R v Bui (No 2) - [2016] SASCFC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v BUI (No 2)
[2016] SASCFC 80
Reasons for Sentence of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
1 August 2016
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION
CRIMINAL LAW - SENTENCE
Application by Director of Public Prosecutions for permission to appeal against sentence.
In April 2011, the respondent was sentenced to imprisonment for three years and six months, with a non-parole period of two years, for trafficking in a controlled drug. The sentence was suspended upon her entering into a bond to be of good behaviour for three years.
On 9 August 2013, the respondent’s partner murdered another man. Between 10 and 16 August 2013, the respondent made false statements to the police giving her partner a false alibi.
The respondent ultimately pleaded guilty to assisting an offender and to thereby breaching the suspended sentence bond. A District Court Judge found that there were proper grounds to excuse the breach and not revoke the suspension and for the assist offender offence imposed a conviction without further penalty taking into account time spent in custody and on home detention bail.
On 13 May 2016, this Court granted permission to appeal, allowed the appeal and set aside the Judge’s orders ([2016] SASCFC 53]). The Court found that there were not proper grounds to excuse the breach of the bond and that the sentence for assisting an offender was manifestly inadequate. The Court heard further submissions as to appropriate orders.
Held by the Court:
1. In the unusual circumstances of this case, the delay of over five years between the imposition of the suspended sentence and its revocation amounts to special circumstances justifying a reduction in the term of the original sentence pursuant to section 58(4)(a) of the Criminal Law Sentencing Act 1988 (at [13]).
2.       Term of original sentence reduced to two years and original non-parole period reduced to 12 months (at [14]).
3.       For the assist offender offence, taking into account the time during which the respondent faced a charge of murder, an appropriate starting point is a sentence of imprisonment for 15 months, reduced by one month and 15 days due to the respondent’s guilty plea. After a reduction of six months and 15 days on account of time spent in custody and on home detention bail, sentence of imprisonment for seven months and 15 days imposed (at [20]-[23]).
4.       Non-parole period of 12 months and 15 days fixed (at [24]).
Criminal Law Consolidation Act 1935 (SA) s 241; Criminal Law (Sentencing) Act 1988 (SA) s 10C, s 32, s 58, referred to.
R v Buckman (1988) 47 SASR 303; R v Hunter [2015] SASCFC 84, discussed.

R v BUI (No 2)
[2016] SASCFC 80
THE COURT:

The respondent, Ngoc Linh Bui, was convicted by a Judge of the District Court without further penalty for assisting an offender,[1] taking into account that she had spent five months in custody and almost five months on home detention bail while on remand. The Judge found that there were proper grounds to excuse the breach of a bond earlier entered into as a condition of suspension of a sentence of imprisonment for three years and six months with a non-parole period of two years and refrained from revoking the suspension.
[1] Criminal Law Consolidation Act 1935 (SA) s 241(1)(b).
The Court granted permission to appeal, allowed the appeal and set aside the orders of the Judge.[2] The Court adjourned the further hearing of the appeal for submissions on sentence for assisting an offender and on the potential application of section 58(4)(a) of the Criminal Law Sentencing Act 1988 (SA) (the Sentencing Act).
[2] R v Bui [2016] SASCFC 53.
Due to the unique history of this matter, the manner in which the Judge in the District Court approached the exercise of the sentencing discretion and the nature of the matter as an application by the Director for permission to appeal, the fresh exercise by this Court of the sentencing discretion should not be regarded as establishing any matter of principle or guideline.
Additional material
The respondent obtained a report from a psychologist, Mr Balfour, dated 12 July 2016 based on a psychological assessment of the respondent undertaken by him on 28 June 2016.
Mr Balfour recorded that the respondent told him that she had suffered from depression and anxiety in the past and that in May 2006 she was kidnapped, assaulted and raped, as a result of which she developed Post-Traumatic Stress Disorder. Mr Balfour expressed the opinion that, at the time of the assist offender offence, the respondent had complex mental health problems including Post-Traumatic Stress Disorder. However, he did not consider that these problems contributed to the commission of the offence, which was due rather to misguided loyalty to her partner.
Mr Balfour noted that the respondent had not previously sought psychological or psychiatric treatment, and recommended that she do so in future. Mr Balfour expressed the opinion that the respondent does not currently suffer from any major psychopathology. He expressed the opinion that her general criminogenic profile is in the moderate range of risk (on a scale of low, moderate and high) for coming into further legal conflict during the next 12 months.
Special circumstances to reduce term
Section 58(4)(a) of the Sentencing Act provides:
(4) Where a court revokes the suspension of a sentence of imprisonment, the court—
(a) may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
In R v Buckman,[3] King CJ said:
It is to be remembered that the sentence which is activated is the sentence for the original offence. The special circumstances which must exist to authorise a reduction, must therefore be such as render the original sentence inappropriate for that offence in the special circumstances now existing. The probative court must be able to say that if those circumstances, which I should think would almost always be circumstances personal to the offender, had existed at the time of the passing of sentence, the sentence imposed would have been thereby rendered inappropriate. … Subsection (6) exists to enable the probative court to avoid the injustice of activating a sentence the length of which has been rendered oppressive or inappropriate by subsequent circumstances of a special nature.[4]
and Jacobs J (with whom King CJ agreed) said:
Despite the width of both expressions [proper grounds to excuse and special circumstances to reduce] the distinction, I think, is this: proper grounds for excusing the breach look to the nature of the breach and the circumstances in which it was committed; special circumstances for reducing the sentence, if the breach is not excused, look to some significant change of circumstances since the prisoner was sentenced, which had they existed at that time might have justified a reduced sentence. It seems to me that they will generally be personal factors, of the kind that may dispose a court to greater leniency, which have arisen subsequent to the sentence of imprisonment - ill health or acute domestic problems or obligations spring to mind as examples, but they are only examples, and it is impossible and unwise even to attempt to state exhaustive categories of such special circumstances.[5]
[3] (1988) 47 SASR 303.
[4] At 304.
[5] At 307.
The respondent contends that the fact that she did not receive treatment for her Post-Traumatic Stress Disorder after the suspended sentenced was imposed in April 2011 (when the sentencing Judge anticipated that she would receive treatment because he included as a condition of her bond that she obey her community corrections officer’s directions about such treatment) amounts to special circumstances. The respondent contends that the traumatic effect on her three children of the application for permission to appeal by the Director amounts to special circumstances. The respondent contends that the expiration of five years and three months since she was sentenced for the trafficking offending amounts to special circumstances.
The first matter is incapable of amounting to special circumstances within the meaning of section 58(4)(a). The sentencing Judge left it to the respondent’s community corrections officer and the respondent herself as to whether she undergo treatment. It was not suggested, and there is no basis to find, that there was any causative link between the respondent’s Post-Traumatic Stress Disorder in the commission of the drug trafficking offence in April 2010 or the assist offender offence in August 2013.
The second matter is also incapable of amounting to special circumstances. The effect on the respondent’s children is unrelated to the sentence for the original trafficking offending imposed in April 2011 but rather is the result of the respondent’s assist offender offending committed in August 2013. Shortly before these reasons for judgment were to be delivered, the Court received submissions directly from the respondent and her children concerning the consequences of imprisonment of the respondent. These matters are not so unusual or out of the ordinary as to amount to special circumstances.
In relation to the third matter, the delay between April 2011 and July 2016 is a result of a combination of circumstances. The respondent complied with the conditions of her bond for two years and four months until August 2013. There was then a delay of six months until she was charged with murder and assisting an offender in February 2014. There was then a delay of five months until July 2014 when the Director decided not to pursue the charge of murder. There was then a delay of 15 months as a result of the respondent’s plea of not guilty to assisting an offender. There has since been a delay of nine months as result of the Judge’s finding, which this Court has held to have been erroneous and prematurely made, that there were proper grounds to excuse the respondent’s breach of bond.
Ordinarily, the mere fact of delay, even a lengthy delay, between imposition of a suspended sentence and its revocation does not amount to special circumstances within the meaning of section 58(4)(a). However, in the present case, of the total five years and three months’ delay, the respondent is only responsible for the 15 months while she was pleading not guilty to the assist offender charge. While there is no suggestion that the prosecution were at fault in the delay in laying charges or in deciding not to pursue the charge of murder, nevertheless those delays were not delays for which the respondent was responsible. The length of the total delay coupled with the fact that the respondent was not responsible for four years of that total delay amount to special circumstances in this very unusual case.
In the circumstances, it is appropriate to reduce the head sentence and the non-parole period of the original sentence by 18 months and 12 months respectively sentencing in a term of imprisonment for two years with a non-parole period to 12 months.
Sentence for assisting an offender
The circumstances of the offending are set out in the Court’s previous judgment together with information then available concerning the respondent’s personal circumstances.
Further submissions were made concerning the respondent’s personal circumstances. The respondent has three children aged 16, 15 and 14. They are in school years 11, 10 and 9 respectively. The respondent and her children live with the respondent’s mother, who is 62 years old. The respondent’s mother looked after the three children between February and July 2014 when the respondent was on remand on the charge of murder.
The respondent contends that the effect of imprisonment on her children is a factor that ought to be taken into account in determining an appropriate sentence for assisting an offender. Shortly before these reasons for judgment were to be delivered, the Court received submissions directly from the respondent and her children concerning the consequences of imprisonment of the respondent including the possibility that the respondent may lose her house.
In R v Hunter,[6] Nicholson J (with whom Gray and Peek J agreed) identified the relevant principles in the following terms:
The authorities in this area are to the effect that hardship to the dependents of an accused person is not generally to be taken into account in an accused’s favour other than in extreme or exceptional circumstances. The probable effect on dependants has been said to be a limited aspect of the power to exercise mercy and the hardship must be of such a serious character as to call for a merciful approach to sentencing. It must be a matter that goes beyond the hardship which inevitably results from a bread winner being sent to prison; there must be something that demands the exercise of mercy.[7]
[6] [2015] SASCFC 84.
[7] At [34]. (Citations omitted)
The effect of the respondent’s imprisonment in the present case is not such as to amount to special hardship so as to justify a lower sentence than would otherwise be appropriate.
The respondent also contends that the fact that she had the potential of charges hanging over her head for six months, and then a charge of murder hanging over her head for five months, ought to be taken into account. There is no doubt that the fact that she faced a potential charge of murder and then an actual charge of murder for almost 12 months caused a great deal of anxiety and distress and represented in itself a form of punishment for her conduct in assisting an offender. Given the close connection between the charge of murder and the charge of assisting an offender, it is appropriate to take that punishment into account in determining an appropriate sentence.
In the circumstances, we adopt a starting point of imprisonment for 15 months, from which we deduct one month and 15 days on account of the respondent’s guilty plea, being the 10 per cent maximum allowable under section 10C(2)(f) of the Sentencing Act. This results in a notional sentence (prior to allowance for time spent in custody and on home detention bail) of 13 months and 15 days.
The total notional period of imprisonment, prior to allowance for time spent in custody and on home detention bail, is three years one month and 15 days. We are required by section 32(1)(b) of the Sentencing Act to review and extend the existing non-parole period of 12 months. We extend the non-parole period (prior to allowance for time spent in custody and on home detention bail) to 19 months.
We reduce the notional sentence and the non-parole period by six months and 15 days on account of five months and one day spent in custody on remand and just under five months spent on home detention bail. As result, we impose a sentence of imprisonment for seven months, to be served cumulatively upon the expiration of the original sentence of imprisonment for two years. We extend the non-parole period to 12 months and 15 days. Both the original sentence of imprisonment and the non-parole period are to commence on 18 July 2016, being the date on which the respondent was taken into custody.
Conclusion
The suspension of the sentence of imprisonment imposed on 15 April 2011 is revoked. The term of the suspended sentence is reduced to two years and the original non-parole period is reduced to 12 months. The respondent is sentenced to imprisonment for seven months for assisting an offender, to be served cumulatively upon the expiration of the original sentence of imprisonment for two years. A non-parole period of 12 months and 15 days is fixed in respect of those sentences. Both the original sentence and the non-parole period are to commence on 18 July 2016.