R v Bac Ai Nguyen Vu
[2009] VSCA 231
•9 October 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 940 of 2008
| THE QUEEN |
| v |
| BAC AI NGUYEN VU |
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| JUDGES | NEAVE, REDLICH JJA and LASRY AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 31 August 2009 |
| DATE OF JUDGMENT | 9 October 2009 |
| MEDIUM NEUTRAL CITATION | [2009] VSCA 231 |
| JUDGMENT APPEALED FROM | R v Nguyen Vu Bac Ai (Unreported, County Court of Victoria, Judge Duckett, 27 November 2008) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Applicant pleaded guilty to two counts of obtaining property by deception and found guilty by a jury of five counts of handling stolen goods and one count of obtaining property by deception – Offences arose out of single act of receiving stolen goods and multiple acts of selling those stolen goods – Whether double punishment – Whether sentences imposed required to be proportionate to number or value of goods subject of the count – Application granted and appeal allowed – Applicant re-sentenced – Mitigating factors including no prior convictions, good work record, good prospects of rehabilitation, making of reparations and inability to pursue career.
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| Appearances: | Counsel | Solicitors |
| For the Crown | Mr S M Cooper | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Applicant | Mr M J Croucher | Luat Tran & Associates |
NEAVE JA:
The applicant, Bac Ai Nguyen Vu, was presented in the County Court on 20 counts of handling stolen goods and on 15 counts of obtaining property by deception. He pleaded guilty to count 25 and count 31, each of which were counts of obtaining property by deception He was found guilty by a jury on five counts of handling stolen goods (counts 24, 26, 28, 30 and 34) and on one other count of obtaining property by deception (count 29).
The maximum penalty for handling stolen goods is imprisonment for 15 years and the maximum penalty for obtaining property by deception is imprisonment for 10 years.
After hearing a plea in mitigation of sentence, the judge sentenced the applicant as follows.
Count Offence Term Cumulation 24 Handling stolen goods 4 months’ imprisonment 1 month on count 29 and all other sentences imposed 25 Obtaining property by deception 2 months’ imprisonment Half a month on count 29 and on all other sentences imposed 26 Handling stolen goods 4 months’ imprisonment
1 month on count 29 and on all other sentences imposed 28 Handling stolen goods 4 months’ imprisonment 1 month on count 29 and on all other sentences imposed 29 Obtaining property by deception 6 months’ imprisonment 30 Handling stolen goods 4 months’ imprisonment 1 month on count 29 and on all other sentences imposed 31 Obtaining property by deception 2 months’ imprisonment Half a month on count 29 and on all other sentences imposed 34 Handling stolen goods 4 months’ imprisonment 1 month on count 29 and on all other sentences imposed
This amounted to a total effective sentence of 12 months. His Honour ordered that 8 months of that sentence be suspended for a period of 2 years. An immediate sentence of 4 months’ imprisonment was imposed.
Under s 6AAA of the Sentencing Act1991 his Honour declared that, if the applicant had not pleaded guilty to counts 25 and 31, he would have imposed sentences of four months’ imprisonment on each count and ordered some concurrency so that a total effective sentence of four months’ imprisonment on those counts would have been imposed.
The applicant now appeals against his sentence, having filed a notice of application for leave to appeal on 5 December 2008. On the same day, the applicant also filed a notice of intention to make application for bail, which was granted on 16 December 2008 on certain special conditions, pending the hearing of the appeal.
Background to the offending
The counts of handling stolen goods (counts 24, 26, 28, 30 and 34) arose out of the applicant’s purchase of ten computer notebooks from Mr Quang, for approximately $7,000. The computers had been stolen from the Royal Melbourne Institute of Technology and were all sold to the applicant at the same time. The first four of these counts related to computers recovered from people who had purchased them from the applicant. Count 34 related to four computers that the police recovered when they searched the applicant’s home.
The applicant sold the computers on eBay. Count 25 related to the dishonest obtaining of $3,139 by deception, by selling two computers to Mr Crisp, who bought them on behalf of a volunteer organisation. One of those computers was confiscated by the police before being sent to Mr Crisp and the applicant later refunded Mr Crisp the amount he had paid. The other counts of obtaining property by deception (counts 29 and 31) related to the dishonest sale of a computer to Mr Zhang for $1,300 and to Mr Bullo, who paid $1,899, respectively. As I have said, the applicant pleaded guilty to counts 25 and 31.
The sale to Mr Zhang occurred when a previous purchaser returned computers to the applicant after becoming suspicious. The applicant then re-sold one of those computers to Mr Zhang. The applicant refunded Mr Bullo the amount he had paid. In the proceedings below he consented to a restitution order in favour of Mr Zhang.
The applicant was the son of Vietnamese migrants, who fled to Australia following the war in Vietnam. He was aged 24 when he committed the offences and was then studying at Holmesglen TAFE. As a result of his conviction he will no longer be able to practice as an accountant, as he intended.
He worked in a variety of jobs while he was a student. The sentencing judge had before him a reference from Mr Trevor Smith, Production Manager of Technicolor, which said that he was ‘a reliable, hard working and responsible operator on our night shift’. His Honour also had a reference from the applicant’s mother which referred to the difficulties and anguish experienced by his family as a result of his offending.
Grounds of appeal
Initially the applicant relied on five grounds of appeal, the fifth of which claimed that the sentence was manifestly excessive. At the hearing of the appeal, counsel for the applicant said that grounds 1 to 4 should be treated as particulars of the manifest excess ground. It was alleged that his Honour had given undue weight to the principle of general deterrence (ground 1 ), that he had given no or insufficient weight to the fact that the applicant was to be sentenced as a first offender (ground 2), that he had given little or no weight to the applicant’s rehabilitation (ground 3) and that he had given insufficient weight to the fact that the applicant had made full restitution of the money he had wrongfully obtained (ground 4).
Subsequently, the applicant’s counsel sought and obtained leave to add a sixth ground of appeal, expressed as follows:
The learned judge erred:
(a)in passing the same sentence on each of the counts of handling stolen goods (counts 24, 26, 28, 30 and 34) and in making the same direction for cumulation in respect of each such sentence;
(b)in failing to take into account when fixing the individual sentences or the directions for cumulation on those counts, the fact that all computers the subject of those counts were received at the same time.
I deal first with ground 6.
Ground 6 - treatment of handling counts
Counsel’s submissions
In support of ground 6, counsel for the applicant submitted that the sentences imposed by his Honour on the handling counts and the orders for cumulation relating to those counts disregarded the fact that all of the computers were purchased by the applicant at the same time. Counsel did not submit that it was an abuse of process for the applicant to have been charged with individual counts of handling stolen goods arising out of a single purchase, but contended that in such circumstances an alleged offender would normally be charged with a single count of handling stolen goods. Counsel submitted that his Honour’s failure to take account of the fact that the counts arose out of one act of handling had resulted in the applicant receiving multiple punishments for a single act of criminal behaviour. Counsel for the applicant relied on Pearce v The Queen[1] and R v Sari,[2] to support his contention that the court should not take an excessively subtle or refined view[3] in deciding whether a person had been doubly punished for a single act.
[1](1998) 194 CLR 610.
[2][2008] VSCA 137, [57] (Lasry AJA).
[3](1998) 194 CLR 610, 623 (McHugh, Hayne and Callinan JJ).
Counsel for the applicant further contended that his Honour had erred by imposing the same sentence on the counts relating to the handling of a single computer (ie counts 24, 26, 28 and 30) as on the count relating to the handling of four computers (ie count 34). Counsel submitted that the imposition of the same individual sentences on counts 24, 26, 28 and 30 could not be explained by the fact that the applicant had also committed separate offences of obtaining property by deception relating to these computers.
Counsel said that if his Honour had increased the sentences on the counts of handling individual computers because there were associated counts of handling property by deception, then this would also have amounted to double punishment. Further, this could not be the reason that his Honour had imposed these sentences on counts 24, 26, 28 and 30 because count 26, an individual handling count, did not have a counterpart count of obtaining property by deception. Nevertheless the applicant had received the same sentence on that count as for counts 24, 28 and 30.
Counsel submitted that his Honour’s failure to give any reasons for imposing the same sentence on counts 24, 26, 28 and 30, combined with the sentences imposed for handling before on-selling those computers, demonstrated that his Honour had not given adequate weight to the overlapping nature of the handling offences, the issue of double punishment or the fact that count 34 related to four computers. Counsel submitted that his Honour should have imposed lesser sentences on counts 24, 26, 28 and 30. On that basis, it was submitted that an error was established and that the sentencing discretion was reopened.
Counsel for the respondent submitted that, contrary to the submission of the applicant, it was not uncommon for a person to be presented on separate counts of handling stolen goods, arising out of a single transaction or event. Count 34 related to the four computers recovered by police from the applicant’s premises, whilst the other handling counts related to the handling of computers recovered from individual purchasers. A failure to record a conviction on counts 24, 26, 28 and 30, and to sentence the applicant to a term of imprisonment on those counts would not have given adequate weight to the full extent of his criminality. Further, the mere fact that count 34 involved four computers did not necessarily require that lesser terms of imprisonment should be imposed on counts 24, 26, 28 and 30.
It was submitted that the total effective sentence of 12 months appropriately reflected the criminality involved in the handling and obtaining property by deception counts. Counsel contended that the Court should not have regard to structural arguments of the kind made by the applicant, unless they revealed an error in the instinctive sentencing synthesis.[4]
[4]R v Belhaj [2006] VSCA 153, [7] (Callaway JA); R v Samia [2009] VSCA 5, [9] (Nettle JA); R v Alimic [2006] VSCA 273, [12] and [15] (Nettle JA).
Conclusion on ground 6
In my opinion ground 6 is made out. Because the handling counts related to different computers, the applicant could not have claimed that a conviction on one of these counts amounted to a plea in bar to the others. However in Pearce v R,[5] Mc Hugh, Hayne and Callinan JJ said that:
To the extent to which two offences of which an offender stands convicted contains common elements, it would be wrong to punish that offender twice for the commission of elements that are common.[6]
… The identification of a single act as common to two offences may not always be … straightforward. It should however be emphasized that the inquiry is not to be attended by ‘excessive subtleties and refinements.’ It should be approached as a matter of common sense, not as a matter of semantics.’[7]
[5](1998) 194 CLR 610.
[6]Ibid 623.
[7]Citations omitted.
In R v Orgill[8] an appellant was convicted of, amongst other things, the offence of stalking and two counts of burglary and theft. He was sentenced to 4 years’ imprisonment on the stalking count, to 18 months’ and 24 months’ imprisonment respectively on the two burglary counts and to 6 months’ and 8 months’ imprisonment respectively on the two theft counts. The sentencing judge ordered that two months of the sentence imposed on the first count of burglary and four months of the sentence imposed on the second count of burglary be cumulated on the sentence imposed for stalking. The offences of burglary and theft were committed in the same period as the stalking offence and the entry into the victim’s home and the theft of her property were part of the course of conduct constituting the stalking.
[8][2007] VSCA 236.
This Court held that the orders for cumulation relating to the burglary counts amounted to double punishment of the appellant, even if the required physical acts[9] for the burglary and theft counts were different from the acts required to make out the offence of stalking. Redlich JA said that:
It is arguable that entry to the premises for the purposes of the offence of stalking is of a different character to entry for the purposes of the offence of burglary. The same may be said of the actus reus of the offence of theft and interference with the victim’s property in the offence of stalking. But if there be a distinction in the present circumstances between acts constituting the actus reus of those offences, it was a distinction which should not be drawn. As the joint judgment of McHugh, Hayne and Callinan JJ and the judgment of Gummow J in Pearce v The Queen illustrates, to the extent that offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. That has been understood to mean that the offender is not to be punished twice for the same act. The joint judgment in Pearce cautioned against the use of ‘excessive subtleties and refinements’ in determining whether the same act is common to two offences and that the task should be approached with common sense.
In my view, the order for cumulation amounted to double punishment for each of those acts had already been taken into account in fixing the sentence on the count of stalking. The sentence imposed on that count and the remarks of the sentencing judge shows that the appellant’s invasion of the victim’s residence with the intent to steal personal property of the victim and the subsequent theft of the victim’s property were reflected in the sentence of four years’ imprisonment fixed on the count of stalking. To characterise the appellant’s acts of entry to the premises differently for the counts of stalking and burglary was to engage in excessive refinement of the feature common to both counts. As her Honour fell into error in this regard, the sentencing discretion must be reopened.[10]
[9]I have used that expression rather than ‘actus reus’ although it is not a precise equivalent.
[10][2007] VSCA 236, [17]-[18] (citations omitted).
In this case I consider that the individual sentences and the orders made under which one month of each of the sentences imposed on the handling counts was cumulated on each other and on count 29 amounted to double punishment, because they arose out of the applicant’s single act of purchasing the computers from Mr Quang.[11] Accordingly it is necessary to re-sentence the applicant.
[11]See also R v Sari [2008] VSCA 137.
Because I have reached that conclusion, it is unnecessary to consider whether his Honour erred by imposing the same sentence in relation to the handling of the single computers (counts 24, 26, 28 and 30) as for the handling of four computers (count 34). My tentative view is that, leaving aside the double punishment issue, this did not amount to sentencing error. In R v Belhaj,[12] where the applicant argued that the individual sentences imposed on the counts of burglary and theft did not adequately reflect the differences in the value of the property stolen, Callaway JA said that ‘[o]verworked trial judges cannot be expected to fine-tune every sentence. Care is one thing but pedantry is another. The latter is a waste of judicial resources. In the present case the substance of the matter is that the applicant broke into two stores and stole what he could find.’ Having regard to the relatively small differences in the amounts involved in relation to each count, I am inclined to think it would impose an impossible burden on sentencing judges to require fine distinctions between the value of stolen property which has been handled in circumstances such as these.
[12][2006] VSCA 153, [7].
As the second part of ground 6 has been made out, it is also unnecessary to consider whether his Honour erred by imposing a manifestly excessive term of imprisonment.
Re-sentencing the applicant
The applicant’s circumstances have been briefly described above. The other matters which must be taken into account in his favour are as follows.
The applicant:
·has no prior convictions and a good work record;
·has shown remorse for his actions and is concerned about the impact on his family and fiancée;
·made reparation to those who purchased computers from him;
·pleaded guilty to two of the three counts of obtaining property by deception ( counts 25 and 31);
·cannot realise his ambition of qualifying as an accountant, because of his convictions for dishonesty offences; and
·comes from a stable family background and appears to have good prospects of rehabilitation.
In addition the applicant is expecting a child with his partner in November this year.
Having regard to these matters I would re-sentence the applicant as follows:
Count Offence Term Cumulation 24 Handling stolen goods 2 months’ imprisonment 25 Obtaining property by deception 1 month’s imprisonment Two weeks imprisonment on count 34 and on all other sentences imposed 26 Handling stolen goods 2 months’ imprisonment
28 Handling stolen goods 2 months’ imprisonment 29 Obtaining property by deception 7 months’ imprisonment 5 months’ imprisonment on count 34 and on all other sentences imposed 30 Handling stolen goods 2 months’ imprisonment
31 Obtaining property by deception 1 month’s imprisonment Two weeks on count 34 and on all other sentences imposed 34 Handling stolen goods 6 months’ imprisonment Base sentence This amounts to a total effective sentence of 11 months and 4 weeks’ imprisonment. I would suspend the whole of that sentence for a period of 2 years from today.
Under s 6AAA of the Sentencing Act 1991 I declare that if the applicant had not pleaded guilty to counts 25 and 31, I would have sentenced him to 4 months’ imprisonment on each count and ordered that 3 months of the sentence imposed on count 5 be cumulated on the sentence imposed on count 29.
REDLICH JA:
I agree with the reasons of Neave JA and the orders she proposes.
LASRY AJA:
I agree with Neave JA that leave should be given to add Ground 6 to the Notice of Appeal, and that the appeal should be allowed.
I agree with her Honour that the sentences imposed for the counts of handling, being Counts 24, 26, 28, 30 and 34, are susceptible to the conclusion that, bearing in mind the unusual circumstances of this offence, there may have been double punishment.
I also agree that that the sentencing discretion having been re‑opened the appropriate sentence to impose is 11 months and 4 weeks’ imprisonment fully suspended.
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