New South Wales Court of Criminal Appeal CITATION : Regina v Heip Tan NGUYEN [2004] NSWCCA 438 HEARING DATE(S) : 30/11/04 JUDGMENT DATE : 30 November 2004 JUDGMENT OF : James J at 32; Hidden J at 31; Bell J at 2 DECISION : Application granted; Appeal dismissed. Crimes Act 1901 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 Drug Misuse and Trafficking Act 1985 R v Johnstone [2004] NSWCCA 307 R v Markarian [2003] NSWCCA 8 CASES CITED : R v Shankley [2003] NSWCCA 253 R v Stafrace [1997] 96 A Crim R R v Tipler [2000] NSWCCA 382 PARTIES : Regina Heip Tan NGUYEN (Applicant) FILE NUMBER(S) : CCA 2004/2429 COUNSEL : DML Woodburne (Crown) P Doyle (Applicant) SOLICITORS : S Kavanagh SE O'Connor (Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 03/21/3365 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/2429 JAMES J HIDDEN J BELL J Tuesday 30 November 2004 REGINA v HIEP TAN NGUYEN Judgment 1 JAMES J: The court is in a position to give a decision and I will call upon Justice Bell to give the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of sentences imposed by his Honour Judge Sorby (the Judge) in the Campbelltown District Court on 9 March 2004. The applicant pleaded guilty to three counts charging him with the supply of a prohibited drug (heroin) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (the Act). Two offences occurred on 27 May 2002 and the third offence was committed a little over one year later on 30 May 2003. 3 The facts relating to the two offences committed on 27 May 2002 were the subject of an agreed statement. The applicant supplied a $50 deal of heroin to a person in the vicinity of the Bonnyrigg Shopping Plaza. It would appear that the purchaser made contact with the applicant by telephone shortly before the transaction was effected. The sale was observed by police officers, who immediately arrested the applicant. He was asked if he had any more drugs in his vehicle and he replied: "Yes, in the door". The police found thirty-one foil packages containing white powder and a rock wrapped in a plastic bag. These were later analysed and found to contain heroin. The applicant admitted that the drugs belonged to him. The thirty-one foils in combination weighed 4.9 grams and the heroin in rock form weighed 3.4 grams. It was analysed and found to be 40.5 per cent pure heroin. The foil packages were not tested for purity. A sum of $2070 in cash was located on the applicant at the time of his arrest. 4 The applicant was charged with a number of offences and released on bail when he appeared before the Liverpool Local Court the following day. There were a number of conditions attaching to his bail. These included a requirement that he reside at premises in Edensor Park and that he not leave those premises other than between the hours of 8 am and 5 pm and then only for the purposes of attending work, reporting to the police or attending legal or medical appointments. 5 While the applicant was the subject of this bail he was charged with the third offence. Again, the facts of the offence were not in issue. He was found by the police slumped over the driving wheel of his motor vehicle in a street in Campbelltown shortly after midday. After he was roused the police noted he appeared drowsy and his eyes were bloodshot. A roadside blood test was conducted with a negative result. A search of the applicant's person revealed a cylindrical film container in the pocket of his jacket. It contained a cream coloured tablet with a symbol impressed onto it and a half tablet of similar appearance. In addition there were fifteen street deals of heroin. A re-sealable plastic bag was found in the applicant's trouser pocket containing heroin in a compressed form. A glass pipe with some residue on it was located in the centre console of the vehicle together with a further nine foil packages containing street deals of heroin. The latter were stored in a cylindrical plastic confectionery container. A notebook was also found and this contained a number of names with corresponding columns containing numbers. The notebook entries were consistent with it being ledger recording drug sales. 6 While the police were searching the vehicle the applicant took hold of the cylindrical film container, which had been placed on the roof of the car, and he sprinted away. The police gave chase and he was caught a short distance from the scene. In the course of his capture he swung his arm in the direction of one of the police officers causing a graze to her right shoulder. 7 Analysis of the drugs seized by the police revealed a total quantity of substance containing heroin in the amount of 14.56 grams. The two tablets to which I have referred contained methylamphetamine and weighed .034 grams. 8 The applicant was committed for trial by the Liverpool Local Court in relation to the charges arising out of his arrest in May 2002. The indictment, as originally framed, included a charge of ongoing supply of heroin contrary to s 25A of the Act. The Judge was informed by the Crown Prosecutor that the applicant had been given an opportunity to plead to the subject two counts on 28 February 2003. In the event he entered pleas to these counts on 12 September 2003. The Crown accepted his pleas in full satisfaction of the indictment. The applicant pleaded guilty in the Local Court to the third offence. 9 At the sentence hearing the applicant asked the Judge to take into account offences on a Form 1 in dealing with the 2002 offences. These were two offences of goods in custody contrary to s 527C(1)(a) of the Crimes Act 1900. Each was committed on 27 May 2002 and arose out of the circumstances of the applicant's arrest at the Bonnyrigg Plaza and each related to the possession of sums of cash. The applicant asked the judge to take into account three offences in sentencing him for the supply heroin offence committed in May 2003. These offences arose out of the circumstances surrounding his arrest on 30 May 2003 and consisted of a charge of possession of prohibited drug relating to the possession of the one and a half tablets of methylamphetamine and two charges of resist officer in the execution of duty (relating to circumstances that I have referred to in [6] above). 10 The offences committed in May 2002 required that the Judge sentence the applicant in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 as it stood prior to the commencement of the amendments introduced by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002. The Judge was aware of this circumstance and no challenge has been made to the approach that his Honour adopted in this respect. The Judge sentenced the applicant as follows: for the first offence of supply heroin committed on 27 May 2002 the applicant was sentenced to a term of two years' imprisonment to commence on 30 May 2003; for the second offence committed on that day involving the deemed supply of heroin the applicant was sentenced to a concurrent term of imprisonment for two years. His Honour took into account the matters set out on the Form 1, to which I have referred, in sentencing for the latter offence. His Honour declined to impose a parole period with respect to these two offences for the reason that it would be subsumed in the sentence to be imposed with respect to the third offence. For the third offence committed on 30 May 2003 the Judge sentenced the applicant to a non-parole period of two years and six months to commence on 30 May 2004 and to expire on 29 November 2006. His Honour imposed a balance of sentence being a period of eighteen months to date from 29 November 2006 and to expire on 28 May 2008. 11 The Judge said that the sentences imposed for the 2002 offences were discounted by ten percent in recognition of the utilitarian value of the pleas of guilty. A full discount for the utilitarian value of the plea of guilty was allowed for the third offence. 12 The applicant gave evidence at the sentence hearing. References from a former employer and the Chaplain of the Parklea Correctional Centre were tendered in his case, together with a report by Mark Benad, a psychologist. A number of certificates attesting to his attendance at courses while on remand were also in evidence. The Judge set out the subjective features of the applicant's case in these terms: "According to the evidence tendered, (exhibits 1 and D) the prisoner migrated to Australia with his parents when he was two and a half years old in 1980. He completed school to year 12 but did not complete the year as he started to, as he said, 'mix with the wrong crowd'. He then tried with his parents' encouragement to finish year 12 at TAFE but again he did not complete. On leaving school, the prisoner became involved in organising 'dance parties' for friends for two years. He also had some work as a storeman a job his father assisted him in obtaining. He has not worked since 2001. He had maintained himself through drug sales according to the report of Mr Mark Benad the psychologist although he dealt in drugs to satisfy his own addiction, he said. I now deal with the drug situation and his personal drug use. The evidence states that the prisoner began using marijuana when he was sixteen and amphetamines at dance parties. He started on heroin at the age of eighteen, while at school, due to peer pressure. Smoking heroin became a daily habit. In year 2000 after his partner gave birth to a child, he stoped using for a few months but resumed again. He attempted some home detoxification unsuccessfully under Dr Tan. He has not attended any inhouse programs. He claims to be drug free since he went into custody on 30 May 2003. While in custody, the prisoner has completed a drug and alcohol course (exhibit 3). He works in the print shop in goal five days a week. He said in the witness box that he intended to find work on his release and wanted to be a 'better father' to his five year old daughter. He said that he would be prepared to undergo further counselling on his release and regular urinalysis. He said that during his time in gaol, so far, he has had time to reflect 'and it is not worth it'." 13 Save for one matter, to which I will return, no challenge has been advanced to the Judge's statement of the subjective features of the applicant's case or to the manner in which he dealt with it. The applicant was aged twenty-six years at the date of the first offence. He had a relatively minor record of previous offences and he had not been sentenced to a term of imprisonment. Relevantly his record comprised the following: on 4 July 2001 he was convicted before the Liverpool Local Court on charges of (i) possess prohibited drug for which he was fined a sum of $300; and (ii) goods in custody for which he was made the subject of a s 9 bond for a term of two years, and, (iii) a further charge of goods in custody for which he was fined a sum of $400. 14 The grounds of appeal that were filed challenge the sentences as follows: Ground 1, the sentence given is manifestly excessive; Ground 2, his Honour erred in finding that the applicant gave no evidence of remorse or contrition; Ground 3, his Honour erred in only allowing for ten per cent discount for count 3 relating to the charges of 30 May 2003. (The latter appears to be an error. The written submissions filed on the applicant's behalf make clear that the challenge advanced in this respect is to the judge's determination to discount the sentences imposed with respect to the 2002 offences by an amount of ten per cent). 15 It is convenient to deal firstly with ground 2 which contends that the Judge erred in finding that the applicant gave no evidence of remorse or contrition. The finding that is challenged by this ground is his Honour's statement at ROS 8: "The pleas do indicate some remorse on the prisoner's point (sic part), however, he gave no evidence of remorse or contrition in the witness box." 16 A consideration of whether an offender is remorseful for his or her offence is relevant to the exercise of the sentencing discretion. It was relevant prior to the introduction of s 21A in its original form and it remains relevant under that section as it currently stands. With respect to the 2002 offences it was necessary for the Court to take into account the degree to which the offender had shown contrition for the offences in any manner, pursuant to 21A(2)(e)(ii) and with respect to the 2003 offences it was relevant to consider whether the offender had shown remorse for the offence in any manner pursuant to the provisions of 21A(2)(i). 17 The applicant gave evidence at the sentence hearing. It is not in issue that he did not, in terms, give evidence of being remorseful for his offences. In written submissions Mr Doyle, who appears on the applicant's behalf, contended that when regard is had to the whole of the evidence including his statements to the probation officer and the psychologist and to certain of the answers given by him in evidence, there was evidence of remorse in addition to that evidenced by the pleas of guilty. In this respect Mr Doyle relied on the following: in a pre-sentence report dated 3 November 2003 Mr Brooks, the Probation and Parole officer, recorded: "The offender indicated that he regretted committing the offences because of the continued stress he has inflicted on his family". Under the heading "Summary and sentence options" Mr Brook observed: "The offender seems to regret his involvement in what he recognises as serious offences". 18 In Mr Benad's report, dated 2 March 2004, the following appears: "He spoke of shame regarding his imprisonment. His relatives are unaware of his imprisonment, they believe he is working in Queensland. He spoke of guilt and he recognises the seriousness of the offences." 19 The applicant's evidence that is relied upon in support of this ground is set out in written submissions: "Q. What else do you hope for in your future? A. I want to be a good father because now my mother's got custody of my daughter she's currently attending school now. Both my parents cannot speak English, so they can't help her with her homework when she requires it, so I want to be there to help her. Q. And how do you feel about your situation, being in gaol and not being able to help your daughter? A. I wish I never took drugs at all at first. Regretful. Q. And sir with regards to your daughter, you know what would happen if you ever went back to drug use? A. I will lose her. … Q. Now you've had some time in goal, some nine months to reflect upon these events, what do you feel about them now? A. It's not worth it. It's not worth coming to gaol over that." 20 The statements attributed to the applicant in the pre-sentence report and by the psychologist are some evidence of the applicant's regret for his offending, in particular for the stress that he had occasioned to his family. Mr Doyle submitted that while the applicant had not stated regret for his offending behaviour in supplying heroin to members of the public, he had, nonetheless, acknowledged his awareness of the harm he had done to himself and his family and that this was in some respects a more telling expression of remorse than a glib assertion that he was sorry for what he had done. It may have been open to the judge to have reasoned in the way that Mr Doyle invites this Court to do, and to find that the applicant was remorseful for his offending behaviour. The Judge had the benefit of seeing the applicant and he did not make such a finding. As I have already observed, it has not been submitted that his Honour failed to take into account the material contained in both the pre-sentence report and the psychologist's report in assessing the subjective features of the applicant's case. 21 The circumstance that the Judge did not find as a fact that the applicant was remorseful in a degree greater than that evidenced by his pleas of guilty does not evidence error. It is to be borne in mind as Hunt CJ at CL observed in Stafrace [1997] 96 A Crim R that a Judge is, of course, not obliged to accept assertions of contrition made by an offender. It was open to the judge to assess the applicant's evidence upon the basis that he did. I would reject the second ground of challenge. 22 Ground 3 challenged the discount allowed for the pleas of guilty for the two offences committed in 2002. In written submissions Mr Doyle put it this way: "In any event I can only comment that the plea was obviously late in the proceedings, however, as there was no trial I submit that there was substantial utilitarian value to the criminal justice system, that being the State of New South Wales was spared the expense of the trial." 23 On the hearing of the application Mr Doyle did not submit that a discount of ten per cent in respect of pleas of guilty entered late in the day constituted error; rather, he sought to invite the court to consider that in the event the application succeeded on another ground: this court exercising the sentence discretion afresh might allow a somewhat more generous discount. In his submission by reference to the decision of this court in R v Shankley [2003] NSWCCA 253 per Howie J at [33] to [37], a discount of the order of fifteen percent might be thought appropriate. 24 It is to be borne in mind that the question of where in the range proposed in the guideline judgment in R v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 a discount should fall (or indeed whether a discount should be allowed) is a discretionary judgment: and see Johnstone [2004] NSWCCA 307 at [21] – [28]. 25 I turn now to the first ground of challenge, namely that the sentences are manifestly excessive. In the written submission filed on the applicant's behalf considerable reliance was placed on the decisions of this court in R v Tipler [2000] NSWCCA 382 and R v Markarian [2003] NSWCCA 8. In his written submissions Mr Doyle noted that the applicant in Tipler had been convicted of an offence of ongoing supply under s 25A of the Drug Misuse and Trafficking Act. The drug involved was heroin. Mr Doyle noted that the matter had been approached upon the basis that Tipler had been acting at a somewhat higher level than a street supplier and that he had matters taken into account on a Form 1. A sentence of five years comprising a minimum term of two years nine months and an additional term of two years three months had been imposed in that case. As Mr Doyle noted, the matter had been argued before this court on an issue of parity but he sought to draw comfort from the circumstance that the Court had dismissed the appeal without criticism of the sentence. Markarian was a Crown appeal. Neither case involved a consideration of the range of sentencing for offences of supply prohibited drugs contrary to s 25(1) of the Drug Misuse and Trafficking Act. Comparing the sentences imposed in this case with those passed in Tipler and Markarian does not assist in determining whether the subject sentences exceeded the bounds of the exercise of sound discretion. 26 The applicant submitted that the sentences were excessive having regard to the fact that he had not previously been sentenced to a term of imprisonment and that they had been committed in order to feed his addiction. In this respect some reliance was placed on passages in the judgment of this court in R v Tulloh (unreported, 16 September 1993 per Hunt CJ at CL at 1.9): "It has sometimes been suggested that there is in effect a sub category of suppliers, the user/dealers who sell primarily only to feed their own habit, and that such suppliers should be treated differently to those whose sole or primary purpose in the sale of drugs is to satisfy their greed. For myself, I do not believe that it assists sentencing judges to break up offenders into too many categories. Obviously enough, the conduct of the user/dealer whom I have described is at a lower level of criminality than the trafficker for greed and, although a custodial sentence is not necessarily automatic in such cases, such a sentence is an option which the sentencing judge must always seriously consider: Regina v John William Summerville (CCA, 9 September 1993, unreported) at 4. But every case will depend on its own circumstances, and the proposition which I stated earlier that a custodial sentence is normal in the case of trafficking to any substantial degree, whether or not a profit has been obtained - is the one which the sentencing judge should first apply." 27 The Judge sentenced the applicant on the basis that he was addicted to heroin. In the event that the applicant engaged in the supply of heroin purely for greed it would have been open to have imposed a sentence of greater severity. 28 In assessing a challenge that the sentences are manifestly excessive it is important to bear in mind that the maximum penalty for these offences is one of fifteen years' imprisonment. The sentences are structured to give effect to totality in the determination of partial concurrence as between those imposed for counts 1 and 2 and that imposed for count 3. It was necessary for the sentence imposed for the latter count to reflect the gravity of the circumstance that it was committed while the applicant was on bail for similar offences. The quantity of heroin involved in the offences committed on 30 May 2003 was itself significant. It was necessary that the sentences reflected considerations of general deterrence and, with respect to the sentence imposed on count 3, to personal deterrence. 29 In the way the matter was developed in oral argument Mr Doyle did not contend that the overall sentence was manifestly excessive so much as that for a person serving a sentence of imprisonment for the first time and the effective non-parole period was too long. I am not persuaded, having regard to the matters to which I have referred, that that challenge has been made good. 30 For these reasons the orders that I propose are that the application be granted but that the appeal be dismissed. 31 HIDDEN J: I agree with the judgment of Justice Bell and the orders proposed by her. 32 JAMES J: I also agree. The orders of the court will be as proposed by Justice Bell. ********** Last Modified: 12/21/2004 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.