Trandy v R
[2009] VSCA 321
•23 December 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| WAYNSABI TRANDY | No 689 of 2008 |
| v | |
| THE QUEEN |
| THANH TUNG PHAM | No 697 of 2008 |
| v | |
| THE QUEEN |
| THAI DUY NGUYEN | No 698 of 2008 |
| v | |
| THE QUEEN |
| THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | No 740 of 2008 |
| v | |
| CHI NGO |
JUDGES: | WEINBERG JA, WILLIAMS and COGHLAN AJJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 November 2009 | |
DATE OF JUDGMENT: | 23 December 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 321 | 1st Revision 5 February 2010, paragraphs 3 and 136. 2nd Revision 15 February 2010, paragraph 136. |
JUDGMENT APPEALED FROM: | R v Van Le & Ors (Unreported, County Court of Victoria, Judge Duggan, 10 June 2008) | |
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CRIMINAL LAW –Sentencing–Appeals -Guilty pleas –Conspiracy to deal in money valued at $1,000,000 or more intended to become instrument of crime - Conspiracy to traffic commercial quantity of heroin –Traffic marketable quantity of heroin – Deal in money valued at $100,000 or more intended to become instrument of crime –Sentencing errors – Transposition of sentences - Failure to fix commencement dates of sentences under sub-s 19(2) Crimes Act1914 (Cth)–Sentencing discretion re-opened-Parity-Whether original sentences appropriate –Co-offenders at different levels in hierarchy of group –Criminal Code 1995 (Cth) sub-ss 11.5, 302.2, 302.3, 400.3(1), 400.4(1).
CRIMINAL LAW-Sentencing –Crown appeal - Guilty pleas- Conspiracy to deal in money valued at $1,000,000 or more intended to become instrument of crime - Conspiracy to traffic commercial quantity of heroin –Sentencing errors-Manifest inadequacy-Criminal Code 1995 (Cth) sub-ss 11.5, 302.2, 302.3, 400.3(1), 400.4(1).
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| APPEARANCES | Counsel | Solicitors |
| For the Crown and the Commonwealth Director of Public Prosecutions | Mr B Young | Commonwealth DPP |
| For the Appellant in the first matter | Mr L Carter | Victoria Legal Aid |
| For the Appellant in the second matter | Mr M Gumbleton | Valos Black & Associates |
| For the Appellant in the third matter | Mr M Croucher | Valos Black & Associates |
| For the Respondent in the fourth matter | Mr C Boyce | Theo Magazis & Associates |
WEINBERG JA
WILLIAMS AJA
COGHLAN AJA:
There are four appeals before the Court. Waynsabi Trandy, Duy Nguyen and Thanh Pham appeal against sentences imposed by the County Court on 10 June 2008 under the Criminal Code 1995 (Cth) (‘the Code’). The Commonwealth Director of Public Prosecutions also appeals against a sentence imposed upon Chi Ngo on the same date in the same court.
The appeals have proceeded on the basis that the sentencing discretion in each case is re-opened because the sentencing judge erred by transposing the sentences in relation to particular counts and breached sub-s 19(2) of the Code by failing to fix the commencement dates of each sentence.
The Code
The Code relevantly provided:
11.5 Conspiracy
(1)A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
Note: penalty units are defined in s 4AA of the Crimes Act 1914.
302.2 Trafficking commercial quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug; and
(c) the quantity trafficked is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
302.3 Trafficking marketable quantities of controlled drugs
(1) A person commits an offence if:
(a) the person traffics in a substance; and
(b) the substance is a controlled drug; and
(c) the quantity trafficked is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
400.3 Dealing in proceeds of crime etc.--money or property worth $1,000,000 or more
(1) A person is guilty of an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 25 years, or 1500 penalty units, or both.
(2) A person is guilty of an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is reckless as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 12 years, or 720 penalty units, or both.
(3) A person is guilty of an offence if:
(a) the person deals with money or other property; and
(b) either:
(i) the money or property is proceeds of crime; or
(ii) there is a risk that the money or property will become an instrument of crime; and
(c) the person is negligent as to the fact that the money or property is proceeds of crime or the fact that there is a risk that it will become an instrument of crime (as the case requires); and
(d) at the time of the dealing, the value of the money and other property is $1,000,000 or more.
Penalty: Imprisonment for 5 years, or 300 penalty units, or both.
(4) Absolute liability applies to paragraphs (1)(c), (2)(d) and (3)(d).
Note: Section 400.10 provides for a defence of mistake of fact in relation to these paragraphs.
400.4 Dealing in proceeds of crime etc.--money or property worth $100,000 or more
(1) A person is guilty of an offence if:
(a) the person deals with money or other property; and
(b) either:
(i)the money or property is, and the person believes it to be, proceeds of crime; or
(ii) the person intends that the money or property will become an instrument of crime; and
(c) at the time of the dealing, the value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 20 years, or 1200 penalty units, or both.
Sub-section 19(2) of the Crimes Act 1914 (Cth) relevantly provided:
19 Cumulative, partly cumulative or concurrent sentences
(2) Where:
(a) a person is convicted of 2 or more federal offences at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
The sentences
Waynsabi Trandy and Duy Nguyen each pleaded guilty to counts on two indictments. The first contained one count of conspiracy to deal in money valued at $1,000,0000 or more intended to become an instrument of crime, contrary to
sub-ss 11.5(1) and 400.3(1) of the Code (‘the first indictment’). The second contained one count of conspiracy to traffic a commercial quantity of heroin, contrary to
sub-ss 11.5(1) and 302.2(1), and an additional count of conspiracy to launder money valued at $1,000,000 or more (‘the second indictment’).
Chi Ngo and a co-offender sentenced at the same time, Van Vu Le, pleaded guilty to the same two counts on the second indictment. (Mr Le has not appealed against his sentence.)
Thanh Pham pleaded guilty to one count of trafficking in a marketable quantity of heroin, contrary to sub-s 302.3(1) of the Code, and one count of dealing in money valued at $100,000 or more intended to become an instrument of crime contrary to sub-ss 400.4(1) on a third indictment (‘the third indictment’).
Tran Tom Nguyen was also sentenced at the same time on a fourth indictment and has not appealed against his sentence.
The following sentences were pronounced before orders for cumulation were made:
| Counts | Offender | Sentence |
| First indictment Conspiracy to deal with money valued $1,000,000 or more intended to become an instrument of crime contrary to sub-ss 11.5(1) and 400.3(1) of the Code – amount $2,021,000 | Waynsabi Trandy Duy Nguyen | 6 years’ imprisonment. 5 years’ imprisonment. |
| Second indictment 1. Conspiracy to traffic in a commercial quantity of heroin contrary to sub-ss 11.5(1) and 302.2(1) of the Code. 2. Conspiracy to deal with money valued at $1,000,000 or more intended to become an instrument of crime contrary to sub-ss 11.5(1) and 400.3(1) of the Code – amount $5,374,500. | Waynsabi Trandy Duy Nguyen Chi Ngo Van Vu Le Waynsabi Trandy Duy Nguyen Chi Ngo Van Vu Le | 9 years’ imprisonment. 8 years’ imprisonment. 3 years’ imprisonment. 3 years’ imprisonment. 7 years’ imprisonment. 6 years’ imprisonment. 4 years’ imprisonment. 4 years’ imprisonment. |
| Third indictment 1. Trafficking in a marketable quantity of heroin contrary to sub-s 302.3(1) of the Code. 2. Dealing in money valued at $100,000 or more intended to become an instrument of crime contrary to sub-ss 400.4(1) of the Code – amount $465,380. | Thanh Pham Thanh Pham | 2 years’ imprisonment. 3 years’ imprisonment. |
| Fourth indictment Trafficking in a marketable quantity of heroin contrary to sub-s 302.3(1) of the Code. | Tran Nguyen | 3 years’ imprisonment. |
In pronouncing the orders for cumulation in relation to Waynsabi Trandy and Duy Nguyen, the sentencing judge transposed the sentences pronounced. His Honour ordered that two years of the sentence imposed on the money laundering conspiracy count on the first indictment and two years of the sentence imposed on the first, trafficking conspiracy, count, as opposed to the second, money laundering, conspiracy count on the second indictment be served cumulatively upon the ‘head sentence’ of nine years, giving a total effective sentence of 13 years’ imprisonment. He went on to impose a minimum term of 11 years.
It was common ground that his Honour clearly intended that the direction for cumulation should operate to cumulate two years of the sentence on the first indictment and two years of the second count on the second indictment upon the longer sentence on the first count on the second indictment.
When Mr Trandy’s sentences were recorded in the endorsement on the two indictments and in the Return of Prisoner form, the sentences themselves were transposed and the orders for cumulation were made accordingly.
In the case of Duy Nguyen, a total effective sentence of 11 years’ imprisonment with a nine year minimum term was pronounced. There was, however, a direction that 18 months of the sentence on the money laundering conspiracy count on the first indictment and 18 months of the sentence on the trafficking conspiracy count (rather than 18 months of the sentence on the second money laundering conspiracy count) on the second indictment be served cumulatively upon the sentence imposed on the second (rather than the first) count on the second indictment. (Such an order, on its face, resulted in a nine year total effective term of imprisonment.)
Mr Nguyen’s sentences were then transposed in the endorsement on the first indictment, the orders for cumulation were made accordingly and the errors were repeated in the Return of Prisoner form.
In the case of Chi Ngo and Van Vu Le, it was also common ground that their identical sentences in relation to the counts on the second indictment were also transposed, when pronounced, and the orders for cumulation made accordingly. The errors were repeated in the endorsements on the indictments and in the Return of Prisoner form in the case of Chi Ngo.
It was again common ground that his Honour would have intended to impose longer sentences in relation to the trafficking conspiracy counts and to order that one year of the three year sentences imposed on the second money laundering conspiracy counts on the second indictment be served cumulatively upon the four year sentences relating to the first trafficking conspiracy counts on that indictment. The intended five year total effective sentence would have still resulted. His Honour fixed three and a half year minimum terms in each case.
In the case of Thanh Pham, the same kind of error was made in relation to the two counts on the third indictment. It was repeated in the Return of Prisoner form and in the order for cumulation of one year of the two year sentence on the first trafficking count upon the three year sentence on the second money laundering count.
Once again, it was common ground that it was apparent that the sentence for the trafficking was that intended to be imposed on the money laundering count and vice versa. An order to give effect to the desired cumulation should also have been made with reference to the two year sentence on the second money laundering count. The intended total effective sentence of four years’ imprisonment would have resulted. His Honour fixed a minimum term of two and a half years for Mr Pham.
In each case there was no order complying with sub-s 19(2) of Crimes Act 1914 (Cth) fixing the starting date of each sentence.
It was the combination of errors which gave rise to the concession that the sentencing discretion should be re-opened.
Pleas were then made.
The pleas
A prosecution synopsis of a 249 page summary of the evidence about relevant events had been read to the sentencing judge and both it and the summary were exhibited to the reasons for sentence.
Sub-section 16A(1) of the Code requires a court to impose a sentence of a severity appropriate in all the circumstances of the offence. Sub-section 16A(2)(a) – (p) list matters which the Court must take into account if they are relevant and known to it. The subsection’s opening words make it clear that the list is not exhaustive and that other matters, such as the significant consideration in this case of general deterrence, may be considered in the exercise of the sentencing discretion. [1]
[1]See Putland v The Queen (2004) 218 CLR 174, [12] (Gleeson CJ); R v Paull (1990) 20 NSWLR 427, 434 (Hunt J) regarding general deterrence being an important consideration.
We turn now to the relevant considerations in these appeals.
Nature and circumstances of the offences (sub-s 16A(2)(a))
Waynsabi Trandy, Duy Nguyen, Thanh Pham and Chi Ngo were involved with remittance agents who conducted cash dealing businesses. Mr Trandy delivered or arranged for the delivery of cash to the premises of two such agents in Victoria, for delivery to Duy Nguyen and others in Sydney for the purchase of heroin. Many of the transactions were subject to the Financial Transaction Reports Act 1988 (Cth) (‘the FTRA’) which created the obligation that they be reported. No reports were made.
Waynsabi Trandy and Duy Nguyen conspired to transfer the sum of $2,021,000 in breach of s 28 of the FTRA between 1 August and 11 November 2005 (the only count on the first indictment). The monies were transferred to Duy Nguyen and another man, both of whom lived in Sydney, in 23 separate transactions. They were the proceeds of crime and had been derived from the commercial trafficking of 50 blocks of heroin jointly acquired by Waynsabi Trandy, Duy Nguyen, Chi Ngo and another. The primary motive for the offence was the concealment of the profits of that crime.
In December 2005, Waynsabi Trandy and Duy Nguyen agreed to become involved in heroin trafficking again on a commercial scale. They conspired for Duy Nguyen and Chi Ngo to acquire a commercial quantity of 1.5 kilograms of pure heroin to be trafficked primarily to Waynsabi Trandy’s investor-buyer contacts in Melbourne (count 1 on the second indictment). These activities involved the laundering of $5,374,500 in 33 separate cash dealings between 17 December 2005 and 4 October 2006 (count 2 on the second indictment). The conspiracy was to procure breaches of s 28 of the FTRA and the funding of future narcotics trafficking by the three men. The prosecution summary records numerous arrangements for the collection and transfer of funds being made by telephone by Waynsabi Trandy and Duy Nguyen throughout the period.
Although he had travelled to Vietnam on 5 February 2006 and collected money, it was conceded by the Director that Chi Ngo’s involvement in these so-called ‘Phase 2’ conspiracies should be regarded as dating from late March 2006.[2] On 23 March 2006, Mr Ngo met Mr Trandy and Mr Nguyen and another man at the remitters’ office to establish the state of the account. The summary shows his involvement in the acquisition and testing of heroin and associated activities thereafter.
[2] Transcript of plea T 167 line 20-T 168 line 11.
Thanh Pham and Van Vu Le were recruited later to assist. It is common ground that Thanh Pham is to be regarded as being involved between 18 July and 2 October 2006, the nominated dates in the third indictment. The summary alleges that after 17 July 2006 Thanh Pham was the principal ‘runner’ for Duy Nguyen in his trafficking activities.
Van Vu Le’s first involvement appears to be on 13 July 2006 when he delivered some $560,000 in cash to the St Albans remitters. The prosecution case is that the money was earmarked for the imminent purchase of several blocks of heroin.
Between January 2006 and October 2006, Waynsabi Trandy and Duy Nguyen and, from March 2006, Chi Ngo, referred in recorded telephone conversations to their aim of securing a reliable, recurrent, reasonably priced supply of good quality heroin with a purity level which would allow it to be diluted (or ‘cut’) to increase profit. They obtained supplies of the drug from within and outside Australia. A number of the purchases never occurred and others resulted in the acquisition of poor quality heroin of unknown purity (and therefore quantity). The group consigned and arranged the transport of heroin from Sydney to Melbourne, using the remitters to hold and transfer the necessary cash interstate and internationally.
At least three marketable quantities of heroin were acquired by the group in 2006. There were three seizures resulting in the arrest of four associates of the group.
· On 19 May 2006, Thai Son Nguyen, Duy Nguyen’s brother, was stopped in his car at Fairfield in New South Wales. Police found white powder containing 230.5 grams of pure heroin, which Chi Ngo had obtained minutes earlier from a supplier and had given to Thai Son Nguyen. Chi Ngo had arranged the deal on behalf of Duy Nguyen who had previously consulted with Waynsabi Trandy.
· On 20 July 2006, two other men were intercepted by police on the Hume Freeway at Glenrowan. Hidden packages of white powder containing 343.9 grams of pure heroin were found in their vehicle.
· On 2 October 2006, Tran Nguyen, who was sentenced with the appellants and Mr Ngo, was intercepted on the Hume Freeway near Tallarook. Two packages of powder containing 279.8 grams of pure heroin were seized from his car. Tran Nguyen had taken $200,000 in cash to Duy Nguyen in Sydney and had brought back the drugs which cost $190,000. He later told police that he had been offered $5000 to collect the heroin.
Each of the seizures occurred in the context of relevant conversations between Waynsabi Trandy, Duy Nguyen and Chi Ngo relating to the acquisition of the heroin, its testing, the provision of funding and proposals for re-processing and its transport and sale.
Thanh Pham collected $325,380 from the Bankstown remitters on 19 July 2006 and another $140,000 from them on 25 August 2006. These moneys received by him are linked to the marketable quantity of heroin obtained by him within hours which is the subject of the ‘between dates’ trafficking count on the third indictment.[3]
[3]Crown Submissions on Sentence (for County Court) dated 5 May 2008, 11.
Organisational hierarchy
The core group involved in the conspiracy to traffic heroin and launder money in 2006 was comprised of Waynsabi Trandy, Duy Nguyen and Chi Ngo. Waynsabi Trandy was the most senior member of the group whose opinions were sought and respected. His Melbourne buyer contacts provided the market for the drugs. He was close to the principals of the remitter businesses. He had links to Sydney suppliers such as Duy Nguyen.
Duy Nguyen and Chi Ngo were at a similar level to each other. Each had separate supplier contacts in Sydney and performed executive functions on behalf of the group. They often acted together.
Van Vu Le and Thanh Pham assisted the core group. Van Vu Le was Waynsabi Trandy’s close and trusted Melbourne based associate. Mr Trandy mostly relied upon him to collect substantial heroin purchase monies from investors, to deliver the monies to Footscray to the remitters and to receive heroin samples for local quality testing. It was proposed that he should meet people coming to Melbourne from Sydney bringing samples or consignments of heroin.
Thanh Pham was in a similar position with respect to Duy Nguyen. He was Duy Nguyen’s close and trusted Sydney-based associate. From July 2006 onwards, Thanh Pham was the person Duy Nguyen most relied upon to deliver samples of heroin to Van Vu Le in Melbourne for testing, sometimes to collect substantial sums of money from the Bankstown remitters’ premises and to regularly store, prepare and sell narcotics on Duy Nguyen’s behalf in Sydney.
Both Van Vu Le and Thanh Pham were relative latecomers to the criminal activities. They were subordinates to the core group members, but each occupied a position of considerable trust and responsibility within the syndicate; Van Vu Le more so than Thanh Pham.
Tran Nguyen is Van Vu Le’s cousin and is described in the Crown summary as his brother-in-law. He was a courier and was involved in the one transaction described in the summary. That was the acquisition of a marketable quantity of heroin on 2 October 2006 to which we have referred.
Arrests and subsequent events
Tran Nguyen was arrested on 2 October 2006. On 12 October 2006, Waynsabi Trandy, Duy Nguyen, Chi Ngo, Thanh Pham and Van Vu Le were all arrested.
Waynsabi Trandy was interviewed and denied his involvement in the offences. He expressed surprised when informed that $15,000 had been located at his premises. He maintained that he had not worked for 18 months and was unsure as to his income because he worked on commission. He denied receiving unemployment benefits.
Mr Nguyen declined to comment to police after receiving legal advice. A search of his residence revealed 13 mobile telephone handsets and numerous used and unused SIM cards, as well as a quantity of money and an aggregate of 3.48g of pure heroin.
Mr Ngo exercised his right to silence. A total of $179,105 was recovered from several locations at his home. Relevantly, five mobile telephones and several SIM cards, as well as a small quantity of powder believed to be narcotics were also recovered.
Van Vu Le was interviewed and stated that the amount of $66,500 seized by police from hiding places at his premises was the proceeds of sale of land. He falsely denied knowing Mr Trandy, Mr Nguyen, Mr Ngo and Mr Pham. He also denied being involved in trafficking consignments of heroin in July, August and October 2006.
Mr Pham declined to participate in a Record of Interview. Several mobile telephones and several loose SIM cards were found at his premises. He was granted bail on 16 October 2006.
There was a contested committal mention on 26 April 2007 but, by that stage, Mr Ngo and Mr Pham had already indicated that they would be entering guilty pleas.
Initially, on 12 October 2006, Mr Trandy and Mr Nguyen had been charged with conspiracy to traffic a commercial quantity of heroin (contrary to sub-ss 11.5(1) and 302.2(1) of the Code), importation of a commercial quantity of heroin (contrary to sub-s 233B(1)(a)(iii) of the Customs Act 1901 (Cth)) and possession of a commercial quantity of heroin (contrary to s 307.5 of the Code).
Van Vu Le and Thanh Pham were each charged with conspiracy to traffic a commercial quantity of heroin and possession of a commercial quantity of heroin.
A contested committal took place on 7 May 2007 and the following three days.
On 14 May 2007, Mr Trandy and Mr Nguyen were charged with possession of a commercial quantity of heroin, contrary to sub-s 233B(1) of the Customs Act1901 (Cth) and possession of a marketable quantity of heroin, contrary to sub-s 307.9(1) of the Code. They were committed for trial on those two possession charges, in addition to the three conspiracy counts to which they later pleaded guilty.
On 8 November 2007, the Director filed the two indictments containing the three conspiracy counts to which Mr Trandy and Mr Nguyen did make guilty pleas. The County Court was informed that Mr Trandy, Mr Nguyen, Mr Ngo, Mr Le and Mr Pham would all plead guilty.
On 12 December 2007, the third indictment was filed in relation to Mr Pham. The indictment contained one count of trafficking heroin, contrary to sub-s 302.3(1) of the Code and one count of money laundering contrary to sub-s 400.4(1) of the Code. The amount concerned was $465,380.
The plea hearing took place on 5 and 6 May 2008 in the County Court. The sentences were handed down on 10 June 2008.
Personal circumstances
The character, antecedents, ages, means and physical or mental conditions of the appellants and Mr Ngo are to be taken into account under sub-s 16A(2)(m) of the Code, as are evidence of remorse (sub-s 16A(2)(f)), prospects of rehabilitation (sub-s 16A(2)(n)) and the probable effects of their incarceration on their families (sub-s 16A(2)(p)).
Waynsabi Trandy
Waynsabi Trandy was born on 16 October 1967 in Vietnam and so is the oldest member of the group before the Court (although he is some months younger than Van Vu Le).
Mr Trandy is the sixth of seven children. His father was a farmer and he completed his secondary education in Vietnam, going on to train as a school teacher. Finding the Vietnamese regime oppressive, at the age of 17, he left the country by boat for Malaysia where he stayed for six months.
Mr Trandy arrived in Sydney on 13 May 1986, having been sponsored by UNICEF. He completed his Year 12 studies at Fairfield West Secondary College and became an Australian citizen in 1991. In 1992, he obtained a Bachelor of Science degree at Macquarie University, majoring in Accounting and Finance. That year, he also met his wife and they were married in Vietnam in 1994. The couple returned to Sydney where Mr Trandy worked as a sales representative and taxi driver. Up to that time, he had not been able to obtain the employment for which he was qualified in the financial services industry.
For some 12 or 18 months, in the late 1990s, Mr Trandy and his wife ran a coffee shop business. Their only child, a daughter, was born in late 2002. Mr Trandy then gained work in the finance industry, and was employed as a finance broker for ET Finance until 2005 when the family returned to Sydney. It was at about that time that Mr Trandy became involved in gambling on cock fighting and in relation to soccer matches. He described himself to the clinical psychologist, Mr Jeffrey Cummins, as a very heavy social gambler within the Vietnamese community.
The family returned to Melbourne after selling a Sydney house purchased in 2005. Mr Trandy bought a property in Derrimut. He continued to be involved with cock fighting until his arrest on 12 October 2006.
Mr Trandy had no health problems and denied using illicit drugs or abusing alcohol. Mr Cummins found no evidence of any psychotic or personality disorder.
Mr Trandy’s wife was unable to cope with his arrest and detention in custody and, in November 2006, she underwent psychiatric treatment and hospitalisation. She was depressed and suffering from suicidal ideation and ongoing ideas of harming her daughter as well. She told the sentencing court that she had taken medication for depression. She reported her five year old daughter’s difficulty in accepting that her father was in prison. She considered Mr Trandy’s wrongdoing to be out of character, referring to his support for the poor and his keenness to take care of his family and not to offend in future.
There was evidence of the high regard in which Mr Trandy was held in the Vietnamese community and as to the assistance he gave to the community and to the poor in Vietnam.
Duy Nguyen
Duy Nguyen was born on 16 February 1983. He and Chi Ngo are considerably younger than Mr Trandy. Mr Nguyen was 25 years old when the plea was made on his behalf below.
Mr Bernard Healey, a clinical psychologist, had prepared a psychological report setting out his personal circumstances. Mr Nguyen was born in Saigon, where his father worked as a motor mechanic. The family came to Australia in 1994 and Mr Nguyen’s parents separated four years later. He lost contact with his father, an aggressive man and a heavy drinker, who left his wife for another woman. Mr Nguyen’s mother and her children moved to Bankstown, where she received a supporting parent’s benefit.
Mr Nguyen resumed his education in Australia, but his progress was handicapped by language difficulties. He left school half way through Year 10 and obtained an apprenticeship as a fitter and turner. He left the job after 12 months as a result of asthma, which he attributed to poor working conditions. He then took on a full-time position at McDonald’s for four years. After that, he left to work in the mobile phone industry, making an unsuccessful attempt to conduct his own mobile telephone business in Liverpool. He fell into debt in the process, re-mortgaging a home originally purchased with the proceeds of his mother’s divorce settlement.
Mr Nguyen developed a relationship with his Vietnamese de facto partner in about 2002. They were happy and their daughter was born on 12 February 2007. Mr Nguyen’s house was sold by a mortgagee in mid-2004 and his car was repossessed. He and his partner, his mother and his two brothers were obliged then to move into rental accommodation in Bankstown where his partner, his mother and brothers still live.
By August 2005, Mr Nguyen had become involved in the offences for which he was sentenced. He was then only 22 years old. He claimed to have been desperate at that time and had been drinking and gambling in an attempt to better his financial situation.
Hundreds of thousands of dollars came into his hands as a result of his offending and were gambled away. He lost $250,000 on soccer betting and, in ten days, lost another $93,500, gambling at the casino. At the end of the offending period, Mr Nguyen not only remained in debt, but he believed that he had acquired additional debts in relation to heroin purchases amounting to approximately $340,000.
Mr Healey reported that Mr Nguyen’s intellectual capacity was just below average and that he had poor verbal skills. He suffered from ongoing depression which Mr Healey thought consistent with his financial difficulties before he became involved in the scheme designed to improve his situation. He had no prior convictions.
In prison, Mr Nguyen completed courses relating to alcohol and drug use, relapse prevention, problem gambling and anger management, as well as Vietnamese culture. His parents-in-law each wrote to the sentencing judge, attesting to his previous hard work and dedication to the pursuit of any task undertaken. They spoke of his remorse in relation to his offending and its effects on his family.
Chi Ngo
Ms Elizabeth Warren, a forensic psychologist, provided a report to the Court setting out Chi Ngo’s personal circumstances.
Mr Ngo was born on 16 April 1977 in a South Vietnamese village close to the Cambodian border. His father died when he was five. Mr Ngo and his maternal grandmother fled Vietnam by boat to Thailand in 1987. They remained there in a refugee camp for 12 months, before coming to Australia with his mother and sister. Mr Ngo’s grandmother returned to Vietnam where she died in 2007.
Mr Ngo was educated to part way through year 11 level in New South Wales and believed that his education was limited by his language difficulties. He had been studying mathematics, science, computers and electronics, as well as compulsory English as a second language at year 11 level. He then worked to allow his sister to complete her schooling.
Mr Ngo had an intermittent manual work history after leaving school. He had six months work as a metal worker, followed by a period of unemployment and then six or seven years work as a packer at ‘Clipsal’. He then worked closer to home before trying, unsuccessfully, to develop his own tow-trucking business.
Mr Ngo was married in 2004. His wife was a process worker. The marriage was happy, despite the fact that he had conducted a 12 month parallel relationship with another woman at the age of 29, unbeknownst to his wife.
Like the other members of the group, Mr Ngo was a gambler. In 2005 and 2006, he frequently lost all his pay playing poker machines. Ms Warren concluded that he suffered from a pathological gambling condition which he had made repeated and unsuccessful attempts to control.
She found Mr Ngo to be well balanced emotionally. He presented to her as an uncomplicated, soundly functioning man of ‘unremarkable but adequate formal intellectual ability’ who had lapsed into criminality after developing gambling problems and incurring debts.
Mr Ngo had felt extra distress and isolation during his time in custody before the plea because his wife had not come to Melbourne frequently and other members of his family had also been unable to visit him.
Mr Ngo had previously lost his driver’s licence in an alcohol-related matter and had had some other minor involvement with the criminal law about which there was little information provided. He had made no attempt to dispute the Commonwealth’s right to retain the sum of $179,405 seized at the time of his arrest and retained as tainted property.
Thanh Pham
Thanh Pham was born on 9 April 1987 and is the youngest of the four men before the Court. He was just 19 in 2006 when he became involved in the offending and 21years old when he was sentenced in June 2008.
Mr Pham had come to Australia from Vietnam with his mother some eight years earlier, in 1998. His father, whom he had met only once, had remained in Vietnam. They had had no ongoing relationship.
Mr Pham was educated in Vietnam to fifth grade level and in Australia, where he completed Year 10 and commenced Year 11. He undertook three months of an apprenticeship as a mechanic at a TAFE school before working casually or short‑term in factories and as an assistant to couriers. He had some periods of unemployment. He had no serious relationship.
When he was 18 and unemployed, Mr Pham had begun to use amphetamines in the form of ‘ice’. His grandmother had died and he was despondent. He also began gambling, using poker machines in particular.
By 2006, Mr Pham, too, had developed a pathological gambling problem noted by Mr Peter Champion, a clinical psychologist who provided a report to the sentencing court. His debts had also risen to $15,000 and he took on the role of messenger or runner in the group in July 2006. There was no evidence of betterment on his part at the end of his offending period of just over three months, although he had extinguished his debt.
Mr Pham was released on bail on 16 October 2006, after five days in custody. He had been able to give up gambling and had stopped using drugs at the time of the plea in June 2008. Although he had been unable to find other work whilst on bail, he had assisted an uncle employed making DVDs for high performance cars. Mr Pham was interested in motor cars and hoped to be able to work in the panel beating industry in the future and intended to undertake appropriate TAFE studies.
Mr Pham denied any history of mental illness and reported no physical ill‑health. Mr Champion thought that he was not particularly intelligent but found no evidence of any personality disorder nor indications for psychotherapy. He concluded that Mr Pham’s personality was marked by an adolescent form of immature self‑absorption, poor insight, naivety, peer dependency and poor impulse control. He thought that he would benefit from having an available mentor.
Mr Bernard Healey subsequently provided a report dated 2 May 2008. Mr Healey considered that Mr Pham’s intellectual capacity was just below average level and he found no sign of serious psychological or emotional disturbance. Mr Healey also considered Mr Pham to be an uncertain, immature young man, in need of ongoing guidance from his uncle in terms of career path and life style. He described him as shocked and self‑reproachful over his conduct, especially with regard to its effects on his family.
There were two letters from former employers attesting to Mr Pham’s reliability, punctuality and amiability.
Van Vu Le
Although he is not a party to the appeal, some details of Van Vu Le’s personal circumstances are relevant to it. He was born on 2 February 1967 and was 41 years old at the date of his sentence. He had a difficult background as a refugee. He had no criminal history. He had a good work history.
Mr Le had also spiralled into debt after an unsuccessful attempt to run a small business. He was married with one son. In the context of his failed relationship and unemployment he too had become involved in gambling on cock fighting. He was under pressure to repay a debt of $10,000 in 2006 when he was recruited to the criminal activities which brought him before the court.
A forensic psychologist thought that Mr Le had good prospects of rehabilitation, noting that his wife was once again prepared to support him .
Submissions and conclusions
Waynsabi Trandy
Counsel for Mr Trandy submits that the total effective sentence of 13 years and the non-parole period of 11 years imposed by his Honour were each manifestly excessive. Acknowledging the seriousness of the offending, Mr Trandy relies upon his age of 40, his lack of prior convictions, his difficult life history, his guilty plea, his wife’s severe psychiatric illness, her depression and his lengthy pre-sentence detention. He also refers to the absence of indications of substantial financial betterment. Counsel argues that Mr Trandy’s wife should be regarded as exceptionally dependent upon him.
We are not persuaded that either Mr Trandy’s total effective sentence or the individual sentences intended to be imposed upon him were manifestly excessive.
As the Crown argues, the offences were very serious examples of organised international and interstate narcotics trafficking related crimes. Even though there were few signs of financial betterment in Mr Trandy’s case at the end of the offending period, he admitted to not having worked or received benefits for 18 months before his 12 October 2006 arrest, as the Director points out. He had travelled overseas in that time and he had gambled. There was also evidence of a sum of about $2,000,000 being divided between him and three others, including Mr Nguyen and Mr Ngo, and the not insignificant sum of $15,000 had been found in his premises after his arrest.
The learned sentencing judge noted the significance of the availability of money laundering to the operations of organised crime[4] recognised in the relevant authorities.[5] The legislature has created a hierarchy of offences categorised in terms of their seriousness by reference to the amounts involved and the mental element of the crime. Each of the conspiracy to launder money counts in this case involved the more serious intentional offence under sub-s 400.3(1) of the Code.
[4]Reasons for Sentence, [44].
[5]See R v Huang; R v Siu (2007) 174 A Crim R 370, 381 [36] (Simpson, Howie and Hislop JJ).
Insofar as guidance is to be had from sentences in other jurisdictions, we note that in Ansari v The Queen[6] two brothers were re-sentenced by the New South Wales Court of Criminal Appeal to seven years’ imprisonment on each of two counts of conspiracy to commit the lesser money laundering offence under sub-s 400.3(2) of the Code (involving recklessness as to the money’s future use as an instrument of crime). The amounts involved appear to have been in the order of between approximately $2,000,000 and $3,000,000. The re-sentencing occurred in the context of the brothers’ own conviction appeal and a Crown appeal against sentence.
[6](2007) 173 A Crim R 112.
In R v Huang; R v Siu[7] the same court held that five and a half years of imprisonment was the lowest sentence open in relation to an offence under sub-s 400.3(1) involving more than $3,000,000 and 335 separate banking transactions. The offender, who had pleaded guilty, had believed that the laundered money was produced by a genuine business venture in Australia and was forwarded overseas, in amounts of less than $10,000, to avoid Australian taxation.
[7](2007) 174 A Crim R 370.
In this case, Mr Trandy had a central role in all three conspiracies. He and Mr Nguyen knew that the amount of more than $2,000,000 the subject of the first indictment was the proceeds of heroin trafficking. Further, he, Mr Nguyen and Mr Ngo all intended that the sum of more than $5,000,000, the subject of the conspiracy count on the second indictment, was to be used to acquire heroin for future trafficking.
The heroin which was the subject of the trafficking conspiracy count was more than a commercial quantity of 1.5 kg (although the exact quantity was not established). The legislature has imposed maximum penalties by reference to the quantity of drugs trafficked in Division 300 of Part 9.1 of the Code and the maximum penalty of life imprisonment for trafficking a commercial quantity of controlled drugs indicates the seriousness of that offence.[8]
[8]See Adams v R (2008) 244 ALR 270, 273, [10] (Gleeson CJ, Hayne, Crennan and Kiefel JJ).
General deterrence is a significant consideration in relation to both Mr Trandy’s offences. The adverse and corrupting effects of organised crime are frequently acknowledged by the courts[9] as are the social consequences of drug trafficking of this type and order.[10]
[9]See eg R v Huang; R v Siu (2007) 174 A Crim R 370, 381, [36] (Simpson, Howie and Hislop JJ).
[10]See eg R v Pidoto and O’Dea (2006 ) 14 VR 269, 282, [59] (Maxwell P, Buchanan, Vincent and Eames JJA).
An appropriate discount must be given for a plea of guilty.[11] We are persuaded that Mr Trandy pleaded guilty at the earliest opportunity, bearing in mind the realities of the situation in which he faced additional charges before the first and second indictments were filed on 8 November 2007. There was the ‘strong incentive … to persist in a not guilty plea’ of the type recognised by Ipp J in Atholwood v The Queen[12] up to that point.[13] Absent that plea, longer sentences would have been appropriate in relation to each of the counts.
[11]Gillick (2001) 125 A Crim R 395, 398 (Buchanan JA), 400 (Charles and Chernov JJA).
[12](1999) 109 A Crim R 465, 468.
[13]See Cameron v The Queen (2002) 209 CLR 339, 345 [20]-[21] (Gaudron, Gummow and Callinan JJ).
It was submitted that the principle of parity, applied with reference to Mr Ngo’s sentence, should influence the Court to impose a reduced sentence upon Mr Trandy. Mr Ngo, however, stands to be re-sentenced in the context of the different considerations relating to a Crown appeal and his own personal circumstances. As a result, the parity principle does not require any reduction of Mr Trandy’s sentence by reference to that which will be imposed upon Mr Ngo. (We note that, in the circumstances, there is no need to consider the authorities to which the Court was referred relating to the issue as to whether a sentence should be reduced to an inadequate level to give effect to principles of parity.[14])
[14]R v Hilderbrandt [2008] VSCA 142,[65]-[66] (Dodds-Streeton JA); Maslen and Shaw (1995) 79 A Crim R 199, 208 (Hunt CJ at CL).
Cumulation
The orders for cumulation of Mr Trandy’s sentences made by the sentencing judge also appropriately balance the various sentencing considerations, complying with the Code’s sub-s 16A(1) requirement that the severity of the sentence imposed be appropriate in all the circumstances of the offence.
We are not persuaded that the overlap between the offending covered by the counts on the second indictment warrants any greater degree of concurrency. Indeed, there is support for the recognition of the separate and serious nature of the vice addressed by the FTRA by the cumulation of sentences in such circumstances. [15] His Honour referred to those considerations in his sentencing remarks. [16]
[15]See R v Huang; R v Siu (2007) 174 A Crim R 370, 381 [36] (Simpson, Howie and Hislop JJ).
[16]Reasons for Sentence [44].
This is not a case in which ‘the elements of the offences charged are identical or in which all the elements in one offence are wholly included in the other’ such as would support a plea in bar under the applicable test approved by the High Court in Pearce v The Queen.[17] Nor will there be wrongful double punishment of any offender by the imposition of separate sentences on the counts in the second indictment; the nature of the offences differ, notwithstanding the connections between them. [18]
[17](1998) 194 CLR 610, 618 (McHugh, Hayne and Callinan JJ).
[18]See R v Z (2006) 167 A Crim R 436,446, [38]-[39] (Beazley JA).
Two years of the sentence on the first indictment and two years of the sentence on the second count on the second indictment should be served cumulatively upon the sentence on the first count on the second indictment and upon each other.
Non-parole period
Counsel for Mr Trandy submits that a non-parole period of eleven years, or 85 per cent of the total effective sentence of thirteen years would be manifestly excessive. We agree.
A shorter non-parole period of nine and six months is warranted in his case for these reasons. His prospects of rehabilitation are good, given his consciousness of his responsibilities to his family and, in particular, to his wife who has reacted so badly to his incarceration. He has expressed his remorse to Mr Cummins and to his family. He had an excellent work history prior to his descent into criminal behaviour in 2005. In addition, Mr Cummins considers that he could benefit from guidance in relation to his gambling, even though he maintains that he has decided to refrain from that activity.
Duy Nguyen
We regard the sentences evidently intended by his Honour to be imposed upon Mr Nguyen to be appropriately severe for the purpose of sub-s 16A(1) of the Code, taking into account the matters to which we have already referred when dealing with Mr Trandy’s sentences, including his early guilty plea. Mr Nguyen received sentences one year shorter than those imposed on Mr Trandy. That discrepancy adequately reflects the differences in their respective roles in the offending and their personal circumstances, in our opinion.
Counsel for Mr Nguyen also argues in the context of the Director’s appeal against Mr Ngo’s sentence that the parity principles should apply to reduce his sentences in relation to the counts on the second indictment to the equivalent of those to be imposed upon Mr Ngo. He relies upon their relative youth and equivalent positions in the hierarchy of the offending group.
Even though Mr Nguyen and Mr Ngo were at the same level in the hierarchy and had very similar roles, the Crown accepts that Mr Ngo is not to be regarded as a party to the second indictment conspiracies until late March 2006. His position as the respondent to a Crown appeal is also distinguishable from that of Mr Nguyen who has appealed against his sentence, and their circumstances differ as well. Notwithstanding the operation of the parity principle and the need for consistency in sentencing, we are not satisfied that we ought to reduce Mr Nguyen’s individual or total effective sentences with reference to those to be imposed on Mr Ngo.
Mr Nguyen should be sentenced to imprisonment for five years on the money laundering conspiracy count on the first indictment, to imprisonment for eight years on the first trafficking conspiracy count on the second indictment and to six years’ imprisonment on the second money laundering conspiracy count on the second indictment.
Cumulation
Counsel for Mr Nguyen echoes Mr Trandy’s arguments for additional concurrency between the sentences on the second indictment. We have already indicated our view that there is no double punishment involved and we consider the cumulation intended by the sentencing judge to be appropriate. We propose to make orders to the same effect for the cumulation of eighteen months of each of the sentences for the money laundering conspiracies upon the sentence on the trafficking conspiracy count in the second indictment and upon each other. This will result in Mr Nguyen receiving the total effective sentence of 11 years’ imprisonment intended by the sentencing judge.
Non-parole period
Mr Nguyen submits that a non-parole period shorter than the nine year minimum term ordered below would be appropriate in all the circumstances. We agree that the minimum term should be less than approximately 82 per cent of the total effective sentence.
Mr Nguyen is a relatively young man whose family provides him with a significant incentive for his rehabilitation. He has no prior convictions and a reasonably good work history. The material before the Court indicates that he would also clearly benefit from the opportunity of supervision provided by a longer period on parole, given his previous gambling and alcohol related problems. A minimum term of seven and a half years’ imprisonment is appropriate in his case.
Chi Ngo
It is convenient to deal here with Chi Ngo, given the similarities between his role and that of Mr Nguyen.
The Director submits that Mr Ngo’s sentences do not reflect the relative seriousness of his criminality in comparison with that of Mr Le who received identical sentences and Mr Nguyen whose sentences were substantially higher and who played an equivalent role. We agree, even though we recognise that Mr Ngo’s involvement in the conspiracies was of more limited duration.
It follows that the characterisation of Mr Ngo as being at the same level in the hierarchy as Mr Le was an error and there can be no successful claim to parity on Mr Ngo’s behalf. Although the transposition of sentences was an error which had to be corrected, such corrections would not have justified the increase in sentence. The present sentences are however, manifestly inadequate for the reasons set out above.
Counsel for Mr Ngo rightly emphasises his position as the respondent to a Crown appeal and refers to the well known applicable principles relating to the disposition of such appeals.[19] The Court must bear in mind the burden of such an appeal on Mr Ngo and recognise the element of double jeopardy by imposing a sentence which is less than that which it thinks should have been imposed in the first place.
[19]Citing R v Clarke [1996] 2 VR 520, 522 (Charles JA); DPP v Josefski (2005) 13 VR 85, 98-9,[63] (Chernov JA).
We note further and take into account that Mr Ngo was the first of the group to plead guilty, doing so at the earliest possible opportunity, even before the committal.
Mr Ngo has been particularly isolated in custody to date and there is no suggestion that his Sydney-based family will be able to visit him any more frequently in the future than they have in the past.
In all these circumstances, it is appropriate that his situation be differentiated from that of Mr Nguyen. We consider that he should be re-sentenced to imprisonment for seven years on the first trafficking conspiracy count on the second indictment and to six years’ imprisonment on the second money laundering conspiracy count.
Cumulation
Mr Ngo joins Mr Trandy and Mr Nguyen in arguing for concurrency in relation to the conspiracy counts on the second indictment. For the reasons we have already given, we consider that there should also be a degree of cumulation in Mr Ngo’s case.
One year of the sentence on the second count should be cumulated upon that imposed in respect of the first count on the second indictment, with a resulting total effective sentence of imprisonment for eight years.
Non-parole period
Given his age and circumstances, Mr Ngo would also benefit from the supervision provided by a period on parole and a minimum term of five years should be imposed in his case.
Thanh Pham
Thanh Pham argues that the sentences he received were manifestly excessive. He emphasises his youth to differentiate him from his co-offenders, noting that he was 19 at the time of offending and 21 when sentenced in June 2008.
Mr Pham also seeks to differentiate himself by reference to the nature of his offences. He notes the significance of the fact that his trafficking offence carries a maximum penalty of 25 years, as opposed to the penalty of life imprisonment attached to trafficking of a commercial quantity of the drug.
He refers to the difference between the amount of $465,380, the subject of his money laundering offence and the millions of dollars involved in the money laundering conspiracies for which Mr Trandy, Mr Nguyen and Mr Ngo are sentenced. His offence under sub-s 400.4 of the Code was subject to a penalty of imprisonment for 20 years, as opposed to the penalty of 25 years’ imprisonment in the case of an offence involving money valued at more than $1,000,000. Mr Pham also relies upon the fact that he was involved in the offending between July and October 2005, a more limited period than that in which the others in the core group were engaged in criminal activities.
We have taken all these matters into account as well as Mr Pham’s early guilty plea. We note too that his position differs from that of Mr Le, who might be described as his Melbourne equivalent in the group, but who pleaded guilty to the two conspiracy counts on the second indictment.
The Crown defends the sentences, arguing that each of the considerations to which Mr Pham refers were appropriately taken into account by the sentencing judge.
We regard the individual sentences imposed upon Mr Pham by the learned judge as the appropriate dispositions.
Cumulation
Mr Pham argues that the judge’s failure to order concurrency amounted to a double punishment. The Crown contends that a degree of cumulation was appropriate, given the separate and additional type of criminality involved in the cash dealing offence.
The Crown conceded before the sentencing judge that there was ‘a complete correlation’ between the actions relating to the money laundering and the trafficking.[20] We are persuaded that, in all the circumstances, complete concurrency is warranted in Mr Pham’s case, despite the additional criminality involved in the commission of the two offences.
[20]Transcript of plea hearing T 137 line 30-T 138 line 3.
Mr Pham should be re-sentenced to imprisonment for three years on count 1 and to imprisonment for two years on count 2 on the third indictment. There should be total concurrency.
Recognisance Release Order
Mr Pham is young and immature and Mr Healey thought he was in need of ongoing guidance in terms of a career and the development of a more responsible lifestyle. His offending was serious but his rehabilitation is also important. He has used drugs in the past. Balancing the various sentencing considerations as best we can and recognising, in particular, the need for general and specific deterrence in relation to offences of this type, we have concluded that Mr Pham should be released under s 20(1)(b) of the Crimes Act 1914 (Cth), after serving 22 months of the term of imprisonment, by recognisance of $1,000. A condition of the Order is that he be of good behaviour for three years.
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