Nguyen v The Queen - [2010] NSWCCA 132

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Nguyen v R [2010] NSWCCA 132

FILE NUMBER(S):
2008/6763

HEARING DATE(S):
19 May 2010

JUDGMENT DATE:
25 June 2010

PARTIES:
Duy Nguyen (Applicant)
Regina (Respondent)

JUDGMENT OF:
McClellan CJatCL Simpson J Barr AJ

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/6763

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

LOWER COURT DATE OF DECISION:
8 May 2009

COUNSEL:
I Lloyd QC (Applicant)
N Adams (Respondent)

SOLICITORS:
Tsambas & Co (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW – particular offences – drug offences – trafficking marketable quantity of controlled drug (heroin)
CRIMINAL LAW – appeal against severity of sentence – sentence manifestly excessive – applicant high level functionary – error in approach to reduction for guilty plea
CRIMINAL LAW – sentence – sentencing procedure – sentencing statistics and comparisons - range of sentences in R v Wong and Leung not applicable – consideration of decisions under Customs Act 1901 – sentence outside range ordinarily imposed
CRIMINAL LAW – sentence – relevant factors – nature and circumstance of offence – consideration of quantity and nature of offender’s involvement

LEGISLATION CITED:
Criminal Code Act 1995

CATEGORY:
Principal judgment

CASES CITED:
Cameron v The Queen [2002] HCA 6; 209 CLR 339
Carroll v The Queen [2009] HCA 13
House v The King [1936] HCA 40; 55 CLR 499
R v Carroll; Carroll v R [2010] NSWCCA 55
R v Pham [2005] NSWCCA 314
R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340
The Queen v De Simoni [1981] HCA 31; 147 CLR 383
The Queen v Xin Liang [2009] VSCA 18
Trandy v The Queen; Pham v The Queen; Nguyen v The Queen [2009] VSCA 321
Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584

TEXTS CITED:

DECISION:
(i) Leave to appeal granted; (ii) Appeal allowed, sentences quashed; (iii) In lieu thereof, the applicant be sentenced to imprisonment made up of a non-parole period of six years commencing on 15 January 2007 and expiring on 14 January 2013, with a balance of term of 3 years, expiring on 14 January 2016.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/6763
McCLELLAN CJ at CL
SIMPSON J
BARR AJ
25 June 2010

Duy NGUYEN v R

Judgment

McCLELLAN CJ at CL: I agree with Simpson J.
SIMPSON J: The applicant seeks leave to appeal against the severity of a sentence imposed upon him by Judge Freeman in the District Court on 8 May 2009, following his plea of guilty to a single count, brought under s 302.3(1) of the Criminal Code Act 1995 (“the Code”), of trafficking a marketable quantity of a controlled drug (heroin). An offence against the section carries a maximum custodial penalty of imprisonment for 25 years.
The applicant was sentenced to imprisonment for 13 years with a non-parole period of 8½ years.
The offence
The offence was committed over a period of about four months, from early September 2006 to mid-January 2007. The applicant was a member of a syndicate (“the Chicken Man Syndicate”) that arranged distribution of heroin between Sydney and Melbourne. He was actively involved in the organisation of the distribution, as evidenced by numerous telephone calls in which he participated, and in which he discussed drug transactions, price, purity and quantity of drug to be supplied, informed purchasers of the availability of drugs, arranged for couriers to transport drugs from Sydney to Melbourne, and generally oversaw arrangements and reported on the activities of various participants. He met with other members to discuss the arrangements for supplies.
Background
Initially, the applicant was charged with two counts of trafficking. The first count concerned a supply by him on 1-2 October 2006 of two blocks of heroin with a pure quantity of 139.9 grams. (This is less than the marketable quantity.) To this count he entered a plea of guilty in the Local Court.
The second incident related to a further supply, on 13 January 2007, of two blocks of heroin with a pure quantity of 558.4 grams. In respect of this count, he was committed for trial. The trial commenced on 2 February 2009. A voir dire into the admissibility of certain surveillance evidence was conducted. It seems that, before a ruling was made on that question but (according both to the sentencing judge and to the Crown and conceded by senior counsel for the applicant), when it was apparent that the question would be decided against him and the evidence admitted, he indicated that he was prepared to plead guilty to that count also.
As a result, the Crown consolidated the two offences into a single count, and presented an indictment alleging that the applicant trafficked in a marketable quantity of heroin, the quantity being the total involved in the two incidents (698.3 grams).
Personal circumstances
Evidence of the applicant’s personal circumstances emerged from two pre-sentence reports prepared by the Probation and Parole Service, and a psychological report prepared by Mr W John Taylor.
From these the following emerges. The applicant was born in Vietnam, in 1978. He was 28 at the time of the offence, 31 at sentencing. He left Vietnam with his father, as a refugee, when aged about six. His mother and sister remained in Vietnam at that time. The applicant and his father lived in a refugee camp in Thailand for three years, before coming to Australia, sponsored by his grandfather who had already settled here. His father had commenced a de-facto relationship in Thailand, and the applicant went to live with an aunt. When the applicant was about 14 or 15, his mother and sister migrated to Australia, and his parents lived together for a short time, before the marriage ended, because of his father’s violence.
The applicant attended school in Australia, but left at the age of 16, with a very limited ability to read and write English. He is illiterate in Vietnamese.
He had continued employment, in various apparently unskilled roles, for several years. He has not worked since about 2005.
He began to use alcohol at 15, regularly drinking to the point of intoxication. He took up ecstasy use at 16, followed by cocaine and amphetamines. He experienced symptoms of paranoia and hallucination. These symptoms abated when his drug use ceased on his incarceration.
He became a problem gambler from about 18 years.
Mr Taylor assessed him as “moderately depressed”, having rather low self-esteem and an inadequate self image, with a good deal of anger towards himself. He assessed him as having some instability in his personality adjustment, with inadequate impulse control and an inclination to engage in risk taking behaviour, and an above average predisposition to engage in substance abuse. He noted the rather traumatic and abusive life of his early formative years. Notwithstanding that he assessed him as presenting a low risk of recidivism.
Despite his difficult personal history, the applicant’s prior criminal record is confined to a 2004 offence of driving with a low range prescribed concentration of alcohol in his blood, a breach of bail conditions (presumably in respect of the PCA offence) and a set of offences of driving or riding whilst unlicensed or disqualified, and stating a false name or address.
The remarks on sentence
Judge Freeman briefly recounted the background history of the charges, noting the consolidation into a single count of what had previously been two counts. He took this into account when considering the extent (if any) of the reduction in sentence to which the applicant was entitled by reason of his “willingness to facilitate the course of justice” as evidenced by the plea of guilty: Cameron v The Queen [2002] HCA 6; 209 CLR 339. He said:
“There has already, accordingly, been some benefit to the prisoner by having his criminal activities condensed into the one charge. The deduction for his plea is lessened because of that benefit, but it is still appropriate because a plea is always worth something to allow a deduction.” (italics added)
He accordingly specified a reduction of 15 percent.
He referred to a very detailed statement of facts presented by the Crown and noted that the applicant’s then legal representative took exception to only a few statements in that document, largely on the basis that they might indicate that the applicant had been involved in the activities of the Sydney supplier group from a time prior to 3 September 2006 (the date specified in the indictment as the commencement date of the activity the subject of the charge). He noted a submission that those statements were to be seen as including uncharged criminal acts, and that to take them into account would involve a contravention of the principle stated in The Queen v De Simoni [1981] HCA 31; 147 CLR 383.
He accepted a submission made by the Crown that those references were “merely contextual” and relevant to show that it was not open to the applicant to claim that he was to be sentenced for “one uncharacteristic aberration”.
He went on to outline the various activities of the applicant in the course of his involvement. He then assessed him as being, to the Sydney syndicate:
“… a valued, high level functionary whose activities were integral to – indeed indispensable for the distribution of heroin from Sydney to Melbourne.”
He then said:
“Apart from the fact that his plea, which I considered and evaluated earlier in accordance with s 16(a)(g) of the Commonwealth Crimes Act the offender has not shown to the Court any contrition, nor has he otherwise co-operated with law enforcement agencies in the investigation of this offence or other offences.”
He recounted the personal circumstances of the applicant, noted that he had no relevant criminal antecedents, and noted that the usual practice, in relation to offences against Commonwealth law, is to set a non-parole period of up to two-thirds of the total sentence, a practice to which he proposed to adhere. He considered that there were no real parity issues between the applicant and other members of the syndicate, some of whom had been sentenced in Melbourne.
He then proceeded to impose the sentence of 13 years’ imprisonment with a non-parole period of 8½ years to which I have already referred.
The application for leave to appeal
The grounds of the appeal are pleaded as:
“(1)In all the circumstances of the case the sentence imposed upon the appellant was manifestly excessive.
(2)The sentence imposed upon the appellant was wrong in principle.
(3)The sentencing judge, when assessing the appellant’s criminality, breached the principle in The Queen v De Simoni by accepting the prosecutor’s submissions as to the offender’s role and overall criminality …
(4)The sentence imposed was more severe than warranted by a single count of trafficking in a marketable quantity of heroin of 698.3 grams in weight.
(5)In assessing an appropriate sentence the sentencing judge gave insufficient weight to the offender’s plea of guilty and his other subjective circumstances and prospects of rehabilitation (including those subjective matters listed in s 16A(2) of the Crimes Act 1914 (Cth)).
(6)In assessing an appropriate sentence the sentencing judge improperly took into account that the appellant had not co-operated with law enforcement agencies in the investigation of the offence or other offences …”
In written submissions filed on behalf of the applicant ground 2 was said to depend upon “the totality of the submissions made in support of all the other grounds of appeal”.
I see no difference in the grounds pleaded as ground 1 and ground 4, to which I now turn. As was most recently reaffirmed in Carroll v The Queen [2009] HCA 13; and R v Carroll; Carroll v R [2010] NSWCCA 55, grounds of appeal framed as these grounds are framed can only succeed (alone) where error of the last kind identified in House v The King [1936] HCA 40; 55 CLR 499 is established ie that, while no discoverable error is shown, nevertheless the result bespeaks error.
On behalf of the applicant it was submitted that the range of sentences set out by this Court in R v Wong and Leung [1999] NSWCCA 420; 48 NSWLR 340 “still have utility in forming an appropriate sentence in this case”.
I do not accept this. It is only necessary to refer to the range of sentences there specified, which were specifically directed to individuals low in the drug hierarchy. That is not this case. The judge assessed the applicant as being “a high level functionary”.
Commonwealth offences of this kind are of relatively recent origin, and a pattern of sentencing has not yet emerged. Certainly, neither party to this application presented the Court with any material from which such a pattern could be discerned. Two decisions of the Victorian Court of Appeal were mentioned. These were The Queen v Xin Liang [2009] VSCA 18 and Trandy v The Queen; Pham v The Queen; Nguyen v The Queen [2009] VSCA 321. I found these to be of little assistance. The judgment in Liang focussed upon the consequences of a factual error made by the sentencing judge as to one aspect of the appellant’s participation (Liang). Liang pleaded guilty to one count of trafficking in a marketable quantity of a controlled drug (cocaine). The precise quantity involved was not specified, but was described as “at the lower end of the range that constitutes a ‘marketable quantity’”. The offence involved “a considerable amount of planning and perseverance”.
The Court of Appeal found that Liang was involved in the planning of the operation, and in liaising with prospective wholesale purchasers.
The Court held that the sentence of 2 years and 6 months imposed at first instance was not manifestly excessive.
The decision in Tandy involved three separate offenders, only one of whom (Thanh Tung Pham) could be compared to the applicant. He was charged with one count of trafficking in a marketable quantity of heroin, and one count of money laundering. He became involved, over a period of less than three months, in what was obviously a major drug enterprise, but his role was described as that of “principal ‘runner’” for a more significant participant, and a “close and trusted Sydney-based associate”. He delivered samples of heroin to Melbourne and sometimes collected substantial sums of money. He was 19 years of age at the time. On the drug charge, he was sentenced to 2 years’ imprisonment. (The judgment does not disclose any non-parole period.) That sentence was held, on appeal, to be “appropriate”.
In my opinion, the following is of significance.
A marketable quantity of heroin is, by s 314.1 of the Code, 250 grams. A commercial quantity (which, by s 302.2(1), exposes the offender to a sentence of imprisonment for life) is 1.5 kilograms. That means that the total quantity trafficked by the applicant is 2.8 times the marketable quantity, and a little under half of the commercial quantity.
I accept that quantity is far from being the only, or even the predominant, consideration in determining sentence: Wong v The Queen; Leung v The Queen [2001] HCA 64; 207 CLR 584. Nevertheless, it is a not insignificant factor.
An important circumstance in this case is the nature of the applicant’s involvement. As I have said, he was actively employed in communicating with others in the syndicate, and integrally involved in the organisation. The relatively small amount of the drug involved in the actual trafficking to which he pleaded guilty is not indicative of, and is disproportionate to, his activity, and the sentencing judge’s assessment of him as a “high level functionary”.
The head sentence, of 13 years, is just over 50 percent of the maximum available – the maximum being reserved for the worst cases.
Notwithstanding the applicant’s role in the organisation and distribution, I have concluded that these grounds can be decided by reference to the relationship the sentence bears to the maximum. I am of the view that the sentence has been shown to be manifestly excessive. The applicant’s criminality (as a first offender), serious as it was, did not warrant a head sentence of more than half of the prescribed maximum.
Further (although the point was not raised in this way on behalf of the applicant), once the reduction of 15 percent is factored in, the starting point of the sentence was a head sentence of a little over 15 years, and a non-parole period of 10 years.
In my opinion that was a sentence that exceeded the bounds of a proper sentencing discretion.
It is unnecessary to analyse how the excessive sentence came about. It may well be that (as asserted by ground 3) the judge took into account parts of the statement of facts highly suggestive that the applicant was engaged in far more trafficking than was the subject of the single charge. It is unnecessary to decide that.
Error appears to have been demonstrated in the approach to the reduction to which the applicant was entitled by reason of the plea of guilty. I have extracted above the relevant passage. That there had been some benefit to the applicant by having his criminal activities condensed into a single charge does not justify a diminution in the reduction to which he was entitled in accordance with the principles stated in Cameron. The Crown conceded as much. The formulation of the charge lay properly in the realm of the prosecuting authorities. And yet his Honour expressly said that by reason of the formulation of the charge, he diminished the reduction he allowed.
It was legitimate and proper for his Honour to take into account the timing of the plea of guilty. The applicant was entitled to full benefit for that part of the plea that related to the earlier, smaller, supply; in relation to the later, larger, supply, the applicant persisted in a plea of not guilty until it was apparent that the evidence he challenged would be admitted. That the two charges were eventually consolidated into a single one is irrelevant to the assessment of the value of the plea; the timing is not. But the reduction of 15 percent indicates to me that, contrary to his stated intention, his Honour did not in fact diminish the reduction for that reason. In the circumstances, I regard 15 percent as a generous reduction. Anything greater would have been excessive.
As to ground 6, I do not accept that his Honour improperly took into account that the appellant did not cooperate with law enforcement authorities. Again, I have set out, above, the relevant passages from the remarks on sentence. Those passages merely indicate that, apart from the plea of guilty, the applicant was not entitled to any further reduction by reason of assistance or cooperation. No error is demonstrated in this respect.
Some limited guidance may be obtained from the decision of this Court in R v Pham [2005] NSWCCA 314. I say limited guidance because Pham was a case prosecuted and decided under the regime of the Customs Act 1901, before the introduction of the Code. But, in many respects, there are significant parallels.
The offender in Pham was charged with importing not less than what was then called “the traffickable quantity” of heroin. A traffickable quantity was 2 grams. Such an offence, like that with which this Court is presently concerned, carried a maximum custodial penalty of imprisonment for 25 years. The quantity imported by that offender was 244.6 grams (122 times the traffickable quantity). He entered a plea of guilty at an early stage. His personal history was not unlike that of the applicant.
An important difference between Pham and the applicant concerns the roles they played in the enterprise. Pham was held (in this Court) to have been treated as “a low level drug importer” (see [51]).
At first instance Pham was sentenced to imprisonment for nine years, with a non-parole period of five years and six months.
On appeal, this was held to have been manifestly excessive, and was reduced to a sentence of imprisonment for eight years, with a non-parole period of 4 years and 6 months.

The Court was provided with quite detailed sentencing statistics from the Judicial Commission of NSW. These all concerned sentencing under the Code, with particular reference to offences of importing not less than the marketable quantity of heroin. Even taking into account the well-known limitations on the use to be made of such statistics, these are persuasive that the sentence imposed in this case was well outside the range ordinarily imposed.
The longest head sentence, imposed in eight percent of cases, was of 9 years. The longest non-parole period, imposed in five percent of cases, was 6 years.
When refined to take into account only offenders with no prior convictions, and who had pleaded guilty, the longest non-parole period remained 6 years, imposed in four percent of cases. (The Court was not provided with corresponding head sentence statistics.)
The statistics strengthen the view I had already taken, that the sentence imposed in this case was manifestly excessive. That means that the sentence should be set aside and the applicant re-sentenced.
In my opinion, an appropriate starting point is a head sentence of 11 years, with a non-parole period of 7½ years. Applying a reduction of 15 percent, on Cameron principles, yields (rounded) a sentence of a little over 9 years. The appropriate non-parole period is one of 6 years.
In my opinion leave to appeal ought to be granted, the appeal allowed, and the applicant re-sentenced. I propose the following orders:
(i)Leave to appeal granted;
(ii)Appeal allowed, sentences quashed;
(iii)In lieu thereof, the applicant be sentenced to imprisonment made up of a non-parole period of six years commencing on 15 January 2007 and expiring on 14 January 2013, with a balance of term of 3 years, expiring on 14 January 2016.
BARR AJ: I agree with Simpson J.
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LAST UPDATED:
25 June 2010