Nguyen v The Queen
[2013] VSCA 317
•19 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0064
| DUC QUY NGUYEN |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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| JUDGES | WEINBERG and COGHLAN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 October 2013 |
| DATE OF JUDGMENT | 19 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 317 |
| JUDGMENT APPEALED FROM | DPP v Nguyen (Unreported, County Court of Victoria, Judge Patrick, 26 October 2012) |
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CRIMINAL LAW – Application for extension of time within which to file application for leave to appeal against sentence – Lengthy delay in instituting appeal largely brought about by dilatoriness of applicant’s former legal advisers – Applicant pleaded guilty to trafficking large commercial quantity of drug of dependence (Cannabis L), theft of electricity and dealing in proceeds of crime – Sentenced to ten years’ imprisonment with non-parole period of seven years – Applicant suffered from major depressive disorder and adjustment disorder – Sentencing judge discounted weight to be given to these conditions because substantially product of applicant’s own offending – Whether sentencing judge erred in application of R v Verdins – Specific error demonstrated – Appeal allowed – Resentenced to nine years’ imprisonment with non-parole period of six years.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr T Kassimatis | Valos Black & Associates |
| For the Crown | Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
WEINBERG JA
COGHLAN JA:
The applicant, having had his application for an extension of time within which to file a notice of application for leave to appeal against sentence refused by the Registry, has elected to have that application determined by the Court of Appeal, pursuant to Rule 2.24 of the Supreme Court (Criminal Procedure) Rules 1998.
On 26 October 2012, after pleading guilty to a number of drug-related charges, the applicant was sentenced as follows:
Charge on
Indictment
B10971853Offence Maximum Sentence Cumulation 1 Traffick large commercial quantity of drug of dependence (Cannabis L) Life [Drugs Poisons and Controlled Substances Act 1981 s 71] 9 years Base 2 Theft 10 years [Crimes Act 1958 s 74] 12 months 3 months 3 Theft 10 years [Crimes Act 1958 s 74] 6 months 1 month 4 Deal in proceeds of crime 15 years [Crimes Act 1958 s 194(2)] 2 years 8 months Total effective sentence: 10 years Non-parole period: 7 years s. 6AAA declaration:
· TES: 14 years
· NPP: 11 years
It was not until 2 May 2013, some six months or so after he had been sentenced, that the applicant first sought to file an application for an extension of time, which, if granted, would have enabled him to seek leave to appeal against sentence. That same day, the applicant filed a notice of application for leave to appeal against sentence which relied solely upon the following ground:
The sentencing discretion miscarried as a result of the Judge’s having found that the additional burden of imprisonment “should operate in only a very minor way in mitigation” because the factors that contributed to the Applicant’s depression were “brought on by [his] own actions”. [sic]
In an affidavit sworn on 1 May 2013, the applicant’s solicitor, Mr James Valos, attempted to explain why there had been such a lengthy delay in instituting the appeal. Mr Valos deposed that when the applicant changed solicitors in early January 2013, ‘steps were taken to get the papers from [the applicant’s former solicitors] and, ultimately, [Mr Valos] received all relevant papers shortly after 18 February 2013’. Mr Valos then sought audio and transcript materials relating to the matter which he received on 25 February 2013. Mr Valos briefed counsel in mid-March.
We must say that we can well understand why the applicant was refused an extension of time by the Registry. In our view, the explanation proffered for what is obviously a considerable delay was less than satisfactory. Mr Valos knew that the matter was already out of time when his firm first received instructions to act. While the initial delay between early January and 25 February 2013 can readily be excused, the same cannot be said of the period between late February and early May of this year. As indicated, when Mr Valos took over the file, he was well aware of the fact that the matter was already out of time. That should have caused him, and any counsel briefed by his firm, to approach this case with a profound sense of urgency. It is, after all, a relatively straightforward sentence appeal raising a single ground summarised in a written case that runs to only four pages. It strikes us as somewhat bizarre that the appeal documents were not filed for a further period of two months.
Putting that matter to one side for the moment, it is necessary in considering whether to extend time, to form a view as to the merits of the proposed appeal.
The applicant, who was born in Vietnam, came to this country in 1997 in order to study English. He established a network which, between 26 December 2010 and 12 April 2011, cultivated and trafficked more than 500 kilograms of cannabis. The applicant oversaw the management of seven crop houses from which he operated the sophisticated hydroponic enterprise. He owned two of the properties used as crop houses, while others were owned by persons associated with him (including his wife). In the course of police surveillance, the applicant was observed making numerous journeys between the seven crop houses, transporting hydroponic equipment and dumping large quantities of cannabis by-product and other materials at various tips.
In addition, the applicant stole some $80,969 worth of electricity that was used in the cultivation of the various crops and possessed $149,125 being the proceeds of crime.
The applicant had no prior convictions. The sentencing judge accepted that he had shown some remorse.
In sentencing the applicant, her Honour noted that she had taken into account his personal circumstances. She derived those circumstances from what counsel said on the applicant’s behalf, and from the exhibits tendered by the defence.
At the time of sentencing, the applicant was aged 39. In 2004, he met the woman who became his wife, and they married in 2005. In 2009, the applicant sponsored his teenage son from a previous relationship to come to Australia. The applicant and his wife have two young daughters.
It seems that the applicant fell into debt as a result of a gambling addiction. It was in that context that he became involved in the cultivation operation.
Her Honour had regard to a forensic psychological report dated 26 August 2012, tendered on behalf of the applicant, in which it was suggested that he had developed a major depressive disorder and an adjustment disorder. However, there was no suggestion that the applicant suffered from any relevant mental impairment to the point where issues of moral culpability were affected.
Defence counsel did not seek to rely, in terms, upon any of the principles set out in R v Tsiaras[1] or R v Verdins.[2] However, her Honour noted that the applicant did rely upon a passage from Chandler v The Queen[3] which, in substance, replicated the fifth Verdins principle. The passage in Chandler reads as follows:[4]
We accept that a person suffering from severe clinical depression would find the experience of imprisonment more burdensome than a person in normal health.
[1][1996] 1 VR 398 (‘Tsiaras’).
[2](2007) 16 VR 269 (‘Verdins’).
[3](2010) VSCA 338 (‘Chandler’).
[4]Ibid, 46.
The sentencing judge commented on a number of matters which she considered to operate in mitigation of sentence. These included the applicant’s ‘cooperation, plea of guilty, lack of prior criminal history, remorse and efforts since [his] incarceration indicat[ing]…good prospects for rehabilitation’. Her Honour emphasised that she was sentencing the applicant ‘on that basis’.
Her Honour further remarked:
…I consider that you will find imprisonment more difficult because of your depressed state of mind. That in my view should operate in only a very minor way in mitigation of sentence given that a number of the stressors which contribute to your depression have been brought on by your own actions.
Mr Kassimatis, who appeared on behalf of the applicant, submitted that in that passage her Honour fell into specific error by disregarding, or at least undervaluing, the fifth Verdins limb merely by reason of the fact that the applicant’s major depressive disorder had developed as a result of his offending.
Mr Kassimatis noted that Verdins makes it clear that impaired mental functioning, whether temporary or permanent, is relevant to sentencing because:[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.
[5]Verdins (2007) 16 VR 269, 276 [32].
In Verdins, this Court restated the guiding principles relating to the proper exercise of the sentencing discretion where consideration of the offender’s mental state is necessary. These principles were originally laid down a decade earlier in Tsiaras. Following Tsiaras, courts from time to time found themselves grappling with whether depression satisfied the requirement of a ‘serious psychiatric illness not amounting to insanity’.[6] The Court in Verdins clarified the issue, stating that:[7]
The sentencing considerations identified in R v Tsiaras are not – and were not intended to be – applicable only to cases of ‘serious psychiatric illness’. One or more of those considerations may be applicable in any case where the offender is shown to have been suffering at the time of the offence (and/or to be suffering at the time of sentencing) from a mental disorder or abnormality or an impairment of mental function, whether or not the condition in question would properly be described as a (serious) mental illness.
[6]Tsiaras [1996] 1 VR 398.
[7](2007) 16 VR 269, 271 [5].
The Court continued:[8]
The sentencing court should not have to concern itself with how a particular condition is to be classified. Difficulties of definition and classification in this field are notorious. There may be differences of expert opinion and diagnosis in relation to the offender. It may be that no specific condition can be identified. What matters is what the evidence shows about the nature, extent and effect of the mental impairment experienced by the offender at the relevant time. [citations omitted]
[8]Ibid 271 [8].
The Court in Verdins plainly did not refer to (let alone exclude) the situation where the accused, who is the author of his or her own misfortune, develops a mental illness, including depression, arising out of his or her own offending. Quite clearly, the Court found that the fifth proposition in Tsiaras, that ‘psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person of normal health’, did not require explanation or qualification. According to the Court:[9]
Self-evidently, a prisoner suffering from (for example) severe depression will find each day in prison more of a burden than would a person in normal health.
[9]Ibid 276 [28].
For the purpose of this limb of Verdins, it is of no consequence how, or why, that mental impairment set in. The sentencing judge need only ask whether such impairment exists, and if it does, whether as a result, a given sentence will weigh more heavily on the offender than it would on a person in normal health. To approach the matter otherwise would be wrong in principle, as well as contrary to authority. It would conflate this limb of Verdins with other mitigating factors such as delay which, on ordinary principles, can properly be discounted if brought about by the accused’s own actions.
The sentencing judge accepted that the applicant would find imprisonment significantly more burdensome because of the depression from which he suffered. Therefore, the fifth limb of Verdins clearly applied. There was no justification for reducing the weight to be accorded to that factor (to the point where it would operate in only a ‘minor way’) on the basis that ‘a number of the stressors’ that had contributed to the applicant’s depression had been ‘brought on’ by his own actions.
In our view, the sentencing judge’s approach to this issue revealed specific error of a kind that must be regarded as material. Her Honour accepted that the applicant suffered from a major depressive disorder which, clearly, went far beyond the ordinary form of depression associated with anxiety at the thought of incarceration. In the particular circumstances of this case, that major depressive disorder had to be given due weight. It follows that the sentencing discretion was vitiated. In our view, the applicant should be resentenced.
That said, there is little cause to reduce the total effective sentence by any great amount. The offending was obviously extremely serious, and merited a significant term of imprisonment. General deterrence was, and is, of primary importance in matters of this kind.
We note that counsel who appeared for the Crown on the plea put forward, as a total effective sentence, a MacNeil-Brown[10] range of 11 to 15 years with a non-parole period of nine to 13 years. Those figures strike us, as they obviously did her Honour, as too high. Ms Dalziel, who appeared before this Court on behalf of the Crown, though she did not appear on the plea, very properly conceded that the Crown range below could not be justified. We interpolate to say that this is not the first time that this Court has encountered that situation.
[10](2008) 20 VR 677.
On the other hand, counsel who appeared for the applicant on his plea, put forward, as a range, a total effective sentence of 7 to 9 years, which more closely approximates (at least at the upper end), what we would regard as an appropriate sentence for this offending.
Mr Kassimatis, with his customary good sense, recognised that the applicant could expect, at best, only a relatively modest reduction in the total effective sentence imposed below. The applicant ran a highly organised drug operation involving multiple properties and cultivated more than 500 kilograms of cannabis. Were he not suffering from the major depressive disorder as diagnosed, so as to cause imprisonment to weigh more heavily upon him, we would have thought that a sentence of 10 years’ imprisonment would have been about right.
However, in the light of Verdins, and its application to the applicant’s situation, we consider that he should be granted the extension of time sought, as well as leave to appeal.
We would allow the appeal, set aside the sentences imposed below, and in lieu thereof, re-sentence the applicant as follows:
Charge on
Indictment
B10971853Offence Maximum Sentence Cumulation 1 Traffick large commercial quantity of drug of dependence (Cannabis L) Life [Drugs Poisons and Controlled Substances Act 1981 s 71] 8 years Base 2 Theft 10 years [Crimes Act 1958 s 74] 12 months 3 months 3 Theft 10 years [Crimes Act 1958 s 74] 6 months 1 month 4 Deal in proceeds of crime 15 years [Crimes Act 1958 s 194(2)] 2 years 8 months Total effective sentence: 9 years Non-parole period: 6 years s. 6AAA declaration:
· TES: 13 years
· NPP: 10 years
We would add the following. Registry officials are constantly trying to make the point to the profession that significant delays of the kind that have plagued this case will not be tolerated. We entirely agree.
We accept that it would be wrong, in this instance, to prevent the applicant from vindicating a legitimate challenge to the exercise of the sentencing discretion because of the dilatoriness of his legal advisers in instituting this appeal. Nonetheless, we would remind those who practise regularly before this Court that time limits are not advisory. They are imposed for good reason and they are intended to be observed.
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