Tran v R [2014] NSWCCA 32

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tran v R [2014] NSWCCA 32 Hearing dates: 4 March 2014 Decision date: 18 March 2014 Before: Beazley P at [1] RA Hulme J at [2] Schmidt J at [3] Decision: Leave to appeal refused. Catchwords: CRIMINAL - application for leave to appeal sentence - whether there was an absence of sufficient information with respect to mental health/special circumstance, family support and remorse - whether criminality was not on par with co-accused - additional evidence - leave to appeal refused Legislation Cited: Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Khoury v R [2011] NSWCCA 118; (2011) 209 A Crim R 509 Pham v R [2010] NSWCCA 208 Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628 Category: Principal judgment Parties: Ha Bu "Matthew" Tran Regina Representation: Counsel: Mr K Becker (Applicant) Mr R Herps (Crown) Solicitors: S Kavanagh, solicitor for Public Prosecutions (Crown) File Number(s): 2009/2352004 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-03-19 00:00:00 Before: Sorby DCJ File Number(s): 2009/2352

Judgment 1BEAZLEY P: I agree with the reasons of Schmidt J. 2RA HULME J: The reasons disclosed in the judgment of Schmidt J reflect my own for joining in the refusal of leave to appeal. 3SCHMIDT J: On 4 March 2014, the Court refused the applicant Mr Tran leave to appeal the sentence imposed upon him by Sorby DCJ in March 2010. He was then sentenced to 10 years imprisonment after a discount of 15% for his guilty plea for an offence of knowingly taking part in the supply of a prohibited drug, agreed to be some 10.124 kg of pseudoephedrine, an offence which his Honour found fell into the mid-range. There was also a finding of special circumstances, with the result a non-parole period of 6 years was imposed. 4This was a relatively lenient sentence, given the objective seriousness of this offence, the maximum penalty of life imprisonment and the standard non-parole period 15 years (see s 25 of the Drug Misuse and Trafficking Act 1985 (NSW)). The sentence imposed was the same as that imposed on the applicant's co-offender Mr Pham, after a discount of 25% for his early guilty plea. A severity appeal against that sentence was dismissed, it being observed that in addition to the 25% plea of guilty reduction, the non-parole period imposed was a further 5 years and 3 months or 35% less than the standard non-parole period (see Pham v R [2010] NSWCCA 208). 5The grounds of this application for leave to appeal were: A. Absence of sufficient information before the sentencing judge: Mental Health/special circumstances; Family support; and Remorse; and B. The Appellant's criminality was not "on par with" the co-accused, Pham, and sentencing consequently should not have indicated "equal criminality". 6The Crown opposed the leave sought in circumstances where the applicant sought to rely on considerable additional evidence which had not been led at the sentencing hearing, in order to establish his case. 7Leave to appeal was refused, it being apparent that this evidence was not admissible and that the appeal simply had no merit. 8The sentence which his Honour imposed on the applicant not only had to reflect the gravity of his offence, viewed objectively, as the evidence established, but also had to ensure that the non-parole period was not reduced below the minimum term which justice required the applicant to serve for the offence he had committed (see Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 628). 9The applicant was represented on sentencing by senior counsel, Mr Boulton SC. An agreed statement of facts was tendered, which revealed the objectively serious offence for which the applicant was being sentenced. The applicant did not then himself give evidence, but relied on a report provided by the psychologists Dr Colquhoun, Ms Do and Ms Iskander, as well as other documents. He also called evidence from his father and his long term partner, Ms De Salvo. 10On appeal the applicant sought to rely on advice which he had received after sentence as to his prospects of success on appeal, as well as other material since obtained, which it was submitted "may have had significant impact on the considerations of the sentencing judge at the time". That included a report of a psychologist Mr Watson-Munro, of 6 November 2012, as well as statements and affidavits which the applicant, his father, his brother, his mother, Ms de Salvo and her mother and father had each made in 2013. They dealt with the applicant's mental state and other matters known at the time of the sentencing hearing, as well as developments subsequently in relation to matters such as the applicant's experiences in custody which had led to developments in his remorse and contrition and the difficulties which his custodial sentence had caused the applicant and his family. 11An applicant for leave to appeal a sentence is generally bound by evidence and the case which he or she advanced at the sentencing hearing and may not seek to re-litigate that case on appeal, improving it by calling evidence which could then have been called, but was not. 12The principles governing the calling of further evidence on appeal are those discussed in Khoury v R [2011] NSWCCA 118 at [104] - [110]: "104 The general principle is that parties to litigation, including criminal litigation, are bound by the manner in which their cases are presented at first instance and will not be permitted to enhance their cases on appeal by producing fresh, or new, evidence: R v Birks (1990) 19 NSWLR 677; R v Fordham (1997) 98 A Crim R 359 at p 377. That applies no less to applications for leave to appeal against sentence than it does to conviction appeals. 105 The rule is far from absolute, and has been diluted over the years. In criminal cases it has long been recognised that the rigour with which it is applied must be tempered in order to accommodate the interests of justice: Green v The King [1939] HCA 4; 61 CLR 167, per Latham CJ; Ratten v The Queen [1974] HCA 35; 131 CLR 510 per Barwick CJ. In criminal cases, two important but competing policy considerations collide: (1) that the administration of justice requires finality in litigation; in general, parties to litigation (including criminal litigation) have one, and one only, opportunity to present their cases in the best light they can, and are bound by the conduct of their cases at first instance; (2) that error in the sentencing process, however caused, that is the occasion of injustice, ought to be remedied. But there are limits as to the extent to which the court may legitimately accept additional evidence. There is no call here to consider the application of the principles in appeals against conviction: these have most recently been considered in R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 and Aouad and El-Zeyat v R [2011] NSWCCA 61 at [282] and following. These remarks are confined to the circumstances in which this Court may properly, and will, admit and take account of additional evidence on applications for leave to appeal against sentence, in respect of which a distinct sub-set of principles has evolved. 106 I say "additional evidence" because a distinction has been drawn between "fresh" evidence and "new" evidence: see Abou-Chabake , per Kirby J, at [63]. 107 "Fresh" evidence has been defined by Mason J (as he then was) in Lawless v The Queen [1979] HCA 49; 142 CLR 659 at p 675 as: "... evidence of which the accused was unaware at the time of his trial and ... evidence which he could not have discovered with reasonable diligence." "New" evidence, on the other hand, is evidence that does not qualify as "fresh", either because it was available, but not used, at first instance, or because, in the exercise of reasonable diligence it could have been obtained. The distinction is important in the present case. 108 If evidence qualifies as fresh evidence, its admission may depend upon a further criterion - the evaluation of its capacity to have affected the outcome of the proceedings at first instance. If it is not judged to have that capacity, its admission is pointless, and, while it has to be considered in order for that evaluation to be made, the evidence may not, in the result, be acted upon: see, for example, Fordham . 109 It may be thought that, on the definition as stated by Mason J, evidence of facts, circumstances and events that have arisen subsequently to the first instance decision would qualify as fresh evidence because it meets both criteria. However, with respect to applications for leave to appeal against sentence, there is an additional, sometimes intractable, barrier to admissibility. Jurisdiction of this Court in sentencing matters derives from s 5(1)(c) of the Criminal Appeal Act 1912. The powers of the Court are spelled out in s 6(3) which is in the following terms: "6(3) ... the court, if it is of the opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 110 A fundamental pre-condition to the exercise of the power of the Court to quash a sentence and pass another sentence is the formation of the opinion that some other sentence is warranted in law and should have been passed. In other words, this Court, as a matter of law, cannot interfere with a sentence passed at first instance unless it has identified some error, either in the sentencing process or in the outcome of the sentencing process. That has this additional implication: axiomatically, evidence of events or circumstances or facts that have arisen entirely since sentencing cannot be taken into account, no matter how compelling they may be. If the facts did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence is a matter for the executive government: R v Munday [1981] 2 NSWLR 177." 13It was submitted for the applicant that the additional evidence on which he wished to rely was relevant on sentencing, but no attempt was made to establish that it was admissible under these principles. Clearly it was not. 14In so far as this evidence concerned events, circumstances or facts that have arisen entirely since the applicant was sentenced, such as the applicant's evidence as to insights he has since gained, it could not be taken into account on sentence. The evidence which the applicant himself sought to give and to call from his partner, her parents and his parents as to his subjective circumstances and the reasons for his offending dealt with matters about which he had already led evidence on sentencing and which the sentencing judge took into account. The applicant had also already relied on a psychologist's report on sentencing. That was also taken into account. It was thus apparent that this further evidence was neither fresh nor new and could not be admitted on appeal. 15The complaint raised by the first ground of appeal, that there was an absence of sufficient information before the judge with respect to the necessary considerations of issues such as mental health, the finding of special circumstances, family support and remorse, could thus not be sustained. A simple reading of his Honour's judgment revealed that the applicant has already received the benefit of a favourable finding as to special circumstances, reflective of the evidence which he led as to these matters. 16His Honour referred to the applicant's family background, and the circumstances of the failure of his floor sanding business and a restaurant, despite his family's considerable support. He also referred to the evidence of the further strong support the applicant would receive from his family on release. His Honour also referred to Ms de Salvo's evidence as to the applicant's remorse and shame for his offending and the hurt he had caused her and his family and that she would stick by him. He also referred to the remorse he had explained to Dr Colquhoun; his limited criminal record; his good character, which was relevant to an assessment of his prospects of rehabilitation, which were accepted to be positive. This enabled the exercise of a discretion in the applicant's favour, in relation to the statutory non-parole ratio. His Honour also noted that the offender had no issues with drugs or alcohol, but that his offence was motivated by greed. 17The sentencing judge's remarks showed that his Honour took favourable account of this evidence, both in the total sentence imposed and the special circumstances found. The result was that for his mid-range offence, the applicant received a non-parole period of 6 years, when the standard non-parole period for such an offence was 15 years, and a total term of 10 years, after a 15% discount for his plea. 18The second ground relied on was that the applicant's circumstances were not on par with that of his co-offender Mr Pham and that the "sentencing should not have indicated 'equal criminality'." 19His Honour also expressly considered parity, concluding that the applicant had acted as an intermediary between Mr Pham and another member of the organisation described as his "Chinese friend". After describing the particular roles which they each played in the supply of the drugs the subject of this charge, he concluded that this offence fell within the mid-range; that it was objectively serious; that general deterrence was of particular importance; that the applicant's role was as one of the negotiators, organisers and co-coordinators in the activities involved in the supply of the drug; that his role was of significance, although not as great at the organisational level as that of Mr Pham, but still his role was pivotal in that he allowed others to get their hands on the drug; and that without his contact with his Chinese friend, the whole scheme would not have taken place. In the result, the applicant's criminality was found to be on par with that of Mr Pham. His Honour also considered that the applicant was 18 months younger than Mr Pham and had strong subjective factors in his favour, with the result that his Honour concluded that despite the differences in the discounts which they received, the offender should receive the same sentence as Mr Pham. 20These conclusions were reflected in the sentence imposed on the applicant whose sentence before discount commenced at 11 years, 9 months, while that imposed on Mr Pham started at 13 years, 4 months. That reflected the conclusions reached as to the respective objective seriousness of the two offences and the differing subjective circumstance of the offenders. The sentence imposed on Mr Pham was already a lenient one. The sentence imposed on the applicant was also lenient in his circumstances, reflective of the conclusions which his Honour reached as to the seriousness of his offence, parity considerations, the need for deterrence and the consequences which should flow from the favourable view which he took of the evidence of the applicant's subjective circumstances. 21It was apparent, in those circumstances, that neither ground of appeal had any merit and that leave to appeal had to be refused.