Nguyen v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0067

TONY NGUYEN	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2023
DATE OF JUDGMENT:	12 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 217
JUDGMENT APPEALED FROM:	[2023] VCC 1900 (Judge Cahill)

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CRIMINAL LAW – Appeal – Sentence – Charges relating to drug offences, possession of firearms and dealing with proceeds of crime – Sentenced to 4 years 10 months’ imprisonment with non-parole period of 3 years – Whether sentence manifestly excessive – No real prospect of success – Extension of time in which to apply for leave to appeal sentence refused.

Clarkson v The Queen (2011) 32 VR 361, Osman v The Queen [2021] VSCA 176 applied.

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Counsel
Applicant:		Mr DA Dann KC
Respondent:		Ms EH Ruddle KC
Solicitors
Applicant:	Burn City Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
MACAULAY JA:

On 15 June 2022, the applicant pleaded guilty in the County Court to 10 charges on indictment and one summary charge. The most serious charges were three charges of being a prohibited person possessing a firearm. On that date the judge deferred sentencing the applicant pursuant to s 83A of the Sentencing Act 1991 to allow his prospects of rehabilitation to be assessed and to demonstrate that rehabilitation has taken place. The applicant was released on bail. In August 2022 the applicant breached his bail conditions and was taken into custody. The matter returned to the sentencing judge on 21 October 2022, where further submissions were made on the plea. The appellant was sentenced on 15 November 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Negligently deal with proceeds of crime[1]	5 years	12 months	2 months
2	Prohibited person possess a firearm[2]	10 years	30 months	Base
3	Knowingly deal with proceeds of crime[3]	15 years	27 months	6 months
4	Prohibited person possess a firearm[4]	10 years	30 months	8 months
5	Knowingly deal with proceeds of crime[5]	15 years	27 months’	6 months
6	Traffick Methamphetamine[6]	15 years	15 months	4 months
7	Traffic drug of dependence[7]	15 years	9 months	2 months
8	Possess drug of dependence (not named)[8]	5 years	1 month	Nil
9	Possess cocaine[9]	5 years	3 months	Nil
10	Possess heroin[10]	5 years	1 month	Nil

[1]Contrary to the Crimes Act 1958, s 194(4).

[2]Contrary to the Firearms Act 1996, s 5(1).

[3]Contrary to the Crimes Act 1958, s 194(2).

[4]Contrary to the Firearms Act 1996, s 5(1).

[5]Contrary to the Crimes Act 1958, s 194(2).

[6]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1).

[7]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 71AC(1).

[8]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 73(1).

[9]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 73(1).

[10]Contrary to the Drugs, Poisons and Controlled Substances Act 1981, s 73(1).

Related Summary Offences
5	Possess cartridge ammunition without license[11]	40 penalty units	Fined $500.00	N/A
Total Effective Sentence:		4 years and 10 months’ imprisonment
Non-Parole Period:		3 years
Pre-sentence Detention Declared:		588 days
Section 6AAA Statement:		Total Effective Sentence 6 years 3 months Non Parole-Period 4 years 4 months
Other Relevant Orders: Forfeiture and disposal orders

[11]Contrary to the Firearms Act 1996, s 124(1).

The applicant now seeks leave to appeal against sentence on the sole ground that the total effective sentence and the non-parole period are manifestly excessive. The applicant also seeks an extension of time in which to file his notice of application for leave to appeal.
We would refuse to grant the extension of time on the basis that the proposed ground of appeal has no prospects of success.

Extension of time

The principles applicable to an application for an extension of time are uncontroversial and were summarised by this Court in Madafferi v The Queen.[12] It is not necessary to set them out here. Relevantly for present purposes, it is necessary to consider both the reasons for the delay and the prospects of success of the application for leave to appeal.
[12][2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
The applicant’s solicitor filed an affidavit explaining the reasons for the delay in filing the application for leave to appeal. We infer from that affidavit that the applicant instructed his solicitors that he wished to seek leave to appeal against sentence reasonably swiftly after the sentence was imposed. The solicitors then took prompt steps to brief counsel and to obtain relevant material in relation to the appeal. They also attempted to file an application for leave to appeal within the time prescribed for the appeal, but that application was not accepted for filing because it was not accompanied by written submissions. Thereafter, relevant documents were provided to the applicant’s solicitors on various dates between 16 December 2022 and 6 April 2023. The application for leave to appeal was ultimately filed on 28 April 2023.
We accept that the applicant has provided a satisfactory explanation for the delay in filing the application for leave to appeal. However, for the reasons that we set out below, we do not consider that the application has any real prospect of success.

Sentencing reasons

The sentencing judge commenced his reasons with a short description of the applicant’s offending, after observing that the facts set out in the summary of prosecution opening were agreed between the parties.[13] The judge summarised the offending as follows:
[13]DPP v Nguyen [2023] VCC 1900 (‘Reasons’).
On 25 March 2020, police arrested you in the carpark of a Box Hill apartment building where you live. They had a warrant to search your premises.
Charge 1 – Negligently dealing with proceeds of crime
Charge 1, negligently dealing with proceeds of crime, is a rolled up charge of two instances of dealing with property.
A Mercedes Benz was found in the carpark. On 28 August 2019, you paid $75,000 in cash to purchase the car and arranged to register it in the name of an associate. Between 22 November 2019 and the day of your arrest you had been using the car (Charge 1 – Negligently dealing with proceeds of crime).
In the bathroom, inside your apartment, police found an Omega Seamaster watch valued at $9900 (Charge 1 – Negligently dealing with proceeds of crime).
By your guilty plea you admit you dealt with both the car and the watch which were proceeds of crime and you were negligent as to whether they were.
Charge 2 – Prohibited person in possession of a firearm
Summary Offence 5 – Possess Cartridge ammunition without a licence
In a Nike backpack (“the backpack”), kept in your storage cage, they found a loaded Browning semi-automatic pistol. They also found a box containing 19 rounds of .380 calibre ammunition.
By your guilty plea you admit you possessed the loaded pistol and the ammunition.
Charge 3 – Knowingly dealing with proceeds of crime
In your bedroom, police found $92,540 in cash in a safe and $2,550 in cash in a pair of your tracksuit pants.
By your guilty plea you admit you dealt with the cash, $95,090 in total, which was proceeds of crime and you knew it.
Charge 4 – Prohibited person in possession of a firearm
Police also had a warrant to search your then girlfriend's apartment a Burwood.
There were two safes in a bedroom cupboard.
In one of them, there was a loaded silver revolver.
By your guilty plea, you admit you possessed the revolver.
DNA profiling indicated extremely strong support for the proposition you had handled both the pistol (Charge 2) and the revolver (Charge 4).
Because you had served a prison term for an indictable offence within five years of this offending and because you were subject to a Community Correction Order, with a supervision condition, when you offended, you were prohibited from possessing any firearm.
Charge 5 – Knowingly dealing with proceeds of crime
In the other safe they found $150,505 in cash.
By your guilty plea, you admit you dealt with the cash, which was proceeds of crime, and you knew it.
Charge 6 – Trafficking a drug of dependence (methylamphetamine)
Inside the front pocket of the backpack there was a purse (“the purse”). Inside the purse, there was a snap lock bag which contained crystalline methylamphetamine. On the floor near the couch in your apartment there were four snap lock bags, which contained crystalline methylamphetamine also. The five bags contained 64.1 grams of methylamphetamine mixture.
A trafficable quantity of methylamphetamine is 3 grams of mixture.
You admit you were in possession of the methylamphetamine for sale.
Charge 7 – Trafficking a drug of dependence (1, 4 – butanediol)
On a coffee table in your apartment, there were two plastic bottles and a smaller bottle and on the floor a glass vial which contained 335.6 grams of 1,4-Butanediol.
A trafficable quantity of 1,4-Butanediol is 50 grams.
You admit you were in possession of the 1,4-Butanediol for sale.
Charge 8 – Possess drugs of dependence – MDMA, MDA and buprenorphine
In the purse, there were also three MDMA tablets weighing 1.7 grams of mixture and seven MDA tablets weighing 2 grams of mixture. And in your apartment there were 11 Buprenorphine tablets weighing half a gram of mixture.
Charge 9 – Possession of the drug dependence (cocaine)
In your bedroom there was 23.5 grams mixture of cocaine in zip lock bags.
Charge 10 – Possession of drug dependence (heroin)
In the purse, there was also a chunk of heroin which weight 7 grams of mixture.
By your guilty plea you admit you were in possession of the various drugs of dependence.[14]
[14]Reasons, [4]–[10].
The judge then observed that the applicant has an admitted criminal record, including:
(a)convictions in 2008 for trafficking and possessing amphetamine and being a prohibited person in possession of a firearm;
(b)convictions in 2014 for knowingly dealing with proceeds of crime and possess a drug of dependence;
(c)convictions in 2017 for trafficking MDMA, negligently dealing with proceeds of crime and drug possession; and
(d)convictions in 2018 for negligently dealing with proceeds of crime and possessing methylamphetamine, a prohibited weapon, a controlled weapon and cartridge ammunition.[15]
[15]Reasons, [40].
Next the judge addressed the applicant’s personal circumstances,[16] observing that his parents were both Vietnamese refugees and that his childhood was characterised by instability, due to his parents quarrelling and their ultimate separation, his father’s gambling, and his mother’s psychotic and depressive symptoms. The judge also noted that the applicant’s mother had operated a ‘loan shark’ business and had sent the applicant and his sister to collect debts owed to her. The applicant attended school until year 10. When he was a teenager he was introduced to heroin and has battled addiction to that drug ever since. He has regularly trafficked drugs to obtain money to pay for drugs for himself.
[16]Reasons, [44]–[53], [55]–[56].
The sentencing judge then outlined the applicant’s offending in 2017, for which he was sentenced in 2018 (by the same judge).[17] His Honour observed that in relation to that offending, the applicant had spent 533 days in remand custody until 19 October 2018, when he was sentenced to imprisonment for 8 months and 28 days with an 18 month community corrections order. He was released on 8 June 2019, after spending 2 years and 1 month in custody. At that time the community corrections order commenced. On 25 March 2020 the applicant was arrested in relation to the present offending. This breached the community corrections order. The applicant was then remanded in custody for a period of 588 days, until 3 November 2021. On that date the judge granted the applicant bail on strict terms that included a condition that the applicant attend a residential drug rehabilitation program.
[17]Reasons, [57]–[58].
The judge observed that the applicant successfully completed the residential rehabilitation program at ‘The Cottage’, and afterwards continued fortnightly counselling with a drug counsellor.[18]
[18]Reasons, [59]–[68].
The judge then outlined the circumstances in which the applicant came to breach his bail conditions.[19] In July 2022 the applicant and his partner decided to have a child and, at an appointment with an IVF specialist, the applicant’s partner disclosed that she already had children in China. Soon after that the applicant relapsed into drug use. On 20 August 2022 he was arrested in relation to his alleged involvement in an assault in company outside a karaoke club. The applicant admitted he was at the club at the time, which breached the curfew condition on his bail. Further, police found two mobile phones in his car, which was another breach of the bail conditions. The applicant was charged with offences and remanded in custody.
[19]Reasons, [69]–[71].
The judge observed that the applicant had been assessed by two forensic psychologists, Mr Cummins and Mr MacKinnon.
(a)Mr Cummins had assessed the applicant in 2008, when he was 21, and concluded that the applicant had developed an adjustment disorder in the context of dysfunctional family circumstances. He also had an opiate and amphetamine addition.[20]
(b)Mr MacKinnon assessed the applicant in 2018 and in October 2022. He concluded that the applicant had ‘chronic complex post-traumatic stress disorder as a result of your disturbed childhood and “additional violent and threatening experiences in the criminal underworld”’. Mr MacKinnon also diagnosed the applicant with substance abuse disorder.[21]
[20]Reasons, [73]–[74].
[21]Reasons, [75]–[78].
The judge also set out the character references from the applicant’s sister and a friend.[22]
[22]Reasons, [81]–[85].
The judge then turned to the parties’ submissions. He set out the defence submissions on mitigation, as follows:
(a) Firstly, the totality principle, to take into account the 533 days, which he categorised as dead time, you spent in custody until I sentenced you on 19 October 2018, your imprisonment for eight months and 28 days consequent upon that sentence and the four months you spent confined at “The Cottage”, while you completed the residential program.
(b) Secondly, the significant progress you made towards your rehabilitation by successfully completing the rehabilitation program and continuing counselling with Mr Hutchinson.
(c) Thirdly, the high utilitarian value of your guilty plea and the additional hardship of prison during the public health pandemic; and
(d) Fourthly, your childhood developmental difficulties as a result of a dysfunctional upbringing and your consequent complex PTSD.
He submitted, notwithstanding your relapse into substance abuse and your recent reincarceration, considering your commitment to drug counselling, which you have continued while you have been on remand, the steps you have taken to repair your familial relationships and your family support, your prospects of rehabilitation are very good.[23]
[23]Reasons, [90]–[91].
The judge then said as follows, under the heading ‘Consideration’:
Mr Nguyen, your crimes are very serious.
You had a treacherous combination of drugs, firearm and cash at your home and your girlfriend's apartment.
You should not have been in possession of any firearm. You had two of them, both lethal weapons, loaded and accessible for your use.
They were part of the stock in trade of your drug trafficking activity. It elevates the seriousness of your possession of them.
You had methylamphetamine and 1,4-Butanediol in trafficable quantities for sale.
You also held substantial quantities of cash associated with your illicit trade.
While your possession of firearms are the most serious offences, the offences of knowingly dealing with proceeds of crime attract a higher maximum penalty.
It was not suggested the quantities of other drugs which you held were for any purpose other than your personal use.
Your crimes warrant the imposition of a head sentence with a non-parole period fixed.
There are mitigating factors, which I take into account to moderate the sentence I will impose.
Firstly, you are entitled to a demonstrable sentencing benefit for your guilty plea.
It has additional utilitarian value during the public health pandemic because it alleviates the current strain on the justice system.
It is also evidence of your remorse.
Secondly, the removal of visits, reductions in programs and enforcement of lockdowns which have been necessitated by the COVID-19 pandemic has made prison harder for you and all prisoners.
Thirdly, your background of disadvantage and chronic PTSD moderate your moral culpability to a degree.
Fourthly, totality is a relevant sentencing consideration.
You are entitled to a sentencing discount for the time, four months you spent at “The Cottage” rehabilitation facility, which restricted your freedom of movement and association as time spend in “quasi-custody”.
You are also entitled to a reduction in your sentence for the 533 days spent in custody between your arrest on 5 May 2017 and 19 October 2019 when I sentenced you. While not precisely “dead time”, because I did take the time into account in sentencing you on 19 October 2018, they were not days declared as pre-sentence detention. While they are not available to you strictly as pre-sentence detention, as a “matter of justice” you are entitled to a sentencing discount for them.
Because you are to be sentenced for a number of offences I must also ensure your overall sentences “are a just and appropriate measure of your total criminality”.
Your rehabilitation is also a relevant sentencing consideration.
When you were given the opportunity of bail you made a substantial attempt to rehabilitate by remaining drug abstinent while you successfully completed “The Cottage” program and thereafter you continued with voluntary non-residential counselling.
It appears your partner was the trigger for your regrettable drug relapse.
Since your arrest and your remand on 20 August 2022, you have kept your resolve to beat your addiction with professional assistance.
Your supportive sister and your desire to be a better son, brother and uncle are protective factors for your rehabilitation.
Your prospects of rehabilitation are contingent upon you holding your resolve and your motivation.
I have also received helpful guidance from a number of appellate decisions in determining your sentence.
By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation. [24]
[24]Reasons, [103]–[129].
The judge then proceeded to sentence the applicant to the sentences set out in the table above.

Merits of the application for leave to appeal

The applicant’s submissions

As already observed, the sole ground of appeal is that the sentence imposed on the applicant was manifestly excessive.
The applicant recognised that his offending was serious, and that it was committed while he was subject to a community corrections order. He also accepted that he had relevant prior convictions. However, he submitted that there were a number of important matters in mitigation:
(a)First, he had pleaded guilty at the ‘first reasonable opportunity’ and was entitled to a ‘demonstrative sentencing benefit’, particularly in light of this Court’s decision in Worboyes v The Queen.[25]
(b)Secondly, there was evidence of remorse.
(c)Thirdly, the applicant’s time in custody was made more burdensome by the COVID-19 pandemic.
(d)Fourthly, the applicant had experienced a ‘disturbing and traumatic upbringing’, including that his mother had been diagnosed as suffering from schizophrenia, involving grandiose and persecutory delusions and perceptual abnormalities. He had also been introduced to drug use and criminal activity, developed a long standing drug addition, been involved in a major car accident at age 10, been a witness to and the victim of domestic violence, and been the victim of sexual abuse at the hands of a family friend. As a consequence of this disturbed upbringing he had developed chronic post traumatic stress disorder and chronic associated substance use disorder, which warranted some moderation of his moral culpability, as the trial judge accepted.
(e)The applicant had made significant efforts towards rehabilitation, including completion of a four month residential rehabilitation program. He had also engaged in ongoing counselling sessions with an addiction counsellor. That was the context in which the sentencing judge initially decided to defer sentencing the applicant.
(f)Although the applicant relapsed in August 2022, he has since then again committed himself to rehabilitation.
(g)Given the inter-related nature of some of the individual charges, namely the prohibited person in possession of firearms charges (charges 2 and 4) and the trafficking charges (charges 6 and 7), it was important that the applicant not be doubly punished. That is, although it was permissible for the sentencing judge to increase the sentence to be imposed on charges 2 and 4 because possession of the firearms was associated with the trafficking, the sentences on charges 6 and 7 could not then be increased by reason of the trafficking being associated with the possession of firearms.[26] However, the applicant did not submit that the judge had in fact made a specific error of that kind.
(h)There was a ‘very significant totality issue’, because the applicant had been incarcerated on remand for a period of 533 days prior to the sentence on 19 October 2018, which period was not the subject of a pre-sentence detention declaration under s 18 of the Sentencing Act 1991 and was thus ‘dead time’, which had to be taken into account in sentencing the applicant for the present offences (as the judge accepted). There was also the period of four months that the applicant had spent at the residential rehabilitation facility, described as ‘Akoka time’.[27] Thus, he submitted, there was a period ‘approaching two years’ that had to be taken into account ‘in a broad way in recognition of the totality principle’. This required a ‘significant reduction in the sentence that would otherwise have been imposed.[28] In addition, aside from charge 1, all the offences were alleged to have been committed on a single day, which dictated ‘very large measures of concurrency’. Yet, the applicant submitted, the judge had not employed either of the ‘traditional methods’ of accommodating the totality principle (ie moderation of individual sentences or making appropriate orders for cumulation).
[25][2021] VSCA 169, [39] (Priest, Kaye and T Forrest JJA).
[26]The applicant referred to Acciarito v The Queen [2019] VSCA 264, [51]–[61].
[27]The applicant referred to Akoka v The Queen [2017] VSCA 214, [105]–[114].
[28]The applicant referred to Wheldon v The Queen (2011) 31 VR 297, [42]; [2011] VSCA 83.

The consequence of the analysis was, the applicant submitted, that the orders made resulted in a total effective sentence and non-parole period that were both manifestly excessive. The applicant concluded with this submission:
Put another way and having regard to all the mitigating factors in this case, it is hard to see how the Learned Sentencing Judge has arrived at a sentence which is so far removed from a sentence that potentially involved a Community Correction Order and which seemed to be in contemplation at the time when sentencing was deferred.

The respondent’s submissions

Counsel for the respondent submitted that each of the sentences, the orders for cumulation and the total effective sentence are within range. She pointed out that the matters on which the applicant now relies were all matters upon which the applicant relied on the plea, and that the sentencing judge had regard to these matters in explaining his Honour’s reasons for sentence. None of them were matters that required the conclusion that the sentence imposed by the judge was not open to his Honour.

Analysis

This Court has frequently observed that an appeal against sentence on the basis of manifest excess or inadequacy requires ‘stringent proofs’.[29] It is not enough that the appellate court would have imposed a different sentence. Rather, the sentence being considered must be one that is ‘wholly outside the range of sentences available to the sentencing judge in the reasonable exercise of the sentencing discretion’.[30] In the absence of specific error, the sentence being considered must on its face reveal underlying error. This is no easy task.[31]
[29]Clarkson v The Queen(2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157 (‘Clarkson’).
[30]Osman v The Queen[2021] VSCA 176, [97] (Priest, T Forrest and Emerton JJA).
[31]Lai v The King [2023] VSCA 151, [16] (T Forrest and Osborn JJA).
In the present case, we consider there is no real prospect that the applicant will succeed in this task.
The offending was serious and was committed while the applicant was subject to a community corrections order, as he quite properly accepted. He also accepted that he had relevant prior convictions. Plainly a sentence of imprisonment was warranted, as he also accepted. In so far as the mitigating factors are concerned, those are all matters that the sentencing judge took into account. In our opinion, a total effective sentence of 4 years and 10 months was comfortably within range when the totality of the offending is considered.
In so far as the applicant drew attention to the issue of double punishment, there is no suggestion that the sentencing judge in fact doubly punished the applicant by increasing the sentence on the trafficking charges because the trafficking was said to be associated with the possession of firearms.
In relation to the fact that both ‘dead time’ and Akoka time had to be taken into account, we note that, as the applicant quite properly recognised, he was ‘fortunate’ to have the ‘dead time’ of 533 days approached in the manner in which the sentencing judge approached it, because it is apparent that when the judge sentenced the applicant in October 2019, his Honour had taken into account those 533 days in in a broad way in determining the appropriate sentence to impose. In any event, and notwithstanding that aspect of the October 2018 sentencing, it is plain that the judge in fact took into account both the dead time and the Akoka time in relation to the present sentence. This matter does not, either alone or in combination, require a conclusion that the total effective sentence was manifestly excessive.
In so far as the applicant suggests that greater cumulation was warranted on the various offences, we consider that the cumulation ordered was moderate, being 16 per cent on charge 1, 22 per cent on charges 3, 5 and 7, and 26 per cent on charges 4 and 6. In that regard, we reject the applicant’s submission that ‘it is difficult to see’ that either of the traditional methods of accommodating the totality principle was utilised. It appears to us that the judge achieved what he regarded as an appropriate total effective sentence in light of the totality principle by making moderate orders for cumulation.
Finally, the fact that when the applicant first came before him in June for sentencing on the present offending the judge appeared to have been open to the possibility of imposing a community corrections order, rather than a sentence of imprisonment, does not demonstrate that his Honour erred in deciding, in November, to impose a custodial sentence. The judge’s initial inclination, and his deferral of sentence, turned on the applicant’s positive steps to rehabilitation. Unfortunately, however, there were significant events between June and November, namely the applicant’s breaches of bail and his relapse into drug use. In those circumstances a community corrections order was, and was accepted to be, plainly inappropriate and a sentence of imprisonment was required. That is so even though the applicant continued his efforts towards rehabilitation.
Ultimately we see no basis for any argument that the sentence imposed was outside the range open to the sentencing judge, particularly in light of the seriousness of the offending, the applicant’s criminal history and his ‘contingent’ prospects of rehabilitation. In that regard, we note that the applicant has previously breached a community based order, and most recently breached the conditions of his bail. In that regard, the judge’s view of his prospects of rehabilitation could be regarded as somewhat optimistic. Of course we would prefer to see that, over time, the applicant proves that the judge’s view was not merely optimistic.

Conclusion

For the preceding reasons, we would refuse the application for an extension of time to file an application for leave to appeal.
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[2023] VSCA 217

12 September 2023