Nguyen v R

[2015] NSWCCA 268

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Nguyen v R [2015] NSWCCA 268
Hearing dates:	22 September 2015
Date of orders:	14 October 2015
Decision date:	14 October 2015
Before:	Hoeben CJ at CL at [1] Price J at [2] Button J at [73]
Decision:	Leave to appeal is granted. The appeal is dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – rejection of agreed facts – objective seriousness – possession of prohibited drug for supply – whether the sentencing judge erred in finding that the applicant’s involvement with the prohibited drug was higher than a courier – whether sentencing judge erred in failing to make a finding of special circumstances – need for deterrence – whether the claim was manifestly excessive
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985
Cases Cited:	Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 R v Uzabeaga [2000] NSWCCA 38 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Allen v R [2015] NSWCCA 113 Caristo v R [2011] NSWCCA 7 R v Girard and Girard [2004] NSWCCA 170 Markarian v R [2005] HCA 25; (2005) 228 CLR 357 Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Radi v R [2013] NSWCCA 278
Category:	Principal judgment
Parties:	Duc Thai Nguyen (Applicant) Crown (Respondent)
Representation:	Counsel: Mr P Lott (Applicant) Ms M Cinque, SC (Respondent Crown) Solicitors: J. Law – Chess Legal (Applicant) C. Hyland – Solicitor for Public Prosecutions (Respondent Crown)
File Number(s):	2013/227141
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Crime Date of Decision: 6 June 2014 Before: King SC DCJ File Number(s): 2013/227141

Judgment

1. HOEBEN CJ at CL: I agree with Price J.

2. PRICE J: Duc Thai Nguyen, the applicant, seeks leave to appeal against the sentence imposed upon him by King SC DCJ in the District Court at Sydney on 6 June 2014.

3. The applicant pleaded guilty in the Central Local Court to one count of supply of a commercial quantity of a prohibited drug (44.305 kilograms of cannabis leaf) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. He adhered to his plea in the District Court. The maximum penalty for an offence contrary to s 25(2) is 15 years imprisonment and/or a fine of 3,500 penalty units.

4. The applicant was sentenced by the judge to a term of imprisonment of 4 years consisting of a non-parole period of 3 years and a balance of term of 1 year. The earliest date that the applicant will be eligible to be released to parole is 24 July 2016. His Honour had allowed a 25 per cent discount on sentence for the utilitarian value of the plea of guilty.

5. The notice of appeal identifies three grounds:

a) “The Sentencing Judge erred in finding that the Applicant’s involvement in the supply of the prohibited drug was higher than that of [sic] courier.

b) The Sentencing Judge erred by failing to take into account evidence relevant to a finding of special circumstances, and then failed to make a finding of special circumstances.

c) The sentencing for the offence of supply prohibited drug was [sic] excessive.”

Proceedings on Sentence

6. In view of the issues raised in the first ground of appeal, it is necessary to refer to the proceedings on sentence before the judge, which commenced on 2 May 2014 and continued on 26 May 2014.

7. On 2 May 2014, the Crown tendered a bundle of documents that included an agreed statement of facts and the transcript of a record of interview between the police and the applicant.

8. The agreed facts may be summarised as follows:

9. On 25 July 2013 at 10:00pm, police attached to Hurstville Highway Patrol were conducting mobile patrols in the Penshurst area. While police were driving, the Automated Number Plate Recognition system (ANPR) sounded to signal that vehicle BG03KS (NSW), a black Hyundai, was unregistered.

10. Police followed the applicant, who was driving the Hyundai, in an attempt to pull him over. The applicant turned left on to Cambridge Street in Penshurst and parked his vehicle in a designated parking spot not far from the intersection of Forest Road. The applicant got out of the vehicle and began to walk west across Cambridge Street, attempting to cross the road.

11. Police stopped the applicant and had a conversation with him. The applicant denied any knowledge of the vehicle and stated, “I’m waiting for a friend to pick me up.” Police continued to question the applicant who then admitted to driving the vehicle.

12. Police subjected the applicant to a search, during which they located the keys to the vehicle. When the police began to search the vehicle the applicant fled the scene on foot. The police chased the applicant but lost sight of him when he ran into a unit block. The police called for further assistance in searching for the applicant.

13. At about 10:30pm, the applicant walked out of a driveway in Arcadia Street, Penshurst, turned left, and began to walk south along the eastern footpath. Plain clothes police approached the applicant and said, “Excuse me buddy.” The applicant turned around and ran north along the eastern footpath. He then turned right to the rear of the unit block where police finally caught him. The applicant was cautioned and arrested with the formalities of LEPRA complied with.

14. The applicant was escorted to Hurstville Police Station where he participated in an electronically recorded interview. During the interview he stated that he was asked to drive some bags from Rockdale to Hurstville, where he would receive $20,000. He told police that he recognised that the bags contained marijuana by the smell, and he was doing the delivery to pay for his studies.

15. The vehicle was thoroughly searched whereupon five bags of cannabis were seized. The cannabis weighed a total of 44.305 kilograms.

16. It was an agreed fact that the applicant’s role was that of a courier.

17. Photographs were also tendered which showed that the five bags were large black plastic bags.

18. During the sentencing proceedings, the judge noted that the facts asserted that the applicant’s role was that of a courier. His Honour said (T4 20-24, 2/5/14):

“It’s a matter for the Court to assess the role of the offender, not for it to be the subject of some agreement between the parties and I can see nothing in the facts that I’ve read so far that would, in fact, indicate that Mr Nguyen was simply a courier.”

19. The judge observed that the applicant had been discovered running from an unregistered car which had 45 kilograms of marijuana in the back. The applicant gave no identification of any person other than the “mysterious Rob” who was ‘apparently’ known as Tony for the purposes of a phone number being supplied to him. The applicant could not identify where Rob or Tony could be located. The judge said that the applicant gave an entirely implausible account of his relationship with that person and how he came to be performing the task of delivery to an unknown person for $20,000 cash. The judge remarked that the applicant claimed to have been given a sim card but had conveniently run from the motor vehicle taking with him either one or two mobile phones that he suggested he had destroyed or lost during the course of his evading police.

20. The Crown put to the judge that he “would be required to sentence in accordance with the facts before your Honour, which stipulate the role of the offender in no uncertain terms.” (T5 15-20 2/5/14).

21. The judge said that in the absence of further information which indicated that the applicant was a “mere courier”, he did not propose to accept his plea on that agreed basis.

22. His Honour had earlier opined that the facts were deficient in that they did not provide information concerning the quality or value of the prohibited drug.

23. The applicant’s counsel then sought an adjournment which his Honour granted. The proceedings were adjourned to 26 May 2014.

24. On 26 May 2014, two statements of Detective Senior Constable Kennis were tendered. Detective Kennis had reviewed the Analyst’s certificate which stated that the number of resealable plastic bags totalled 99 with a combined weight of 44.305 kilograms equating to 97.471 pounds. Detective Kennis opined that a realistic wholesale price per pound was in excess of $3,100, although significantly higher amounts could be obtained if sold in reduced quantities. Using a conservative price of one pound at the wholesale value of $2,800 per pound, Detective Kennis stated that a total value of $271,600 could be achieved if the 97 pounds were sold in one pound amounts, but a realistic wholesale value would be in excess of $300,700.

25. The applicant did not give or call evidence during the proceedings on sentence. However, a report of Mr David Green, a psychologist, was tendered together with letters from the applicant’s mother and brother, some medical records from Bach Mai hospital and some business and academic records.

26. After hearing submissions from the Crown and applicant’s counsel, the judge set the matter down for sentence on 6 June 2014.

Some findings by the judge

27. His Honour sentenced the applicant on 6 June 2014. In his remarks on sentence, he gave detailed reasons for not accepting that the applicant was a courier.

28. The judge found that it was impossible to accept that the applicant was being honest in the Record of Interview, and in his story of how he came into possession of the cannabis. His Honour remarked (ROS 10):

“It was a matter for the offender to demonstrate to the Court, at least on the balance of probabilities, that he was a courier rather than someone more significantly concerned in the offence. He did not give evidence, and in the light of his entirely unbelievable story, I reject the asserted “Agreed Fact” that he was a courier. ”

29. The judge said (ROS 10):

“[The applicant] was a 24 year old driving a motor vehicle, in possession of a substantial quantity of pre-packaged cannabis leaf, who in the circumstances was likely to have realised that the marked police vehicle that he drove past, then travelling in the opposite direction, had performed a U-turn to follow him; that thereafter he decided to turn off Forest Road at the earliest convenient point and desert the vehicle in the hope that he would go undetected - and when that failed, to flee from the police and destroy incriminating material, or potentially incriminating material by disposing of his mobile phone or phones, both to protect himself and others. When interviewed, he invented an entirely implausible account for his conduct.

In the circumstances, I will sentence him on the basis that he is a person found to have been in possession of approximately 99 pounds of cannabis leaf, possessed by him for the purposes of sale.” (Italics added)

30. His Honour observed that the applicant had approximately 44 per cent of a large commercial quantity of cannabis leaf. He found that “The offence [was] clearly a serious incidence of supply commercial quantity of prohibited drug.” (ROS 10 -11).

31. The judge said as Mr Green, the psychologist, had been provided by the applicant with the implausible story that he had been a ‘courier’, it was impossible to accept that the psychologist’s findings and opinion were based on fact, with the exception of some personal matters in respect of the applicant’s family and past history. The judge considered that there was nothing to indicate that the applicant, as he said in his record of interview, had committed the offence in order to finance his study in Australia because of outstanding debts. His Honour noted that no invoices had been provided to the court in relation to any debts owed by the applicant, whereas invoices had been provided in relation to the outstanding fees of his younger brother.

32. His Honour found that the applicant was involved in trafficking to a substantial degree. He was satisfied beyond reasonable doubt that the applicant was in possession of approximately 99 pounds of pre-packaged cannabis leaf for the purpose of sale. He was unable to accept there was any evidence of remorse or contrition evidenced by the plea which was, in the circumstances, in the face of an overwhelming Crown case.

33. In his Honour’s view, both general and specific deterrence were important in his considerations.

Subjective Circumstances

34. The judge summarised the applicant’s subjective circumstances from the report of the psychologist. He recounted that the applicant was born in Vietnam on 14 February 1990 and came to Australia when he was 16 years of age. The applicant’s family were close, supportive and stable. At the direction of his parents he came to Australia to study in order to advance his prospects.

35. The judge said that the applicant had initially studied in Melbourne, and then at the Holmes Secondary College where he achieved the Higher School Certificate in 2008. His Honour referred to a number of certificates tendered, which outlined that the applicant had passed the Carrick Institute of Education Diploma of Business course and an intensive English language course at the Western English Language School.

36. His Honour observed that the applicant was 24 years of age, with no previous criminal history and that this was his first time in custody. He said that, in his view, the applicant’s relative youth and the fact that it was his first time in custody did not amount to special circumstances so as to vary the statutory relationship between the non-parole period and the balance of term.

Ground 1: The Sentencing Judge erred in finding that the Applicant’s involvement in the supply of the prohibited drug was higher than that of [sic] courier.

Argument

37. The applicant complained that the judge erred in finding that his involvement in the supply of the prohibited drug was higher than that of a courier.

38. He referred to the five bags of cannabis that were seized and submitted that they could be described as black opaque garbage bags. He pointed to the photographs of the cannabis seized by police (ex 1) and argued that they were not considered and should have been considered by the judge. The applicant noted that there was no concession in the agreed facts that he had any knowledge other than that cannabis was in those bags.

39. The applicant contended that the judge considered the pre-packaged state of the prohibited drug was relevant to a determination of his role and that it was an aggravating circumstance. It was submitted that his Honour must have imparted knowledge upon the applicant, specifically that the applicant knew of the pre-packaged state of the prohibited drug which was not established beyond reasonable doubt.

40. In oral submissions, the applicant argued that the judge made his decision to attribute to the applicant a much higher level than that of a courier, which was part of the agreed facts. The applicant argued that his Honour did so in such a way that it was inextricably linked to evidence that there were 99 one pound bags referred to as “deals”.

41. The Crown submitted that it was for the judge alone to decide on the sentence to be imposed and, for that purpose, the judge must find the relevant facts. Further, that while there can be an understanding between the prosecution and the defence, this does not bind the judge except in the practical sense that the judge’s capacity to find facts will be affected by the evidence and the admissions.

42. The Crown observed that apart from rejecting that the applicant was a “mere courier”, the judge did not make any other finding as to the applicant’s role in the supply of the drug. The Crown contended that while the judge rejected the mitigating factor that the applicant was a “mere courier”, this did not amount to an adverse finding to aggravate the offence. Furthermore, as the judge had rejected the agreed fact that the applicant was a courier, the applicant then bore the onus of establishing that, on the balance of probabilities, his role was that of a courier.

43. The Crown submitted that nowhere in the remarks did the judge attribute knowledge of the pre-packaged state of the prohibited drug to the applicant.

Decision

44. The applicant accepted that it was open to the judge to reject the agreed fact that he was a courier. The applicant’s complaint is that his Honour failed to make a proper assessment of the applicant’s role, ascribing to him knowledge of the pre-packaged state of the cannabis.

45. It is well established that a sentencing judge is not bound to accept agreed facts that are presented to him by the Crown and the defence. A judge’s sentencing discretion must be exercised in the public interest. A judge is not obliged to refrain from questioning facts even though they may be agreed: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 per Kirby at [606]; R v Uzabeaga [2000] NSWCCA 381 per Bell J at [34].

46. When a sentencing judge considers that an offender has a higher degree of culpability than detailed in the agreed facts, the judge, as a matter of procedural fairness, must give the parties an opportunity to address the judge’s view: Uzabeaga at [35]-[38].

47. In the present appeal, the judge informed the parties of his intention not to accept the agreed fact that the applicant was a courier. He gave his reasons for such a finding and appropriately gave the applicant an adjournment so that his view could be addressed.

48. When the sentencing hearing resumed, the judge heard evidence that the five black plastic bags found in the vehicle contained 99 resealable bags with a combined weight of 44.305 kilograms of cannabis. A finding that the applicant knew that the resealable bags were inside the black plastic bags required proof beyond reasonable doubt: R v Olbrich [1999] HCA 54; 199 CLR 270. The difficulty of attributing such knowledge to the applicant is evidenced by the lack of an admission and the opaqueness of the five black plastic bags.

49. The applicant’s complaint that the judge ascribed such knowledge to the applicant is entirely without foundation. Nowhere in the sentencing remarks did his Honour refer to the applicant having knowledge of the resealable bags. The judge focused on the applicant’s actions when he fled from the vehicle and his implausible account for his conduct. The judge confined his finding on the applicant’s role to being “a person found to have been in possession of approximately 99 pounds of cannabis leaf, possessed by him for the purposes of sale.”

50. The findings made by his Honour were open on the material before him and no error is revealed. This ground of appeal has not been established.

Ground 2: The Sentencing Judge erred by failing to take into account evidence relevant to a finding of special circumstances, and then failed to make a finding of special circumstance.

Argument

51. The applicant submitted that the judge failed to take into account matters relevant to the assessment of whether special circumstances apply, specifically:

1. The isolation the applicant was likely to suffer as a foreign national in an Australian prison with no prospect of a visit from his parents; and

2. In determining the non–parole period, the applicant’s rehabilitative prospects.

52. In oral submissions, the applicant argued that the judge did not refer to the applicant’s rehabilitative prospects and if he had, it would have impacted upon the assessment of special circumstances.

53. The Crown contended that this Court has, on a number of occasions, rejected the proposition that the fixing of a non-parole period is a matter that is to be determined solely or primarily by reason of considerations of rehabilitation. The Crown submitted that the judge did not accept what the applicant told the psychologist, so there was nothing upon which the judge had to base any assessment of the applicant’s prospects of rehabilitation.

54. A further argument was that the judge took into account the absence of the applicant’s family in mitigation of the sentence. The Crown argued that to take this into account as a special circumstance would amount to double counting.

Decision

55. A finding of special circumstances so as to adjust the statutory ratio between the non-parole period and balance of term is a “discretionary finding of fact” in respect of which this Court will be slow to intervene: Allen v R [2015] NSWCCA 113 at [33]; Caristo v R [2011] NSWCCA 7 at [27].

56. It is appropriate to mention that the fixing of a non-parole period solely, or primarily, by reason of considerations of rehabilitation has been long rejected: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [57], Allen at [37].

57. During the proceedings on sentence the applicant’s counsel submitted that the judge could make a finding of special circumstances based on the fact that it would be the applicant’s first custodial sentence and that custody would more likely be more onerous for the applicant as he was a foreign national whose family support was located overseas.

58. In his sentencing remarks, the judge took into account: “that the circumstances of [the applicant’s] custody in Australia would in those circumstances be more onerous than it might be for a person who had a greater number of family available to assist them during their period of custody.” (ROS 15). Having taken this matter into account as a mitigating factor, the judge correctly did not regard it as a special circumstance.

59. His Honour went on to find that the applicant’s “relative youth” and “first time in custody” did not amount to special circumstances. These findings were open to the judge in the exercise of his discretion.

60. The applicant’s counsel did not specifically submit to the judge that the applicant’s prospects of rehabilitation constituted special circumstances. The applicant’s counsel did submit that the applicant’s prospects for rehabilitation appeared to be favourable and the judge could easily find that the applicant had good prospects of rehabilitation. He submitted that the impact of this finding would result in less weight being placed on specific deterrence. Furthermore, the expression of remorse and no subsequent misconduct supported a finding that rehabilitation was complete.

61. However, the judge rejected the psychologist’s opinions which included a low overall risk of re-offending. His Honour said that in light of his finding that the applicant’s story to police was entirely implausible, and in the absence of the applicant giving evidence, he was unable to accept there was any evidence of remorse or contrition.

62. Accordingly, there was no material before the judge that would support a positive finding as to the applicant’s prospects of rehabilitation. A decision to find special circumstances is one of fact. The judge was not obliged in the applicant’s case to decide that his rehabilitative prospects constituted special circumstances so as to reduce the non-parole period.

63. I would not uphold this Ground of Appeal.

Ground 3: The sentencing for the offence of supply prohibited drug was [sic] excessive.

Argument

64. The applicant contended that the failure by the judge to make a proper assessment of his role in the commission of the offence resulted in an excessive sentence. The applicant submitted that the following factors should have resulted in a lesser sentence:

a)   He was 24 years of age at the time of sentence;

b)   He had no prior convictions;

c)   He had pleaded guilty in the Local Court;

d)   There was no evidence that he knew the drugs had been pre-packaged into 99 one-pound “deals”; and

e)   There ought to have been a finding that the applicant had good prospects of rehabilitation.

65. In particular, the applicant referred to R v Girard and Girard [2004] NSWCCA 170, in which a husband and wife were found to be heavily involved in a large scale supply of cannabis. They received a head sentence of 3 years with a non-parole period of 18 months. The applicant also cited R v Canino [2002] NSWCCA 76, which was a Crown appeal. This Court allowed the appeal in relation to the supply of 17.3 kilograms of cannabis. The sentence was increased from a 2 year suspended sentence to a total term of 2 years with a non-parole period of 9 months.

66. The Crown submitted that the sentence was not excessive, that the judge did not impute knowledge to the applicant, that the judge had appropriately taken into account the applicant’s relative youth and lack of prior convictions and had not accepted the psychologist’s findings. The Crown pointed out that each of the cases relied upon by the applicant were wholly distinguishable as none of those cases involved the same offence as the present case.

Decision

67. In order to succeed in this ground of appeal, the applicant must show that his sentence was unreasonable or plainly unjust: Markarian v R [2005] HCA 25; (2005) 228 CLR 357 at [25]. Intervention by this Court is not warranted simply because it might have exercised the sentencing discretion in a manner different to the judge: Markarian at [28]; Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [57].

68. As I have previously stated, the judge neither failed to make a proper assessment of the applicant’s role nor did he find that the applicant knew that the cannabis was in a pre-packaged state. His Honour was not obliged to find that the applicant had good prospects of rehabilitation. The judge referred to the applicant’s age and lack of prior convictions and plainly took these matters into account. He allowed a 25 per cent discount for the plea of guilty which appropriately reflected that the plea had been entered at the earliest opportunity.

69. The applicant was in possession of 44.305 kilograms of cannabis leaf with a realistic wholesale value of $300,700. As his Honour recognised, both specific and general deterrence are important in drug offences, such as this. This Court has emphasised that the principles of specific and general deterrence in drug supply matters should not merely be paid lip service but given real effect: Radi v R [2013] NSWCCA 278 at [28]. Other than the applicant’s lack of prior offending, there was little that mitigated the objective seriousness of the offence.

70. The authorities referred to by the applicant were of little assistance as the offences concerned in each case were founded upon s 25 of the Drugs, Misuse and Trafficking Act 1985, which had a maximum penalty of 10 years imprisonment, whereas the present offence carries a maximum penalty of 15 years imprisonment. Moreover, Canino was a Crown appeal and the sentence imposed on resentence was the least sentence that could have been imposed in the court below.

71. I am not persuaded that the sentence was unreasonable or plainly unjust. I would not uphold this Ground of Appeal.

72. The orders I propose are:

a)   Leave to appeal granted.

b)   Appeal dismissed.

73. BUTTON J: I agree with Price J.

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Decision last updated: 19 October 2015