Nguyen v The King

[2023] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Nguyen v R [2023] NSWCCA 240

Hearing dates:

20 September 2023

Date of orders:

6 October 2023

Decision date:

06 October 2023

Before:

Adamson JA at [1]
Price J at [2]
Davies J at [3]

Decision:

(1) Grant leave to appeal.

(2) Dismiss the appeal.

Catchwords:

CRIME – appeals – appeal against sentence – recklessly dealing in proceeds of crime – where offence involved only the moving of money on one day – where offender had been to premises on six prior occasions – whether sentencing judge erred by relying on prior attendance – prior attendance informed overall assessment of criminality – where co-offender charged additionally with two drug trafficking offences – where roles of the two offenders differed for common offence and different subjective factors existed – where sentencing judge gave express consideration to issue of parity – no justifiable sense of grievance – appeal dismissed

SENTENCING – appeals against sentence – powers of court – Crimes Act 1914 (Cth) s 19AHA – where sentencing judge erroneously amended sentencing order – whether Court of Criminal Appeal can amend clerical error of another court – held Court does not have power under Supreme Court (Criminal Appeal Rules) 2021 (NSW) – application to correct must be made to District Court

Legislation Cited:

Crimes Act 1914 (Cth) ss 16BA, 19AHA

Criminal Appeal Act 1912 (NSW) s 6

Criminal Code (Cth) ss 400.3(2A), 400.6

Supreme Court (Criminal Appeal Rules) 2021 (NSW) r 5.4

Cases Cited:

England v R; Phanith v R [2009] NSWCCA 274

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Mulato v Regina [2006] NSWCCA 282

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Clarke [2013] NSWCCA 260

R v O’Donoghue (1988) 34 A Crim R 397

R v Perry; R v Perry [2022] SASCA 51

Regina v Rick Barry Swan [2006] NSWCCA 47

Smith (a pseudonym) v R [2022] NSWCCA 123

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Sam Nguyen (Applicant)
The King (Respondent)

Representation:

Counsel:
P Lange (Applicant)
L Fernandez (Respondent)

Solicitors:
Criminal Defence Group Pty Ltd (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2021/243367

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

08 December 2022

Before:

Hanley SC DCJ

File Number(s):

2021/243367

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to one offence of recklessly dealing in proceeds of crime contrary to s 400.3(2A)(d) of the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for 2 years and 6 months, to be released after a period of 1 year and 3 months upon entering into a recognisance to be of good behaviour for three years.

A co-offender, Mr Giang, was also charged with an offence contrary to s 400.3(2A)(d), as well as two further offences of trafficking in a controlled drug. Mr Giang was sentenced to an aggregate sentence of imprisonment for 4 years and 6 months with a non-parole period of 2 years and 3 months. The indicative sentence for the s 400.3(2A)(d) offence was 18 months’ imprisonment.

On 25 August 2021, the applicant and Mr Giang engaged in conduct to conceal or disguise the proceeds of general crime. Specifically, they moved $2,219,935, bundled and packed into zip-lock bags and then into boxes, from an apartment in George Street, Liverpool to the applicant’s apartment in Bigge Street, Liverpool. After moving the money, they returned to the George Street apartment where the applicant carried several items to the rubbish shoot. He then exited the apartment carrying an Ikea branded shopping bag and Mr Giang exited the apartment carrying a nylon tartan bag. Inside the tartan bag was a Lockwood branded safe, found to contain $40,395.

The offenders were apprehended as they drove out of the George Street complex carpark. Both offenders, the motor vehicle and the two apartment complexes were searched. Two sets of keys were found on the applicant. He said the keys were “For the safe” which was said to contain “Only $36,000”. The $2,219,935 was found in the applicant’s bedroom, including $736,090 in a locked safe in the wardrobe.

The sentencing judge accepted that the applicant was more criminally involved in the offence than Mr Giang. His Honour also said that he did not propose to consider as exacerbating the offence the fact that the applicant had been to the George Street premises on six prior occasions. Instead, that information indicated to his Honour that the applicant’s conduct “was not something just done to assist” friends on a one-off basis. Thereafter, his Honour found that the offending behaviour fell below the mid-range of objective seriousness.

The applicant sought leave to appeal against his sentence on the following grounds:

Ground 1:   In assessing the objective gravity of the offence, his Honour erred in concluding that the offending “was not something just done to assist someone at the last minute” by erroneously relying upon the applicant’s attendance at the George Street premises on occasions prior to the date of the offence;

Ground 2:   The applicant has a justifiable sense of grievance in light of the sentence imposed upon the co-offender Giang; and

Ground 3: His Honour erroneously varied the sentence imposed upon the applicant pursuant to s 19AHA Crimes Act 1914 (Cth), so as to provide for a 3-year period of good behaviour, even though such a period of good behaviour did not form part of the original sentence.

The Court held (per Davies J, Adamson JA and Price J agreeing), granting leave to appeal and dismissing the appeal:

As to Ground 1

1. Fact finding, and the drawing of inferences from the facts, as well as the overall assessment of objective seriousness, is within the determination of the sentencing judge. It cannot be said that there was no evidence, or that it was not open on the evidence, to conclude that the offending “was not something just done to assist someone at the last minute”: [1] (Adamson JA), [2] (Price J), [30], [33]–[37] (Davies J).

Mulato v Regina [2006] NSWCCA 282; R v O’Donoghue (1988) 34 A Crim R 397, cited.

1. The impugned remarks were a response to submissions made by the applicant that he was unaware of the contents of the boxes until moments before his arrest. It was open to the sentencing judge to reject that submission, particularly given the amount of money found locked in the safe in the applicant’s wardrobe and the sets of keys to the safe found in his pockets: [1] (Adamson JA), [2] (Price J), [33]–[36], [38]–[39] (Davies J).

2. The sentencing judge made it clear that the offence only involved moving the money on the one day. His Honour did not sentence the applicant on the basis that he had knowledge of the money being the proceeds of crime, but that he was reckless as to that fact: [1] (Adamson JA), [2] (Price J), [36], [40] (Davies J).

As to Ground 2

1. In circumstances where the same judge sentenced both offenders, gave express consideration to the issue of parity, and provided reasons for leniency in sentencing the co-offender given his remorse, prospects for rehabilitation and the more onerous conditions of custody during the COVID-19 pandemic, it cannot be said that the applicant has a justifiable sense of grievance. The difference between the two sentences is not gross, marked or glaring: [1] (Adamson JA), [2] (Price J), [46]–[57] (Davies J).

Regina v Rick Barry Swan [2006] NSWCCA 47; Lowe v The Queen (1984) 154 CLR 606, applied.

England v R Phanith v R [2009] NSWCCA 274; Postiglione v The Queen (1997) 189 CLR 295, cited.

As to Ground 3

1. Through no fault of his own, the sentencing judge erroneously amended the sentencing order to provide for a recognisance release order for three years, rather than 1 year and 3 months. That error is only amenable to correction by the court which made the clerical error, namely the District Court: [1] (Adamson JA), [2] (Price J), [66]–[70] (Davies J).

Judgment

1. ADAMSON JA:   I agree with Davies J.

2. PRICE J:      I agree with Davies J.

3. DAVIES J: The applicant pleaded guilty to one offence contrary to s 400.3(2A)(d) of the Criminal Code (Cth). That section relevantly provides:

A person commits an offence if:

(a) the person engages in conduct in relation to money or other property; and

(b) the money or property is proceeds of general crime; and

(c) the person is reckless as to the fact that the money or property is proceeds of general crime; and

(d) the conduct concealed or disguised any or all of the following:

…

(iv) the location of the money or property;

…

(vi) any movement of the money and property;

…

The maximum penalty for this offence is 12 years’ imprisonment and/or 720 penalty units.

4. A co-offender, Alen Giang, was not only charged with the offence contrary to s 400.3(2A) but with two offences of trafficking in a controlled drug. The first of those offences involved 636.6 grams of pure methylamphetamine and the second involved 540.2 grams of pure methylamphetamine. The maximum penalty for each of those offences was 25 years’ imprisonment. Mr Giang also asked for a further offence of engaging in conduct in relation to the proceeds of an indictable crime where the value was $10,000 or more, contrary to s 400.6(1) of the Criminal Code, to be taken into account on a s 16BA Schedule pursuant to the Crimes Act 1914 (Cth).

5. The applicant was sentenced by Judge Hanley in the District Court to imprisonment for 2 years and 6 months commencing 29 November 2022 and expiring 28 May 2025, with the applicant to be released after a period of 1 year and 3 months upon entering into a recognisance to be of good behaviour for a period of 3 years.

6. Mr Giang was sentenced by Judge Hanley to an aggregate sentence of imprisonment for four years and six months with a non-parole period of two years and three months. The indicative sentence for the offence common to Mr Giang and the applicant, the offence contrary to s 400.3(2A), was imprisonment for 18 months.

The offending

7. The sentence proceedings against both offenders were conducted together. There were common Agreed Facts in relation to the offence contrary to s 400.3(2A). They can be summarised as follows.

8. On 25 August 2021 the movements of the offenders were under physical surveillance. At around 12:34pm, Mr Giang drove into the underground carpark for the premises where the applicant resided in Bigge Street, Liverpool. At around 12:40pm, Mr Giang drove out of the underground carpark, with the applicant as a passenger, and travelled to an apartment complex 450 metres away in George Street, Liverpool. Mr Giang drove into the underground carpark for those premises.

9. At around 12:44pm, the offenders entered unit 58 in the apartment complex. They had a key to access the unit.

10. Approximately 45 minutes later they exited unit 58 dragging two cardboard boxes and one black plastic box. The boxes contained Australian currency in the amount of $2,219,935, bundled and packed into blue Ikea branded zip-lock plastic bags. They placed the boxes in the car and drove back to the applicant’s premises in Bigge Street where they remained for approximately 15 minutes.

11. At around 1:44pm, they drove back to the George Street premises where they remained for about 5 minutes. During that time the applicant carried several items to the rubbish chute.

12. At around 1:49pm, the applicant exited unit 58 carrying a blue Ikea branded shopping bag. The bag contained loose empty blue Ikea branded zip-lock plastic bags, boxes of zip-lock bags, and two boxes of elastic bands. “72k” was written on one of the blue Ikea zip-lock bags. Mr Giang exited unit 58 carrying a nylon tartan bag containing a grey Lockwood branded safe. Upon search, the safe was found to contain $40,395.

13. The offenders were apprehended as they drove out of the underground carpark from the George Street premises on that occasion. The applicant was searched, and two sets of keys were found in his pockets. He said, “Those are for the safe”. He was asked how much money was in the safe, to which he responded, “Only $36,000”.

14. The motor vehicle was searched and the following items were seized:

•   two cash counting machines;

•   a black duffel bag containing two Woolworths branded cooler bags which contained 11 canvas shopping bags, a black backpack, a navy backpack and a black Puma branded gym bag;

•   a Kmart receipt for the purchase of three duffel bags;

•   a Rebel Sport receipt for the purchase of two medium sized duffel bags;

•   a phone; and

•   an iPhone in a brown paper bag.

15. A search warrant was executed at the George Street premises. However, the apartment had been largely emptied, and contained only a TV on a coffee table, and a number of empty boxes. The applicant had attended the George Street premises on six prior occasions between 1 May and 25 August 2021. It was agreed that the applicant did not deal with the money anytime prior to 25 August 2021. It is unknown when the money was delivered to the George Street premises, and by whom.

16. A search was carried out at the applicant’s premises in Bigge Street. The money was located in the applicant’s bedroom. Some of the money, $1,483,845, was located in a nylon tartan bag which was at the entrance to the bedroom. The bag was left open and the money was visible. The remaining money, $736,090, was located in a locked safe in the wardrobe, and the applicant’s fingerprint was on the inside door of the safe. That was a different safe from the grey Lockwood safe which contained $40,395.

17. It was agreed that the offenders were reckless as to the money being the proceeds of general crime.

18. The Agreed Facts went on to say:

“The conduct relied upon to conceal or disguise the money is the movement of the money from the George Street premises to the Bigge Street premises by car.”

(emphasis added)

However, the offence charged asserted that the “conduct concealed or disguised the location of the money or property”. The Agreed Facts picked up sub-paragraph (vi) of s 400.3(2A)(d), whereas the Court Attendance Notice referred to sub-paragraph (iv). Although the sentencing judge set out the offence charged, referring to “the location of the money or property”, he subsequently referred to what was said in the Agreed Facts, namely, that “the conduct relied upon to conceal or disguise the money is the movement of the money”. The offence can involve conduct constituted by any one or more of the matters set out in paragraph (d). The parties agreed that the particularisation in reliance on any sub-paragraph of the section was not an essential element of the offence and that, therefore, nothing turns on the distinction for the purposes of the appeal.

Remarks on Sentence (ROS)

19. The sentencing judge said that all money laundering offences should be regarded as serious because they facilitate organised crime. His Honour said that the two primary factors in determining the relative seriousness are the amount of money involved and the state of mind of the offender. His Honour said that the amount of money was a highly significant factor and the primary identifier of the maximum penalty to any given offence. His Honour noted, in that respect, that the offence was more than double the amount nominated as the threshold of $1,000,000 relevant to the offence.

20. The sentencing judge accepted the Crown’s submission that the applicant was more criminally involved in the offence and had a superior role to Mr Giang.

21. The sentencing judge said he did not propose to take into account as exacerbating the offence the fact that the offenders had been to the George Street premises on six prior occasions, but that information indicated to his Honour that what was done was not something to assist some friends on a one-off basis. His Honour was satisfied that it was done for no other purpose than financial motivation.

22. His Honour was satisfied that the offending behaviour fell below the mid-range of objective seriousness.

Grounds of appeal

23. The applicant now seeks leave to appeal on the following grounds:

1. In assessing the objective gravity of the offence, his Honour erred in concluding that the offending “was not something just done to assist someone at the last minute” by erroneously relying upon the applicant’s attendance at the George Street premises on occasions prior to the date of the offence;

2. The applicant has a justifiable sense of grievance in light of the sentence imposed upon the co-offender Giang; and

3. His Honour erroneously varied the sentence imposed upon the applicant pursuant to s 19AHA Crimes Act 1914 (Cth), so as to provide for a 3-year period of good behaviour, even though such a period of good behaviour did not form part of the original sentence.

Ground 1: In assessing the objective gravity of the offence, his Honour erred in concluding that the offending “was not something just done to assist someone at the last minute” by erroneously relying upon the applicant’s attendance at the George Street premises on occasions prior to the date of the offence

24. When assessing the objective seriousness of the offence his Honour said the following:

The large number of transactions involving the offence is a factor but in this case it was only one isolated act, the moving of the money between the two places. It is clear the George Street address was one not utilised for any other legitimate purpose in view of the limited number of furniture items present.

There is no evidence before me who placed the money in that particular unit or that these offenders had any role to play in that action. However, I do note despite their protestations, that they claim that this was a one-off event that they had been asked to facilitate for others, friends, that they had been to that particular premise [sic] on six prior occasions. Whilst I cannot attribute that to any criminal activity on their behalf, they were certainly aware of that address which only had a limited purpose and it is not consistent with their claim that they were helping friends out by committing these acts on this one particular occasion.

…

Police surveillance observed the offenders attending the George Street premises on a number of occasions before the date of their arrest. As I have indicated, this was not something just done to assist someone at the last minute.

25. Thereafter, his Honour found that the offending behaviour fell below the mid-range of objective seriousness.

26. The applicant submitted that the sentencing judge erred in concluding that the applicant’s account was not to be accepted because of his prior attendance at the George Street premises. Whilst accepting that the George Street premises were not used for any legitimate purpose on 25 August 2021, the applicant submitted that there was no evidence as to their prior use, and that it was not open to the sentencing judge to infer that the premises were not used for legitimate purposes on any day prior to the day of the offence, particularly on the occasions when the applicant attended at those premises. The applicant submitted that no inference could be drawn from his prior attendances other than that he was familiar with the premises. The applicant submitted that the inconsistency perceived by the sentencing judge could arise only if the applicant knew of the “limited purpose” of the George Street premises, but there was no evidence that he had that knowledge.

27. The applicant submitted that in those circumstances, and also having regard to the applicant’s prior good character, his Honour erred in failing to sentence the applicant on the basis that he assisted “at the last minute”, that is, that he did not have knowledge of the unlawfulness of the venture much before, if at all, prior to his attendance at the George Street premises.

28. In his oral submissions, Mr Lange of Counsel for the applicant argued that a conclusion that the applicant was aware that the apartment was being used for the purpose of money laundering and that he attended the apartment with that knowledge would inevitably lead to a conclusion that there was a high degree of recklessness. Such a conclusion would have affected the assessment of the objective gravity of the offending to the detriment of the applicant.

Consideration

29. The ground of appeal appears to assert an error in the assessment of the objective gravity of the offence because of the conclusion of the sentencing judge set out in the ground of appeal. The complaint appears to be that the sentencing judge could not draw the conclusion he did that the offenders were not simply helping out friends at the last minute, and in that way must have been aware what the George Street premises were being used for when they attended on the day in question.

30. Fact finding, and the drawing of inferences from the facts, as well as the overall assessment of objective seriousness, is within the determination of the sentencing judge: Mulato v Regina [2006] NSWCCA 282 at [37]. To challenge the conclusion reached by the sentencing judge the applicant would need to demonstrate that there is no evidence to support the particular conclusion, and that the drawing of the conclusion was not open on the evidence before the sentencing judge: R v O’Donoghue (1988) 34 A Crim R 397 at 401. The asserted error would have to be one falling within House v The King (1936) 55 CLR 499; [1936] HCA 40.

31. The applicant does not submit that, if the sentencing judge had not drawn the conclusion he did, he would have found the objective seriousness to be at a lower level than he in fact found. That may not be surprising because the applicant’s Senior Counsel had submitted to the sentencing judge that the objective seriousness should be found at a lower level of objective seriousness and the sentencing judge found that the objective seriousness fell below the mid-range. If there is a difference between the two, and that may be doubted, the assessment was clearly open to the sentencing judge, and was within his discretion.

32. Rather, the applicant submitted that the conclusion said to have been drawn by the sentencing judge reflected itself in the sentence imposed, because if a high degree of recklessness was involved, that meant the applicant’s moral culpability was thereby greater.

33. Whilst there is a degree of imprecision in the sentencing judge’s remarks set out at [24] above, those remarks, and the conclusion identified in the ground of appeal, were the sentencing judge’s response to submissions made to him on behalf of the applicant concerning the applicant’s knowledge about what he was doing. Mr Lange identified two sources for the submission to the sentencing judge. In the applicant’s letter to the sentencing judge he said:

When I was asked to move some boxes I did. I realised it was money and there was a risk of it being proceeds of crime when I got to Bigge Street. By that time it was too late.

34. In the Sentencing Assessment Report (SAR) the following appears:

He claimed he was offered money to move items for a friend, and that he was unaware of the contents of the boxes until moments before his arrest.

35. Mr Lange acknowledged that what was said by the applicant was not on oath.

36. In my opinion, the impugned remarks of the sentencing judge were simply rejecting matters put forward by both offenders in mitigation of their moral culpability by reason of the extent of their knowledge. His Honour made it clear that he was sentencing them only for one isolated act, being the two trips made on 25 August 2021. However, the prior visits made to the George Street premises were clearly relevant to his Honour’s overall assessment of the offenders’ criminality; it is difficult to understand why those visits would otherwise have been referred to in the Agreed Facts. His Honour did not sentence the applicant on the basis that he had knowledge of the money being the proceeds of crime. His Honour twice referred to the applicant’s state of mind as recklessness.

37. As noted above, it was entirely within the role of the sentencing judge to draw inferences from the facts, subject only to the requirement to be satisfied of matters adverse to the applicant beyond reasonable doubt, and matters in his favour on the balance of probabilities. It was the latter process being undertaken by his Honour in the impugned remarks. Nor is his Honour’s rejection of the matters put in mitigation surprising.

38. The suggestion by the applicant that he was unaware of the contents of the boxes until moments before his arrest is entirely inconsistent with (a) the amount of money found locked in the second safe in the wardrobe at his premises with his fingerprint on the inside door, (b) his knowledge of the approximate amount in the first safe, (c) the paraphernalia located in the car, and (d) the two sets of keys found in his pockets, which he said were the keys to the safes.

39. The assertions by the applicant of last minute knowledge and helping out friends formed the basis for the submission made by the applicant to the sentencing judge to mitigate the extent of his moral culpability, as his submissions to this Court made clear. It was open to the sentencing judge to reject that submission, and the remarks on sentence now challenged do no more than that.

40. His Honour did not say anything to suggest that the recklessness was high or gross recklessness. Nor did his Honour find that the applicant was aware that the premises were being used for the purposes of money laundering. Such a finding would have gone beyond what the parties agreed the fault element was. His Honour did not err in the conclusion he reached that the offending was not something done to assist someone at the last minute.

41. I would reject ground 1.

Ground 2:   The applicant has a justifiable sense of grievance in light of the sentence imposed upon the co-offender Giang

42. The sentencing judge found that the two drug offences fell below the mid-range of objective seriousness. The aggregate sentence given to Mr Giang of imprisonment for 4 years and 6 months with a non-parole period of 2 years and 3 months, involved indicative sentences of 18 months’ imprisonment for the offence against s 400.3(2A), 3 years and 6 months for trafficking in 636.6 grams of methylamphetamine (taking into account the offence on the s 16BA Schedule), and 2 years and 6 months for trafficking in 540.2 grams of methylamphetamine.

43. The applicant submitted that, notwithstanding his Honour’s assessment of objective seriousness of the drug offences, they were serious offences involving substantial quantities of controlled drugs where the maximum penalty was 25 years’ imprisonment. Yet, the applicant submitted, the difference in the overall sentences imposed on the offenders was 2 years, and the difference in the non-parole period was only one year. Despite any differences between them in terms of roles for the offence against s 400.3(2A) and any differences in subjective matters, the sentence accorded to Mr Giang gave rise to the justifiable sense of grievance by the applicant. The applicant expressly eschewed any argument based on a comparison of the applicant’s sentence and the indicative sentence for the s 400.3(2A) offence stipulated by the sentencing judge: cf. R v Clarke [2013] NSWCCA 260 at [68]; Smith (a pseudonym) v R [2022] NSWCCA 123 at [47]-[48].

44. His Honour dealt with the parity issue. He said:

I note that in relation to the common offence, the Crown has assessed and I accept the offender, Nguyen, was more criminally involved in that offence and had a more superior role than the offender, Giang. Mr Giang, however, has other offences that need to be taken into account, in particular, the drug offences which are quite distinct and in addition to the matters for which the offender Nguyen is to be sentenced. Any parity that exists, is limited by the application of these factors.

45. The applicant submitted that the last sentence in that extract was not a correct statement of principle, because there was no limitation on the principle of parity by reason of Mr Giang’s being sentenced for other offences.

46. Apart from the different roles of the two offenders and the fact that Mr Giang was charged with other offences, there were significant differences between them when their subjective factors were considered.

47. First, the sentencing judge was not satisfied that the applicant was truly remorseful. In the applicant’s letter to the court he said that he accepted full responsibility for his actions and he understood the seriousness of the crime. He said he understood the extent of the damage of dealing in proceeds of crime on the community, and he sincerely apologised for the crimes he had committed. He said that when he was asked to move the boxes he realised it was money and there was a risk of it being proceeds of crime when he got to the Bigge Street premises. On the other hand, he told the Community Corrections officer who wrote the SAR that he was unaware of the contents of the boxes until moments before his arrest. That seems unlikely to be true, for the reasons given above at [38].

48. The SAR noted that the applicant expressed statements of regret around his involvement in the offence due to the implications it had had on him and his family, but went on to say that the applicant further minimised his involvement by claiming no intentional wrongdoing. The SAR said that his claims of ignorance around his offence were steadfast.

49. The sentencing judge was satisfied, on the other hand, that Mr Giang was to some extent remorseful and had accepted responsibility for his criminal behaviour.

50. Secondly, the sentencing judge noted that the applicant had completed a short rehabilitation program. By comparison, in relation to Mr Giang, the sentencing judge said that there were some very promising aspects. Mr Giang had undertaken a number of courses, and he had received a number of references from Corrective Service officers and a chaplain. The sentencing judge noted that case note reports concerning Mr Giang spoke glowingly of his contribution and application to his employment in the hygiene team at the gaol during the COVID-19 pandemic.

51. Thirdly, and most significantly, Mr Giang remained in custody after his arrest, and that was during a time when the gaols were subject to frequent lockdowns because of the pandemic. The sentencing judge noted that, to 14 August 2022, there had been 144 days of lockdowns at prisons where Mr Giang had been held, and further days after that date. In that regard his time in custody was considerably more onerous than would normally be expected.

52. The sentencing judge also said he took into account the observations of the psychologist, who examined Mr Giang, that Mr Giang would suffer prison “harder over and above the ordinary hardship experienced by other inmates, due to his pre-existing mental conditions which would make it more difficult for him to manage the stress and deal with the pressures experienced while incarcerated.” His Honour said he accepted that as a factor that could have some impact in determining the overall sentence as well as the non-parole period.

53. In Regina v Rick Barry Swan [2006] NSWCCA 47, Barr and Howie JJ said at [71]:

This was a case where the sentencing of both offenders was by the same judge on the same occasion. Where the same judge sentences two offenders at the same time and gives detailed reasons for imposing the sentences he did by having regard to the differing criminality of each, the differing subjective circumstances and the relevant sentencing principles, in our view this Court should be cautious before determining that one of the offenders has a justifiable sense of grievance just because of the different sentencing outcomes.

54. In Lowe v The Queen (1984) 154 CLR 606; [1997] HCA 46, the High Court spoke of the need for gross, marked, glaring or manifest disparity before appellate intervention would occur: see also England v R; Phanith v R [2009] NSWCCA 274 at [62] – [66]. As Kirby J said in Postiglione v The Queen (1997) 189 CLR 295 at 338, mere disparity is not enough because some disparities, being inevitable, must be tolerated out of respect for the discretion of sentencing judges.

55. Having fixed on the aggregate sentence, which involved a generous notional accumulation of the indicative sentences, his Honour then maintained parity in relation to the actual time each offender was to serve, being 50% in each case of the whole sentence. That does not seem to me to give rise to a justifiable sense of grievance simply because the outcome is that Mr Giang spent only one further year in custody.

56. The other focus is on a comparison between the applicant’s sentence and the total aggregate sentence given to Mr Giang. That total aggregate sentence is a very lenient one, given that it included two serious drug trafficking offences. The leniency partly derives from the generous measure of notional concurrency of the indicative sentences, particularly where the drug offences were entirely unrelated to the offence against s 400.3(2A). However, the matter which appears to have been significant for the sentencing judge was the onerous custodial conditions Mr Giang had experienced through the COVID-19 pandemic and what was said by Mr Ballardie, the psychologist who examined Mr Giang, about the effect of that custody, and future custody, on Mr Giang’s mental condition.

57. In circumstances where the same judge sentenced both offenders, where the judge gave express consideration to the issue of parity, where the sentence for the co-offender was very lenient but the sentencing judge provided some reasons for that leniency, I do not consider that the applicant has a justifiable sense of grievance. Moreover, I do not consider that the difference between the two sentences can be described as gross, marked, or glaring. I do not consider that the statement by the sentencing judge that parity was limited was other than a statement of the obvious in the circumstances. His Honour was not saying that he would not give appropriate consideration to the issue of parity, only that the differences between the co-offenders meant that the sentence given to one offender was not likely to bear much relationship to the sentence given to the other offender.

58. I would reject this ground.

Ground 3: His Honour erroneously varied the sentence imposed upon the applicant pursuant to s 19AHA Crimes Act 1914 (Cth), so as to provide for a 3-year period of good behaviour, even though such a period of good behaviour did not form part of the original sentence

59. In the ROS, the sentencing judge noted that the applicant was arrested on 25 August 2021 and spent 13 days in custody before being released to bail. His Honour said he would take that into account when assessing the penalty.

60. When his Honour came to sentence the applicant on 8 December 2022, his Honour commenced the sentence on 5 December 2022 (that is, giving credit only for 3 days of prior custody), and directed that he be released to a recognisance release order after 1 year and 3 months, with the result that the applicant would have been on a recognisance release order for a further 1 year and 3 months.

61. On 9 December 2022, Ms Hurst, a senior federal prosecutor in the Office of Commonwealth Director of Public Prosecutions, sent an email to the applicant’s solicitor attaching a proposed letter to the sentencing judge seeking a correction to the sentence to account for the 13 days of pre-sentence custody. The letter asked the judge to amend his sentencing order to commence the sentence from 29 November 2022, and to direct that the applicant be released after one year and three months to enter into a recognisance “to be of good behaviour for a period of three years to date from 28 February 2024”. The reference to the recognisance for three years arose because the CDPP requested and received a copy of the recognisance release order from the Parramatta District Court and, for reasons which are unclear, that order contained a condition that from the time of release (then 4 March 2024), the offender was to be of good behaviour for a period of three years.

62. Accordingly, on 15 February 2023, the sentencing judge varied the sentencing order he had made on 8 December 2022 to accord with what had been put to him by the consent of both parties. That involved commencing the sentence on 29 November 2022 and providing for his release after 1 year and 3 months on 28 February 2024 to be of good behaviour for 3 years. The result was that the sentence as varied was for a longer period than had originally been imposed.

63. Neither party picked up the error in relation to the 3 year period.

64. Section 19AHA of the Crimes Act 1914 allows a court to amend a sentencing order to rectify an error, defect or ambiguity. Sub-section (1) says that the section applies if a sentencing order reflects an error of a technical nature made by the court or has a defect of form or contains an ambiguity. A note attached to the sub-section says:

For paragraph (a), the following are examples of errors of a technical nature:

A clerical mistake, an accidental slip or omission, a material miscalculation of figures or a material mistake in the description of a person, thing or matter.

65. The applicant submitted that what the sentencing judge did on 15 February 2023 was to increase the severity of the sentence in reliance on s 19AHA of the Crimes Act. The applicant submitted, relying of what was said in R v Perry; R v Perry [2022] SASCA 51 at [19] that the section does not permit reconsideration or alteration of the substance of the result that was reached.

66. In my opinion, that is not what occurred. The sentencing judge was correcting, pursuant to s 19AHA(3), the error he had made in relation to pre-sentence custody by varying the commencement date for the sentence. What then occurred was a further error by the sentencing judge (without fault on his part) in providing for a recognisance release order for 3 years. That error of the judge in varying the order came about by the error in the registry of the court at the earlier time by recording a 3 year period for the recognisance release order when the judge had, on 8 December 2022, imposed an order for 1 year and 3 months.

67. By the time the error of 15 February 2023 was discovered, the present appeal had been brought and ground 3 was put forward to correct that error.

68. The error made by the sentencing judge on 15 February 2023 is amenable to correction under s 19AHA(3). This Court does not have power under that section to correct an error made by another court. The word “court” in subs (3) must be given the same meaning as in sub s (1), that is, the court which made the error.

69. It was submitted by the parties that this Court has power under the Supreme Court (Criminal Appeal Rules) 2021 (NSW). However, the only power to vary orders is found in r 5.4. That rule preserves the inherent jurisdiction of the Court referred to correct accidental errors, but the errors concerned are errors made by this Court and not accidental errors made by court below. The error of 15 February 2023 was not an error amenable to appeal under s 6 of the Criminal Appeal Act 1912 (NSW).

70. Ground 3 is misconceived. Any application to correct the error must be made to the District Court.

Conclusion

71. I propose the following orders:

1. Grant leave to appeal.

2. Dismiss the appeal.

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Decision last updated: 06 October 2023