Nguyen v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0203

THANG NGUYEN	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2023
DATE OF JUDGMENT:	7 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 310
JUDGMENT APPEALED FROM:	DPP v Nguyen [2023] VCC 2092 (Judge Carmody)

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CRIMINAL LAW – Appeal – Sentence – Plea of guilty to trafficking drug of dependence – Imprisonment for six months – Applicant aged 73 years – Symptoms of Post-Traumatic Stress – Whether sentence manifestly excessive – Leave to appeal refused.

R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344; Dinsdale v The Queen (2000) 202 CLR 321; Lowndes v The Queen (1999) 195 CLR 665 considered.

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Counsel
Applicant:		Ms SA Stafford and Mr S Cooper
Respondent:		Mr J Johnston
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

On 11 May 2022, the applicant, who is on the cusp of turning 74,[1] was intercepted at the town of Beveridge, Victoria, driving a car en route to Queensland. Police found 2.1 kilograms of heroin — pressed into six 350-gram blocks — hidden inside the centre console, which had been dismantled to conceal the drugs.
[1]His date of birth is 10 December 1949.
Subsequently, on 16 October 2023, the applicant pleaded guilty before a judge in the County Court to trafficking in a drug of dependence, heroin.[2] In his reasons for sentence, the judge described the basis upon which the prosecution accepted the applicant’s plea:
The prosecution has accepted your plea on the charge of trafficking [simpliciter] on the basis that you were not involved in the concealment of the drugs in the vehicle, did not have actual knowledge of the drugs on board, nevertheless that you were aware of the likelihood that the car that you were driving carried a drug that was being trafficked as an awareness that there was a significant or real chance that your conduct involved trafficking a drug. That is the basis upon which you will be sentenced.
[2]Drugs, Poisons and Controlled Substances Act 1981, s 71AC. The maximum penalty is 15 years’ imprisonment.
When interviewed hours after his arrest, the applicant gave the following account (which was also accepted by the prosecution). Shortly prior to the offending, he was contacted by an unknown male and offered $2,000 to drive a car from Queensland to Victoria and then return it to Queensland. He was not told the purpose. After leaving Queensland on 10 May 2022, he went to an address in Reservoir given to him by text message, arriving at approximately 12.50 pm the next day, where he was met by a Vietnamese woman. While at the address, he slept (as he was tired from driving) and ate some food. At about 5.00 pm he left to take the car back to Queensland as instructed. He was not aware of, or involved with, the concealment of the drugs in the vehicle. The sum of $2,000 cash located in the vehicle had been given to him to drive the car to Victoria.
We pause to note that the applicant had been recruited to play a relatively minor role in what was a large drug trafficking operation. Four others having involvement with that operation were charged on the indictment with the applicant. Thus, Wei Chuan Teoh and Jimmy Kwong Yew Lang pleaded guilty (among other things) to trafficking in a large commercial quantity of heroin; and Khai Mong and Janet Tran pleaded guilty to trafficking in a commercial quantity of heroin. In essence, the prosecution case was that, from 28 March 2022 to 31 May 2022, Teoh — effectively a ‘sales manager’ — and Lang — effectively a ‘production and warehouse manager’ — conducted a substantial, ongoing business of drug trafficking, moving at least 14 kilograms of heroin during that period. Tran’s role in the operation was that of ‘broker’, and Mong trafficked drugs sourced from Teoh and Lang to supply his own customers.
Following a plea in mitigation, on 17 October 2023 the judge sentenced the applicant to six months’ imprisonment.[3]
[3]Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the applicant’s plea of guilty, he would have sentenced him to be imprisoned for 15 months. The judge also declared the period of 29 days’ pre-sentence detention.
The applicant now seeks leave to appeal against sentence on three grounds as follows:
1The sentence imposed was manifestly excessive because of the length of the term of imprisonment imposed.
2The learned sentencing judge erred in failing to have proper regard to the applicant’s mental health.
Particulars:
(a) The fact that imprisonment would weigh more onerously on the applicant than a person of normal health;
(b) The fact that there was a risk of imprisonment having a significant adverse effect on the applicant’s mental health.
3The learned sentencing judge erred in failing to have proper regard to the conditions in which the applicant spent 29 days on remand.
As we have mentioned, the applicant is aged 73 years and has no prior (or subsequent) convictions. He was born in the Mekong Delta region of Vietnam and is the youngest of six children. His father was killed by Communists when he was aged 14, and his mother died in 1994. He has little contact with his three surviving sisters. Having been educated to Year 11, the applicant was drafted into the South Vietnamese Army where he served until the war ended in 1975. He then spent six months as a prisoner of war. During his five years of military service, he was wounded and his brother was killed.
The applicant escaped Vietnam by boat in 1982, and, after spending three months in a refugee camp, came to Australia. He married in 1989, and had two children with his wife, before they separated in 2002. The applicant lives with his son, his son’s wife and their two young children in Brisbane. He suffers from hypertension and asthma, and also has a left shoulder injury.
In a report dated 15 September 2023, a clinical psychologist, Ms Carla Lechner, reported that the applicant had developed symptoms of Post-Traumatic Stress Disorder (‘PTSD’) as a result of post-war confinement in the prison camp. Although these symptoms ‘have largely dissipated’, the applicant ‘still suffers nightmares and flashbacks when reminded of his experiences in the war’. Ms Lechner also observed:
At interview, [the applicant] impressed as a rather simple man who does not dwell too much on his emotional world. He is therefore inclined to deny, minimize or avoid internal distress associated with either his traumatic memories or his sense of failure in his life. He reports that he feels sad about his circumstances and being reliant on his children. He does not however, evidence symptoms of depression or anxiety at a clinical level. He does report ongoing flashbacks and nightmares associated with his war-time experience, usually triggered by situations of conflict and aggression. I would anticipate an uptick in such symptoms in the event that [the applicant] is returned to prison, an inherently conflictual, threatening and aggressive environment.
... From a purely psychological perspective, [the applicant] whilst not requiring any specific psychological treatment, would best be supported by his family. He is likely to find a further term of imprisonment very isolating given that his family resides in Brisbane. Furthermore, the conditions of jail are very likely to lead to a resurgence of post-trauma symptoms and therefore a decline in his mental health. [The applicant] presents as a low risk of reoffending, having learnt a salutary lesson on this occasion and having no prior history of any anti-social behaviours in the past.
In the plea in mitigation before the trial judge, the applicant’s counsel submitted the appropriate sentence was a combination of the 29 days’ custody served by the applicant on remand — it was actually 30 days — coupled with a community correction order. The prosecutor submitted that ‘a term of imprisonment is required to adequately reflect all the sentencing purposes’, but that it was a matter for the judge ‘whether the time served is sufficient’.
Notwithstanding the submissions of the applicant’s counsel on the plea, the judge concluded that the applicant’s offending ‘is too serious for a community corrections [sic] order to satisfy the sentencing principles applicable to your offending’.
In his sentencing remarks, the judge set out the purposes for which sentence may be imposed, and referred to the need to take into account current sentencing practices. He said that the applicant’s plea has ‘utilitarian value’; facilitates the course of justice; is an acknowledgement of responsibility; and ‘indicates and demonstrates remorse’. The plea also enlivens the ‘Worboyes discount’,[4] so that a ‘perceptible amelioration of sentence is to result’. The judge also took into account the delay of 17 months between arrest and plea, including the applicant’s ‘fear of a return to custody weighing on [him] for that period of time’, and the fact that he had not re-offended. Finally, the judge said that the applicant’s moral culpability for the offence is to be measured by the applicant’s ‘wilful blindness’, and he said:
I assess your prospects of rehabilitation as very good. Your offending is a one-off serious mistake of judgment on your part. In drug offending such as this, general deterrence is at the forefront of sentencing considerations.
The principle of general and specific deterrence, denunciation of your actions, and just punishment, protection of the community, and to a lesser degree in your case rehabilitation indicate that the only appropriate sentence is a term of imprisonment.
[4]See Worboyes v The Queen (2021) 96 MVR 344 (‘Worboyes’).
Turning first to ground 3, the contention that the judge erred in failing to have proper regard to the conditions in which the applicant spent time on remand is without substance. Counsel’s plea in mitigation was made during the morning of 17 October 2023, and the judge sentenced the applicant shortly afterwards, in the afternoon of the same day. In those circumstances, it is highly unlikely that the judge had overlooked, or failed to take into account, counsel’s submission — supported by Surtees[5] — that the applicant’s 29 days spent on remand[6] ‘were significantly more restrictive and difficult because of steps taken by the authorities to reduce the spread of COVID-19 within the prison’. Indeed, that the judge had not overlooked the impact upon the applicant of the time spent on remand is reflected in his remark — based on Ms Lechner’s report — that the applicant had stated that his ‘one-month on remand was an isolating experience’.
[5]Surtees v The King [2023] VSCA 42 (‘Surtees’).
[6]See [10] above.
Nor do we consider that there is any substance in the second ground, which contends that the judge erred in failing to have proper regard to the applicant’s mental health.
On the plea before the sentencing judge, and in this Court, counsel relied on limbs 5 and 6 of Verdins, as follows:[7]
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
…
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[7]R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).
Notwithstanding the prosecutor’s acceptance on the plea ‘that limbs 5 and 6 of Verdins would have some bearing on the sentence’, in our opinion there was scant evidence that the applicant suffered from impaired mental functioning, let alone that there was a serious risk that imprisonment would have a significant adverse effect on the applicant’s mental health. Ms Lechner’s opinion was that the applicant had previously suffered symptoms of PTSD, but those symptoms had ‘largely dissipated’. Moreover, Ms Lechner’s opinion amounted to no more than that ‘the conditions of jail are very likely to lead to a resurgence of post-trauma symptoms and therefore a decline in his mental health’. Quite plainly, Ms Lechner stopped short of suggesting that there was a serious risk that imprisonment would have a significant adverse effect on the applicant’s mental functioning. Indeed, Ms Lechner offered no opinion as to the manner or extent (for example, mild, moderate or severe) to which the applicant’s mental health might decline. Given these circumstances, we do not consider that the principles in Verdins were engaged. In any event, we note that the judge did observe — perhaps overstating the position — that ‘Ms Lechner’s opinion was that [the applicant suffers] from PTSD going back to [his] wartime experiences’.
Moreover, we would not uphold the first ground, which contends that the sentence of six months’ imprisonment is manifestly excessive.
In submitting that the sentence is manifestly excessive, counsel for the applicant in this Court relied on a number of matters, including: ‘the relatively low objective seriousness of the offending’; the applicant’s personal background; the principle of mercy; the early and valuable plea of guilty; the application of the Worboyes ‘discount’; the presence of genuine remorse; the lack of prior or subsequent convictions of any kind; the applicant’s good character demonstrated over more than seven decades; ‘both limbs of delay’; the hardship of the 30 days spent on remand; the hardship of any future time in custody; the applicant’s ongoing symptoms of PTSD (enlivening limbs 5 and 6 of Verdins); the applicant’s compliance with bail over 14 months in the community; and the applicant’s excellent prospects of rehabilitation.
Manifest excess is a conclusion which does not depend upon the attribution of identified specific error. And it is a conclusion that ordinarily does not admit of much elaboration or sustained argument, since excess is, or is not, plainly apparent. The sentence may be excessive either because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[8] An appellate court will assess whether a sentence is manifestly excessive by instinctively synthesising all relevant factors in order to determine whether it considers the impugned sentence to be just and appropriate.[9] It is not enough to warrant appellate intervention that the judges of the appellate court regard the sentence as stern, or that they would not themselves have passed the same sentence. Appellate intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[10]
[8]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[9]Ibid.
[10]Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
The applicant was aware of the likelihood that there were drugs in the car that he was driving back to Queensland, and that there was a significant or real chance that his conduct in driving the car interstate involved the trafficking of a drug. Furthermore, for acting in the role of delivery driver for what he was aware was likely to be illicit drugs, the applicant was financially rewarded (albeit a fairly modest sum). Thus, although the applicant’s role in what was a relatively sophisticated heroin trafficking operation was comparatively low-level, it is important to remember that low-level participants such as the applicant are essential to the pernicious trade in drugs of dependence, therefore deserving suitable punishment.
Although it might be acknowledged that the applicant had excellent prospects of rehabilitation, and that there was little or no need for specific deterrence, considerations of general deterrence, just punishment, denunciation and the protection of the community, all required adequate reflection in the sentence imposed on the applicant. Indeed, although it might be accepted that the applicant was previously a man of good character, it is often people of good character who are — and permit themselves to be — cynically exploited by principals involved in the trade in illegal drugs.
Weighing all relevant considerations, we are not persuaded that the sentence imposed on the applicant is wholly outside the appropriate range. If anything, the sentence was modest.
The application for leave to appeal against sentence must be refused.

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[2023] VSCA 310

7 December 2023