New South Wales Court of Criminal Appeal CITATION: Regina v Nguyen (Thi Xao) [2006] NSWCCA 367 HEARING DATE(S): 16 November 2006 JUDGMENT DATE: 24 November 2006 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Hislop J at 3 DECISION: (1) Appeal dismissed. CATCHWORDS: Criminal law - Crown appeal - Sentence not manifestly inadequate. LEGISLATION CITED: Criminal Appeal Act 1912 - s 5D Drug Misuse and Trafficking Act 1985 - s 25(1) Markarian v R (2005) 215 ALR 213 CASES CITED: R v Bloomfield (1998) 44 NSWLR 734 R v Lilley (2004) 150 A Crim R 591 Wong v R (2001) 207 CLR 584 PARTIES: Appellant - Regina Respondent - Thi Xao Nguyen FILE NUMBER(S): CCA 2006/2067 COUNSEL: Appellant - Ms J. Dwyer Respondent - Ms C. Loukas SOLICITORS: Appellant - Director of Public Prosecutions (New South Wales) Respondent - Legal Aid Commission of New South Wales LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/11/0418 LOWER COURT JUDICIAL OFFICER: Andrew DCJ LOWER COURT DATE OF DECISION: 31 July 2006 - 1 - IN THE COURT OF CRIMINAL APPEAL 2006/2067 McCLELLAN CJ at CL HIDDEN J HISLOP J 24 November 2006 REGINA v Thi Xao NGUYEN Judgment 1 McCLELLAN CJ at CL: I agree with Hislop J. 2 HIDDEN J: I agree with Hislop J. 3 HISLOP J: The respondent pleaded guilty to the offence of, on 11 December 2005, supplying a prohibited drug (heroin) contrary to the Drug Misuse and Trafficking Act 1985 s 25(1). The maximum penalty for such an offence is 15 years imprisonment. 4 On 31 July 2006 the respondent was sentenced for that offence in the District Court to imprisonment for a non parole period of 12 months commencing on 11 December 2005 and expiring on 10 December 2006 with a balance of term of 12 months to commence upon the expiration of the non parole period and expire on 10 December 2007. 5 The Crown has appealed against that sentence pursuant to the Criminal Appeal Act 1912 s 5D on the ground it is manifestly inadequate. 6 The facts of the offence were agreed and may be shortly stated as follows: Thanh Hang Nguyen is a Melbourne based dealer in the prohibited drug heroin. She was the subject of police electronic and physical surveillance. The police observed her arrive in Sydney from Melbourne with the respondent. Surveillance of the women continued thereafter and on 11 December 2005 Hang and the respondent were followed to Sydney Airport where they purchased tickets on the first available flight to Melbourne. They were then detained by police and, upon threat of an internal search the respondent produced a package which had been secreted internally. Hang did likewise. The package produced by the respondent contained heroin weighing 96.6 grams with a purity of 17.5%. Hang's package was similar. 7 The sentencing Judge noted the respondent was charged on a deemed supply basis. He considered the offence was clearly serious though the respondent was not shown to be a party to the planning of the offence. He described her as an interstate courier of heroin and found she was a willing participant in the offence and carried it out for personal gain. He also found that she would have been aware of the consequences of what she was doing. He took account of the fact the offence occurred whilst she was on conditional liberty. 8 As to the respondent's subjective case his Honour found that she had been born on 12 December 1947 in Vietnam where she had lived in impoverished circumstances. She had married at 16 and bore 10 children of whom seven survive. She subsequently divorced. She came to Australia as a refugee in 1983. She has never received any formal schooling and is illiterate in English and Vietnamese. She was not working at the time of the offence and was in receipt of Commonwealth benefits. Her health is not good and she has arthritic pain among other things. She has a gambling addiction and a prior criminal history in Victoria which includes two convictions for possess and traffic heroin. The first of these convictions was in 1996 and resulted in a one month suspended sentence. The second was in 1999 and resulted in a community service order which was later breached. She was dealt with in June 2005 in respect of that breach and received a sentence of 3 months imprisonment which was suspended conditionally upon her being of good behaviour for 12 months. She was on that good behaviour bond at the time of the subject offence. 9 His Honour found that the respondent was remorseful, had good prospects of rehabilitation and appeared to have learnt her lesson. She had assisted law enforcement authorities and had given an undertaking as to future assistance. Such assistance was regarded as useful and truthful. She had pleaded guilty at the earliest available opportunity. His Honour applied a combined discount for the plea of guilty and assistance of 50%. He found special circumstances in relation to the prospects of rehabilitation and the need for ongoing supervision and treatment for the gambling addiction. He took as his starting point a term of imprisonment of 4 years. 10 No issue was taken by the Crown as to the discount of 50% for the combined plea and assistance to authorities. The Crown did not dispute it was open to his Honour to make a finding of special circumstances but observed that the respondent had had a gambling problem for over 10 years yet there was no evidence she had previously sought supervision and treatment for it. In these circumstances it was submitted the non parole period was a generous one. However the Crown acknowledged "that there were many tragic aspects in the subjective circumstances of the respondent". 11 The real complaint by the Crown was that his Honour's starting point of 4 years imprisonment was inappropriate and this combined with the generous variation of the statutory ratio based upon the finding of special circumstances produced a sentence that was manifestly inadequate. It was submitted that a more severe sentence was warranted in law and ought to have been imposed particularly as there was a significant aggravating feature in that the respondent was on conditional liberty at the time of the offence. It was submitted his Honour did not have sufficient regard to the maximum available sentence, the two prior convictions for trafficking or the need for specific and general deterrence. 12 The Crown relied upon the case of R v Lilley (2004) 150 A Crim R 591 in which this Court increased a sentence of 2 years 6 months with a non parole period of 21 months to a non parole period of 3 years 9 months with a balance of term of 2 years 3 months in circumstances which the Crown contended were similar to the present case. 13 The respondent submitted that the sentence, though arguably at the lower end of the appropriate range was not such, of itself, as to support a conclusion of latent or residuary error by way of inadequacy. 14 The respondent referred to statistics provided by the Judicial Commission of New South Wales. These showed that for 85% of all offenders sentenced to imprisonment for breach of the Drug Misuse and Trafficking Act 1985 s 25(1) during the period April 2002 to March 2006 the term of sentence did not exceed 4 years; 61% received a sentence between 18 months and 3 years and 8% a sentence of 1 year or less. 29% of offenders did not receive a sentence of imprisonment. The statistics for gaoled offenders were drawn from a relatively large sample (106 cases). 15 The respondent also relied upon a table of cases in relation to similar offences. This also showed a relatively wide range of sentences. The respondent relied particularly on two cases in the table, namely Lam (NSWCCA unreported 21 February 1996), where a sentence was increased on appeal to 10 months and WHS (NSWCCA unreported 27 March 1995) where a sentence of 2 years periodic detention was increased on appeal to imprisonment for 18 months with a 12 month non parole period. The respondent submitted Lilley was not a comparable case as the offender in that case had over 7 ounces of heroin in his possession, the purity of the heroin was over 40%, there were two Form 1 offences to be taken into account and the offender had an extensive record of criminal convictions including two drug offences for which he received total terms of 2 years and 5 years respectively. 16 In evaluating the sentence the Court may have regard to such statistics and to similar cases in determining sentence patterns and the appropriate sentencing range – R v Bloomfield (1998) 44 NSWLR 734 at 739 though caution must be exercised in the use of such material as the sentence depends on the facts of each case and bare statistics tell a Judge very little which is useful – see also Wong v R (2001) 207 CLR 584 at 605. I do not regard Lilley, Lam or WHS as being directly comparable to the present case. 17 The statistics presented to the Court do not reveal the starting point for each sentence or what discounts were allowed. They are thus of limited direct application. However the statistics and the table of cases highlight the wide sentencing range available in cases of this nature. 18 In Markarian v R (2005) 215 ALR 213 at [27] the High Court held: The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. 19 In my opinion it has not been demonstrated, having regard to all of the circumstances, and, in particular, the wide sentencing range revealed by the statistics and case table, that his Honour's starting point of 4 years was outside the discretionary range. There is no challenge to his Honour's discount of 50% for the plea and assistance and in my opinion the non parole period was within legitimate discretionary limits. Accordingly, I have concluded the sentence, though low, is not manifestly inadequate such as to cause this Court to intervene. 20 I propose that the appeal be 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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