New South Wales Court of Criminal Appeal CITATION : R v Nguyen [2000] NSWCCA 547 FILE NUMBER(S) : CCA 60687/99 HEARING DATE(S) : 8/12/00 JUDGMENT DATE : 8 December 2000 PARTIES : Regina James Nguyen JUDGMENT OF : Dowd J at 1; Howie J at 42 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0344 LOWER COURT JUDICIAL Gibson DCJ OFFICER : COUNSEL : LMB Lamprati- Crown L Flannery- Appellant SOLICITORS : SE O'Connor- Crown DJ Humphreys- Appellant CATCHWORDS : Criminal Law - Appeal against severity of sentence - Heroin supply - Parity - No justifiable sense of grievance - No special circumstances LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 Sentencing Act 1989 Phelan (1993) 66 A Crim R 446. CASES CITED: R v Hauser (Unreported, NSWCCA, 11 December 1997, Gleeson CJ, Dunford and Barr JJ). R v Luong [2000] NSWCCA 139. DECISION : 1. Leave Granted; 2. Appeal Dismissed. IN THE COURT OF CRIMINAL APPEAL DOWD J HOWIE J 60687/99 8 DECEMBER 2000 REGINA v JAMES NGUYEN JUDGMENT 1 DOWD J: This is an application for leave to appeal against the severity of the sentence imposed on the applicant, James Nguyen, also known as Sang Duc Nguyen, who had entered a plea of guilty before Gibson DCJ at the Penrith District Court on 15 October 1999, to a charge under s25 of the Drug Misuse and Trafficking Act 1985, for supplying a commercial quantity of a prohibited drug, being heroin. The maximum penalty is twenty years imprisonment. 2 On 15 October 1999, the applicant was sentenced to six years imprisonment, to be served by way of a minimum term of four and a half years to commence on 14 January 1999, being the date that he was arrested, and to expire on 13 July 2003. An additional term of eighteen months was imposed to commence on 14 July 2003, upon which date the applicant would be eligible to apply for parole. 3 The facts are that on 14 January 1999, as the applicant and his wife, Loan Phuong Luong, were travelling from Melbourne to Sydney in a hired car, they were stopped by police on the Hume Highway at Bowna. At the time, the applicant was driving and his wife was a passenger. 4 A police officer carried out a breathalyser test on the applicant, and asked him where they had been travelling from. When spoken to, both the applicant and his wife appeared nervous. The police then asked to view a few items contained in the vehicle, whereupon the applicant produced to the police a lady's handbag which contained a large amount of money. The applicant informed the police that there was some $12,000 in the bag. 5 At the time, the police noticed that part of the rear floor carpet in the vehicle was not fitted correctly. The police then found a set of electronic scales inside the lady's handbag. 6 Both the applicant and his wife left the car and began speaking to each other in a foreign language unknown to the police. They were soon separated from one another, and further police were summoned to the location. 7 A short time later, the hire car was searched by police in the presence of both the applicant and his wife. The police lifted the rear seat of the vehicle, and located a plastic bag. Inside the bag, the police located a rectangular yellow-coloured block substance. The police also found a potato chip bag that contained several blocks of a light, white rock substance, wrapped in clear plastic bags. 8 Both the applicant and his wife were placed under arrest, and were taken to the Albury Police Station, as was the vehicle in which they were travelling. 9 The police removed the white rock substances from the chip packet at the police station and saw that there were thirteen packages. A field test was then conducted by police on one of the packages, and it was found to produce an immediate reaction. The thirteen white packages and the yellow block package were then weighed and sealed in drug bags. Police also located the money in the vehicle and found that it totalled $13,006. 10 The applicant was later interviewed regarding the items that were located in the vehicle, a Vietnamese interpreter being present. The applicant denied having any knowledge of the yellow rectangular package or the thirteen white block packages that the police had located in the vehicle. However, he indicated his intention to plead guilty shortly after his arrest. 11 During the interview, the applicant stated that he had won the $13,000 in the Melbourne Casino prior to travelling to Sydney. Although he was unable to remember how much money he had actually won at the casino, he nevertheless claimed that the $13,000 was the remainder of such winnings. The applicant was later charged. 12 The gross weight of the drugs that were seized from the vehicle totalled 727 grams, averaging 77.25 percent purity, with a street value of $218,000. 13 At the sentencing hearing, Gibson DCJ, although taking into account the fact that the applicant had no prior convictions, said that the authorities seemed to suggest that this factor would not play as much weight in crimes such as that which the applicant was claiming, as it would in other matters. However, it was still a matter that His Honour said that he would take into consideration. 14 His Honour found that the applicant was addicted to gambling. Evidence led in the trial showed that the applicant spent a considerable amount of time at the Casino, and that from time to time he received large amounts of money by cashing in his chips at the Casino. The evidence showed that on the day the applicant left to travel to Sydney, he had cashed in chips worth $27,000, that he had given his wife $12,000, and that he had lost the remaining $15,000 before leaving the Casino. 15 His Honour accepted both that the applicant came from a law abiding family, and that the applicant acknowledged that his actions caused his wife problems in being separated from her newly born child. It was accepted that special circumstances arose in the wife's case which justified the manner in which her sentence was structured. 16 His Honour, at pages 3 and 4 of the Remarks on Sentence, 15 October 1999, went on to say: "I also accept on the evidence that I think that she was somewhat influenced by her husband in relation to the actions that she took, but notwithstanding all that the prisoner has been convicted of a serious offence. It was a substantial amount of heroin. The Courts in this State have indicated quite clearly that people that become involved in the supply of heroin for financial gain to them, and that can be the only reason, whether it was to feed a gambling habit or not, it was for financial gain to him, in my view. And he does not have the excuse, if it be an excuse that he was a user. He was doing it cold-bloodedly and for profit in my view." 17 His Honour, at page 2 of the Remarks on Sentence, stated: "I think in fact there was at least some of his money involved in relation to this amount of heroin that was being transferred from Sydney to Melbourne by him. Exactly how much I am not sure, exactly what part he was playing in relation to it I am not sure, but- and there is no evidence in which I could do, but I am satisfied that he was not merely a courier and I proceed on that basis that he had, as I say, money involved." 18 Although His Honour did take into account that the applicant's family would be able to give him assistance when he was released from the sentence which he must serve, His Honour found that there was nothing in the case that would indicate that it would be proper to find special circumstances. His Honour accordingly found that there were no special circumstances in terms of s5(2) of the Sentencing Act 1989 that then applied. 19 Accordingly, His Honour sentenced the applicant to a term of six years imprisonment, with a minimum term of four and a half years, and an additional term of eighteen months. 20 The applicant submits two grounds of appeal. The first ground was that the sentence imposed upon the applicant was so disparate to the sentence imposed upon Mrs Luong that it gave rise to a justifiable sense of grievance. 21 Counsel for the applicant submitted that although His Honour was entitled to find that the applicant played a greater role in the offence than his wife, the sentences imposed were disproportionate to the difference that is appropriate. In support of this submission, counsel for the applicant relied upon R v Hauser (Unreported, NSWCCA, 11 December 1997, Gleeson CJ, Dunford and Barr JJ). 22 Counsel for the applicant emphasised, particularly in the oral submissions, that this disproportionality in sentences was particularly evident in considering that the applicant had pleaded guilty at the first opportunity before the Court, whereas his wife ran a trial and was found not to have suffered any remorse for the offence committed. 23 The disparity was put on the basis that the applicant pleaded guilty, where the six year term was, in effect, a notional discount of twenty-five percent, and that the basic term would have been eight years. It was argued that on the basis of the wife's sentencing, there was a disparity in the sentence of some four and a half years of the total sentence, where she had in fact run a trial and pleaded not guilty. 24 The Crown submitted that the offence of the applicant was objectively very serious, and that it called for a significant punishment. It was put that the sentence imposed on the applicant was not severe, given its objective seriousness. It was pointed out by the Crown that Gibson DCJ clearly rejected the applicant's contention that his wife was not involved and obviously concluded that the applicant was the principle player in the offence. It was further submitted that His Honour noted that although the applicant's wife was involved, she was however being influenced by the applicant. 25 On this issue, the Crown asserted that it was therefore appropriate that the applicant should receive a heavier sentence, even allowing for the fact that his wife did not plead guilty and he did. In this regard, counsel noted that Mrs Luong was assisted in her attempt to escape conviction by the applicant who testified at her trial that she was not involved in the offence. This version of events was ultimately rejected by the jury. 26 It is implicit in the finding of guilty, that the jury in Mrs Luong's trial rejected her case. She had gone to trial before the same sentencing judge as the applicant, and the applicant had given evidence for her maintaining that the drugs were his and that she knew nothing about them. 27 In Mrs Luong's sentencing, His Honour was urged to find that exceptional circumstances existed on the basis that on 22 June 1999, whilst in custody, she had given birth to a child. That child was almost immediately taken from her and she was only able to see the child twice a week. 28 His Honour had refused to find that exceptional circumstances existed, but found, as I have indicated, special circumstances in terms of s5(2) of the Sentencing Act based on the position of Mrs Luong's children and the loss of both adult members of the household. 29 It was submitted at Mrs Luong's hearing that she was merely a courier. His Honour however found that the offence was committed for greed, adding that: "I am not at all sure that it was not the husband's greed and that she was not playing a part, albeit a willing part, to assist him because of their relationship, and I propose to sentence her on that basis. That he was a heavy gambler on the figures that emerged before me was clear, but assist him she did." 30 The Crown in Mrs Luong's trial appealed against the purported inadequacy of this sentence on the basis that the minimum term was manifestly inadequate. However, there was no challenge to the total sentence. The Court, comprising Priestley JA, Foster and Smart AJJ, dismissed the appeal and the sentence stood: R v Luong [2000] NSWCCA 139. 31 The primary submission that there was a significant disparity is, of course, correct. A four and a half year notional variation between the two head sentences is significant. However, it is necessary to look at the factors that His Honour would have weighed, and those which His Honour took into account. In determining whether that disparity is such as to give rise to a sense of injustice, it must be noted that Mrs Luong is unable to speak English; she has been deprived of the company of her child during the usual bonding period; and of course, she had, like the applicant, no previous convictions. 32 Because of the evidence that it was not Mrs Luong, but rather the applicant that gambled, Mrs Luong in fact was clearly playing a significantly lesser role than the applicant. And although there is a disparity between the two sentences, clearly those factors which ultimately went to determine special circumstances were proper factors for His Honour to take into account when fixing the head sentence. The fact that material (facts and subjective factors) were applied in accordance with s5(2) of the Sentencing Act, does not mean that it is not proper to also use those same factors significantly in determining the head sentence, and in fact in most occasions that will be the case. 33 Notwithstanding the disparity between the sentences, it is my view that due to the factors that His Honour found, and the clear difference in circumstances between Mrs Luong and the applicant, that the difference between the sentences is not such as would justify in the applicant's mind a sense of injustice. Indeed, on the applicant's own evidence, Mrs Luong did not play as great a role. That lesser role is reflected in the disparity in the sentences. 34 The second ground of appeal is that His Honour erred in the exercise of his discretion, by failing to find any special circumstances on the part of the applicant. 35 In Phelan (1993) 66 A Crim R 446 at 449-450 per Hunt CJ at CL, a special circumstance was described as "the need or desirability for the offender to be subjected to an extended period of conditional release subject to supervision on parole". 36 Although counsel for the applicant asserted that a finding of no special circumstances existed, His Honour however found that the applicant was addicted to gambling. The gambling addiction had played a part in the commission of the offence. His Honour dealt with that circumstance, but not as a special circumstance coming within s5(2) of the Sentencing Act 1989. 37 Obviously there is assistance to be given in the form of appropriate counselling to overcome the gambling problem. There is no reason why that cannot take place both whilst the applicant is in custody as well as during the period of supervision afterwards. 38 It is the factors which impact upon Mrs Luong which are significantly different from the applicant. She had given birth to a child and was obviously separated and depressed. She also did not speak the English language, which can be extremely harsh on anyone in a foreign country who cannot speak the language of the custodial authorities. It was a very harsh matter on her, and it was held to be clearly appropriate in the interests of her family, that her recovery be facilitated. Thus Mrs Luong rightly had a disproportionate long additional term which the Court of Criminal Appeal did not interfere with. 39 In the applicant's case, there were circumstances about which, in my view, His Honour quite correctly found as not being special circumstances. It cannot be automatic that the first time in custody for a person who had no previous offence, is a special circumstance justifying an enlargement of the additional term. There are going to be certain occasions where the first time in custody can be a special circumstance. There is nothing in this case however that makes it so. 40 In my view, there is nothing in the applicant's sentence which shows that His Honour erred in not finding special circumstances. This was a very serious offence, involving a very high degree of purity, which places the applicant a lot closer to the source of the heroin than if it were at the street distribution level. 41 In my view, the discount that obviously had been given for the applicant's relatively early plea means that the sentence is in my view appropriate. Therefore, in terms of disparity between the sentences of Mrs Luong and the applicant, there is no error on this finding. There were no special circumstances, thus I again find no error. I would grant leave, but would dismiss the appeal. 42 HOWIE J: I agree. Notwithstanding the apparent disparity in the sentences imposed upon the applicant and upon his wife, particularly in light of the applicant's early plea, this Court should not intervene. 43 I agree that the applicant cannot have a justifiable sense of grievance by reason of the sentence imposed upon his wife. That sentence not only reflected the culpability between the applicant and his wife, but also the special subjective matters applicable in the wife's case and not applicable to the applicant. 44 His Honour found by the reason of the wife's inability to speak English she would find her prison term more onerous than it would be for other inmates. 45 DOWD J: I agree with His Honour's remarks. The orders will be as I have indicated. o0o 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.