Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Le v R [2022] NSWCCA 243 Hearing dates: 9 November 2022 Date of orders: 21 November 2022 Decision date: 21 November 2022 Before: Button J at [1] Fagan J at [2] R A Hulme AJ at [3] Decision: (1) Leave to appeal against sentence granted. (2) Appeal dismissed. Catchwords: CRIME – appeals – appeal against sentence – firearms and drug offences – whether judge erred in finding special circumstances and increasing balance of term of sentence – whether judge erred in taking into account offences on Forms 1 – error not established Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 44(2A) and (2B) Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) Firearms Act (1996) NSW, ss 66(1)(a) and (1)(b) Prevention of Cruelty to Animals Regulation 2012 (NSW), Sch 3 Sentencing Act 1989 (NSW), ss 5(1) and (2) Cases Cited: Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 Dolman v R [2010] NSWCCA 137 Musgrove v R [2007] NSWCCA 21; (2007) 167 A Crim R 424 Nguyen v R [2019] NSWCCA 209 R v Hampton (1998) 44 NSWLR 729 R v Moffitt (1990) 20 NSWLR 114 R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 R v Tobar; R v Jan [2004] NSWCCA 391; (2004) 150 A Crim R 104 R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 RO v R [2019] NSWCCA 183 Category: Principal judgment Parties: Thanh Tung Le (Applicant) Crown (Respondent) Representation: Counsel: Mr P English (Applicant) Ms S Traynor (Respondent) Solicitors: Simon Joyner Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2020/239974 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 25 February 2022 Before: Townsden DCJ File Number(s): 2020/239974 HEADNOTE [This headnote is not part of the judgment] Mr Thanh Tung Le sought leave to appeal against an aggregate sentence imposed in the District Court. Mr Le had pleaded guilty to two offences of possessing an unauthorised Glock pistol (one of which was also "prohibited"), an offence of supplying 51.99g of methylamphetamine and an offence of possessing a prohibited weapon, namely a cattle-prod taser. He asked that his guilt of four related offences be taken into account. Two of those offences were of possessing a defaced firearm which were founded on the fact that the Glock pistols each had their serial number erased. Leave was sought to appeal on two grounds. Ground 1 was that in finding special circumstances pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing judge erroneously increased the balance of the term of the sentence, and thereby the overall sentence, rather than reducing the non-parole period which he had first determined. Ground 2 was that the judge had erroneously taken into account the offences of possessing a defaced pistol in assessing the objective seriousness of the primary offences of possessing the pistols themselves. As to Ground 1, the Court (Button J at [1], Fagan J at [2], R A Hulme AJ at [24]-[30]) held there was no error. The judge had not first determined the non-parole period which thereafter remained immutable. The judge's statement that he "would make a finding of special circumstances and increase the additional term" was clearly intended to convey that there would be a longer additional term as a consequence of a reduction of the non-parole period. The judge had proceeded in accordance with well-known authorities including R v Moffitt (1990) 20 NSWLR 114; R v Hampton (1998) 44 NSWLR 729 at 731-2; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [18]-[73]; and R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [108]-[113]. As to Ground 2, the Court (Button J at [1], Fagan J at [2], R A Hulme AJ at [35]-[42]) held that despite some infelicity of expression, it was clear that the judge had adverted to and avoided commission of the error now asserted. The judge had proceeded in accordance with authority by taking the Form 1 offences into account only in considering the "additional need for personal deterrence and retribution" in sentencing for the primary offence: Nguyen v R [2019] NSWCCA 209 at [58]-[64]; RO v R [2019] NSWCCA 183 at [53]-[60]: Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23]; and Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]. Judgment 1. BUTTON J: I agree with R A Hulme AJ. 2. FAGAN J: I agree with R A Hulme AJ. 3. R A HULME AJ: Mr Thanh Tung Le applies for leave to appeal in respect of an aggregate sentence imposed in the District Court on 25 February 2022 by his Honour Judge Townsden. 4. The sentence was one of imprisonment for 5 years with a non-parole period of 2 years 9 months and it was in respect of four offences to which the applicant had pleaded guilty (the primary offences). He asked that his guilt in respect of a further four offences listed on Form 1 documents be taken into account. 5. The indicative sentence assessed for each offence, taking into account other offences where applicable, followed a 25% reduction on account of the applicant's early pleas of guilty. 6. Details of the offences (referenced by their court attendance notice "sequence numbers") including the maximum penalties and standard non-parole periods where applicable are set out in the following table. Seq 2: Firearms Act 1996 (NSW), s 7(1) 2 years 6 months Possess unauthorised pistol (9mm Parabellum calibre Glock Model 17 self-loading pistol) Max. penalty:14 years NPP 16 months SNPP: 4 years Form 1: Seq 22: Possess defaced firearm (9mm Parabellum calibre Glock Model 17 self-loading pistol with the serial number removed). Seq 24: Firearms Act 1996 (NSW), s 7(1) 2 years 7 months Possess unauthorised prohibited pistol (9mm Parabellum calibre Glock Model 26 self-loading pistol) Max. penalty: 14 years NPP 17 months SNPP: 4 years Form 1: Seq 26: Possess defaced firearm (9mm Parabellum calibre Glock Model 26 self-loading pistol with the serial number removed). Seq 7: Possess ammunition (9 cartridges) without licence or permit for a firearm which takes that ammunition and without being authorised to possess that ammunition by licence or permit. Seq 20: Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) 1 year 3 months Supply 51.99g of methylamphetamine Max: 15 years and/or 2000 penalty units Form 1: Seq 27: Supply 10.46g of 3,4-methylenedioxymethylamphetamine (MDMA) Seq 17: Weapons Prohibition Act 1998 (NSW), s 7(1) 18 months Possess prohibited weapon (a cattle prod taser) Max: 14 years NPP 10 months SNPP: 5 years Grounds of appeal 1. The applicant's proposed grounds of appeal are: 1. Contrary to ss 44(2A) and (2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW), when giving effect to his finding of special circumstances, the learned Sentencing Judge erred by increasing the additional term of the aggregate sentence rather than by reducing the non-parole period. 2. The learned sentencing judge erred in his assessment of the objective seriousness of the Sequence 2 and Sequence 24 offences. The offences 1. Police executed a search warrant at the home of a woman with whom the applicant was in a relationship where they found all the items which were the subject of the offences. 2. The Glock Model 17 pistol (Seq 2 and Seq 22) was found within an ottoman in the loungeroom. It was not loaded and had no magazine. It was later test fired and found to be in working order. Its serial number had been removed but the Crown acknowledged that it could not establish who had done that or when. The applicant told police the item was his and he had bought it "for fun" a couple of days ago for $2000. His DNA was found on the trigger and his partner's DNA was found on the grip. 3. A Glock magazine (with the applicant's DNA) and six cartridges were found near the laundry in a plastic container with items of clothing. The magazine was found to be a working firearm part, designed to fit a 9mm Parabellum Glock self-loading pistol capable of holding 10 x 9mm Parabellum calibre cartridges. The six cartridges (part of Seq 7) were found to be suitable for use in both of the Glock firearms that were found. 4. The Glock Model 26 pistol (Seq 24 and Seq 26) was found together with a matching clear magazine inside a loaded washing machine in the laundry. The pistol was found to be in working order, capable of being raised and fired by one hand and was within the prescribed dimensions for being a "prohibited pistol". Its serial number had been removed but again the Crown accepted that it could not be established by whom or when. The magazine found with the pistol was designed to hold 10 x 9mm Parabellum calibre cartridges. 5. A further three 9mm Parabellum calibre cartridges suitable for use in the two Glock firearms were found on the floor of the laundry (part of Seq 7). 6. The prohibited drugs were found in various packages and containers within the unit. There was a total of 51.99g of methylamphetamine (Seq 20) and 10.46g of MDMA (Seq 27). 7. Various other items found in the unit were specified in the statement of agreed facts although they were not the subject of offences for which the applicant was sentenced. They were items consistent with the premises being associated with drug supply activity. 8. The taser (Seq 17) was found in a cabinet in the living area. The applicant told police it belonged to a friend, it had been in the house for about two or three weeks and "his friend uses it for dogs". He also said that he had tried to charge it, but it did not work. Police found the item to be in working order when batteries were fitted, and it was capable of administering an electric shock on contact. It met the definition of a prohibited weapon, unless used for a purpose specified in Sch 3 of the Prevention of Cruelty to Animals Regulation 2012 (NSW). The applicant's subjective case 1. The applicant's subjective case has no bearing upon either of the grounds of appeal. Ground 1 – error of increasing the additional term of the aggregate sentence rather than reducing the non-parole period 1. This proposed ground of appeal is concerned with the following provisions of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) which are directed to a court setting the non-parole period where an aggregate sentence is being imposed: (2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence. (2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision). 1. These provisions were inserted when the concept of aggregate sentencing was introduced by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW). Sub-section (2B) mirrors the provision in s 44(2) which requires special circumstances being found before the balance of term of a single sentence may exceed one-third of the non-parole period for the sentence. It is a well-known provision; the concept of special circumstances and the constraint on the assessment of non-parole and parole periods of a sentence having been in the principal Act since it came into force on 3 April 2000, replacing a similar constraint that had been introduced from the commencement of its predecessor, the Sentencing Act 1989 (NSW). 2. There are abundant authorities pertaining to the determination of non-parole and parole periods of a sentence since this constraint of "special circumstances" has been in force, principal among them being R v Moffitt (1990) 20 NSWLR 114; R v Hampton (1998) 44 NSWLR 729 at 731-2; R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [18]-[73]; and R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [108]-[113]. 3. In the present case the sentencing judge said: [1] "I would make a finding of special circumstances and increase the additional term, having regard to the offender's remorse, early pleas of guilty, limited record, first sentence of imprisonment and need for ongoing counselling in the community upon his release." 1. Moments later his Honour announced: [2] "The offender is sentenced to an aggregate sentence of five years' imprisonment. The offender is convicted and sentenced to an aggregate non-parole period of two years and nine months and an aggregate additional term of two years and three months." 1. The applicant contends that his Honour sought to determine a non-parole period for the offences and then to "increase the additional term", so as to give effect to his finding of special circumstances. He cited R v Tobar; R v Jan [2004] NSWCCA 391; (2004) 150 A Crim R 104 at [33] [3] as authority for the (uncontroversial) proposition that the analogous provision in s 44(2) permits a reduction of the non-parole period, not an increase in the parole period. 2. The applicant contends that the judge fell into error "by determining the ratio of the non-parole period to the total term (55%) and applied that percentage by reference to a predetermined non-parole period when ordering the aggregate sentence". 3. These submissions attribute more to the judge's approach than his remarks bear out. They imply that he identified the five subjective mitigating factors that he considered constituted special circumstances (see above at [20]) and responded by imposing a longer sentence. 4. The error in R v Tobar; R v Jan was summarised briefly by Simpson J (at [33], [39]): the sentencing judge, on a finding of special circumstances, had first determined the non-parole period and then extended, erroneously, the balance of term. 5. Section 5(1) of the Sentencing Act provided that "when sentencing a person to imprisonment for an offence, a court is required (a) firstly, to set a minimum term of imprisonment … and (b) secondly, to set an additional term", with s 5(2) providing that the additional term must not exceed one-third of the minimum term unless there were special circumstances. Section 44(1) of the Crimes (Sentencing Procedure) Act initially required a court "firstly, to set the term of the sentence … and secondly, to set a non-parole period". However, with the introduction of the standard non-parole period (SNPP) regime from 1 February 2003, [4] s 44(1) reverted to the requirement to first set the non-parole period and then the balance of the term of the sentence. 6. Just as was the case in the early days of the Sentencing Act, so too in the early days following the SNPP amendments in 2003, there was confusion with some thinking that there was a requirement to first fix the non-parole period which was thereafter immutable, notwithstanding a subsequent finding of special circumstances. In the result, this was thought by some to indicate that a finding of special circumstances could only be given effect by lengthening the parole component of the sentence, not shortening the non-parole period. (For a detailed survey of the history of this confusion and its resolution, see Musgrove v R [2007] NSWCCA 21; (2007) 167 A Crim R 424 at [26]-[45] (McClellan CJ at CL)). The judgments I have referred to above (at [19]) categorically corrected the misconception. True it is that errors of approach continued for a while, but they are now very much a matter of history. My research has failed to find any case in which an error of this nature has been established since Dolman v R [2010] NSWCCA 137 where the sentencing judge erred by first determining the non-parole period and then added one-third to arrive at the overall term of the sentence: see [13]-[18]. [5] 7. There is no indication of the judge in the present case first determining the non-parole period and then enlarging the parole period because there were special circumstances. Frankly, I would be very surprised if a judge of the capability and experience of Townsden DCJ committed such a fundamental error. I also cannot understand how a judge could arrive at a sentence by first deciding how long the non-parole period should be, then deciding whether there are special circumstances, and then deciding how long the parole period should be. How can one decide how long a non-parole period should be if one does not already have in mind how long the overall term should be? While setting the overall term and the non-parole period are separate questions, the process does not involve a two-step or sequential intellectual process; they can be determined simultaneously: see R v Hampton at 732C (Spigelman CJ). 8. In my view it is abundantly clear that the sentencing judge was simply saying that because of the special circumstances he identified, the applicant would have the benefit of a parole period that would be a larger component of the aggregate sentence than it otherwise would have been. That is the obviously concomitant result of reducing the non-parole period of a sentence. Indeed, it is not uncommon to see judges say that they find special circumstances for the very reason that the offender will have a longer period on parole. 9. There is no merit in this ground. Ground 2 – error in assessment of objective seriousness of the Seq 2 and Seq 24 offences 1. This proposed ground concerns the judge's assessment of the two Glock pistol possession offences in the following passage of his sentencing remarks. It appears in the context of his Honour providing reasons for his assessment of the objective seriousness of each of the offences. [6] "Both firearms were defaced, however, the offender has admitted his guilt in respect to the specific offences which have been placed on Form 1 schedules and I am mindful that the Court must avoid double counting – although, I would accept the offence of defacing the firearm is an important aspect of the assessment of objective seriousness. I would increase the sentence when considering the Form 1 offence individually. The firearms are possessed in the context of the possession of prohibited drugs for supply. The Crown has accepted that there is no evidence the offender defaced the relevant firearm." 1. The applicant had asked the judge to take into account when sentencing for each of the offences involving possession of the Glock pistols his guilt in respect of two offences concerned with their defacement (Seq 22 and Seq 26). He contended that this did not permit the judge when assessing the objective seriousness of the offences of possessing the pistols to take into account that he had admitted guilt of possessing them in a defaced state, contrary to s 66(1)(b) of the Firearms Act (1996) NSW, or that he was complicit in the act of defacing them, an offence contrary to s 66(1)(a) of that Act. 2. The applicant made alternative submissions. First, if his Honour's reference to the "offence of defacing the firearm" was to the offence of possessing a defaced firearm, then despite saying he was mindful to avoid double counting, he must have taken into account the admission of guilt of possessing defaced firearms when assessing the objective seriousness of the pistol possession offences. Counsel qualified this submission by saying the suggested error was "unlikely". 3. In the alternative, it was submitted that it is "most likely" that despite "noting the Crown concession that there was no evidence that the applicant defaced the two firearms, if his Honour took into account the fact that separate offences may have been committed on a different occasion involving the physical act of defacing the firearms … that was an irrelevant consideration for the purposes of determining the objective seriousness of the respective index offences". 4. I am not satisfied that either the "unlikely" or the "most likely" errors are established. 5. The fact that offences listed on a Form 1 document play no part in the assessment of the objective seriousness of the primary offence was discussed and explained by Johnson J in Nguyen v R [2019] NSWCCA 209 at [58]-[64], including reference to the judgment of Beech-Jones J (as his Honour then was) in RO v R [2019] NSWCCA 183 at [53]-[60]. The correct use of offences listed on a Form 1 is that they may result in an increase in the sentence for the primary offence because it is necessary to reflect the "additional need for personal deterrence and retribution": Abbas, Bodiotis, Taleb and Amount v R [2013] NSWCCA 115; (2013) 231 A Crim R 413 at [22]-[23]; Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518 at [42]. 6. The sentencing judge was clearly mindful of the need to avoid double counting given he expressly said so. He also expressly mentioned the Crown concession that there was no evidence the applicant defaced the firearms. He cannot be taken literally to have meant that he was taking into account in the assessment of the objective seriousness of the pistol possession offences that the applicant defaced them at the same time as saying that the Crown had conceded that there was no evidence the applicant did so. I can only construe what his Honour said as being an acknowledgment of the need to avoid falling into the type of error for which the applicant now contends. 7. As the Crown submits, it appears that his Honour avoided error in the assessment of objective seriousness of the pistol possession offences by putting aside they were defaced because it was necessary that that aspect be part of the process of taking the Form 1 offences into account. That is, he confined himself to taking into account the defaced state of the pistols in his assessment of the degree to which the offences taken into account should result in an increase in the sentence for the primary offence in accordance with the relevant authorities (see above at [36]). [7] 8. There is a degree of infelicity of expression in the reasons (and perhaps punctuation in the transcript [8] ). For example, his Honour's reference to "the offence of defacing the firearm" was clearly a shorthand reference to the offences on the Form 1 documents, namely "possessing a defaced firearm". It cannot be the case that his Honour was referring to the act of defacement given the Crown's concession that it was unknown who was responsible or when that occurred. Further, the statement, "I would accept the offence of defacing the firearm is an important aspect of the assessment of objective seriousness" was not an expression of what his Honour did. It was an acknowledgement of a submission made by the Crown that this was the first of two alternative ways his Honour could take the "defaced firearm offences into account". I am satisfied that he opted for the alternative (and correct) approach. 9. Accordingly, rather than taking into account uncharged guilt of offences of defacing firearms, or taking into account as part of the objective seriousness of the pistol possession offences that they were defaced, I am satisfied that the judge's approach was clearly indicated by him saying, "I would increase the sentence when considering the Form 1 offence individually". 10. Infelicities of expression sometimes occur in sentencing remarks. They are not drafted with the precision of a parliamentary drafter. Counsel for the applicant made the point at the hearing that this was not a judgment delivered immediately upon the conclusion of the sentence hearing in which case some allowance for infelicities sometimes made. However, with their notoriously heavy workload, judges of the District Court sometimes do not have the time, let alone the resources, to have even their reserved judgments drafted, proofread, and scrutinised minutely for error before delivery. 11. I am not persuaded that either of the errors for which the applicant contended in fact occurred. 12. In conclusion I make the following observation. The judge recited a number of factors relevant to the objective seriousness of the offences before announcing that the possession of the Glock Model 17 was "at the midrange for offences of this type" and because the Glock Model 26 "involved possession of a pistol with short dimensions, making it a prohibited weapon due to its capacity for concealment" it was "slightly above the midrange". These findings were an appropriate assessment of the gravity of offences involving the possession of two handguns together with suitable ammunition and in the context of drug supply activity. The applicant did not challenge these assessments or seek any different finding in the event the Court was persuaded to consider resentencing. Orders 1. I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal dismissed. ********** Endnotes 1. Remarks on sentence (ROS) p11 2. ROS p12 3. Two other cases were also cited, namely Martin v R [2012] NSWCCA 253 at [44] and R v Suaalii [2005] NSWCCA 206 at [25], but they simply acknowledge what was said in R v Tobar; R v Jan. 4. By the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (NSW) 5. The judge first announced a sentence of 3 years with a non-parole period of 2 years and 6 months. He then realised it failed to conform with the "statutory ratio", so he increased the sentence to 3 years and 4 months. 6. ROS p10 7. Crown written submissions at [39]-[40] 8. In the extract above at [31] it appears possible that his Honour intended the words appearing after the hyphen in the first sentence to be the beginning of the next sentence and inadvertently omitted to correct this when revising the transcript. Nevertheless, this Court must determine the matter based upon the transcript as is. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 November 2022