NGUYEN Giac v R [2008] NSWCCA 280

New South Wales Court of Criminal Appeal

CITATION: NGUYEN Giac v R [2008] NSWCCA 280

HEARING DATE(S): 2 June 2008

JUDGMENT DATE: 27 November 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hulme J at 3; Hidden J at 44

DECISION: Leave to appeal granted Appeal dismissed

PARTIES: Regina Giac Van NGUYEN

FILE NUMBER(S): CCA 2007/2947

COUNSEL: Crown: J Dwyer Applicant: P Boulten SC

SOLICITORS: Crown: Solicitor for DPP Applicant: AKN & Associates

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0992

LOWER COURT JUDICIAL OFFICER: Taylor DCJ

LOWER COURT DATE OF DECISION: 09/02/07

- 1 - IN THE COURT OF CRIMINAL APPEAL 2007/2947

McCLELLAN CJ AT CL HULME J HIDDEN J

Thursday, 27 November 2008

Giac Van NGUYEN v R Judgment 1 McCLELLAN CJ at CL: I agree with the orders proposed by Hulme J. Like his Honour I am satisfied that the appropriate characterisation of the applicant's offending would place it moderately below the middle range of objective seriousness. 2 However, having regard to both the objective circumstances of the offending and subjective features of the applicant I am not persuaded that this Court should intervene. No other sentence is warranted in law. 3 HULME J: On 9 February 2007 the above named Applicant for leave to appeal was sentenced by Taylor DCJ in respect of two charges. They, and the sentences imposed were:- (i) supplying a prohibited drug viz 0.43 grams of methylamphetamine - imprisonment for a fixed term of 6 months commencing on 9 July 2006. (ii) the (deemed) supply of a commercial quantity of heroin, viz 294 grams, - imprisonment for a term of 9 years including a non parole period of 6 years, both such periods commencing on 9 July 2006. 4 The Applicant's first offence arose pursuant to s25 (1) of the Drug (Misuse and Trafficking) Act and rendered the Applicant liable to imprisonment for 15 years. As quantity involved in that offence was ''small'' (less than 1 gram) had the offence been prosecuted summarily as almost invariably such offences are, the maximum penalty of imprisonment would have been 2 years. The Applicant's second offence arose pursuant to s25 (2) of that Act and rendered the Applicant liable to imprisonment for 20 years. Section 54A et seq of the Crimes (Sentencing Procedure) Act provide a standard non-parole period of 10 years for the second offence. 5 In August 2004, the Applicant was one of a number of persons the subject of surreptitious police surveillance. That surveillance recorded both a number of telephone calls in the course of which arrangements were made for the supply of the methylamphetamine and also events inside a flat where the methylamphetamine was supplied. The recipient of the methylamphetamine was arrested soon after leaving the flat. 6 So far as the second offence is concerned, an agreed statement of facts records a number of telephone calls in which the Applicant participated, and in the course of which arrangements were made for the supply of the heroin. The Applicant's actions included sourcing the heroin, arranging for it to be tested, arranging for the purchaser to deliver the cash required for the heroin and, after the Applicant received this, some $85,000, passing $84,000 on to the ultimate supplier. 7 The events referred to in the immediately preceding paragraph occurred on or about 25 August 2004. The Applicant left Australia on 29 October 2004 and was arrested in January 2005 when he returned to Australia. 8 The Applicant's trial in respect of the above two charges, a further charge of the supply of heroin, and a fourth charge of supplying not less than the large commercial quantity of that drug commenced on 5 September 2006 by way of a voir dire hearing. After, on 8 September 2006, Taylor DCJ ruled on the issues canvassed in that hearing – and it would seem in favour of the Crown - an adjournment was sought and on 25 September the Applicant was again arraigned when he pleaded guilty to the two charges for which he was ultimately sentenced. His pleas to these charges were accepted by the Crown in full satisfaction of the indictment. After a number of short appearances, also involving another offender, sentencing proceedings concluded on 9 February 2007 when the sentences were pronounced. 9 In his Remarks on Sentence, and after taking into account "the quantity and type of drug involved, the role played by the Applicant, and the level of sophistication and planning involved" Taylor DCJ assessed the objective seriousness of the heroin offence as "a little below the middle range of objective seriousness". His Honour concluded that the Applicant's role could be characterised as that of a drug broker, but one which reflected his ability to broker drug deals of the magnitude disclosed and which demonstrated he was known and trusted by others involved in the heroin trade. On the topic of planning, his Honour referred to the association between the Applicant and others obviously involved in the drug trade, the use of code words to disguise the nature of conversations and the Applicant's possession of a number of mobile SIM cards, some of which were registered with false particulars. 10 His Honour found that the Applicant's only motivation was greed. 11 His Honour recorded that the Applicant had been sentenced in August 2003 in the Melbourne County Court to imprisonment for 4½ years, including a non-parole period of 3 years for trafficking in a commercial quantity of heroin. The circumstances of that offence involved the Applicant being arrested in a house containing some 6.6kgs of heroin, equipment appropriate for its preparation for sale and some $470,000 in cash, the counting of which the Applicant said was his task. Referring in this regard to R v Johnson 2004 NSWCCA 76 and R v Wickham 2004 NSWCCA 193, his Honour observed that this previous conviction warranted the imposition of a more severe sentence than might otherwise be called for, to reflect "retribution, deterrence and protection of society". However, his Honour went on to say:- "I do not consider that plays a very significant part in coming to sentence on this matter." 12 His Honour recognised that the subject offences were committed while the Applicant was still on parole, although what weight his Honour gave to this is not otherwise apparent. Later, his Honour observed:- "A discount of 20% to the sentence that otherwise would have been imposed is appropriate in this case, given that the plea was entered after the offender was arraigned in the District Court for trial and subsequent to the completion of the voir dire but prior to the empanelment of a jury. It is not a plea at the earliest opportunity and does not attract the 25% discount." … "The two offences occurred within a short space of time and during what appears to have been a course of conduct over that period. The quantity of the drugs in the first count is relatively small compared to the transaction the subject of the second count. It could well be that the first charge relates to a sample or what is colloquially referred to as a "taste" I have decided that the sentences should be served concurrently." 13 Turning to subjective matters, his Honour recorded that the Applicant's circumstances were set out in a Pre-Sentence Report, that the Applicant was 43, had an amicable relationship with his ex-wife and had two children, one of whom was disabled thus imposing significant difficulty on the Applicant in looking after him. His Honour went on to record that the Applicant had limited education in Vietnam and considerable difficulties in his life, fleeing from Vietnam to Hong Kong and then as a refugee to New Zealand before coming to Australia; also that, when employed, the Applicant had worked at casual and semi-skilled work and would "need supervision on parole". His Honour gave no reasons for arriving at that conclusion and none, certainly none that argue for an extended period of supervision, appear in the material that was before his Honour. Indeed the report records:- "… Mr Nguyen has been assessed as unlikely to require, or benefit from, supervision by this Service as he has no identified criminogenic needs that could be address(ed) by the offender management programs offered by this Service." 14 It should be mentioned that the Pre-Sentence Report does record a claim of the Applicant to having worked in the hospitality industry for 3 years in New Zealand, to having conducted in partnership a car importing business after his arrival in Australia and, at the time of the Report, to working casually as a floor varnisher. The report also contained the following:- "Mr Nguyen did not indicate remorse for the offences nor did he accept responsibility for his involvement. The explanation that he offered regarded the offences was inconsistent with his plea, however he did state that he would accept the Court's ruling and thereafter planned to lead a quiet and lawful lifestyle." 15 The grounds of appeal are:- (i) His Honour erred by finding that the objective seriousness of (the heroin offence) was "a little below the middle of the range". (ii) His Honour erred by misusing the standard non-parole period as a starting point rather than as a reference point. (iii) His Honour erred by giving inadequate weight to the Applicant's subjective circumstances. (iv) The sentence for (the heroin offence) was manifestly excessive.