Duong v The Queen

Case [2021] NTCCA 3

CITATION:Duong v The Queen [2021] NTCCA 3

PARTIES:DUONG, Duc

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL from the SUPREME COURT exercising Territory jurisdiction

FILE NO:CA 24 of 2019 (21827909)

DELIVERED:  22 April 2021

HEARING DATE:  20 July 2020

JUDGMENT OF:  Southwood, Kelly JJ and Hiley AJ

CATCHWORDS:

CRIME – Appeal against sentence – error of law in making factual finding – no error found – Appeal dismissed

Appeal against sentence – manifest excess – commercial quantity of cannabis – level of involvement in drug enterprise – competing possibilities – significant role in supply – five years’ imprisonment – well within range – appeal dismissed

Appeal against sentence – nature of appellate intervention for mistake of fact – rehearing – appeal dismissed

Criminal Code 1983 (NT) s 410(c), s 411(4)
Misuse of Drugs Act 1990 (NT) s 5(1), s 9(1), s (2)(d)

AB v R (1999) 198 CLR 111; Bara v The Queen [2016] NTCCA 5; Bianamu v Rigby [2020] NTSC 43; Carroll v The Queen [2011] VSCA 150; Cheung v The Queen (2001) 2019 CLR 1 Clarke v The Queen [2015] NSWCCA 232; Cook v The Queen [2018] NTCCA 5; Emitja v The Queen [2016] NTCCA 4; Filippou v The Queen (2015) 255 CLR 471; Forrest v The Queen [2017] NTCCA 5; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Lam v The Queen NTCCA No 27 of 2019 (21935123); Leaney v Bell (1992) 108 FLR 360; Mason v Pryce (1988) 53 NTR 1; Morrow v The Queen [2013] NTCCA 7; R v Olbrich (1999) 199 CLR 270; R v Carrall [2018] QCA 335; R v O’Donoghue (1988) 34 A Crim R 397; R v Strbak [2019] QCA 42; Skinner v The King (1913) 16 CLR 336; Strbak v The Queen [2020] HCA 10; Szeto v Situ [2017] NSWCA 136; The Queen v Cumberland [2019] NTSC 14; The Queen v Day (2004) 14 NTLR 201; The Queen v Indrikson [2014] NTCCA 10; The Queen v Le Cert [1975] 13 SASR at 239; The Queen v Storey [1998] 1 VR 359; The Queen v Wilton Lam (SCC 21935123, 17 April 2020); Warren v Coombs (1979) 142 CLR 531; Weininger v R (2003) 212 CLR 629; Whitlock v The Queen [2018] NTCCA 7; Willis v The Queen (2016) 261 A Crim R 151; Winstead v The Queen [2009] NTCCA 12, referred to.

REPRESENTATION:

Counsel:

Appellant:L Nguyen

Respondent:  WJ Karczewski QC and T Grealy

Solicitors:

Appellant:Robert Welfare & Associates

Respondent:  Director of Public Prosecutions

Judgment category classification:    B

Number of pages:  55

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Duong v The Queen [2021] NTCCA 3

No. CA 24 of 2019 (21827909)

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AGLC
Duong v The Queen [2021] NTCCA 3
Case
[2021] NTCCA 3
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, Mr Duong, who pleaded guilty to supplying a commercial quantity of cannabis. The appeal was heard by Southwood, Kelly, and Hiley AJ in the Supreme Court of the Northern Territory. The central dispute revolved around whether the sentencing judge had made an error of law by making an incorrect factual finding, or whether the sentence was manifestly excessive.

The legal issues before the Court were whether the sentencing judge erred in their assessment of the appellant's role in the drug enterprise, and consequently, whether the imposed sentence of five years imprisonment, suspended after three years, was manifestly excessive. The appellant argued that the sentencing judge made an error of fact by finding he played a significant role, when competing possibilities existed regarding his level of involvement.

The Court considered the principles governing appellate intervention in sentencing, particularly in cases involving alleged mistakes of fact. While acknowledging that different burdens of proof apply to the Crown and the offender, the Court affirmed that the same principles regarding factual findings must apply to sentencing. The sentencing judge had noted significant "unknowns" regarding the appellant's precise role, including the identity of the supplier, the financing of the purchase, and the appellant's expected benefit. Despite these unknowns, the judge concluded that the appellant had played a "very significant role" in transporting a large quantity of cannabis to Darwin, and could not mitigate the sentence on the basis of him being a mere driver. The Court found that the sentencing judge's assessment was open to them on the admitted facts and the evidence presented, and that the sentence was well within the permissible range for such an offence.

The appeal was dismissed, with the Court concluding that the sentence imposed was not manifestly excessive and that no error of law had been made by the sentencing judge.

Orders

Orders of the court

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Background

Background to the litigation

While Warren v Coombs is a civil case, and different burdens of proof apply to facts sought to be established by the Crown and the offender, the same principles must apply to the determination of whether a sentencing judge has made a mistake of fact.The facts When the appellant committed the offence of supplying a commercial quantity of cannabis he was 27 years old, residing in New South Wales, and an unlawful non-citizen having had his student visa cancelled on 27 July 2015. Before 22 June 2018 William McDonald, Tuan Le and the appellant formed a plan to transport a commercial quantity of cannabis to Darwin for supply to the community. Mr McDonald was an Australian citizen residing in Woodroffe. He was a person of interest to detectives in the Drug and Organised Crime Division of the Northern Territory Police. On 22 June 2018 the appellant hired a car from Hertz rental cars in Bankstown on terms that he would return the car to Hertz at the Darwin Airport on 25 June 2018. Before leaving Sydney, the appellant took possession of 28,246.6 grams (or 62.4 pounds) of cannabis from an unknown person. He took possession of the cannabis for the purpose of transporting it to Darwin for supply. Some of the cannabis was divided into zip lock bags and some into cryovac bags. All of the bags of cannabis were placed in larger “Space bags”. The appellant put the cannabis into two suit cases. He packed 18,527.1 grams of cannabis in a black Audi soft shell suitcase, and 9,729.5 grams of cannabis in a brown KinyiBao soft shell suitcase. He then loaded the two suitcases into the hire car and drove from Bankstown to Queensland. In the vicinity of Roma, the appellant had a single motor vehicle accident. On 24 June 2018 he was given a replacement hire car which he collected from Hertz rental cars in Toowoomba. He put the two suitcases containing the cannabis in the replacement hire car and drove to Darwin. He arrived in Darwin on 25 June 2018. On 25 June 2018 Tuan Le travelled from Brisbane, where he was living, to Darwin on a Virgin flight. He arrived in Darwin at 3 pm and booked two nights’ accommodation at the Rydges Hotel in Palmerston. He was allocated room 606. At 7.36 pm the appellant booked one night’s accommodation at the same hotel. He was allocated room 103. Before 10.51 am on 26 June 2018, William McDonald contacted Tuan Le and arranged to meet him and the appellant in the undercover carpark of the hotel to facilitate the ongoing supply of the cannabis. At 10.51 am Mr McDonald arrived at the undercover carpark of the hotel in his Toyota Hilux utility which had a Queensland registration. He went into the hotel and gave $2,600 to Mr Le who gave the money to the appellant. Shortly before 11.20 am, the appellant checked out of the hotel, and he and Mr Le went to the undercover car park where they met Mr McDonald. Mr Le and the appellant walked to the appellant’s hire car and collected the suitcase containing 18,527.1 grams of cannabis. Mr McDonald remained at his vehicle and moved various items which were on the back seat into the rear cargo space to make room for the cannabis. Mr Le wheeled the suitcase containing the cannabis to Mr McDonald’s Hilux, and he and Mr McDonald placed the cannabis on the back seat.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The sentence imposed on the appellant was not manifestly excessive and this ground of appeal should also be dismissed.Conclusion I would dismiss the appeal against sentence. Kelly J The appellant pleaded guilty to supplying a commercial quantity of cannabis plant material and was sentenced to a term of imprisonment for five years (reduced from six years for his plea of guilty), suspended after three years. The amount of cannabis supplied was 28.3 kilograms (62.4 pounds) around 56 times the commercial threshold. The offence carries a maximum penalty of imprisonment of 14 years. The sentencing judge summarised the agreed facts as follows. (No point has been raised about the accuracy of that summary.)[A]t some time prior to 22 June 2018 you became involved with two other men: William McDonald and Tuan Le, in a plan to transport a commercial quantity of cannabis into Darwin for supply to the community.At the time, McDonald was a person of interest to the police in connection with the supply of commercial quantities of cannabis into Darwin.Your active involvement commenced in the afternoon of 22 June 2018, when you hired a rental car in Bankstown, a suburb of Sydney, and arranged to return that vehicle to the Darwin Airport on 25 June 2018.Before leaving Sydney, you obtained approximately 28.3 kilograms or 62.4 pounds of cannabis from an unknown person. Some of the cannabis was contained in Ziplock bags and some of the cannabis in Cryovac bags. All of the bags then placed into larger space bags.You packed the cannabis into two suitcases with approximately 18 and a half kilograms in one suitcase and more than 9 and a half kilograms of cannabis in a second suitcase. The total, as mentioned, was 28.3 kilograms.You then drove the cannabis from Sydney to Queensland. In the vicinity of Roma, your rental vehicle was involved in an accident but you were given a replacement vehicle in Toowoomba, into which you transferred the two suitcases before continuing driving to the Northern Territory. You arrived in Darwin on 25 June 2018.Meanwhile, on 25 June, Mr Le flew from Brisbane to Darwin. On arrival, he booked accommodation at the Ridges Hotel in Palmerston. You separately arranged accommodation at the same hotel.In the morning of 26 June, Mr McDonald contacted Mr Le and arranged to meet with Mr Le and yourself in the undercover car park at the Ridges Hotel. At the Ridges Hotel, Mr McDonald gave Mr Le $2600, which Mr Le then passed onto you. You put it in your backpack. The arranged meeting between the three of you took place at about 11:20 am in the Ridges undercover car park.There, you and they helped transfer the suitcase containing the 18.5 kilograms of cannabis from the rear of your hire car to the rear seat of Mr McDonald’s vehicle.All three of you then got into McDonald’s vehicle, with McDonald driving, Le in the front passenger seat and you in the rear driver’s seat. Police intercepted the vehicle before it left the car park and placed all three of you under arrest.Police found the suitcase with 18.5 kilograms of cannabis in the rear seat of McDonald’s vehicle. They found the other suitcase with the 9.7 kilograms of cannabis in the rear load space of your rental vehicle. They also found the $2600 in cash in your backpack in the rear seat of the vehicle.After you were arrested and cautioned, you participated in a formal interview with police, with the assistance of a Vietnamese interpreter. You denied knowledge of any of the cannabis and told the police that you had received two suitcases in Sydney, which you were told to transport to Darwin by road. You told the police that you thought they contained dog and cat food.If the cannabis had been sold in Darwin at the then-current rate of $5000 per pound, the cannabis you transported had the potential to realise $312,000. If the cannabis had been sold at the rate of $30 per gram, the cannabis had the potential to realise almost $850,000.

Ratio Decidendi

Legal Principle Established

After describing the appellant’s personal circumstances, to the limited extent they were revealed to the Court at first instance, and summarising the admitted facts, the sentencing Judge made the following remarks.I want to say something about the principles in relation to sentencing for offending of this kind. The seriousness of such offending depends on a range of factors, including the role and position of the offender in the particular operation, the sophistication of the enterprise, the extent of the commercial nature of the operation and the amount of drugs involved or intended to be involved.The weight of the amount of drugs may be a factor of some importance, as it is a circumstance relevant to determining how far-reaching and sophisticated the enterprise was and the amount of profit expected. However, the amount of the drug involved is not always the primary factor in assessing the gravity of the offending.In your case, it is difficult to make many relevant findings because there are so many “unknowns”. You lied in your police interview and you did not give evidence at your sentencing hearing. There is no evidence as to the identity of the Sydney supplier of the cannabis to you, nor as to how and by whom the purchase was financed, whether by you or someone else.Your counsel told the court today that you were working only one to two days per week as a painter, earning only $50 a day. Again, the matters conveyed to the court were somewhat vague and it is difficult for me to make any findings, even on the balance of probabilities, in relation to those matters.The photographs tendered in evidence indicate that the car rental agreement was in your name and paid for by a credit card in your name. The amount of $2,600 you were paid after you arrived in Darwin may have been reimbursement of the rental charges, but that is not clear.Other matters which remain unknown are the benefit which you were to receive for transporting this very significant quantity of cannabis from Sydney to Darwin, and exactly what you and the other two would have done with the 18.5 kilograms of cannabis had you not been arrested in the Rydges car park. Another unknown was what was to happen with the remaining 9.7 kilograms of cannabis or thereabout which was found in your vehicle.Finally, it is unclear whether you were a mere transporter or whether you had equity in or ownership of the cannabis consignment, and a vested interest in its supply and distribution in the Darwin market. I do not know your role and position in the overall operation.In those circumstances, I have to sentence you as someone who played a very significant role in bringing to the Territory a large and valuable quantity of cannabis plant material. I cannot mitigate the sentence on the basis that you did not have a significant role in the operation or, for example, that you were just a poorly paid driver. I simply don’t know. I cannot even be satisfied that your role was complete once the cannabis had been transferred to Mr McDonald’s vehicle. The fact that there was still more than 9.7 kilograms of cannabis in your vehicle indicates that you still had work to do.Cannabis is a widely used drug in the Northern Territory, which causes serious social dysfunction and damage to users and their families, particularly vulnerable people in Aboriginal communities. For many years now, the courts in the Northern Territory have been emphasising the significant harm caused by cannabis to the entire Northern Territory community. As a result, punishment, denunciation and general deterrence are important sentencing objectives in your case.I formally convict you. Noting that the maximum penalty is 14 years’ imprisonment, I take as my starting point, a term of imprisonment of six years. However, I will reduce my starting point by one year to give you credit for your plea of guilty.I sentence you to a term of imprisonment of 5 years.[...]Because you are a first offender, I consider that it is appropriate to suspend your sentence rather than fix a non-parole period. I therefore direct your sentence be suspended after you have served 3 years. [...]Consideration of Ground 2