Truong v Regina [2006] NSWCCA 318

New South Wales Court of Criminal Appeal

CITATION: Truong v Regina [2006] NSWCCA 318 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 11/08/2006

JUDGMENT DATE: 6 October 2006

JUDGMENT OF: Tobias JA at 1; Howie J at 2; Rothman J at 33

DECISION: Leave to appeal is granted but the the appeal is dismissed.

CATCHWORDS: Criminal Law - Sentencing - Knowingly take part in supply - relevance of amount of drug supplied.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 - s 25(1)

R v MacDonnell (2002) 128 A Crim R 44 Wong v The Queen (2001) 107 CLR 584 CASES CITED: R v Chan [1999] NSWCCA 103 R v Nguyen [2005] NSWCCA 362 R v Bertoli (unreported, 27 May 1994, CCA)

PARTIES: Vinh Hai Truong v Regina

FILE NUMBER(S): CCA 2006/759

COUNSEL: V. Lydiard - Crown S.J. Buchen - Applicant

SOLICITORS: S. Kavanagh - Crown R. Goold - Applicant

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0028

LOWER COURT JUDICIAL OFFICER: Marien DCJ

LOWER COURT DATE OF DECISION: 19/10/2005

IN THE COURT OF CRIMINAL APPEAL 2006/759

TOBIAS JA HOWIE J ROTHMAN J

FRIDAY 6 OCTOBER 2006 Vinh Hai TRUONG v REGINA Judgment 1 TOBIAS JA: I agree with Howie J. 2 HOWIE J: The applicant pleaded guilty in the District Court to an indictment containing a single count being that on 19 May 2004 he did knowingly take part in the supply of a prohibited drug namely heroin. That is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act for which a maximum penalty is prescribed of imprisonment for a term of 15 years. 3 On 19 October 2005 Judge Marien SC (the Judge) sentenced the applicant to a term of imprisonment made up of a non-parole period of one year and 10 months and a total sentence of two years and six months. The sentence commenced on 21 September 2005 and the non-parole period expires on 20 July 2007, the date upon which the applicant is entitled to be released to parole. The sentence was backdated to take into account a period of 15 days spent by the applicant in pre-sentence custody for this offence. The applicant now seeks leave to appeal against the sentence. 4 There was an agreed statement of facts placed before the District Court. They can be summarised briefly as follows. As part of an ongoing investigation two undercover police operatives named "Sarah" and "Jamie" made arrangements to obtain heroin from two persons named Lam and Severino. After purchasing some small amounts of heroin, an agreement was reached on 13 May 2005 that Lam would supply Jamie with 2 ounces of heroin for $7,500 per ounce. On 18 May Jamie telephoned Severino regarding the supply of this heroin for the following day. 5 On 19 May Jamie received a telephone call from Severino confirming the supply of the heroin. He later met with Severino in Bossley Park. After a short conversation Jamie showed Severino money in the boot of his vehicle for the purchase of the heroin. Severino then contacted Lam who arrived a short time later with the applicant. As the applicant and Lam approached Jamie, the applicant reached into the front of his pants and removed two packages of white powder that he then handed to Lam. Lam handed the packages to Severino who sat in Jamie's vehicle while he weighed the packages. Severino then retrieved the packages and went with Jamie to the boot of the vehicle in order to obtain the money. Jamie then gave a prearranged signal and a number of police officers approached the vehicle. Severino, Lam and the applicant ran from the scene but were arrested shortly thereafter. The packages were analysed and each found to contain about 28 grammes of heroin. One of the packages was tested and found to contain heroin with a purity of 28 per cent. 6 The applicant was aged 28 years at the time of the offending. He has a criminal record dating from August 1992. In June 1993 he was sentenced in the Children's Court for drug offences and ordered to perform 100 hours of community service in respect of an offence of supplying a prohibited drug. In 1996 he was sentenced by the District Court to a term of 30 months imprisonment for possessing a shortened firearm. Thereafter from 1996 through to 2001 he was dealt with in the Local Court for a number of driving matters and received sentences of community service and periodic detention. There are no offences recorded against him after July 2001 when he was placed on a two-year good behaviour bond for an offence of drive while disqualified. 7 The presentence report in evidence before the Judge disclosed that the applicant and his family arrived in Australia in 1988 having fled from Vietnam by boat and spending three years in a refugee camp in Thailand. He was raised in a caring family environment and enjoys a close relationship with his parents and five siblings. He has been in a de-facto relationship since the age of 16 and has had three children as a result of that relationship. Although from time to time the relationship has been strained and they resided together only intermittently, the applicant, his fiancée and their children had been living together continuously since the beginning of 2004. 8 The applicant has had various unskilled employment usually of a casual short term position although his longest period of continuous employment was for a period of 12 months. At the time of the preparation of the report the applicant had obtained full-time permanent employment that he was due to commence in August 2005. 9 The applicant told the officer preparing the report that one of his co-offenders had been a long-time friend. He claimed that he initially refused to hold the drugs but his friend offered him $200 and the applicant said that, as he did not have a job at that time and owed his friend a number of favours, he agreed to hold the drugs for him while he was in the car. The applicant expressed regret for his involvement in the offence. He was described to the officer by others as a person who was too trusting and too easily led by his friends. He appeared to have addressed drug issues in his past and had been drug-free for several years. The probation officer assessed the applicant as unlikely to require, or benefit from, supervision by the Service. 10 There was also in evidence a psychological report. It indicated that the applicant had experimented with cannabis and heroin at the age of 16 but had ceased using heroin after a couple of months. The applicant did not consider that he had ever been addicted to any illegal drug and had not needed the assistance of drug rehabilitation. As to the circumstances of the offence, he told the psychologist that he met a friend to have coffee and then learned that there was going to be a drug transaction. The applicant said that he did want to be there but his friend had insisted and said that his help would make up for all the favours he had done for him in the past. The friend also said that he would give him $200. His friend had given him two packets of drugs and asked him to hold them for him until he wanted them. He said that he knew nothing of the drugs before meeting with his friend. The applicant told the psychologist that he regretted his involvement and believed that he been influenced by his friend to commit the offence. 11 The psychologist reached the opinion that the applicant had a "lower than average likelihood of recidivism". He believed that the applicant had suffered a dysthymic disorder for many years associated with his difficulties in obtaining regular employment because of his limited knowledge of English. The psychologist stated, "Although not responsible for his offending behaviour, his dysthymia would have made him somewhat vulnerable to the influence of his peers particularly if he felt that he could gain some financial benefit". 12 The applicant's partner gave evidence before the Judge. She confirmed that his lack of English had limited his opportunities for employment but that at the time of sentence he was working at a nursery in the western suburbs of Sydney. A friend of the applicant also gave evidence as to the applicant's poor English and his regret at becoming involved in the offence. 13 The applicant's co-offenders were dealt with by a different judge before the applicant was sentenced. The sentencing remarks in relation to the co-offenders were before the Judge. They were both sentenced for a number of drug offences including an offence arising from the supply in which the applicant was involved. They also asked the court to take into account matters on a Form 1. They were each sentenced to a total sentence of four years with a non-parole period of two years. 14 The first ground of appeal relied upon by the applicant is that the Judge overstated the role of the applicant in the offence. After setting out the agreed statement of facts, the Judge stated: