Regina v An Van Nguyen [2000] NSWCCA 288

New South Wales Court of Criminal Appeal

CITATION : Regina v An Van Nguyen [2000] NSWCCA 288 FILE NUMBER(S) : CCA 60541/99 HEARING DATE(S) : 02/08/00 JUDGMENT DATE : 22 August 2000

PARTIES : Regina An Van Nguyen JUDGMENT OF : Beazley JA at 1; Greg James J at 2; Kirby J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/1018 LOWER COURT JUDICIAL Stewart A/DCJ OFFICER :

COUNSEL : P G Berman (Crown) S J Odgers (App) SOLICITORS : S E O'Connor (Crown) Mark Clees & Assoc (App) CATCHWORDS : CRIMINAL PRACTICE & PROCEDURE - Appeal against severity of sentence Drug Misuse and Trafficking Act, 1985 - s25(a): 29(1) LEGISLATION CITED : Crimes (Sentencing Procedure) Act, 1999 - s44(2) Sentencing Act, 1989 - s5(2) CASES CITED: R v Firman (1989) 52 SASR 391 DECISION : Ref para 16

IN THE COURT OF

CRIMINAL APPEAL 60541/99

BEAZLEY JA GREG JAMES J KIRBY J Tuesday 22 August 2000

REGINA v AN VAN NGUYEN JUDGMENT

1 BEAZLEY JA: I agree with Kirby J.

2 GREG JAMES J: I agree with Kirby J. 3 KIRBY J: Mr An Van Nguyen was charged, jointly with Mr Phuong Van Nguyen, in having, on 23 September 1998, supplied heroin (s25(a) and s29(1) Drug Misuse and Trafficking Act, 1985). 4 Mr An Van Nguyen was convicted (as was Mr Phuong Van Nguyen). An appeal was lodged against that conviction, but abandoned. Mr An Van Nguyen seeks leave to appeal against sentence. 5 The sentence imposed by the trial Judge, Acting Judge Stewart, was eight years penal servitude. His Honour found no special circumstances. He fixed a minimum term of six years, and an additional term of two years. He ordered the term to commence on the day Mr An Van Nguyen went into custody (10 August 1999). 6 The Crown acknowledges error on the part of the sentencing Judge. His Honour referred to the maximum penalty in these terms: "The maximum penalty under the Act is 25 years imprisonment or penal servitude and/or two thousand penalty units." 7 The maximum penalty is in fact 15 years. 8 The Crown provided material from the Judicial Commission, as well as a precis of cases involving the supply of similar amounts of heroin. Making all appropriate assumptions, the range of sentence suggested by this material was between three and four years. It is plain, therefore, that his Honour's error had an effect upon the sentence imposed. 9 As conceded by the Crown, re-sentencing is therefore required. I should, in these circumstances, briefly refer to the evidence. Mr An Van Nguyen (the applicant) was the brother-in-law of his co-accused, Mr Phuong Van Nguyen. Mr Phuong Van Nguyen was married to the applicant's sister. On the Crown case, the applicant and his brother-in-law, in September 1998, established a business supplying heroin. They did so from premises at Frederick Street, St Peters. One witness gave evidence that he had been approached by the applicant, and offered heroin. The availability of that drug from these premises soon spread by word of mouth. 10 On 23 September 1998, the police obtained a warrant to search the premises. An amount of 6.7 grams of heroin was found concealed in a number of locations. The paraphernalia associated with the supply of drugs was also found. It included aluminium foil cut into small sections, scissors, and water-tight balloons. Whilst the search was under way, a number of individuals came to the premises. They told police that their purpose was to purchase heroin (cf R v Firman (1989) 52 SASR 391). 11 The applicant was born on 15 June 1968. He is 32 years old. He has been in Australia for about ten years. He had two minor convictions soon after his arrival which the sentencing Judge, Acting Judge Stewart, was prepared to disregard. I, too, will approach the matter upon the basis that the applicant is a person with no relevant convictions. He is a married man. He has three young children, aged ten years, eight years and almost one year. 12 He was, at the time of these events, unemployed. Unquestionably, the circumstances in which he lived after his arrival in Australia were difficult. He shared accommodation with a number of families, who were related to either his wife or himself. He was said to be a good husband, and to attend church regularly. 13 Mr Odgers, appearing for the applicant, urged a finding of special circumstances, in terms of s44(2) of the Crimes (Sentencing Procedure) Act, 1999. That section, on his argument, gives greater emphasis to rehabilitation than the approach required under s5(2) of the Sentencing Act, 1989, which the new Act replaced. The applicant has, since his incarceration, seriously pursued activities which will assist in his rehabilitation. He has completed a number of courses. They include Oral Communication, Word Processing, and Leatherwork. The abandonment of his appeal against conviction was, according to his Counsel, consistent with an acknowledgment of responsibility, which is fundamental to rehabilitation. 14 Rehabilitation is, of course, an important consideration. The applicant's efforts in making good use of his time in prison are a matter to his credit. However, rehabilitation is but one of the objectives which the sentence should serve. The applicant's crime was serious. His motive was purely commercial. He was not an addict, and nor was his brother-in-law. In these circumstances, deterrence, both general and personal, must figure prominently in any sentence imposed. 15 Like the trial Judge, I do not believe that there are special circumstances. In my view the appropriate sentence is imprisonment for three years and eight months, with a non parole period of two years and nine months. 16 I would therefore propose the following orders: