R v Dang
[2004] NSWCCA 269
•30 July 2004
CITATION: Regina v Dang [2004] NSWCCA 269 HEARING DATE(S): 30/07/04 JUDGMENT DATE:
30 July 2004JUDGMENT OF: Spigelman CJ at 1; Hidden J at 2; Buddin J at 17 DECISION: Leave to appeal granted, appeal dismissed. CATCHWORDS: CRIMINAL LAW: Application for leave to appeal against sentence - importing trafficable quantity of heroin - repeal of s16G Crimes Act (Cth) - sentencing judge's approach to appropriate starting point - discount for plea of guilty, assistance to authorities - whether, in any event, sentence excessive. LEGISLATION CITED: Crimes Act 1914 (C'th)
Criminal Appeal Act 1912 (NSW)
Customs Act 1901 (C'th)CASES CITED: R v Bernier (1998) 102 ACrimR 44 at 49
R v Kevenaar & Ors [2004] NSWCCA 210
R v Studenikin [2004] NSWCCA 164
The Queen v El-Hani [2004] NSWCCA 162PARTIES :
Van Ich Dang - Applicant
Crown - Respondent
FILE NUMBER(S): CCA 60137/04 COUNSEL: A Francis - Applicant
MM Cinque - RespondentSOLICITORS: S O'Connor, Legal Aid Commission - Applicant
Commonwealth Director of Public Prosecutions - Respondent
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/11/1255 LOWER COURT
JUDICIAL OFFICER :Bell DCJ
60137/04
Friday, 30 July, 2004SPIGELMAN CJ
HIDDEN J
BUDDIN J
1 SPIGELMAN CJ: I will ask Justice Hidden to deliver the first judgment.
2 HIDDEN J: The applicant, Van Ich Dang, pleaded guilty in the District Court to a change of importing a trafficable quantity of heroin, an offence under s 233B(1)(b) of the Customs Act, carrying a maximum sentence of twenty five years imprisonment. He was sentenced to imprisonment for six and a half years, to commence on the date of his arrest, 8 November 2002, with a non-parole period of four years and four months. He seeks leave to appeal against that sentence.
3 The applicant was born in Vietnam but migrated to this country in 1981. On 8 November 2002 he returned to Sydney after a trip to Vietnam, carrying a quantity of heroin concealed in his shoes. The gross weight of the powder found was just under 400 grams, with a pure heroin content ranging from about forty five percent to seventy percent. The net weight of pure heroin was 218.6 grams. Estimates of its street value varied between $97,000 and about $780,000.
4 The applicant told police that he had been engaged by some people in Vietnam, who were unknown to him, to bring the drug to Australia. He was to have received $5,000. He later told a probation officer and a psychologist, both of whom provided reports, that he committed the offence to raise money for the medical treatment of his nephew in Vietnam, who was seriously ill and who had died by the time of sentence proceedings. Not without some misgivings, the sentencing judge accepted this explanation. His Honour was satisfied that, in any event, his role was that of a courier.
5 The applicant was forty years old at the time of the offence and is now forty one. He has prior convictions for driving offences, but these are of no significance for present purposes. Although it seems that his family background was emotionally secure, he was raised in Vietnam in circumstances of poverty and his eduction was limited. Nevertheless, he had had a satisfactory employment history. As I have said, he migrated to this country in 1981. He did so with his first wife, after having spent some months in a camp at Malaysia in circumstances which he found distressing.
6 He has had three failed marriages, producing children with whom he has lost contact. It was against the background of the anxiety engendered by the breakdown of his third marriage, together with related financial pressures, that the offence was committed.
7 His Honour found the applicant to be genuinely remorseful and described the offence as “a one-off offence by Mr Dang who has no criminal record of any significance or relevance”. His Honour saw his plea of guilty and evidence of his co-operation with the authorities as entitling him to a considerable measure of leniency.
8 It is necessary to examine the way in which the sentence was arrived at, noting that it was passed after the repeal of s16G of the Crimes Act (C’th). His Honour said that, but for that repeal, the starting point would have been imprisonment for eight years. However, given the repeal of the section, the appropriate figure became twelve years. His Honour then discounted that figure by twenty percent for the plea of guilty, producing a figure of nine and a half years. From that figure he deducted a further thirty percent for the applicant’s co-operation with the authorities, leading to the sentence of six and a half years which was passed. He then assessed a non-parole period of two-thirds of that sentence, four years and four months, in accordance with the normal proportion recognised in R v Bernier (1998) 102 ACrimR 44 at 49.
9 His Honour passed sentence before the decisions of this Court in R v Studenikin [2004] NSWCCA 164 and R v Kevenaar and Ors [2004] NSWCCA 210, dealing with the effect of the repeal of s16G of the Crimes Act. As it happens, his translation of the starting point of eight years to twelve years in the light of that repeal is consistent with those authorities: see, in particular, Kevenaar per Hulme J (with whom Simpson and Howie JJ agreed) at [44]ff.
10 In light of those decisions counsel for the Appellant, Ms Francis, has modified her submissions and has refined her argument in this way: she contends that in determining a pre-repeal of s 16G starting point of eight years, and then increasing it to twelve years in the light of the repeal of the section, his Honour fell into error in that he approached the matter in a mathematical way.
11 She observed that in Studenikin Howie J, who gave the leading judgment, emphasised that no mathematical approach ought to be adopted. It must be said, however, that in Kevenaar Hulme J, with whom Howie J and Simpson J agreed, also said that no mathematical approach ought to be adopted but observed that generally an appropriate adjustment would be in the order of fifty percent, the very adjustment which his Honour made in the present case.
12 It is not apparent to me from his Honour’s remarks that his Honour did approach the matter in a mathematical way, without an eye to the merits of the case, and the way in which he did arrive at a starting point of twelve years is entirely consistent with the approach to be found in Studenikin, and more particularly in Kevenaar.
13 Accordingly, I do not find that challenge to the sentencing process made good. Ms Francis realistically conceded that it was upon this point that the merit of the application hangs. She acknowledged that, even under the s 16G regime, the sentence in fact imposed upon the applicant could not be said to have been manifestly excessive.
14 She also acknowledged realistically that the combined discount of fifty percent for the plea of guilty and for the applicant’s co-operation with the authorities was very generous indeed. There was, of course, a measure of overlap between the leniency for a plea of guilty and for the assistance to the authorities. The approach of courts to discounts for assistance was recently examined by Howie J in The Queen v El-Hani (2004) NSWCCA 162, and it is apparent from that examination that the combined discount in the present case is, frankly, overly generous.
15 Accordingly, I do not find that the only error urged upon the court has been established, and in any event, in terms of s 6(3) of the Criminal Appeal Act, I am not persuaded that any other sentence was warranted in law and ought to have been passed. Given that the case was affected by the recent repeal of s 16G of the Crimes Act, I would grant leave to appeal but I would dismiss the appeal.
16 SPIGELMAN CJ: I agree.
17 BUDDIN J: I also agree.
18 SPIGELMAN CJ: The orders are as indicated by Justice Hidden.
Last Modified: 08/06/2004
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