New South Wales Court of Criminal Appeal CITATION: Nguyen v R [2009] NSWCCA 112 HEARING DATE(S): 8 April 2009 JUDGMENT DATE: 17 April 2009 JUDGMENT OF: Grove J at 1; Howie J at 21; Buddin J at 22 DECISION: Appeal dismissed CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Deemed supplying of prohibited drug (MDMA) by reason of quantity possessed - No error by judge in failing to consider available sentencing options - No special point of principle Crimes Act 1900 LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 CATEGORY: Principal judgment R v Clarke, unreported, NSWCCA 15 March 1990 CASES CITED : R v Depalo [2003] NSWCCA 80 R v Gu [2006] NSWCCA 104 PARTIES: Dinh Chien NGUYEN - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2008/14157 COUNSEL: S Odgers SC - Applicant V Lydiard - Respondent/Crown SOLICITORS: Ly Lawyers - Applicant Solicitor for Public Prosecutions - Respondent/Crown LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 08/11/0894 LOWER COURT JUDICIAL OFFICER: King DCJ LOWER COURT DATE OF DECISION: 19 December 2008 IN THE COURT OF CRIMINAL APPEAL CCA 2008/14157 GROVE J HOWIE J BUDDIN J 17 April 2009 Dinh Chien NGUYEN v R Judgment 1 GROVE J: The applicant seeks leave to appeal against severity of sentence imposed by King DCJ at Sydney District Court. He had been committed for trial on a count of supplying a prohibited drug but prior to the scheduled trial date he indicated his intention to plead guilty and did so when he was arraigned on 30 November 2008. The drug concerned was methylenedioxymethylamphetamine (MDMA) commonly referred to as ecstasy. The indictable quantity of that drug is 1.25 grammes. Actual supply was not alleged but the applicant had been arrested in possession of 6.35 grammes of the drug which was made up of twenty seven tablets and he was accordingly liable upon the indicted charge. His Honour was also asked to deal with an offence of goods in custody represented by $550 in cash which was brought before the Court pursuant to certificate under s 166 of the Criminal Procedure Act. 2 On the indictment the applicant was sentenced to imprisonment consisting of a non-parole period of 6 months commencing on 18 December 2008 and expiring on 17 June 2009 with a balance term of 12 months. For the offence on the certificate he was found guilty and directed to enter a bond pursuant to s 9 of the sentencing legislation to be of good behaviour for 18 months. 3 The facts were that at about 10 pm on Saturday evening 26 April 2008, authorized by warrant, a police constable was patrolling the city streets with a dog which had been trained to detect drugs. The applicant was standing in the foyer of the Eros Theatre in Goulburn Street and the dog reacted to him. No complaint is made about the fulfilment of requisite procedures by police thereafter and the applicant told them that he had ingested ecstasy on the previous day and that he had some drugs in his jeans pocket. Search located a plastic bag with twenty two tablets impressed with a gun logo and within that bag was another bag containing five tablets impressed with a different logo. 4 The applicant was arrested and taken to Central Police Station where he was interviewed. He said he got "the pills" from a friend called Tuan. He was unable or unwilling to give any further information about Tuan other than to say that he lived at Cabramatta and he met him on the streets in that suburb. He said that his intended use of the pills was "for dancing" at a club for a friend's birthday. He did not name this friend. Asked about the money he said that his mother had given it to him "for the eating" at the friend's birthday. He said that this was going to be attended by about twenty people. The amount of money found on the applicant consisted of one $100 note and nine $50 notes. 5 I accept, as recorded, that an interpreter was not available when the applicant was interviewed by police and I would make some allowance for handicaps in his abilities of expression. Nevertheless, it is plain that he was contending that he obtained the drugs from the man Tuan, was going to a party which was going to be attended by about twenty friends, and that the money was given to him by his mother to pay for food in connection with that party. 6 At the sentencing proceedings he gave evidence with the assistance of an interpreter. He affirmed that he had obtained the drug from a man Tuan but elaborated that he had not paid him for the drug and was indebted to him in the sum of $400 for the supply. He said that it was not his intention to distribute drugs to twenty partygoers but intended to use about one-third of the quantity for himself and give one-third each to his brother and a cousin. On that basis nine tablets would be consumed by each of them. He repeated that he obtained the sum of $550 from his mother and said this was to pay for a dinner for three, namely himself, his brother and the cousin. 7 Evidence was also given by Helen Duong with whom the applicant had commenced a relationship in August 2008 and whose parents provided him with employment at their restaurant. The applicant's mother also gave evidence. She said that the applicant and his brother were going to a friend's birthday party but she did not know the name of the friend. She did not know where the party was going to be held. She said she had taken money from her bank account in order to go shopping but had loaned it to the applicant when he asked for it. As his Honour noted, in the circumstances of the arrest of her son she no doubt would have turned her mind to this alleged loan at about the time of the events. After being charged by the police the applicant was released on bail. However, when giving evidence in December 2008 the applicant's mother said that she could not remember when she gave him the money nor did she remember the denominations of the notes which she gave to him. 8 The judge rejected the mother's evidence about the loan. Neither did his Honour believe the applicant's evidence that he bought the drugs on behalf of himself, his brother and his cousin. His Honour noted the different brandings by way of the embossed logos on the two quantities of drugs. His Honour found that the applicant had the tablets "with him on that occasion for the purpose of supply to the public in general." He later observed that, even on the applicant's own evidence, his intention was to supply other persons (his brother and cousin) with a substantial amount of MDMA, that is nine tablets to each of them. 9 The applicant relied upon two grounds of appeal, observing that the argument in support of them was interconnected. The grounds as stated were: 1. The sentence is manifestly excessive. 2 The sentencing discretion miscarried as the sentencing judge did not sufficiently consider the available alternatives to full time custody. 10 It is convenient to deal with the grounds together in the same fashion as the argument was presented. 11 In his remarks on sentence the Judge referred to a statement in R v Clarke unreported, NSWCCA 15 March 1990: "This court has emphasised that sentences involving a substantial general deterrence are to be imposed on drug traffickers and only in exceptional circumstances will a non-custodial order be appropriate. The statement is not restricted to those cases to which profit has been obtained. What the statement is principally directed to is the trafficking, the dissemination of drugs to others. The trafficking alone in any substantial degree would normally lead to a custodial sentence." 12 Other references were made to R v Depalo [2003] NSWCCA 80 and R v Gu [2006] NSWCCA 104. His Honour noted that the principle in Clarke was restricted to cases where the conduct of the offender constituted trafficking to a substantial degree. 13 As earlier observed, the finding by his Honour was expressly that the applicant "had those tablets with him on that occasion for the purpose of supply to the public in general." Senior counsel for the applicant conceded that his Honour could have been satisfied beyond reasonable doubt that the applicant's intention was to supply the tablets to more than one person but contended that it was not open to him to make the finding of intention to supply the public in general. 14 In my view there was ample evidence to support his Honour's finding. By weight, the quantity of drugs was a multiple of the indictable amount. The number of tablets was not insignificant. His Honour observed the assertion to police that the quantity was for about twenty friends at a birthday party, no acceptable contradiction of which was ever forthcoming. It was conceded that it was open to his Honour to reject the mother's evidence about the source of the money. The charge on the s 166 certificate was laid pursuant to s 527C (1) (a) of the Crimes Act and alleged that the goods ($550) may be reasonably suspected to have been stolen or unlawfully obtained. Counsel for the applicant at first instance (who did not appear in the appeal) stated in respect of this charge "I concede that your Honour would find the matter proven." 15 In short the applicant was loitering in the foyer of the Eros Theatre at about 10 pm. He had in his possession a significant quantity of drugs both in terms of number and weight, the logos embossed on the drugs suggested two different original sources and the applicant was in possession of cash which may reasonably be suspected of having been unlawfully obtained. I would reject the submission that it was not open to his Honour to be satisfied beyond reasonable doubt of the intention of the applicant to supply drugs in the manner which he indicated. 16 Argument was addressed about the notions of "exceptional circumstances", "trafficking", and "substantial degree" which appear in the extract from the judgment of Hunt J in Clarke above quoted. However, his Honour made no finding that, in the light of any of the authorities to which he referred, he regarded himself as under some implicit obligation to impose a custodial sentence. He made findings concerning subjective matters advanced on behalf of the applicant and he then stated: "In sentencing the offender I am required to impose a sentence that properly reflects the objective seriousness of the offence and to fix a sentence that would ensure that the time the offender must spend in custody reflects all the circumstances of the offence, including the objective seriousness and the need for general deterrence, and meets the fundamental purpose of punishment, namely the protection of society. I am satisfied pursuant to s 5 of the Crimes (Sentencing Procedure) Act , having considered all possible alternatives that no penalty other then (sic) imprisonment is appropriate." 17 After those remarks he added: "I have given serious consideration of the prospect of imposing a sentence by way of a suspended sentence and I have concluded, particularly in light of the offender's evidence and the lack of credibility which I have attached to it, also taking into account the seriousness of the offence as I have found it to be one of being prepared to supply ecstasy to members of the public, that a suspended sentence would be inappropriate." 18 It was submitted that this last quoted extract demonstrated the error articulated by ground 2. The recording by his Honour that, in effect, he had given particular serious consideration to one form of non-custodial penalty did not detract from the unequivocal content of his statement that he had "considered all possible alternatives". I would reject the submission. 19 The applicant benefited to a substantial degree when, by reason of his findings of special circumstances, his Honour set a non-parole period and a consequent order for release after the expiry of just one-third of the total sentence. I would reject the contention that the sentence was manifestly excessive. 20 I would grant leave to appeal against sentence but dismiss the appeal. 21 HOWIE J: I agree with Grove J. 22 BUDDIN J: I agree with Grove J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.