Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Huynh v R [2014] NSWCCA 147 Decision date: 08 August 2014 Before: Hoeben CJ at CL at [1]; Beech-Jones J at [2]; Hamill J at [3]. Decision: (1) Appeal allowed. (2) Quash the sentence imposed in the District Court. (3) In lieu thereof the appellant is sentenced to a non-parole period of 8 years commencing on 27 November 2007 and expiring of 26 November 2015. There will be a balance of terms of four years commencing 27 November 2015 and expiring on 26 November 2019. (4) The appellant will become eligible for release on parole at the expiration of the non-parole period. Catchwords: CRIMINAL LAW - appeal - appeal against sentence - Muldrock error - standard non-parole period - supply commercial quantity of heroin - parity - co-offenders charged with different offences - rehabilitation - steps taken since original sentence imposed - special circumstances - appeal allowed - re-sentencing - less severe sentence warranted Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Application by Huynh under s 78 Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW) Latham J, 19 December 2013, unrep) Carlton v R [2014] NSWCCA 14 Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462 Huynh v R [2009] NSWCCA 65 Lowe v The Queen [1984] HCA 46; 154 CLR 606 Muldrock v The Queen [2011] HCA 39 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Munda v Western Australia [2013] HCA 38; 249 CLR 600 Pham and Tran v The Queen [2008] NSWCCA 194 Postiglione v R [1997] HCA 26; 189 CLR 295 Rajendran v R [2014] NSWCCA 113 R v Day (1998) 100 A Crim R 275 R v Douar [2005] NSWCCA 455, 159 A Crim R 154 R v Edwards (1996) 90 A Crim R 510 R v Toomalati [2000] NSWCCA 105 R v Way [2004] NSWCCA 131, 60 NSWLR 168 Category: Principal judgment Parties: The Thu Huynh (Appellant) Crown (Respondent) Representation: Counsel: R Van De Wiel QC (Appellant) L Babb SC (Crown) Solicitors: Defteros Lawyers (Appellant) Solicitor for Public Prosecutions (Respondent) File Number(s): 20017/14805 Publication restriction: Nil Decision under appeal Date of Decision: 2008-03-27 00:00:00 Before: Judge Ainslie-Wallace File Number(s): 07/11/0384 Judgment 1HOEBEN CJ AT CL: I agree with Hamill J. 2BEECH-JONES J: I agree with Hamill J. 3HAMILL J: The appellant appeals against a sentence imposed by Judge Ainslie-Wallace (as her Honour then was) in the District Court on 27 March 2008. Following a trial by judge alone, the appellant was found guilty of one count of supplying a commercial quantity of heroin (about 700 grams). The offence carries a maximum penalty of 20 years and a standard non-parole period of 10 years. A commercial quantity of heroin is defined in Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW) as a quantity between 250 grams and 1 kilogram. 4The sentencing judge imposed a sentence of 13 years with a non-parole period of 10 years commencing 27 November 2007. The non-parole period is to expire on 26 November 2017. 5An appeal against the conviction and sentence was dismissed by this Court, differently constituted (Grove, Blanch and Kirby JJ), in 2009: Huynh v R [2009] NSWCCA 65 ("the 2009 appeal"). Since the decision dismissing her application for leave to appeal against sentence, the High Court decided the case of Muldrock v The Queen [2011] HCA 39. The appellant contends and the respondent concedes that Muldrock establishes that the sentence and the 2009 appeal are infected with legal error. 6Pursuant to the provisions in s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), the appellant sought an inquiry into the sentence. Her application was successful and pursuant to s 79(1)(b) the matter was referred to this Court to be dealt with as an appeal: Application by Huynh under s 78 Crimes (Appeal and Review) Act 2001 (Supreme Court (NSW) Latham J, 19 December 2013, unrep). 7In her notice of appeal the appellant raised one ground of appeal namely, "the learned sentencing judge erred in giving the standard non-parole period determinative significance". That is a ground of appeal clearly based around the decision in Muldrock v The Queen and was the basis upon which the Latham J referred the case to this Court to be dealt with as an appeal. 8Because the matter was subject of a referral under s 78, the appellant does not require leave: cf Carlton v R [2014] NSWCCA 14 per RA Hulme J at [22]. 9In additional written submissions filed on 25 July 2014 and in oral argument, counsel for the appellant sought to agitate an additional ground of appeal. That ground is based on principles of parity: cf Lowe v The Queen [1984] HCA 46; 154 CLR 606 at 610; Postiglione v R [1997] HCA 26; 189 CLR 295 at 302 10The 2009 appeal included a ground based on parity. That ground was rejected. However, senior counsel for the appellant contends that the consideration of parity in the 2009 appeal was tainted by the prevailing approach to sentencing in cases where there was a standard non-parole period. That approach was overruled by the decision in Muldrock v The Queen. Accordingly, the appellant seeks to re-agitate the parity issue and during the course of the hearing sought to amend her grounds of appeal to include the following additional ground: "The principle of parity was inhibited by sentencing practice which then applied resulting in an inappropriate sentence." 11A preliminary issue concerns the question of whether the Court can (or should) entertain grounds of appeal which were not subject to the referral under s 79. That question is brought into particularly sharp focus in a case such as this one where the particular ground of appeal, albeit differently formulated, was considered in the 2009 appeal. 12As to whether a referral under s 79 is limited to the ground (or grounds) upon which the referral is based, there are, as I perceive it, compelling arguments going both ways. On the one hand the case has previously been subject to an appeal and principles of finality would militate against allowing similar grounds again to be agitated in circumstances where the referral under s 78 was on a specific ground contending what might loosely be described as "Muldrock error". On the other hand the terms of s 79(1)(b) require or allow the Court to refer "the whole case" to the Court of Criminal Appeal. That language would suggest that it would be open to an appellant to raise additional grounds. 13It is unnecessary to resolve this issue in determining the present appeal. Further it would be inappropriate to do so. 14The reason that it is not necessary to resolve the question is because if it is accepted that Muldrock error exists, the Court will be called upon to re-sentence and to consider whether s 6 (3) of the Criminal Appeal Act 1912 (NSW) is engaged in that a different, less severe, sentence is warranted and ought to have been imposed. In order to determine that question it will be necessary to consider and apply principles of parity and to consider in a principled way the sentences imposed on co-offenders. The question of disparity as a distinct ground of appeal would not arise. 15There are two reasons that it is inappropriate for the Court as presently constituted to come to any conclusion as to the question raised on a referral under s 79 is twofold. First no arguments on the subject have been addressed to the Court by senior counsel for the appellant. 16Second, and more importantly, the Court (differently constituted) is reserved in a case where full and extensive arguments have been made by the parties. That case is R v Luizos which was heard on 9 May 2014 and in which the judgment of the Court is reserved. Both Bellew J (with whom Gleeson JA agreed) and I, while coming to different views as to the disposition of the appeal, took a similar approach in Rajendran v R [2014] NSWCCA 113 at [22] and [103]-[104]. 17Accordingly I propose to consider the case on the basis of the ground which was raised in the notice of appeal and assuming that ground is established (which in my opinion it is) to consider principles of parity in determining the appropriate sentence and the ultimate disposition of this appeal. 18I turn to consider the facts of the case and the matters personal to the appellant raised in the sentencing proceedings before Judge Ainslie-Wallace. 19As I have said the appellant was convicted after a judge alone trial. Judge Ainslie Wallace set out the facts that she found had been established in her remarks on sentence. 20Her Honour made findings as to the objective facts and those findings have not been challenged in this Court either in the 2009 appeal or in the appeal currently before the Court. Her Honour found as follows: "On 16 May 2005 a co-offender Van Diep Pham (referred to as Sang in the intercepted telephone calls) was arrested in Sydney when he got off a bus which had arrived from Melbourne. He was searched and found to be in possession of two blocks of heroin, each weighing about three hundred and fifty grams and about $17,000 in cash. The heroin weighed almost seven hundred grams and when analysed was found to be about seventy-five percent pure, in total, about five hundred grams of pure heroin. To put the amount in context, the amount of heroin which qualifies for a commercial quantity is two hundred and fifty grams and that for a large commercial quantity one kilogram. The offender sourced, paid for and provided the heroin to Sang to bring back to Sydney to his superior for supply there. The evidence against the offender was principally found within intercepted telephone calls between the offender and Sang. Between 12 May and 16 May when Sang arrived in Sydney, the offender had been in telephone contact with him arranging to source and supply two blocks of heroin referred to as 'old men' and in the case of the offender 'grandpa'. She was able to obtain one block by about 12 May for which she paid. After that there seems to have been difficulties in obtaining the second block and, while Sang was anxious to get back to Sydney with the heroin, the offender told him that she could take care of it, eventually giving him the second block before he returned to Sydney by bus. Based on the telephone calls I am satisfied that the offender had the ability to provide heroin from a number of sources and the capacity to pay for it. It is also clear from the conversations, although in code, that the offender had arranged to supply Sang with two blocks of heroin and each block would weigh about three hundred and fifty grams. The weight and her knowledge of it derives from her use of the word 'grandpa' and my acceptance of the evidence that a common term for such a three hundred and fifty gram block of heroin was 'old man' and that this, when considered in context, was a variation on that code. It is clear from the telephone calls that Sang was operating as the agent for another man, referred to in the calls as Ahn Bah (whose actual name is John Tran). Sang's role was to get the heroin and take it back to Sydney where it would be cut with other material into greater amounts and then distributed. Throughout the period of the intercepted calls Ahn Bah became increasing frustrated at the delay in getting the two blocks of heroin and Sang urged him to wait to get the entire amount rather than settling for less It is from the context of the telephone calls that one comes to assess the role of the offender. I am satisfied beyond reasonable doubt that she was able to source and pay for considerable quantities of heroin. Examination of the calls shows that she very quickly arranged the first block of heroin but there was a delay while she made arrangements for a second. Apparently when the offender went to collect one block she found that she had to pay more than she had originally thought and $20,000 more had to be paid before she could get the heroin. The offender had the capacity to pay for the heroin and to arrange for the funds. She was confident that she could supply the heroin to Sang because when he was concerned about the delay she assured him that she would be able to provide it. I am satisfied beyond reasonable doubt that this offence was not isolated. It is clear from the conversations that were recorded between her and Sang that she knew what to do to source the heroin. In making that finding I do not intend to punish the offender for crimes committed perhaps and not charged, that finding aids a determination of objective seriousness and is also relevant to a determination of whether the offence was committed as an isolated lapse of judgment. I am satisfied beyond reasonable doubt that it was not." 21Her Honour went on to find that the appellant was acting at "the middle level of a drug distribution hierarchy" and that she was able to "obtain large amounts of heroin at high purity to supply for transport and eventual use in Sydney". 22The sentencing judge was of the opinion that the offence fell within the mid range of objective seriousness for offences of this kind. 23As I have said, there is no challenge to these findings or to her Honour's categorization of the matter as falling within the mid range of objective seriousness. 24Her Honour also set out the appellant's personal circumstances, including her age, family situation and previous criminal convictions. I will return to consider the appellant's personal circumstances later in this judgment. 25Before doing so I will deal with the sole ground of appeal advanced at the hearing of appeal namely that her Honour fell into error in giving the standard non-parole period determinative significance. As I have said, I am of the opinion that error is established. 26As noted, the sentencing Judge held that the offence fell within the mid-range of objective seriousness. It is implicit in the structure and substance of the remarks on sentence that the purpose of making this finding was to consider the application of the standard non-parole period. The finding followed upon her Honour setting out the provisions of s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, having made that finding, her Honour set out some of the personal circumstances of the appellant as well as noting the sentences imposed on two co-offenders. Her Honour referred to the submission that the appellant should receive a lesser sentence than the co-offenders and rejected that submission coming to the view that her criminality was at least as high as one of them. 27Having gone through that process her Honour said: "I can find no reason to depart from the stated [standard] non-parole period. In this case and I propose to sentence the offender to a non-parole period of 10 years." 28The sentencing Judge and this Court applied the law relating to the standard non-parole period in s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) as it had been expressed and explained in the decision of this Court in R v Way [2004] NSWCCA 131, 60 NSWLR 168. 29In Muldrock v The Queen [2011] HCA 391, 244 CLR 120, the High Court held (at [25]) that R v Way was wrongly decided and that "it was an error to characterize s 54B(2) as framed in mandatory terms". A sentencing judge is not required to commence by asking "whether there are reasons for not imposing the standard non parole period". The High Court held (at [26]) that the introduction of the standard non-parole period did not involve a departure from accepted sentencing principles whereby: "[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case." See, for example, Markarian v The Queen [2005] HCA 25, 228 CLR 357 at 378. 30Further, the High Court rejected (at [28]): "[A] two-stage approach to the sentencing of offenders for Div 1A offences, commencing with an assessment of whether the offence falls within the middle range of objective seriousness by comparison with an hypothesised offence answering that description and, in the event that it does, by inquiring if there are matters justifying a longer or shorter period." 31It is clear that the sentencing Judge proceeded on the basis that her task was to start by considering the standard non-parole period, by reference to the law as it had been declared by this court in R v Way (2004) 60 NSWLR 168, and by reference to her assessment of whether the case fell within the mid range of objective seriousness. Having concluded that the case did fall within the mid range, her Honour looked for and failed to find reasons to depart from the standard non-parole period. As a result she imposed the standard non-parole period of 10 years. There is no doubt that this approach was erroneous in the light of the subsequent decision by the High Court in Muldrock v The Queen. 32In the 2009 appeal this Court reproduced the error of the sentencing judge. Of course it was applying what was then considered to be an orthodox approach to s 54A. The approach of the Court was even more starkly demonstrative of error: "41. ... The first ground contended that the sentence was manifestly excessive. It was submitted 'that her Honour allowed herself to have too much regard to the standard non-parole period when assessing the appropriate term for imprisonment. It is submitted that her Honour considered it more a starting point than merely a reference or guide.' The submission misapprehended the statutory obligation which, in the case of an offence in the mid range of objective seriousness requires the imposition of a standard non-parole period unless the Court determines that there are reasons not to: s 54B (2) Crimes (Sentencing Procedure) Act 1999. The submission appears to confuse what was said by the Court in R v Way (2004) 60 NSWLR 168 when observing that although the standard non-parole period may be directly applicable after conviction following trial, it remains a guidepost even if by reason of a plea of guilty or otherwise there is reason to depart from the standard non-parole period. 42 For reasons which she gave, her Honour determined that this offence fell within the mid range of seriousness for offences of this type. That finding has not been challenged. Within the tenor of the terms of the provision it was clearly the intention of Parliament to limit the discretions of sentencing judges and reference, as was made, to patterns of sentence developed in the absence of standard non-parole period prescriptions have to be gauged in that light." 33The respondent concedes that error has been demonstrated in the sentencing process. That concession is properly and correctly made. 34Error having been demonstrated, it is necessary for this Court to consider afresh the proper exercise of the sentencing discretion. In doing so it may take into account matters that were proved before the sentencing judge, findings made by the sentencing judge and, importantly in this case, any additional evidence adduced on the hearing of the appeal. It is open to the Court to take into account the post-sentence conduct of the appellant in making findings as to her prospects of rehabilitation: see, for example, R v Douar [2005] NSWCCA 455, 159 A Crim R 154 at [122]-[124]. 35I do not need to recount in detail the personal circumstances proved before the sentencing judge. Her Honour noted the family circumstances of the appellant who was at the time of sentence 43 years of age and married with two adult children. She had escaped from Vietnam in 1981 and spent time in refugee camps before arriving in Australia in 1984. She lived in Melbourne as did her family. Her incarceration in New South Wales up to the time of her conviction resulted in both her and her children suffering from depression as a result of the distance, both geographic and psychological, caused by her incarceration. Testimonials satisfied the sentencing Judge that the appellant was a diligent and devoted mother. However, her Honour was not satisfied that the circumstances gave rise to additional hardship beyond that which is the inevitable result of incarceration. Her Honour was not satisfied that there had been any demonstrated remorse and held that she was unable to make any finding about the appellant's prospects of rehabilitation. 36The appellant has placed additional material before the court on the basis that it would only become admissible if error was established. That material came in the form of affidavits from the appellant herself and three of her friends as well as an Assistant Commissioner of Corrections Victoria (where the appellant is now serving her sentence). 37The additional material does not establish remorse as that concept is defined in s 21A (3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW). As far as I can tell the appellant has not acknowledged her guilt in relation to the offending let alone accepted responsibility for it. 38Nor does the evidence provided by the appellant satisfy me that the finding of Judge Ainslie-Wallace in relation to the hardship arising from the appellant's family circumstances should be revisited. Considering that question afresh, I am not satisfied that there is exceptional hardship to family members of the kind that would result in a significant reduction in, or non-imposition of, a custodial sentence: see, for example, R v Edwards (1996) 90 A Crim R 510, R v Day (1998) 100 A Crim R 275, R v Toomalati [2000] NSWCCA 105. 39However, I have come to different conclusions to the sentencing Judge in relation to other mitigating circumstances. This is the result of the additional material concerning the appellant's progress in custody. Of most significance is the material now available that establishes the steps that the appellant has taken since 2009 to rehabilitate herself. Whereas the learned sentencing Judge in the immediate aftermath of the trial and with little evidence other than the appellant's personal history to guide her was unable to make a finding as to rehabilitation, I am satisfied that the appellant is unlikely to offend again and that she has good prospects of rehabilitation: s 21A(3)(g)-(h) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 40I am also satisfied that the appellant does not have a significant record of previous criminal convictions: s 21A(3)(e). She has a total of three appearances in Victoria. These relate to 6 offences although some of these appear to be part of the same incident and two were breaches of bail. None of the offences on her record are drug offences. Her last offence was in 1999. In 1995, she was sentenced for relatively serious offences (recklessly cause serious injury and aggravated burglary) but sentence was suspended. The other entries on her record resulted in fines and a community based order. She has not previously been sentenced to a term of imprisonment. 41These matters are important to a determination of the appropriate sentencing outcome, although they can never be given such weight as to result in a sentence that is disproportionate to the gravity of the criminality: Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [53]. In this case, the criminality was of a high order, the appellant being a significant part of the distribution of a commercial quantity of heroin. While there was no evidence of what the appellant hoped to gain from her involvement in the matter, there seems little doubt that a financial motive was the most likely one. 42In determining the appropriate sentence to impose upon the appellant, it is also necessary to consider the sentences imposed on her co-offenders. Those co-offenders were dealt with by Judge Sweeney in the District Court and ultimately on appeal by this Court in Pham and Tran v The Queen [2008] NSWCCA 194. It is difficult to make a strict comparison between the sentences imposed on the co-offenders with that imposed on the appellant because the co-offenders faced sentence in respect of a number of other charges, many of which were of similar seriousness to the present charge and one of which (a charge of supplying a large commercial quantity of MDMA) was significantly more serious. 43Tran received a sentence of 12 years with a non-parole period of nine years for the offence with which the appellant was sentenced. The total sentence was one of 16 years with a non-parole period of 12 years. 44Pham received a sentence of 12 years with a non-parole period of 9 years in relation to the commercial supply of heroin and a total sentence of 14 years with a non-parole period of 10.5 years was imposed. 45The difficulty in comparing these sentences arises because Judge Sweeney was constrained by principles of totality and made adjustments to the various individual sentences imposed. However, In Postiglione v The Queen (supra) Dawson and Gaudron JJ said (at 301-302): "Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality." 46In Green and Quinn v The Queen [2011] HCA 49; 244 CLR 462 French CJ, Crennan and Kieffel JJ said at [30]: "The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application." 47Thus it is necessary to consider the sentences imposed on Pham and Lam taking into account the different circumstances objectively and subjectively and remaining alive to the operation of the totality principle on the individual sentences imposed. In so far as comparison is capable of being made, I take into account the sentences imposed on the co-offenders in coming to a conclusion as to the appropriate sentence to be imposed upon the appellant. In my view the appellant should receive a sentence significantly less severe than the total sentences imposed on each of the co-offenders and an individual sentence which is about the same as the sentence imposed on the co-offenders for the common count. In making the comparison, account has to be taken of the fact that the co-offenders' sentences were structured to take into account the partial cumulation of the several individual sentences imposed at the same time. 48Taking into account all of the above matters, the principles and purposes of sentencing at common law and under s 3A Crimes (Sentencing Procedure) Act 1999 (NSW) and noting the fundamental nature of the error involved in the approach taken by the sentencing Judge, I am satisfied that a different, less severe sentence is warranted: s 6(3) Criminal Appeal Act 1912 (NSW). 49I am also satisfied that there should be a slight adjustment between the proportion of the non-parole period to the total sentence: see s 44(1) Crimes (Sentencing Procedure) Act 1999 (NSW). There are special circumstances in the appellant's case including the fact that this is the first time that she has been sentenced to imprisonment, the early period of separation from her family and the evidence of the steps that she has taken in terms of rehabilitation since she was incarcerated. There is a strong community interest in the appellant receiving a longer than usual period of parole in order to continue the rehabilitation steps that she has taken. I have come to a different conclusion to the sentencing Judge in relation to this issue but this is explicable on the basis of the evidence that is available to me which was not available to Judge Ainslie-Wallace. 50The sentence that I propose is one of 12 years with a non-parole period of 8 years. The sentence will commence on 27 November 2007. 51I propose the following orders: (1)Appeal allowed. (2)Quash the sentence imposed in the District Court. (3)In lieu thereof the appellant is sentenced to a non-parole period of 8 years commencing on 27 November 2007 and expiring of 26 November 2015. There will be a balance of terms of four years commencing 27 November 2015 and expiring on 26 November 2019. (4)The appellant will become eligible for release on parole at the expiration of the non-parole period. ********** Amendments 11 August 2014 - error Amended paragraphs: Paragraph 47 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: 21 August 2014