Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: PHAN, Thanh Dinh v R [2013] NSWCCA 49 Hearing dates: 13 April 2012 Decision date: 05 March 2013 Before: McClellan JA [1] Hidden J at [2] Hislop J at [17] Decision: Leave to appeal granted, appeal dismissed. Catchwords: CRIMINAL LAW - sentence appeal - two charges of importing commercial quantity of pseudoephedrine - sentences accumulated upon sentences already being served for previous offences of a similar kind - totality - whether aggregate non-parole period excessive Legislation Cited: - Criminal Code Act 1995 (Cth) - Customs Act 1901 (Cth) - Drug Misuse and Trafficking Act 1986 (NSW) Cases Cited: - Hili v The Queen; Jones v The Queen [2010] HCA 45, 242 CLR 520 - R v Jerrard (1991) 56 A Crim R 297 - Power v The Queen (1974) 131 CLR 623 - Deakin v The Queen (1984) 11 A Crim R 88 - Bugmy v The Queen 169 CLR 525 Category: Principal judgment Parties: Thanh Dinh Phan (applicant) Regina (Crown) Representation: Counsel: S Odgers SC (applicant) CB Craigie SC with LA Fernandez (Crown) Solicitors: Tully & Chiper Solicitors (applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2008/5501 Decision under appeal Jurisdiction: 9101 Date of Decision: 2009-07-03 00:00:00 Before: Williams DCJ File Number(s): 2008/5501 Judgment 1McCLELLAN JA: I agree with Hidden J. 2HIDDEN J: The applicant, Thanh Dinh Phan, pleaded guilty in the District Court to two charges of importing a commercial quantity of pseudoephedrine, an offence under s 307.11(1) of the Criminal Code Act 1995 (Cth), which carries a maximum sentence of 25 years imprisonment. Williams DCJ sentenced him on the first count to imprisonment for 8 years, commencing on 28 February 2011, and on the second count to imprisonment for 11 years, commencing on 28 February 2012. His Honour fixed a non-parole period of 8 years. The overall sentence, then, was 12 years with a non-parole period of 8 years, commencing on 28 February 2011. The sentences were accumulated upon sentences which the applicant was already serving, and the significance of that commencement date will become apparent. He seeks leave to appeal against the sentences. 3Given the limited scope of the application, it is unnecessary to examine in any detail the facts of the offences or the applicant's subjective case. Judge Williams also dealt with several co-offenders, charged with different but related offences, but no question of parity arises and their cases need not be considered. 4The two offences occurred in March 2007. Two consignments, both containing very large quantities of pseudoephedrine, arrived in Australia. Judge Williams was satisfied that the applicant was the principal in the importation, describing him as "the business end in Australia of whatever was occurring elsewhere." 5Significantly, at the time these offences were committed the applicant was on bail in respect of similar offences, albeit less serious, committed in 2003. He and his wife were involved in the importation of pseudoephedrine, then an offence under the Customs Act 1901 (Cth), and a conspiracy to possess pseudoephedrine as a precursor to the manufacture of methylamphetamine, an offence under the Drug Misuse and Trafficking Act 1986 (NSW). For those offences Charteris DCJ imposed partly cumulative sentences aggregating 7 ½ years with an effective non-parole period of 4 ½, years, dating from 1 September 2006. That non-parole period expired on 28 February 2011 and, as I have said, it was on that date that the first of the sentences imposed by Judge Williams was directed to commence. 6Subjectively, the applicant was a mature man, born in Vietnam but settling in this country in 1986. He was well educated, and worked as a pharmacist for some years before a gambling habit led him into considerable debt. It was in those circumstances, it seems, that he became involved in criminal activity. He and his wife have a daughter. 7Psychological reports identified a chronic gambling addiction, together with symptoms of major depression. At the time of sentence he enjoyed strong family support, and members of his family were caring for his daughter. However, he and his wife were incarcerated in different prisons a considerable distance apart, and his opportunity to enjoy visits from his daughter was limited. The application 8Counsel for the applicant, Mr Odgers SC, argued the application on one ground only: that the sentencing judge erred in the determination of the non-parole period. 9Mr Odgers noted that the non-parole period of 8 years was two-thirds of the overall sentence of 12 years imposed by his Honour, within the range of what was then seen as the normal ratio between head sentence and non-parole period for Commonwealth offences. The sentences were passed on 3 July 2009, before the High Court put paid to any notion of a "norm" in that ratio in Hili v The Queen; Jones v The Queen [2010] HCA 45, 242 CLR 520. It was in the effect of the accumulation of that aggregate sentence upon the non-parole period which the applicant was then serving, Mr Odgers submitted, that his Honour fell into error. The result of that accumulation was a total sentence for all offences of 16 ½ years with an overall non-parole period of 12 ½ years, dating from 1 September 2006. That overall non-parole period was almost 76% of the total sentence. Mr Odgers argued that his Honour had overlooked the fact that that would be the result of the manner in which the sentences were structured. 10He noted that the proportion between the effective non-parole period of 4 ½ years and the aggregate sentence of 7 ½ years imposed by Judge Charteris for the 2003 offences was 60%, and he argued that there was no reason why a similar proportion should not have been maintained in the structure of the sentences imposed by Judge Williams for the 2007 offences. He acknowledged that the fact that those later offences were committed whilst on bail for the earlier offences was a serious aggravating circumstance, but he argued that effect was given to that circumstance in the determination of the head sentences and the decision that they should be served wholly cumulatively upon the non-parole period for the earlier offences. 11Mr Odgers raised as a related consideration the fact that, after the applicant was sentenced by Judge Charteris in October 2007, the pendency of the present charges meant that he remained in the remand section of Goulburn Correctional Centre, where he was held, until Judge Williams passed sentence in July 2009. As a result, for that period of over 1 ½ years he endured the conditions of remand without being able to progress through the classification system. This, Mr Odgers submitted, was a matter properly to be taken into account, citing R v Jerrard (1991) 56 A Crim R 297. Mr Odgers also relied upon the fact that the applicant, being held at that prison, was largely deprived of contact with his daughter. He noted that, after sentence was passed, Judge Williams recommended that he be moved to a Sydney gaol to facilitate access to the child. 12Mr Odgers referred to the plurality judgment in Hili at [40], where their Honours held that the determination of a recognisance release order in respect of a sentence for a Commonwealth offence should be guided by the principles identified in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 11 A Crim R 88 and Bugmy v The Queen (1990) 169 CLR 525. The effect of those familiar decisions is that the setting of a non-parole period is governed not merely by considerations of rehabilitation, but must also reflect the need for retribution and deterrence. As their Honours went on to say in Hili at [41], one consideration in that case "critical to the making of recognisance release orders was the determination of what was the period of imprisonment that justice required that each offender must serve in custody." Nevertheless, Mr Odgers emphasised the ameliorative value of a non-parole period, in the interests of both the offender and the community, referred to in Bugmy in the majority judgment at 537 and in the dissenting judgment of Mason CJ and McHugh J at 531 - 2. 13Mr Odgers referred to the favourable aspects of the applicant's case and submitted that, in all the circumstances of the case, the ratio of the overall non-parole period to the total sentence of a little over 75% was "simply too high." 14It is clear from Judge Williams' remarks that he was aware of the issue of totality in the manner in which he structured the sentences. When dealing with the applicant, he said at [56]: "As far as Thanh Dinh Phan is concerned there also needs to be a substantial element of specific deterrence given that these are two serious offences committed whilst on bail for similar behaviour of a similar level of seriousness but involving substantially lesser penalties on the previous occasion. In his case, however, having determined appropriate sentences for the two offences before me, I need to consider the question of cumulation of penalty for each offence, the question of cumulation on those sentences on his existing sentences and then look at the question of the overall totality. I agree that it would be inappropriate to impose a crushing sentence, that is, one without any degree of hope or rehabilitation." 15While his Honour did not expressly refer to the non-parole period in that passage, I would not infer that he overlooked it. Since Hili it is clear that, subject to the principles developed by longstanding authority, the discretion of a sentencing judge in determining the proportion between sentence and non-parole period is at large. The applicant's criminality was of a high order and, notwithstanding the favourable features of his subjective case, it called for salutary punishment. An aggregate sentence cumulative upon the non-parole period the applicant was already serving was entirely appropriate, and the practical result of that accumulation was within the proper exercise of his Honour's discretion. The total sentence still leaves the applicant with a substantial period of parole eligibility, 4 years. 16I am not persuaded that his Honour fell into error in his approach to the matter. I would grant leave to appeal but dismiss the appeal. 17HISLOP J: I agree with Hidden 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. Decision last updated: 05 March 2013