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R v Tran; ex parte Attorney-General

 

[2018] QCA 22

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Tran; Ex parte Attorney-General (Qld) [2018] QCA 22

PARTIES:

R
v
TRAN, Peter
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)

FILE NO/S:

CA No 142 of 2017

SC No 235 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Attorney-General (Qld)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 1 June 2017 (Bond J)

DELIVERED ON:

6 March 2018

DELIVERED AT:

Brisbane 

HEARING DATE:

19 February 2018

JUDGES:

Philippides and McMurdo JJA and Boddice J

ORDERS:

1. The appeal against sentence be allowed.

2. The parole eligibility date of 1 June 2020 be set aside.

CATCHWORDS:

Criminal law – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – where the Attorney-General appeals against the respondent’s sentence – where the respondent was convicted of one count of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of 200 grams, and one count of possessing a dangerous drug in excess of 2 grams – where the drug trafficking activities were engaged in with a commercial motivation – where the respondent had no prior criminal history – where the respondent pled guilty to the offences charged – where the pleas of guilty were not early – where the respondent was given a double benefit for the guilty pleas in the sentence imposed

Corrective Services Act 2006 (Qld), s 184(2)

Hili v The Queen (2010) 242 CLR 520; (2010) 272 ALR 465; [2010] HCA 45, applied

R v Dao, unreported, Martin J, SC No 622 of 2016, 23 March 2017, cited

R v Johnson [2014] QCA 79, cited

R v McGinniss [2015] QCA 34, cited

R v Nguyen [2016] QCA 57, cited

R v Rooney; R v Gehringer [2016] QCA 48, applied

R v Ryan [2014] QCA 78, cited

R v Safi [2015] QCA 13, cited

COUNSEL:

C Heaton QC for the appellant

J Hunter QC for the respondent

SOLICITORS:

Director of Public Prosecutions (Queensland) for the appellant

Guest Lawyers for the respondent

  1. PHILIPPIDES JA:  For the reasons given by Boddice J, I agree with the orders proposed by his Honour.
  2. McMURDO JA:  I agree with Boddice J.
  3. BODDICE J:  On 11 November 2016, the respondent pleaded guilty to one count of trafficking in a dangerous drug, one count of possessing a dangerous drug in excess of 200 grams, and one count of possessing a dangerous drug in excess of 2 grams.
  4. On 1 June 2017, the respondent was sentenced to nine and a half years imprisonment on the trafficking count and convicted, but not further punished on each of the possession counts.  After declaring 59 days pre-sentence custody as time served, the respondent’s parole eligibility date was set at 1 June 2020.
  5. The Attorney General for the State of Queensland seeks leave to appeal that sentence.  The Attorney General submits the sentence is manifestly inadequate and contained a specific error, namely, an impermissible double benefit for the pleas of guilty.

Background

  1. The respondent was born on 1 August 1980.  He was aged 33 years at the time of the offences and 36 years at sentence.  He had no prior criminal history.
  2. The respondent’s trafficking occurred between 16 February 2014 and 8 July 2014.  The possession counts arose out of one police search on 27 July 2014.
  3. The respondent’s offences were listed for trial, to commence on 21 November 2016.  On 11 November 2016, the respondent entered pleas of guilty to all counts on the indictment.  As a consequence of that plea, the trial was delisted and a sentence hearing set for 30 November 2016.
  4. The respondent failed to appear for sentence on 30 November 2016.  A warrant was issued for his arrest.  He was arrested on that warrant on 12 April 2017.

Offences

  1. The offence of trafficking related to two dangerous drugs, methylamphetamine and 3,4-methylenedioxymethamphetamine (MDMA).  The trafficking extended over a period of five and a half months.  It involved large scale, wholesale level trafficking.
  2. The respondent’s trafficking came to the attention of authorities whilst they were undertaking an investigation into the trafficking of dangerous drugs by two individuals, Tran Dao and Bing Crosby Cosca.  The respondent was identified as a person to whom Cosca regularly supplied multiple quantities of methylamphetamine which the respondent sold to his own customers.  The respondent had an unknown number of runners to assist him in the distribution of methylamphetamine.
  3. At sentence, the Crown relied on the contents of numerous telecommunications between the respondent and Cosca as evidence of the scale of the respondent’s trafficking.  The Crown contended those intercepted communications were limited and not likely to reflect the full extent of the respondent’s trafficking operation.
  4. According to the Agreed Schedule of Facts, the price Cosca charged the respondent for an ounce of methylamphetamine ranged from $76,000 to $85,000.  The respondent would make arrangements with Cosca to obtain further quantities of methylamphetamine before running out of stock and before he had repaid in full, previous debts.  The respondent also negotiated pricing with Cosca in an attempt to grow his business and make further profit.
  5. The respondent gave feedback to Cosca of complaints received from customers in relation to the quality of methylamphetamine supplied by Cosca.  On occasions, the respondent negotiated with Cosca to swap the methylamphetamine or asked for a refund for this drug.  The respondent also referred to difficulties in recovering debts owed by his own customers in order to repay Cosca’s debts.
  6. The surveillance evidence demonstrated at least 16 occasions on which the respondent met Cosca to source methylamphetamine.  The total supply from those meetings alone was in excess of 2.7 kilograms of methylamphetamine.  Cosca had also supplied the respondent with 2000 MDMA tablets on 22 July 2014.  They discussed the supply of a further 10,000 on 26 July 2014.
  7. The Crown relied on two particular transactions to indicate the nature and extent of the respondent’s trafficking business.  On 12 July 2014, the respondent purchased half a kilogram of methylamphetamine from Cosca.  Text messages indicate the price for the drugs was $140,000.  On 26 July 2014, the respondent purchased a further one kilogram of methylamphetamine for $260,000, on credit.  The respondent told Cosca it would take him three to four weeks to sell that quantity of drug.  Whilst negotiating those supplies, the respondent claimed he was moving “about $50,000 per week”.
  8. On the evening of 26 July 2014, the respondent collected the drugs from Cosca and delivered them for storage at the residence of his co-accused, Joshua John Edwards.  Edwards had acted as a runner for the respondent.
  9. On 27 July 2014, Edwards’ residence was searched by police.  They found 892.462 grams of methylamphetamine in various locations and 959 tablets of MDMA, containing a total of 50.189 grams of pure MDMA.  These quantities represented the drugs, the subject of the two possession counts.

Sentence hearing

  1. The sentencing judge acknowledged that the respondent had pleaded guilty and thereby cooperated in the administration of justice.  However, that plea was properly to be regarded as late.  It was entered a little over two weeks prior to the listed date for commencement of his trial.  The respondent’s subsequent failure to appear also was said to be a feature which “sounds adversely to an assessment of his character”.
  2. The sentencing judge accepted that general deterrence was of particular importance, having regard to the significant wholesale amounts of drugs involved, and that personal deterrence and community protection also loomed large.
  3. In respect to the factual circumstances, the sentencing judge noted that the respondent’s trafficking took place over a five and half month period during which the respondent incurred a $100,000 debt to Cosca.  It involved significant wholesale amounts of methylamphetamine, with two large transactions at the end.  There was evidence the respondent was seeking to increase the size of his business.
  4. During the trafficking period, the respondent had paid in excess of $250,000 to Cosca and supplied methylamphetamine in varying amounts to his customers, via runners employed to sell drugs on his behalf.  The respondent had proposed taking over Cosca’s business at one stage and boasted at the end of the trafficking period of moving $50,000 per week.  The respondent had also taken steps to avoid detection, including registering phones with fake details and using multiple mobile phones.
  5. The sentencing judge sentenced the respondent on the basis his drug trafficking activities were engaged in with a commercial motivation.  The sentencing judge specifically rejected a notion they were engaged in to feed a drug habit.
  6. By way of mitigation, the sentencing judge noted the respondent’s background and personal relationships and the fact he had no criminal history.  The sentencing judge accepted that was a factor in his favour but observed the respondent was a mature man who had engaged in serious offending for commercial motivation.
  7. Finally, the sentencing judge noted the respondent had explained his failure to appear at his initial listed date for sentence to a psychologist, that he was remorseful and ashamed of himself.  The sentencing judge observed that the plea of guilty, although late, was a factor in the respondent’s favour.
  8. The sentencing judge considered a number of comparable decisions.  Of particular relevance, the sentencing judge observed that Cosca, who had been sentenced to 13 years imprisonment, was above the respondent in the wholesale hierarchy.  The sentencing judge also had regard to the sentence imposed on Dao.[1]
  9. Dao was sentenced to nine and half years imprisonment for trafficking in dangerous drugs over a longer period, in circumstances where the business included stand over tactics and threats of violence by Dao who had a criminal history, including significant weapons offences and some drug offences, and who was on parole when he committed the trafficking offence.
  10. The sentencing judge observed that whilst there were differences in the quantities in Dao’s trafficking operation, the offending was broadly similar.  As such the sentences imposed on Cosca and Dao were important benchmarks against which to measure the respondent’s offending.
  11. After observing that Dao would have been sentenced to 10 years imprisonment, but for considerations particular to Dao, the sentencing judge noted that the respondent had distinguishing features from Dao, namely, a lack of any criminal history, the respondent was not on parole when he committed the offending and the respondent did not demonstrate any propensity for violence or standover tactics.
  12. The sentencing judge observed that had the respondent not pleaded guilty he would have been sentenced to a period of imprisonment of 10 years on the trafficking count.  Taking into account the pleas of guilty, the sentencing judge reduced that head sentence to a period of nine years and six months.  Further, again taking into account the pleas of guilty, the sentencing judge ordered the respondent be eligible for parole after serving one third of that sentence, a period of three years and two months imprisonment.

Attorney General’s submissions

  1. The Attorney General accepts the head sentence of nine and a half years imprisonment falls within the scope of the sound exercise of the sentencing discretion.  However, the Attorney General submits the sentence imposed was manifestly inadequate when regard was had to the fixing of the parole eligibility date after serving three years and two months imprisonment.
  2. The sentence of nine and half years’ imprisonment was imposed on the specific basis that the sentencing judge took into account the respondent’s pleas of guilty.  But for that factor, the respondent would have been sentenced to 10 years imprisonment with the consequence that the offence would have been automatically declared a serious violent offence necessitating the respondent serve 80 per cent of that sentence, namely, eight years imprisonment, before being eligible for parole.
  3. The Attorney General submits that once the head sentence had been ameliorated to have regard for the pleas of guilty, a further amelioration of that sentence to reflect the pleas of guilty was an error as it provided a double benefit for the pleas of guilty.  No other factor was identified by the sentencing judge for the setting of a parole eligibility date earlier than provided by the legislation, other than the pleas of guilty.
  4. The Attorney General submits the respondent ought not to have received the benefit of any specific parole eligibility date.  Pursuant to Section 184 (2) of the Corrective Services Act 2006, the parole eligibility date should have been left at four years and nine months.

Respondent’s submissions

  1. The respondent submits the sentence imposed fell within a sound exercise of the sentencing discretion.  The setting of a parole eligibility date at three years and two months imprisonment was unremarkable following a plea of guilty.  It was in keeping with common sentencing practice.
  2. The respondent submits that whilst his failure to appear did not stand in his favour, his pleas of guilty were of utilitarian value and properly taken into account in mitigation.  The respondent’s lack of prior convictions meant he had good prospects of rehabilitation, a relevant factor in fixing a lower period of actual custody to be served before any parole eligibility.  Parole eligibility is merely an opportunity to apply for parole.

Consideration

  1. As the sentencing judge correctly observed, the respondent’s criminal conduct properly would have attracted a sentence of 10 years imprisonment, but for his pleas of guilty.  The respondent had engaged in wholesale trafficking in large quantities of drugs, purely for commercial profit.
  2. A consideration of comparable authorities supports the conclusion that such behaviour, absent a plea of guilty, warranted such a head sentence[2].  In Safi, this Court cited with approval the observation made in R v Johnson:[3]

“…absent extraordinary circumstances, in cases of trafficking in Sch 1 drugs on this scale mature offenders who have pleaded guilty can expect a sentence of at least 10 years imprisonment. Younger offenders without a significant criminal history and with excellent rehabilitative prospects may be sentenced to slightly lesser terms.”[4]

  1. The respondent’s pleas of guilty, whilst late, warranted a reduction in that head sentence in recognition of the cooperation with the administration of justice evidenced by the pleas of guilty.  The reduction of the head sentence to nine and a half years imprisonment meant the respondent was no longer subject to an automatic declaration that he had been convicted of a serious violent offence, which would have required him to serve 80 per cent of the head sentence of 10 years imprisonment.
  2. The consequence of such a reduction was, in practical terms, very significant.  Once the sentencing judge had determined to undertake that course, in recognition of the pleas of guilty, there was no legitimate basis upon which to further ameliorate the sentence by fixing a parole eligibility date earlier than would be set pursuant to section 184(2) of the Corrective Services Act 2006.  To do so was to extend a double benefit to the respondent.
  3. Whilst a double benefit may, in certain circumstances, be an appropriate exercise of the sentencing discretion, there was no proper basis for affording a double benefit in the present case.  The respondent’s plea of guilty was late.  He subsequently failed to appear at his initial sentence date.  He only appeared in court after being arrested pursuant to a warrant issued as a consequence of his failure to appear at his sentence.
  4. Usually, pleas of guilty generally only attract parole eligibility dates at around the one-third mark of a head sentence in circumstances where the plea of guilty is early and accompanied by genuine remorse.  There are also often other factors relevant to the exercise of such a discretion, including the youth of the offender and successful steps towards rehabilitation.
  5. In the respondent’s case, there was neither the existence of an early plea, nor evidence of genuine remorse.  The respondent also was not a youthful offender.  He had not engaged in his criminal conduct due to a significant drug addiction. He had commercially profited from the wholesale selling of large quantities of Schedule 1 drugs.  During his trafficking operation he had sought to develop his business and boasted of a significant high turnover in that business.
  6. In this respect, the observations of Fraser JA, (with whom Gotterson JA and McMeekin J agreed) in R v Rooney; R v Gehringer[5] are apposite:

In the course of argument the applicants invoke the “common sentencing practice in Queensland”, to which Jerrard JA referred in R v Hoad, of making provision for parole or suspension of imprisonment after approximately one third of the head sentence has been served. However, Jerrard JA referred to Ms Hoad having pleaded guilty to an ex officio indictment, having not been responsible for the delay in the matter proceeding in the District Court, having indicating her preparedness to plead at her first appearance, having demonstrated genuine remorse, and having made full and frank admissions to the police at the scene of the offence (dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance). Jerrard JA observed that “[t]hose matters in mitigation would ordinarily have resulted in Ms Hoad receiving either a recommendation for consideration for early post-prison community based release, or a suspension of her sentence, after approximately one third had been served” and “[t]hat would accord with common sentencing practice in Queensland”. In this case, neither applicant could rely upon such substantial mitigating factors.” (citations omitted).[6]

Conclusions

  1. The fixing of a parole eligibility date at the one third mark, conferred on the respondent a double benefit for his pleas of guilty.  This was not justified having regard to the circumstances of his pleas and the already significant allowance for those pleas in the reduction of the head sentence below 10 years imprisonment, with the avoidance of the consequences of an automatic declaration of a conviction of a serious violent offence.
  2. The conferring of an unwarranted double benefit, in the particular circumstances of the respondent’s case, constituted an error justifying appellate intervention.  It evidenced a misapplication of principle,[7] resulting in a sentence which is manifestly inadequate.  It is therefore necessary to exercise the sentencing discretion afresh.
  3. Having regard to the respondent’s criminality and the mitigating factors in his favour, including his lack of criminal convictions and his pleas of guilty, the sentence which properly reflected the respondent’s criminality was the sentence of nine and half years imprisonment, with parole eligibility in accordance with s 184(2) of the provisions of the Corrective Services Act.
  4. I would order:
    1. The appeal against sentence be allowed.
    2. The parole eligibility date of 1 June 2020 be set aside.

Footnotes

[1] R v Dao, unreported, Martin J, SC No 622 of 2016, 23 March 2017.

[2] R v Ryan [2014] QCA 78; R v Safi [2015] QCA 13; R v McGinniss [2015] QCA 34; R v Nguyen [2016] QCA 57.

[3]  [2014] QCA 79, [43]-[46].

[4] R v Safi [2015] QCA 13 at [18].

[5]  [2016] QCA 48 at [16].

[6]  Emphasis per original.

[7] Hili v The Queen (2010) 242 CLR 520 at [59].

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Editorial Notes

  • Published Case Name:

    R v Tran; Ex parte Attorney-General (Qld)

  • Shortened Case Name:

    R v Tran; ex parte Attorney-General

  • MNC:

    [2018] QCA 22

  • Court:

    QCA

  • Judge(s):

    Philippides JA, McMurdo JA, Boddice J

  • Date:

    06 Mar 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment SC235/16 (No Citation) 01 Jun 2017 Date of Sentence (Bond J).
Appeal Determined (QCA) [2018] QCA 22 06 Mar 2018 Appeal against sentence allowed: Philippides and McMurdo JJA and Boddice J.

Appeal Status

{solid} Appeal Determined (QCA)