R v Tran[2022] QCA 116

SUPREME COURT OF QUEENSLAND

1. [1]
   McMURDO JA:  I agree with Flanagan J.
2. [2]
   BOND JA:  I agree with the reasons for judgment of Flanagan J and with the order proposed by his Honour.
3. [3]
   FLANAGAN J:  By his pleas of guilty on 5 November 2021, the applicant was convicted of one count of trafficking in dangerous drugs, one count of trafficking in the dangerous drug cannabis, both for the period 12 February 2016 to 11 June 2016, and one count that on 10 June 2016 he unlawfully produced dangerous drugs.  The applicant was sentenced on 9 December 2021 with a co-offender, Vu Phi Nguyen, who pleaded guilty to one count of trafficking in dangerous drugs and one count of trafficking in the dangerous drug cannabis, both for the period 2 March 2016 to 11 June 2016.
4. [4]
   For the count of trafficking in dangerous drugs the applicant was sentenced to 10 years imprisonment, to be served concurrently with two three-year sentences for the counts of trafficking in cannabis and producing dangerous drugs.  Two thousand and eight days were declared as time served under the sentence.  Nguyen was sentenced to seven years imprisonment for the count of trafficking in dangerous drugs and three years to be served concurrently for the trafficking in cannabis.  Two hundred and sixty-nine days were declared as time served under the sentence.  A parole eligibility date was fixed at 14 March 2023, which was effectively two years from when Nguyen was taken into custody.
5. [5]
   The applicant seeks leave to appeal against his sentence on three grounds, namely that the learned sentencing judge:

1.  failed to resolve factual disputes and/or matters of importance, relevant to sentence.

2.  erred in placing undue emphasis on the applicant’s previous convictions.

3.  erred in imposing a sentence that offends the parity principle.

Circumstances of the offences

6. [6]
   The sentencing proceeded on the basis of an agreed statement of facts.
7. [7]
   The applicant assisted Nhen Hong Doan to run a sophisticated wholesale trafficking business in methylamphetamine, cocaine, MDMA, heroin, PMAA and cannabis.
8. [8]
   The applicant operated at a mid-level within the syndicate.  While he was subordinate to Doan, the applicant was superior to the other three syndicate members including the co-offender Nguyen.  The applicant acted independently in some business dealings, supervised and provided advice on matters relating to drug production and arranged for a courier to conduct supplies.  He had very limited involvement in the cannabis aspect of Doan’s business and his role in this respect was limited to two discrete supplies.
9. [9]
   The applicant was involved in Doan’s syndicate for approximately four months while Nguyen’s involvement was for approximately three months.  The syndicate used five safe houses to store the drugs they trafficked.  The applicant was not directly linked to all of these locations.  At times the syndicate moved their entire stockpile from one safe house to another.  They used hire cars to transport drugs between safe houses or to customers and used encrypted BlackBerrys to communicate with the syndicate’s customers to avoid detection by police.
10. [10]
    Doan and the applicant spoke to each other, as well as the other three participants, almost every day.  Doan also spoke to customers almost every day.
11. [11]
    Customers would sometimes contact Doan or the applicant and other times the other three participants.  In either case Doan, or occasionally the applicant, would determine which drugs would be supplied to the customer and who was to make the delivery.  The trafficking in schedule 1 drugs involved:

    1. (a)
       the production of schedule 1 drugs using chemical processes, evidenced by the presence of glassware and instructions for the production of MDMA, PMA, PMMA, MDA and methylamphetamine found on 10 June 2016.  The amount of iodine located was sufficient to produce 10.03 kilograms of methylamphetamine if used fully.
    2. (b)
       the sale of wholesale quantities of drugs to customers on a daily or almost daily basis.
    3. (c)
       the applicant being directly involved in two supplies of schedule 1 drugs, one on 26 April 2016 of two ounces of methylamphetamine for $8,000 and one on 3 May 2016 which the applicant arranged through another participant, being one ounce of methylamphetamine for $4,000.
    4. (d)
       The possession of significant quantities of schedule 1 drugs which were located at the safe house at 623 Beatty Road, Acacia Ridge, in the course of the police search on 10 June 2016.  This included 1.490 kilograms of pure cocaine, 956.38 grams of pure methylamphetamine, 854.30 grams of pure MDMA and 69.95 grams of pure heroin.  The total value of the schedule 1 drugs located was in the vicinity of $593,760 to $879,760.
12. [12]
    The applicant was sentenced on the basis that he was generally aware that there were various quantities of dangerous drugs and drug-related items at the Beatty Road house, although his knowledge did not extend to the specific quantities of drugs stored at this location.  He was however, aware of all the production equipment, glassware, chemicals and instructions at the house.  The applicant was present when police conducted the search.
13. [13]
    The applicant’s limited involvement in the cannabis aspect of Doan’s business involved him arranging the supply of a sample of 500 grams of cannabis through another participant on 24 March 2016 and supplying two pounds of cannabis for $3,800 on 26 April 2016, again through another participant in the syndicate.
14. [14]
    The trafficking of all the drugs was for a commercial purpose and intended to turn a profit.  When police searched the Beatty Road house they located $67,000 in cash.
15. [15]
    Doan and the applicant would liaise about:

    1. (a)
       matters relating to drug production, including the location and sourcing of chemicals.  This is consistent with Doan and the applicant being observed together at a hydroponics store on 18 February 2016, and later at a hardware store where they purchased five buckets and paint stripper;
    2. (b)
       the quality of dangerous drugs they had sourced;
    3. (c)
       customers;
    4. (d)
       the movement of drugs between each other; and
    5. (e)
       the collection of money and setting up ongoing supplies.
16. [16]
    The applicant’s role extended to producing synthetic drugs, methylamphetamine and PMMA.  He communicated with numerous people involved in Doan’s syndicate and on occasion provided them with directions.  An example of this is that on 14 April 2016 the applicant directed a courier to book a flight and to bring $84,000 to him.  The applicant would also deal directly with customers.  He was also a party to discussions about setting up an ongoing source for drugs.  He offered to source “80” per month ($80,000) for five months.
17. [17]
    The applicant was arrested on 10 June 2016 at the time of the search of the Beatty Road house.  He did not participate in an interview with police.
18. [18]
    The applicant was 38 years of age at the time of the offending and had a criminal history which is discussed below.
19. [19]
    While the agreed statement of facts referred to the applicant’s role being equivalent to “middle management”, the Crown in oral submissions before the learned sentencing judge described the applicant’s role as follows:

“… [H]is role is one of what’s been categorised by the Crown as middle management or senior management.  He is, effectively, someone who was able to operate independently, able to give directions to others, but did, when push comes to shove, operate a position subservient to [Doan], who has already been sentenced in relation to this enterprise.”^[1]

20. [20]
    The Crown’s description of the applicant’s role was not disputed.^[2]
21. [21]
    Nguyen was 22 years of age at the time of the offending.  He worked for Doan arranging drug deals with customers, introducing customers to the syndicate and acting as a courier for Doan.  He participated in the syndicate on a daily basis, at times doing multiple supplies to customers in the one day.  He acted as a conduit between customers and Doan to facilitate drug supplies on behalf of the syndicate.  Under the direction of Doan, Nguyen looked after future supplies for some customers.  He would collect or hold money on behalf of the syndicate awaiting collection by Doan.  He would collect money from customers for sales in advance and source the drugs from Doan.  He would follow up debts with customers, as well as source drugs for purchase by the syndicate.  He obtained methylamphetamine from Doan for the applicant to supply to customers.  Nguyen was involved in keeping notes of the business debts and customers and on direction from Doan would collect drugs from the syndicate’s various safe houses.  He also assisted in at least 21 supplies of schedule 1 drugs and at least 18 supplies of cannabis.
22. [22]
    Before the learned sentencing judge, counsel for the applicant, while accepting the applicant’s role as “middle management”, sought to clarify the applicant’s role by reference to the following matters:

“1. The Applicant was involved in collecting materials for drug production for Doan;

2. The evidence demonstrated the Applicant was directly involved in two transactions of supplying methylamphetamine in quantities of one and two ounces respectively;

3. The Applicant was aware of the existence of drugs at the safe house in which he was located although his knowledge did not extend to the specific quantities of drugs;

4. Doan pleaded guilty to possession of the drugs found in the safehouse;

5. There were five safe houses under Doan’s control.  The Applicant was not directly involved in the safe houses other than the one in which he was located;

6. The Applicant had limited involvement in Doan’s trade in cannabis;

7. The collection of $84,000 was done on Doan’s behalf.”^[3]

The sentencing remarks

23. [23]
    The learned sentencing judge accepted the applicant’s pleas of guilty as representing significant co-operation with the administration of justice and noted that the applicant should receive the benefit of that co-operation.  His Honour described the applicant’s offending and role in the syndicate as follows:

“Your offending involves serious offending and trafficking in dangerous drugs.  Whilst the time period involved was a period of four months, your involvement in the trafficking was intense, persistent, and in circumstances where I am satisfied you were at an upper echelon of the drug trafficking operation, which I accept was Mr Doan’s drug trafficking operation.

That drug trafficking operation was a sophisticated trafficking operation involving wholesale trafficking in a multitude of drugs.  One of those drugs was cannabis.  I accept your involvement in the cannabis side of the business was much more limited.

It has been submitted on your behalf that, in fact, your involvement is a relatively limited involvement.  I do not accept that.  Your involvement was across most areas of the business.  It included producing.  It included arranging for supplies.  It included communicating with people in relation to the transfer of moneys including some $84,000 when you on 16 April 2016 directed a courier to book a flight and bring $84,000 to him.  You, on occasions, directly dealt with customers and you were party to discussions about the ongoing source of drugs.  That is properly to be seen as a person who was in the upper management of a sophisticated wholesale trafficking operation.

As the authorities have said, there is not a lot of point, often, in putting a description to what a particular person was, whether they were a manager, or a courier, or a runner.  It is a question of what you actually did, and, in your case, I am satisfied you were intimately involved in most of the activities associated with this sophisticated wholesale trafficking business.  In coming to an appropriate penalty I have regard to those circumstances.  I have regard to the fact that it was not your trafficking business.”^[4]

24. [24]
    His Honour emphasised that the applicant was to be sentenced on the basis of the statement of agreed facts, including the fact that it was Doan’s operation and that the applicant was operating at a mid-level stage within the syndicate.
25. [25]
    In sentencing the applicant to 10 years imprisonment his Honour observed:

“Your involvement in this drug trafficking operation was of such a magnitude that even allowing for your pleas of guilty and your personal circumstances, you ought to receive a sentence in excess of 10 years imprisonment.”^[5]

26. [26]
    His Honour referred to the applicant’s criminal history which disclosed five appearances between 1999 and 2016 primarily in the Magistrates Court.  Relevantly however, the applicant was sentenced in the Supreme Court on 21 September 1999 for trafficking in heroin for which he was sentenced to seven years imprisonment with parole eligibility after two and a-half years.  The applicant was 20 years of age at the time.  The trafficking involved multiple sales totalling 23 grams of pure heroin for $10,900 to an undercover police officer.  It was offending on a commercial basis.  His Honour noted that this previous term of imprisonment did not deter the applicant.  His Honour did not consider that the applicant’s prospects were good because, despite having been sent to jail for a lengthy period for previous trafficking in dangerous drugs, the applicant had reverted to similar conduct.  His Honour therefore considered that any sentence should not only indicate the denunciation of the community for the applicant’s criminal conduct, it should also deter others from committing a similar offence in the future.
27. [27]
    In relation to Nguyen, his Honour accepted that his pleas of guilty constituted a significant co-operation with the administration of justice.  His Honour accepted that Nguyen’s involvement in the syndicate was at a lesser level.  Nguyen did, however, have extensive involvement at that lesser level and was a conduit between customers and the syndicate.  He facilitated supplies, collected money and followed up debts.  He was also involved in sourcing drugs and moving stockpiles of drugs.  His Honour noted that Nguyen was also involved in the cannabis part of the syndicate in a more significant way, assisting in at least 18 supplies of cannabis.
28. [28]
    In sentencing Nguyen his Honour noted that he was only 22 years of age at the time of the offending and did not have any prior criminal history.  He was therefore to be sentenced on the basis that he was a youthful first offender.  His Honour further took into account that as Nguyen was not an Australian citizen, he would suffer the consequence of deportation once he had completed his sentence.  This constituted a hardship given the time that he had already spent in Australia and the fact that his close family resided in Australia.

Ground 1 – the learned judge failed to resolve factual disputes and/or matters of importance relevant to sentence

29. [29]
    The applicant submits that his Honour’s description of the applicant’s role in the trafficking business, as set out at [21] above, could not be inferred from the agreed statement of facts.  In particular, his Honour did not accept that the applicant’s involvement was “relatively limited” and concluded that the applicant was “intimately involved in most of the activities associated with a sophisticated wholesale trafficking business”.  By reference to R v Hilton^[6] the applicant further submits as follows:

“Where there are competing inferences to be drawn, it is necessary to have regard to the seriousness of making findings where a sentence of 10 years was within contemplation.  Those circumstances required ‘a resolution of competing inferences’, that is, the inference contended for by the applicant and seemingly accepted by the Crown and, the inference accepted by the court.  The failure to resolve them constituted an error.”

30. [30]
    In oral submissions before this Court, counsel for the applicant sought to identify the applicant’s limited involvement in the trafficking business by reference to the production count, which only alleged the applicant being involved in unlawfully producing dangerous drugs on a particular date, namely 10 June 2016.
31. [31]
    These submissions should not be accepted, primarily because the learned sentencing judge was not required to resolve competing inferences nor was his Honour bound to accept the applicant’s categorisation of his role in the trafficking business.^[7]  His Honour’s description of the applicant’s role was wholly consistent with the agreed statement of facts and the Crown’s description of the applicant’s role.  As his Honour correctly recognised, the relevant consideration is not how the applicant’s role was described but rather, a consideration of what the applicant actually did.  In describing the applicant’s actions, his Honour was cognisant of the fact that it was Doan’s trafficking business.  From the agreed statement of facts, his Honour identified that the applicant’s involvement was across most areas of the business, including producing, arranging for supplies and communicating in relation to the transfer of monies.  His role extended to directly dealing with customers and being a party to discussions about the ongoing source of drugs.  Doan ran his business with the assistance of the applicant who, while subordinate to Doan, was superior to the other three participants.  The applicant acted independently in some business dealings and supervised and provided advice on matters relating to drug production.  This production involved schedule 1 drugs using chemical processes, which was evidenced not only by the presence of glassware and instructions for the production of various drugs found at the Beatty Road house, but also by Doan and the applicant being observed together at a hydroponic store on 18 February 2016 and later at a hardware store.  Doan and the applicant would liaise about matters relating to drug production.
32. [32]
    The applicant’s reliance on R v Hilton does not assist as the sentence under consideration in that case did not proceed on the basis of an agreed statement of facts.

Ground 2 – the sentencing judge erred in placing undue emphasis on the applicant’s previous convictions

33. [33]
    Counsel for the applicant submitted before the learned sentencing judge that, when released from prison in 2002 for his previous trafficking conviction, the applicant had abstained from drugs and did not relapse until 2015 following a financial reversal.  His relapse led to him becoming a purchaser of drugs from Doan, before Doan recruited him into his business.  The applicant therefore had no convictions for drug offences after his release from jail until 2015.  In the intervening period the applicant had worked consistently and established a successful business.  The applicant submits that his Honour, by considering that the applicant’s prospects were not good, placed undue weight on the applicant’s previous convictions.  In support of this submission, the applicant referred to Veen v The Queen [No 2]:^[8]

“… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is so disproportionate to the gravity of the instant offence.  To do so would be to impose a fresh penalty for past offences ...”

34. [34]
    This ground is without substance.  His Honour’s consideration of the applicant’s criminal history in the sentencing remarks is set out in [24] above.  Section 9(10) of the Penalties and Sentences Act 1992 (Qld) provides:

“In determining the appropriate sentence for an offender who has 1 or more previous convictions, the court must treat each previous conviction as an aggravating factor if the court considers that it can reasonably be treated as such having regard to –

1. (a)
   the nature of the previous conviction and its relevance to the current offence; and

2. (b)
   the time that has elapsed since the conviction.”

35. [35]
    The relevance of the previous conviction for trafficking was that, although the applicant was only 20 years of age at the time, a significant sentence of seven years had been imposed.  This sentence did not deter the applicant engaging in similar serious criminal conduct in 2016.  His Honour correctly identified that in those circumstances the applicant’s prospects were not good and there was a need for general deterrence.
36. [36]
    There is nothing in his Honour’s consideration of the applicant’s criminal history that would suggest that his Honour gave it “such weight as to lead to the imposition of a penalty which is disproportionate to the gravity” of the offences for which the applicant was being sentenced.

Ground 3 – the learned sentencing judge erred in imposing a sentence that offends the parity principle

37. [37]
    The applicant submits that the effect of the sentences imposed by the learned sentencing judge on him and Nguyen is that the applicant will spend four times longer in custody.  He submits that the application of the parity principle ought to have resulted in the imposition of a sentence under 10 years.  The parity principle ordinarily requires that like offenders should be treated in a like manner.  It allows, however, “for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances”.^[9]  The parity principle was recently considered by Applegarth J in R v Smith^[10] where his Honour observed:

“If other things are equal, persons who have been parties to the same offence or have committed offences arising out of the same criminal enterprise should receive the same sentence.  Other things, however, are rarely equal.  Matters such as age, background, criminal history, general character and the part that each offender played in the relevant criminal conduct or enterprise have to be taken into account.”

38. [38]
    As conceded by the applicant, there were important distinctions between him and Nguyen.  Nguyen was sentenced on the basis that he was a youthful first offender.  He was only 22 years of age at the time of the offending and did not have any prior criminal history.  He would also suffer the consequence of deportation once he had completed his sentence.
39. [39]
    Importantly, Nguyen was sentenced on the basis that his involvement in the syndicate was at a lesser level than that of the applicant.  He occupied a position subordinate to the applicant.  Unlike the applicant, Nguyen did not act independently in some business dealings and was not involved in supervising and providing advice on matters relating to drug production.  Nor was Nguyen a party to discussions about setting up an ongoing source for drugs.  Nguyen did not hold any managerial role but only operated under the direction of either Doan or the applicant.^[11]  The applicant was also involved in the syndicate for approximately one month longer than Nguyen.  His Honour took into consideration that Nguyen had a more significant involvement in the supply of cannabis than the applicant.  When these factors are taken into account, the applicant’s submission that the application of the parity principle ought to have resulted in a sentence below 10 years cannot be accepted.

Disposition

40. [40]
    Leave to appeal against sentence should be refused.