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. Ground 1 16 The quantity of 294 grams is much closer to the bottom of the range of quantities of 250 to 1000 grams encompassed by the statutory provision contravened by the Applicant in the commission of the second offence charged. His role as broker is somewhat lesser than that of a principal trading on his own account. There was nothing unusually sophisticated in the methodology or planning employed by the Applicant. Operating in the other direction is that the Applicant's motivation - a factor that was decided in R v Way (2004) 60 NSWLR 168 at [86] also to be relevant to an assessment of an offence's objective seriousness – Taylor DCJ found to be greed. 17 Despite this latter factor which has, I confess, caused me to hesitate, the conclusion at which I have arrived is that, considered against the general run of factors that from time to time are to be seen in offences of the nature of that committed by the Applicant, Taylor DCJ's characterisation of the Applicant's role somewhat overstated it. His offence was below the middle of the range of objective seriousness to a moderate, rather than a little, degree. 18 In so concluding, I do not ignore those cases wherein this Court has said an appeal court should hesitate before disagreeing with a sentencing judge's assessment of where on the scale of objective seriousness an offence lies – see R v Johnson [2004] NSWCCA 140 at [36]; Kerr v R [2008] NSWCCA 201 at 54; Graham v R [2008] NSWCCA 174 at 48. It has been said in those cases that the finding is one of fact. I would myself have regarded it as one of judgment based on findings as to primary facts. Be that as it may, having regard to the matters to which I have referred, I do not regard his Honour's finding as open to him. 19 In my view this ground is made out. Ground 2 20 Referring to the authorities His Honour recognised that the standard non-parole period should, in the circumstances before him be used as a guide or reference rather than a starting point. Although the submissions advanced on behalf of the Applicant contain assertions that his Honour "seems to have come close to a mathematically structured exercise" and seems to have adopted "an overly formal and multi-tiered approach involving determining an objective sentence with adjustments to take account of subjective factors", there is noting in his Honour's remarks that answer or justify either of these descriptions. 21 This ground fails. Ground 3 22 In support of this ground reference is made to a number of matters referred to in the Pre-Sentence report to which his Honour referred and more that appear in the Remarks made when the Applicant was sentenced in the Victorian County Court, remarks that were before Taylor DCJ. These include that the Applicant's father died when he was about 2 months old, that he grew up living a virtual subsistence life-style, that he was taken from school at about 15 for the purposes of military training and indoctrination, and that he worked undercover in China where he was arrested. 23 Although when referring to the Applicant's subjective circumstances, Taylor DCJ did not refer specifically to these matters, he had earlier referred to matters the source of which could only have been the Remarks on Sentence in the County Court. A judge is not obliged to recount in detail all of the evidence and in the circumstances of this case I would not infer that his Honour was not fully conscious of them. 24 Furthermore, there is nothing in the circumstances to which his Honour did not specifically refer that, in the circumstances of this case, was entitled to substantial weight. There was nothing in those circumstances that went any way to explain the Applicant's choice to become a counting clerk for a drug dealer or himself a dealer or broker in drugs, particularly after it must have been made very clear to him in the Victorian County Court and in events leading to his presence there, that dealing in drugs was not acceptable in his adopted country. 25 Otherwise, except possibly in the length of the sentence imposed – a matter I deal with when considering the fourth ground - there is nothing to indicate that his Honour gave inadequate weight to the Applicant's subjective circumstances. Ground 4 26 It is convenient at the commencement of my consideration of this ground to refer to a number of matters upon which counsel for the Applicant did not rely. Firstly, there was no conceivable basis upon which the discount of 20% that Taylor DCJ gave the Applicant can be justified. Indeed his Honour's remarks when awarding this discount seem to indicate a wholly inadequate appreciation of the principles upon which discounts for the utilitarian value of a plea are to be assessed. 27 In R v Thomson and Houlton (2000) 49 NSWLR 383 at [152] et seq, this Court made clear that in general the discount for the utilitarian value of a plea should be assessed in the range of 10-25%, that in determining where in that range a particular case should fall the primary consideration is the timing of the plea, and that a discount towards the bottom of that range is appropriate for late pleas, for example on the date fixed for trial. Although not all of his remarks are apposite here, I would endorse the remarks of Howie J in R v Stambolis [2006] 160 A Crim R 510 at [11]:- "Frankly I do not understand how on the established principles it could be determined that the pleas of guilty for the offences for which the respondent was sentenced were early pleas and that they justified a discount of 25 per cent. There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course, then so be it. But if by withholding the plea the offender achieved the result he wanted, I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had utilitarian value when it did not. Rarely, if ever, will the reason why the accused has withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge, I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity." 28 There was nothing in the circumstances of the case that suggested it was unusually difficult for the Crown to prove and, given that the pleas were only entered some time after the trial had begun, there is no basis for a discount in excess of (approximately) 10%. 29 Secondly, his Honour erred in his approach to the Applicant's conviction in Victoria. Both the evidence before his Honour and his Honour's findings to which I have referred indicate that the Applicant was carrying on a business of dealing or facilitating the dealing in substantial quantities of illegal drugs. That he should do so after receiving a significant sentence in Victoria for engagement in the same field of endeavour indicates that the sentence then imposed had not been sufficient to deter him. There was no evidence of remorse and, despite the bald statement that the Applicant planned to lead a quiet and lawful lifestyle in the future, nothing to indicate that he had learnt his lesson. He was a recidivist and retribution, deterrence and protection of society cried out for a more severe sentence than otherwise would have been appropriate. A fortiori is this so when the offences were committed while the Applicant was still on parole. Although his Honour recorded that fact, nowhere is there to be found in his remarks recognition of the fact that offending whilst on conditional liberty is a seriously aggravating circumstance – see e.g. Barnes v R [2007] NSWCCA 69 at [23]; R v Henry [1999] NSWCCA 107 at [28]. 30 Thirdly, his Honour erred in making the sentences concurrent. Whether the quantity the subject of the first charge was a "taste" or otherwise, it was an entirely separate transaction involving a different drug from the heroin the subject of the second count, with its own attendant criminality and with its own actual or potential for harm – see Harris v R [2007] NSWCCA 130. 31 Fourthly, his Honour erred in finding there was a need for supervision on parole and, in light of the statement in the Pre-Sentence Report that I have quoted, finding special circumstances and extending the balance of term at the expense of the non-parole period. There was simply no evidence and no other reasonable basis for these decisions. 32 Counsel for the Applicant sought to support this ground by referring the Court to a selection of cases where this Court considered or imposed sentences for offences of the nature of the Applicant's second offence. 33 In R v Shalala [2003] NSWCCA 330 the offender had been found guilty after a trial of a deemed supply of 260.4 grams of heroin found in a vehicle he was driving and sentenced by Sides DCJ to imprisonment for 7 years, including a non-parole period of 5 years. The offence was committed in December 1998 so the standard non-parole provisions had no application. This Court said that a complaint that the sentence was excessive was without merit and well within the range established by the statistics and properly reflected the objective criminality. The Court did not have before it an issue of whether the sentence was unduly low. 34 In R v Martin [2005] NSWCCA 266 the offender had participated in a joint criminal enterprise between May and July 2002 to obtain and resell for profit of the order of I kilogram of heroin. She had a criminal record described as "appalling and littered with very serious offences", pleaded guilty, was given a discount of 20% for doing so and sentenced to imprisonment for 8 years including a non-parole period of 6 years. Treatment the offender was receiving for a medical condition was regarded as reducing the need for the sentence to reflect specific deterrence. This Court again took the view that the sentence was not manifestly excessive and did not have to consider its adequacy. For my part, I have the greatest difficulty in reconciling it with the 20 years maximum when the quantity was very close to the top of the range, the offender was a principal and must have known the quantities in which she was dealing. 35 In Nguyen v R [2007] NSWCCA 15 the offender was also a principal in the supply of approximately 1 kilogram of heroin in the course of an operation that was regarded as well planned and sophisticated. The offender was motivated by greed. He pleaded guilty. Without any reference to the standard non-parole period, the sentence imposed was of imprisonment for 10 years including a non-parole period of 6 years. In rejecting a contention that the sentence was manifestly excessive, Price J, with whom the other members of the Court agreed, observed that the offence was properly characterised as beyond the mid-range of objective seriousness and that if the sentencing judge had used the standard non-parole period as a reference point, a lengthier sentence might well have been imposed. For the same reasons, this sentence gives me the same difficulty as did that imposed on Martin. 36 In Ancuta v R [2005] NSWCCA 275, the offender had purchased 701.6 grams of heroin for an amount of approximately $250,000. He pleaded guilty to a charge of deemed supply and at first instance was sentenced to imprisonment for 9 years including a non-parole period of 6½ years. This Court found that the sentencing judge had made a number of errors adverse to the offender and, regarding the offences as at not less than the mid-range of objective seriousness, re-sentenced him to imprisonment for 8 years including a non-parole period of 5 years. A discount of 20% was allowed for an early plea, the offender was not found to be motivated by greed, he had exhibited a degree of remorse and had gone some way towards rehabilitation. 37 In Tran v R [2006] NSWCCA 266, the offender pleaded guilty to the supply of about 835 grams of heroin in circumstances where he acted as a middle-man or broker. This Court reduced a sentence of 8 years, including a non-parole period of 5 years, to one of 7 years including a non-parole period of 4 years and 3 months. The reduction was effected on parity grounds and the sentence finally imposed reflected combined discounts of 40%. Adding that back would indicate an undiscounted period of 11 years and 8 months. 38 In Vu v R [2007] NSWCCA 2, the offender was found guilty of supplying 792 grams of heroin. He had flown to Brisbane with a co-offender who, in the presence but not with the participation of Vu, arranged to supply some 792 grams of heroin. In due course $300,000 was paid to the co-offender near where Vu was found in a vehicle with the heroin. Vu's criminality was found to be much less than that of the co-offender. This Court reduced a sentence of 10 years and 8 months, including a non-parole period of 8 years, to one of 8 years including a non-parole period of 6 years. Again parity was the ground upon which the Court interfered. The undiscounted starting point for the sentence imposed on the co-offender was 12 years. 39 I do not regard any of these cases as supporting the proposition that the sentence imposed on the Applicant was manifestly excessive. In this connection it is appropriate to regard the sentence imposed on the Applicant as embodying a starting point of 10 years, (i.e. the 9 years imposed with the 10% discount that should have been awarded added back), to recognise that his offence was below the middle of the range of objective seriousness to a moderate degree, but to recognise also that it was committed while the Applicant was on parole and had previously been convicted of a serious offence involving the supply of drugs. 40 Given the degree of discretion involved in sentencing, Shalala's sentence of 7 years does not demonstrate that 10 years is manifestly excessive, particularly when regard is had to the introduction of the standard non-parole period. The sentences imposed on Martin and Nguyen do so only if one concludes they were correct, a conclusion of which I remain unpersuaded. In Ancuta, the quantity of drug and the role of the offender were more serious than in this case, but the offender was not found to be motivated by greed and had gone some way towards rehabilitation. The fact that the sentences imposed on Tran and Vu reflected considerations of parity makes them unpersuasive. 41 Furthermore, in none of the cases relied on was the offender on parole in respect of an earlier serious drug offence. 42 In the result, I remain unpersuaded that the full term of the sentence imposed on the Applicant was manifestly excessive. I have already indicated that the reduction in the non-parole period was unjustified. The 6 years term of that was, in my view, lenient. As Wood J remarked in Schaal (unreported, NSWSC, 8 September 1989), "just as those stakes (in the drug trade) are high, so, however, must be the risks if caught". Particularly so is this in the case of those engaged in profit on their own account, who know the quantities in which they deal, and whose profits, it may be inferred, increase with increased quantity. The Applicant was such a person and he elected to involve himself in a not insubstantial amount. 43 I propose that the Court:- (i) Grant leave to appeal. (ii) Dismiss the appeal. 44 HIDDEN J: I agree with the orders proposed by Hulme J and, generally, with his Honour's reasons. The overall sentence is severe but, particularly in the light of the applicant's previous conviction and the fact that he was on parole at the time of the subject offences, it cannot be said to be outside the bounds of the proper exercise of discretion. 45 Hulme J has found that the sentencing judge fell into error in aspects of his approach to sentence which were favourable to the applicant: the discount for the pleas of guilty, the approach to the applicant's prior conviction, the concurrency of the sentences and the finding of special circumstances. It may be that, in finding that the previous conviction did not play "a very significant part in coming to sentence", the judge gave that conviction less weight than he might have done. In the discount for the pleas of guilty, the concurrency of sentences and the finding of special circumstances, it could be said that the applicant was treated leniently. The Crown prosecutor in this Court, quite properly, raised those matters as part of her response to the grounds of the application which asserted that inadequate weight had been given to the applicant's subjective circumstances and that the sentence on the second count is manifestly excessive. 46 However, whether those matters demonstrate error by the sentencing judge is quite another question, and was not the subject of argument. In an application by the offender for leave to appeal against sentence, there is no reason why it would have been. No such finding is necessary to dispose of the application, and I would prefer to express no view about those aspects of the remarks on sentence. ********** 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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