and general deterrence.[4] We note that a question was raised by the judge about whether the general deterrence aspect of Verdins relies on proof of a causal connection between the offending and the mental condition. The relevant section of Verdins makes it clear that such a connection is not required.
[4]Verdins (2007) 16 VR 269, 272–5.
Counsel for the applicant acknowledges that only propositions 5 and 6 of Verdins were relied on. As we have mentioned, it is now submitted that proposition 1 (to do with moral culpability) and proposition 3 (to do with general deterrence) were applicable and that this is demonstrated by the subsequent decision of the High Court in Muldrock. Accordingly, it is said, this Court can be satisfied that error was committed because – unwittingly – those propositions were not invoked.
This Court stated clearly in Romero v The Queen[5] that the Court will not lightly entertain arguments in relation to Verdins that could have been but were not advanced on the plea:
In sentencing appeals, this Court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this Court will not lightly entertain arguments that could have been, but were not advanced on the plea. It will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of the submissions previously made. The revivification of arguments abandoned or eschewed on the plea is highly undesirable and should not be countenanced, save where fresh evidence is adduced, or in the exceptional circumstance where it can be shown that there was most compelling material available on the plea that was not used or understood and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence.
[5]Romero v The Queen [2011] VSCA 45, [11] (Redlich JA with whom Buchanan and Mandie JJA agreed), cited with approval by Maxwell P (with whom Buchanan JA agreed) in Carroll v The Queen [2011] VSCA 150, [29].
In the present case there is, of course, no suggestion of fresh evidence. The circumstances are said to be exceptional, nevertheless, because what the High Court said in the unanimous judgment in Muldrock should be seen as having materially altered how the relevant propositions from Verdins should be understood and applied. The passage from Muldrock relied upon by the applicant is as follows:
One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:
General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others.[6]
In the same case, Lush J explained the reason for the principle in this way:
[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community.[7]
The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender’s mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender’s moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and to the needs of the community.[8]
[6]R v Mooney (1978) 2 Crim LJ 351, cited in R v Anderson [1981] VR 155, 160.
[7]Ibid 160–1.
[8]Muldrock (2011) 244 CLR 120, 138–9 [53]–[54] (some footnotes omitted).
With respect to the argument cogently advanced by counsel for the applicant, we do not consider what was said in Muldrock to have altered any of the principles summarised in Verdins. Muldrock contemplates expressly that the question of a causal relation between mental illness and the commission of an offence will often arise. It is then said that such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason will, in most cases, substantially lessen moral culpability.
The cases in Victoria which have applied proposition 1 of Verdins have, on the whole, taken the view that a causal connection needs to be established between the impairment of mental functioning and the offending for which sentence is to be imposed. As Maxwell P said in Carroll v The Queen:[9]
Where reliance is placed on [Verdins] proposition 1, concerning moral culpability, the question for the Court is whether the evidence establishes – on the balance of probabilities – that the impairment of mental functioning did contribute to the offending in such a way as to render the offender less blameworthy for the offending than he/she would otherwise have been. Very often, this question is approached as one of causation. Did the evidence establish a causal connection between the impairment of mental functioning and the offending for which sentence is to be imposed?[10]
[9][2011] VSCA 150, [20].
[10]Ashe v The Queen [2010] VSCA 119, [14], [19]; Davey v The Queen [2010] VSCA 346, [25]; M C v The Queen [2011] VSCA 2, [20]–[21]; Bowen v The Queen [2011] VSCA 67, [28], [29], [33]; DPP v H P W [2011] VSCA 88, [28], [63]; Pettiford v The Queen [2011] VSCA 96, [32]–[34].
But nothing in Verdins suggested that the only way to establish a basis for a submission about reduced moral culpability was to show a causal connection. The case law shows that – for what, in our view, are quite understandable reasons – sentencing judges look for some kind of causal link in order to reduce the moral responsibility which is otherwise to be properly to be laid at the feet of the offender.
The Court in Verdins identified a variety of ways in which courts had held that impaired mental functioning might reduce moral culpability, as follows:[11]
[11]Verdins (2007) 16 VR 269, 275 [26] (footnotes omitted).
Impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of –
(a) impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.
As the Court there said, this was a descriptive rather than a prescriptive list. It was expressly said not to be exhaustive. Only one of the items in that list – item (f) – referred to causal connection. In short, counsel making submissions on the basis of Verdins 1 has always been in a position to contend that it is not necessary to establish a causal connection.
Another item in the list – paragraph (b) – is of direct relevance to the present case. Thus, it has been held that there may be a reduction in moral culpability if the impaired mental functioning had the effect of ‘impairing the offender’s ability to make calm and rational choices, or to think clearly’.[12] Much was made in counsel’s submissions today about the impairment of the applicant’s ability to reason, that being a key element in the discussion in Muldrock. We simply make the point that that is explicitly a part of the Verdins jurisprudence.
[12]Ibid.
Muldrock makes a general statement – the application of which will be worked out through the cases – that the causal question is less likely to arise with a mentally retarded offender. As was emphasised in Verdins, however, the task for the sentencing judge in every case is to examine what the evidence shows about the particular condition and how it affected the mental functioning of the offender, either at the time of the offending, or at the time of sentencing, or both:[13]
It is of the nature of the sentencing discretion that views will differ as to how, and to what extent, impaired mental functioning may reduce the blameworthiness of the offender’s conduct. The effect on the Court’s assessment of culpability will, of course, vary with the nature and severity of the condition, and with the nature and seriousness of the offence. It is not appropriate for an appellate court to be prescriptive in this regard, nor is it possible to be exhaustive. It may assist sentencing judges, nevertheless, if we list the various ways in which impaired mental functioning has been held – correctly, in our view – to be capable of reducing moral culpability.
[13]Ibid [25].
The case-by-case approach to mental impairment issues was eloquently described by Gleeson CJ in Engert v The Queen:[14]
A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might meant that deterrence of others is of lesser importance, might, at the same time, mean that that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.
It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual case, and in the light of the purposes to be served by the sentencing exercise.
[14](1995) 84 A Crim R 67, 68.
We note in this regard that, during the plea in the present case, the sentencing judge said:
The fact is that again with things like cultivating cannabis, unlike momentary acts of violence or anger or something else where it’s much easier to connect mental state, this is a bit more difficult.
His Honour’s comment illustrates the point that, in determining the extent to which the relevant impairment is explanatory of – and therefore goes to excuse – the offending, much depends on the nature of the offending.
As to the applicant’s lack of capacity to reason, Dr Sullivan said in his report:
At the time of the alleged offences, it is possible that the combination of brain injury and depression would have impaired Mr Tran’s judgment, and his ability to think calmly and clearly or make rational choices would also have been significantly affected, predominantly by brain injury.
What is striking, in our view, is that the language which Dr Sullivan used here is almost verbatim the language of paragraphs (a) and (b) in the Verdins list set out in paragraph 19 above:
(a) impairing the offender’s ability to exercise appropriate judgment;
(b)impairing the offender’s ability to make calm and rational choices, or to think clearly.[15]
[15]Verdins (2007) 16 VR 269, 275 [26] (footnotes omitted).
A clear basis for a submission based on Verdins 1 had thus been established by the expert evidence. It is not appropriate to speculate as to why the argument was not advanced. It was for defence counsel to decide whether that evidentiary basis was, or was not, to be relied on to support a submission on the basis of Verdins 1. Given the nature of the offending, it may have been thought that, whatever impairment of decision‑making might have been discerned by the expert, the judge was unlikely to be persuaded that it reduced this offender’s culpability for offending of this character. Nothing said in Muldrock would have made the moral culpability argument more available to this applicant than it plainly was, on the evidentiary material and on the law as it stood before Muldrock.
So far as general deterrence is concerned, it has never been in doubt that the Verdins principles, and in particular the general deterrence proposition (proposition 3), apply with equal force to intellectual impairment as to mental illness. That is made clear in DPP v Patterson.[16] As counsel for the respondent pointed out, its earliest modern statement was in Roadley v The Queen:[17]
[I]f mental illness for relevant sentencing purposes is to be equated with intellectual disablement (which we believe it is) then in relation to the questions of rehabilitation and deterrence the offender’s mental condition may be taken into account, not by way of any reduced responsibility for the offence, but by way of giving little weight to general deterrence.
[16]DPP v Patterson [2009] VSCA 222, [41].
[17](1990) 51 A Crim R 336, 343.
Cogent argument was advanced in this Court as to why the applicant should not have been regarded as a proper vehicle for general deterrence. As we have pointed out, that submission could have been made on the plea, even if it were thought that no causal connection with the offending could be established. Again, it is not clear why the point was not pressed before the sentencing judge. Importantly for present purposes, nothing said in Muldrock rendered that contention any more available after Muldrock than it had been before. Verdins, of course, set out the statement of Young CJ in Mooney[18] to which the High Court referred in Muldrock.[19]
[18]R v Mooney (1978) (Unreported, Court of Criminal Appeal (Victoria), 21 June 1978) 5, cited in R v Anderson [1981] VR 155, 160 and R v Verdins (2007) 16 VR 269, 271 [6].
[19]Muldrock (2011) 244 CLR 120, 138 [53].
In any event, in our view, there is nothing in the sentence imposed to suggest that general deterrence played any part in the sentence. It is important to recall that general deterrence can only be regarded as having contributed separately to a sentence if the sentence was increased, because of the need to send a deterrent message to others, over and above the sentence which would have been appropriate had it been confined to specific deterrence.[20] The sentence imposed here was very moderate, in our view, and there is simply nothing to suggest that it was increased because of a decision by the judge that a heavier sentence was necessary in order to deter others.
[20]See C N K v The Queen [2011] VSCA 228, [12]-[14].
So, even if proposition 3 from Verdins had been relied on, it would, in our view, have made no difference to the sentence imposed.
For those reasons we would dismiss the appeal.
The orders of the Court are as follows:
1. The application for an extension of time within which to file and application for leave to appeal is granted.
2.The application for leave to appeal is granted.
3.The appeal is treated as having been instituted and heard instanter and dismissed.
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