Huynh v The Queen

[2011] HCATrans 159

[2011] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S68 of 2011

B e t w e e n -

THE THU HUYNH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 10 JUNE 2011, AT 1.14 PM

Copyright in the High Court of Australia

MR B.T. STRATTON, QC:   I appear for the applicant, if your Honours please, with my learned friend, MS N.S. CARROLL.  (instructed by George Sten & Co)

MR C.K. MAXWELL, QC:   I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Stratton.

MR STRATTON:   There are two grounds of appeal, your Honours.  One is in respect of the fact that, well, the Court of Criminal Appeal and nor did the judge find – the Court of Criminal Appeal did not find error in the sentencing judge’s finding of previous uncharged criminal activity and/or, we would say, circumstances of aggravation which were not charged in the indictment.  The other ground of appeal is the question of parity, your Honour.

Now, I assume your Honours have some knowledge of the background of this case.  If not, the situation was that the applicant was charged with supplying a commercial quantity of heroin pursuant to the Drug Misuse and Trafficking Act, which prescribes a maximum penalty for this offence of 20 years imprisonment and is subject to a standard non‑parole period of 10 years.

She pleaded not guilty, was tried before Judge Ainslie‑Wallace in the District Court in a judge alone trial and she was convicted.  She was then sentenced on 27 March 2008 to the standard non‑parole period of 10 years, with an additional term of three years.  The co‑offenders were involved – well, she had two co‑offenders who were involved in the same enterprise.  They were charged with this offence and a number of other offences and they pleaded not guilty and were tried together, but separate to the applicant, before Judge Sweeney and a jury when they were convicted of the subject offence and a number of unrelated other drug offences.

The object of the criminal enterprise was that the applicant was to obtain some heroin, a total of about 700 grams of heroin, in Melbourne.  She was then to give it to a co‑offender who is referred to by a number of names, but one of them was Sang, as he was referred to in the Court of Criminal Appeal.  He was then to transport the heroin to Sydney, which he did by bus, and he was then to hand it over to a man who has been referred to in a number of cases as Ahn‑Ba.  What happened of course was that because of police intercepting telephone calls Sang was arrested when he arrived in Sydney in possession of the 700 grams of heroin and a quantity of cash.  So he did not actually hand it over to Ahn‑Ba.  The object of the exercise was so that this heroin could be transported from Melbourne to Sydney where in Sydney it could be distributed to whomever. 

The case against the applicant was totally circumstantial and relied solely on intercepted telephone calls between the applicant and the man, Sang, in a period between 12 May and 15 May 2005.  There was evidence received of other telephone calls but that was between Sang and others, but that was only for the limited purpose of understanding words and expressions that were used because the conversations were in code.  In the sentence proceedings, which are in the application book at page 65 on line 10, the sentencing judge found that the applicant:

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 [applicant] 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 [applicant] had the capacity to pay for the heroin –

This is in the words of her Honour, Judge Ainslie‑Wallace –

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.

As far as all those comments by her Honour or in her remarks on sentence are concerned there is no issue taken with any of that.  But then at application book page 65, line 30, what her Honour said after making those observations was that:

I am satisfied beyond reasonable doubt that this offence was not isolated.  It is clear from the conversations that were recorded between her –

That is the applicant –

and Sang that she knew what to do to source the heroin.

The argument is, your Honours, that there is not one shred of evidence to prove that this offence was not isolated.  That finding can only be based on the fact that she was able to source and pay for the 700 grams of heroin that she did obtain in connection with this charge, full stop. 

HAYNE J:   We need to take account, do we not, of the course of events in the sentencing hearing, particularly what appears at pages 58 and 59, and her Honour’s question at page 59, line 18:

Are you saying that is one act of criminality only in an otherwise law abiding life or are you not saying that?

GRANT:   I think I can say that –

MR STRATTON:   I am saying that there is only one act of criminality, your Honour, that is what I am submitting, yes, one act of criminality.  What went on at pages 58 and 59, as your Honour has pointed out, was a conversation between her Honour and counsel for the applicant and what her Honour did say at page 58, line 48, or what I should say firstly, that the Crown Prosecutor said:

Your Honour, the fact that she had no prior record for a similar offence, your Honour, and I read into that my friend is suggesting that if your Honour would view this as an isolated transaction.

HER HONOUR:   He didn’t say that.  I thought that he was saying that because there was no conviction for drugs that it doesn’t call for additional retribution or deterrence, specific deterrence.  But I’m not sure that Mr Grant was suggesting that this was an isolated transaction.  Are you, Mr Grant?

What Mr Grant did say then, there is no doubt about that, he said:

No.  But clearly it’s the one transaction that your Honour must sentence her on, that’s it, that’s what the indictment was.

HER HONOUR:   I understand that, Mr Grant, but how one sees that in the light of someone – are you saying that looking at all of those telephone calls, to which your client was a party and bearing in mind the De Simone principle, are you submitting that this was an isolated lapse, the supplying of these two blocks of heroin?

GRANT:   I’m saying that your Honour cannot find any aggravating circumstances.

HER HONOUR:   No, that’s a different question.  I want you to answer my question.  Are you saying that it is one act of criminality only in an otherwise law abiding life or are you not saying that?

GRANT:   I think I can say that, your Honour.

That, in my submission, your Honour, is what defence counsel was putting.  This was an isolated act in an otherwise, as far as drugs are concerned, life which did not have any criminal activity.  That is my submission, your Honour. 

As I submitted before, your Honour, there is no evidence that was put before her Honour to suggest that this was other than an isolated act.  She did not have any previous convictions for drug matters.  There was no evidence as to how she became involved in the matter.  There was no evidence as to how she became acquainted with the co‑offender Sang, no evidence as to where the money came from.  She was not charged with any offence other than the offence from the single supply charge on the indictment.  There was no direct evidence to support this finding, that was that there was anything else.  There was no phone calls, no surveillance, no finding of money or drugs which could have supported any allegation of previous commercial supply of drugs by the applicant. 

Our submission, your Honour, is that there could be other people in the community who have knowledge of where to get heroin, how to source heroin, but that does not mean because they have the knowledge of how to source the heroin that they are in fact people who have in fact sourced considerable quantities on a commercial basis before.  There is a first time for everything, your Honours, and evidence was given of the lady’s background which, in my submission, is important in coming to the conclusion as to whether or not this was isolated or not.

She was 43 at the time of sentence.  She came from this country from Vietnam via Thailand at 1984 age 20.  She lived in Melbourne.  She had been married and divorced.  She had two children, and one of her children, Charlie Ma, gave evidence at the sentence proceedings and he gave evidence of what she did.  She was, as far as he was concerned, a hard‑working young lady who was looking after him and his brother, who was two years older than him, take them to school, take them to tutorials, look after the house, pay for everything.

There was also another gentleman who gave evidence at the sentence proceedings and that was a Mr Antoniades.  He gave evidence, at page 46, line 10, and he gave evidence as to how he came to meet the applicant – that it was about five years earlier, that it was as a result of domestic and business dispute that she had with an ex‑boyfriend and a friendship developed between them.  But what he said was this:

She’s very active in the Vietnamese community.  She knows a lot of people and a lot of people used to come to her for help and she used to refer them to solicitors and she found it quite rewarding to do that so she felt that she should improve her English and she went to school . . . period of about a year and a half –

obviously to learn English.  She was a lady who worked hard.  He gave evidence about how she conducted a seamstress business in a warehouse that she originally had with the ex‑boyfriend, and how she had employed people there and worked up to 18 hours a day, and she was not, as far as he was concerned of course, he might not have known everything about her, but he was not, she was not a drug dealer.  Our submission is that she was not a drug dealer prior to the episode. 

She was a lady who lived over 20 years of her adult life in Melbourne.  She had had been very active in the Vietnamese community.  She was continually meeting people, apparently with conflicts with the law, and she was referring them to solicitors.  So, with respect, your Honours, our submission is it would not take much imagination, as a result of this, that she would have come into contact with people who would have been able to source supplies of heroin and would have been able to give her information as to how to source supplies of heroin without her being a drug dealer herself.

We therefore submit, your Honour, that it was an error of the sentencing judge to conclude that this offence was not isolated.  We hasten to add that after making the statement that the offence was not isolated that her Honour went on to say, at line 32 on page 65:

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.

So, with respect, your Honours, we submit that her Honour therefore took into account uncharged criminal offending behaviour and/or aggravating circumstances not charged as part of the sentencing process.  In other words, the applicant was deprived of any leniency that would have or could have been granted because of her Honour’s finding that this offence was not isolated and therefore aided a determination, as she says, “of objective seriousness” together with a determination that the offence was not “an isolated lapse of judgment”.

So, we submit, your Honour, that there is an underlying unfairness and injustice in circumstances where a court has taken into consideration uncharged criminal acts and this was referred to in R v De Simoni 147 CLR 363, which your Honours no doubt have a knowledge of, and very shortly Mr Justice Gibbs, the Chief Justice, at page 389 of that case, went on to talk about:

At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as early as the eighteenth century -

He went on to talk about various cases, which I will not go to, in respect of this particular application here, because if your Honours are keen to look at them your Honours no doubt will.  I can go through them, but I will not.  So the situation is, your Honours, that we would submit that there is no doubt that the statement of her Honour that the finding, that is that the offence was not isolated as far as she was concerned, aided a determination of objective seriousness and that demonstrates that her Honour did use the finding as a circumstance of aggravation.  That is our submission, your Honour.

There was of course an appeal to the New South Wales Court of Criminal Appeal.  It was against conviction and sentence.  The appeal against both conviction and sentence was dismissed, but in relation to that particular appeal and in relation to the appeal against sentence it was submitted that the offender’s criminality had been elevated on the basis of the finding that this was not an isolated offence.  The Court of Criminal Appeal found that there had been no breach of principle in R v De Simoni.  At page 91 of the application book, the court, Mr Justice Grove, gave the decision of the Appeals Court, but Mr Justice Grove set out the remarks of her Honour that I have just referred to and then after that he said, at about line 45:

There is nothing in those remarks which demonstrates a breach of the principle in De Simoni.  It was a legitimate element of sentence assessment for her Honour to consider and make a finding whether this had been an isolated occurrence.  She found that it was not.  She did not punish the appellant for any other offence nor did she impermissibly elevate the seriousness of the index offence.  She assessed its seriousness in terms stated.  No error has been shown.

What the Court of Criminal Appeal found was that her Honour did impermissibly elevate the seriousness of the index offence.  However, we submit, your Honour, that her Honour stated that the finding by her that the index offence was not isolated, aided a determination of objective seriousness and it was also relevant to a determination of whether the offence was committed as an isolated lapse of judgment.  We submit that the remarks were applied by her Honour to the objective seriousness of the offence.  That is our submission on that point, your Honour, that that was wrongly taken in – not only wrongly taken into account by her Honour, but wrongly found in the first place by her Honour.

The other ground was parity.  The applicant was sentenced to a non‑parole period of 10 years with an additional term of three years.  The maximum for the offence was 20 years and in addition it was an offence to which a standard non‑parole period of 10 years applies.  Two co‑offenders were convicted of the same offence as the applicant.  Each of them was also convicted of a number of other unrelated drug offences.  In the case of Sang, he was convicted of five additional offences including the supply of a large commercial quantity of ice, which carries a maximum of imprisonment for life.  In the case of Ahn‑Ba, he was convicted of seven additional offences including, once again, the supply of a large commercial quantity of ice.

They were both sentenced her Honour Judge Sweeney on 30 March.  In relation to the offence common to all three offenders, the two co‑offenders were sentenced to a non‑parole period of nine years with an additional term of three years.  The overall sentence which Sang received was a non‑parole period of 10 and a half years with an additional term of three and a half years, the overall which Ahn‑Ba received was a non‑parole period of 12 years with an additional term of four.  There was an appeal against the severity of conviction and severity of sentence by Sang and Ahn‑Ba, but they were dismissed by the Court of Criminal Appeal.

When the applicant was sentenced, the sentencing judge, that is Judge Ainslie‑Wallace, could find no reason to depart from the standard non‑parole period.  An additional term of three years was set and her Honour was in possession of the remarks on sentence of Judge Sweeney in connection with the two co‑offenders at the time.  Our submission is that the common law principle of parity was such a reason to depart from the standard non‑parole. 

In the applicant’s appeal to the Court of Criminal Appeal, one of the grounds of appeal was that the sentence breached the principles of parity.  Mr Justice Grove in the Court of Criminal Appeal referred to sentences imposed upon the co‑offenders and then stated at application book page 90 at line 48:

I am unpersuaded that the appellant can harbour a justifiable sense of grievance by comparing the sentences received by co‑offenders.  The difference was observed and in the light of her Honour’s unchallenged finding as to the range of seriousness in which the appellant’s offending stands, there was no error in her giving effect to the statutory provision as to the standard non‑parole period.

With the greatest of respect to his Honour, Mr Justice Grove, we would find it unusual at the very least that anyone could come to a conclusion that the applicant would not harbour a justifiable sense of grievance.  The applicant was involved with the two co‑offenders in the joint criminal enterprise.  Each offender had his or her role to play.  There was little difference in the subjective circumstances of each of the co‑offenders.  The only real difference was the proven activities in relation to drug‑related matters.  The applicant had no other proven activity in drug matters, whereas both of the co‑offenders had each been found guilty of, in the case of Sang, five additional matters, and in the case of Ahn‑Ba, seven additional matters, one of which was punishable with imprisonment for life.  Other matters that they were found ‑ ‑ ‑

HAYNE J:   I see that the time has gone, Mr Stratton.  Is there anything in particular that you need to add in relation to this ground?

MR STRATTON:   One matter only, your Honour.  Sorry for taking so much time, and I would refer to what her Honour Judge Sweeney said in relation to the sentence of those two people.  She said:

The evidence overall showed that Mr Tran –

that was Ahn‑Ba –

and Mr Pham –

that was Sang –

the latter to a slightly lesser extent that Mr Tran, dealing in substantial quantities, of drugs rather than street level, quantities and at a mid to high level as distinct from street level over the six month and five month period they were under investigation respectively.

They were each involved in the business of substantially dealing in drugs.  Sometimes they did business together, sometimes they dealt with other people.  [Ahn‑Ba] dealt in heroin, cocaine, ecstasy and ice on the charges of which he was found guilty, [Sang] in heroin, cocaine and ice.  That is, they did not limit themselves to dealing in one drug in small quantities.  There is no suggestion either of them was addicted to drugs.  Their motives appear to be purely commercial.

Your Honour, Sang was sentenced to a total of 10 and a half years, non‑parole period that is, plus three and half years and that was only six months more non‑parole and six more additional term than the applicant was sentenced to for one and one offence only.  My submission is that that

was terribly unfair and she was quite entitled to be grieved as a result of that, and we would submit that both of those particular points are of public importance.

HAYNE J:   Thank you, Mr Stratton.  We will not trouble you, Mr Maxwell.

We are not persuaded that it is arguable that the applicant was sentenced for any offence other than the offence of which she was found guilty.  Nor are we persuaded that she may have any justifiable sense of grievance on account of the sentences imposed on others associated with the offending of which she was convicted.  The actual decision of the Court of Criminal Appeal is not attended by doubt.  Special leave to appeal is refused.

Adjourn the Court to 9.30 on Wednesday, 15 June in Sydney.

AT 1.37 PM THE MATTER WAS CONCLUDED