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R v Pham, Tran & Dang; ex parte Director of Public Prosecutions (Cth)

 

[2017] QCA 46

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Pham, Tran & Dang; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 46

PARTIES:

R

v

PHAM, Duy Hoa

(first respondent)

TRAN, Lam Hoang

(second respondent)

DANG, Tam Minh

(third respondent)

EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

(appellant)

FILE NO/S:

CA No 1 of 2016

CA No 7 of 2016

CA No 8 of 2016

SC No 864 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeals by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 2 December 2015

DELIVERED ON:

23 March 2017

DELIVERED AT:

Brisbane

HEARING DATE:

24 August 2016 (Pham, Tran & Dang)

3 November 2016 (Pham)

JUDGES:

Margaret McMurdo P and Morrison and Philippides JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeals dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the first and second respondents were convicted after trial of attempting to possess a commercial quantity of a border controlled drug – where the third respondent pleaded guilty to attempting to possess a commercial quantity of a border controlled drug on the day before trial – where the first respondent was sentenced to 12 years imprisonment with a non-parole period of seven years – where the second respondent was sentenced to 10 years imprisonment with a non-parole period of six years – where the third respondent was sentenced to 10 years imprisonment with a non-parole period of five and a half years – where 33 kilograms of pure heroin was hidden inside wooden altars that formed part of a consignment of furniture inside a shipping container from Ho Chi Minh City – where the border controlled drug was intercepted and replaced by the Australian Federal Police with an inert substance – where the sentencing judge found that all respondents were willing participants in removing the substance from the wooden altars – where the third respondent had the additional task of transporting a quantity of heroin in a vehicle – where the sentencing judge found that all respondents knew of the presence of the border controlled drug and that they were facilitating the distribution of illegal drugs – where the respondents did not have precise knowledge of the quantity of the border controlled drug – where the first respondent was 35 years old and had previously committed drug offences – where the second respondent was 32 years old and had no criminal history – where the third respondent was 51 years old and had a prior conviction for receiving stolen property – where the nature of the involvement of the respondents was considered – whether the sentences were manifestly inadequate

Criminal Code (Cth), s 11.1, s 307.5

Dao v R [2011] NSWCCA 183, cited

House v The King (1936) 55 CLR 499; [1936] HCA 40, cited

Nguyen v R; Phommalysack v R (2011) 31 VR 673; [2011] VSCA 32, cited

R v Agboti (2014) 246 A Crim R 72; [2014] QCA 280, cited

R v Banker [2016] QCA 74, cited

R v Laurentiu (1992) 63 A Crim R 402, cited

R v Nguyen; R v Pham (2010) 205 A Crim R 106; [2010] NSWCCA 238, cited

R v Oprea [2009] QCA 184, cited

R v Pham (2015) 256 CLR 550; [2015] HCA 39, applied

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64, applied

COUNSEL:

G R Rice QC, with T Ryan, for the appellant

K S Mackenzie (sol) for the first respondent

P J Callaghan SC, with B Dighton, for the second respondent

J J Allen QC for the third respondent

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the appellant

Mackenzie Mitchell Solicitors for the first respondent

Bosscher Lawyers for the second respondent

Legal Aid Queensland for the third respondent

  1. MARGARET McMURDO P:  I agree with Philippides JA’s reasons for dismissing the appeals.
  2. MORRISON JA:  I have read the reasons of Philippides JA and agree with those reasons and the orders her Honour proposes.
  3. PHILIPPIDES JA:  The respondents, Pham and Tran, were convicted on 27 November 2015 after an eight day trial of the offence of attempting to possess a commercial quantity of a border controlled drug, namely heroin, contrary to s 11.1(1) and s 307.5(1) of the Criminal Code (Cth) (the Code).  The respondent, Dang, was convicted of the same offence on his plea entered the day before the trial.  All of the respondents were sentenced on 2 December 2015 and the following sentences were imposed:
  1. In relation to Pham, 12 years imprisonment with a non-parole period fixed at seven years.[1]
  2. In relation to Tran, 10 years imprisonment with a non-parole period fixed at six years.[2]
  3. In relation to Dang, 10 years imprisonment with a non-parole period fixed at five and a half years.[3]
  1. The sole ground of the appeal is that the sentences imposed on the respondents were manifestly inadequate.  The principles governing such an appeal are well established.  As Gaudron, Gummow and Hayne JJ stated in Wong v The Queen[4] (by reference to House v The King):[5]

“… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.”

  1. In contending that the sentences imposed were such that this Court should conclude that there was some misapplication of principle, the appellant submitted that the sentences sat at or below the levels imposed on offenders of comparable criminality but whose offending involved a much lesser quantity of drugs and was thus said to be objectively less serious.

Circumstances of the offences

  1. The circumstances of the offending as set out in the appellant’s outline are accepted by the respondents.  They are as follows.
  2. On or about 28 October 2012, a consignment of furniture inside a shipping container arrived at the Port of Brisbane from Ho Chi Minh City, Vietnam.
  3. Australian Customs and Border Protection Service (Customs) officers and Australian Federal Police (AFP) officers discovered that hidden inside two wooden altars within the consignment were individually wrapped blocks of heroin.  There were 39 rectangular blocks concealed inside each altar.  The powder in the blocks in one altar contained 62.7 per cent pure heroin, 61.1 per cent pure heroin in the other.  The total quantity of pure heroin found inside the altars was 33.667 kilograms.
  4. After the blocks of heroin were seized, an inert substance was substituted and the altars were reconstructed with the inert substance hidden inside similar wrapping.  Listening and tracking devices were installed in the altars.
  5. On 9 November 2012, the altars were delivered to a residence at Robertson.  At about 1.17 pm on 10 November 2012, the respondents, Tran and Pham, together with another man, Nguyen, were observed to load both altars onto a trailer, which was then towed away by a Nissan Pathfinder driven by Nguyen.  At 1.41 pm, a Ford Fairlane, owned by Tran, was observed to follow the Pathfinder away from the residence.
  6. Both altars were delivered to an address at Munruben.  The altars were then placed inside a shed on the premises and from about 4.05 pm until about 4.38 pm, the listening device transmitted sounds consistent with the altars being dismantled using tools.
  7. When AFP officers approached the shed at around 4.38 pm, they heard loud banging noises.  The shed was locked from within.  After a few minutes, the door was opened.  Police saw the three respondents standing inside the door and each appeared to be covered in a layer of dust.  Three pairs of gloves and several discarded mobile phones were strewn on the floor.  The wrapped blocks of substituted substance were lying amongst the rubble of the broken altars.
  8. A Nissan X-Trail, which had been hired by Dang in Melbourne, was located inside the shed with one of the door trims loosened (for the purposes of concealing packages of heroin inside the vehicle).
  9. Dang was the only offender to participate in an interview with police.  He said that he had come to Brisbane at the request of another man, Quynh, and that he would receive further instructions when he arrived.  He stated that he believed that each block of heroin was worth between $60,000 and $80,000.  Dang was to be paid for his involvement.  He had performed deliveries of heroin for Quynh from NSW to Victoria in the past.

Prior criminal history

  1. Pham, who was 35 years of age when sentenced, had a previous conviction from December 1999 for trafficking in heroin for which he was sentenced to eight years imprisonment with a recommendation for parole after two and a half years.  Lesser concurrent sentences were then imposed for other drug related offences and offences of stealing, wilful damage, assault occasioning bodily harm and unlawful entry of a vehicle.  Pham had other convictions for less serious offences.
  2. Tran, who was 32 years of age when sentenced, had no criminal history.
  3. Dang, who was 51 years of age when sentenced, had a prior conviction from December 1992 for receiving stolen property for which he was sentenced to community service.  He was sentenced for breaches of that order in 1993 and 1994 and ordered to perform further community service.

The sentencing remarks

  1. The sentencing judge found that all of the respondents were “at least … willing workers assisting in the unpacking of the altars”.  They performed that role knowing of the presence of drugs and that they were facilitating their distribution and were to be paid for their labour.
  2. In relation to Pham and Tran,[6] her Honour accepted there was no evidence that they would have obtained any of the heroin for themselves, or would have been involved in the further movement of the drugs.  In relation to Dang, her Honour remarked that he was aware that “at least some” of the heroin was to be removed for further distribution.
  3. Pham participated in the unloading and dismantling of the altars.  He was present in the shed for at least an hour and was involved for a couple of hours in the afternoon.  Pham’s involvement was as a low level participant, similar to the offender in Dao v R.[7]  Personal deterrence loomed large in Pham’s case because of his prior conviction for trafficking heroin.  Pham had made significant admissions during the trial.
  4. In respect of Tran, her Honour was unable to conclude from the evidence whether, when he assisted in the loading, he was aware of what was involved.  However, her Honour concluded that, at some point in the afternoon, he became aware that the altars contained illegally imported border controlled drugs.  There was evidence that Tran was in the shed for a shorter period of time than Dang and Pham.  It was possible that he was only in the shed for a period of some four minutes.  Tran had also made significant admissions during the trial.  Her Honour took into account Tran’s rehabilitation demonstrated in custody, which she considered to be significant, and his lack of criminal history.
  5. Her Honour concluded that Dang’s criminality was also similar to that of the offender in Dao and the offender Zheng, who was a co-accused referred to in the decision of DPP (Cth) v Peng.[8]  Dang was a past user of heroin but not a current user.  His plea, although at a late stage, required recognition.
  6. In imposing sentence, her Honour also had regard to authorities such as R v Ung,[9] R v Filho[10] and Nguyen v R; Phommalysack v R[11] which she distinguished as examples of more extensive involvement than that of the respondents.

The appellant’s submissions

  1. The appellant contended that, whilst the respondents were all low level workers, the task performed was a necessary step in the process of retrieving and distributing over 33 kilograms of recently imported heroin.  Drawing on the decision R v Oprea,[12] the appellant contended that the culpability of the respondents’ involvement could be compared with that of a courier.  In that respect, the appellant placed reliance on the endorsement in Oprea[13] of the following statement from Wood J’s judgment in R v Laurentiu:[14]

“Every bit-player participating in the importation/distribution chain, whether dispatcher, courier, clearer, warehouser or street dealer, is essential to the evil trade in drugs. Without their participation no drugs can be moved or sold, there are no profits, and the hidden financiers and principals who share the vast profits of the illicit trade with the workhorses, to limit their own exposure, would disappear. For these reasons it is contrary to well-established principle, to suggest that as a courier, the culpability of Montenegro was greater than that of Laurentiu, who collected the drugs from him. This form of argument was specifically rejected in Thiagarajah (1989) 41 A Crim R 45 and in Kwong Leung Lam (1991) 53 A Crim R 118; see also Ho (unreported, Court of Criminal Appeal, 11 February 1988). I see no reason to depart from these earlier decisions of this Court.”

  1. Furthermore, in the present case, the large quantity of the drug contained within the altars (valued at $10 to $20 million at a wholesale level and much higher at street level) was an aggravating feature.  It exceeded by 22 times the prescribed commercial quantity of 1.5 kilograms.  Although the High Court stated in Wong[15] that the quantity of drug is not necessarily to be given chief weight in sentencing, it is nonetheless highly relevant in determining the objective seriousness.
  2. All respondents knew during the afternoon that their task was to dismantle two large pieces of furniture containing drugs.  They fell to be sentenced on the basis of the objective seriousness of the quantity of the drug[16] irrespective of whether they knew “the exact quantity ... or the exact purity”.  Her Honour’s observation (in the cases of Tran and Pham) about lack of precise knowledge was not relevant to mitigation.  It served only to distinguish this case from perhaps a worse case where the task was carried out with such knowledge.  Dang had the additional task of transporting a quantity of the heroin away from the shed by prior arrangement.  Given the presence of the hired Nissan X-Trail in the shed, with the door trims removed, it must have been evident to the others that they were also facilitating that.
  3. The appellant made the following submissions in respect of the respondents:
  • As to Pham and Tran, the offence was particularised as encompassing the loading of the altars at Robertson for the purpose of their transport to the shed at Munruben, and then dismantling them there so as to retrieve the drugs. The appellant submitted that it could be inferred there was some prior arrangement with persons unknown for the shared performance of the task and agreement for payment for labour – that was said to accord with the probabilities of the situation. Further, as a matter of inference, the likely scenario was that only those with knowledge of the nature of the task to be performed would have been permitted to participate as none of the participants in the transport and dismantling activities that afternoon could afford the risk of an innocent participant belatedly discovering the presence of drugs and then informing on the others.
  • As to the sentencing judge’s observations concerning the length of time Tran spent in the shed, he had given evidence that, after providing a hammer, he had smoked a cigarette by his car and then entered the shed a few minutes before the police arrived.[17] It was submitted that his evidence was substantially rejected by the jury but that even if that part had been accepted, the time spent smoking a cigarette would not affect his culpability relative to the others. Each offender was present to participate in the performance of the task of dismantling of the altars and recovering drugs for reward. Each was assisting and encouraging the others by his presence and participation. All were equally responsible for the dismantling of the altars for the retrieval of drugs. Culpability was not affected by seeking to identify the time spent inside the shed. A broad view of respective criminality in such a situation was required.
  • Dang, who was also found to be a “... willing (worker) assisting in the unpacking of the altars”, had acknowledged that he had a prior relationship with one Quynh, based on transporting heroin from NSW to Victoria for reward on three occasions. On this occasion, acting on another request from Quynh, the respondent hired a vehicle in Melbourne for 30 days and drove to Queensland. He was instructed to go to the premises at Munruben, meet with others there, perform the task of dismantling so as to retrieve the heroin, then take eight packages to a meeting place at Brown’s Plains, where there would be further instruction. The interview was ambiguous about what quantity he thought was concealed in the furniture. The instruction concerning the dismantling to be performed was not expressly limited to the retrieval of eight packages; only that, upon dismantling, eight packages were then to be driven away. Dang did not suggest surprise at the quantity recovered from the altars. His prior admitted offending of the same kind was relevant to a course of conduct (s 16A(2)(c) Crimes Act 1914 (Cth)) and to character and antecedents (s 16A(2)(m)). The admitted past activity rendered this offence more serious in character, warranting a heavier sentence because it arose out of a relationship of recurrent offending.[18]
  1. It was submitted that, although the sentencing judge considered Dao as a comparator to be “of the most assistance”, there were limitations to its utility since the focus of the appeal was that of parity of Dao’s sentence with that of others previously sentenced in the same venture and there was limited indication of the factors that informed the sentences of the cooffenders at first instance.
  2. Recourse to other cases indicated that the sentences imposed on the respondents were at or below those imposed on low level couriers who were carrying a small fraction of the value and quantity of drug involved here and who, in most instances, pleaded guilty. Reference was made to R v Banker[19] where a sentence of 12 years with a nonparole period of eight years was imposed after trial on an offender who acted as a courier.
  3. It was contended that, consistently with Oprea and Laurentiu, the respondents’ roles as domestic couriers and unpackers to facilitate distribution were comparable to Banker and cases like it.  However, since the quantity of drugs involved provided a measure of objective seriousness, the sentences imposed on the respondents should have reflected the significant differential in quantity.

Relevant legal principles

  1. In considering the principles governing an appeal against sentence on the basis of manifest inadequacy, Gaudron, Gummow and Hayne JJ explained in Wong, in relation to the offence of being knowingly concerned in the importation of heroin, that like features can be identified as bearing upon the formulation of applicable principles:[20]

“Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender’s knowledge about what was being imported, the offender’s role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. … In general, however, the larger the importation, the higher the offender’s level of participation, the greater the offender’s knowledge, the greater the reward the offender hopes to receive, the heavier the punishment that would ordinarily be exacted.”

  1. The correct approach to the assessment of sentences as stated in Wong was recently endorsed by French CJ, Keane and Nettle JJ in R v Pham[21] as follows:

“(1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.

  1.  The consistency that is sought is consistency in the application of the relevant legal principles.
  1.  Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.
  1.  Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.
  1.  For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.
  1.  When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.
  1.  Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

Discussion

The issue of quantity

  1. The appellant placed a good deal of emphasis on the observations in R v Nguyen; R v Pham[22] in contending that the sentences were manifestly inadequate when the factor of the quantity of the drug was considered:

“(e) the statements by the High Court in Wong v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type; in many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen (2005) 157 A Crim R 80 at [110]; Sukkar v The Queen (No 2) (2008) 178 A Crim R 433 at [46]”.

  1. Reference was also made to the following statement in Maxwell P’s judgment in Nguyen v R; Phommalysack v R:[23]

“Where a commercial quantity of a drug is imported, the maximum penalty for importation and for possession is life imprisonment. Selfevidently, therefore, the offence is to be viewed as being of the utmost seriousness. The sentencing regime being quantity-based, the scale of the importation will be a very significant factor in sentencing. Ordinarily, the larger the quantity imported, the more serious will be the offence (other things being equal).”

  1. Maxwell P’s statement recognises that quantity will be one of the appropriate considerations for determining whether one case is worse than another where the circumstances of importation are the same or similar.  Quantity is a relevant and significant factor but the weight to be given to the quantity of the drug involved varies with the circumstances of each case.
  2. As was stated in Wong,[24] there is no doubt that “the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender”, however, the Court there also stated that:[25]

“It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported … it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.

It follows that there will be many cases in which a sentencing judge will be more concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved.”

  1. When regard is given to all the circumstances of the present offending, the appellant, in my view, failed to demonstrate error on the part of the sentencing judge with regards to her Honour’s approach to the consideration of this factor.

The issue of the role of the respondents

  1. The appellant relied on the authority of Laurentiu and the rejection in that case of the proposition that the culpability of Montenegro as a courier was greater than that of Laurentiu, who collected the drugs from him.[26]  Laurentiu and Oprea do not by any means detract from the need to calibrate, so far as possible, objective criminality and moral culpability and neither authority provides support for the blanket proposition that, in appropriate cases, distinctions can and should be made between the roles of bit players in an enterprise.
  2. As was observed by Maxwell P in Nguyen & Phommalysack,[27]

“The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence …

Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.”

  1. In my view, the approach of the sentencing judge in this particular case accorded with the statement of principle in Wong, in that this was a case where it was open to the sentencing judge to be “concerned to identify the level of the offender’s criminality by looking to the state of the offender’s knowledge about the importation in which he or she was involved”.
  2. As counsel for the respondents submitted, to characterise the respondents as comparable to “couriers” did not provide a particularly meaningful comparison bearing in mind their respective states of mind.  There was no error in the sentencing judge’s approach of having regard to the extent of their involvement.

Comparable cases

  1. It was submitted by the appellant that the role of the respondents was comparable to the offenders in courier cases like Banker and R v Agboti[28] except that the greater amount of drugs required a commensurate uplift in penalty from what was imposed in those cases.
  2. Banker concerned a US citizen, who brought 4,177.1 grams (over five times the commercial quantity) of methamphetamine from Fiji, concealed in a suitcase.  There was no evidence the offender was aware of the quantity.  The offender made “sensible and appropriate admissions at trial”.  He was aged 71 at sentence, had no prior convictions and no family in Australia.  The sentence of 12 years with a non-parole period of eight years imposed after a trial was not interfered with.
  3. The appellant also placed emphasis on the following cases referred to in Banker:
  • Calis[29] where a sentence of 10 years imprisonment with a non-parole period of six years was imposed after trial on a 45 year old Dutch national residing in Gambia who had imported 1,294 grams of pure methamphetamine, concealed within a suitcase. The offender, who acted as a courier, was to receive $7,000. Credit was given for a streamlined trial, in that the Crown was not put to proof on continuity. He had no previous convictions, a good work history and good prospects of rehabilitation.
  • Ng[30] where a sentence of 11 years and three months imprisonment with a non-parole period of seven years and three months was imposed on a plea to importing 2,445 grams of pure heroin. The offender, a Singaporean national was promised that a gambling debt would be cleared and was to receive a total reward of SGD$20,000. It was unlikely his participation was above that of a courier. He was 49 years old, from a disadvantaged background and had a criminal history (but not for drugs). He had shown some remorse but there was no positive finding in relation to rehabilitation.
  • Puan[31] where a sentence of 12 years imprisonment with a non-parole period of eight years was imposed after trial in respect of the importation of 839.2 grams of pure methamphetamine with a value of about $230,000. The drugs were transported in two cognac bottles in a duty free bag. The offender, who was aged 35, had a prior conviction for dishonesty in Singapore.
  1. In Agboti, a sentence of nine years imprisonment with a non-parole period of four years and six months was imposed on appeal in respect to the importation of 2,326.5 grams of pure methamphetamine, having an estimated street value of between $3.4 and $10.2 million.  The 23 year old Nigerian offender, who entered a plea, had imported the drugs in her luggage.  Among the cases reviewed in that case where guilty pleas were entered (albeit far less than the present case), were the following referred to by the appellant:
  • Jain[32] which concerned the importation of 1,559 grams of heroin sewn into the lining of a suitcase by a 26 year old offender who travelled on a fake passport. On appeal his sentence was reduced to 10 years imprisonment with a non-parole period of seven years. In addition to his plea, he had shown remorse, had good prospects of rehabilitation and no prior convictions.
  • Speer[33] which concerned the importation of 2,541 grams of heroin by a 25 year old offender who pleaded, showed contrition, had good prospects of rehabilitation and no prior convictions. His sentence was reduced on appeal to nine years imprisonment with a non-parole period of six years, incorporating a discount under s 16G of the Crimes Act (now repealed).
  • Johnson[34] which concerned two charges reflecting two quantities of drug imported in the one transaction: 805.2 grams of pure MDMA (a commercial quantity); and 131.7 grams of pure cocaine (a trafficable quantity). Johnson was to collect the drugs from the importer and take them to another in the chain for a fee of $2,000. The 22 year old offender was sentenced to 11 years and six months imprisonment with a non-parole period of five years and six months.
  1. I do not consider Banker to be a particularly pertinent comparative.  Banker’s involvement as a courier comprised a “convoluted travel itinerary”,[35] a lengthy period of time in which the drugs were in his exclusive and actual possession while travelling internationally and full knowledge of the importation for the duration.  Similarly, Agboti and the comparatives referred to therein also all concerned prolonged involvement and intentional participation in a plan to import drugs into Australia.  The sentence in Agboti was affected by the fact that the offender’s participation was the product of particular person circumstances of the offender, which are remote from the present case.  I accept the submissions of counsel for the respondents that the knowledge, belief and persistence of the offenders in those cases is to be contrasted with the limited findings of fact against the respondents.
  2. Of the many comparable authorities referred to at first instance and before this Court, the facts in Dao have the closest parallel to the present circumstances.  In that case, the drugs were detected in a shipment of candles from Vietnam.  The drugs (22.3 kilograms of pure methamphetamine, having a wholesale value of between $4 and $5 million and a street value of between $10 and $22 million) were removed from cartons which were then released for a “controlled delivery”.  The applicant and his co-accused travelled in a vehicle to collect the shipment and then drove in separate vehicles to the co-accused’s premises, which they then entered with the shipment.  Sounds of “banging or tapping” were heard, which were consistent with the consignment being unpacked.  On appeal the Court endorsed the correctness of the sentencing judge’s approach in “focus[ing] upon what the applicant did in committing the offence, rather than attempting to identify with any precision his particular role, function or position in any hierarchy of offending relative to other offenders” as consistent with Olbrich.[36]  The evidence indicated that the applicant’s role “extended only for a matter of hours and was limited to driving his co-offender to the rendezvous and joining with him thereafter to assist in unpacking the cartons at his premises”.
  3. While it is to be borne in mind that issues of parity featured in Dao, it remained as a useful comparative case in the appellate court’s suggestion that a proper approach was to look at what was done in the actual commission of the offence, rather than attempting to identify the offender’s place in the drug trafficking hierarchy.  Despite its limitations, Dao provided a comparator of greater factual similarity than cases such as Banker, which involved a courier bringing drugs, concealed in luggage, into the country by plane.
  4. Nor was it the only decision considered by the sentencing judge in arriving at the ultimate sentence.  Her Honour gave close attention to a number of other authorities put forward by the Crown.

Sentence imposed on Pham

  1. Pham, was sentenced on the basis that he was present in the shed for at least an hour and was involved for a couple of hours in the afternoon.  The sentencing judge proceeded on the basis that the evidence disclosed nothing more than that Pham was a willing participant in dismantling the altars, that by then he knew the altars contained a border controlled drug and that he would be paid something for his efforts.  There was no real information that Pham (and for that matter Tran) knew that the quantity involved was 33 kilograms of pure heroin.  I can see no error in characterising the involvement as low level participation, similar to that involved in Dao.
  2. As to the appellant’s suggestion that an inference should be drawn of the respondent’s involvement by prior arrangement and with knowledge of the nature of the task, counsel for Pham contended that the sentencing judge declined to draw that inference.  It was argued on behalf of counsel for Pham that the appellant was now seeking to repeat a submission made and rejected at first instance that none of the participants in the transport and dismantling activities that afternoon could afford the risk of an innocent participant belatedly discovering the presence of drugs and then informing on the others.  The remarks of the sentencing judge indicate that she did not proceed on the basis of the inference pressed.  There was no error in that approach.
  3. The sentence imposed on Pham of 12 years imprisonment with a non-parole period of seven years took into account: the gravity of his offending in attempting to possess a very large quantity of unlawfully imported drugs; that he was not aware of the quantity; and the nature of the role he played.  He could not claim the benefit of an unblemished criminal history or a plea.  The sentencing judge was required to moderate the sentence to take into account that, in his case, he had made significant factual admissions during the trial.
  4. The appellant has not demonstrated any error in the sentencing judge’s process, nor has it been shown that the sentence imposed is so out of step with any of the comparatives so as to demonstrate a misapplication of principle.  Disagreement about the result reached in weighing up the relevant factors does not render a sentence imposed as infected by error or manifestly inadequate.  There remains always a range of permissible sentences open.  I am not persuaded that the sentence imposed was outside the sound exercise of the sentencing discretion.

Sentence imposed on Tran

  1. In imposing sentence on Tran, her Honour remarked that there was no evidence that Tran would have taken possession of the heroin other than fleetingly.  Her Honour was correct in assessing his involvement as at a low level.  While the quantity of the drug here exceeded that in Banker and other authorities referred to by the appellant, the sentencing judge was correct in her approach of balancing that with Tran’s state of knowledge, which was much less than the offender in Banker.  Her Honour remarked that he only became aware that the altars contained heroin at some point in the afternoon.  He did not necessarily know the nature of the drug, the exact quantity of the drug or the exact purity.
  2. The imposition of a sentence of 10 years imprisonment with a non-parole period of six years adequately reflected the criminality and culpability attached to the respondent’s offending.  Far from being inadequate, the sentence was, given the confinements of the respondent’s culpability, a condign punishment of an offender with no criminal history who had made significant efforts towards rehabilitation.  I am unable to conclude that there was any misapplication of principle by the sentencing judge in imposing the sentence, which was well within the appropriate range.

Sentence imposed on Dang

  1. Unlike Pham and Tran, her Honour remarked in relation to Dang, that he was aware that “at least some” of the heroin was to be removed for further distribution.  His involvement was of a more serious nature.  He had a prior history but also had the benefit of a plea, albeit a late one.  Bearing in mind the gravity of his offending and the need to ameliorate the sentence to accommodate the plea, I do not consider that the sentence of 10 years imprisonment with a non-parole period fixed at five and a half years must have involved some misapplication of principle.

Conclusion

  1. No House v The King error has been demonstrated.  Accordingly, the appeals should be dismissed.

Footnotes

[1]  In respect of Pham’s sentence 1,117 days of presentence custody were declared as time served under the sentence.

[2]  In respect of Tran’s sentence 1,117 days of presentence custody were declared as time served under the sentence.

[3]  In respect of Dang’s sentence 131 days of presentence custody were declared as time served under the sentence.

[4]  (2001) 207 CLR 584 at [58].

[5]  (1936) 55 CLR 499.

[6]  As to the nature and extent of the roles and involvement of Pham and Tran, the sentencing judge made some observations concerning inferences to be made from the jury verdicts as to the knowledge of Pham and Tran which were unduly adverse to them, but in respect of which no complaint is made by any party.  This related to her Honour’s comments that the jury’s verdicts indicated that the respondents had custody or control of the contents of the altars knowing that the contents would have been illegally imported.  Since the jury were instructed that the respondents’ knowledge of the importation was not an element, the verdict was not a finding that the respondents knew that the drugs were imported.  Similarly, her Honour’s reference to the jury’s satisfaction that the respondents knew the quantity was in excess of 1.5 kilograms was an error.  The jury were instructed that this element was an issue of absolute liability, in which case the verdict did not support a finding of knowledge that a commercial quantity was involved.

[7]  [2011] NSWCCA 183.

[8]  [2014] VSCA 128.

[9]  (2000) 112 A Crim R 344.

[10]  [2003] QCA 223.

[11]  (2011) 207 A Crim R 380.

[12]  [2009] QCA 184.

[13]  [2009] QCA 184.

[14]  (1992) 63 A Crim R 402 at 417-418 per Wood J at [32].

[15]  (2001) 207 CLR 584 at 609; [2001] HCA 64 at [68]-[70].

[16]  See R v Oprea [2009] QCA 184 at [13], [15] and the cases cited by McMurdo P.

[17]  CA Nos 304 and 310 of 2015, AB at 295.

[18]Weininger v The Queen (2003) 212 CLR 629, [2003] HCA 14 at [31]-[33].

[19]  [2016] QCA 74.

[20]  (2001) 207 CLR 584 at [64].

[21]  (2015) 256 CLR 550 at [28].

[22]  (2010) 205 A Crim R 106 at 127 per Johnson J with whom MacFarlane JA and Hulme J agreed.

[23]  (2011) 31 VR 673 at [2].  (2011) 207 A Crim R 380; see also R v Lee [2007] NSWCCA 234 at [23]-[24].  Citations omitted.

[24]  (2001) 207 CLR 584 at [67].

[25]  (2001) 207 CLR 584 at [68]-[69] affirmed in R v Pham (2015) 325 ALR 400 at [35].

[26]  (1992) 63 A Crim R 402 at 417 - 418 per Wood J.

[27]  (2011) 31 VR 673 at [34].  Citing the relevant sentencing considerations for offences of drug importation set out in Nguyen & Pham (2010) 205 A Crim R 106.

[28]  [2014] QCA 280.

[29]  [2013] QCA 165.

[30]  [2010] NSWCCA 232.

[31]  [2009] NSWCCA 194.

[32]  [2004] VSCA 30.

[33]  [2004] NSWCCA 118.

[34]  (2002) 26 WAR 336.

[35]Banker at [53].

[36]Dao at [13].

Close

Editorial Notes

  • Published Case Name:

    R v Pham, Tran & Dang; Ex parte Director of Public Prosecutions (Cth)

  • Shortened Case Name:

    R v Pham, Tran & Dang; ex parte Director of Public Prosecutions (Cth)

  • MNC:

    [2017] QCA 46

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Morrison JA, Philippides JA

  • Date:

    23 Mar 2017

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment SC864/14 (No CItation) 02 Dec 2015 Date of Sentence
Appeal Determined (QCA) [2017] QCA 46 23 Mar 2017 -

Appeal Status

{solid} Appeal Determined (QCA)