New South Wales Court of Criminal Appeal CITATION : Regina v Trinh Regina v Chieu [1999] NSWCCA 295 FILE NUMBER(S) : CCA 60006/99; 60012/99 HEARING DATE(S) : 17 September 1999 JUDGMENT DATE : 21 September 1999 PARTIES : Regina v Qui Minh Trinh Regina v Hac Suol Chieu JUDGMENT OF : Sully J at 1; Barr J at 33 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/2061 96/21/2124 LOWER COURT JUDICIAL OFFICER : Rummery DCJ L. Lamprati - Crown COUNSEL : P. Costello - Trinh S. Odgers - Chieu S. E. O'Connor - Crown SOLICITORS : Allanson Benn - Trinh Trevor Nyman & Co. - Chieu CATCHWORDS : Criminal law; applications for leave to appeal against sentence; issues raised included: (a) impermissible pre-conception or pre-judgment on the part of sentencing Judge that a full time custodial sentence was the only appropriate option; (b) failure by the sentencing Judge to take into account properly particular evidence concerning subjective features of one appellant; (c) failure on the part of the sentencing Judge to deal with the applicant Chieu as a person having no criminal antecedents; (d) a resulting entitlement for the applicant Chieu to be re-sentenced more leniently than at first instance. Held: (a) not established; (b) not established; (c) established; (d) not established. Held: in each case that leave to appeal should be granted but the substantive appeal should be dismissed. ACTS CITED : Crimes Act 1900 (NSW) Sentencing Act 1989 (NSW) Reg v Phillips & anor:unreported, CCA, 11 December 1991 The Queen v The Commonwealth Conciliation and Arbitration Commission & ors; ex parte The Angliss Group (1969) 122 CLR 546 CASES CITED: Vakauta and Kelly (1989) 167 CLR 568 Regina v Michael Lalic; unreported, CCA, 27 November 1996 Regina v Stephen Lorne Astill (No. 2) [1992] 64 ACrimR 289 Reg. v Oastler; unreported, CCA, NSW, 7 October 1992 DECISION : Trinh - Leave to appeal granted; appeal dismissed; Chieu - Leave to appeal granted; appeal dismissed IN THE COURT OF CRIMINAL APPEAL 60006/99 60012/99 SULLY J BARR J 21 September 1999 REGINA v QUI MINH TRINH REGINA v HAC SUOL CHIEU JUDGMENT 1 SULLY J: Before the Court are two applications for leave to appeal against sentence. 2 The applicants, Mr. Qui Minh Trinh and Mr. Hac Suol Chieu, were associates in a criminal enterprise which involved the receiving of stolen motor vehicles, and a subsequent dealing with those motor vehicles in a way that entailed what has been called in these proceedings "the rebirthing" of the vehicles. 3 The two applicants, although associates in criminal activities of the kind described, were not co-offenders in the particular sense of having been charged with the same offences. Mr. Trinh was charged on indictment with three counts of receiving motor vehicles. He pleaded guilty to those charges and asked that there be taken into account in connection with his sentencing upon those pleas, a further seven matters. Of those seven matters, five involved either the offence of receiving, or the cognate offence of disposing of a stolen motor vehicle; and the remaining two offences concerned the obtaining by deception, but in connection with the sale of motor vehicles, of financial benefit. Mr. Chieu, also, was indicted upon three counts of receiving. He, too, pleaded guilty to those particular charges; and asked for a further five matters to be taken into account in connection with his sentencing. Each of those additional five matters concerned the receiving by Mr. Chieu of a stolen motor vehicle. One of the counts charged in the indictment against Mr. Trinh was identical in its terms with one of the counts charged in the indictment presented against Mr. Chieu. With that single exception, each of the matters charged against Mr. Chieu was different in its particulars from the remaining charges preferred against Mr. Trinh. 4 Both applicant were dealt with, at first instance, by his Honour Judge Rummery QC sitting in the District Court at Sydney. His Honour dealt jointly with the cases of the applicants; and this Court was invited, similarly, to hear together the two applications for leave to appeal against sentence. 5 Both applicants entered their pleas of guilty on 4 December 1998. Proceedings on sentence occupied part of 11 and 14 December 1998. Both applicants stood formally for sentence on 14 December 1998. Identical sentences were passed upon them. Both were sentenced to penal servitude for 5 years, apportioned between a minimum term of 3 years and an additional term of 2 years. The offence of receiving stolen property contravenes s.188 of the Crimes Act 1900 (NSW), and attracts upon conviction a statutory maximum penalty of penal servitude for 10 years. 6 The relevant objective facts can be summarised conveniently, and sufficiently for present purposes, by quoting the following extracts from the remarks on sentence of the learned primary Judge: "……………(I)t is perhaps appropriate if I say that the operation which was undertaken by both offenders was one of what is called the re-birthing of stolen vehicles, that is to say, vehicles of an appropriate make, model and condition are stolen and they are given the identity of a vehicle which has been acquired, and generally in a damaged condition, so that the stolen vehicle is passed off with the identification of the damaged vehicle………………… Their modus operandi was to acquire, by purchase, another vehicle as a source vehicle and the identity of that individual source vehicle was given to the appropriate stolen vehicle, the latter being then sold with the identity of the source vehicle. It was usual for the vehicle whose identity was acquired to be also acquired in a damaged condition. The scheme that each of the offenders implemented was planned, it was carefully executed, it involved a considerable amount of detail. Damaged, unworthy road vehicles were purchased. Stolen vehicles were acquired with a view to being given the identity of the purchased vehicle and such details as chassis numbers, compliance plates, engine numbers and the like were, in certain cases, appropriately altered." 7 The learned primary Judge was of the view that, speaking in purely objective terms, the criminality of the two applicants could fairly be regarded as being equal. In my opinion, such a finding was open amply on the evidence. 8 The gravity of that objective criminality needs no extended emphasis here. It suffices to recall the well known statement of principle appearing in the decision of this Court, Reg v Phillips & anor.: unreported, Court of Criminal Appeal, 11 December 1991: "The matter of receiving is one which is always accompanied by a strong element of deterrence in punishment. Receiving is regarded by the legislature as more serious than the ordinary class of larceny. A penalty of penal servitude for 10 years is provided in the case of receiving, 5 years in the case of larceny. The purpose of course behind that policy is that if the receivers are prevented from performing their unlawful acts, larceny it is thought will thereby be discouraged." 9 Given the foregoing matters, it is necessary next to consider separately the two individual applications for leave to appeal. The Application of Mr. Trinh The first submission put on behalf of this applicant is, in substance, that the learned primary Judge brought to the question of sentence an impermissible preconception that a full time custodial was the only proper option in the applicant's particular case. The written submissions put in on behalf of the applicant identify with complete clarity the transcript references upon which the applicant relies. I have read those passages in the relevant transcript contexts, and it is not necessary now to repeat their detail. It is more useful to draw attention to the following two statements of principle which seem to me to establish the criteria according to which the present submission of the applicant must be tested. 10 In The Queen v The Commonwealth Conciliation and Arbitration Commission & ors; ex parte The Angliss Group (1969) 122 CLR 546, a Bench comprising all seven Justices of the High Court of Australia approved, in a joint judgment, the following statement "Those requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it."(122 CLR, 553, 554) 11 In Vakauta and Kelly (1989) 167 CLR 568, Brennan, Deane and Gaudron JJ adverted to an opinion, which had been expressed by another Justice of the High Court on an earlier occasion and in a different case, to judicial silence as being a "counsel of perfection". Of that observation, their Honours said this: "We respectfully disagree with the application of that observation to a trial judge sitting without a jury. It seems to us that a trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated." ( 167 CLR, 571) 12 It is trite that the application of the principles to which I have referred to the given facts of an individual case must entail considerations of balance and of degree. In the present particular case, I am wholly unpersuaded that the learned sentencing Judge brought to his task an impermissible pre-conception or pre-judgment such as is asserted by the present applicant. 13 The next submission put for the applicant is that the learned sentencing Judge "deprecated" evidence given on the applicant's behalf by two witnesses. I take "deprecated" to mean that his Honour was inappropriately disparaging in comments made by him about this evidence, and at a time when the evidence was actually being given before his Honour. 14 Once again, the written submissions put in for the applicant are completely clear in their identification of the relevant transcript references. I have read all of those references in context. I do not think that there is any merit in this particular submission. 15 The next submission put for the applicant is that his Honour, when he returned on 11 December 1998 to the then part-heard proceedings on sentence, demonstrated so imperfect a recollection of what had happened previously, as to warrant the drawing of an inference that his Honour, when he came ultimately to pass sentence, did not give any, or any sufficient, weight to the brief but favourable evidence that had been given in the applicant's favour by the two witnesses of whom I have earlier spoken. 16 Yet again, the written submissions put in for the applicant identify clearly the particular statements made by his Honour and upon which reliance is placed in support of the submissions. Once again, I have read the entirety of those references, doing my best to set them fairly in the context of which they form but a part. It is, I think, sufficient to say simply that I am wholly unpersuaded that the submission is a sound one. 17 The applicant submits, next, that the learned sentencing Judge gave an inappropriate weight in his Honour's considerations to two other cases dealing with the crime of receiving stolen property. One of those cases involves a decision of this Court: Reg v Michael Lalic; unreported, Court of Criminal Appeal, 27 November 1996. The other case was, as it would seem, a trial over which the learned sentencing Judge had himself presided. 18 It is the case that the sentence imposed by his Honour upon the present applicant is identical with the sentence imposed in the case of Lalic and upheld on appeal to this Court. It is, also, the case that the learned sentencing Judge did refer in terms to the two matters of which I have spoken; and I think it is fair to say that his Honour clearly considered that the decision in Lalic, at least, was material to the sentencing exercise which his Honour was having to carry out in the case of the present applicant. Yet again, I think that the answer to the applicant's submission is to be found in a fair reading, in context, of the entirety of the relevant comments of the learned primary Judge. Such a reading seems to me to make clear that his Honour regarded, as in my view he was clearly entitled to do, the decision in Lalic as having some broadly indicative value in the present particular case. Had it been clear that his Honour had simply transposed to the case of the present applicant the sentence which was upheld by this Court in the matter of Lalic, then I would have upheld the present submission of the applicant, because the facts in Lalic were not identical with the facts in the present applicant's case, so that it would have been erroneous to have made, simply and without proper discernment and discrimination, such a transposition of the result in Lalic. I think, however, that a fair reading of the relevant material discloses that the learned sentencing Judge did not fall into that particular error. 19 The final submission put for the applicant concerns the finding by the learned sentencing Judge of "special circumstances" of the kind contemplated by s.5(2) of the Sentencing Act 1989 (NSW). His Honour found such "special circumstances"; and it is not contended by the applicant that his Honour erred in so doing. The contention is that his Honour did not give appropriate weight to such "special circumstances". 20 It is not necessary, I think, to repeat the fine detail of the evidence concerning the applicant's subjective case. The applicant's submissions, as I followed them, do not suggest that his Honour did not identify the relevant "special circumstances". The applicant's relevant personal particulars embraced, among other things, criminal antecedents, including two matters, - one of malicious wounding, and the other of assault occasioning actual bodily harm, - in respect of which the applicant had been sentenced, in 1992, to imprisonment for 12 months to be served by way of periodic detention. The applicant's criminal antecedents did not include any offence of receiving or any similar offence of dishonesty. 21 It is trite, but it is perhaps useful to reaffirm nevertheless, that the essential question for this Court is whether the learned sentencing Judge has been shown to have committed some error in connection with the sentence passed. It will be clear from what has been said in the present reasons, that I am wholly unpersuaded that any patent error has been disclosed. Nor do I think that, absent patent error, the sentence imposed is so manifestly excessive as to indicate latent error. 22 I would grant leave to appeal against sentence; but I would dismiss the substantive appeal. The Application of Mr. Chieu 23 It is convenient to begin by quoting as follows from the written submissions put in on the applicant's behalf: "The sentencing judge erred in taking into account adversely to the applicant the fact that he had two prior convictions for receiving (see RS 8.2,12.8). It is not suggested that the sentencing judge regarded those convictions as an aggravating factor. What is submitted is that the sentencing judge regarded the convictions as a factor tending to disentitle the applicant to any argument that the offences were committed by a person who was otherwise of good character (cf Veen v The Queen (No. 2) (1987) 164 CLR 465 at 477). Further, he regarded the "record" of the applicant, while not as bad as that of Trinh, as not such a record as would entitle the applicant to be treated differently from Trinh (RS 12.9). The error is that the prior convictions and sentences should not have been used adversely to the applicant at all. They related to offences of receiving motor vehicles which occurred between 12.12.94 and 28.12.94. Thus the offences occurred after the offences for which he was being sentenced by Rummery DCJ. Further, it is apparent that the offences were closely connected with the earlier offences which were before Rummery DCJ. This issue was raised by counsel for Trinh (T5.45 on 11.12.98). The solicitor then appearing for the applicant submitted that the applicant and Trinh should be regarded differently (T 6.35). The Crown submitted that the criminality of the applicant and Trinh was equal but made no submission on their respective criminal records (T 6.43). Accordingly, it is submitted that the errors made by Rummery DCJ were: (a) not treating the applicant as a person without prior convictions at the date of commission of the offences for which he was being sentenced; (b) not treating the applicant as a person of good character but for his involvement in a motor vehicle "re-birthing" ring; (c) failing properly to take into account the sentence imposed on 4.5.95 (ie 200 hours community service, 2 year recognisance, orders for compensation) when assessing the totality of criminality of the applicant and determining an appropriate sentence for the matters before him; (d) regarding it as appropriate to impose identical sentences on the applicant and Trinh, bearing in mind their different records and the punishment already inflicted on the applicant for the criminal activity in which he was involved." 24 As to these submissions, I would say, to begin with, two things: first, that on the given facts Mr. Chieu was entitled to be dealt with upon the basis that he had no antecedent criminal record; and secondly, that although the learned sentencing Judge says scarcely more than a few words about the two convictions in December 1994, it is clear that their existence was present to his Honour's mind as something seen by his Honour to be relevant, in some way or other, to the proper sentencing by his Honour of the applicant. 25 It necessarily follows, as it seems to me, that his Honour did fall into error in thus taking account at all of the other two offences, being offences committed later in time than the offences for which his Honour was sentencing. 26 The finding of such an error entitles this Court to look for itself at the question of sentence. But, of course, that must be done in the light of proper principle applied correctly and sensibly to the given facts of the instant case. The vehemence with which the question of re-sentencing was canvassed in the submission put for the applicant makes it desirable, I think, to re-state the relevant principles. 27 In Reg v Stephen Lorne Astill (No. 2) [1992] 64 ACrimR 289, Lee AJ makes the following observations with which I respectfully agree: "The fundamental function of the court in an appeal under s.5(1) is to determine whether the sentence imposed by the sentencing judge is excessive or whether some other sentence is 'warranted in law'. It is not I mention the practice of the court to increase sentences. A proper sentence is one which takes into account the objective seriousness of the crime and any aggravating features and then the circumstances subjective to the applicant or extraneous to the crime itself which permit leniency. It is that mix of circumstances which the sentencing judge must evaluate and there is usually considerable scope for disagreement as to the weight or significance to be given to the factors which make up the total mix. When an appeal is brought to the court under s.5(1) it may well be that the court will consider the sentence passed to be 'warranted in law' even though the court may not be in agreement with the weight assigned by the sentencing judge to particular features, or his selection of the substantial matters which guide him to his conclusions. In such a case the appeal fails. Even where the court concludes that the judge has made a mistake of law, the court may still hold that the sentence is not excessive and should stand. A good illustration of such a case is Oastler (unreported, Court of Criminal Appeal, NSW, 7 October 1992)." (64 ACrimR, 303, 304) 28 Oastler was a case heard by a Bench of this Court comprising Gleeson CJ, Clarke JA and Lee AJ. Lee AJ gave the principal judgment. So far as is now relevant, his Honour spoke in terms similar to those which he later employed in Astill. It is noteworthy that the Chief Justice, while agreeing with Lee AJ, thought it expedient to add for himself a brief statement in which his Honour said: "I agree with the orders proposed by Mr. Acting Justice Lee and in particular I agree that although the applicant has succeeded in demonstrating that some of the steps involved in the process of reasoning of the learned sentencing judge involved some misapprehension on his Honour's part as to the effect of the relevant legislation, nevertheless the sentence ultimately imposed was not excessive." 29 In the case of the present applicant, the Court has received, and I have read and considered, some additional materials that were tendered on the applicant's behalf and in connection with the question of re-sentencing should this Court come to that question. As I have earlier herein explained, I agree with the learned sentencing Judge's expressed view that, speaking in purely objective terms, there is nothing to choose between the criminality of the two present applicants. And, as earlier explained, it is my view that such objective criminality is not trifling, but is, all to the contrary, criminality of real weight and substance. It is, in my view, indisputable that the purely subjective features of the applicant's case are different in many respects from those of his co-applicant's case. That said, it does not at all follow as of course, - and that for the reasons apparent in the earlier citations of principle, - that there must be a more lenient re-sentencing of the applicant by this Court. 30 In the end, I have not been persuaded that the sentence passed upon the present applicant was manifestly excessive. I think that it was a severe sentence; but I think that it was within the range properly available to the learned primary Judge. When every contrast in subjective circumstances has been properly pointed, the facts remain: first, that both applicants were admittedly associated in an extensive, and extensively planned, operation involving the trafficking of stolen motor vehicles; secondly, that neither applicant had an antecedent criminal record for offences of that kind; and thirdly, that the most significant contrast between their respective subjective cases lies in the fact that Mr. Trinh had a few matters in his criminal record, but none of them for offences of the present kind; while Mr. Chieu had no relevant criminal record at all. 31 Those considerations are, in my opinion, insufficient to establish that a more lenient sentence than that passed upon the present applicant is "warranted in law" in the sense discussed by the authorities to which I have earlier referred. 32 In Mr. Chieu's application, also, I would grant leave to appeal against sentence, but I would dismiss the substantive appeal. ********** IN THE COURT OF CRIMINAL APPEAL 60006/99 60012/99 SULLY J BARR J 21 September 1999 REGINA v QUI MINH TRINH REGINA v HAC SUOL CHIEU JUDGMENT BARR J: I agree with Sully J. 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