R v Truong & Nguyen[2001] QCA 98

COURT OF APPEAL

McMURDO P

McPHERSON JA

BYRNE J

BRISBANE

DATE 15/03/2001

JUDGMENT

THE PRESIDENT:  On 13 October 2000, the applicant Nguyen pleaded guilty to one count of trafficking in a dangerous drug heroin, one count of possession of heroin in excess of two grams and two counts of possession of money obtained from trafficking.  She was sentenced to eight years' imprisonment on the count of trafficking, 59 days in pre-sentence custody was declared to be time served under the sentence.  There was no early recommendation for parole but no declaration was made under Part 9A of the Penalties and Sentences Act 1992.

The applicant Truong pleaded guilty to one count of trafficking in a dangerous drug, heroin, two counts of possession of a dangerous drug, heroin, in excess of two grams and two counts of possession of a sum of money obtained from trafficking.  Truong was sentenced to 18 years' imprisonment.  The provisions of s.161B of the Penalties and Sentences Act 1992 have automatic application.  It seems that this was the highest sentence imposed for trafficking since the provisions of Part 9A of the Penalties and Sentences Act 1992 have come into force.

Both applicants claim the sentences imposed were manifestly excessive.  The maximum sentence for trafficking in heroin is 25 years' imprisonment. 

Truong trafficked in heroin from September 1998 to August 1999.  The first particular of the trafficking was that on 10 September 1998 he sold to an undercover police officer at the Hamilton Hotel car park eight small packets of heroin for $900.  The packets contained 1.576 grams of powder of which 1.170 grams was pure, 74 per cent.  A week later the same undercover police officer purchased four foils of heroin for $450 from the applicant.  The foils contained 8.861 grams of powder of which .565 grams was pure, 65 per cent.  On a further four occasions between 21 January 1999 and 18 February 1999, the applicant sold another undercover police officer in the Darra area 28 grams of heroin for $8400 with a purity of about 55 per cent. 

Police then lost contact with Truong until 2 July 1999 when they received information about suspected drug activity at a South Brisbane motel.  A vehicle being used by Truong and Nguyen was searched and the police located .42 grams of heroin with a purity of 70 per cent and a mobile phone.

A search of the applicants' motel unit located heroin powder weighing 34.572 grams of which 24.231 grams was pure,  $109,659.30 cash was also located together with business cards which contained the applicants' phone number.  The cash was hidden in various locations around the unit.  Included amongst the property found was $445 in David Jones gift vouchers, a poignant reminder of the horrors of the drug trade, most probably a gift from friends or relatives of some heroin addict who purchased drugs from one or other of the applicants.  Clipseal bags, scales, a face mask and other paraphernalia concerned in the trafficking were also located in the unit.

The applicants were arrested that day and bail was refused.  On 20 August, police received confidential information and searched a garden bed near the stairwell of the motel where they located a wrapped package.  The applicants' fingerprints were located on the package, which contained 341.6 grams of heroin of which 230.418 grams was pure, 67.5 per cent.

Police also located a glass jar in the corner of the garden with a number of clipseal plastic bags containing a quantity of white rock substance weighing 12.981 grams of which 8.944 grams was pure.  The applicant Nguyen was not involved or charged with this heroin.  A search of the applicants' residence in Yeronga revealed a glass jar buried in the garden containing $10,000 cash.

The street value of the powder and rock heroin found was estimated by a police officer to be in the vicinity of $800,000.  Large amounts of heroin, money and other paraphernalia located suggests that Truong at least was involved both as a wholesaler and as a street dealer of quarter gram amounts.

Nguyen is 25 years old; she was 23 at the time of the offences and 24 at sentence.  She had no prior convictions.  The period of her trafficking, only 10 days, covered a much shorter period than that of Truong.   

Truong had one prior conviction for possession of heroin which was dealt with in the Magistrates Court. 

The learned sentencing Judge accepted that Nguyen became involved in heroin and drug trafficking through her association with Truong and referred to her real prospects of rehabilitation.

Both Nguyen and Truong were drug users, but it was plain their involvement in drug trafficking went far beyond their own needs.  Both applicants spent 50 days on remand for these offences only, but each spent additional periods in custody on remand, both on these charges and for the additional charge allegedly committed whilst on bail of attempted fraud.  The periods were, in Nguyen's case, 169 days, and in Truong's case, 248 days.  The respondent has today informed the Court that a nolle prosequi has since been entered in respect of that offence of attempted fraud.

The applicant Nguyen was cooperative with police and made admissions, although the case against both applicants was strong.  Further information was detected through thorough police investigation rather than completely full and frank admissions on behalf of the applicants.  Each applicant pleaded guilty at an early stage.

The learned sentencing Judge was conscious of the period that the applicants had spent in custody not solely in respect of these offences, and indicated both during argument and in his sentencing remarks that he would take that period into account in determining the appropriate sentence.  His Honour did not, however, make it clear in his sentencing remarks the extent to which he did this.

Truong was 31 years old at sentence and 29 at the time he committed the offences.  His involvement in these offences was far more serious than that of Nguyen and his trafficking extended over a much longer period.

The learned primary Judge, who is very experienced in these matters, described Truong's offending as constituting a most serious case of trafficking over a lengthy period in large quantities of high grade heroin for very substantial profits, and is one of the worst of these cases that he had seen.  The crime, despite the mitigating factors, namely the plea of guilty and the period spent in custody, called for a significant deterrent sentence at the higher end of the range.  As has been noted, the maximum term of imprisonment is 25 years.

The primary Judge took the notional starting point as a   sentence in Truong's case of 20 years.  Such a starting point, in my view, is supported by the case of R v. Puscas, CA No 81 of 1993, 15 July 1994.

Counsel for the applicant Truong submits that a comparison between this case and the case of R v. Nguyen, CA No 151 of 1999, 9 July 1999, does not support a notional starting point of 20 years' imprisonment.  Nguyen was an application for leave to appeal against sentence, primarily argued on the basis that the learned sentencing Judge was not aware that the provisions of Part 9A of the Penalties and Sentences Act 1992 would apply automatically to sentences of imprisonment of 10 years or more.  That argument was rejected.

This Court found, however, there had been an error in appropriately calculating pre-sentence custody and therefore it was necessary to re-sentence.  This Court accepted the primary Judge's starting point in that case of a 16 year notional sentence as one about which there could be no fair complaint.  It does not of course indicate that 16 years was the only appropriate sentence, merely that it was within an appropriate range.  Nguyen does not establish that the starting point of a notional sentence of 20 years imprisonment on the facts of this case was manifestly excessive. 

The question then becomes whether the learned sentencing Judge, in discounting the 20 year sentence by two years as he did, sufficiently recognised the mitigating factors of the plea of guilty and the substantial period spent in custody which could not be the subject of a declaration under s.161 Penalties and Sentences Act 1992.

In my view his Honour did not; an appropriate discount for the plea of guilty and the period spent in custody in Truong's case was four years' imprisonment.  I would substitute a sentence of 16 years' imprisonment for the 18 years imposed in respect of Truong.

Turning to Nguyen's case, whilst the sentence imposed upon her was not lenient, the facts of the offences placed them in a serious category, although her involvement, as has been noted, was much less than that of Truong.  Giving appropriate weight to the mitigating circumstances, a review of comparable sentences does not suggest that the notional  starting point sentence adopted by the learned sentencing Judge of 10 years' imprisonment was inappropriate.

Again the question is whether the learned sentencing Judge gave sufficient discount in the two years that he allowed for the additional period spent in custody by Nguyen and for her plea of guilty, cooperation, and also in her case, her youth.

In my view his Honour did not, especially bearing in mind the sentence imposed on her co-accused Truong and principles of proportionality.  A discount of three years was appropriate in her case.  I would substitute a sentence of seven years' imprisonment for the eight years' imprisonment imposed by the learned sentencing Judge.

I would allow both applications for leave to appeal against sentence, allow the appeals, vacate the sentences imposed below and in Nguyen's case, I would substitute a sentence of seven years' imprisonment and in Truong's case I would substitute a sentence of 16 years' imprisonment.

McPHERSON JA:  I agree.  I would only add that I do not regard R v. Nguyen as a case in which a 16 year sentence was established in this Court as the appropriate level of head sentence in cases of this kind.

BYRNE J:  I agree with the President and with Mr Justice McPherson.

THE PRESIDENT:  The orders are as I have proposed.