- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Luu  QCA 281
CA No 78 of 2018
SC No 1195 of 2017
SC No 131 of 2018
SC No 376 of 2018
Court of Appeal
Supreme Court at Brisbane – Date of Sentence: 29 March 2018 (Applegarth J)
19 October 2018
15 October 2018
Sofronoff P and Fraser JA and Douglas J
The application for leave to appeal is refused.
CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to drug trafficking and fraud – where the applicant was sentenced to 11 years imprisonment with a parole eligibility date set at five and a half years – where the sentencing judge reduced the drug trafficking sentence to below 10 years because of the applicant’s guilty plea – where the sentencing judge did not rely on the applicant’s guilty plea when setting the parole eligibility date – whether the sentencing judge ought to have reduced the applicant’s parole eligibility date as a result of her guilty plea – whether to do so would have given the applicant a “double-benefit”
Hili v The Queen (2010) 242 CLR 520;  HCA 45, cited
R v Carlisle  QCA 258, cited
R v MCW  QCA 241, cited
R v Tran; Ex parte Attorney-General (Qld)  QCA 22, applied
J R Hunter QC for the applicant
M T Whitbread for the respondent
Fisher Dore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons for judgment of Douglas J and the order his Honour proposes.
FRASER JA: I agree with the reasons for judgment of Douglas J and the order proposed by his Honour.
DOUGLAS J: The issue argued by the applicant in this application for leave to appeal against the sentence imposed on her for drug trafficking and fraud is whether the learned sentencing judge erred in concluding, after reducing the head sentences he proposed to impose to take into account her guilty pleas, that she should not obtain “the double benefit of having a parole eligibility date at the usual one-third period.”
His Honour went on to say that, to do so, would involve an error. He then referred to the decision in R v Tran; Ex parte Attorney-General (Qld). He concluded by saying:
“Instead, I should arrive at an appropriate parole eligibility date, noting that had you been sentenced to a term of 10 years imprisonment for your trafficking you would have been required to serve 80 per cent of that sentence, to which would be added some proportion of the two year or three year sentence for forgery.”
Before I proceed to discuss that submission it is necessary to deal with the nature of the applicant’s offending.
The evidence related to the applicant’s offending
The applicant was convicted on two indictments. The first charged her with trafficking in dangerous drugs and with six associated possession charges treated as particulars of the trafficking offence. The drugs in question were heroin, cocaine, methylamphetamine, MDMA and cannabis. I shall detail the quantities later. She was also in possession of a large sum in cash. She pleaded guilty to those offences and to one summary offence of possessing property suspected of having been used in connection with the commission of a drug offence.
She pleaded guilty as well to one count of attempted fraud and three counts of fraud to the value of $30,000 or more arising from her obtaining loans from Australia and New Zealand Banking Group Limited (“ANZ”) to purchase properties from the proceeds of her drug trafficking. She did that by falsifying documents which she provided to ANZ in order to secure loans totalling $1,594,702.
The drug trafficking occurred over a period of about three years and 10 months from January 2012 to 27 October 2015. During that time she allowed her home to be used to warehouse drugs and other drug related items. There was no allegation that she was engaged directly in the supply of drugs. It appears that her brother may have been a drug supplier but he has not been charged. He may not still be in the jurisdiction.
Surveillance by police revealed that another person collected over seven and a half kilograms of cannabis from the applicant’s residence. A subsequent police search of her residence located commercial quantities of a variety of dangerous drugs, in a locked room and inside a van located in the garage, with a total value of between $484,428 and $1,848,342 depending upon how it was sold.
The applicant did not cooperate with police at that stage. She provided a number of incorrect PIN codes for the locked room in her residence resulting in the police using force to enter the room. The following schedule 1 drugs with a total value of between $199,841 and $967,092, were located within that room:
cocaine - 56.3 grams pure - value between $66,600 and $88,800;
3,4-methlenedioxymethamphetamine - 144.875 grams pure - value between $30,655 and $61,311;
methylamphetamine - 275.404 grams pure - value between $83,040 and $775,044;
heroin - 67.8 grams pure - value between $19,536 and $42,737.
Four suitcases were found inside a van in the garage, inside which were found 66.5 kilograms of cannabis, a schedule 2 drug, valued between $284,587 and $881,250. The applicant informed police that she did not know who the last person to drive the van was and suggested that it may have been her mother. The applicant’s DNA was later located on the van steering wheel, a water bottle in the centre console, and the door.
A total of $1,792,925 cash was also located within the residence in the following areas:
in five locations within the locked room - $1,646,355;
the applicant’s bedroom - $110,450;
the applicant’s handbag in her bedroom - $1,950;
the applicant’s handbag in the lounge room - $31,620; and
the amounts of $450 and $100 in other bedrooms.
Also located throughout the residence was a money counter, heat sealing machines, mobile telephones, packaging material and a number of scales.
A financial analysis revealed that, over the trafficking period, the applicant had an additional unsourced income of $834,765.57. This amount added to the cash found at the residence totalled $2,627,690.57. It was accepted at the sentencing hearing that the cash at the residence would not all have been hers.
The applicant made very limited admissions and also gave very limited co-operation. She admitted that the drugs were hers, however she claimed that the cash belonged to her mother (who also lived in the residence) and the cash found in her handbags were her savings.
Whilst conducting the financial analysis police discovered that the applicant had accumulated a large number of assets, including residential properties. The applicant submitted false information when obtaining the bank loans for the purchase of three properties, and the refinancing of another property, between June and September 2015. The total lent was $1,594,702. The attempted fraud was by the provision of a forged ATO assessment notice indicating the applicant’s income was $141,475 when it was for the relevant period $11,475.
She was aged between 33 and 37 at the time of the offences and was 39 at the time of sentence. She was born in Vietnam and had a seven year old daughter who was being well cared for by her mother. She had no criminal history. The applicant was not a drug user, had been motivated by profit and was said by the prosecution to have the “trappings of wealth”. It was submitted on her behalf that while this aggravated the seriousness of the offending it made her prospects of rehabilitation more promising because she did not need to rehabilitate from a drug addiction.
Several references were tendered on her behalf from her friends and family suggesting that her offending was out of character, had brought shame to her family and led to suffering both for her and her seven year old daughter. She was argued to have expressed genuine remorse and had a strong support network available to her on her release. She had completed courses in parenting, fitness, domestic violence, hospitality and first aid while incarcerated. She had also served as a member of the Prisoner Advisory Committee and as a leader of the Peer Support program in the prison.
She had an offer of employment in her uncle’s bakery on release, having worked there in the past. She was also trained as a bookkeeper and had expressed some tentative plans to return to working as a bookkeeper when released. The learned sentencing judge described a letter she wrote to the court as well expressed and remorseful.
There was a full hand-up committal without cross-examination with pleas of guilty that were accepted as early. One charge had been dropped on the morning of sentence. It was pointed out on behalf of the prosecution, however, that her cooperation with the authorities was limited to the pleas of guilty.
She was sentenced to nine years’ imprisonment for the trafficking offence and convicted and not further punished for the other drug related offences on the basis that they were incidents of the trafficking. She was also sentenced to two years’ imprisonment concurrently for each of the fraud offences but to be served cumulatively on the nine years’ imprisonment for the trafficking offence. Her parole eligibility date was set at 19 April 2021, after five and a half years of the total 11 year sentence. She had spent 891 days or approximately two years and five months in pre-sentence custody between 20 October 2015 and 29 March 2018. All of that was declared as time served under the sentence.
Submissions for the applicant
It was conceded by Mr Hunter QC for the applicant that she took no issue with the head sentence of 11 years’ imprisonment. It was justified by the authorities. His submissions focussed on the passage in his Honour’s reasons to which I have already referred. It is useful to put the passage in context. It is contained in the following longer passage:
“As I said, your case being no less serious than Carlisle, it seems to me that standing alone the appropriate sentence for your trafficking would be in the order of 10 years. Standing alone, appropriate concurrent sentences for your fraudulent activities would be three years. Rather than seeing your fraudulent activities as part of your trafficking operation I would rather see the frauds that you committed as separate and serious ones. Although it is said that the banks have not lost any actual money – and so this is perhaps an unusual case of a fraud perpetrated on a bank – the seriousness of the fraud seems to me that you perpetrated frauds on the bank in order to conceal your ill-gotten gains.
On that basis, standing alone, each of those fraud counts would warrant a sentence of three years. However simply to add together a sentence of 10 years with a sentence of three years and arrive at a cumulative sentence of 13 years might exceed what is appropriate. Having regard to the overall course of your criminal conduct. It seem [sic] to me that I should ameliorate those sentences by imposing on the trafficking count a sentence of imprisonment of nine years and the fraud counts will each have imposed upon them concurrent sentences of two years. Those concurrent sentences to be served cumulatively upon the trafficking sentence of nine years, so you are sentenced to a total term of imprisonment of 11 years.
Because I have taken into account your plea of guilty, in arriving at the sentences that I have and I have taken those pleas into account in reduction of the head sentences, you should not obtain the double benefit of having a parole eligibility date at the usual one-third period. To do so would involve an error. See R v Tran; Ex parte Attorney-General  QCA 22. Instead, I should arrive at an appropriate parole eligibility date, noting that had you been sentenced to a term of 10 years imprisonment for your trafficking you would have been required to serve 80 per cent of that sentence, to which would be added some proportion of the two year or three year sentence for forgery.
It seems to me that you should be required to serve a substantial part of that total period of 11 years. Taking account of your previous good character, the steps you have taken towards your own rehabilitation, but the need for real punishment and significant punishment for trafficking on this scale, even in a subsidiary role, it is appropriate that you have a parole eligibility date after serving one-half of that total period of 11 years, with the result that you should have parole eligibility five and a half years after you went into custody on 20 October 2015, that would be 19 April 2021.”
The submissions for the applicant drew particular attention to the following passage in R v Tran; Ex parte Attorney-General (Qld):
“ 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.
 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.
 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.”
The submission was that, here, there was an early plea of guilty, evidence of genuine remorse and successful steps towards rehabilitation as contrasted with the facts of Tran where there was a late plea of guilty some 10 days before a trial listing followed by his arrest on a warrant because he initially failed to appear at his sentence. Nor was there evidence in Tran of any demonstrated rehabilitation by the respondent there. Mr Hunter also submitted that Tran’s behaviour was worse because he was involved in the actual selling of wholesale amounts of methylamphetamine, admittedly over a much shorter period, but to a broadly similar level of profit.
He argued that the learned sentencing judge failed to appreciate that he had the discretion to give the applicant a double benefit leading to error in the sentence. Even though he referred, in the subsequent remarks quoted above, to taking into account the applicant’s previous good character and the steps she had taken towards her own rehabilitation, it was submitted that they did not result in any real reduction in the non-parole period because his Honour felt constrained by his mistaken understanding of the decision in Tran.
Submissions for the respondent
The respondent pointed to the strength of the Crown case, the absence of other cooperation and the very significant benefits she had obtained from seriously criminal behaviour. The fraud committed on ANZ also had to be taken into account. The respondent’s submission was that the sentence imposed was appropriate including the parole eligibility date which was said to be justified by the reduction of the head sentence to below 10 years where the applicant would have been required to serve 80 per cent of that sentence before being eligible for parole. The length of the trafficking period, the high commercial quantities of the drugs and their variety, the large quantities of drugs on hand and the significant quantity of cash located in the residence coupled with the applicant’s unsourced income over the period of her trafficking and the significant assets obtained by the fraud all justified the sentence imposed.
The respondent also submitted that the sentence of Tran did not demonstrate that the applicant’s sentence was excessive, rather both cases were ones where there was significantly serious criminal behaviour justifying the sentences imposed.
It is useful, in assessing the applicant’s submission, to look more closely at the decision in Tran. It was significant there that, had the respondent not pleaded guilty, he would have been sentenced to a period of imprisonment of 10 years on the trafficking count. The sentencing judge reduced that head sentence to a period of nine years and six months after taking the pleas of guilty into account and ordered the respondent be eligible for parole after serving one-third of that sentence. There the Attorney-General submitted that, once the head sentence had been ameliorated to have regard to 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, bearing in mind that, had he been sentenced to 10 years’ imprisonment, the offence would have been automatically declared a serious violent offence necessitating the respondent serve eight years of imprisonment before being eligible for parole.
Boddice J, for the Court of Appeal, accepted the strength of that submission saying:
“ … 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.”
While his Honour then went on to discuss circumstances where a double benefit may be an appropriate exercise of the sentencing discretion, it is clear that the dominant issue concerning him was the effect of the reduction of the head sentence below the 10 year mark. Nor do the examples his Honour gave of an early plea, youth, genuine remorse and successful steps towards rehabilitation dictate that in every case where those features appear a double benefit should necessarily follow. They are merely examples of the types of discretionary factors that may be taken into account and it is doubtful that his Honour intended to be exhaustive in listing those discretionary considerations. Again, without intending to be exhaustive, one might add issues such as significant co-operation with the authorities by identifying and being willing to give evidence against accomplices or reduced culpability because one was overborne or threatened by an accomplice.
In this case, in any event, the applicant did not meet all the criteria listed by his Honour. She was not particularly youthful and her rehabilitation was not from a drug addiction but essentially consists of an assertion that she has now seen the error of her ways. Her co-operation did not extend beyond an early plea of guilty. The profit from her illegal activities was great and the misery caused to others by her behaviour was likely to have been profound.
It was also clear from the transcript in this case that the applicant’s counsel at the sentencing hearing urged on the learned sentencing judge a further reduction taking into account the applicant’s good character and early plea of guilty. It is quite unlikely that his Honour mistook the effect of the decision in Tran or believed that his sentencing discretion was as circumscribed as is submitted here.
It is also evident from his Honour’s reasons that he took those submissions into account, namely that the applicant’s previous good character and the steps she had taken towards her own rehabilitation may justify an earlier parole eligibility date, but he balanced them against the need for real and significant punishment for trafficking on this scale even in a subsidiary role.
Here the offending was over an extended period. The applicant was not a drug addict and was motivated by commercial gain and her only significant cooperation was the early plea of guilty. She was not particularly youthful. The seriousness of the drug trafficking in particular, coupled with the significant benefit to the applicant arising from her sentence to nine years’ imprisonment for it, thus removing her from the mandatory eight years’ actual time in custody she would otherwise have had to serve if she had been sentenced to 10 years’ imprisonment, justified his Honour in approaching the sentencing task as he did. The submission that the applicant was previously of good character, remorseful and had taken steps towards her own rehabilitation did not require his Honour to set an earlier parole eligibility date in this particular case. He balanced the relevant factors bearing upon the sentence which cannot be said to be manifestly excessive, unreasonable or unjust.
The application should be refused.
 QCA 22.
AB 48/23-AB49/11 (emphasis added).
R v Carlisle  QCA 258.
 QCA 22 (emphasis in the submissions).
R v Tran; Ex parte Attorney-General (Qld)  QCA 22 at .
R v Tran; Ex parte Attorney-General (Qld)  QCA 22 at .
Hili v The Queen (2010) 242 CLR 520, 538 at , referred to in R v MCW  QCA 241 at .
- Published Case Name:
R v Luu
- Shortened Case Name:
R v Luu
 QCA 281
Sofronoff P, Fraser JA, Douglas J
19 Oct 2018
- White Star Case:
No Litigation History