New South Wales Court of Criminal Appeal CITATION: Regina v LY & NGUYEN [2005] NSWCCA 57 HEARING DATE(S): 21/02/05 JUDGMENT DATE: 21 February 2005 JUDGMENT OF: Grove J at 28; James J at 2; Barr J at 27 DECISION: Leave to appeal against sentence granted. Each appeal is dismissed CATCHWORDS: CRIMINAL LAW - sentencing - supply of a prohibited drug - heroin - co-offenders - whether sentencing judge failed properly to apply principles of parity between co-offenders - whether sentencing judge erred by finding that the notional sentence to be imposed on a co-offender before a discount was allowed on account of a plea of guilty was the appropriate sentence to be imposed - co-offender sentenced for unrelated offences, had a criminal history, drug addiction - whereas applicants had no criminal history, no addiction CASES CITED: The Queen v Henry (1999) 46 NSWLR 346 PARTIES: Regina v Khanh LY & Chin Thi Nguyen FILE NUMBER(S): CCA 2004/2871 & 2004/3045 J Bennett SC - Respondent COUNSEL: A Cook - Applicant - Nguyen PJ McGrath - Applicant - Ly S Kavanagh - Respondent SOLICITORS: M Sten - Applicants LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0171 LOWER COURT JUDICIAL OFFICER: Morgan DCJ IN THE COURT OF CRIMINAL APPEAL 2871/2004 GROVE J JAMES J BARR J MONDAY 21 FEBRUARY 2005 REGINA v CHIN THI NGUYEN REGINA KHANH LY Judgment 1 GROVE J: Mr Justice James will deliver the first judgment. 2 JAMES J: Khanh Ly and Chin Thi Nguyen, his former wife, applied for leave to appeal against sentences imposed on them in the District Court by her Honour Judge Morgan on 7 May 2004. The two applications for leave to appeal were, by consent, heard together. 3 In a trial before Judge Morgan and a jury each of the applicants had been found guilty on a charge of supplying a prohibited drug, heroin, on 3 May 2002. Each of the applicants was sentenced by Judge Morgan to a term of imprisonment of five years, with a non-parole period of three years six months commencing on 5 March 2004, the date on which the jury had returned its verdicts of guilty against the applicants. The maximum penalty for the offence of supplying a prohibited drug is imprisonment for 15 years and/or a fine of 2000 penalty units. 4 In addition to sentencing the applicant Nguyen for the offence of supplying a prohibited drug, Judge Morgan also sentenced Nguyen for two other offences to which she had pleaded guilty, a charge of receiving a camera and a charge of goods in custody, the goods being four cameras. For the offence of goods in custody Judge Morgan sentenced Nguyen to a term of imprisonment of three months to date from 5 March 2004; for the offence of receiving Judge Morgan sentenced Nguyen to a term of imprisonment of nine months also to date from 5 March 2004. 5 The two applicants had been co-offenders in the offence of supplying a prohibited drug on 3 May 2002. Another co-offender in that offence was a man named Con Van Huynh, who had pleaded guilty to a charge of supplying a prohibited drug on 3 May 2002 and who had been sentenced on 12 December 2002 by another District Court Judge, Judge Urquhart. 6 In sentencing the two applicants Judge Morgan delivered a single set of remarks on sentence. In her remarks on sentence her Honour stated the facts of the offences by summarising some of the evidence given at the trial, which her Honour clearly accepted for the purpose of sentencing the applicants. On these applications no complaint has been made by either applicant about this part of her Honour's remarks on sentence. Her Honour said: "The evidence before the jury was that as a result of information received police obtained approval to conduct a controlled operation, that is to use an informant or undercover police officer to buy prohibited drugs. A registered informant (Steve) gave evidence that on or about 2 May 2002 he telephoned the offender Ly, a person he called 'father', and made inquiries about the purchase of an ounce of heroin and the cost of it. He was told it would cost $9000. In evidence Steve said that as at 2 May 2002 he was a heroin addict and had been for some time. On 3 May 2002, together with an undercover police officer 'Tony', Steve went to the offender's premises at Sydenham Road, Marrickville. The car was driven into the back lane behind the house and Steve went to the back door and rang the bell. There was no answer. He returned to the car and used Tony's mobile phone to ring Ly. When Ly answered he said 'It's Steve here, open up'. The undercover officer had been fitted with a listening device and what was said by Steve was recorded on tape and was played to the jury. After this conversation Steve returned to the back door where he was met by Ly. Steve said he had a friend outside with money to purchase an ounce and asked did he have it, to which Ly replied yes. The offender Nguyen, whom Steve called 'mother', was inside the house and told him to come back in half an hour. Steve left the premises and returned in half an hour, went to the back door, knocked, and 'father' opened the door. He told Steve to leave his friend outside and that only he, Steve, should come inside. Steve told Ly that his friend would not give him the money and suggested Ly should check him out. Ly then walked to the rear gate, had a look at Tony and then said it was okay for him to come in. The undercover officer went to the boot of the car and removed a plastic bag containing the money. He was introduced to Ly and as they all walked to the house the offender Nguyen beckoned them inside. As they did the telephone rang and Nguyen had a conversation in Vietnamese. A translation of that conversation revealed Nguyen requesting the person to whom she was speaking to come quickly to the house. They went into the dinning room and sat at the table where the undercover officer unwrapped the plastic bag he had taken from the boot and removed the money which he commenced to count. Nguyen then made gestures to the undercover officer indicating that he should lift his sleeves and also to lift his shirt up. The undercover officer gave evidence that he said to the female offender words to the effect 'I am not a user, it is just business. Mrs Nguyen continued to gesture to Tony to lift his sleeves, apparently to ascertain whether he had any track marks on his arms. She then accused him of being a cop. Tony became concerned for his own safety. He placed the money in the bag and left the house. The tape of the proceedings in the house was played to the jury. A translation was also part of the evidence in this matter. Steve asked the offenders what was happening to which Mrs Nguyen said 'It is coming'. Steve then joined Tony outside at the car. Shortly afterwards Steve returned to the back door where Ly was standing with another Asian man whom Steve knew as Andy and whom he understood was the offender's son-in-law. There was a discussion as to the way in which the drug exchange was to take place and eventually Andy went to the car, spoke to Tony and was handed the money which he counted at the car. Andy then went back to the house and returned with a plastic bag containing a white rock substance which was later analysed and found to be 28.21 grams of heroin. He handed this to Tony in exchange for $9000, following which discussions took place between them concerning future supplies". 7 The person referred to in her Honour's remarks as "Andy" was the co-offender Con Van Huynh. 8 In her remarks on sentence her Honour made some findings about the objective seriousness of the offence. She found that the supply on 3 May 2002 was not an isolated sale, that the applicants had been engaged in commercial dealings in heroin, that on 3 May 2002 the undercover officer had made it clear that he was buying the heroin, not for his own use, but for on-selling, that neither of the applicants was addicted to, or even used, heroin, and that there were discussions on 3 May 2002 about future purchases of heroin from the applicants. 9 In her remarks on sentence Judge Morgan referred to some of the subjective features of the applicant Ly, who had given evidence in the proceedings on sentence. He was born in Vietnam in October 1954. He had left school at the age of 10 and worked as a farmer, except when doing military service. At the age of 27 he had married the applicant Nguyen. Four children of the marriage were born in Vietnam. In 1988 the family left Vietnam in a fishing boat and travelled to Hong Kong, where they stayed in a refugee camp. In 1991 the family came to Australia. Another child was born in Australia. In Australia he attended English language courses but he had learnt to speak only a little English. For most of the time he had been in Australia he had been unemployed. In 2001 he and Nguyen had separated. Ly had never used prohibited drugs. He had no previous criminal convictions. He expressed no remorse for the offence he had committed. 10 The applicant Nguyen did not give evidence in the proceedings on sentence and Judge Morgan relied on a pre-sentence report and a report by a psychologist in making findings about the subjective features of Nguyen. Nguyen was born in Vietnam and at the time of sentencing was 45 years old. In Vietnam she had left school at the age of 12 and had then assisted in raising her numerous brothers and sisters and in working on the family farm. Particulars of her marriage, her married life and the movements of the family have already been given by me in dealing with the subjective features of the applicant Ly. After the divorce in 2001 the applicant Nguyen received social security benefits but then obtained a job as a process worker. Since Nguyen went into custody on 5 March 2004, the older children have been caring for the youngest child of the marriage who was born in Australia. Nguyen maintained to her probation and parole officer who prepared the pre-sentence report that she had never used alcohol or any illicit substance. She denied that she had committed the offence of which she had been found guilty and accepted no responsibility for the offence. Nguyen had no previous criminal convictions. 11 In her remarks on sentence her Honour said that she accepted submissions by counsel for Nguyen in relation to the two other offences for which Nguyen was to be sentenced, that if Nguyen had been sentenced for those offences in the Local Court, as she could have been, custodial sentences might not have been imposed, particularly as Nguyen had no previous criminal convictions; and that any sentences imposed for those two offences should be fully concurrent with part of the sentence for the offence of supplying a prohibited drug. 12 Judge Urquhart's remarks on sentence in sentencing the co-offender Huynh were before Judge Morgan in the proceedings for the sentencing of the applicants. In sentencing Huynh for the offence of supplying a prohibited drug on 3 May 2002 Judge Urquhart took into account two further offences, an offence of goods in custody being possession of just over $2,000 in cash and an offence of receiving stolen property. In addition to sentencing Huynh for the offence of supplying a prohibited drug, Judge Urquhart also sentenced Huynh for separate offences, to which Huynh had pleaded guilty, of receiving stolen property and of supplying a prohibited drug, both offences having been committed on 30 May 2002. 13 In his remarks on sentence Judge Urquhart made a finding that Huynh's role in the supply of heroin on 3 May 2002 had been inferior to that of the two applicants. In his remarks on sentence Judge Urquhart said that Huynh had a criminal record which included a conviction for armed robbery, for which he had served a prison sentence, and which also included convictions for possession of a prohibited drug (cannabis). In his remarks on sentence Judge Urquhart referred to evidence given by Huynh in the proceedings on sentence which his Honour apparently accepted, that Huynh had been seriously injured in a motor vehicle accident, that he had been treated with morphine to relieve pain from injuries suffered by him in the motor vehicle accident and that he had become addicted to morphine, and then heroin, and that it was in order to cater to his addiction to heroin that he had become involved in the supply of heroin. 14 In his remarks on sentence in sentencing Huynh Judge Urquhart said that because of Huynh's pleas of guilty he was allowing a discount of 25 percent on all the sentences he would impose. For the offence of receiving on 30 May 2002 Huynh was sentenced to a term of imprisonment of eighteen months with a non-parole period of twelve months commencing on 30 May 2002, the date on which he had been arrested. For the offence of supplying a prohibited drug on 30 May 2002 Huynh was sentenced to a term of imprisonment of two years eight months with a non-parole period of two years commencing on 30 May 2002. For the offence of supplying heroin on 3 May 2002, and taking the two additional offences into account, Huynh was sentenced to imprisonment for a term of three years nine months with a non-parole period of two years six months commencing on 30 May 2003. It can be seen that Judge Urquhart made this sentence partly cumulative on the two previous sentences, to the extent of twelve months. 15 In her remarks on sentence in sentencing the applicants Judge Morgan concluded on the basis of the evidence which had been given in the trial of the applicants, that there was little difference in the roles the three offenders had played in the commission of the offence. Her Honour decided that a sentence of five years, which was the sentence Judge Urquhart would have imposed on Huynh for the offence of supplying a prohibited drug on 3 May 2002, but for allowing the discount of 25 percent for Huynh's plea of guilty, would be an appropriate sentence to impose on each of the applicants. 16 Her Honour made a finding of special circumstances in favour of both applicants, in that the sentence of imprisonment she was about to impose would be the first time in custody for each of the applicants and that, because of their English language difficulties, their conditions of custody would be more than usually onerous and, in the case of Nguyen, that she was the mother of a nine year old child. 17 The only ground of appeal stated in counsel for the applicant Ly's written submissions was that the sentencing Judge failed properly to apply principles of parity between co-offenders, such that the sentence imposed on Ly was manifestly excessive in all the circumstances. The grounds of appeal stated in the written submissions for the applicant Nguyen were (1) that the sentencing Judge erred by finding that the notional sentence to be imposed on the co-offender, before a discount was allowed on account of a plea of guilty, was the appropriate sentence to be imposed upon the applicant (2) that the sentence was manifestly excessive. In the case of each applicant the ground of appeal which was pressed on the hearing of the applications was that there had been an infringement of the sentencing principles of parity or appropriate disparity in the sentencing of Huynh on the one hand and the sentencing of the two applicants on the other hand. 18 It is convenient to consider both applications together. 19 That Huynh was also sentenced for unrelated offences for which neither applicant was sentenced, the sentences imposed on Huynh for those unrelated offences and whether they were made concurrent with or cumulative upon the sentence passed on Huynh for the common offence, seem to me to be irrelevant to a consideration whether there was a contravention of the sentencing principles of parity or appropriate disparity in the sentencing of the applicants. 20 The factors which could properly be relied upon by the applicants as supporting the parity or appropriate disparity submission were the following. In sentencing the co-offender Huynh for the common offence Judge Urquhart took into account two other offences, namely, the offence of goods in custody and the offence of receiving, whereas no additional offences were taken into account in the sentencing of either of the applicants. The co-offender Huynh had a criminal history, including offences for the possession of drugs and an offence of armed robbery for which he had been sentenced to a term of imprisonment, whereas neither of the applicants had any criminal antecedents. 21 On the other hand the co-offender Huynh was sentenced on the basis of findings made by Judge Urquhart that his role in the commission of the offence was less than that of the applicants, that he was addicted to heroin, that he had become addicted to heroin through misfortune rather than choice following his motor vehicle accident, and that he was dealing in heroin for the purpose of financing his own addiction. Judge Morgan found that neither of the applicants was addicted to heroin or even a user of heroin and that each of them was dealing in heroin for his or her own commercial gain. 22 It is true that the extent to which the circumstance that an offender committed an offence because of addiction to drugs can be taken into account as a circumstance of mitigation in sentencing the offender is very limited. See The Queen v Henry (1992) 46 NSWLR 346. However, the fact that an offender who is being sentenced for an offence of dealing in drugs committed the offence, not for the purpose of feeding an addiction, but purely for the purpose of making a commercial profit, is an important circumstance of aggravation. 23 Having endeavoured to weigh the factors which would tend to suggest that, leaving aside Huynh's plea of guilty, there should have been some disparity in favour of the applicants between the sentences passed on the applicants and the sentence passed on Huynh and the factors which would tend to suggest that it would be more appropriate to pass a heavier sentence on the applicants than on the offender Huynh, I have ultimately reached the conclusion that this Court should not intervene in the sentences passed by her Honour on the grounds of lack of parity or appropriate disparity. 24 I would also reject the submission which was made in the written submissions, but not really pressed in oral argument, that the sentences were manifestly excessive. 25 In my opinion, while leave to appeal should be granted to each applicant to appeal against the sentence, the appeal should be dismissed. 26 GROVE J: I agree. 27 BARR J: I also agree. 28 GROVE J: The orders of the court therefore will be in each appeal that leave to appeal against sentence is granted but the appeal is dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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