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  • Unreported Judgment

R v Tran

 

[2020] QCA 81

SUPREME COURT OF QUEENSLAND

CITATION:

R v Tran [2020] QCA 81

PARTIES:

R

v

TRAN, Van Chieu

(applicant)

FILE NO/S:

CA No 265 of 2019
SC No 1898 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 12 September 2019 (Wilson J)

DELIVERED ON:

24 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

9 April 2020

JUDGES:

Fraser and Mullins JJA and Applegarth J

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty and was sentenced to 10 years’ imprisonment for trafficking in dangerous drugs – where the applicant submits that a nine year head sentence should have been imposed – where the applicant submits that there was disparity between his sentence and that of a “co-accused” – whether the sentence was manifestly excessive in all the circumstances

R v Cumner [2020] QCA 54, cited

R v Davenport [2018] QCA 330, distinguished

COUNSEL:

The applicant appeared on his own behalf

D C Boyle for the respondent

SOLICITORS:

The applicant appeared on his own behalf

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    FRASER JA:  I agree with the reasons for judgment of Applegarth J and the order proposed by his Honour.
  2. [2]
    MULLINS JA:  I agree with Applegarth J.
  3. [3]
    APPLEGARTH J:  The applicant pleaded guilty to trafficking in dangerous drugs.  On 12 September 2019 he was sentenced to 10 years’ imprisonment.  As a result, his offence was declared to be a serious violent offence.  He applies for leave to appeal on the ground that the sentence was manifestly excessive.
  4. [4]
    The applicant contends that the sentence should have been nine years.  His submissions rely on the fact that he was a drug user at the time of his arrest, his age (he was aged 52 to 54 at the time of the offending and is now aged 57), his remorse and his future prospects of rehabilitation in the community.  He also relies upon what he describes as “offender’s disparity on co-accused/offending behaviour”.

Circumstances of the offending

  1. [5]
    The applicant was engaged as a principal in the wholesale trafficking of methylamphetamine and heroin over a period of 18 and a half months between 31 August 2015 and 15 March 2017.  On occasions he also trafficked in cannabis.
  2. [6]
    His trafficking falls into two consecutive periods.  In the first period, leading up to his first arrest in May 2016, he was a high level wholesaler, purchasing in 350 gram amounts of heroin and one kilogram amounts of methylamphetamine.  After he was arrested in May 2016 and granted bail, his major sources of supply ceased, either by the arrest of one of his major wholesale suppliers (“T”) or by another wholesale supplier (“LH”) refusing to deal with him any further.  Nevertheless, the applicant’s business continued at a wholesale level, supplying in single or multiple ounce quantities of methylamphetamine and heroin.  He was arrested again on 14 March 2017, and remained in custody for 912 days before being sentenced.

The period of trafficking between 31 August 2015 and 18 May 2016

  1. [7]
    During the applicant’s first period of trafficking he sourced drugs on 26 known occasions, locally and interstate.  His Sydney-based suppliers arranged for drugs to be couriered to him on 16 occasions.  Six different interstate couriers transported the drugs.  During the operation, four of the couriers were intercepted by police.
  2. [8]
    The total known amount that was sourced by the applicant during this period was:
    1. (a)
      2.056 kilograms of methylamphetamine, approximately valued between $185,040 and $575,680;
    2. (b)
      518 grams of heroin, approximately valued at between $103,600 and $177,600; and
    3. (c)
      3.206 kilograms of drugs which were either methylamphetamine or heroin.

In addition, 3.85 to 3.95 kilograms of methylamphetamine was shared by the applicant and another wholesaler, Hoai Phong Lu, with whom the applicant lived.  Each conducted his own trafficking business, but sometimes shared deliveries of drugs.

  1. [9]
    The applicant met with other wholesale drug traffickers and maintained business relationships with drug dealers in Brisbane and Sydney.  He sourced significant quantities of drugs two to three times a month.
  2. [10]
    The applicant supplied to customers from his home.
  3. [11]
    He was intercepted by police with large amounts of cash in his possession on 15 October 2015, 1 November 2015 and 22 November 2015.  He was undeterred by this and continued to source and supply drugs.
  4. [12]
    On 18 May 2016 the applicant’s home was searched and drugs were found.  He was arrested and charged later that day.  He was granted bail in the Brisbane Magistrates Court on 19 May 2016.

The period of trafficking between 19 May 2016 and 16 March 2017

  1. [13]
    When the applicant was released on bail he immediately recommenced his trafficking business from his bail address.  As noted, because a major supplier, T, had been arrested on 17 May 2016 and LH later refused to continue to supply him, the scale of his trafficking reduced.  He increased his business dealings with another wholesale trafficker (“TTN”).  They sourced from and supplied to each other, and each ran wholesale drug trafficking in their own right.  The applicant sourced and supplied drugs during this period on a daily basis.  The total known amount sourced and supplied by the applicant during this period was:
    1. (a)
      602 grams of methylamphetamine, approximately valued between $70,950 and $322,500;
    2. (b)
      232.75 grams of heroin, approximately valued between $41,560 and $74,810; and
    3. (c)
      56 grams of methylamphetamine or heroin.
  2. [14]
    During this second period the applicant sourced drugs on 25 known occasions and supplied drugs to customers on at least 21 occasions.
  3. [15]
    On 14 March 2017 police searched the applicant’s residence and located laboratory glassware and chemicals that could be used for the production of dangerous drugs.  The applicant possessed those items as a preparatory step to producing methylamphetamine.  The applicant was arrested in relation to the second period of trafficking, and was remanded in custody on that date.

Personal circumstances

  1. [16]
    The applicant was born in Vietnam and came to Australia in 1986 with his younger sister as refugees.  He lived in Sydney working as a factory hand, truck driver and removalist.  In 1997 he came to Brisbane, purchased a farm and grew vegetables.  He would return to Vietnam from time to time to care for his father.  He had two brothers who lived in Sydney.  The applicant was married twice and has two adult children.
  2. [17]
    At the time of his offending he was addicted to gambling and was using drugs.

Criminal history

  1. [18]
    The applicant has a Queensland and New South Wales criminal history.  One conviction is of particular relevance.  On 30 September 2002 the applicant was sentenced in the Supreme Court at Brisbane for being knowingly concerned in the importation of a trafficable quantity of heroin.  He travelled to Kampuchea and posted letters containing heroin to various addresses in Brisbane.  He was convicted after trial and sentenced to five years’ imprisonment, with a non-parole period of two years and six months.  His appeal against conviction was dismissed and his sentence application was refused.[1]
  2. [19]
    The applicant was convicted on 16 September 2015 for possession of dangerous drugs.  He received a fine of $650.

Pre-sentence custody

  1. [20]
    During his time awaiting sentence, the applicant worked as a cleaner and presented as a model prisoner.  He completed courses and prepared a relapse prevention plan.

Sentencing

  1. [21]
    Having regard to a number of aggravating features, the prosecution submitted that a sentence of between 10 and 12 years was called for.  The aggravating features included the scale of the wholesale drug trafficking, the length of the trafficking period, the large wholesale quantities of drugs involved, the amount of money involved and that significant drug trafficking was committed for 10 months in breach of bail.  The applicant had a relevant conviction for importing heroin and was a mature offender who was financially motivated.
  2. [22]
    The prosecutor assisted the sentencing judge with comparable cases and referred to the sentence imposed by Boddice J on Lu.  Boddice J considered that Lu’s trafficking could have justified a 10 year sentence but reduced it to nine years by reference to a co-offender, Apps.  The learned prosecutor distinguished the applicant’s offending from Lu’s, noting that the applicant’s was much more prolonged and involved carrying on a substantial trafficking business while on bail for 10 months after the initial arrest.  These features alone were said to justify a heavier penalty than was imposed on Lu.
  3. [23]
    Defence counsel at the sentencing hearing also referred to comparable authorities and in written submissions submitted that the applicant receive a sentence of nine years.  In oral submissions, defence counsel said that he did not want to get into “some sort of debate about whether it should be nine or 10”, and acknowledged that there were “ample authorities” which talk “about a range of 10 to 12 years”.  Defence counsel submitted “Your Honour could still give him nine”, and set parole eligibility in excess of a half.
  4. [24]
    As to the sentence that was imposed on Lu, defence counsel submitted that Lu’s criminal record was far worse than the applicant’s.  Defence counsel acknowledged that the prosecutor was right in submitting that Lu’s sentence did not involve a parity issue.  Instead, Lu’s sentence was simply relevant in arriving at the appropriate sentence.
  5. [25]
    The learned sentencing judge had regard to relevant matters and the submissions which had been made.  The sentencing remarks referred to the aggravating features already noted as well as matters in the applicant’s favour, including his guilty plea, the fact that he was using drugs and had an addiction to gambling whilst offending and the steps that he had taken to rehabilitate himself whilst in custody.  Regard was had to comparable cases, including the sentence of Lu.  Account was taken of the applicant’s personal circumstances.  Ultimately, a sentence of 10 years’ imprisonment was imposed, the offence was declared to be a serious violent offence and 912 days spent in pre-sentence custody were declared pursuant to s 159A of the Penalties and Sentences Act 1992 (Qld).

The applicant’s contentions in this Court

  1. [26]
    The applicant’s written submission, a further letter written to the Court dated 6 April 2020 and his oral submissions emphasised his age, remorse and prospects of rehabilitation in the community.  His letter expressed remorse for the “huge effect” his actions had on the community.  He said that at the time of his arrest he was a user and thought that what he was doing was not wrong.  Since being in custody he realised what he had done was wrong and wished to be given a chance to redeem himself in the community and to make a fresh start.  His letter referred to being in Australia with no family and getting older, and referred to this as “my first offence”.  This overlooked his 2002 sentence.  In any event, he asked for his sentence to be lowered so he could become a law abiding citizen again and give back to the community.  He also pointed to the fact that while in custody he had done courses and not been in breach.
  2. [27]
    The applicant’s submissions did not develop any argument about an alleged “disparity on co-accused”.  However, this must be a reference to the sentence of Lu, which was the subject of submissions to and consideration by the sentencing judge.  Lu was not a co-accused.  It was acknowledged that parity considerations did not arise.  The sentencing remarks in Lu[2] establish that whilst his offending was very serious, it was over a shorter period than the applicant’s, namely the period between 21 January and 27 May 2016.  Lu had a criminal history that included trafficking in dangerous drugs.  Boddice J considered that Lu’s past history justified a sentence in excess of 10 years.  However, account was taken of the notional sentence imposed upon Lu’s co-accused.  Applying parity principles, Lu was sentenced to nine years’ imprisonment.  No parole eligibility date was fixed, so that parole eligibility was provided for by the Act.
  3. [28]
    Although the applicant and Lu on occasions shared and split deliveries from suppliers, they were not co-offenders.  The sentencing judge had regard to Lu’s sentence and the remarks of Boddice J.  Her Honour took account of their respective criminal histories and was entitled to regard the applicant’s offending as more serious than Lu’s.
  4. [29]
    The applicant’s good behaviour in custody was taken into account.  However, the applicant’s rehabilitation only commenced after being remanded in custody.
  5. [30]
    It is unnecessary to survey comparable cases since defence counsel at the sentencing hearing correctly acknowledged that the comparable cases might justify a sentence of 10 years’ imprisonment.  It is sufficient to note that the authorities included R v Nunn,[3] R v Feakes,[4] and R v Tran; Ex parte Attorney-General (Qld).[5]  Those and other cases which justify a sentence of 10 years or more for large scale trafficking in Schedule One drugs were recently cited in R v Cumner.[6]
  6. [31]
    The applicant’s outline of submissions in this Court refers to R v Davenport.[7]  Davenport was involved in wholesale trafficking over a period of six months, involving 15 wholesale suppliers.  He operated at a managerial level, directed by another person.  He was an addict and had received relatively small benefits.  He received a total sentence of 11 years nine months, with parole eligibility after five years and 10 and a half months.  Davenport is distinguishable because the applicant’s trafficking was over a longer period and at a higher level.  Further, if Davenport had been sentenced for drug trafficking alone, a sentence of 10 and a half years would have been imposed.  His sentence of nine years and nine months for trafficking reflected totality considerations and 261 days in pre-sentence custody which could not be declared.  Davenport does not demonstrate that the applicant’s sentence of 10 years’ imprisonment was excessive.

Conclusion

  1. [32]
    The sole ground of appeal is that in all the circumstances the sentence was manifestly excessive.  That submission is hard to sustain when defence counsel, at the sentencing hearing, submitted in writing that the range was eight to twelve years’ imprisonment, submitted that a sentence of nine years’ imprisonment was appropriate, and in the course of oral submissions accepted that it was within the sentencing discretion to impose a sentence of 10 years.
  2. [33]
    There is no predetermined range of sentences of this kind.[8]  Comparable cases provide guidance as a yardstick in determining the sentence which is just for the particular circumstances of the subject offence and offender.  The learned sentencing judge had regard to comparable authorities and properly took into account relevant aggravating and mitigating factors.  No error of principle is suggested.  The applicant’s desire to be rehabilitated within the community is understandable.  However, general and personal deterrence and the need to denounce wholesale drug trafficking on the scale committed by a mature-aged offender were major considerations.  The learned sentencing judge properly regarded the applicant’s offending as a very serious case of trafficking.  There was no error in the exercise of the sentencing discretion.  The sentence was not manifestly excessive.
  3. [34]
    I would refuse the application for leave to appeal against sentence.

Footnotes

[1]R v Van Tran (2003) 138 A Crim R 234.

[2]R v Lu, unreported, Supreme Court of Queensland, No 889 of 2018, 21 December 2018 (Boddice J).

[3][2019] QCA 100.

[4][2009] QCA 376.

[5][2018] QCA 22.

[6][2020] QCA 54 at [71] – [75].

[7][2018] QCA 330.

[8]R v Nunn [2019] QCA 100 at [14].

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Editorial Notes

  • Published Case Name:

    R v Tran

  • Shortened Case Name:

    R v Tran

  • MNC:

    [2020] QCA 81

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Mullins JA, Applegarth J

  • Date:

    24 Apr 2020

Litigation History

No Litigation History

Appeal Status

No Status