REGINA v. TRUONG [2003] NSWCCA 314

New South Wales Court of Criminal Appeal

CITATION : REGINA v. TRUONG [2003] NSWCCA 314 HEARING DATE(S) : Friday 31 October 2003 JUDGMENT DATE : 31 October 2003

JUDGMENT OF : Spigelman CJ at 1/31; O'Keefe J at 32; Greg James J at 2 DECISION : Leave to appeal granted; appeal dismissed.

CATCHWORDS : Criminal Appeal - sentence - offence of ongoing supply of drugs - rejection of applicant's account of motivation - questions of credibility for primary judge. LEGISLATION CITED : Criminal Appeal Act 1912 CASES CITED : N/A PARTIES : REGINA v. TRUONG, Lan Van FILE NUMBER(S) : CCA No. 60230 of 2003 COUNSEL : Crown: D. Howard App: P. Boulten, SC. SOLICITORS : Crown: C.K. Smith App: M. Klees1

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3417 FILE NUMBER(S) : LOWER COURT Sides, DCJ. JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL No. 60230 of 2003

SPIGELMAN, CJ. O'KEEFE, J. GREG JAMES, J.

FRIDAY 31 OCTOBER 2003 REGINA v. LAN VAN TRUONG Judgment

1 SPIGELMAN CJ: I invite Greg James J to give the first judgment. 2 GREG JAMES J: Lan Van Truong seeks leave to appeal against the sentence passed on him by His Honour Judge Sides, QC. in the District Court of New South Wales at Campbelltown, following his conviction on his plea of guilty to one count of supplying prohibited drugs on an ongoing basis for financial reward. 3 That offence is punishable by a maximum penalty of 20 years imprisonment, a fine of $385,000, or both. 4 The applicant had been arraigned on an indictment, which also contained a second count alleging an offence of supplying a prohibited drug, but upon that arraignment, when the applicant pleaded guilty to the ongoing supply count, the Crown Prosecutor accepted that plea in full discharge of the indictment on the basis that the count alleging the second offence, alleged matter which was properly part of the facts underlying the ongoing supply offence. 5 His Honour sentenced the applicant to imprisonment for three and a half years, to commence 21 June 2002 and to expire 20 December 2005. In respect of that sentence, his Honour imposed a non-parole period of two years, commencing 21 June 2002 and expiring on 20 June 2004. 6 The applicant had been arrested on 21 June 2002 and had been in continuous custody in respect of this matter since that date. 7 His Honour found that the matter had come to the court by way of a s.51A committal for sentence on one count of ongoing supply, and a second count of supply. The allegation in that second count was that the applicant had agreed to supply drugs. When his Honour had raised a date error in the s.51A documents, it became apparent that the second count in those documents related to an event which had in fact taken place at the time of the commission of the last of the drug transactions to which the first count related. It was in those circumstances that his Honour adverted in his remarks on sentence to that event being "part and parcel of the ongoing supply count and allegations". 8 In substitution for the s.51A documents, an ex officio indictment was presented before his Honour and to that indictment the applicant pleaded guilty, as I have said. His Honour found, in those circumstances, that the plea of guilty was entered at the earliest opportunity and that the offender was thereby entitled to the maximum leniency able to be extended for it, based upon utility, that is, a 25% reduction in the custodial sentence. 9 His Honour referred to the circumstances of the commission of the offence comprised in count one:- "On three occasions the offender supplied a small quantity of heroin to an undercover police officer in return for $50. Contact was made on each of these occasions by the undercover officer ringing a phone number and speaking to the offender. The first transaction occurred at about 2.40 pm on 20 June, when the officer was given a green balloon containing 0.12 grams of substance that contained heroin. The second transaction was the following morning at about 11.00 am. On this occasion the $50 purchased a balloon containing 0.11 grams of substance that contained heroin. The third transaction was at two o'clock that afternoon, that is on 21 June this year, when a green balloon was exchanged for $50. Following that exchange there was a discussion between the undercover officer and the offender. During this conversation it was agreed that the offender would sell some more heroin to the undercover police officer the following day. The amount of heroin to be the subject of this sale was not settled. The place of the sale was agreed to be the KFC next to Peter Warren Motors at Warwick Farm, but it was also clear that it would not take place unless there was further communication, by the telephone, between the offender and the undercover police officer. Shortly after this conversation, the offender was arrested. When the car that he was in at the time was searched two balloons were found in the console area of the car. These two balloons, along with the green balloon that had been purchased were subject to analysis. They were found to contain heroin. The total weight of the substances in those three balloons was 0.34 gram. One hundred and $50 was found in the offender's wallet, $50 of that was pre-recorded money that the offender had received from the police during one of the transactions on 21 June." 10 A number of written grounds of appeal have been raised. They are:- "1. His Honour erred in finding the applicant gave inconsistent explanations for the sale of his business. 2. His Honour erred in finding inconsistencies in the reasons for the commission of the offence. 3. His Honour erred in taking an adverse view of the applicant's evidence as to his failure to sell his motor vehicle. 4. His Honour erred in refusing leniency to the applicant based on his explanation for committing the offence. 5. His Honour erred in the determination of the head sentence before applying the discount for an early plea." 11 Written submissions in support of these grounds have been filed. In the written submissions in support of ground one reference is made to the evidence of the applicant that he had sold the bakery in which he had been working for some 10 years, prior to the commission of the offence, for the following reason:- "I could see that I'd been working with that business for 10 years and I didn't spend enough time with my wife and my children. I want to take a rest and I want to sell the business." 12 The applicant gave evidence that, for some eight months after selling the bakery, during which time he had attempted unsuccessfully through Centrelink to find work, he had become bored and felt very depressed, and that it was only some eight months after he had sold the business that he commenced to find enjoyment in gambling and went into "that path of going to the club". That was at a time at which he felt very depressed. 13 Reference to the Probation and Parole Officer's report, however, refers to his gambling and alcohol intake as having become significantly increased during the period in which he was unable to find employment, and that his gambling and excessive consumption of alcohol commenced prior to selling the business. The probation officer recorded that Mr. Truong's wife gave the alcoholism and gambling as being the reasons for the sale of the business, rather than because he was always working and wanted to spend time with his wife and family. 14 The sentencing judge examined his circumstances after his arrival in Australia and his subsequent purchase of the bakery, in some detail. He noted the references in the probation report to the applicant contending he wanted to spend more time with his family and the wife's indication that the business had been sold because of the alcoholism and gambling. He noted an inconsistency between what the offender said, as reported in the pre-sentence report concerning the gambling, and intake of alcohol before the sale of the business, and the evidence given by the applicant before him, saying:- "As I understood the tenor of his evidence given today, he does not seem to be quite as accepting of those propositions as the pre-sentence report indicates." 15 The applicant did not deal expressly with these matters directly in his evidence in chief. There was, however, evidence that on the sale of the bakery he received some $80,000, of which the bulk went towards payment of the house mortgage, but that prior to the sale of the bakery, he was engaged in gambling activities and acquired winnings. 16 Following the payment of money into the mortgage, he apparently stopped paying money to his wife to put toward the mortgage and, although he gave his children some pocket money, "that was it, he paid nothing else". He had then no other source of income. Nonetheless, the family circumstances were such as to enable the wife to purchase a Toyota Prado. 17 It was submitted his Honour's observation was not open to him on the basis that, when referring to the wife's account of the reason for the business being sold and the applicant's account as given to the probation officer, his Honour concluded that the explanations were inconsistent, and did so on an illogical basis. Further, that his Honour, from that, concluded that the applicant's account should not be accepted. It was submitted the accounts were not inconsistent and, so far as they were, no adverse inference was fairly open to be drawn from that inconsistency. 18 For my part, I see no basis to conclude that the sentence is to be impugned by reason of that argument. In my view, his Honour was reflecting on a matter that went to the applicant's credit and to the acceptability of the applicant's explanations concerning what means were available to him, and the suggestion that he was driven only to gambling and alcoholism and eventually, shortly prior to the commission of the offence, to drug taking, by reason of being unable to find work, after the bakery had been sold. 19 His Honour considered that the applicant was "lacking in frankness" about his financial situation. Particular mention is made in the written submissions of the applicant, of his having given in evidence an explanation asserted to be credible, as to why he did not mention a gambling debt of $1,000 to the probation and parole officer. It was asserted in the written submissions that the trial judge had taken an adverse view of the applicant's evidence concerning his motivation for committing the offences charged, in that he gave as an explanation that he had been subject to a gambling debt, in fact, the very debt of $1,000 he had not mentioned to the probation and parole officer, and that the creditor was insisting upon repayment. It was asserted the trial judge should have accepted the applicant's account of the debt and his further assertion that he, fearing that his family might be harmed by the creditor, agreed, reluctantly, to participate in the sale of drugs. 20 When considering the acceptability of such an account, the trial judge referred to a motor vehicle which the applicant had purchased some time after the sale of the bakery business, for about $8,500, as being available for sale to meet the debt. His Honour said:- "I must say that I found his evidence about his financial situation at or about the time of his arrest to be lacking in frankness. There seems to me to be some inconsistency in relation to his sworn testimony and the content of the probation report so far as his financial circumstances at the time of his arrest were concerned. Even if I were prepared to accept that he became involved in this crime as a consequence of indebtedness and/or his use of heroin that does not excuse his offending, although it may explain it. As I have indicated he clearly had the means to discharge a debt of that order by the realisation of an asset. He chose not to take that course but rather to distribute illicit drugs within the community. I do not see that he is entitled to any leniency based upon the explanations for his crime that he has sought to offer the Court. This is not a case where I am prepared to find that he was an individual who was not living beyond his means. By the same token I am not satisfied beyond a reasonable doubt that his involvement was other than selling at a street level to drug users." 21 His Honour has propounded, in my view appropriately, matters he found as minding him not to accept the applicant as a fully credible witness on those issues. His Honour, by reason of that lack of credibility, was unable to accept the applicant's assertions of his motivation for committing the crime as pointing to a matter which might mitigate culpability. His Honour did not aggravate the circumstances of the crime or the applicant's circumstances by reason of rejection of that proffered explanation. 22 Grounds one to four, as filed in the written submissions, all relate to the matters his Honour took into account when assessing the applicant's credibility. For my part, I do not see that his Honour's conclusions were not open to him, and, indeed, on my reading of the material, for myself, they are conclusions to which I also would have come. 23 So far as his Honour accepted the suggestion of a debt, he rightly, in my view, adverted to the ability of the applicant to meet that debt by lawful activity, the sale of the car, rather than using the illicit activity of selling drugs. It is apparent, when examining the applicant's evidence, that his wife had the Prado and he had available the Celica, to which his Honour was adverting. The applicant gave as his reason for not selling the Celica, that it was his means of transport. His Honour was entitled to conclude that the applicant elected to retain that means of transport in preference to not committing this series of serious offences encompassed in count one. I do not see that any matter of complaint justifiably arises under the first four grounds of appeal. 24 As to the fifth ground, it is quite apparent, concerning the way the plea came to be entered, and his Honour's remarks in his reasons for sentence, in which he specifically referred to affording the applicant a discount of 25% for a plea at the earliest opportunity, that his Honour did not err in the manner asserted by determining the head sentence before applying the discount for an early plea. 25 On the hearing of the appeal, further submissions were made. Those submissions should be considered in the light of his Honour having determined that the discount of 25% on the utilitarian basis should be afforded to the applicant for his early plea. It was submitted that having regard to the matters found by his Honour, and to other matters to which counsel took us, the sentence should be regarded as manifestly excessive. 26 It was put that his Honour may have accepted to some substantial degree that the offence was committed while the applicant was unemployed, and living an unstructured lifestyle, that the probation and parole report not only referred to this, but generally speaking, was favourable to the applicant and, in particular, as reflecting on the applicant's prospects for rehabilitation; that, in the context of the applicant being a person of late middle age, with no previous record. 27 In this context, we were taken to a number of other cases in this court, which it was submitted would allow the court to test the proposition that this was a most severe sentence, having regard, not only to the objective culpability but to the subjective circumstances found by his Honour in favour of the applicant, and referred to in the Probation and Parole Service report, particularly in the context of the 25% discount for an early plea. 28 Those cases should be considered in the light of the Judicial Commission's statistics, which were adverted to in the written submissions filed in support of the application. However, notwithstanding that the submission is that in all the circumstances this sentence was simply so high to be manifestly excessive, and notwithstanding the 25% , whilst I apprehend that the sentence is a severe sentence, I am unable to conclude it is outside the appropriate range of sentences available to his Honour in all the circumstances. 29 Having regard to the criminality involved in the applicant's conduct, and the matters taken into account by his Honour, I am unable to see that any other sentence is warranted in law and should have been passed. 30 In my view, the application for leave to appeal should be granted, but the appeal dismissed. 31 SPIGELMAN, CJ: I agree. 32 O'KEEFE, J: In my opinion, the sentence imposed was not such as to trigger the essential precondition for the exercise of the power to quash the sentence imposed and pass another sentence in substitution for it, as required by s.6(3) of the Criminal Appeal Act 1912. For the reasons, and in the light of the analysis made by Greg James, J., I agree the appeal should be dismissed. 33 SPIGELMAN, CJ: The order of the court is, leave to appeal is granted but appeal dismissed. **********