New South Wales Court of Criminal Appeal CITATION: Dong v R, Tran v R, Nguyen v R [2010] NSWCCA 107 HEARING DATE(S): 29 March 2010 JUDGMENT DATE: 14 May 2010 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 79; Rothman J at 80 DECISION: 1. Appeal by Dong against his conviction dismissed. 2. Leave to appeal their sentences is granted to Tran, Nguyen and Dong but each appeal is dismissed. CATCHWORDS: CRIMINAL LAW - first appellant - whether appellant received an unfair trial because of the use of purported inadmissible evidence - CRIMINAL LAW - second appellant - whether sentencing judge erred in having regard to the fact that the offence was committed in company included actual use of violence and the appellant's record of previous convictions were relevant aggravating factors when sentencing the appellant - CRIMINAL LAW - third appellant - whether the sentence imposed on the second appellant said to be erroneous had the net effect of meaning the third appellant's sentence had miscarried LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment Clarke v R [2009] NSWCCA 49 CASES CITED : R v Cramp [2004] NSWCCA 264 R v Fidow [2004] NSWCCA 172 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 Loi Phouc Dong (Appellant) PARTIES: Van Dung Tran (Appellant) Thi Dinh Nguyen (Appellant) The Crown FILE NUMBER(S): CCA 2008/2136; 2008/2134; 2008/2135 W P Lowe (Dong/appellant) COUNSEL: J Watts (Tran/appellant) H Cox (Nguyen/appellant) L Lamprati SC/J Dwyer (Crown) McGowan Lawyers (Dong) SOLICITORS: C Hunter (Tran) Legal Aid Commission of NSW (Nguyen) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court 08/11/0601 LOWER COURT FILE NUMBER(S): 2008/2134 2008/2135 LOWER COURT JUDICIAL OFFICER: Ashford DCJ LOWER COURT DATE OF DECISION: 29 September 2008 IN THE COURT OF CRIMINAL APPEAL 2008/2136 2008/2134 2008/2135 McCLELLAN CJ at CL HOWIE J ROTHMAN J FRIDAY 14 MAY 2010 DONG, Loi Phouc v R TRAN, Van Dung v R NGUYEN, Thi Dinh v R Judgment 1 McCLELLAN CJ at CL: Loi Phouc Dong (Dong) and Thi Dinh Nguyen (Nguyen) and Van Dung Tran (Tran) were found guilty after a trial with a jury that whilst in company of each other detaining Somthanh Chai (Chai) without his consent with the intention to obtain a financial advantage and at the time of that detaining occasioning actual bodily harm to Chai. The offence was contrary to s 86(3) of the Crimes Act 1900 and carries a maximum penalty of 25 years. Dong appealed against his conviction and seeks leave to appeal against his sentence. Both Nguyen and Tran only seek leave to appeal against their sentences. 2 Dong was sentenced to a total term of 8 years imprisonment with a non-parole period of 6 years. Nguyen was sentenced to a total term of 9 years and 2 months imprisonment with a non-parole period of 7 years. Tran was sentenced to a total term of imprisonment of 10 years and 10 months with a non-parole period of 8 years. The evidence at the trial 3 The Crown case was that Nguyen and Tran, assisted by Dong, attempted to kidnap Chai for the purpose of taking a large sum of money which Chai had with him. 4 The Crown alleged that Chai had arranged to meet Tran at St Johns Park Penrith Panthers Club on 5 March 2008. Chai arrived at the agreed location between 10.30 and 11 pm where he met with Tran and they discussed a proposal for Tran to repay a significant sum of money which was owed by Tran to Chai's employer. Chai was employed as a mobile cheque casher for Fairfield Cash Cheque and for this purpose carried with him significant sums of money. On the night in question he was carrying approximately $10,000. Tran owed Fairfield Cash Cheque an amount of about $30,000 which had accumulated from cheques from third parties which had been given to Tran and which Tran had sought to cash through Chai. 5 When Chai left the Club he opened the door to his motor vehicle, a black Toyota Prado, and sat in the driver's seat. He was about to close the door when a man whom he later identified as Nguyen ran up to the car pointing a hand gun at Chai's head. They struggled for control of the gun which was discharged into the air. Two further persons who Chai could not identify came running from the bushes and tried to bundle him into the car. They first tried to push him into the rear passenger seat but this proved difficult due to the presence of a child's seat. Chai struggled during which time he was punched and kicked. He suffered a cut on his cheek which bled and a cut to his knee which he suffered when he fell onto the bitumen next to his car. 6 Tran was not involved in the attempt to subdue Chai. He remained in the Club house. The struggle between Chai and the others came to an end when a bystander drove into the car park breaking up the group, then driving away. When his assailants left, Chai ran into the Club and was immediately attended to by Tran who asked him: "Are you hurt? Are you being shot? Did they doing anything do you?" 7 The police searched the scene and found a discharged bullet casing as well as a roll of masking tape adjacent to where the black Toyota Prado had been parked in the car park. 8 The Crown tendered evidence of an association between Dong and Nguyen. When the police searched Nguyen's home they found personal documents belonging to Dong. It was the Crown case that a finger print of Dong was found on the exterior front passenger door of Chai's car. 9 There was evidence from phone records of conversations between Tran and Nguyen, both prior to and following the incident in the car park. There was no evidence of telephone calls between Dong and Nguyen or with Tran and Chai at any relevant time. 10 Evidence was given by a forensic biologist Ms Lisa Wedervang to the effect that DNA which matched the DNA of Dong had been obtained from the roll of masking tape both on the outside of the tape as well as on part of the inside lip. Ms Vedervang said that the frequency in the general population of the DNA profile found on the tape was fewer than 1 in every 10 billion individuals. Ms Wedervang said that on the side portion of both sides of the tape she identified further DNA profiles that originated from more than 2 individuals, one of which was in a much greater concentration than the other two. She said that Dong could not be excluded as the major contributor to that profile. 11 At the trial counsel for Dong cross-examined Ms Wedervang. She agreed that Dong's DNA could have been transferred to the roll of tape if he picked it up. She rejected a suggestion that it could have been deposited by Dong merely touching the tape. Counsel interrupted Ms Wedervang when she was in the course of explaining that the amount of DNA recovered was consistent with the tape having been handled rather than just being picked up and put down. Counsel did not return to the subject and asked no further questions of Ms Wedervang about the matter. 12 Dong was interviewed twice by the police. In his interview of 14 November 2007 which was the second interview the answers to questions 70 to 71 and 74 to 81 inclusive are of particular significance. I have set out the questions and answers below: "70. Q: We've received information that you had in your possession, a roll of tape which was used for the purpose of binding or tying up Mr Chai in some way. What can you tell me about that? A: I don't remember, I don't know what … I don't remember. I don't remember, what, like, where you can find, I don't remember where it got it from, I don't know what --- 71.Q: OK. And we've got information that you were in possession of that tape on, that night, on the 5 th of March, 2007. What can you say about that? A: I don't know. Nothing to say. … 74. Q: Did you have a thick roll of sticky tape? A: I don't remember, 'cause I don't, I don't remember, like, what, what you guys find it, where you find it but, when you, like, I don't, I don't, I have nothing to say, I don't know where, where they found it or like, like, holding it or something like that. I don't know. 75. Q: OK. Have you ever taken any kind of tape or, or that tape or any other kind of tape to the Panthers Club on that day or any other day? A: No. No. 76. Q: Would you have any reason to take any tape with you to the Panthers Club or anywhere else on that day? A: No. 77. Q: Do you own any thick sticky tape? A: Um --- 78. Q: A thick roll of sticky tape? A: I, I usually buy like, to stick my magazine … I usually my magazine on the wall like the place I live now, I stick, I sticky tape, just stick on the wall, those magazine, like poster, like that. 79. Q: Mmm. OK. As a result of the investigation that was conducted and the scientific examination that was conducted of Mr Chai's car, and the surrounding area, we recovered a roll of thick tape which was located on the ground next to Mr Chai's black Prado where the offence took place, and that tape has been seized and examined, OK, and a DNA profile has been obtained from that tape, as a result of the examination. This DNA sample from the sticky tape has been analysed and compared to the sample that you provided to us on the 28 th of May, OK, and the sample of the DNA on the sticky tape and the same [scil. sample] of DNA that you provided to us, match, and we believe, as a result, that the, the DNA found on the tape belongs to you. What can you tell me about that? A: No, I have no idea. No, no. Something, you say something is mine so … 80. Q: Sorry, what did you say --- A: Even --- 81. Q: --- try to speak up a little bit because you're mumbling a little bit. A: You say, like, you say, you say something is mine, like, so how it have to be mine, just say I do to the shop, I go, I look at the beanie, and, and then I try it on and then I don't buy it, it's not nice, I put it back, and then something happen like, oh, with that beanie, someone bought it, do a crime, and then got my hair in it, and then you think it's me so whatever, like, so IK, that's it, as, as you say, OK, that's how it is, so that, I could be happen too, what happen I go to the shop and then I buy some clothes, I try it on, I don't like it, and then I just put it back, and then, next thing, these people buy it, and then they do a crime, and then got my DNA in it, and then you think it's me. So could be that. You know, that, all kind of thing that could, you know … it's all right. I got nothing to say anyway … that's all I can say to you." 13 Dong gave evidence at the trial in which he denied any knowledge of a plan to kidnap or detain Chai. He explained that he had driven with Nguyen in his mother's car to the car park area of the Panthers Club. He said that they had gone to the Club for the purpose of purchasing some heroin. He said that he was waiting in his car while Nguyen went somewhere when he heard a loud noise. He said that he went to assist Nguyen who he said was in a struggle with Chai in the vicinity of Chai's car. He denied having seen Nguyen with a gun before the struggle. 14 Dong said that he tried to prevent Chai from hitting Nguyen and pushed him down after which Chai ran off. He said that he then realised that he had lost his keys and searched for them in the dark near and under Chai's car. He said that he found some items on the ground but did not know what they were. When he was shown the roll of tape he denied that he had taken it to the car park. He said that he found his own car keys under the car on the passenger seat side. He said that he had touched the car but did not remember where he touched it. 15 In his evidence Dong admitted that he had lived at Nguyen's home but said it was only for a short time (2 days) earlier that year and before the police search located his personal documents at Nguyen's house. 16 Dong was cross-examined. He said that after the incident he drove with Nguyen away from the Panther's Club. Nguyen asked him to stop and said that once he had stopped Nguyen got out of the car but he did not notice where he went. 17 He was asked a series of questions about the DNA identified on the roll of tape, and his fingerprints on the car and his evidence about retrieving his keys. At the end of a series of questions the Crown prosecutor said to Dong: "And that's the roll of tape that you dropped when you were going from your car to assist Mr Nguyen to kidnap Mr Chai." Dong denied the suggestion. 18 The prosecutor continued with questions relating to the fingerprint. The Crown prosecutor said: "You touched that part of the door when you were opening it to try and put into the front passenger seat Mr Chai." Dong answered: "No, I don't remember." 19 There were then some further questions in which Dong was asked about his prior statements to the police in which he had denied any knowledge of the Panthers Club. The prosecutor then raised the issue of the roll of tape again and after referring to the answers Dong had given in the police interview said: "And that's still your evidence is it. You have no way of explaining how your DNA ended up on that roll of tape." Dong answered: "I had never seen a roll of tape and when I was asked naturally I couldn't give a satisfactory answer." 20 When pressed on the matter he said: "It could be that while I was looking for my key and then I…. Touched the car. I could touch the roll of tape which I didn't take notice and it was too dark …. " 21 The Crown prosecutor ultimately suggested to Dong that he was carrying the tape with him as part of a plan to kidnap and detain Chai. The prosecutor suggested that it was intended that the tape would be used to tie up Chai's feet or hands. Dong denied these propositions. Grounds of appeal 22 Dong originally filed a Notice of Appeal in which three grounds were included. However, on the hearing of the appeal only ground 1 was pursued and the other two grounds were abandoned. The ground which was argued was as follows: The appellant received an unfair trial in that the Crown led inadmissible evidence from the police as to the questioning of the appellant regarding his explanation for the DNA result. 23 As I have previously indicated Dong was formally interviewed by the police on two occasions. On the first occasion he denied that he was involved in any attempt to kidnap a person but did admit knowing Nguyen from childhood. He denied any knowledge of the location of the Panthers Club or any knowledge of the incident. 24 During the second interview Dong said that he could not recall what he actually did on 5 March 2007 but denied ever having been to St Johns Panthers Club. However, on this occasion he admitted that he had lived at premises which were occupied by Nguyen in Bonnyrigg around 1 June 2007. He said he lived there for a short period of time. When the police searched Nguyen's premises they found a citizenship certificate, telephone and internet access banking card belonging to Dong. 25 I have previously related at [12] part of the second interview with Dong. Question 79 includes a statement by the interviewing officer when referring to the DNA material in which he said "the sample of the DNA on the sticky tape and the same [scil. sample] of DNA that you provided to us, match, and we believe, as a result, that the, the DNA found on the tape belongs to you. What can you tell me about that?" 26 There was no objection to this or any other portion of the second interview when it was tendered. 27 Dong submitted that questions 70 and 71 as framed were completely improper in that they presupposed the existence of other evidence which implicated Dong as having possessed the masking tape. It was submitted that no other evidence was led at the trial. It was submitted that because the DNA evidence did not prove as a fact that Dong had actually possessed the tape the questions should have been rejected. It was submitted that the questioning was infected by the "prosecutor's fallacy." 28 Apart from the fact that no objection was made to the tender of the questions and answers, counsel for Dong asked no questions of the interviewing officer regarding the Crown's suggestion of a match between Dong's DNA and the DNA found on the tape. In his written submissions counsel for Dong acknowledged that as a consequence this Court could conclude that counsel for Dong accepted that the fact of Dong's DNA being present on the tape was not disputed at the trial. Although counsel who appeared on the appeal submitted that the concession should not have been made there was no suggestion that Dong had been incompetently represented or that the course taken at the trial was adopted for other than legitimate forensic reasons. 29 I have previously referred to the evidence of Ms Vedervang at [11] who said that she believed that the extent of the DNA on the roll of tape was consistent with Dong having handled the tape rather than just picking it up. She was not challenged about the reasons for her belief although counsel did emphasise the possibility of innocent transfer of DNA material to the tape. It was submitted that because of the form of the questions which Dong was asked when he was interviewed and which indicated that the police had concluded that it was his DNA on the tape Dong may have believed that there was no opportunity to challenge this conclusion. It was submitted that this may explain the fact that counsel at the trial did not challenge the evidence that it was Dong's DNA on the tape. 30 Complaint was also made on the appeal about questions asked of Dong by the Crown prosecutor. The relevant transcript reads as follows: "Q: I'll ask you some different questions. Have you got exhibit E there with you still? A: INTERPRETER: Yeah. Q: That roll of tape, do you understand that there is evidence that is to the effect that you have handled that tape? Your DNA is on that roll of tape? A: INTERPRETER: Yes, that's correct, I did. Q: You bought that roll of tape in the car to Panthers Club, didn't you? A: INTERPRETER: No, I didn't. … Q: That's the roll of tape that has got your DNA on it, hasn't it? A: INTERPRETER: Yes. Q: And that's the roll of tape that you dropped when you were going from your car to assist Mr Nguyen to kidnap Mr Chai? A: INTERPRETER: No." 31 It was submitted to this Court that the prosecutor's questions were unfair and highly prejudicial in that they not only restated but reinforced the allegedly improper questioning of Dong by the police officer. It was submitted that the impropriety followed from the fact that there was no evidentiary basis to positively assert as a proven fact that it was Dong's DNA on the masking tape. 32 There was a further occasion in respect of which it was submitted that the prosecutor committed the "prosecutor's fallacy"; by repeating the allegedly improper question put to Dong by the police. The relevant exchange was as follows: "Q: The police in that same interview asked you about exhibit E, the roll of tape. They asked you at question 70 on page 9. 'We've received information that you had in your possession a role (sic) of tape which was used for the purpose of binding or tying up Mr Chai in some way. What can you tell me about that?' You said, I don't remember.' Do you remember that? A: INTERPRETER: Yes. Q: And that's still your evidence is it, you have no way of explaining how your DNA ended up on that roll of tape? A: INTERPRETER: I had never seen the roll of tape and when I was asked naturally I couldn't give a satisfactory answer. Q: Can I suggest the truth is that the DNA on that roll of tape because you were handling it at the time Mr Nguyen, your friend was struggling with Mr Chai and you dropped it as you were going to his assistance. That's the satisfactory answer, isn't it? A: INTERPRETER: … (not transcribable) … satisfactory answer, it could be that while I was looking for my key and then … (not transcribable) … I touched the car. I could touch the roll of tape which I didn't take notice and it was too dark. I was given the chance to view the photograph but that's not the real thing at what happened at the time. It was much darker. It has such a lighting as in the photo. Q: Mr Dong, you had that tape with you as part of a plan that you, Mr Tran, seated over there, the accused, Mr Tran, and your friend, Mr Nguyen, the other accused, had to kidnap, detain in that car, Mr Chai, isn't that the truth? A: INTERPRETER: No. … Q: And you were supposed to use the tape to tie up Mr Chai's feet or his hands? A: INTERPRETER: To do what to Mr Chai? Can you say it again? CROWN PROSECUTOR Q: Tie the feet or the hands? A: INTERPRETER: No." 33 It was submitted to this Court that it was quite unfair and prejudicially so to put any question to an accused when giving evidence to explain why it is his or her DNA on any object. It was said to be a reversal of proof. It was submitted that the question presupposes that there is proof that the DNA which has been found is that of the accused, whereas DNA evidence does not constitute proof that it was that individual's DNA, merely that there is a statical probability that it is his or her DNA. It was submitted that the form of questions reversed the onus of proof so that Dong was being required to explain something that was beyond his knowledge. It was further submitted that the problem was compounded by the trial judge's summing up because no direction was given as to the use that could be made of Dong's evidence on this matter. Conclusion with respect to the ground of appeal 34 As I previously indicated trial counsel took no objection to either the tender of the relevant portion of the police interview or the questions asked by the Crown prosecutor. 35 During the course of the police interview it was suggested to Dong that the police had information that he had a roll of tape in his possession at the relevant time. This was true and all that Dong was initially asked was "what can you tell me about that." The questioning police officer suggested that the intended use of the tape was to bind or tie Chai, an inference which the police were reasonably entitled to draw. 36 Later in the questioning the officer indicated that the police believed that the DNA found on the tape belonged to Dong. This was the police belief and it was held on reasonable grounds. The question which was asked provided Dong a further opportunity to explain his position with respect to the belief which the police held. There was no impropriety involved. 37 As far as the questions asked during the trial are concerned I am also satisfied that there was no impropriety or unfairness to Dong. The prosecutor indicated that there was evidence that Dong had handled the tape and that his DNA was on it. This was the evidence and the question had a reasonable foundation. Dong admitted that he had handled the tape but denied that he had brought it to the Panthers Club. 38 Although later in the cross-examination Dong said he had never seen the roll of tape, this was inconsistent with his earlier answer that he had handled it. However, the Crown prosecutor proceeded to put to Dong that his DNA came to be on the tape because he had held it during the struggle with Chai. It was this proposition which Dong ultimately denied. 39 It is plain that Dong's defence at his trial accepted that his DNA had been found on the tape. Although he denied that he had held the tape or was carrying it at the Panthers Club he did not deny that he had touched it. He accepted that he had handled the tape but denied that he had carried it for the purpose of using it to bind Chai. 40 For these reasons I reject the submission that the trial of Dong was unfair. There was no suggestion that counsel was incompetent or failed to act in accordance with Dong's instructions. A forensic choice was plainly made which accepted that Dong's DNA was present on the tape, the argument being confined to the circumstances in which it came to be there. The appeal against his conviction should be dismissed. Matters of sentence 41 The primary challenge to the sentences which the trial judge imposed was brought by Tran who received the most severe sentence. The sentences for Nguyen and Dong were imposed by the sentencing judge having regard to her findings that the offence was motivated by Tran who she identified as the leader in the implementation of the plan to detain Chai. 42 Tran advanced four grounds of appeal being as follows: Ground 1 Her Honour erred by having additional regard as an aggravating factor to the fact that the offence was committed in company. Ground 2 Her Honour erred by having additional regard as an aggravating factor to the actual use of violence. Ground 3 Her Honour erred by having additional regard as an aggravating factor to the fact that the offence was committed for financial gain. Ground 4 Her Honour erred by having regard as an aggravating factor to the applicant's record of previous convictions. 43 The sentencing judge determined that Tran's role was "around the middle range of objective seriousness." Although it was submitted that her Honour could make a finding of special circumstances she declined to do so. 44 It was submitted to the sentencing judge that she should find that Nguyen did not bring the gun to the scene but that it was produced by Chai. It was further argued for Nguyen that as there was no element of the offence that he was armed with a gun the jury did not have to and it could be assumed did not make a finding beyond reasonable doubt that he brought the gun. The sentencing judge did not accept this submission. Her Honour accepted the evidence of Chai and found that it was Nguyen who brought the gun to the scene. 45 Her Honour set out her findings as to the relevant the facts. She stated: "In dealing firstly with the offender Tran , in looking to the objective seriousness of the offence I am mindful of the factors to be taken into consideration as are set out in R v Collett CCA 7 June 1979 and in R v Newell 2004 CCA. Though not exhaustive these factors include: The length of time the victim was detained. The extent of fear or terror of the victim and the purpose of the detention. Whether there are persons who are subjected to anguish and fear for the wellbeing of the person detained. Clearly the last factor does not apply in this situation. In this case the detention period was very short. It appears to have been somewhere around one minute or so. The victim was clearly distressed. This was very obvious from the video footage and the evidence of those who attended to him at the Club. The evidence given by the police and ambulance officers was also to that effect. It does not appear he was seriously injured and he declined to go to hospital. There is no evidence that he required further medical attention. A Victim Impact Statement was tendered which showed him to continue to experience some effects of the detention. However, as I have said, there is no medical evidence of a requirement for attention or for continuing treatment. I accept it however to have been a frightening experience for him and that he does continue to experience some sequelae from the event. From the jury verdict it is clear they accepted the offenders did detain Chai to obtain a financial advantage. The Crown submits the offence is at the higher end of the range of objective seriousness noting the offence was part of a planned criminal activity and involved actual use of a weapon, was committed without regard for public safety, and involved a grave risk of death to another person or persons. I do not accept that last submission. No other person appears to have been threatened or appeared likely to have been threatened, although I accept the offence was committed without regard for public safety, noting that there were patrons present at the club and there were other vehicles in the car park. Counsel for Tran submits that I should find this to be within the mid range of objective seriousness. In looking to aggravating factors, clearly the offence included actual or threatened use of violence and of a weapon. The offender has a record of previous convictions and has spent lengthy periods in gaol. The offences for which he has been previously committed include a conviction for manslaughter in May 1999 for which he received a four years three months sentence with a one year five month additional sentence. Multiple offences of PCA and other driving offences are noted on his record, as is a conviction for demanding property with menaces in November 1997. The offence was committed in company and without regard for public safety. The offence was part of planned or organised criminal activity evidenced by the phone calls made by Tran to Chai and Nguyen. The offence was committed for financial gain. I find those aggravating factors to be present beyond reasonable doubt". Subjective matters in relation to Tran 46 The applicant both gave and called evidence relevant to his sentence. He was supported in court by his extended family including his mother and cousins. 47 At the date of sentence he was forty-three years old and was married with five children the youngest of which was aged fifteen years. His wife suffers from a depressive illness. 48 He was born in Vietnam where he attended school before he left with two brothers travelling to Malaysia where he spent 12 months in a detention camp before arriving in Australia in 1981 at age sixteen or seventeen. He completed year ten at school and then worked in a clothing factory. He was married in 1985. 49 Her Honour noted that the applicant agreed that he has experienced prior problems with alcohol. He admitted his prior offences but her Honour believed that he sought to downplay them, saying that the manslaughter of his brother was an accident. 50 Members of the applicant's family gave evidence that they regarded him as the pillar of their family, a good person and a good father. However her Honour concluded that their views must be treated with some caution because, in the main, they were unaware of the nature of this offence except in vague terms. 51 Her Honour found that the applicant continued to demonstrate a disregard for the law. She emphasised that he admits that he still owes Chai $30 000 and has other large debts including some $50 000 to Cash-a-Cheque. 52 Tran's complaint is that her Honour adopted a "check list" approach to the matters referred to in s 21A of the Crimes Sentencing Procedure Act with the consequence that she has effectively double counted in respect of the fact that the offence was committed in company (ground 1) and for financial gain (ground 3). 53 In my judgment this submission must be accepted. The concluding paragraphs in her remarks with respect to Tran which I have set out in [46] make plain that her Honour viewed these matters as matters of aggravation when they were clearly an element of the offence. By having regard to these matters as aggravating factors her Honour has proceeded contrary s 21A(2) of the Crimes (Sentencing Procedure) Act. 54 In relation to ground 2 Tran submitted that her Honour had also erred by concluding that the offence was aggravated by the actual or threatened use of violence and of a weapon. However, the offence even in its specially aggravated form does not include an element of violence or the use of a weapon. In its specially aggravated form actual bodily harm must be occasioned to the victim but this need not be as a result of the use of violence or the presence of a weapon. In the present case this aspect of the offence was of particular significance. Her Honour found that Nguyen was carrying a gun which was discharged during the course of the events. Fortunately no one was injured by the bullet but given the melee that was occurring the possibility of really serious harm being occasioned to Chai or one of the other two or a bystander was significant. Her Honour was entitled to have regard to this aspect as a serious aggravating factor. 55 With respect to ground 4 Tran submitted that her Honour's reference to Tran's record of previous convictions makes plain that her Honour erred by considering this to be an aggravating factor. It was submitted that the relevance of an offender's previous convictions is confined by the principles stated in R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 where it was stated that a record of previous convictions is not relevant to the objective seriousness of an offence. It may however require that greater weight be given to retribution, personal deterrence and the protection of the community than would be the case if such a record did not exist. 56 It is apparent from the sequence of matters referred to in her Honour's remarks on sentence that she considered Tran's prior convictions to be relevant as an "aggravating factor" in the offence. This was plainly an error: see McNaughton at 573-574. 57 Notwithstanding the errors identified in the sentencing process for Tran it is necessary to consider whether or not the sentence which her Honour imposed was such that this Court should intervene (s 6(1) Crimes (Sentencing Procedure) Act. This was a very serious offence significantly aggravated by the use of a loaded gun. A significant penalty was inevitable. The maximum penalty for the offence is imprisonment for 25 years. The sentence was required to reflect both general and personal deterrence. The courts must do what they can to dissuade members of the community from endeavouring to kidnap others for financial gain, particularly when the enterprise contemplates the use of a loaded weapon which may be discharged either deliberately or indiscriminately in the melee which is likely to accompany the confrontation. The sentencing judge found that Tran instigated the offence which was committed because of the financial liabilities which Tran had incurred and was attempting to alleviate. 58 When appropriate regard is given to Tran's personal circumstances I am not persuaded that a lesser sentence than that which the sentencing judge imposed is required. Notwithstanding the fact that Tran is married with 5 children he has lived an irresponsible life. He has previously been convicted and sentenced for the manslaughter of his brother. Although this conviction does not aggravate the seriousness of the present offence it nevertheless suggests a significant need to impose a sentence which provides appropriately for personal deterrence and the need for the protection of the community. 59 Although I would grant leave to appeal I would dismiss Tran's appeal against his sentence. No other sentence was required by law. Application for leave to appeal against sentence by Nguyen 60 Nguyen sought to advance 3 grounds of appeal which are as follows: Ground 1: The sentence imposed upon the co-offender Tran was infected with error such as to cause the sentencing exercise in the applicant's case to miscarry. Ground 2: Her Honour erred in that she had additional regard, as an aggravating factor, to a matter that was an element of the offence namely, the use of violence. Ground 3: Her Honour erred in that she took into account as an aggravating factor a matter that was specified in the offence namely, that the offence was committed for financial gain. 61 In effect the grounds of appeal are the same as those advanced by Tran and for the reasons I have already given in respect to Tran's application for leave to appeal the sentencing process in respect of Nguyen was also flawed. However, it is again necessary to consider whether any lesser sentence was required in law. Subjective matters in relation to Nguyen 62 The applicant's subjective case was placed before the court in a report by Dr Katie Seidler. 63 At the date of sentence the applicant was 26 years of age, having been born on 23 October 1981 in a small town in northern Vietnam, the middle of three children. The applicant's father had served in the Vietnam War and had died when the applicant was only a young child. 64 The applicant's mother came to Australia when he was six years old. She took the applicant's siblings with her to Australia although she left the applicant with his paternal grandparents. The applicant was uncertain why this had happened but told the psychologist that he felt rejected by his mother and unwanted. He had lived with his paternal grandparents for six years and became very attached to them. His grandparents were elderly and he was the only child in the home and he felt quite isolated. 65 He was brought to Australia in 1993 when he was 12 years of age and found the adjustment to living in Australia a difficult one. His grandparents remained in Vietnam. He told Ms Seidler that he found the cultural and language differences very difficult and had found it hard to relate to his mother and siblings who by this time were settled in Australia and were more proficient in English than he was. He had felt distant and disconnected from his family. From the age of 13 he led what Ms Seidler described as an unstructured and itinerant lifestyle alternating between living with friends or "on the streets". He drifted into what Ms Seidler described as an anti-social peer culture. Whilst he had attempted to live back with his family at various times these were generally unsuccessful. 66 Nguyen was first taken into custody at the age of 14 and had spent approximately 7 years in custody since that time. He commenced using drugs and alcohol at the age of 14. He started drinking alcohol heavily and also smoking cannabis. He quickly developed a dependence, smoking approximately 100 "cones" each day. He told Ms Seidler that he had suffered visual hallucinations and paranoid ideation as a result. He started using ecstasy at about the age of 16 and heroin at the age of 18 to 20 years of age. He stopped smoking cannabis as his use of harder drugs increased. 67 Nguyen has been heroin dependent since the age of 18. He acknowledged to Ms Seidler that his drug use was problematic. He had initially been exposed to drugs through a negative peer group influence but over time Ms Seidler noted that he used drugs heavily in an attempt to forget about his personal problems and to avoid what she described as a "negative affect." He had been a slow learner and had repeated Year 1 and Year 2 in Vietnam. Although he started Year 6 studies in Australia, he was taken out of a mainstream school and placed in a remedial English class to assist him in gaining sufficient language skills to cope with school. He dropped out of school in Year 9. 68 Nguyen's employment history is relatively short. He was first employed at the age of 17 in the tiling business helping a friend and had also had employment as a kitchen hand. His drug use had been a problem in maintaining employment. 69 Dr Seidler concluded that "the appellant's offending behaviour is best understood in the context of early psycho-social vulnerabilities, an unsuccessful experience of migration, and negative peer influence." She noted that whilst he had struggled with itinerancy, instability, drug use and anti-social peer influence for some years, and whilst he gained some perspective and motivation for change when in custody and drug-free, he soon relapsed. She suggested that he would benefit from intervention and support in order to assess an appropriate approach to his rehabilitation. 70 The applicant has a number of prior convictions. These commenced in 1998 with a charge of resist an officer in the execution of his duty and using offensive language. Thereafter, he has entries as a juvenile for offences of resisting an officer and possessing a prohibited drug and a goods in custody offence. His first adult entry was for supplying a prohibited drug, being a small quantity for which he was sentenced to prison for 6 months. Subsequently he was convicted of robbery in company for which he received a sentence of 2 years 3 months with a 15 month non-parole period. Her Honour incorrectly noted that sentence as being one of "two years plus an extra term of fifteen months from 28 March 2002." Since being released he has committed two driving offences. 71 As with Tran I am satisfied that no lesser sentence than that which her Honour imposed was appropriate. Notwithstanding the errors which her Honour made when sentencing Tran this was a very serious offence. Her Honour found that it was Nguyen who was carrying the gun when Chai was accosted and Nguyen who fired the shot. The fact that it was Nguyen who took a gun to the scene significantly raises the seriousness of the offence. To my mind a more significant sentence than her Honour imposed would not have been an error. There is nothing in Nguyen's personal circumstances which would indicate that a more lenient sentence should have been imposed. 72 Although I would grant leave to appeal, Nguyen's appeal against sentence should be dismissed. Application for leave to appeal against sentence by Dong 73 The application by Dong for leave to appeal his sentence was confined to a submission that her Honour should have made a finding of special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act. Dong accepted that her Honour correctly identified that his role in the offence justified a lesser sentence than was imposed upon either Tran or Nguyen. Furthermore, Dong's counsel made no submission that her Honour's finding as to the seriousness of the offence was erroneous. Apart from joining in a submission that her Honour erred when sentencing Tran and Nguyen with the consequence that Dong's sentence should for the same reasons be reduced it was submitted that her Honour fell into error when she failed to make a finding of special circumstances. It was submitted that Dong's relative youth (he was aged 26 at the time of sentencing), the struggle that he had with drug addiction and the need for rehabilitation meant that her Honour should have provided a greater period on parole to allow for his rehabilitation and adjustment to society. 74 The Crown submitted that the sentence which her Honour imposed allowed for a sufficient period on parole. It was submitted that Dong's circumstances were not sufficiently "special" to have justified a finding of special circumstances: R v Fidow [2004] NSWCCA 172 at [18]-[20]. It was submitted that Dong was not young at the time and his record of prior offending, including an offence of armed robbery, and the fact that he was on a s 9 bond for an offence of possessing stolen goods at the time he committed the offence indicated that he was prepared to continue to break the law. It was submitted that in the circumstances there was nothing to indicate that Dong would benefit from an extended period of supervision upon his release. 75 This Court has previously indicated that a finding of special circumstances is a matter which falls within the discretion of a sentencing judge: see Clarke v R [2009] NSWCCA 49 at [13]; R v Cramp [2004] NSWCCA 264 at [31]. I am not persuaded that her Honour has erred in the exercise of her discretion in the present case. In any event, I would not myself have made a finding of special circumstances. There is no doubt that if Dong is ever to become a responsible member of the community he must understand that he has to address his tendency for criminal behaviour and his use of prohibited drugs. However, he has previously received opportunities to alter his behaviour which, as the present offence indicates, he has failed to utilise. 76 Although I would grant leave to Dong to appeal against his sentence I would dismiss that appeal. No other sentence was required by law. 77 Accordingly the orders I propose are: 1. Appeal by Dong against his conviction dismissed. 2. Leave to appeal their sentences is granted to Tran, Nguyen and Dong but each appeal is dismissed. 78 HOWIE J: I agree with McClellan CJ at CL. 79 ROTHMAN J: I agree with McClellan CJ at CL. ********** 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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