Vi v The Queen
[2017] VSCA 254
•15 September 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0112
| AN KEN VI | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
S APCR 2017 0116
| RAYMOND LACH | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | Respondent |
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| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 September 2017 |
| DATE OF JUDGMENT: | 15 September 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 254 |
| JUDGMENT APPEALED FROM: | [2017] VCC 513 (Judge Maidment) |
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CRIMINAL LAW – Sentence – Applications for leave to appeal against sentence – Attempting to traffic a commercial quantity of a controlled drug (209 kg of pure methamphetamine) – Sentences of 13 years’ imprisonment with non-parole period of 9 years – Co-offender sentenced to 10 years’ imprisonment with non-parole period of 7 years – Manifest excess – Whether sentences manifestly excessive – Parity – Whether parity principles infringed – Whether error in fixing non-parole period – Errors not reasonably arguable – Complaints of manifest excess not reasonably arguable – Applications for leave to appeal against sentences refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant VI | Mr J Dickinson QC | Slades & Parsons |
| For the Applicant LACH | No appearance[1] | James Dowsley & Associates |
| For the Respondent | Mr K T Armstrong | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
[1]There was no appearance for Mr Lach because he elected to have his application for leave to appeal determined on the papers.
BEACH JA:
On 1 May 2017, An Ken Vi and Raymond Lach each pleaded guilty in the County Court to one charge of attempting to traffic a commercial quantity of a controlled drug (methamphetamine) contrary to ss 11.1(1) and 302.2(1) of the Criminal Code 1995 (Cth). The maximum penalty for this offence is imprisonment for life or a fine of 7,500 penalty units or both.[2] Following a plea hearing, Vi and Lach were each sentenced to a term of imprisonment of 13 years with a non-parole period of nine years.[3]
[2]See ss 11.1(1) and 302.2(1) of the Criminal Code. As at the time of the offending, 7,500 penalty units was the equivalent of $1,350,000.
[3]DPP v Lach [2017] VCC 513 (‘Reasons’).
Prior to their pleas of guilty, a co-offender, Vu Phi Nguyen, was sentenced by the same judge to a term of imprisonment of 10 years with a non-parole period of seven years for the same offence.[4]
[4]DPP v Nguyen (Unreported, County Court of Victoria, Judge Maidment, 12 April 2017) (‘Nguyen Reasons’).
Vi and Lach now seek leave to appeal against their sentences. Vi’s proposed grounds of appeal are as follows:
1.The head sentence and the minimum term are both manifestly excessive.
2.The sentencing judge erred in that he failed to properly apply the principle of parity as between the applicant and co-accused Vu Phi Nguyen.
3.The sentencing judge erred in that he failed to properly apply the principle of parity as between the applicant and co-accused Raymond Lach.
4.The sentencing judge erred in that he failed to give effect to his stated intention to impose a lower than usual minimum term to be served before becoming eligible for parole.
Lach’s proposed grounds of appeal are as follows:
1.The head sentence and non-parole period are manifestly excessive, particularly in view of the following matters:
(a)the absence of prior convictions;
(b)the otherwise good character of the applicant;
(c)the excellent prospects of rehabilitation for the applicant;
(d)the excellent conduct of the applicant whilst on remand;
(e)the relative youth of the applicant;
(f)the support of family and friends of the applicant;
(g)the plea of guilty at the first available opportunity;
(h)the remorse of the applicant;
(i)the role of the applicant being that of a ‘foot soldier’;
(j)the circumstances leading to the applicant’s offending.
2.The sentence does not adequately reflect the principles of parity when compared with the sentence imposed on the co-offender Vu Phi Nguyen.
In support of his proposed ground 2, Lach provided particulars in which he acknowledged that Nguyen was involved in an attempt to traffic a lesser quantity of the drug, for a lesser period of time. In the particulars, however, Lach asserted that the matters in mitigation in his case were considerably stronger than those in Nguyen’s case, and that the balancing of the various sentencing considerations should have led to Lach and Nguyen ‘at least receiving similar sentences’.
Circumstances of the offending
The offending related to a quantity of methamphetamine originally concealed under the floorboards of three shipping containers. The essence of the prosecution case was that in the days prior to the arrival of the three shipping containers containing the controlled drug, Vi and Lach had dealings with a man by the name of Daniel Wong. Vi and Lach attended factory premises associated with Wong at Kimberly Road, Dandenong South. On 16 June 2016, Vi and Lach accompanied Wong to a Bunnings store at Keysborough where a large generator was purchased. The generator was said to be required to light a factory.
On 19 June 2016, Lach attended a Budget Car and Truck Rental premises at Croydon and leased a Renault van for a two week period, ending on 3 July 2016. Lach also purchased 15 large cardboard storage boxes and packing tape. It was accepted on the plea, by Lach, that he became involved in dealing with Wong over a period of some months prior to the offending conduct, and that he, Lach, was involved, at least, in purchasing the cardboard boxes and hiring the van in preparation for the offending conduct that took place.
The three shipping containers containing the controlled drugs arrived from overseas on 20 June 2016. The gross weight of the substance (methamphetamine) concealed under the floorboards of the shipping containers was 262.47 kilograms. The methamphetamine had an average purity of 80 per cent. Thus, the total quantity of pure methamphetamine that had been imported in the three shipping containers was 209.79 kilograms.
The value of that quantity of methamphetamine on the wholesale black market in Australia was something in the order of $37.7 million. Its estimated street value was in the order of $58.7 million.
The Australian Federal Police organised for the shipping containers to be dismantled and reconstructed so as not to arouse the suspicions of the intended recipients of the controlled drug, and a controlled delivery was effected at Factory 2/10 Turbo Drive, Bayswater North (‘the factory’), which had for several months been associated with Wong.
On 29 June 2016, at the direction of Wong, two other individuals, Lu and Ding, were employed to accept delivery of the three shipping containers at the factory, and to unpack a quantity of blue metal pellets, which were contained in the shipping containers. These pellets were the declared, and ostensible, goods transported and imported into Australia in the containers. Lu and Ding were not, it seems, employed to interfere with the false bottom of each of the three containers, which by then concealed an inert substance that had been substituted for the methamphetamine.
On 30 June 2016, at 7:33 am, Vi and Lach met with Wong at a car park in Ringwood and travelled to the factory. Lach was driving the Budget van that he had hired previously, and Vi was driving his Honda motor vehicle. During the course of that day, Vi and Lach removed the flooring of each of the three empty shipping containers using crowbars and screwdrivers, and unpacked the substituted substances, which they still believed was methamphetamine. Vi and Lach later placed the substituted methamphetamine, which they still believed to be methamphetamine, into cardboard boxes, ready for further distribution.
At about 6:00 pm that evening, Vi and Lach effected a delivery of a quantity totalling 114.74 kilograms gross of what they believed to be methamphetamine by parking the Budget van with that quantity on board in Williamsons Road, Maribyrnong and leaving it to be collected by Nguyen or his brothers.
The van having been collected by Nguyen and or his brothers, was then delivered back to the same area later that night after the quantity of what was still believed to be methamphetamine had been removed from the van. At some stage, either later that evening or the following morning, Vi or Lach collected the van.
The next day (1 July) at 10:53 am, Lach drove the van and Vi drove his Honda motor car back to the factory. There, Vi and Lach collected a further seven cardboard boxes containing what they still believed to be methamphetamine and loaded them into the van and drove in convoy to Pointside Avenue in Bayswater.
Just after midday on 1 July, Lach, parked the Budget van in Pointside Avenue and left it unlocked. Vi and Lach then drove to Bunnings at Canterbury Road where they met with another co-offender, Andrew Findlay, and accompanied him back to where the Budget van was parked. Findlay then removed the seven boxes that Vi and Lach had transported to that location, containing what the three of them believed was methamphetamine, in a quantity totalling 134.84 kilograms gross. Findlay loaded the boxes into his vehicle, and departed the area in convoy with another co-offender, one Shakahanov. Findlay and Shakahanov were subsequently arrested a short time later.
Vi and Lach returned to Pointside Road, Bayswater. Lach retrieved the Budget van and the two of them drove in convoy from the area, but were intercepted at 2:10 pm by police in Bayswater North, and arrested. Vi and Lach were each interviewed and, so far as the offending conduct was concerned, each of them made no comment responses to questions put to them. A search of the factory revealed a further quantity of cardboard boxes containing a further quantity of the inert substance that had been substituted for the methamphetamine.
In summary, the total quantity of pure methamphetamine attempted to be trafficked by Vi and Lach was 209.79 kilograms pure. This represented 279 times the commercial quantity threshold for methamphetamine.
Applicants’ backgrounds
Vi was born on 31 May 1992. Lach was born on 28 May 1992. They were both 24 years of age at the time of the offending and at the time of sentencing. Lach had no prior convictions. While Vi had a prior conviction for theft from a shop, the sentencing judge did not regard this as being of any significance ‘so far as these proceedings are concerned’.[5]
[5]Reasons [1].
As the judge observed, each of the applicants comes from a good background, has family support, has had a good education and is intelligent.[6] Vi had already obtained a degree at RMIT in engineering and was embarking upon an honours degree. Lach had ambitions to become an architect.
[6]Ibid [26].
While the judge noted that each of the applicants had been heavy drug users (using cocaine in particular) during the several months leading up to the offending conduct,[7] on the plea each applicant provided character references which described them as persons of ‘very significant quality’.[8]
[7]Ibid [19].
[8]Ibid [27].
Reasons for sentence
The judge commenced his reasons for sentence with a description of the applicants’ offending,[9] before saying:
Clearly the offending is of a very high order. The criminal enterprise to which you attached yourselves must, on any measure be regarded as at the very high end of the scale of seriousness, approaching if not in the worst category. It is important to consider the nature of the role that each of you played in the criminal enterprise. I observe in passing that I am to pass sentence upon you for your involvement in the venture on 30 June and 1 July of last year, and that the offending conduct involves the two of you in a joint venture of attempting to traffic in that quantity of methamphetamine.[10]
[9]Ibid [1]–[14].
[10]Ibid [15].
Next, the judge observed that it was difficult for him, on the limited evidence that had been tendered on the plea, to define with any precision what the roles of the applicants were. The judge said:
Either of you could have shared more light on that. You were in a position to give evidence before me and I made the observation that I was not prepared to accept assertions from the Bar table as to the totality of the involvement of each of you. Neither of you chose to give evidence before me, therefore it is necessary for me to look at the evidence that is before me and see what appropriate inferences I can draw.[11]
[11]Ibid [17].
After further analysis, the judge expressed himself to be satisfied beyond reasonable doubt that each of the applicants was aware that he was going to be required to play a ‘pivotal role’ in the trafficking of 209 kilograms of pure methamphetamine. The judge also said that he was satisfied beyond reasonable doubt that the applicants were to receive a very substantial financial reward for their involvement.[12] While the judge could not determine the precise amount of the financial reward, he said that what was important was that each applicant was ‘doing it out of greed’.[13]
[12]Ibid [20].
[13]Ibid [21].
Next, the judge observed that each of the applicants attempted knowingly to traffic in an amount more than double the quantity with which Nguyen was involved and in respect of which he had pleaded guilty.[14]
[14]Ibid [22].
The judge characterised Vi and Lach as ‘foot soldiers’. However, and with reference to Nguyen’s role, the judge said:
Although I have characterised each of you as foot soldiers and accepted that you were not organisers, you were not investors in the scheme but were performing your role for fee or reward, I am satisfied beyond reasonable doubt that your role was more significant and substantial than that of Mr Nguyen and significantly more so. Indeed, each of you trafficked in more than double the amount of what you believed to be methamphetamine than Mr Nguyen and each of you were closer to the actual importation and were involved in the first and pivotal point of distribution of the drug.[15]
[15]Ibid [23].
As to the quantity of drugs involved, the judge said:
I accept that the quantity of drug involved in the overall criminal enterprise is not the only, and certainly perhaps not even the most important factor, but it is a significant factor particularly in circumstances where by the time you came to commit this offence, you were aware, as I have found, that you were involved in a very substantial criminal enterprise and by the time you came actually to transport the drugs in the way that I have described and as set out in the prosecution opening, you were fully aware of the weight of the drugs involved and the scale of the enterprise to which you have attached yourselves.
It is therefore relevant to look at the quantity of the drugs and amongst the various other factors, bearing upon your culpability to assess your culpability at least to some degree by reference to that very substantial quantity.[16]
[16]Ibid [24]–[25].
The judge then turned to the matters personal to each of the applicants,[17] before observing that they had pleaded guilty at the first available opportunity, which supported the proposition that they were not only willing to accept criminal responsibility but that they were also genuinely remorseful and contrite.[18]
[17]Ibid [26]–[28].
[18]Ibid [29].
As to their own respective involvements in the offending, the judge said:
It seems to me, looking at the totality of the evidence and accepting that I have not received evidence from either of you, so it is not possible to be certain of this that you, Mr Lach, seem to have had a more longstanding association with Mr Wong than that of Mr Vi. Your participation in the preparations for the receipt of the three shipping containers seems to be somewhat greater than that of Mr Vi, but it is difficult to make any clear assessment as between each of you in that regard.
The paucity of credible and reliable information as to how you became involved, exactly what was offered to you to bring you into this enterprise is not possible to ascertain from the material with which I have been presented.[19]
[19]Ibid [31]–[32].
The judge concluded that the prospects of rehabilitation for each of the applicants were ‘good, perhaps excellent’. While he said he was prepared to say that Lach’s prospects of rehabilitation were ‘excellent’, he then said that he did not seek to distinguish significantly between Lach’s prospects and Vi’s prospects.[20]
[20]Ibid [35].
Ultimately, the judge gave the same sentence to each applicant. He said he did so for the following reasons:
I have not got as much evidence in your case, Mr Vi, to put your prospects as excellent but I would certainly regard them as very good. Perhaps if I can put it this way, to the extent that the evidence suggests that Mr Lach's involvement with Mr Wong and perhaps his role in the offending might have been slightly greater than that of Mr Vi, it is only marginal and is balanced against the degree to which Mr Lach has emerged as an excellent prospect for rehabilitation.
I say that because it is necessary for me to impose sentences that show parity as between the two of you and in that, there may be some distinction as to the precise involvement in the criminal enterprise, it is marginal and I think in the end, it is marginal as to the degree to which each of you demonstrates a capacity for rehabilitation.[21]
[21]Ibid [36]–[37].
The judge then discussed sentencing principles and relevant authority, including Director of Public Prosecutions (Cth) v De La Rosa[22] and Nguyen & Phommalysack v The Queen.[23] The judge then referred to what was said by Winneke P in R v Carey[24] where the President said:
Those who engage in the illicit drug trade, no matter what their status in the enterprise, must expect heavy sentences in which general deterrence will be the principal purpose of the punishment.[25]
[22](2010) 79 NSWLR 1 (‘De La Rosa’).
[23](2011) 31 VR 673 (‘Phommalysack’).
[24][1998] 4 VR 13 (‘Carey’).
[25]Ibid 17.
Finally, the judge concluded:
As the prosecution pointed out, the scale of this enterprise was in the order of 280 times the commercial quantity threshold.
Another factor which comes into play is your relative youth, you have got a lot of life ahead of you and I do take that into account. You are no longer young offenders, per se, but nevertheless, you are relatively young. However again, good character and indeed youth is of less importance in a case such as this where the need for general deterrence is of such great importance. Your remorse also is a matter which, in my opinion, should and does operate to reduce the sentence that would otherwise have been appropriate in your respective cases.
The sentence that I intend to impose is designed to balance all of the various sentencing considerations and to accord with so far as it is possible to identify current sentencing practice. I am inclined to think that the sentence is towards the low end of the scale so far as current sentencing practice is concerned for offences on this scale and your role respectively in the criminal enterprise and I propose also to give you the opportunity of getting parole at an earlier stage than might otherwise have been the case because of what seems to me to be your excellent prospects of rehabilitation.[26]
[26]Reasons [50]–[52].
Parity (Vi’s proposed grounds 2 and 3 and Lach’s proposed ground 2)
Vi’s proposed grounds 2 and 3 raise the issue of parity between the sentence imposed upon him and the sentences imposed upon Lach and Nguyen. Lach’s proposed ground 2 raises the issue of parity between the sentence imposed upon him and the sentence imposed upon Nguyen.
The principles governing parity are well established.[27] As was said in Collins:
Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[28]
[27]See Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Green v The Queen (2011) 244 CLR 462; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharpv The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97 [24]–[25]; Collins v The Queen [2015] VSCA 106 (‘Collins’); Ryan v The Queen [2016] VSCA 255 (‘Ryan’).
[28]Collins [2015] VSCA 106 [23] (citations omitted).
In Hilder v The Queen,[29] Maxwell ACJ identified ‘the true nature of the question which must be addressed when the ground of parity is advanced’ as being ‘whether it was reasonably open to the judge in the circumstances of the case to differentiate — or fail to differentiate — between the co-offenders in the way that he or she did’.[30] His Honour went on to say that there was a ‘close analogy with the stringency of the test of manifest excess’, and then said that, for a parity ground to succeed, it must be shown that the conclusion as to sentence differentials was not reasonably open’.[31]
[29][2011] VSCA 192 (‘Hilder’).
[30]Ibid [37].
[31]Ibid [38]; Collins [2015] VSCA 106 [23].
More recently, in Ryan, Weinberg, Whelan and Priest JJA said:
As to parity, an appellate court will intervene where there exists such a manifest discrepancy between the sentences imposed on co-offenders as to engender a justifiable sense of grievance that justice has not been done. The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria, it does not involve judgment about the feelings of the person complaining of disparity. Because sentencing is a discretionary exercise the authorities emphasise that the disparity must be ‘marked’ or ‘manifest’. No justifiable grievance arises in circumstances where differences between co-offenders mean that it was reasonably open to the sentencing judge to differentiate in the way in which he or she did.[32]
Parity between Vi and Lach
[32]Ryan [2016] VSCA 255 [42].
Vi’s complaint about parity between his sentence and Lach’s sentence (Vi’s proposed ground 3) is devoid of merit. In argument, Vi advanced the submission that, because Lach became involved with Wong at an earlier point in time than Vi, Lach’s offending was more serious than Vi’s; alternatively, Lach’s moral culpability was greater than Vi’s; alternatively, Lach was somehow ‘more involved’ in the offending than Vi. There is nothing in this submission. There was no sound evidentiary foundation for any conclusion that Lach’s involvement or moral culpability was relevantly greater than Vi’s — either to any extent or, more particularly, to the extent that required the judge to differentiate between Lach and Vi when imposing sentence.
It was plainly a sound exercise of the sentencing discretion, in the circumstances of the present cases (Lach and Vi), for the judge to impose identical sentences on Lach and Vi. More particularly, it is not reasonably arguable that the judge should have imposed some lesser sentence on Vi than that imposed on Lach. With respect, the judge was, for the reasons he gave, correct in the approach that he took on this issue.
Vi’s proposed ground 3 is not reasonably arguable.
Parity with Nguyen
Similarly, there is no substance in Vi’s and Lach’s complaints about parity with respect to the sentence imposed on Nguyen. That said, the mitigatory factors in Nguyen’s case were less substantial than they were in the cases of Vi and Lach. Unlike Vi and Lach, Nguyen had a prior conviction for drug trafficking, was aged in his 30s, was not found by the sentencing judge to be remorseful, and his prospects for rehabilitation were not as high as those of Vi and Lach. While the sentencing judge noted that Nguyen had a prior conviction for trafficking in heroin,[33] the judge accepted that that conviction ‘was essentially borne out of an addiction that [Nguyen] then had to heroin and that [Nguyen was] trafficking substantially to support [his] own habit.’[34]
[33]For which he was sentenced in the Magistrates’ Court to a 12-month community correction order.
[34]Nguyen Reasons [9].
In oral argument, counsel for Vi submitted that the evidence showed that Nguyen was further up in the hierarchy than Vi or Lach (who were merely foot soldiers). It was submitted that Nguyen was closer to the principals behind the offending, occupying a role which shielded them from detection and/or the authorities. It was submitted that, even if this could not be shown, at the very least, Nguyen was ‘on a par with Vi and Lach’, and that the judge was wrong when he said that their role was more significant and substantial than that of Nguyen.[35]
[35]Reasons [23].
The short answer to the parity complaints made by Vi and Lach in relation to Nguyen is that, on the limited evidence available to the sentencing judge, it was not possible for his Honour to accept the submissions of Vi and Lach that Nguyen was more involved in the offending than they were.
Plainly, Nguyen’s actual involvement in the offending (as it was disclosed on the material submitted to the judge, and as it is described above) was significantly less than that of Vi and Lach. For that reason alone, it was open to the judge to conclude that the roles of Vi and Lach were more significant and more substantial than that of Nguyen — involving as they did activity by Vi and Lach over more than twice the period of time of Nguyen’s involvement and more than double the quantity of the substance they all believed to be methamphetamine.
In the course of his oral argument, counsel for Vi submitted that, in considering the issue of parity and in imposing sentence, the judge made the error identified in Wong v The Queen[36] and impermissibly permitted the weight of the drugs to overwhelm other relevant sentencing considerations. In Wong, Gaudron, Gummow and Hayne JJ said:
The selection of weight of narcotic as the chief factor to be taken into account in fixing a sentence represents a departure from fundamental principle.[37]
[36](2001) 207 CLR 584 (‘Wong’).
[37]Wong (2001) 207 CLR 584, 609 [70].
There is no substance in the submission that the judge erred in the way described in Wong. A plain reading of the judge’s reasons for sentence shows that his Honour gave appropriate consideration to the issue of weight and due consideration to all of the circumstances of the offending and the offenders. In considering the issue of parity, it was a relevant matter that the offending of Vi and Lach involved a significantly greater quantity of drugs than the offending for which Nguyen had earlier fallen to be sentenced.[38]
[38]Cf Harris v The Queen [2016] VSCA 30 [18].
The judge, when first sentencing Nguyen, and later sentencing Lach and Vi, gave careful consideration to the respective roles of the three co-offenders and made conclusions (albeit, as he said, upon a relative paucity of evidence) as best he could about their respective roles. Having conducted that analysis, the judge then imposed different sentences on Lach and Vi from the sentence earlier imposed upon Nguyen. There is no basis for a submission that there is any relevant disparity between the sentence imposed upon Nguyen and the sentences imposed upon Lach and Vi.
Even if it was reasonably arguable that, so far as roles were concerned, Nguyen was ‘on a par with Vi and Lach’ (as submitted by counsel for Vi), there would still be no substance in the contention that there was an impermissible disparity between Nguyen’s sentence on the one hand and the sentences imposed on Vi and Lach. On the limited evidence the judge had as to the respective roles of Nguyen, Vi and Lach, it was well open to the judge to differentiate between Nguyen on the one hand and Vi and Lach on the other hand in imposing the sentences he imposed.
Vi’s proposed ground 2 and Lach’s proposed ground 2 are not reasonably arguable.
Manifest excess (Vi’s proposed ground 1 and Lach’s proposed ground 1)
The maximum term of imprisonment for attempting to traffic a commercial quantity of a controlled drug is life imprisonment. Vi and Lach attempted to traffic in excess of 200 kilograms of pure methamphetamine. The drugs had an estimated street value in the order of $58.7 million.
As has been said before, those who engage in the illicit drug trade, no matter what their status in the enterprise, must expect heavy sentences in which general deterrence will be the principal purpose of the punishment.[39] The sentence to be imposed must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.[40]
[39]Carey [1998] 4 VR 13, 17; Reasons [48].
[40]Phommalysack (2011) 31 VR 673, 682 [34]; Reasons [49].
In contending that his sentence and non-parole period are manifestly excessive, Lach placed particular reliance upon his absence of prior convictions, his previous good character, his excellent prospects of rehabilitation, his exemplary conduct while on remand, his relative youth, the support he has from family and friends, his plea of guilty at the first available opportunity, his remorse, the fact that he was only a ‘foot soldier’ and the circumstances leading to his offending. Giving due consideration to all of these matters, it is simply not reasonably arguable to contend that the sentence imposed upon him (13 years with a non-parole period of nine years) was manifestly excessive. Similarly, when one gives due consideration to all of the like matters in mitigation relied upon by Vi, it cannot be reasonably contended in his case that his sentence was manifestly excessive.
As has been said many times before, manifest excess is a stringent ground that is difficult to make out. The test for manifest excess is whether the sentence was wholly outside the range of sentencing options available to the judge, not whether some other sentence could have been imposed.[41] In the present cases, there is simply no basis for contending that the sentences imposed on Vi and Lach were wholly outside the ranges that were reasonably open to the judge.
[41]R v Abbott (2007) 170 A Crim R 306.
In his written case, and in oral argument, Vi submitted that ‘comparative cases strongly suggested that the head sentence and non-parole period were outside the range reasonably open to the sentencing judge’. In support of that submission, Vi relied upon the circumstances of, and sentences imposed in, R v Franco,[42] R v Cini,[43] Director of Public Prosecutions (Cth) v Aisbett,[44] Webber v The Queen,[45] Director of Public Prosecutions (Cth) v Peng,[46] Saab v The Queen,[47] and Director of Public Prosecutions (Cth) v Brown.[48]
[42][2006] VSCA 302 (‘Franco’).
[43][2014] VSC 409 (‘Cini’).
[44][2009] VSCA 172 (‘Aisbett’).
[45][2014] NSWCCA 111 (‘Webber’).
[46][2014] VSCA 128 (‘Peng’).
[47][2012] VSCA 165 (‘Saab’).
[48][2017] VSCA 162 (‘Brown’).
The principles relating to the use of comparable cases have been discussed in a number of recent cases, including the decisions of the High Court in Wong v The Queen,[49] Hili v The Queen,[50] Barbaro v The Queen,[51] and R v Pham.[52] They have also
been considered in a number of decisions of this Court including Hudson v The Queen,[53] Nguyen v The Queen,[54] Director of Public Prosecutions (Cth) v Thomas,[55] and Lieu v The Queen.[56] In Lieu, after referring to Wong, Hili, Barbaro, Pham, Hudson, Nguyen and Thomas, Beach and Kaye JJA said:
Ordinarily, comparable cases are relevant to indicate or reveal the sentencing range for the offence which is under consideration. In that way, an analysis of comparable cases is directed to promoting consistency of sentences. However, ultimately, the consistency that is sought to be achieved is not some mathematical or numerical equivalence of sentences. Rather, the process is directed to achieving consistency in the application of relevant legal principles. For that reason, so-called ‘comparable cases’ are not precedents. In the context of sentencing, no two cases can be alike. The factors that inform the exercise of the discretion in each case, and the weight to be attributed to those factors, vary significantly in determining the sentence that is ultimately the product of the instinctive synthesis of the sentencing judge. Nevertheless, reviewed as a whole, ‘comparable cases’ may assist by revealing a possible range or pattern of previous sentences. However, the cases, to which we have referred, caution that examination of comparable cases does not have the consequence that a range or pattern of sentences, revealed by those cases, is necessarily correct, or that the upper or lower limits of those sentences are correct.[57]
[49](2001) 207 CLR 584, 591 [6] (Gleeson CJ) (‘Wong’).
[50](2010) 242 CLR 520, 534 [44], 535 [48]–[49] (‘Hili’).
[51](2014) 253 CLR 58, 74 [40]–[41] (‘Barbaro’)].
[52](2015) 256 CLR 550, 558-9 [26]–[28] (French CJ, Keane and Nettle JJ) (‘Pham’).
[53](2010) 30 VR 610 (‘Hudson’).
[54][2016] VSCA 198, [71]–[72] (Redlich JA) (‘Nguyen’).
[55](2016) 315 FLR 31, 88-92 [171]–[187] (‘Thomas’).
[56][2016] VSCA 277 (‘Lieu’).
[57][2016] VSCA 277 [46].
As explained in Lieu, the cases relied upon by Vi are not precedents. Moreover, it is to be remembered that Franco, Cini, Aisbett, Peng and Saab were decided before the High Court’s decision in Pham,[58] wherein the High Court held that it was erroneous in sentencing an offender for a federal offence to have regard only to current sentencing practices in the courts of the state or territory in which sentence was being imposed.
[58](2015) 256 CLR 550 (‘Pham’).
Each of the cases relied upon by Vi involved a myriad of different facts and circumstances that bore upon the appropriate sentences in those cases. When one takes all of the relevant matters into account, and gives due weight to current
sentencing practices, nothing in the cases relied upon by Vi make it reasonably arguable that either of the sentences imposed on Vi or Lach were manifestly excessive.
Vi’s proposed ground 1 and Lach’s proposed ground 1 are not reasonably arguable.
Vi’s non-parole period (Vi’s proposed ground 4)
In his proposed ground 4, Vi submitted that the judge erred in not imposing a shorter non-parole period in accordance with his stated intention in his reasons for sentence.[59] Additionally, Vi submitted that his personal circumstances (heavy drug user in the months preceding the offending, good character, relative youth, good background and family support, capacity to lead a fruitful and honest life, remorse and contrition, now being clean from drugs and rehabilitating himself, and otherwise excellent prospects of rehabilitation) required a shorter non-parole period than that imposed by the judge. Specific deterrence, it was submitted, was ‘not of any great significance’.
[59]Reasons [52].
There is no substance in Vi’s proposed ground 4. First, there is no necessary inconsistency between what the judge said in his reasons for sentence[60] and the non-parole period actually fixed by the judge. In a proper exercise of the sentencing discretion, the judge could just as easily have fixed a non-parole period of 10 years — rather than the nine years that was actually fixed. Secondly, none of the matters relied upon by Vi (either alone or in combination) required the judge to impose a shorter non-parole period on Vi.
[60]Ibid.
Vi’s proposed ground 4 is not reasonably arguable.
Conclusion
The applications for leave to appeal are refused.
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