New South Wales Court of Criminal Appeal CITATION: Dung Truong v Regina [2006] NSWCCA 71 HEARING DATE(S): 28/02/2006 JUDGMENT DATE: 30 March 2006 JUDGMENT OF: Beazley JA at 1; Adams J at 2; Howie J at 3 DECISION: Leave to appeal granted in respect of the sentence for the third count. The sentence for the third count is quashed and in lieu the applicant is sentenced to a non-parole period of imprisonment for 3 years and 6 months from 4 December 2004 and to expire on 3 June 2008 with a balance of term of 3 years to date from 4 June 2008. The applicant is eligible to be released to parole on 3 June 2008. CATCHWORDS: Criminal Law - Appeal - New evidence on sentence appeal - extent of assistance to police and conditions of custody. LEGISLATION CITED: Crimes Act 1900 - ss 97(1), 98 Crimes (Sentencing Procedure) Act 1999 - s 21A PARTIES: Dung Truong v Regina FILE NUMBER(S): CCA 2005/2015 COUNSEL: P. Miller - Crown R. Burgess - Applicant SOLICITORS: S. Kavanagh - Crown S. O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/3279; 03/21/3280 LOWER COURT JUDICIAL OFFICER: Knight DCJ IN THE COURT OF CRIMINAL APPEAL 2005/2015 BEAZLEY JA ADAMS J HOWIE J THURSDAY 30 MARCH 2006 DUNG TRUONG v REGINA Judgment 1 BEAZLEY JA: I agree with Howie J. 2 ADAMS J: I agree with Howie J. 3 HOWIE J: On 4 March 2003 the applicant threatened a taxi driver with a knife, placing it against his throat and demanding cash. The driver panicked, raising his hands to protect himself and at the same time accelerated the vehicle. As a result the taxi left the roadway and collided with the front patio of a dwelling house causing it structural damage. The applicant suffered injuries that resulted in his being hospitalised. On 6 March, while still in hospital recovering from his injuries, the applicant admitted to attempting to rob the taxi driver and made admissions of committing a series of attacks upon taxi drivers. He nominated his co-offender who was then arrested. 4 As a result of his admissions to police the applicant was charged with three offences of armed robbery contrary to s 97(1) of the Crimes Act, one offence of assault with intent to rob and inflicting grievous bodily harm contrary to s 98 of that Act, and one offence of armed robbery with wounding also contrary to s 98. The maximum penalty for an offence against s 97 is imprisonment for 20 years and the maximum penalty for a s 98 offence is imprisonment for 25 years. 5 The applicant ultimately pleaded guilty to all offences in the District Court. He also asked the sentencing judge, Judge Knight, to take into account on a Form 1 a charge of take and use a motor vehicle in relation to one of the counts of armed robbery. For each of the armed robbery offences Judge Knight imposed a fixed term of imprisonment of three years, the first of those sentences commencing on 4 March 2003, the second on 4 June 2003 and the third on 4 September 2003. For the offence of assault with intent to rob and inflict grievous bodily harm, the Judge imposed a sentence of a fixed term of imprisonment of four years to commence from 4 March 2004. For the offence of armed robbery with wounding, the Judge imposed a non-parole period of four years to date from 4 December 2004 and to expire on 3 December 2008 with a balance of term of three years. The effective total sentence is eight years and nine months with a minimum period to be served of five years and nine months. The applicant is eligible to be released to parole on 3 December 2008. 6 The history of the proceedings against the applicant is as follows. He pleaded guilty in the Local Court on 10 October 2003 to all of the offences except the robbery with wounding offence and was committed for sentence to the District Court. On 21 October 2003 the applicant was committed for trial on the outstanding charge. The applicant pleaded guilty to all charges before Judge Sides on 7 November 2003. The matter was stood over for the preparation of a presentence report and listed for 6 February 2004. The hearing was further adjourned in order to determine whether there would be an appeal by a co-offender against the sentences imposed upon him. The matter came before Judge Bellear on 6 April 2004 and the sentencing hearing proceeded with the applicant and his mother giving evidence. Judge Bellear reserved his decision but was unable to sentence the applicant by reason of the judge's ill-health. The matter was then listed before Judge Knight who dealt with the matter on the basis of the transcript of the proceedings before Judge Bellear. The matter was again stood over for the preparation of a further presentence report and this was tendered to the court on 15 September 2004, the date upon which the applicant was sentenced. 7 The first offence, an armed robbery, was committed on 5 February 2003 when the applicant and his co-offender caught a taxi and directed the driver to a street in Warwick Farm. When they arrived at the destination, the taxi driver became concerned because the applicant appeared to beckon to two males and turned the taxi around. The co-offender alighted from the cab and tried to grab the driver's shirt through the window. The applicant, who was seated in front of the taxi, grabbed the steering wheel and told the driver to stop or he would kill him. The applicant produced a pair of scissors and held them to the victim's throat, demanding money. When the co-offender referred to grabbing a gun, the taxi driver decamped. The applicant then drove the taxi a short distance before stopping to search it. Having removed the victim's wallet and some money, the applicant then abandoned the taxi. The proceeds of the robbery were used for the purchase of heroin. 8 The second offence, an armed robbery, took place on 20 February 2003 when the co-offender caught a taxi to Warwick Farm. The applicant was waiting for him armed with a metal pole. When the taxi stopped, the applicant put the pole through the driver's window and against the driver's right ear. The co-offender produced a knife and placed it against the victim's throat. The applicant demanded money and the victim handed over his wallet, his mobile phone, coins and the car keys. The applicant and the co-offender made their getaway in the applicant's motor vehicle that was parked nearby. 9 The third offence, an armed robbery with wounding, occurred on 22nd February 2003. The applicant caught a taxi to Green Valley where the co-offender was waiting. When the taxi stopped, the applicant took out a knife and threatened the driver causing a cut to his jaw. The co-offender approached the driver's side of the taxi with a metal pole and struck the cab trying to gain entry. The victim struggled with the applicant, cutting his hand on the knife. The applicant then placed the knife against the driver's throat and demanded that he open the door. When he did so, the co-offender pushed the pole into the victim's ribs. The applicant demanded money and the driver's pin number while the co-offender moved the pole to the victim's neck. As a result of the wound to his jaw, the victim received five sutures. 10 The fourth offence, an armed robbery, took place on 26 February 2003. The co-offender caught a taxi to Bankstown where the applicant was waiting. When the taxi stopped, the co-offender produced a knife and held it against the victim's throat demanding money. The victim handed over $200. The co-offender summoned the applicant, who approached with a metal pole and struck the victim hitting his left ear, causing it to bleed. The co-offender searched through the taxi and ultimately the two left with the victim's wallet, cash, mobile phone and keys. 11 The fifth offence, an armed robbery and inflicting grievous bodily harm, took place on 4 March 2003. It was during the commission of this offence that the taxi driver panicked and lost control of the vehicle. The taxi driver suffered a compound fracture to the right knee and a fracture of the right hip. The taxi was completely written off and about $20,000 damage was done to the house. 12 The applicant was 21 years of age at the time of the offences. He was born in Malaysia to parents of Vietnamese origin and who came to Australia as boat people. The applicant enjoyed an uneventful and caring family environment as a child. He completed his High School Certificate and embarked upon a TAFE course in information technology. He worked in a computer store for six months and then as a ticket booth operator with a parking company for about a year. 13 He commenced using drugs in year 11 but ceased the next year. He later commenced using heroin but sought treatment from a medical practitioner in Fairfield. He underwent detoxification at home and used Naltrexone for six months. The applicant was able to avoid further use of heroin for about two years until late 2002. At this time a dispute arose between the applicant's sister and her parents because of a relationship that she had formed with a person of whom her parents did not approve. The applicant found it difficult to deal with the discord and tension at home and started to stay away. At this time he commenced using heroin again. By early 2003 the applicant had become severely dependent on the drug and as a result discontinued his course at TAFE. 14 The applicant had a relatively minor record. In October 2002 he was placed on a bond for possessing a prohibited drug. This bond was current at the time the applicant committed the present offences. 15 The applicant gave evidence before Judge Bellear that he had been avoiding using illicit drugs while in custody and intended to complete his studies on his release. The applicant's mother corroborated the fact that the applicant left home as a result of the dispute between his sister and his parents. She remained supportive of him and was willing to assist him on his release. 16 Judge Goldring sentenced the co-offender on 19 June 2003. He had pleaded guilty to four charges, two armed robberies and two armed robberies with wounding. He had not been charged with the offence of 4 March 2003. He was aged 21 years and had a similar background to the applicant. He had no previous criminal record. He was a friend of the applicant and they used drugs together. The judge gave him a discount for providing information to police, that the judge described as an "Ellis discount" but did not specify the amount by which he had reduced the sentence. The judge also found the co-offender was unlikely to re-offend and had good prospects of rehabilitation. He was sentenced to a total sentence of imprisonment for 7 years 9 months with a minimum period to be served of 4 years 9 months. 17 Judge Knight had the sentencing remarks of Judge Goldring before him. His Honour noted that the co-offender was 5 months younger than the applicant and had no previous record. The Judge also noted that the co-offender was charged with a more serious offence than the applicant was in respect of the fourth count but that applicant had one more offence than the co-offender. He determined that a "slightly heavier overall sentence" was to be imposed upon the applicant. The Judge gave him the benefit of a discount of 25 per cent for the pleas of guilty and indicated that he was taking into account the applicant's remorse. He noted that, although the applicant was on conditional liberty at the time of the offences, he had never been in custody before. He accepted that the offences were committed to obtain money for the purchase of heroin but that the applicant had not used drugs while in custody. The Judge also took into account the delay in sentencing the applicant. 18 The first ground of appeal asserts that there was a miscarriage of justice by reason of the failure of the Judge to give weight to (a) the assistance given by the applicant to police and (b) the fact that the applicant was in protective custody in prison. 19 Although the matter of assistance provided by the applicant to investigating police was raised in passing during addresses, there was no specific reference by the parties or the Judge to the assistance given by the applicant in revealing the name of the co-offender. This was notwithstanding that the applicant's legal representative was given an opportunity, prior to the sentence being imposed, to consider the matters that the Judge had indicated he would take into account under s 21A of the Crimes (Sentencing Procedure) Act. Certainly there was no reference to this issue during the Judge's review of the aggravating and mitigating factors under s 21A. There had been some reference to it before Judge Bellear but in a somewhat elliptic fashion. 20 The applicant now seeks to rely upon, what is asserted to be, fresh evidence relating to the assistance the applicant gave to investigating police. A letter from a police officer written after sentencing indicates that the applicant was completely truthful, supplied all information requested, and that, without the applicant's assistance, the co-offender might not have been identified. This evidence is clearly not fresh as it was available to the applicant at the time of sentencing. 21 In the present case there was in the statement of facts before Judge Knight the following: On 6 March, after speaking with the offender at the hospital where he admitted his and the co-offender's involvement in the robberies, Police attended the offender's premises and searched the offender's car. Located in the boot was a silver, metal pole. Under the front passenger's seat were two black-handled, kitchen style knives. The offender's ERISP: On being released from hospital the offender was conveyed to Liverpool Police Station. He was interviewed regarding the above offences and readily admitted his involvement The offender admitted to planning and discussing the details of each of the offences with the co-offender, choosing streets for the offences that were adjacent to alleys and areas facilitating an easy getaway. 22 This passage does not make it clear that police were unaware of the identity of the co-offender before being told his name by the appellant. Nor, of course, does it reveal the importance or usefulness of that information. One curious aspect of the present case was that the co-offender received, what the judge described as, an Ellis discount from Judge Goldring to which he was not entitled. Judge Goldring thought, erroneously, that the co-offender was entitled to that discount on the basis that, had the co-offender not made admissions, the Crown might have had difficulty proving its case against him because it was relying upon the evidence of an accomplice. That might be a consideration that goes to the utilitarian value of the plea or even remorse. But it does not give rise to an Ellis discount for the confession of criminality that would otherwise have been unknown to the police. 23 It is unnecessary to determine the basis upon which this Court should receive the new evidence. Ultimately the Crown did not oppose the reception of the evidence. Indeed it went further and revealed for the first time to any court that the applicant had signed a statement indicating his willingness to give evidence against the co-offender. It is of concern that the Crown never revealed this fact at any of the hearings before this. The applicant should be given some benefit for his assistance. But the reduction in the sentence should not be great having regard to the fact that he received a 25 per cent discount for the plea and the Judge took into account that he was remorseful. The offences were of such seriousness that there is a point where no further reduction to the sentence can occur otherwise the sentence would fail to adequately reflect the seriousness of the offences and the requirements of general deterrence. Further there must be a difference between the sentences imposed upon the applicant and his co-offender to reflect the disparity in the total criminality for which they were to be sentenced. 24 The applicant also seeks to rely upon what is said to be fresh evidence in relation to the applicant's custodial situation. Again the evidence is not fresh as it was available at the time of sentence. His legal representative at the sentencing hearing before Judge Bellear indicated from the bar table that the applicant was "on protection in gaol". There is no reference to that fact in the Judge's remarks. Again this is unsurprising since neither of the parties raised the matter with the Judge after they were given time to reflect on the matters that he indicated he was going to take into account by way of aggravation or mitigation. The evidence that the applicant seeks to have admitted is that he was placed on protection after being assaulted on 21 April 2003 and as a result spent part of his sentence in more onerous conditions. 25 Material tendered by the Crown at the hearing shows that the applicant was received into Junee Correctional Centre on 4 October 2004 as a protected inmate. He is housed in the minimum-security area and there is no restriction on any access to services or classification prospects. Therefore any consideration that the applicant is to receive for his time on protection relates to a period of 17 months. 26 The second ground of appeal is that the applicant has a justifiable sense of grievance by reason of the disparity between his sentence and that of his co-offender. The only basis for arguing this ground is the fact that the applicant received a sentence longer than his co-offender's by 12 months and yet the applicant had given assistance, was on protection for a period of his sentence, and the delay before sentencing. 27 It must be borne in mind when considering the issue of parity that the last offence committed by the applicant was a very significant one in respect of the amount of injury, damage and property loss that was directly occasioned by the applicant's actions in threatening the taxi driver with a knife. In my opinion the sentence imposed upon the co-offender was lenient, as was that imposed upon the applicant. There should be a significant difference in the sentences as between the two men to take into account the added criminality reflected in the offences to which the applicant pleaded guilty and the fact that he was on conditional liberty at the time. 28 However in my opinion there should be some small adjustment of the applicant's sentence to reflect the assistance he gave and the period served in protection, but otherwise the sentences are appropriate. I propose that the sentence for the third count be reduced by six months. Therefore, I would give leave to appeal in respect of the sentence for the third count. I would quash that sentence and in lieu sentence the applicant to a non-parole period of imprisonment for 3 years and 6 months from 4 December 2004 and to expire on 3 June 2008 with a balance of term of 6 years and 6 months to date from 4 June 2008. The applicant would be eligible to be released to parole on 3 June 2008. THURSDAY 6 APRIL 2006 29 THE COURT: Since judgment in this matter was delivered it has been brought to the attention of the Court that there is a disconformity between the sentence pronounced and what was intended. The order of the Court is that the sentence for the third count is quashed and in lieu the applicant is sentenced to a non-parole period of imprisonment for 3 years and 6 months from 4 December 2004 and to expire on 3 June 2008 with a balance of term of 3 years to date from 4 June 2008. ********** 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.