Dong v Director of Public Prosecutions (Cth)

[2016] VSCA 51

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0196

BING YAO DONG

v

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

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JUDGES:	WHELAN and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2016
DATE OF JUDGMENT:	23 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 51
JUDGMENT APPEALED FROM:	DPP v Dong [2014] VCC 1386 (Judge Dean)

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CRIMINAL LAW – Application to admit new evidence on sentence appeal – Pregnancy and birth of child in custody – Fact of applicant’s pregnancy not known to sentencing judge at time of sentence – Applicant convicted of drug-related offences – Applicant likely to be deported to China on release from prison – Applicant anxiety in relation to deportation and consequences of returning to China – Applicant isolated from family – R v Nguyen [2006] VSCA 184 applied – New evidence revealed true significance of burden of applicant’s imprisonment at time of sentence – Application granted – Applicant re-sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC with Mr M D Stanton	Lewenberg & Lewenberg
For the Respondent	Mr P J Doyle	Mr M Pedley, Commonwealth Solicitor for Public Prosecutions

WHELAN JA
COGHLAN JA:

1. Following a 15 day trial in the County Court, on 11 August 2015 the applicant was found guilty by a jury on one charge of importing a marketable quantity of a controlled drug, one charge of dealing in property reasonably suspected of being the proceeds of crime, and one charge of trafficking a controlled drug.  After a plea hearing on 12 and 14 August 2014, the applicant was sentenced on 22 August 2014 as follows:

Charge	Offence	Maximum	Sentence	Commencement
1.	Importing a marketable quantity of a controlled drug [Criminal Code s 307.2]	25 years’ imprisonment	5 years’ imprisonment	22 May 2015 (after 9 months)
2.	Dealing with property reasonably suspected of being proceeds of crime [Criminal Code s 400.9(1A)]	2 years’ imprisonment	9 months’ imprisonment	22 February 2015 (after 6 months)
3.	Trafficking in a controlled drug [Criminal Code s 302.4]	10 years’ imprisonment	2 years’ imprisonment	22 August 2014
Total Effective Sentence:		5 years and 9 months’ imprisonment
Non-parole period:		3 years and 6 months’ imprisonment
Pre-sentence detention declared:		12 days

1. Unbeknownst to any of those involved in the trial and the plea, other than the applicant herself, on the day prior to sentence the applicant had discovered that she was pregnant.  She has since carried the baby, given birth, and cared for the child in custody. 

1. The applicant now seeks leave to appeal her sentence on two grounds.  The first ground is as follows:

In order to avoid a miscarriage of justice, the sentencing discretion should be re-exercised in light of new evidence that demonstrates the true significance of facts in existence at the time of sentence, including the applicant’s:

(a)       pregnancy;

(b)       isolation from her family and subjective burden of imprisonment;  and

(c)       anxiety at being deported to China.

1. There is a second ground of appeal focusing on what is said to be a manifestly excessive sentence on charge 3.  As we have concluded that the sentencing discretion must be re-opened in this case in the light of new evidence before this Court, for the reasons which we will set out below, it is unnecessary to address the second ground of appeal.

Reasons of the sentencing judge

1. The sentencing judge’s reasons are admirably concise and comprehensive.  It is useful to set his reasons out in full.  They were:[1]

   [1]DPP v Dong [2014] VCC 1386 [4]–[16].

You have no prior convictions, subsequent convictions, or outstanding charges.

The circumstances of your offending may be summarised as follows–

On 6 December 2010, a package containing 360.8 grams of methamphetamine arrived in Melbourne by post from China.  The total net weight of pure methamphetamine was 263.5 grams.  The package was addressed to premises occupied by you and your boyfriend, Yan Lin. 

Following an examination of the package, police executed a search warrant at your premises on 21 December 2010.  During the search, 6.1 grams of methamphetamine, 3.8 grams of which was pure methamphetamine, was located in the kitchen.  Investigating police also located items for use in drug trafficking, including scales, small clip-seal bags, and spoons containing traces of methamphetamine.  Police also located $25,000 cash in your handbag. 

You were arrested, and during the course of a record of interview, you denied knowledge of the importation or any drug trafficking that had taken place from your premises.  You stated that the $25,000 in your handbag was your boyfriend’s and was to be invested, by him, in a night club.

Further investigations by police disclosed that you had transferred $54,000 to China and, at the time the methamphetamine was posted, recorded details of the package and, in all probability, tracked its passage from China.  A body of financial evidence was also led in your trial that disclosed that you had access to a total of $161,000 in unexplained income at the relevant time.  I am satisfied that you and your boyfriend conducted a business of drug trafficking from your premises and the methamphetamine imported from China was to be supplies for that business.  It is not possible to identify, with precision, the role you played in that business, other than to say you must have played an important role that included financial management. 

Your offending was motivated by profit, and there is no evidence that you used drugs of dependence and trafficked for that reason.  Yan Lin has not been apprehended and, in all probability, has returned to China.  I accept that he was influential in your life at this time, and that this influence contributed to your offending.

Importing and trafficking border controlled drugs for profit is offending of the utmost seriousness.  The sentence I impose must be calculated to deter you and others from offending in this way.  You must also be punished for what you have done.

I now turn to your personal circumstances.  You were born on 5 November 1988 in Yinchuan in Northern China.  You were 22 at the time of your offending and are now aged 25.  You are, therefore, a youthful first offender and I accept that the sentence I impose must provide for your future rehabilitation.

You are a highly intelligent young woman, and are the only child of a wealthy and high-achieving family.  Your parents, who reside in China, attended your trial and conducted themselves with dignity throughout the proceedings.

Upon your release from prison you will, no doubt, be deported, and whilst your future will be in China, I accept that your prospects for rehabilitation are very good. Your offending occurred while you were a student at Monash University, and you had intended to seek permanent residence in Australia. I accept that your conviction and deportation has also brought your plans to an end, and you are also concerned about how your life in China will be affected by your conviction in Australia for drug offences. Nevertheless, despite this, you will have the support of your family on your return.

Your offending occurred almost four years’ ago, and you have abided by strict bail conditions during that time. You have not re-offended, and you have worked and continued to educate yourself. I also accept that your imprisonment will involve considerable hardship for you by reason of your isolation from your family.

Your case is a difficult sentencing exercise, and I have anxiously considered the application of the various factors I must have regard to by operation of s 16A of the Crimes Act 1914.

1. In the context of this appeal, the significant conclusions are the following:

1.The applicant committed the offences in the course of conducting a business of drug trafficking with her boyfriend.

2.The applicant’s motivation was profit.

3.The applicant is a youthful first offender.

4.The applicant was certain to be deported and was concerned about how her life in China would be affected by the convictions.

5.Imprisonment would involve considerable hardship for the applicant by reason of her isolation from her family.

1. The sentencing judge referred to financial investigations which had been undertaken and to $161,000 in unexplained income which those investigations had revealed.  On the hearing of this application we were informed that that $161,000 was inclusive of both the $54,000 which had been identified as having been transferred by the applicant to China and the $25,000 in cash which the applicant had in her handbag.

The new evidence

1. The applicant sought the admission of three items of new evidence, which were marked for identification in the course of the hearing.  They were:

1.        An affidavit affirmed by the applicant on 9 October 2015 (‘the first affidavit’).

2.        A further affidavit of the applicant affirmed on 14 March 2016 (‘the further affidavit’).

3.        A psychological report by Mr Jeffrey Cummins dated 24 July 2015.

1. In the first affidavit the applicant deposes to the fact that she fell pregnant to a young man of Chinese descent who was temporarily visiting Australia.  He was not the boyfriend with whom she had conducted the drug trafficking business.  The applicant deposes that she became aware that she was pregnant through a blood test taken while she was on remand.  She discovered the result of the blood test the day before she was sentenced on 22 August 2014.  She deposes that she did not inform her legal advisors because she was embarrassed. 

1. The applicant deposes that initially she was advised by her parents to terminate the pregnancy but she decided not to do that.  She deposes that she was very anxious about having a child in prison without the support of family and friends.  She made application before the birth for the child to be permitted to remain with her in prison.  She deposes that she was very worried that her application would be refused and that the child would be placed in foster care.  She deposes to difficulties that she had with her pregnancy. 

1. The applicant deposes that in late March 2015 her application to keep her child was approved.  She gave birth on 18 April 2015.  Her mother was permitted to visit from China and was present at the birth.  The applicant deposes that the child’s father does not wish to have anything to do with her or with the child.

1. The applicant deposes that she is living in a mothers and babies’ unit in prison.  There has been conflict within the unit and authorities have suggested that this conflict could result in the children being removed.  This is a cause of worry to the applicant.  She deposes that prison is a very stressful environment in which to try to care for a child.  She deposes to particular worries which she has when the child falls ill.

1. The applicant deposes to the fact that as a result of her offending an application which she had made for permanent residency was refused and that she was then classified as a ‘unlawful non-citizen’.  This not only meant that she and her child would be deported when she was released, but it prevented her parents from obtaining a visa to visit her in Australia.  Her mother had visited her in October 2014, both her parents had visited her in February 2015, and her mother had visited again in April 2015 when the child was born.

1. The applicant deposes that the thought of returning to China makes her very nervous as she does not know what information has been provided to the Chinese authorities by the Australian Federal Police, especially in relation to her alleged co-offender and former partner.  She is especially worried about what might happen to her child. She is also very anxious about her status as a single mother in China, a condition which she says is culturally frowned upon.

1. In the further affidavit the applicant deposes to the fact that conflict within her unit has continued and that the environment is difficult for her.  She clarifies the situation in relation to visits from her parents in the following passage:

Since my last affidavit my parents have not been able to visit me.  In around December 2015 and January 2016 I was assisted by Ms Jayne Cole, the Mothers and Children worker at the Dame Phyllis Frost Centre, to obtain a ‘Bridging Visa E’ from the Department of Immigration and Border Protection for myself and [the child].  I understand that means we are now regarded as ‘lawful non-citizens’.  However there is a mistake on [the child’s] Visa with regard to his birth date — it has the wrong day and month.  In January 2016 and February 2016 I asked Ms Cole to have [the child’s] Visa corrected but I have not received a response from the Department.

I understand that my parents have to specify in any application for a Visa to visit Australia my birthday and [the child’s] birthday and our Visa status.  They are awaiting for [the child’s] Visa to be corrected before they apply so that their application is correct.  I do not know whether any application to visit Australia will be approved.

1. Mr Cummins’ report is a long one.  Substantially, it is a detailed recitation of things the applicant told him over a three hour meeting in prison.  Much of what is in the report confirms and amplifies what she has deposed to in her affidavits.

1. Mr Cummins reports that the applicant was shocked and overwhelmed when she discovered that she was pregnant and did not want to deal with it.  He confirms that her parents advised her to have a termination and he reports her as saying that her mother’s primary focus during her visit in October 2014 was persuading her to take that course.  He reports her as being upset at the lack of contact and emotional support from the father of her child.  She describes herself as a ‘very nervous first time mother’ and she gives a detailed recitation of difficulties she is experiencing in looking after her child in a custodial environment. 

1. Mr Cummins sets out the support which the applicant does have within the prison environment.  She has been permitted to nominate two ‘child carers’, young women of a similar background to herself.  One of these carers is resident in her unit.  She has also been ‘linked in’ with a mother and child programme through the Melton City Council and she receives a weekly visit from a case worker attached to this programme.  There is a mother and child worker based five days a week at the prison, although this worker is apparently very busy and is not available outside 9 to 5. 

1. Mr Cummins sets out the applicant’s personal history.  She grew up in an affluent family in China.  She is an only child.  She did well at school.  She came to Australia in 2008 as a student.  She has also done well as a student here.  She attributes her offending to naivety and the influence of her then boyfriend.  Mr Cummins reports that she does receive visits from two friends who are resident in Australia.

1. Mr Cummins conducted a psychometric test which placed her at ‘the lower end of the range of severe depression’.  Mr Cummins observed:

She spoke in a manner which indicated she was feeling obsessed about now having concluded she was deceived, misled and betrayed by Mr Yan Ling.  She also spoke in a manner indicating she felt abandoned and emotionally abused by the father of her son, who refuses to have anything to do with her or with his son.  She was also obviously obsessed with being a first time mother and particularly with being a first time mother in custody and under circumstances where this was her first time in custody.  She also reported being obsessed about missing her parents.

1. Mr Cummins reported the applicant as acknowledging that she was enjoying being a mother but as simultaneously feeling sad all the time and as experiencing less pleasure from being a first time mother than would be the situation for most mothers.

1. Mr Cummins formed the opinion that the applicant presented ‘as being at least moderately depressed and as being mildly/moderately anxious’.  He also expressed the opinion that she was suffering from an adjustment disorder at the time at which she discovered her pregnancy and that that would have contributed to her failure to alert her legal advisors.  He formed the opinion that the symptoms of this adjustment disorder ‘has then become more entrenched and more severe the longer time she has spent in custody and these symptoms were then again exacerbated with the birth of her son’.

1. Mr Cummins’ final conclusion was in these terms:

In my opinion serving a sentence and a sentence of significant duration, under circumstances where she is a mother and a first time mother and where she does not have the direct support of her parents and has been abandoned by the father of the child — is a particularly onerous situation for her and a situation which could be very different for someone who did not generally adopt such … a respectful and responsible attitude to her life and to the lives of others.  In my opinion she is genuinely feeling she is subjected to excessive hardship and psychological stress and distress given her current circumstances.  In my opinion her mental health problems are very likely to become more entrenched the longer the time she spends in custody.

Applicable principles

1. Counsel for both parties accepted that the applicable principles were set out by Redlich JA (with whom Maxwell P and Neave JA agreed) in R v Nguyen.[2]  Relevantly, Redlich JA said:[3]

   [2][2006] VSCA 184.

   [3]Ibid [36]–[38] (citations omitted).

It is common ground that this Court may, in limited circumstances —sometimes described as ‘rare and exceptional’ — permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence.  The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed; 

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence; 

(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive; 

(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive;  and 

(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.

The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts.  The Court must determine what is the appropriate sentence on the basis of all of the material then before it. 

Many of the cases which support these propositions concerned the admission of new evidence of subsequent events which made imprisonment an even greater burden for the offender and which resulted in the Court varying the sentence imposed. 

Submissions

1. On behalf of the applicant it was submitted that the prospect of deportation, concern as to how her life in China would be affected by the convictions, and her isolation in custody in Australia were all matters of importance in the sentencing reasons.  The burden of imprisonment suffered by the applicant as a result of these factors was said to be significantly increased as a consequence of her pregnancy in prison, the birth of her child, and caring for a child in custody.  Senior counsel for the applicant submitted that the sentencing judge had taken into account the burden of anxiety which she suffers as a result of the possible consequences of deportation and as a result of her isolation, and submitted that the pregnancy, birth, and care for her child in prison had added significantly to that burden.  The isolation had extra ‘sting’ because her child was also isolated.  The deportation became a greater worry because the child would be deported as well.  The myriad of difficulties which all prisoners confront were greater in her case because she was caring for a young child.

1. On behalf of the respondent it was submitted that many of the anxieties relied upon were not based upon proven facts.  It was submitted that there was no proven factual basis for a concern that the child would be affected by deportation or by consequences upon return to China.  It was submitted that the new material was not significant enough to warrant admission on appeal.  The sentencing judge had already taken into account the applicant’s anxiety in relation to her deportation and her isolation.  It was submitted that Mr Cummins’ report indicates that the applicant has more support and assistance than her affidavits would suggest. 

The new evidence — analysis

1. The evidence set out in the first affidavit, the further affidavit and Mr Cummins’ report demonstrates, in our view, the true significance of facts in existence at the time of sentence, notwithstanding that the applicant had not informed her legal advisors of that existing state of affairs.  She was pregnant at the date of sentence.  The sentencing judge did not know of that.  As her affidavits and Mr Cummins’ report demonstrate, the pregnancy and the need to care for her child in custody adds a significant new dimension to factors which the sentencing judge did take into account in assessing the burden of imprisonment in her case;  in particular, her anxiety in relation to deportation and the consequences of returning to China, and her isolation from her family. 

1. Our conclusion is that the new evidence should be admitted.  The evidence throws significant new light on the pre-existing facts.  It is then unnecessary to determine whether there was any error in the sentence, by way of manifest excess or otherwise.  Accordingly, it is unnecessary to consider ground 2.  The sentencing discretion is re-opened.  Leave to appeal should be granted on ground 1 and the appeal should be allowed.

Re-sentence

1. As indicated, the sentencing judge concisely and comprehensively set out the relevant matters as they stood at that time.  With respect, we adopt all that he said as to the position as it then appeared.

1. Some of the significant matters remain unchanged.  The fact that the applicant committed the offences in the course of conducting the business of drug trafficking with her boyfriend is unchanged.  The applicant’s profit motivation is unchanged.  The applicant’s position as a youthful first offender is unchanged.

1. What has changed is the burden of imprisonment.  The applicant’s anxiety about her deportation, and concern about how her life in China would be affected by the convictions, has been exacerbated by the fact that she now has a child who will also be deported.  More importantly, the hardship which the applicant would inevitably have suffered as a result of isolation from her family has been exacerbated by the birth of her child, both in relation to her personal difficulties in caring for the child in custody and in relation to the anxiety and distress created as a consequence of the child’s isolation from the family in China.

1. We would re-sentence the applicant as follows.

1. Charge 1 is a very serious offence. The applicant imported methylamphetamine in the course of conducting a drug trafficking business.  On that count we would sentence her to four years and six months’ imprisonment.  That should be the base sentence.

1. Charge 2 was also a serious offence.  It involved a very substantial amount of cash.  We would sentence her to six months’ imprisonment.  We would cumulate three months of that sentence.

1. Charge 3 is a serious offence, but it is a single instance offence (not trafficking over a period[4]) and the amount is small.  We would sentence the applicant to six months’ imprisonment.  We would cumulate three months of that sentence.

   [4]R v Giretti (1986) 24 A Crim R 112.

1. Thus, the total effective sentence we would impose is five years’ imprisonment.  We would fix a non-parole period of three years.

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