R v Quoc Phong Dang [2004] NSWCCA 265

New South Wales Court of Criminal Appeal

CITATION : R v Quoc Phong Dang [2004] NSWCCA 265 HEARING DATE(S) : 28/07/04 JUDGMENT DATE : 28 July 2004

JUDGMENT OF : Spigelman CJ at 18; Hidden J at 1; Buddin J at 19 DECISION : Leave to appeal granted; appeal dismissed.

CATCHWORDS : CRIMINAL LAW: Application for leave to appeal against sentence - attempting to possess prohibited imports - trafficable quantity of heroin - whether head sentence and non-parole period manifestly excessive. Crimes Act 1914 (Cth) LEGISLATION CITED : Customs Act 1901 (Cth) Financial Transaction Reports Act 1988 (Cth) Bugmy v The Queen (1990) 169 CLR 505 CASES CITED : R v Kevenaar & Ors [2004] NSWCCA 210 R v Studenikin [2004] NSWCCA 164 R v Wong and Leung (1999) 48 NSWLR 340 PARTIES : Quoc Phong Dang - App Commonwealth Crown - Resp FILE NUMBER(S) : CCA 60130/04 COUNSEL : DC Andersen QC - App MM Cinque - Resp SOLICITORS : Randle Lawyers - App Commonwealth Director of Public Prosecutions - Resp

LOWER COURT District Court JURISDICTION : LOWER COURT 03/11/0489 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60130/04

SPIGELMAN CJ HIDDEN J BUDDIN J

Wednesday, 28 July, 2004 REGINA v Quoc Phong DANG Judgment 1 HIDDEN J: The applicant, Quoc Phong Dang, was committed for sentence in the District Court on a charge of attempting to possess prohibited imports, being a trafficable quantity of heroin, an offence under s 233B(1)(c) of the Customs Act, carrying a maximum sentence of imprisonment of twenty-five years. He was sentenced to imprisonment for seven and a half years with a non-parole period of five years. He seeks leave to appeal against that sentence. 2 On 9 September 2001 Customs officers intercepted a package forwarded to the applicant from Vietnam. It was found to contain two hardcover books in which were concealed four packages of heroin. The gross weight of the heroin was a little over 125 grams, with a pure weight of 92 grams. The potential street value of the drug was estimated by Australian Federal Police to be somewhere between $176,400 and $223,440. 3 The package was reconstructed, with the heroin being replaced by an inert substance in four plastic bags. It was delivered to the applicant at his home unit on 16 September 2002. Upon entering the unit a little later, police found that the package had been opened and the plastic bags had been removed. There were a number of small freezer bags next to the package. They also found $10,500 in cash in a wardrobe in the main bedroom of the unit. In a garden bed adjacent to the balcony of the unit there was found a set of electronic scales which, apparently, had been thrown from the balcony. The applicant was arrested but, on legal advice, he declined to be interviewed about the matter. 4 The applicant was twenty-five years old at the time of the offence and is now twenty-seven. He came to Australia from Vietnam in December 1996 on a student visa. That visa expired in March 2003 and it is anticipated that he will be deported after his release. He undertook tertiary studies in this country, but his command of the English language was inadequate and his progress was poor. He received some limited financial assistance from his parents in Vietnam and had a job in a restaurant for a few months but found himself under financial pressure. He used heroin, although not to a great extent, for about four months prior to his arrest. 5 He had a criminal record, comprising Local Court entries for shoplifting in 2001 and for failing to report excess currency (an offence under the Financial Transaction Reports Act) in 2003, for both of which he was fined. The first of those convictions might be seen as insignificant. The same could not be said of the second involving, as it did, a sum of $24,000 and having been committed only about one month before the offence which brings him before this Court. 6 The author of a pre-sentence report had this to say about the applicant: "He acknowledged that he had been studying all his life but had sabotaged his own goals by his drug abuse and offending. He cites loneliness, lack of support, financial pressures, drug using peers and heroin dependency as factors behind his offending. He appears to bitterly regret his offending and its consequences and his remorse appears genuine and heartfelt." 7 The report also noted that, since he has been taken into custody, he had been well behaved and industrious and has been consistent in his pursuit of a course in English as a second language. There was also a document from the Department of Corrective Services attesting to his progress in a course on information technology, despite his basic English skills. 8 The sentencing judge had regard to the applicant's expression of remorse to the Probation and Parole officer and accepted that his plea of guilty had been entered at the earliest opportunity, warranting a twenty-five per cent discount of his sentence. His Honour also noted that his time in custody was likely to be more difficult than usual because of his limited command of English and his relative isolation from the prison community. 9 The applicant did not give evidence in the sentence proceedings, and his Honour appears to have treated with some scepticism a statement made on his behalf by his counsel that his role in the importation was somewhat less than the evidence might suggest and, in particular, that the $10,500 found in the unit was a payment made to him for taking possession of the drugs as an intermediary. Nevertheless, counsel accepted that he should be viewed as being "at the middle level and at least above mere courier level...". Having noted that submission, his Honour went on to observe: "The alternative view would be to regard your part as being that of a dealer, that is, intending to sell the drugs or a significant part of the drugs found for your own monetary return, as well as using some of it to support your addictive habit. In my view, not a great deal turns on which view is taken for the purposes of this sentencing exercise. The amount of money said to have been paid to you for your role in taking possession of the drugs is a significant amount of money. The performance of such a role in the importation and subsequent distribution of illicit drugs in Australia is a significant role and, in my view, the performance of that role is not easily distinguishable from a role in personally dealing with the drugs." 10 In determining the head sentence of seven and a half years his Honour noted the repeal of s 16G of the Crimes Act 1914 (Commonwealth). His Honour's specification of a non-parole period of five years, two thirds of the head sentence, is roughly in accord with the established practice of the relationship of non-parole period to head sentence in Commonwealth cases. 11 Today the applicant has been represented by Mr Odgers SC. Written submissions had earlier been filed by other counsel initially briefed, which complained of manifest excessiveness and relied upon a number of decisions in this Court summarised in those submissions. The Crown prosecutor in this Court supplemented that list of cases with a lengthy schedule of appellate cases attached to her written submissions. 12 However, today Mr Odgers foreshadowed taking a different course from that taken by his predecessor. All the cases referred to preceded the repeal of s 16G of the Commonwealth Crimes Act. Mr Odgers acknowledged that, if the effect of the repeal of that section is as has been held by this Court in some recent decisions to which I shall refer, it would be difficult to argue that the head sentence was manifestly excessive. 13 This Court has held that reliance can no longer be placed upon patterns of sentence established before the repeal of s 16G, at least not without an appropriate adjustment: see R v Studenikin [2004] NSWCCA 164 and R v Kevenaar & Ors [2004] NSWCCA 210. Mr Odgers foreshadowed an argument that we should reconsider those decisions. He also foreshadowed an argument that, in any event, the practice of specifying a non-parole period of around two thirds of the head sentence should be re-examined in the light of the abolition of s 16G. He urged that specification of non-parole periods should not be the subject of some prima facie proportion but should be determined in the light of the relevant factors of the individual cases, applying the principles enunciated by the High Court in Bugmy v The Queen (1990) 169 CLR 505. 14 This case does not appear to me to be an appropriate vehicle for a re-examination of the very recent decisions of Studenikin and Kevenaar. I say so because it appears to me that, even applying the broad tariff established by the cases prior to the amendment of s 16G the sentence of seven and a half years in the present case could not be said to be manifestly excessive. 15 I find it unnecessary to analyse the cases referred to in the written submissions. The guideline set out by the Chief Justice in R v Wong and Leung (1999) 48 NSWLR 340 at [142] was based upon an examination of existing sentencing patterns. For low level trafficable quantities, of which the present case is an example, his Honour specified a range of five to seven years. However, the guideline is expressed to apply to "couriers and persons low on the hierarchy of the importing organisation." In the present case the sentencing judge determined the applicant's criminality to be of a significantly higher order than that. That being so, even allowing for his plea of guilty and putting aside the repeal of s 16G, I do not consider the head sentence to be such as to call for the intervention of this Court. As for the non-parole period, I entirely accept that the prima facie proportion of about two thirds of the head sentence is no more than that, that each case must be considered on its merits and that often a non-parole period of a greater or lesser proportion might be appropriate. 16 In the present case, however, I am not persuaded that the non-parole period of five years is such as ought to attract the intervention of this Court, given his Honour's finding about the applicant's role, the prior conviction to which I have referred, and the need generally for a non-parole period to reflect the criminality of the offence and considerations of retribution and deterrence. 17 For these reasons, I am not persuaded that either the head sentence or the non-parole period should be the subject of intervention by this court. I would grant leave to appeal but would dismiss the appeal. 18 SPIGELMAN CJ: I agree. 19 BUDDIN J: I also agree. 20 SPIGELMAN CJ: The order is as stated by Justice Hidden. **********