Trinh v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0049

LINH ANH TRINH	Appellant
v
THE QUEEN	Respondent

S APCR 2016 0102

THUY HOANG TRINH	Appellant
v
THE QUEEN	Respondent

S APCR 2016 0113

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
UYEN THI PHUONG THAI	Respondent

S APCR 2016 0087

MINH TRIET NGUYEN	Appellant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, FERGUSON JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 and 15 November 2016
DATE OF JUDGMENT:	9 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 307
JUDGMENT APPEALED FROM:	DPP v Trinh & Trinh (Unreported, County Court of Victoria, Judge McInerney, 26 February 2016) DPP v Thai (Unreported, County Court of Victoria, Judge McInerney, 13 May 2016) DPP v Nguyen (Unreported, County Court of Victoria, Judge McInerney, 3 March 2016)

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LINH ANH TRINH v THE QUEEN
CRIMINAL LAW – Sentence – Appeal by leave – Traffick large commercial quantity of drug of dependence (heroin) – Sentence of seven years and six months’ imprisonment with five years and six months non-parole period – Appellant sourced heroin interstate, had it couriered to Victoria, arranged for it to be broken down and on-sold – Whether impermissible want of parity with sentence of seven years’ imprisonment with five year non-parole period imposed upon co-offender who trafficked large commercial quantity of the broken down heroin over longer period than the offending by the appellant – Overall different circumstances of offending and offenders – Appeal dismissed.

THUY HOANG TRINH v THE QUEEN:
CRIMINAL LAW – Sentence – Application for leave to appeal – Traffick commercial quantity of drug of dependence (heroin) – Sentence of five years’ imprisonment with three years non-parole period – Applicant’s role to courier heroin from Sydney to Melbourne for cutting down and on-sale – Short period of offending – Conceded error in facts upon which judge imposed sentence – Whether different sentence should be imposed – Leave to appeal granted but appeal dismissed.

DPP v UYEN THI PHUONG THAI:
CRIMINAL LAW – Sentence – Appeal by Director of Public Prosecutions – Traffick large commercial quantity of drug of dependence – Sentence of four years and four months’ imprisonment with three years non-parole period – Respondent’s role to cut down and package heroin for on-sale – Whether finding by judge of exceptional circumstances constituted by third party hardship reasonably open – Finding open – Appeal dismissed.

MINH TRIET NGUYEN v THE QUEEN:
CRIMINAL LAW – Sentence – Application for leave to appeal – Traffick large commercial quantity of drug of dependence – Sentence of six years’ imprisonment with four years non-parole period – Applicant’s role, over short period, assisting co-offender to cut down and package heroin for on-sale – Conceded error in facts upon which judge imposed sentence– Whether different sentence should be imposed – Parity considerations – Leave to appeal granted and appeal allowed – Appellant re-sentenced to five years and six months’ imprisonment with three years and six months non-parole period.

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APPEARANCES:	Counsel	Solicitors
S APCR 2016 0049:
For the Appellant Linh Trinh	Mr R R Richter QC with Mr J Gullaci	Stephen Andrianakis & Associates
For the Crown	Mr C B Boyce QC with Ms R J Sharp	Mr J Cain, Solicitor for Public Prosecutions
S APCR 2016 0102:
For the Appellant Thuy Trinh	Mr D Grace QC	Theo Magazis & Associates
For the Crown	Mr C B Boyce QC with Ms R J Sharp	Mr J Cain, Solicitor for Public Prosecutions
S APCR 2016 0113:
For the Director of Public Prosecutions	Mr C B Boyce QC with Ms R J Sharp	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent Thai	Mr T E Wraight QC with Mr S J Tovey	Melasecca Kelly Zayler
S APCR 2016 0087:
For the Appellant Nguyen	Mr A S Dickenson	Melasecca Kelly Zayler
For the Crown	Mr C B Boyce QC with Ms R J Sharp	Mr J Cain, Solicitor for Public Prosecutions

ASHLEY JA:

On 9 October 2014, police arrested a number of persons in connection with heroin trafficking. Those arrested, so far as is relevant for present purposes, were Linh Anh Trinh (‘LAT’), Thuy Hoang Trinh (‘THT’), Uyen Thi Phuong Thai (‘Thai’), Minh Triet Nguyen (‘Nguyen’), Men Tran (‘Tran’), Suzanne Collins (‘Collins’), Holly Walker (‘Walker’); and, peripherally, Thi La (‘La’) and Hung Tieu (‘Tieu’).

Those charged, offences and sentences

All of those arrested were ultimately charged with trafficking a drug of dependence — in each instance, heroin — contrary to the Drugs, Poisons and Controlled Substances Act 1981 (‘the Act’).

LAT pleaded guilty to trafficking in not less than[1] a large commercial quantity in the period 8 September to 9 October 2014.[2] The maximum penalty for that offence is life imprisonment. On 26 February 2016, she was sentenced to seven years and six months’ imprisonment, with a non-parole period of five years and six months.
[1]The phrase ‘not less than’ appears in two of the relevant sections of the Act — ss 71 and 71AA. ‘Drug of dependence’ appears in all three relevant sections. I will simply refer to ‘trafficking a large commercial quantity’ of the drug, or the like.
[2]Contrary to s 71 of the Act. Thai, Nguyen and Tran were also charged with offending against this provision.

THT, a sister of LAT, pleaded guilty to trafficking a commercial quantity in the period 21 September to 1 October 2014.[3] The maximum penalty for that offence is 25 years’ imprisonment. She also was sentenced on 26 February 2016 — to five years’ imprisonment with a three year non-parole period. I add that THT was also charged with, and pleaded guilty to, a possession offence,[4] in respect of which the judge imposed six months’ imprisonment, but made no order for cumulation.
[3]Contrary to s 71AA of the Act. Collins and Walker were also charged with offending against this provision.
[4]It related to a small quantity of heroin found on a search of her room following her arrest.

Thai pleaded guilty to trafficking a large commercial quantity of the drug in the period 8 June to 9 October 2014. On 13 May 2016, she was sentenced to four years and four months’ imprisonment with a non-parole period of three years.

Nguyen pleaded guilty to trafficking a large commercial quantity in the period 11 September to 9 October 2014. On 3 March 2016, he was sentenced to six years’ imprisonment with a non-parole period of four years.

Tran pleaded guilty to trafficking a large commercial quantity in the period 6 June to 8 October 2014. On 15 December 2015, she was sentenced to seven years’ imprisonment with a five year non-parole period.

Collins pleaded guilty to trafficking a commercial quantity in the period 6 May to 8 October 2014. On 3 March 2016, she was sentenced to five years’ imprisonment with a non-parole period of two years and six months.

Walker pleaded guilty to trafficking a commercial quantity, in the period 16 July to 8 October 2014, and also pleaded guilty to a possession charge. On 19 February 2016, she was sentenced to an overall term of four years and six months’ imprisonment with a non-parole period of two years.

La pleaded guilty to a charge of trafficking.[5] The maximum penalty for that offence is 15 years’ imprisonment. He was sentenced to two and a half years’ imprisonment with a non-parole period of one year and nine months.
[5]Contrary to s 71AC of the Act.

Tieu also pleaded guilty to a trafficking charge and was sentenced to two and a half years’ imprisonment with a non-parole period of one year and two months.

Also referred to in the course of the plea hearings was Ut Nguyen, she being another person who purchased heroin from LAT and on-sold it to street sellers. She pleaded guilty to trafficking simpliciter and was sentenced to three years’ imprisonment with a non-parole period of one year and nine months.

Matters before the Court

Before the Court is an appeal against sentence by LAT, leave to appeal having been granted by Redlich JA on 17 June 2016. Also before the Court are applications by THT and Nguyen for leave to appeal against sentence, and an appeal by the Director of Public Prosecutions (‘the Director’) against the sentence imposed on Thai.

The Court was informed from the Bar table that none of Tran, Collins or Walker have sought to appeal against the sentences imposed upon them.

Initial observations

All of the offenders were sentenced by the same County Court judge.

A feature of the sentences which the judge imposed is the relatively compressed relativities established by the highest head sentence imposed — that is, seven years and six months’ imprisonment in the case of LAT — and the lowest head sentence upon which reliance was placed in the course of the hearings before us — that is, the sentence of four years and six months’ imprisonment imposed upon Walker. As I have already noted, some of the offenders were charged with an offence for which the maximum penalty was life imprisonment, others were charged with an offence for which the maximum penalty was 25 years’ imprisonment, and others again were charged with an offence for which the maximum penalty was 15 years’ imprisonment. To impose sentences with compressed relativities for different statutory offences having different maximum penalties might be explicable in some circumstances — that is, where the offending in the particular instances was close to the point of intersections between two offences.

The roles of the offenders generally described

The judge concluded that LAT was at the centre of the drug trafficking supply chain. Initially, she was charged on an indictment which alleged that her offending began on 8 June 2014 and ended on the day of her arrest. Apparently, however, there were some difficulties with proof. In the event, the period of offending was amended to commence on 8 September 2014. In consequence, the judge was required to sentence LAT on the basis that her period of offending was of about one month’s duration.

That had odd consequences. The first of them was this. The gist of the Crown case against LAT, not put into contest by her, was that she sourced heroin in Sydney; that, with the assistance of her sister, THT, she brought the heroin, then of purity in the order of 60–70 per cent, back to Victoria; that she made sales of heroin to La, Tieu and Ut Nguyen; that she arranged for Thai, assisted by Nguyen, to cut, mix and package the drug (I hereafter refer to them ‘preparing the drug’); and that she made sales of the prepared drug to Tran. Thai, however, was charged with offending in the period 8 June to 9 October 2014 — this being the period of offending initially specified in the case of LAT. So far as I am aware, there was no evidence to suggest that Thai had acquired heroin for preparation other than from LAT. Nonetheless, the judge was obliged to sentence Thai on the footing that her offending had spanned a period of four months, whereas the offending by LAT had occurred within a period of one month only.

The second consequence of the amended indictment referable to LAT pertained to Tran. The latter pleaded guilty to offending in the period 6 June to 8 October 2014. Upon the case eventually pursued against LAT, however, it had to be assumed that Tran had been supplied, in the period between June and 8 September 2014, by a person or persons other than LAT. And yet, so far as I am aware, there was no evidence to suggest that Tran had in fact been supplied with prepared heroin other than by LAT via Thai.

Finally with respect to LAT, by way of a general description of her role, I note that when the residence which she occupied together with her mother and sister was searched in October 2014, cash in an amount of $255,257, a radio frequency detector, 83.9 grams of heroin at 60 per cent purity and 0.8 grams at 70 per cent purity, inter alia, were located.

In describing, in the broad, the role played by LAT, I have made some mention of Thai, Nguyen and Tran. I should say something more in that connection.

Thai’s role was to prepare heroin which was delivered to her, and then make deliveries to Tran.

Nguyen, who apparently entered into some short-term relationship with Thai, essentially undertook the physical work to do with preparing the drug.

Neither Thai nor Nguyen was a drug addict. The judge concluded that each of them was motivated to engage in the offending for profit. There was good evidence that Thai had a gambling problem. It was accepted on her plea that this provided an explanation, but not an excuse, for her offending. Nguyen’s period of offending was short, and there was little to suggest that any profit motive had produced much return.

Tran, to whom the prepared drug was delivered, on-sold it to a number of persons, including Collins and Walker. Like Thai and Nguyen, Tran was not a drug addict. Her motive for offending was taken to be profit-based. It was said that she also had a gambling problem. But she was in possession of only a modest amount of cash at time of arrest,[6] and it was asserted that she had only profited by about $25,000 in the period of her offending. The Crown was unable to controvert that assertion. The judge could not conclude whether it was true or false.
[6]$11,500.

I turn to Collins and Walker. Each of them was a long time drug addict. Each of them used some of the heroin which they bought from Tran, and sold the balance of it to other users.

There was evidence that Collins and her son had purchased 1,414 grams of heroin in the period of their alleged offending. The cost must have been in the order of $180,000. Of the total amount acquired, purchase of 686 grams were attributed to Collins’s son. The Crown could not establish the precise amount of heroin sold by Collins. The matter was resolved by Collins pleading guilty to trafficking a commercial quantity of the drug.[7]
[7]That is, not less than 500 grams mixed.

Walker was shown to have purchased 728 grams of the drug, at a cost of about $100,000. The source or sources of those moneys was not made entirely plain on Walker’s plea. Again, the precise quantity sold by Walker could not be established, and the matter was resolved by her plea to trafficking in a commercial quantity.

LAT’s appeal
Ground of appeal

LAT relied upon the following ground of appeal:

Ground 1 —The Sentencing Judge, in consideration of the principle of parity, erred by imposing a head sentence and non-parole period which gives rise to a justifiable sense of grievance when regard is had to the sentence imposed on co-accused [Tran].
Particulars of ground 1 —
a)[Tran] pleaded guilty to trafficking a large commercial quantity over a period of 4 months;
b)The Applicant pleaded guilty to trafficking a large commercial quantity over a period of 1 month;
c)[Tran] took part in 87 separate transactions and trafficked 2.813 kg of heroin;
d)The amount trafficked by the Applicant was alleged to be an indeterminate amount greater than 1 kg. The Prosecution Opening asserted that the amount trafficked by the Applicant ‘… was not less than the large commercial quantity, at the “low end” but greater than 1 kg of heroin;’
e)[Tran’s] offending occurred over a greater period of time and involved the trafficking of a significant additional quantity of heroin than the Applicant;
f)The Sentencing Judge gave too much weight to the respective roles played by Applicant and [Tran]. It was conceded during the plea that the Applicant was higher in the drug hierarchy than [Tran]. This had to be balanced against the fact that [Tran] pleaded to an offence which occurred over an extended period and involved significantly higher quantities of heroin;
g)[Tran’s] offending was more serious than that to which the Applicant was found guilty;
h)[Tran] received a sentence of 7 years with a non-parole period of 5 years;
i)There is disparity, such as to cause a justifiable sense of grievance between the Applicant’s sentence and that imposed on [Tran].

Thus, the appellant calls in aid the parity principle. She does not contend that the sentence passed upon her was manifestly excessive. Not that it matters—in my view such a ground would have been without merit.

Appellant’s submissions

By written submissions, focus was placed upon the fact that the appellant trafficked in a much lesser quantity of heroin than did Tran, and was involved in trafficking for a significantly shorter period of time. The fact that the appellant was higher in the hierarchy than Tran did not gainsay that proposition.

It was accepted that, on the plea, the prosecution had accurately summarised the appellant’s role. She had dealt with ‘the other people involved in the organisation’, ‘sourced the drugs from Sydney’, ‘made the money and made the deals’. She was ‘the organiser of everything’ and, because of the amount of heroin brought from Sydney and the money she made, ‘was in a different category to Tran’.

But, it was contended, what the prosecutor had submitted below ignored the fact that Tran was able to source a substantial additional quantity of heroin from people other than the appellant. She had pleaded guilty to trafficking 2.813 kilograms of heroin. Since the appellant was to be sentenced for trafficking not much more than one kilogram of the drug, it was apparent that Tran had sourced heroin from someone other than the appellant in significant quantities. Also, when sentencing Tran, the judge had indicated she played a significant and important role in the drug trafficking business.

The appellant’s submissions then focused upon a number of findings made by the judge when sentencing the appellant. One of them was that the appellant’s role was much higher than any of the on-sellers, including Tran. She was properly to be viewed as being at management level. Her criminality was at a very high level.

The judge, it was submitted, had acknowledged that, in a quantity-based sentencing regime, the appellant’s role must be balanced against actual quantities trafficked and the period over which trafficking occurred. When all the competing factors were balanced, the appellant should have received a lesser sentence than was imposed on Tran.

The written submissions finally drew attention to what, it was contended, was the judge’s apparent reluctance to sentence the appellant on the basis of the agreement as to the period and extent of trafficking. This meant that too much weight had been given to the appellant’s role in the offending and insufficient weight to the disparities between the appellant and Tran as to the quantity and period in which the trafficking occurred.

In oral submissions, Senior Counsel for the appellant first contended that the judge had erred because, in effect, he had treated the appellant as being in a position of control or command with respect to those lower in the hierarchy of offending. That was not the case. All that could be said was that the appellant was the first amongst a cascading series of suppliers.

Counsel secondly emphasised the extent of the trafficking established against the appellant and against Tran. In quantity-based offending, the extent of the difference in the quantities trafficked, together with the period in which the two offenders undertook the trafficking, could not properly have led to a conclusion that the appellant was deserving of as great a sentence as Tran, still less a heavier sentence.

The third argument pursued orally focused upon remarks made by the judge[8] which evidenced his Honour’s apparent unhappiness in having to sentence the appellant on the footing that she had trafficked for a period of only a month, and in an amount not much beyond the minimum threshold for large commercial quantity offending.

Crown submissions

[8]DPP v Trinh & Trinh (Unreported, County Court of Victoria, Judge McInerney, 26 February 2016), [11], [27], [31]–[33], [55], [57].

By written submissions, it was contended for the Crown that the question is whether the difference in sentences was ‘reasonably open’.[9] That language was to be preferred to the description ‘unjustifiable sense of grievance’, which tended to connote consideration of an offender’s subjective sense of grievance.[10]
[9]DPP (Cth) v KMD [2015] VSCA 255, [107]–[109].
[10]Ibid.

It was next submitted that the differentiation in sentences was modest and that there were reasonable grounds for it. The role of the appellant was the greater, a matter which had been conceded on the plea. Further, the appellant was obviously enriched as a result of the offending, she having entered upon the enterprise for profit. On the other hand, so far as the Crown had been able to establish the situation, Tran had not profited greatly.

It was then submitted for the Crown that there were no significant differences in the circumstances of the appellant and Tran. Such differences as there were, balanced out.

It was submitted also that the judge had not entirely focused upon the appellant’s role in the offending, but had balanced its significance with the actual quantities trafficked and the duration of the offending.

Referring to various passages in the judge’s sentencing remarks, it was submitted that his Honour had clearly not permitted any reservations which he had concerning the Crown’s concession as to the quantity trafficked by the appellant to infect the sentencing disposition.

That submission was amplified orally. Counsel drew attention to a passage in his sentencing remarks in which the judge made it clear that, if he had sentenced otherwise than in accordance with the agreement, he would have imposed a considerably higher sentence on LAT than the sentence which he had imposed on Tran.[11]
[11]DPP v Trinh & Trinh (Unreported, County Court of Victoria, Judge McInerney, 26 February 2016), [57].

Counsel submitted also, for good measure, that there was no ground of appeal which proposed that the judge had erred by permitting himself to sentence the appellant otherwise than in accordance with the plea agreement.

Respecting the argument advanced for the appellant which compared the quantities of heroin trafficked by the appellant, on the one hand, and Tran on the other, counsel submitted that the amount trafficked by Tran had been 2.381 kilograms, not 2.813 kilograms. So the difference in the amounts trafficked by the two offenders was not as great as had been asserted for the appellant. There had simply been a typographical error in the judge’s sentencing remarks in Tran, which he had carried over into his sentencing remarks in the instant case. Further, the appellant trafficked a little over one kilogram of heroin of 60–70 per cent purity, whilst Tran had trafficked something over two kilograms of heroin of 16 per cent purity.

The argument orally advanced for the appellant that the judge had focused upon the role played by the appellant in a way which misstated that role — as implying that she had control and command over those lower in the hierarchy — was, counsel submitted, simply knocking down a straw man. The judge had done no more than to recognise that, as was the case, the appellant was first in the known hierarchy of offenders. She had sourced the drug, had it brought to Victoria, sold some of it to La and Tieu, delivered other of it to Thai for preparation, attended at Thai’s premises to check on what was being done there, arranged the sales and followed up sales to ascertain whether there was customer satisfaction.

Counsel referred, in the present connection, to submissions made on the plea concerning the respective roles of the appellant and Tran. The prosecutor had accepted that, ‘In some ways it’s not a hierarchy, it is a supply chain, that is it’s more like a web because every deal and every importation from Sydney comes back to her …’. The prosecutor had added that he was not contending that there was an organisation or syndicate. Rather, the appellant was the connection between all of the offenders in the sense that, but for her arranging the importation from Sydney, none of the trafficking could have taken place in the September period. It was the appellant who was both making the money and making the deals.[12]
[12]Transcript, 32–33.

Those submissions, counsel contended, had been accepted by the judge, and adopted in his sentencing remarks.

Counsel noted that the judge had addressed the question of parity as between the appellant and Tran repeatedly in his sentencing remarks. It was not the case that, the issue having been raised, he had passed over it.

Another matter to which counsel drew attention was the circumstance, so it was contended, that Tran appeared to have been the first of the offenders to plead guilty in the County Court.[13] Counsel submitted that the fact of the guilty plea and the sentence imposed in mid-December 2015 should be regarded as having been significant in the sequence of the negotiated bases for the pleas of guilty which ensued. That was another differentiating circumstance between LAT and Tran, albeit that the judge did not mention it when sentencing LAT.
[13]She had originally indicated a plea of guilty at committal on 14 May 2015. She pleaded guilty in the County Court on 27 November 2015.

In oral reply, Senior Counsel for the appellant observed that for the judge simply to mention parity many times did not address the question whether, in substance, the judge had imposed a sentence for a more serious example of the offence than that which the appellant in fact faced. There was, counsel contended, no careful reasoning as might explain the difference in the two sentences.

Counsel submitted also that it was ‘laughable’ to suggest that the differences in the positions of the appellant and Tran described by counsel for the Crown could explain a difference of six months in the head term imposed upon the two offenders.

Analysis

In my opinion, having had the advantage of full argument which Redlich JA did not have, the appeal should be dismissed. That is so for a number of reasons.

First, the circumstances of the offending of the appellant and Tran were by no means similar. On any view, the appellant played a multi-faceted role in which she sourced heroin in Sydney, had it brought to Victoria, made sales of some of what was brought to Victoria to several people, and arranged for the balance of it to be prepared by Thai and Nguyen and then delivered to Tran for on-selling to street level dealers such as Collins and Walker. She, the appellant, involved herself in ensuring that the heroin was suitably prepared for delivery to Tran. She concerned herself with the satisfaction of customers. She offended for profit, and there was inferential evidence that considerable profits were made. It is true that Tran trafficked over a longer period, and that her trafficking involved a greater quantity of the drug, and that she also appears to have had a profit motive. But what evidence of profit there was suggested that her profit was not great. Bear in mind also that Tran’s role was largely one dimensional. She was delivered the prepared drug by Thai, which she on-sold to street level dealers. The only additional aspect of her role was that she very occasionally helped with the preparation of the drug by Thai and Nguyen.

Second, the submission by appellant’s counsel as to the extent of disparity in the quantity of drugs trafficked by the appellant and Tran requires close consideration. Not only was the difference between the quantity trafficked — a little more than one kilogram and 2.381 kilograms — less than counsel contended for, the trafficking of one kilogram of the drug by the appellant could be equated with trafficking of four times or more of the prepared drug by Tran. Assessing culpability, it could be said that the appellant trafficked in one month more than Tran was able to traffick in four months.

Third, I do not doubt that the judge had to be careful, when sentencing the appellant, not to permit his apparent distaste for the basis upon which she fell to be sentenced to influence his sentencing disposition. In my opinion, it is plain that he did not let that happen. He observed that there was a substantial difference between the amounts trafficked by the two offenders in their different ways. He stated that, ‘Without that difference, and the time difference, I would have given [the appellant] a considerably higher sentence than [Tran]’. Further, in my opinion, the sentence which his Honour imposed is entirely consistent with acceptance of the agreed basis for sentencing the appellant, for the reasons which I have explained.

Fourth, the appellant’s personal circumstances otherwise were not more favourable than those of Tran. Each of them was a first time offender. Each of them was well out of childhood.[14] Each of them offended for profit. In that connection, at least Tran had some explanation — that is, a gambling problem. Each of them chose to begin offending by engaging in criminal conduct of a very serious kind.
[14]Tran was aged 39 at time of sentence, and the appellant was aged 28.

Fifth, there may be something to the submission for the Crown that Tran’s plea of guilty had, in effect, a cascading influence upon the position adopted by the other offenders.[15] The judge did not refer to that matter when sentencing Tran, and he did not mention it when sentencing the appellant. This does not mean that the Crown was not entitled to raise the matter as a point of differentiation between the appellant and Tran; but its significance or otherwise as a differentiating factor need not be further explored.
[15]As I noted at n 13, Tran indicated an intention to plead guilty at committal on 14 May 2015, and she pleaded guilty in the County Court on 27 November 2015. Thai and Nguyen pleaded guilty in the County Court on 8 December 2015, Walker on 10 December 2015 and Collins on 11 December 2015. LAT indicated an intention of pleading guilty at a committal hearing in August 2015. She pleaded guilty in the County Court on 25 February 2016.

Application for leave to appeal, THT
Grounds of application and appeal

The applicant relied upon these grounds:

Ground 1:— The Learned Sentencing Judge erred in his sentencing discretion by imposing a head sentence and non-parole period which were unjustifiably disparate to those imposed on [Walker] and [Collins], thereby giving rise to a justifiable sense of grievance.
Ground 2:— The Learned Sentencing Judge erred in his sentencing discretion by imposing a head sentence and non-parole period which were manifestly excessive in all the circumstances.
Particulars
The Learned Sentencing Judge gave insufficient mitigatory weight to:
(a)the applicant’s plea of guilty;
(b)the applicant’s lack of prior convictions and previous good character;
(c)the applicant’s emotional dependence on, and subordinate role relative to, [LAT]; and
(d)the limited period of the applicant’s offending;
and the Learned Sentencing Judge gave excessive weight to:

(e)the need to specifically deter the applicant; and
(f)the quantity of heroin trafficked by the applicant.

On the hearing of the appeal, the application not being opposed by the Crown, the Court granted leave to the applicant to rely upon this additional ground:

Ground 3:
The Learned Sentencing Judge erred in finding that the Applicant returned to Victoria from New South Wales with three (3) consignments of heroin and thereby sentenced the Applicant on an erroneous basis.

Applicant’s submissions

The applicant’s written submissions emphasised the following matters with respect to the impermissible want of parity ground.

First, the other accused persons who pleaded guilty to trafficking a commercial quantity were Collins and Walker. Collins’s situation had not been the subject of submissions on the plea, because she had been sentenced after the applicant. But a parity issue had been raised below with respect to the sentence passed on Walker.

Walker had trafficked a commercial quantity of heroin in the period 16 July to 8 October 2014. She was aged 34 at time of sentence. She was a street dealer[16] who had purchased 728 grams of heroin from Tran and sold or supplied an unspecified amount over the charged period. She used her own funds and raised funds from others. She was a heroin addict with a significant prior criminal history. She had been sentenced to four years and six months’ imprisonment with a non-parole period of two years.
[16]That is, she dealt drugs to persons who trafficked directly with users on the street, and/or dealt drugs directly to such users.

Collins was aged 65 at time of sentence. She was a street dealer who had purchased 1414 grams of heroin from Tran. She had raised substantial funds to purchase heroin. The quantity of heroin sold by her had not been specified in the judge’s sentencing remarks. Collins had an extensive prior history, including instances of convictions for drug trafficking. She herself was an addict and had a history of relapses into addiction. The judge had made adverse findings in relation to her prospects of rehabilitation. She had been sentenced to five years’ imprisonment with a non-parole period of two years and six months.

Second, the judge had found that the applicant’s role was higher than that of Walker. But in circumstances where she had acted as a courier, the applicant’s involvement at a prior stage in the process of supply was not, in itself, a justification for imposing a disparate sentence upon her.

Third, the judge had misapplied the parity principle when addressing Walker’s prior convictions and drug addiction. He had given insufficient weight to the applicant’s lack of prior convictions. Properly applied, there was greater justification for treating special deterrence as a sentencing consideration in Walker’s case than in the case of the applicant. The judge had not referred to this consideration in his sentencing remarks, but in the course of the plea had said that special deterrence seemed to arise in the applicant’s case.

Fourth, the judge had given undue weight to Walker’s addiction. His Honour had not concluded, as he ought to have done, that Walker’s failed attempts to rehabilitate, in combination with her prior convictions, meant that her prospects of rehabilitation were adverse. By contrast, the applicant’s prospect of rehabilitation must have been relatively good.

Fifth, the disparate sentences imposed on the applicant and Walker indicated that the judge may have misapprehended the quantity of heroin trafficked by the applicant. The judge had acted on the basis that the applicant had transported three blocks of heroin, rather than ‘more than one block’.

Sixth, there should have been disparity between the head sentences imposed on the applicant and Collins. In addition, the disparate non-parole period imposed on Collins was not reasonably open. Collins had trafficked over a long period, she had purchased from Tran a quantity nearly twice as great as that purchased by Walker. She had an extensive criminal history. Her prospects of rehabilitation were poor.

In respect of the ground of manifest excess, counsel relied upon the various circumstances particularised under cover of ground two. Counsel submitted that although the judge had referred to various pertinent factors, the sentence which he imposed indicated that insufficient mitigatory weight was given to each of them. Further, what was a manifestly excessive sentence could be explained by the judge having sentenced the applicant on the fallacious basis that did not reflect the agreed basis upon which the applicant had pleaded guilty.

In oral submissions, Senior Counsel drew attention to passages in the plea transcript in which the transactions involving the applicant had been explained. He drew attention also to instances in which, in the course of the plea, the judge had ventured the opinion that the applicant was fortunate with respect to the agreed extent of offending.

Counsel next referred to what he submitted were errors in the sentencing remarks in which the judge set out the extent of the applicant’s offending. Those remarks were the impetus for the added ground of application/appeal.

Counsel then developed, at some length, a comparison of the circumstances of the offending and personal circumstances of each of the applicant, Walker and Collins. He emphasised the short period in which the applicant had offended, her absence of prior convictions, her prior good work record. He emphasised also that she had been inveigled into criminal activity by her sister. In light of the applicant’s role as a courier, counsel submitted, she should have received a lesser sentence than either Walker or Collins — each of whom had been charged with the same offence, and each of whom had participated over a longer period and to a greater extent. Moreover, their antecedents and prospects were more unfavourable than those of the applicant.

With respect to manifest excess, counsel essentially relied upon the written submissions, and upon the matters which he had developed in the course of his submissions on the parity issue.

Crown submissions

It was submitted in writing for the Crown that, although the precise quantity of heroin trafficked by the applicant was not established, the effect of the agreed position was that she had trafficked more than one block of the drug, but less than one kilogram. The fact that the Crown had been able to establish that Walker and Collins had trafficked specific quantities of the drug after it had been cut down did not lead anywhere.

It was next submitted that the judge had well understood that he was not sentencing the applicant for trafficking in a large commercial quantity.

In sentencing Walker and Collins, it was submitted, the judge had given appropriate weight to their histories of longstanding drug dependence and their position at the bottom of the chain of suppliers.

It was submitted also that the need for general deterrence, denunciation and just punishment assumed greater significance when sentencing the applicant than in the case of Walker and Collins, and that specific deterrence had a role to play. The applicant’s was a case of a person engaging in serious criminal conduct only for financial gain. At time of offending, she had been employed and had no mental health or drug dependency issues.

As to manifest excess, it was submitted that the judge had rightly distinguished between the offending of THT and her sister, and had passed a sentence which gave proper recognition of relevant sentencing considerations.

Counsel’s oral submissions were, to an extent, overtaken by the answer of trial counsel (neither of whom appeared in this Court) to the question: what was the precise basis on which the applicant fell to be sentenced? Subsequent to the oral hearing, the Court was provided with a joint memorandum of counsel who appeared before us. Relevantly, it read as follows:

The plea in mitigation was conducted on the basis that the DPP could not prove that the applicant had been involved in more than two consignments of heroin of 350 grams each. This resulted in the total amount trafficked being 7oo grams and thus a commercial quantity.
Sentencing error is therefore apparent from the Learned Sentencing Judge’s Reasons for sentence.

What flowed from this error, it must immediately be said, was not agreed between the parties. It was submitted for the applicant that the Court should be satisfied that a different sentence should be imposed — vide s 281(1)(b) of the Criminal Procedure Act 2009. The Crown contended to the contrary.

It is relevant, but not decisive, to the dispute just highlighted to outline the Crown’s oral submissions on the parity issue. In essence, counsel argued that the parity principle was not infringed by the sentence passed on the applicant, Walker and Collins. In addition to the important consideration of the quantity of drug trafficked by each of those offenders, there were very distinct differences which well justified the judge’s differentiation in the sentences imposed. Walker’s life had been ravaged by heroin addiction. There was no profit motive in what she did. The instant offending had occurred after events had occurred in Walker’s private life, leading to a relapse into drug use, which had engaged the judge’s sympathies. True it was that Walker had prior convictions, but only one was in respect of trafficking, and that was a very minor incident. In all, there was no basis for the applicant’s complaint about disparity between the sentence imposed upon her and the sentence imposed upon Walker.

As for Collins, she had been 65 at time of sentence, and her life had been one of drug addiction, failed attempts at withdrawal, and offending associated with her drug use. Remarkably, she had been offence-free for a relatively lengthy period after 2003, but had fallen into offending again after problems had developed in her private life. In all, when comparing the circumstances of the offences and the offenders in the case of the applicant and Collins, there were differences which could be regarded as balancing out.

Analysis

It is convenient to begin with the added ground.

Error being conceded, in one sense little need be said to explain how it occurred. But because I consider that what happened on the plea was far from satisfactory, and was apt to confuse the judge, I think that I should say something in that connection.

The Crown opening plainly alleged that the applicant couriered a block of heroin to Melbourne on 24 September 2014. The prosecutor then detailed a second journey by the applicant from Sydney to Melbourne on 26 September. The clear inference is that it was being alleged that this was a second occasion on which the applicant couriered a block of heroin to Melbourne.

The opening then referred to a third occasion on which the applicant travelled with LAT to Sydney to purchase heroin, the applicant returning by overnight coach on 1 October 2014. This was, according to the Crown case, a safe method of couriering the drug, by contrast with a plane flight. It had been the mode of transport by which the applicant had returned to Melbourne on 24 and 26 September, she having flown to Sydney on each of those occasions.

The opening referred also to a fourth trip by the applicant and her sister to Sydney, on 8 October 2014. It was made plain enough that this trip did not result in the purchase of heroin.

Having detailed that series of trips, the prosecutor said this:

Police are unable to say the exact amount of heroin trafficked by [THT], but say there was not less than the commercial quantity and was more than one block, as discussed. Equally, police are unable to say the exact amount trafficked by [LAT], but say that it was not less than the [large] commercial quantity, although at the lower end, but greater than one kilo of heroin.

The prosecutor then drew the judge’s attention to the fact that the applicant had originally been charged with trafficking not less than a large commercial quantity of the drug, but that, ‘it has resolved to the lesser charge of commercial’.

In the course of the plea on the applicant’s behalf, there was this interchange between counsel and the judge:

COUNSEL:She was charged for a large commercial quantity. There is footage of [THT] on two of these dates. There are four trips that the Crown has summarised.
Those facts are accepted and the plea negotiations surrounded around the two trips where there’s footage attached where it clearly shows [THT] is in the frame. And equally, what was agreed that there is an amount which is not less than a commercial quantity, but the exact amount cannot be established.

HIS HONOUR: Yes, we know don’t we — is there two or three trips that we know that — there’s two accepted that she’s done, probably three and what you’re saying to me is obey your plea, because while there’s evidence as to two, there’s no evidence as to the third. And a deal has been done between lawyers to put her in the lower end — well, put her in the lesser - - -

COUNSEL: In the lesser category of the commercial quantity.
HIS HONOUR: Yes, I accept that.
COUNSEL:But what was open to her at the time, if she did run this matter to trial, is perhaps a Nguyen point where [THT] should have knowledge as to the quantity that was in her backpack. And that goes to the heart of my submission - - -
HIS HONOUR: I wouldn’t like the chances of that point getting up in this case.

…
COUNSEL:Yes, the point I was making there, Your Honour, is the quantity she was trafficking. The quantity that she was — that she had in her bag - - -
HIS HONOUR: One would think you lucky in the sense — not lucky, but the deal put you in the lesser category. That’s all you need to say, isn’t it?
COUNSEL:Yes.

The way in which the submissions left the agreed position was not perspicuously clear. It was clear that the applicant was to be sentenced for the lesser offence, and it was accepted that she had made two trips to Melbourne with blocks of heroin. But whether or not a third trip was to be brought into the equation, it was at least clear that the Crown accepted that the applicant had not trafficked as much as one kilogram of the drug.

I turn to the judge’s sentencing remarks.

Applicant’s counsel referred to and relied upon this passage:

In these 8 days, [THT]travelled to New South Wales and returned with three consignments of heroin to Victoria from New South Wales, of purchases made by her sister. Each of those consignments were of a purchase value of $95,000 and a weight of 350 grams. The mathematics of that, of which there is clear surveillance of [THT], take one into the large commercial quantity range. Clearly negotiations made between the parties is of benefit to [THT] and she does not fall to be sentenced at that level.[17]

[17]DPP v Trinh & Trinh (Unreported, County Court of Victoria, Judge McInerney, 26 February 2016), [70].

Counsel submitted that this passage was wrong in two respects. First, it was not the agreed position that the applicant had returned from New South Wales with three consignments of heroin. Second, insofar as the judge implied that there had been clear surveillance of the applicant returning with three consignments of heroin, there had been surveillance on two occasions only.

Counsel referred also to statements by the judge that —

Here is a person involving herself, on at least three occasions, in bringing large amounts of heroin from Sydney to Melbourne.[18]

and —
For this very serious offence of which essentially you were assisting your sister, however, as I found, also for your own benefit, … given your role and the manner in which I have defined your role and the importance of your role in getting this heroin, albeit that we are only looking at the three shipments that you were involved in, but the volume of that and the importance of your role is such that an appropriate period of imprisonment for you is a period of five years’ imprisonment.[19]

[18]Ibid [75] (emphasis added).

[19]Ibid [79] (emphasis added).

It is thus very clear that in his sentencing remarks the judge approached the matter on the footing that the applicant had couriered three blocks of heroin to Victoria in the short period of her offending. This bore upon his Honour’s conclusion that the applicant had been a very busy trafficker in that short period. It gainsaid any suggestion that the applicant was not offending for a profit motive. Further, that three shipments had been couriered bespoke a quantity of trafficking which was relevant to the sentence which must be imposed.

The added ground contends, and as I previously noted the Crown now concedes, that the judge erred in finding that the applicant returned to Victoria from New South Wales with three consignments of heroin, and thereby sentenced her on an erroneous basis. It is no answer to this error that the matter was presented in an unsatisfactory way on the plea. Again, whilst it is not difficult to understand why his Honour erred — in circumstances where the prosecutor had outlined the four trips made by the applicant and LAT to and from Sydney, the last of which had evidently been abortive, in order to make out a case of trafficking a large commercial quantity by LAT — the fact of error remains.

To conclude that the judge erred in the way which I have described is not to say that his Honour sentenced the applicant for trafficking in a large commercial quantity. Indeed, I am satisfied that he did not do so. Rather, he deployed his conclusion that the applicant had trafficked heroin on three occasions to assess her overall level of criminality. That being so, and it being at odds with the agreement reached between counsel below as to the basis upon which the applicant fell to be sentenced, the error could not be regarded as immaterial. In those circumstances, it falls to the applicant to satisfy us that a different sentence should be imposed.

In answering that question, as I earlier observed, the issue of parity assumes distinct importance. Ground one asserts that there was an impermissible disparity between the sentences imposed upon the applicant, on the one hand, and upon Walker and Collins on the other hand. That ground should now be considered on the basis of the agreement between the parties that the applicant couriered two blocks of heroin from Sydney to Melbourne in the short period of her offending, the quantity of the drug trafficked being 700 grams.

The applicant was, at time of offending, aged nearly 28. She was single. She lived with her mother and her sister LAT. She had no criminal convictions. Her role was to courier to Melbourne heroin sourced in Sydney by her sister as a necessary step in a supply chain which began, in Victoria, with her sister, and which ended with street dealers such as Walker and Collins. It was accepted by the judge that she was under the sway of her younger sister, LAT, when offending. The period of her offending was short. On the other hand, THT took on a necessary part in serious offending without being in financial need, without being subject herself to addiction, and for a profit motive — whether it be personal profit or profit accruing to her family. Her offending and her circumstances were in very sharp contrast to the street level dealing of Walker and Collins, which had no profit motive other than to enable them to feed their relapsed addictions. The applicant’s offending could reasonably be characterised as more cold-blooded.

It is true that the street level dealing of Walker and Collins extended over a much longer period than did the applicant’s offending, and that the amounts of the drug which they trafficked accumulated over those periods of time respectively to as much as, and more than, the heroin trafficked by the applicant. But, akin to what I have said in the case of LAT, in one week the applicant trafficked the equivalent of more than the quantity of heroin trafficked by either Walker or Collins over much longer periods.

It is next the case that, because of their addiction-related past offending, together with the instant offending, neither Walker nor Collins could have had favourable prospects for rehabilitation. That is so despite their failed attempts at withdrawal. Specific deterrence had a part to play in their cases, although the concept had a certain unreality about it when applied to the reduced circumstances in which they lived and trafficked. On the other hand, it is by no means clear that the applicant’s rehabilitation prospects were wholly favourable; and I do not accept that specific deterrence had no part to play in the sentencing synthesis. The same may be said of general deterrence, just punishment and denunciation. Circumstances to which I referred at [103] above are in point.

Whilst I accept that the judge over-estimated the applicant’s criminal activity by sentencing her on the basis that she couriered three shipments to Melbourne, the applicant has not satisfied me, considering the offending and the three offenders overall, that a different sentence should be imposed. The parity principle does not call for it.

Nor should the sentence be characterised as particularly stern in all the circumstances. Applicant’s counsel referred to Sentencing Snapshot 162. He relied upon the fact that the sentence which the judge imposed departed from the median head term of three years and six months’ imprisonment. Counsel for the Crown responded by referring to the later Sentencing Snapshot 194, where the median term is stated to be four years’ imprisonment, with the most common sentence being in the range four to five years.

The limited utility of such snapshots has been mentioned many times. In my view, the raw figures relied upon by the parties do little more than show that the applicant was sentenced, for a serious burst of offending over a short period, to a period of imprisonment not much exceeding the median and the most common range. The differences between the applicant’s offending and the offending engaged in by Walker and Collins illustrate the very different ways in which the offence may be committed.

My non-satisfaction that a different sentence should be imposed extends to the non-parole period. The proportionately low non-parole period which the judge fixed in Walker’s case does not, on consideration of all the circumstances, mean that the otherwise unremarkable non-parole period fixed in the applicant’s case can be successfully impugned. As I noted earlier, the judge’s sympathies were evidently engaged in Walker’s case, and so may be explained the very low non-parole period which his Honour fixed.

In the event, I would grant the applicant leave to appeal, but would dismiss the appeal.

Director’s appeal, Thai
Grounds of appeal

The Director relied upon the following grounds of appeal:

Ground 1 — The head sentence and non-parole period are manifestly inadequate
Particulars: in sentencing the respondent, the learned sentencing judge:
(a)failed to give sufficient weight to the sentencing principles of protection of the community, just punishment, denunciation, general deterrence and specific deterrence;
(b)failed to properly reflect the gravity of the offending;
(c)failed to have sufficient regard to the respondent’s role in the criminal enterprise;
(d)failed to have sufficient regard to the impact of the offence upon the community;
(e)failed to give proper weight to the sentences imposed on co-accused [Nguyen] and [Tran];
(f)failed to have sufficient regard to the maximum penalty for the offence;
(g)gave too much weight to hardship to the offender’s son; and
(h)gave too much weight to mitigating factors concerning the offender;

with the result that the sentence is manifestly inadequate.
Ground 2 — The learned sentencing judge erred in finding that hardship to the respondent’s son constituted an exceptional circumstance.

Director’s submissions

At the outset of his oral submissions, Senior Counsel for the applicant frankly stated that the Crown would have a ‘fair degree of difficulty’ in persuading the Court of the manifest inadequacy of the sentence unless ground 2 was established.

It then emerged in the course of debate between counsel and the Bench that ground 2 should be viewed as providing an explanation why the sentence imposed on Thai was manifestly inadequate.

It was next not in issue between the parties that the judge correctly directed himself as to the ‘exceptional circumstances’ test. This highlighted the circumstance that the Director’s attack was upon a conclusion — as will be seen, involving matters of fact and degree — made by the judge.

Counsel accepted that the burden lay upon the Director to satisfy this Court that the conclusion complained of was not open.

The gist of counsel’s submissions was that all that had been relied upon by the respondent below was that her son Billy, in consequence of his mother’s incarceration, was obliged to be put into foster care. That, counsel submitted, could not constitute exceptional circumstances.

Counsel referred to the following paragraphs in the judge’s sentencing remarks:

31.Further, he is a boy who suffers from autism spectrum. Exhibit T6 was tendered which was a report provided by a company called Solutions Psychology Australia and was in fact an autism assessment report provided by that company and specifically by Melissa Juzva, who is the psychologist and director. It is of interest to note that Ms Thai’s youngest child is a person, despite his issues, of average IQ, having a level of 73. At p.7 of such report the formulation for the appropriate assessment is detailed, it is noted that his symptoms had been present at a very early development stage and has caused clinically significant impairment in social, occupational and other important areas of functioning.
32.The determination made in this report was that the criteria set out in the relevant DSM-5 was satisfied and a diagnosis was made of autism spectrum disorder, without any accompanying intellectual impairment and without any accompanying language impairment. At p.8 in the treatment plan, it is noted that the school had sought CEO funding for support for Ms Thai’s youngest child and provide ongoing individual psychology sessions to assist him with his social and emotional difficulties.
33.The next document tendered was the psychological assessment made of Ms Thai’s youngest child, Exhibit T8, 30 April 2016 by the psychologist, Ms Scicluna. Ms Scicluna details that the child is a current client of North-West Psychological Services and has been since he has been placed in care, and has been in therapy since January 2015.
34.His family relationships have been explored, the issues of separation have been explored. He has been referred for a diagnosis as to autism, to which I have already referred, and there is also reference by the psychologist of the steps being taken at his school, St Brendans Primary School in Flemington, his welfare team and teachers to assist him while at school. It was noted that he was having problems at school by way of ongoing crying and he is being assisted generally by his carer and his welfare team at the school and he continues to receive assistance from the North-West Psychological Services.
35.The next document was Exhibit T9, which is the report from the school. As set out at paragraph 3, an assessment was organised for him in August 2012. The reason for that was to identify the need for support in his learning and social skills. It should be pointed out that he was first enrolled at St Brendan’s as a Prep, and has been there ever since. It seems to me that the work undertaken on his behalf by St Brendans and the assistance provided to him by the Catholic education office has been exemplary. He has had treatment for speech issues and has had psychological treatments that I have already referred to.
36.This report is in fact provided by the Principal and his Wellbeing Leader. It concludes that he was having worries, as of meetings of March 2016, about his mother, about how long he was in care, about how he was progressing. He has ongoing difficulties in regard to coping with school and is subject to an individual learning plan. The school has assisted with the manner in which Ms Thai’s youngest child undertakes his schooling, emotional support, as to how he asked questions and solved difficulties and, I suppose the simple answer is, controls himself.

37.In addition was tendered his case manager's report. That was Exhibit T10 and is a report dated 2 March 2006 by his case manager, Roslynne Bourke. She has been working with him since October 2014, which is essentially the appropriate remand period. She engages with him for his home visits, picks him up from school. He is currently on placement with the carer, Kerry Oliver. He seems to be engaging in various sports. He is living out of home care because of the incarceration. Has fortnightly supervised visitation with his mother, which is seen to be positive for both him and his mother. His overall health is good. The assessment is noted, his psychological support is noted. Her conclusion seems to me to be a conclusion that is undeniable, that he has a very good care team consisting of his carer, case manager, school welfare officer, principal, paediatrician and psychologist, all working closely to support the youngest child’s academic, social and emotional needs.
38.Ms Bourke’s hope is that with those supports, the youngest child's ongoing skills will develop and he will successfully integrate his experiences. The achievement of that hope is beyond the scope of this particular determination. However, clearly, as I said, he is being well cared for. It appears to me from the balance of those reports that his autism symptoms are longstanding. His anxiety issues seem to have required treatment from approximately January 2015. He is showing symptoms of uncertainty, of missing his mother and of concern as to how long he would be in care. As I said, however, his underlying problems have clearly been in place and being treated long before he went into care.
39.It is mystifying to me how a boy in such a situation, Ms Thai, could commit this criminality, and place her son in such jeopardy. Since he has been in care, in my view, he has had excellent care and, may I say publicly, how well it appears to me he has been treated.
40.The determination of this submission is particularly difficult. I have struggled very much with it. As has been pointed out, we are dealing here with one of the most serious crimes in our criminal charter. The law is very clear, that the exercise of mercy for family hardship is only exercised by a Court when circumstances are found to be exceptional. One is conscious of the need not to act in an inhumane way, and I refer by the use of that phrase to the comments by the Court reported in R v Wirth (1976) 14 SASR 291, in particular [295] to [296].
41.One perhaps hesitates to say this, but it may well be the reality that Ms Thai’s youngest child is in fact in better care now while his mother is incarcerated, than he was while she was free, addicted to gambling and committing crime over that four months’ period. However, I am conscious that albeit that we have has a remand period of 19 months, the potential of the minimum period to serve by imprisonment of which I can sentence his mother calls for a considerable further period over which he would be subject to living his life, albeit well cared for, without the care of his mother. [20]

[20]DPP v Thai (Unreported, County Court of Victoria, Judge McInerney, 13 May 2016), [31]–[41].

Counsel accepted that the circumstances there set out were a fair summation of the material before the judge. The gist of it was, he submitted, that the child was in foster care and had a team of suitably qualified persons to assist him. Further, although the child obviously missed his mother, there had been no degeneration, whether physical or mental, in the child’s condition in the period of his mother’s incarceration.

As to what might constitute special circumstances, counsel referred to R v Carmody,[21] R v Holland,[22] R v Maslen and Shaw,[23] and R v Davidson.[24]
[21](1998) 100 A Crim R 41.
[22](2002) 134 A Crim R 451.
[23](1995) 79 A Crim R 199.
[24][2008] VSCA 188.

Counsel submitted that, absent the finding of exceptional circumstances, the respondent’s role over the four month period of her offending — cutting, mixing and repackaging the heroin blocks, and then delivering them to Tran — must have attracted a head sentence of about seven years’ imprisonment.

Submissions for respondent

Respondent’s counsel submitted that the finding of exceptional circumstances was made by a very experienced judge on a considerable amount of relevant evidence, together with submissions. The judge had been taken to relevant authorities and it was not submitted that he had misdirected himself as to the relevant principle. It was clear that his Honour had struggled in resolving the question which he had to decide. Indeed, he had explicitly said so in his sentencing remarks.[25]
[25]DPP v Thai (Unreported, County Court of Victoria, Judge McInerney, 13 May 2016), [40].

Counsel then submitted that it seemed that the Director was arguing that the positive aspects of care given to the child extinguished circumstances which ought be regarded as constituting an exceptional circumstance.

Counsel referred to Davidson and Holland, which had been cited for the Director. Each of them involved, by contrast with the present case, the sad consequences of what had happened post-sentence.

Counsel did not accept that the circumstance that the son had been placed in State care constituted the entirety of the relevant circumstances. Importantly, the child suffered from an autism spectrum disorder from which he had suffered before the respondent was arrested, and which continued.

Counsel further submitted that, even if the judge had erred in his finding, this did not provide a basis upon which the Court should interfere. In that connection, he cited DPP v O’Neill.[26]
[26](2015) 47 VR 395.

Director’s submissions in reply

Senior Counsel for the Director submitted, in reply, that this Court was in as good a position as the sentencing judge to decide the disputed circumstances. He accepted that the finding was a value judgment, and that, together with the requirement that the Director establish that the finding was not open, this presented the Director with a high hurdle. But he submitted that the Director had nonetheless cleared that hurdle.

Submissions subsequent to the oral hearing

Arising out of a question from the Bench as to the nature of the burden resting on an accused at first instance to establish exceptional circumstances, counsel for the Director submitted that —

(1)The exercise of mercy which underlies a finding of third party hardship is not a normal mitigating circumstance, for which reason it seemed inapt to bring to bear, on an analysis of third party hardship, considerations which would normally relate to proof of mitigating or aggravating facts.
(2)Intermediate appellate courts have not hitherto expressed themselves — either on review or in determining for themselves — any applicable standard of proof. The approach has rather been to view the question as one of ‘fact and degree’, to be considered on appeal through the prism of asking whether the finding was ‘reasonably open’.
(3)Nonetheless, a court is not at large in determining the presence or otherwise of exceptional circumstances constituted by third party hardship. Both a recognition of the fact that what is being asked for is the application of a ‘meta-principle operating outside the confines of standard sentencing rules’[27] and an appreciation of the meaning inherent in the various epithets that have been used by courts to describe the circumstances when such principle may be applied, serve to inform the decision maker of the strictness of the relevant category.
(4)The various epithets which have been used to describe the circumstances in which the principle may be applied emphasise the rarity with which such a finding will be made. The epithets imply that analysis in terms of a particular standard of proof is inapt.
(5)In considering reliance upon third party hardship, the objective seriousness of the offence is a relevant consideration.
(6)There had been a few cases in which a finding of exceptional circumstances at first instance was impugned on appeal. None of them considered whether the finding at first instance was made to a particular standard. Rather, the courts considered whether the finding had been reasonably open.

[27]See Richard Fox, ‘When Justice Sheds a Tear: The Place of Mercy in Sentencing’ (1999) 25(1) Monash University Law Review 1 (‘Fox’), 18.

The respondent —

(1)Agreed with the Crown’s submission that third party hardship is not a normal mitigating factor.
(2)Submitted that, because there must be cogent evidence of exceptional circumstances, the sentencing judge would need to be satisfied on balance of probabilities of the existence of circumstances relied upon. But beyond that, the finding of exceptional circumstances is a matter of fact and degree.
(3)Submitted that, on appeal against a finding of exceptional circumstances, the court should approach the matter as it would do in determining whether a sentence is or is not manifestly excessive. The judge’s conclusion could only be successfully impugned if it was not reasonably open.

Analysis

First, as I have noted earlier in these reasons, it was not contended for the Crown that the judge misdirected himself as to the principles which are pertinent to consideration whether a finding of exceptional circumstances by reason of third party hardship ought be made.[28] His Honour referred to the need not to act in an ‘inhumane’ (sic) way, this echoing the observations of Wells J in R v Wirth.[29] Other phrases used to describe the required circumstances — ‘highly exceptional’,[30] ‘clearly exceptional’,[31] ‘truly exceptional’[32] and ‘sufficiently extreme’[33] — plainly emphasise the rarity with which a conclusion that such circumstances are present will be reached. But they do not mean, and it was not submitted for the Crown, that the judge misapprehended the stringency of the test.
[28]The judge referred to those principles at DPP v Thai (Unreported, County Court of Victoria, Judge McInerney, 13 May 2016) [40]. See also [28].
[29](1976) 14 SASR 291, 296 (Wells J) cited in R v Esposito [2009] VSCA 277, [14] (Nettle JA).
[30]R v Wirth (1976) 14 SASR 291, 296.
[31]R v Carmody (1998) 100 A Crim R 41, 46 (Callaway JA).
[32]R vEdwards (1996) 90 A Crim R 510, 516 (Gleeson CJ). See also R v Holland (2002) 134 A Crim R 451, 461, [55] (O’Bryan AJA) and R v Mangione [2006] VSCA 34, [10].
[33]R v Maslen and Shaw (1995) 79 A Crim R 199, 209 (Hunt CJ at CL) and R v Yates (1997) 99 A Crim R 483, 486–7.

Second, the parties were correct in submitting that third party hardship is not a mitigating factor properly so called, but is to be regarded as a request for mercy.[34]
[34]Markovic v The Queen (2010) 30 VR 589, 594, [14].

Third, in every case a factual substratum must be demonstrated upon which a conclusion must be reached whether the revealed circumstances either do or do not satisfy the exceptional circumstances test. It is logical to say that an accused carries a burden with respect to establishing the factual substratum, and in this connection I agree with the respondent’s submission that balance of probabilities has a part to play.

Fourth, I agree with the submission advanced by both parties that a conclusion whether the demonstrated circumstances meet the exceptional circumstances test is a matter of fact and degree.[35] It has also been described as the exercise of a discretion.[36] So the question, when such a conclusion is impugned, is whether the same was reasonably open.[37] The resolution of that question might involve consideration of an attack on a particular part of the factual substratum upon which the conclusion was founded.
[35]Ibid, 603, [77].
[36]Ibid, 594, [15].
[37]Ibid, 604, [80]. See also R v Hinton (2002) 134 A Crim R 286, 293–4 (Howie J).

Fifth, I turn to the circumstances of the present matter. I reject the Crown’s submission that the only exceptional circumstance relied upon by the respondent below, and as it appeared to the judge, was that the child, Billy, would be required to live in foster care during the period of his mother’s imprisonment. The burden of the matter, reflected by the judge in his sentencing remarks,[38] concerned the situation of a young boy suffering from autism spectrum disorder having to cope with the demands of life and study when deprived of connection with his mother, she being his only active parent,[39] and there being no other family members in Australia to take up the burden whilst she was imprisoned. One aspect of the problem was the need for the child to go into foster care.
[38]DPP v Thai (Unreported, County Court of Victoria, Judge McInerney, 13 May 2016) [30]–[39].
[39]His father’s whereabouts were apparently unknown.

The judge analysed the effect on the child by reference to reports which, on the one hand, expanded upon the nature of the disability, and, on the other hand, commended the excellent care which the child was receiving both at and away from school. In the end, the judge concluded that the entire circumstances met the description of ‘exceptional’. Those circumstances included the age of the child — he was 11 years old at the time his mother was sentenced — the fact that the child suffered from autism spectrum disorder,[40] the fact that the respondent was a ‘single parent’ without other family in Australia, the consequence that the child had to be put into foster care, and the fact that in the period between the respondent’s arrest and sentence the child had been in two foster homes. Those circumstances, the judge concluded, should be given recognition in the sentence imposed on the respondent, notwithstanding the objective seriousness of her offending and that the child was in the care of skilled professionals.
[40]Almost certainly from a time before the respondent began to offend.

There being no contention that the circumstances which called for evaluation were not sufficiently established, the question is whether the judge’s conclusion was not reasonably open. In my opinion, that question should be resolved against the Crown. It is essentially beside the point that I might not have reached the same conclusion. As has been repeated time and again where it is complained that a sentence was manifestly excessive, the fact that appeal judges might have imposed a lesser sentence does not mean that the prisoner’s application should succeed. It is no different in the present connection. The judge’s conclusion, a matter of fact and degree was, in my opinion, a rational and permissible one.

Below, respondent’s counsel relied upon the claimed exceptional circumstances to support a submission that a lower than usual non-parole period ought be fixed. The judge did not accede to that submission. Rather, his Honour imposed a head sentence which was lower than was otherwise warranted, and fixed very much a conventional non-parole period. Whilst the course proposed by counsel below might have been adopted, it was not the only way of structuring the sentence once the judge was satisfied that exceptional circumstances had been demonstrated. A prisoner may be called upon to serve every day of the head sentence. Grant of parole simply cannot be assumed.

I would dismiss the Crown’s appeal.

Application for leave to appeal, Nguyen

Grounds

Nguyen relied upon these grounds:

Ground 1The Learned Sentencing Judge erred in making adverse findings against the applicant which were not supported by evidence, namely:
a.that the Applicant was delivering heroin on behalf of the head supplier to the syndicate;
b.that the Applicant was utilised by the head supplier of heroin; and
c.that the Applicant’s role in the organisation was greater that [sic] that of co-offender Men Tran.

Ground 2The Learned Sentencing Judge denied the Applicant procedural fairness in that he made adverse findings, outside of the scope of the agreed facts, in circumstances where he did not indicate that he was proposing to do so. Namely:
a.that the Applicant was delivering heroin on behalf of the head supplier to the syndicate;
b.that the Applicant was utilised by the head supplier of heroin; and
c.that the Applicant’s role in the organisation was greater that [sic] that of co-offender [Tran].

Ground 3The Learned Sentencing Judge erred in imposing a sentence which was manifestly disparate with the sentence of co-offender [Tran].
Ground 4The Learned Sentencing Judge erred in imposing a sentence that was manifestly excessive in all the circumstances.
Particulars of Manifest Excess
(a)Lack of prior convictions
(b)Early plea of guilty
(c)Short period of time of involvement
(d)The quantity of heroin was just over the Large Commercial quantity
(e)The Applicant only providing physical labour to one of the people in the syndicate
(f)The Applicant was not involved in the financial arrangements of the syndicate
(g)The Applicant received a mid-range sentence for a low level example of the offence

A proper concession

Nguyen’s role was described in the prosecution summary as being present when discussions occurred regarding the sourcing and sale of drugs; assisting Thai by pressing the drugs once cut into discs, weighing the drugs, dividing the ‘deals’, storing the drugs and packing the drugs for delivery to Tran.

There was no evidence that the applicant was involved in delivery of the drugs to Tran or any other person. Nevertheless, the judge proceeded on the basis that he had been so involved and referred to this on numerous occasions. Three examples suffice:

…he was involved, essentially in delivering the heroin from [LAT] to [Tran]…[41]
He was also involved in actual deliveries and the basis of the plea is that the deliveries that he was involved in to [Tran] were not less than one kilogram, being the amount required to qualify him for this particular charge…[42]
He was a person who was assisting the main supplier and delivering to persons the product which would then be on-delivered to street dealers.[43]

[41]DPP v Nguyen (Unreported, County Court of Victoria, Judge McInerney, 3 March 2016) [3].

[42]Ibid [10].

[43]Ibid [18]. See also [9], [21].

The judge also found that Nguyen was ‘a person utilised by the leading administrative head … supplier of the heroin into Victoria’, LAT, and was an assistant to her as the major organiser.[44]
[44]Ibid [8], [20]. See also [22].

The Crown conceded (correctly, in my view) that specific error had been identified in the judge’s reasoning in respect of the erroneous factual finding relating to delivery of drugs by Nguyen and the judge’s observations that Nguyen was an assistant to LAT.

In consequence, the question to be answered is this: has the applicant satisfied the Court that a different sentence should be imposed?

In answering that question, regard must be had to the true sentencing facts. For that reason, what the judge said about parity as between Nguyen and Tran, partly founded on an incorrect factual basis, is essentially beside the point. But parity, considered in the context of the true facts, is a relevant consideration in deciding whether the applicant has made good the burden cast on him by s 281(1)(b) of the Criminal Procedure Act2009.

Likewise, there is little if any utility in considering whether the sentence imposed by the judge, partly founded on an incorrect factual basis, ought be held manifestly excessive. On the other hand, the parties’ submissions respecting manifest excess are not irrelevant to this Court’s task insofar as they identify matters said to be relevant to exercise of the sentencing discretion.

Analysis

Nguyen was aged 30 at time of offending and 32 at time of sentence. He had no prior convictions. His offending occurred over a period of about a month. His role was essentially a physical one. Thai received quantities of heroin of some 60–70 per cent purity. It had to be cut, mixed, pressed and packaged. Nguyen operated the press, which took some physical effort. Other than that, he assisted to store the packaged ‘deals’, was sometimes present when LAT and Thai discussed the sourcing and sale of the drug, and assisted to pack ‘deals’ for delivery to Tran. In the month of his involvement, he trafficked — by preparation — a large commercial quantity of heroin. His involvement came about because he was Thai’s boyfriend at the time.

At this point, it is useful to consider the submissions advanced for the parties respecting pertinent sentencing considerations, including the issue of parity. For the applicant, it was submitted that the sentence imposed by the judge was a mid-range sentence, only slightly below the median sentence of imprisonment for the offence. But a sentence in the lower end of the range ought to have been imposed. Relevant factors included the quantity of drugs trafficked — that is, just over the large commercial quantity threshold — the applicant’s early plea of guilty, the absence of prior convictions, the deterrent effect of a lengthy period spent on remand, the applicant’s relatively minor role in the offending, the applicant’s prospects for rehabilitation — they were said to be good — and the fact that the applicant was brought into the offending by his then partner.

Specifically as to parity, it was submitted that the prosecution had accepted that there ought be discrimination between the sentences imposed upon the applicant and Tran, that the applicant’s role was one of physical labour whereas Tran’s role involved distribution, finance and some preparation of the heroin, that there were no communications between the applicant and LAT whereas Tran had significant communication with LAT, that in addition to the other aspects of her offending Tran had also performed similar physical labour to that performed by the applicant, and that Tran had trafficked a significantly larger amount of heroin than the applicant, and over a longer period.

It was submitted for the Crown that the mitigating circumstances called in aid by the applicant, whilst important, were not, whether considered individually or in combination, substantial. The applicant had not been a gambler, nor under financial pressure, nor a drug user, at time of offending. Further, there was no unjustifiable disparity between the sentences imposed upon the applicant and Tran. She had received a heavier sentence, both as to the head term and non-parole period. Each of the applicant and Tran had engaged in serious offending. The role of each of them was extensive and vital to the movement of drugs to the street level dealers. Their personal circumstances did not much differ.

Orally, Senior Counsel for the Crown observed that the sentence imposed upon the applicant was ‘maybe … a bit stern’, but that it was not manifestly excessive. That submission was not really apposite because, having regard to the judge’s not immaterial error, the question is whether the applicant has satisfied the Court that a different sentence should be imposed. Counsel’s observation is, however, not altogether beside the point in that connection.

The applicant’s offending was serious, notwithstanding that, in my opinion, it was considerably less serious than the offending by LAT, Thai and Tran. LAT sourced the heroin in Sydney, had it couriered to Melbourne, made sales to La and Tieu, and gave other of it to Thai for preparation and delivery to Tran. LAT was not an addict, was not shown to be in financial difficulties, and had a profit motive for her offending. In the short period of time comprehended by the agreed basis of her offending, she trafficked a large commercial quantity of heroin of some 60–70 per cent purity.

Thai engaged in preparing the drug over a considerably longer period than did Nguyen. She trafficked a large commercial quantity of the drug, in its cut-down form, over a period of four months. She was not a drug addict, and had a profit motive for what she did. She had an explanation for her conduct, rooted in her gambling problem, but that was no excuse.

Tran trafficked the drug in its cut-down form to street dealers over a four month period. She had a very occasional role in helping to prepare the drug, and she evidently had some relationship with LAT. She was another offender who did not have a drug addiction. Like Thai, she had a gambling problem.

Nguyen’s involvement was for a lesser period of time than either Thai or Tran. His trafficking was in the cut-down drug, not in the drug as trafficked by LAT. The judge found that he had a profit motive, but that is not incompatible with his motive being essentially to help Thai out of the financial problem created by her gambling.

Like each of LAT, Thai and Tran, Nguyen had no prior convictions. That was likewise the case with THT.

Nguyen was able to call in aid a number of mitigating circumstances. He had reached his early thirties before he offended, and his offending appears to have been triggered by his association with Thai. He pleaded guilty at the earliest opportunity, and was evidently remorseful. His prospects for rehabilitation might be regarded as at least reasonable having regard to the way in which he came into the offending, the short period of that offending, and the fact that, as a person who might be assumed to be not unintelligent,[45] the long period which he had spent on remand was likely to have been a salutary experience.
[45]He had a university degree, gained in Vietnam.

When one considers the sentences passed upon the various offenders, it does appear to me that the sentence imposed upon Nguyen, having regard to all the circumstances, was out of kilter with the sentences imposed upon LAT, Tran, THT, and with the sentence which I consider ought to have been imposed on Thai had it not been for the exceptional circumstances relating to third party hardship. I consider also that the circumstances attending the sentences imposed on Walker and Collins were so different to the circumstances referable to Nguyen, that they do not dictate a different conclusion

LAT was sentenced to seven and a half years’ imprisonment with a five and a half years’ non-parole period. Tran was sentenced to seven years’ imprisonment with a five year non-parole period. But for the exceptional circumstances which operated in Thai’s case, I consider that a sentence of seven years’ imprisonment with a five year non-parole period would have been appropriate. THT, who pleaded guilty to trafficking a commercial, rather than a large commercial quantity, of the drug, and who offended for a very short period, was sentenced to five years’ imprisonment with a three year non-parole period.

.

In the event, I consider that Nguyen should have leave to appeal and that his appeal should be allowed. I would re-sentence him to five years and six months’ imprisonment with a three years and six months’ non-parole period.

FERGUSON JA:

I agree with Ashley JA for the reasons his Honour gives.

BEALE AJA:

I agree.

[2016] VSCA 307

9 December 2016