Van Thi Hong Nguyen v The Queen
[2016] VSCA 276
•23 November 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0111
| VAN THI HONG NGUYEN | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 November 2016 |
| DATE OF JUDGMENT: | 23 November 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 276 |
| JUDGMENT APPEALED FROM: | DPP v Nguyen (Unreported, County Court of Victoria, Judge Coish, 18 May 2015) |
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CRIMINAL LAW – Appeal – Sentence – Conspiring to import a marketable quantity of a border-controlled drug (heroin) – Sentence of imprisonment for 10 years with non-parole period of 7 years – Delay – Whether judge erred in rejecting delay as a mitigating factor – No error by judge in dealing with the elapse of time between offending and sentencing – Whether sentence manifestly excessive – Appellant’s role in the conspiracy – Appellant’s role above courier or mere intermediary – Appellant was a source of supply for co-conspirators – Sentence not manifestly excessive – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr O P Holdenson QC and Mr M J Gumbleton | Haines & Polites |
| For the Respondent | Mr L Crowley | Mr M Pedley, Solicitor for Public Prosecutions (Cth) |
REDLICH JA
BEACH JA
KAYE JA:
On 24 April 2015, the appellant pleaded guilty in the County Court to one charge of conspiring to import a marketable quantity of a border-controlled drug (heroin) contrary to ss 11.5(1) and 307.2(1) of the Criminal Code 1995 (Cth). The charge was a between dates charge (that is, that the appellant, between 16 August 2012 and 20 March 2013, conspired to import the drug).
Following a plea hearing over two days in early May 2015, the appellant was sentenced, on 18 May 2015, to a term of imprisonment of 10 years with a non-parole period of seven years. The maximum penalty for the offence of conspiracy to import a marketable quantity of a border-controlled drug was 25 years and/or a pecuniary penalty of $850,000.
On 6 October 2015, the appellant was granted leave to appeal on the following grounds:
4. The learned judge erred in rejecting delay as a mitigating factor.
5.The head sentence and the non-parole period are manifestly excessive.[1]
[1]While the appellant was granted leave to appeal in respect of five proposed grounds of appeal, grounds 1 to 3 were abandoned by the appellant on the day before the hearing of his appeal.
Circumstances of the offending
The circumstances of the appellant’s offending may be briefly described as follows. Between 16 August 2012 and 20 March 2013, the appellant and others, including Suky Lieu (‘Lieu’) and An Lanh Vo (‘Vo’), conspired to import a marketable quantity of heroin, into Australia from Vietnam. A marketable quantity of heroin is a pure amount of heroin weighing 2 or more grams, up to (but not including) 1.5 kilograms.[2]
[2]A commercial quantity of heroin is a pure amount of 1.5 kilograms and above.
Pursuant to the conspiratorial agreement, heroin was to be imported on an ongoing basis as and when it was available to the Vietnamese suppliers and sought by the Australian buyers. Various importations using recruited couriers to bring the drugs into Australia were planned and carried out. Lieu and Vo were the principal Australian based participants in the conspiracy. They communicated with each other about the placement of orders for heroin and arrangements for the supply of the heroin in Vietnam with the intention that the heroin would be imported into Australia by couriers. Vo arranged for and organised the couriers.
Through her associates in Vietnam the appellant was able to act as a source for the supply of heroin in Vietnam for Lieu and Vo. The appellant’s role was variously described as an intermediary between the Australian buyers and the Vietnamese suppliers of the heroin, or as an agent for the Vietnamese suppliers. The appellant discussed and received orders or requests for heroin from Lieu and, through her Vietnamese associates, she made arrangements for heroin to be supplied to Vo's associates and/or couriers.
The appellant was involved in both attempted and actual importations of heroin. Between August and October 2012, the appellant had a large number of phone conversations with Lieu about an importation of heroin from Vietnam to Australia. When speaking with Lieu over the phone about heroin importations, the appellant and Lieu each used a simplistic code based on the borrowing and hiring of motor vehicles.
The first importation arrangements were thwarted when there was a problem with the supply of the heroin. During this period, the appellant conducted numerous phone conversations about the importation of heroin. The appellant also received significant sums of money as a deposit for heroin. This deposit money was subsequently refunded when the appellant was unable to supply the heroin. In a number of conversations in September 2012, the appellant told Lieu that heroin she had sourced was of poor quality and that ‘she risked her reputation’ if she supplied it. The appellant and Lieu also talked about the appellant attempting to arrange an alternative supply of drugs.
Between 12 October 2012 and 22 January 2013, while the appellant remained as participant in the conspiracy, there was a ‘hiatus period’ so far as her involvement was concerned. During this period, the appellant was not actively involved in the continued efforts of Lieu and Vo to import heroin into Australia. During this hiatus period, however, in December 2012, and pursuant to the conspiracy, there were importations of heroin made by two couriers, Dai (218 grams pure) and Ly (143.1 grams pure).
An unsuccessful importation was made on 28 January 2013 by another courier, Truong. The pure weight of the heroin he was carrying was 559.5 grams.
In late January 2013, the appellant resumed communications with Lieu and Vo about importing heroin from Vietnam. The appellant was to source the heroin in Cambodia. Heroin was to be delivered to Lieu’s brother in law, Teo, in Vietnam, and then Vo's associates were to arrange for it to be imported into Australia. The appellant communicated with Lieu about this importation, and she remained in active contact advising of the progress of the drugs.
Pursuant to the conspiracy, a courier, Pham, was recruited to carry heroin into Australia. The appellant was involved in receiving money from Lieu in respect of this heroin. There were also communications at this time between the appellant and Lieu about a further amount of money owed by Lieu to the appellant.
In February 2013, Pham left Australia for Vietnam. Upon his arrival back into Australia, on 15 March 2013, Pham was detained. Pham was found to be carrying heroin with a pure weight of 577.1 grams.
On 20 March 2013 Australian Federal Police executed a search warrant at the appellant’s residence and at her business premises. Items found in the appellant’s bedroom included five mobile phones, $21,000 in Australian currency, $5558 in US currency and five pouches of jewellery. During the search of the appellant’s business premises, heroin was found in a safe. This heroin had a gross weight of 28.1 grams and pure weight of 3.7 grams.
The total quantity of heroin imported pursuant to the conspiratorial agreement amounted to 1.4977 kilograms of pure heroin. The appellant supplied the heroin that was imported by Pham (577.1 grams). The remaining two-thirds (920.6 grams) were provided by another unknown supplier in Vietnam. There was no evidence to show that the appellant was directly or indirectly involved in these other importations.
Appellant’s background
The appellant was born in Vietnam in 1966. At the time of sentencing, she was 48 years of age, married and had three children (aged 30, 26 and 12). In 1995, the appellant and her first two children emigrated to Australia. The appellant’s third child was born in Australia. After her arrival in Australia, the appellant established her own business as a nail technician from premises in Greensborough.
Apart from the offence to which she pleaded guilty in this case, the appellant has no other convictions. The appellant’s husband, however, was imprisoned for five years between 2009 and 2014 as a result of pleading guilty to the offences of conspiracy to import a marketable quantity of heroin and attempting to possess a marketable quantity of heroin.[3]
[3]DPP v Nguyen (Unreported, County Court of Victoria, Judge Coish, 18 May 2015), [33] (‘Reasons’). In respect of the appellant’s husband’s convictions, see Nguyen v The Queen [2012] VSCA 297 (‘Nguyen’).
The judge’s reasons
The judge commenced his reasons for sentence with a description of the appellant’s offending.[4] He then referred to a number of matters that he said were to be taken into account in mitigation of sentence, including the fact that the appellant had pleaded guilty, had no prior convictions and fell to be sentenced as a person of previously good character.[5] As to the appellant’s plea of guilty, the judge said:
You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Whilst you pleaded guilty at a late stage in terms of the chronology of the proceeding you had been charged with conspiracy to import a commercial quantity of heroin. Your plea of guilty to this lesser charge was after various pre‑trial rulings. I accept the plea of guilty to this charge was entered at the first reasonable opportunity. Your plea of guilty does have significant utilitarian value and facilitates the administration of justice. It is not, however, submitted on your behalf, that there is any evidence of remorse or contrition.[6]
[4]Reasons [3]–[22].
[5]Ibid [24]–[25].
[6]Ibid [24].
The judge then described the appellant’s personal circumstances, including the fact that the appellant’s offending occurred while her husband was in prison for offending of a similar nature.[7]
[7]Ibid [26]–[34].
Next, the judge analysed the appellant’s position and role within the conspiracy and compared her position and role with her co-conspirators Lieu and Vo.[8] As part of this analysis, the judge set out some of the detail of the various conversations in which the appellant was involved. Having conducted this analysis, the judge concluded that he was satisfied beyond reasonable doubt that:
[8]Ibid [38]–[64].
(1)[The appellant’s] position in the organisational framework was above that of the couriers but below that of Lieu and Vo.
(2) [The appellant was] a source of supply of heroin for Lieu and Vo.
(3) [The appellant] occupied an important position.
(4)[The appellant was] an essential link between Australian buyers and Vietnamese suppliers. [Her] role was a crucial one. [She was] more than a mere ‘agent’ or ‘mouthpiece’ or ‘intermediary’.
(5)[The appellant’s] role involved [her] sourcing heroin from [her] contacts or associates in Vietnam and arranging for its sale to Australian buyers.
(6)[The appellant was] intimately involved in negotiations and in the supply of the heroin to Australian buyers. [She was], in effect, conducting a business involving the sourcing of heroin and its subsequent sale. [She was] concerned about the quality of the heroin and [her] reputation as a reliable source of heroin.
(7)While not involved in the physical transportation of the heroin [the appellant] closely monitored its movement and [was] involved in coordinating its transfer to the contacts of the Australian buyers.
(8)[The appellant] participated in many coded telephone conversations with Lieu and sometimes Vo in which [she] discussed and received orders for the supply of heroin and [she] provided information about the supply, availability and quality of heroin.
(9)[The appellant] met Lieu and collected and handled significant amounts of money as a deposit. This was subsequently returned upon the failure to supply heroin.
(10)[The appellant] met Lieu in person on occasions to discuss arrangements for orders and the supply of heroin.
(11)[The appellant] communicated with [her] family and associates in Vietnam to pass on orders and arrange for the supply of heroin to persons in Vietnam. [She] were closely aligned with the Vietnamese suppliers.
(12)When arrested, [the appellant was] in possession of significant sums of money.[9]
[9]Ibid [63].
The judge assessed the appellant’s moral culpability as ‘high’, saying that while the appellant occupied a lesser position than Lieu and Vo, her criminality ‘does remain high’.[10] The judge then said:
The total amount imported in four importations pursuant to the conspiratorial agreement was 1.497 kilograms. This is at the upper end of marketable quantity. You only directly facilitated the supply of heroin that led to the importation by Pham on 15 March 2013 (577 grams) of pure heroin. You are to be sentenced on the basis of your participation in an agreement to import a marketable quantity of heroin.
Your motivation for this offending was solely financial. You were therefore participating in this conspiracy purely for financial gain.[11]
[10]Ibid [64].
[11]Ibid [65]–[66].
Notwithstanding the judge’s conclusion that the appellant’s motivation for her offending was financial, the judge said that he was not able to make any finding about the precise amount that the appellant received for her services. The judge said that he therefore sentenced the appellant ‘on the basis of no actual payment, reward and/or enrichment during the relevant period’.[12]
[12]Ibid [73].
In the course of the plea hearing, counsel for the appellant raised the issue of the delay. Counsel submitted that the delay between the time of the appellant’s offending and the time of sentencing had been significant. He then said:
She has maintained her innocence throughout so the effect of that delay is lessened, and I don’t emphasise delay. But what I do emphasise is what she has achieved during that period of time.
She has continued to work. She has continued to maintain her business, a business which employs other people. And over that period of time, she has reported daily. If what I’m about to say is factually inaccurate, the informant can correct me but there’s no indication that she’s ever missed a day reporting on bail. Just pausing — missed two, I am told, missed two. Maybe for good reason but I will live with two. I just pause on that for a moment. We often glaze (sic) over that fact, your Honour, but this has been hanging over her head for two years and each day she has reported to the police station and that in itself, in my submission, is a form of punishment and a punitive effect of committing this offending.
In his reply submission, the prosecutor submitted to the judge that there had not been any significant delay. Counsel for the appellant then made a further submission to the judge, in which he repeated the submissions that he had already made about delay.
The judge dealt with the issue of delay, as raised by the submissions made to him, in the following terms:
I have taken into account the delay in this matter, not as a factor in mitigation, but in respect of you continuing to work and conduct your business and that you have generally complied with your bail conditions.[13]
[13]Ibid [81].
Next, the judge dealt with the appellant’s prospects of rehabilitation. The judge said:
The assessment of your prospects of rehabilitation is difficult. You have not expressed any remorse or contrition. Your offending occurred whilst your husband was in prison serving a lengthy sentence for offences of a similar nature. You have no prior convictions. Your motivation for the offending was financial gain. My overall assessment of your prospects of rehabilitation is cloudy.[14]
[14]Ibid [82].
The judge then dealt with the principle of parity. In the course of dealing with this issue, the judge noted that Truong, who had pleaded guilty to the unsuccessful importation made on 28 January 2013 (559.5 grams of heroin) received a sentence of five years and six months’ imprisonment with a non-parole period of three years and three months. Truong, however, provided an undertaking to co-operate with law enforcement agencies. The judge noted that without that undertaking, Truong’s sentence would have been nine years with a non-parole period of six years and six months.
Another co-offender’s sentence referred to by the judge was the sentence imposed on Pham. Pham was originally sentenced in respect of the 15 March importation (577.1 grams of heroin) to eight years and six months’ imprisonment with a non-parole period of six years. As the judge noted, Pham was, however, resentenced on appeal to six years with a non-parole of four years. We interpolate that, following the Crown’s successful appeal to the High Court in Pham, Pham’s original sentence of eight years and six months with a non-parole period of six years was reimposed by this Court last month.[15]
[15]Pham v The Queen [2016] VSCA 259.
Before pronouncing the sentence to be imposed upon the appellant, the judge noted that it was accepted by both parties that there was no current sentencing practice in Victoria in respect of the appellant’s offence.[16] The judge then dealt with general and specific deterrence, denunciation and the matters required to be taken into account by s 16A of the Crimes Act 1914 (Cth). Finally, the judge said that the appellant’s offence was a serious one that required a lengthy sentence of imprisonment.[17]
[16]Reasons [87].
[17]Ibid [95].
Ground 4: delay
The judge accepted that the appellant’s plea of guilty was entered at the first reasonable opportunity, following various pre-trial rulings. This may have been an unduly favourable conclusion so far as the appellant was concerned. As was noted by the respondent, the charge to which the appellant pleaded guilty was on the indictment at the time of the appellant’s contested committal hearing (21–24 October and 8 November 2013 and 13 January 2014).
The principles governing the issue of delay are not in dispute. They are set out in this Court’s decision in Arthars v The Queen.[18] In Arthars, the Court said:
[18](2013) 39 VR 613 (‘Arthars’).
The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness. Chernov JA in R v Cockerell, in a statement subsequently affirmed in R v Tiburcy, expresses these principles thus:
First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. Further, as Vincent AJA has pointed out in Schwabegger, there is an obvious inconsistency between the claim by the prosecution that the offence is a serious one on the one hand and the seemingly leisurely progress of the prosecution on the other, leading to a justified sense of unfairness in the offender.
…
When considering whether a delay requires the element of fairness to be taken into account as a mitigating factor, the court must have regard to the degree to which the accused had control over the length of that delay. The observation in Merrett is not to be understood as suggesting otherwise. Delay which is caused by prosecutorial process or the administration of the courts will carry more weight as a mitigating factor than any delay which is attributable to the actions of the offender. In R v Cockerell, Chernov JA (Winneke P and Buchanan JA agreeing) noted that delay which ‘cannot be attributed to the offender’ will constitute a powerful mitigating factor in sentencing; in R v Tiburcy, Maxwell P (Warren CJ and Buchanan JA concurring) referred to delay which was not ‘solely or even partly the fault of the accused’; and in R v Whyte, Winneke P (Bongiorno and O’Bryan AJJA agreeing) refused to disturb the finding of the judge below that delay, where ‘self-inflicted’ by the applicant, will carry little weight as a mitigating factor.[19]
[19]Arthars (2013) 39 VR 613 [25]–[28] (citations omitted). See further, Sergi v DPP (Cth) [2015] VSCA 181 [42]–[46]; Hicks v The Queen [2016] VSCA 162 [23].
Insofar as the appellant submitted that there was a significant delay between the end of the period of her offending and the imposition of her sentence, we reject that submission. The elapse of time in this case was unremarkable. With respect, the judge was correct to conclude that the principles referred to in Arthars did not have application to what was described as the period of delay by the appellant. No doubt it was because of the unremarkable elapse of time in this case that the appellant’s counsel on the plea said to the judge that ‘I don’t emphasise delay’. In any event, the judge, while concluding that the principles in Arthars did not fall to be applied, took into account the asserted delay in respect of the appellant’s continued work and conduct of her business, and in respect of the fact that the appellant had generally complied with her bail conditions.[20] We see no error in this approach. Ground 4 must be rejected.
[20]Reasons [81].
Ground 5: manifest excess
In contending that the sentence imposed on the appellant was manifestly excessive, counsel for the appellant relied upon six matters:
(a) first, the appellant’s plea of guilty;[21]
[21]Ibid [24].
(b) secondly, the fact that the appellant had no prior convictions and fell to be sentenced as a person of previously good character;[22]
[22]Ibid [25].
(c) thirdly, the burden of imprisonment on the appellant and the hardship she would endure as a result of separation from her family, the fact that it was the appellant’s first time in custody and that the appellant had limited English;[23]
[23]Ibid [32].
(d) fourthly, delay;
(e) fifthly, the fact that the appellant fell to be sentenced on the basis that she had not received any actual payment or reward in respect of her offending;[24] and
(f) sixthly, the fact that there was a hiatus period so far as the appellant’s involvement in the conspiracy was concerned (12 October 2012 to 22 January 2013) where the appellant was not involved in the offending that occurred at that time.[25]
[24]Ibid [73]. But cf [66] and [80]–[82].
[25]Ibid [65].
The mitigating effect of the first three matters relied upon by the appellant may be accepted. They are significant mitigatory features as identified and described by the judge in his reasons for sentence. As to the fourth matter, the issue of delay was appropriately taken into account by the judge in the way we have described above. As to the fifth matter, the fact that the appellant fell to be sentenced on the basis that she had not received any actual payment or reward, it is, of course, to be remembered that the appellant’s motivation for her offending was, as correctly found by the judge, ‘purely for financial gain’.
As to the appellant’s point about the ‘hiatus period’ (the sixth matter relied upon by the appellant), it is to be remembered that the judge, when dealing with the basis upon which the appellant was to be sentenced, stated that the appellant ‘only directly facilitated the supply of heroin that led to the importation by Pham’.[26]
[26]Ibid.
That said, the sentencing principles for the offence of conspiracy are not in dispute in this case. The appellant fell to be sentenced for entering into and being a party to the conspiracy between the dates charged. The sentence to be imposed upon the appellant was required to reflect the organisational nature of the conspiracy and her role in the conspiracy, and not simply be confined to an examination of the physical acts performed by her.[27]
[27]Savvas v The Queen (1995) 183 CLR 1; Tyler v The Queen (2007) 173 A Crim R 458; DPP (Cth) v Estrada [2015] VSCA 22 [44]–[46].
This Court has recently reviewed a number of sentences imposed, both in Victoria and in other states, in respect of offending involving marketable quantities of border-controlled drugs. For example, in Director of Public Prosecutions (Cth) v Thomas,[28] the Court considered and discussed the sentences in OPQ v The Queen,[29] Lau v The Queen,[30] Harris v The Queen,[31] El-Ghourani v The Queen,[32] Youssef v The Queen[33] and Merrill v The Queen.[34] Likewise, in Pham v The Queen,[35] the Court reviewed and discussed 15 appellate decisions from every jurisdiction dealing with what was said to be offending comparable to Pham’s offending in the present case.[36] A distinguishing feature in the present case from the various marketable quantity cases to which we have been referred is the appellant’s position and role in the hierarchy of the conspiracy to which she was a party. As the judge correctly found, the appellant’s role was closer to the top of the hierarchy than to that of a mere courier. She was intimately involved in the negotiations and in the supply of heroin to her Australian co-conspirators; she was, in effect, conducting a business involving the sourcing of heroin and its subsequent sale; and she was an essential link between her Australian buyers and Vietnamese suppliers.
[28][2016] VSCA 237 (‘Thomas’).
[29](2012) 221 A Crim R 424.
[30][2011] VSCA 324.
[31][2009] QCA 370 (‘Harris’).
[32](2009) 195 A Crim R 208.
[33][2011] NSWCCA 104.
[34][2015] VSCA 52.
[35][2016] VSCA 259 (‘Pham’).
[36]Pham [2016] VSCA 259 [22]–[28].
The marketable quantity cases to which we have referred generally involve offenders that were lower down in the hierarchy of the criminal enterprises in which they were involved. That said, the marketable quantity cases show that the sentence imposed upon the appellant was well within range. The lower sentences imposed upon couriers and those whose role might be described as even more limited,[37] show that the higher sentence imposed upon the appellant was not outside the permissible sentencing range when one took into account the objective seriousness of the appellant’s offending and had regard to the mitigating factors to which we have referred.
[37]Harris [2009] QCA 370.
As has been said many times before, manifest excess is a difficult ground to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, and not whether some other sentence could have been imposed.[38] In the present case, we are simply unable to conclude that the sentence imposed was wholly outside the range.
[38]R v Abbott (2007) 170 A Crim R 306.
Conclusion
We would dismiss the appeal.
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