New South Wales Court of Criminal Appeal CITATION : R v Huynh [2001] NSWCCA 269 FILE NUMBER(S) : CCA 60731/2000 HEARING DATE(S) : 29 June 2001 JUDGMENT DATE : 29 June 2001 PARTIES : Regina Thi Xua Huynh JUDGMENT OF : Wood CJ at CL at 1; Howie J at 24 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/21/2245 LOWER COURT JUDICIAL Woods DCJ OFFICER : COUNSEL : M C Grogan (Crown) P. R. Boulten (Applicant) SOLICITORS : S E O'Connor Mark Klees & Associates CATCHWORDS : CRIMINAL LAW - appeals - appeal against sentence - deemed supply of trafficable quantity of heroin - whether special circumstances justifying departure from the ratio between non-parole period and term of sentence - possible confusion between "exceptional circumstances" appropriate for non-custodial sentence and "special circumstances" appropriate for departure from ratio - special circumstances found. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 199 x 44(2), s 51 DECISION : Leave to appeal granted; Appeal allowed, reducing non-parole period to 12 months from 10 November 2000 and to expire on 9 November 2001. - IN THE COURT OF CRIMINAL APPEAL 60731/00 WOOD CJ at CL HOWIE J FRIDAY 29 JUNE 2001 REGINA v THI XUA HUYNH JUDGMENT 1 WOOD CJ at CL: The applicant seeks leave to appeal against a sentence of two years' imprisonment with a non-parole period of sixteen months, imposed by his Honour Acting Judge Woods in the District Court, following her conviction after trial by his Honour sitting without a jury. 2 The offence of which she was convicted was one of deemed supply of not less than a trafficable quantity of heroin, the relevant amount being 6.6 grams. 3 The facts, as found by his Honour, may be summarised fairly briefly. In the course of a surveillance operation, directed principally towards her son, police arrested the applicant while she was sitting in a motor vehicle. While there she was seen by police to throw out of the vehicle a bundle containing thirty-six balloons, each of which contained heroin. 4 As I have observed, the total weight of the substance found in these balloons was 6.6 grams, a quantity being not less than the trafficable quantity applicable for heroin. Also arrested at the same time was her son Anh Huynh Luong. He had been observed to throw onto her lap, when police arrived at the scene, five further balloons wrapped in tissue. The weight of the substance contained in those balloons was .83 grams. However, the conviction of the applicant was confined to the quantity contained in the thirty-six balloons. 5 The applicant does not seek to challenge the term of the sentence, the appeal being confined to the non-parole period. 6 In that regard, it is submitted that his Honour erred in failing to find special circumstances and, as a consequence, in not providing a sufficient reduction in the ratio between the non-parole period and the term of the sentence, in accordance with section 44 of the Crimes (Sentencing Procedure) Act. 7 Before turning to that submission, it may be noted that there was one clear error in the sentencing order, so far as his Honour failed to give effect to section 51 of the Act, which required him to direct the release of the applicant on parole, at the end of the period of sixteen months, which his Honour had fixed in that regard. 8 It is also possible that there was a further error arising from some confusion between the "exceptional circumstances" which this Court said, in R v Clarke (CCA NSW 15 March 1990 unreported), need to exist before a non-custodial sentence would be appropriate for a drug trafficker, and the "special circumstances" which need to exist before there can be a departure from the ratio specified by section 44(2) of the Act. Whether there was an error in that regard, or merely some infelicity of expression is not entirely clear, because it does appear that his Honour used the expression "special circumstances" and the expression "exceptional circumstances" somewhat interchangeably. 9 The difficulty in this regard is compounded by the fact that if his Honour, in fact, found there were no "special circumstances" then there was a mathematical error in that the statutory ratio would have called for a non-parole period of eighteen months rather than sixteen months which his Honour specified. That would have been an error operating in favour of the applicant. 10 Having regard to these possible difficulties in the reasons for sentence, I would be minded to grant leave to appeal, and thereafter to consider the submission which has been advanced this morning concerning "special circumstances". It must be accepted that the offence was serious in that the applicant was involved in the deemed supply of heroin, and was actively assisting her son in that regard. 11 It is not the case, as distinct from the position with her son, that she was a user/dealer, but it may be accepted that she was engaged in this activity for the purpose of assisting him. He had his own problems in that regard, arising from a long-standing addiction to heroin and from the fact that the family was living in straitened circumstances with some financial commitments. The important considerations, however, which do arise concerning the applicant, relate to her deprived and difficult background, and to the medical sequelae arising from that background, and from a motor vehicle accident in which she had been involved shortly prior to the offence. 12 The evidence suggests, in this regard, that she had been born into a rural family environment in Vietnam where she had received no formal education. 13 She had been left by her husband, whom she married in 1967, when he escaped with two of their six children in 1979. When she eventually made her way to Australia in 1992 she was rejected by him as by then he had formed another relationship. She was divorced the following year and was left without financial support. 14 Thereafter, by reason of her limited ability with the English language and her lack of education, she had been unable to obtain employment and, as a result, had been suffering from anxiety and a depressive disorder. Additionally, she suffered from conditions of hypertension and arthritis as well as the sequelae of a whiplash injury sustained in the motor vehicle accident. She was at the time of the offence in receipt of sickness benefits. 15 Some material was placed before his Honour concerning her medical condition. This comprised a report from Dr Gordon Davies, a forensic and general psychiatrist, and also from Dr Thi Le-Anh, a general practitioner. 16 In Dr Davies' opinion, she suffered from "post concussive symptoms following her motor vehicle accident" which had been "superimposed on an underlaying chronic dysthymic illness which fundamentally relates to her difficult childhood and subsequent family problems". Dr Davies thought it important that the applicant receive adequate psychiatric treatment on an ongoing basis, preferably by a Vietnamese speaking psychiatrist. He also thought it would be useful for this to be supported by the Probation and Parole Service. 17 Dr Thi Le-Anh dealt with the physical disabilities of the applicant relating to the conditions of hypertension, arthritis, peptic ulcer, and the post-concussive motor vehicle accident condition. In his opinion those health problems would be aggravated by her presence within a custodial situation, and that situation, he thought, would be detrimental to her already poor health. 18 The material placed before his Honour was taken into account but his Honour was not satisfied that they constituted special circumstances. It would appear in this regard that his Honour thought that any disabilities relating to her physical and mental state could be satisfactorily dealt with within the prison medical health system. 19 The evidence in this regard has been supplemented by a further report placed before the Court this morning from Dr Dong B Tran, a Vietnamese speaking general and forensic psychiatrist. His somewhat more comprehensive report confirms the significance of the matters placed before his Honour which Dr Dong Tran assessed as amounting to a "major depressive disorder, complicated by both unstable general medical conditions and multiple psycho social stressors". He thought that she was "particularly vulnerable to the impact of custody and at risk of further psychiatric decompensation". 20 Of particular concern, he noted, was the potential given her propensity to use avoidance as a coping mechanism and her inability to speak English, for deterioration in her medical and/or psychiatric conditions to go unnoticed. It was his opinion that her health could be "further compromised as a result of her remaining in custody". 21 There were matters properly to the exercise of sentencing discretion since they were such as to visit exceptional hardship upon her while in custody, and were also such as to justify an extended period of rehabilitation post release. 22 Accordingly, I appears to me that, properly considered, these matters do constitute special circumstances, such that it would have been appropriate for there to have been an adjustment in the ratio between the non-parole period and the term of the sentence beyond that which was implicit in, or unintentionally achieved by the sentencing order. 23 In my opinion, the non-parole period should be reduced to one of twelve months to date from 10 November 2000 and to expire on 9 November 2001. I would propose, therefore, granting leave to appeal and allowing the appeal to the extent of reducing the non-parole period to one of twelve months, to date from 10 November 2000 and to expire on 9 November 2001. I would direct release on parole at the expiration of the non-parole period. The parole is to be subject to the normal conditions applicable to supervision by the Probation and Parole Service for such period as that Service may determine. 24 HOWIE J: I agree. 25 WOOD CJ at CL: The order of the Court is as I have proposed. ********** 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.