R v Diep
[2000] NSWCCA 472
•22 November 2000
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R v Diep [2000] NSWCCA 472
FILE NUMBER(S):
60715 of 1999
HEARING DATE(S): 4 October 2000
JUDGMENT DATE: 22/11/2000
PARTIES:
David Quoc Diep (applicant)
Regina (respondent)
JUDGMENT OF: Simpson J Hidden J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 99/11/0606
LOWER COURT JUDICIAL OFFICER: Viney DCJ
COUNSEL:
P Byrne SC (applicant)
Robert Hulme (respondent)
SOLICITORS:
Legal Aid Commission (applicant)
Director of Public Prosecutions (respondent)
CATCHWORDS:
CRIMINAL LAW - SENTENCE - supplying heroin - co-offender sentenced later by another judge - parity of sentence
LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Crimes (Sentencing Procedure) Act 1999
DECISION:
Appeal allowed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60715 of 1999
SIMPSON J
HIDDEN J
Wednesday 22 November 2000
Regina v David Quoc Diep
Judgment
SIMPSON J: I agree with Hidden J.
HIDDEN J: The applicant, David Diep, pleaded guilty in the District Court before Viney DCJ to two charges of supplying heroin (s25(1) of the Drug Misuse and Trafficking Act 1985). Both charges involved amounts in excess of the indictable quantity and each carries a maximum sentence of imprisonment for fifteen years. He asked his Honour to take into account offences of possessing a prohibited weapon and possessing ammunition on a Form 1. On the first charge, Judge Viney sentenced him to imprisonment for a fixed term of two and a half years, to date from 27 May 1999, the date he went into custody. On the second charge, taking into account the Form 1 matters, his Honour sentenced him to imprisonment for five years, comprising a minimum term of three years, also to date from 27 May 1999, and an additional term of two years.
The applicant seeks leave to appeal against those sentences. He was also sentenced to a fixed term of imprisonment for six months on a charge of affray, to which he had earlier pleaded guilty, but leave to appeal against that sentence is not sought.
Facts
Early in 1999 the applicant and a man named Van Sang Nim were under police surveillance, and an undercover police officer had made contact with them. On 2 March 1999 the applicant met the undercover officer in the central business district of Sydney, having arranged to sell him 56gm of heroin. The officer showed him $8,400 in cash as part payment for the heroin. At the applicant’s direction, the officer drove to another location and they met Mr Nim, who supplied the heroin in a package. The balance of the purchase price, $2,000, was paid on a later occasion.
Another transaction took place in similar circumstances on 16 April 1999. On that occasion 28gm of heroin was supplied for $5,200.
On 26 May 1999 police executed a search warrant at the applicant’s family home, where they found a baton with a side handle, some twelve gauge shotgun ammunition and some ·22 calibre bullets. It is these items which gave rise to the charges on the Form 1. The applicant was not present at the time of the search but was arrested on the following day. On legal advice, he declined to be interviewed.
Before us, a foreshadowed argument that the applicant’s role in the two drug offences was less than that of Mr Nim was abandoned. Mr Byrne SC, who appeared for him, explained that the applicant has been in this country since his early childhood, whereas Mr Nim had arrived here very much more recently. The applicant has a good command of English, and it was for that reason that he undertook the task of contacting the undercover officer and arranging the transactions, leaving it to Mr Nim to produce the heroin. Accordingly, said Mr Byrne, the applicant accepts that he is as culpable as Mr Nim.
Subjective matters
The applicant is now twenty-two years old and was twenty-one at the time of the offences. He has no prior convictions. However, at that time he was on bail in respect of the charge of affray to which I have referred. It should be noted, on the other hand, that he had been subject to that bail order since mid-1996, when that offence was committed, and he had not otherwise come under adverse notice during that period.
He came to this country with his family when he was not quite three years old. The family had escaped from Vietnam, travelling by boat to Hong Kong, where they spent more than a year in a refugee camp. Upon arriving here, they spent some six months in a migrant hostel. His father worked hard to establish himself in this country, eventually setting up a clothes manufacturing business and, later, a Vietnamese restaurant in Cabramatta. The applicant has four sisters, none of whom have been in conflict with the law and all of whom have been successful in their endeavours in education and employment.
10 It seems that the applicant’s difficulties have arisen from his contact with undesirable associates. He enjoys the continuing support of his family, and his father is able to provide employment for him upon his release from prison. The subjective material as a whole persuaded his Honour that there were special circumstances calling for a departure from the usual proportion between minimum and additional terms.
The application
11 Written submissions furnished prior to the hearing focussed on the argument that the sentences are manifestly excessive, having regard to decisions of this Court and sentencing statistics supplied by the Judicial Commission. However, at the hearing Mr Byrne disclosed that he had just received information that the co-offender, Van Sang Nim, had himself been dealt with by Goldring DCJ and had been sentenced to a term of periodic detention. The matter was adjourned so that Judge Goldring’s remarks on sentence could be obtained and further written submissions on the question of parity of sentence could be supplied.
12 Judge Goldring sentenced Mr Nim to two and a half years imprisonment, with a non-parole period of eighteen months, to be served by way of periodic detention. (His Honour did not express that sentence to be applicable to each of the charges, but I assume that to have been his intention). He took into account the fact that Mr Nim had spent three months in custody. It seems that the material before his Honour was somewhat spare, a fact of which he complained when passing sentence, although it did include Judge Viney’s remarks on sentence in respect of the applicant.
13 Judge Goldring dealt with Mr Nim on the basis that the applicant was “much more heavily involved” in the offences than he. Mr Nim had given evidence that on both occasions he acted at the behest of the applicant, receiving minimal remuneration. Indeed, the effect of his evidence was that he was unaware that the first transaction of 2nd March 1999 involved a prohibited drug. That evidence does not sit easily with his plea of guilty to that charge.
14 At the time of sentence Mr Nim was twenty-five years old. He had no previous convictions and had the benefit of a supportive family. Judge Goldring said of the applicant that he “may have had a criminal record”. His Honour must have overlooked that part of Judge Viney’s remarks in which he observed that the applicant “has no prior matters”.
15 Without doubt, there is a marked disparity between the sentences imposed on the applicant and Mr Nim. Effectively, the applicant was sentenced to a full-time custodial term of five years with a minimum term of three years, while Mr Nim faces a term of periodic detention of two and a half years with a minimum term of eighteen months. That disparity would warrant a reduction of the applicant’s sentence if it were such as to engender in him a justifiable sense of grievance, in accordance with the principles examined by the High Court in Lowe v The Queen (1984) 154 CLR 606 and revisited in Postiglione v The Queen (1996-7) 189 CLR 295.
16 The Crown prosecutor in this Court submitted that the sentence passed upon Mr Nim is manifestly inadequate, although he acknowledged that the Crown had not appealed against it. True it is that Judge Goldring sentenced Mr Nim upon the basis that his culpability was much less than that of the applicant. However, it appears that his Honour did so on the basis of limited material about their respective roles, and it may be that Mr Nim was the beneficiary of more favourable treatment on that account than he deserved: cf Reg v Hodges (CCA, unreported, 20 August 1997). On the whole of the material now before us, no clear distinction between the roles of the two men could be drawn. The case highlights the desirability of co-offenders being sentenced by the same judge, whenever possible.
17 True it is, also, that the applicant’s sentences were concurrent with the six month term imposed in respect of the charge of affray, that he was on bail in respect of that charge at the time of the drug offences and that there were further offences to be taken into account on a Form 1. These matters warranted a distinction between the sentences passed upon the two men and rendered the imposition of a full-time custodial sentence upon the applicant inevitable. Nevertheless, I am satisfied that the disparity between their sentences is excessive and, for that reason alone, the applicant’s sentences must be reduced. It becomes unnecessary to consider the argument originally advanced that they are, in any event, manifestly excessive.
18 I would allow the appeal and quash the sentences passed in the District Court. The applicant must be re-sentenced in accordance with the Crimes (Sentencing Procedure) Act 1999. Like Judge Viney, I think it appropriate that the sentences on the two charges should be concurrent, the second charge carrying the heavier sentence. I am also satisfied that there are special circumstances warranting a non-parole period less than three quarters of the term of the sentence for that charge: s44(2) of the Act.
19 On the second charge, taking into account the matters on the Form 1, I would sentence the applicant to imprisonment for three years, to date from 27 May 1999, with a non-parole period of eighteen months. On the first charge, I would sentence him to imprisonment for eighteen months, also to date from 27 May 1999. I would decline to set a non-parole period in respect of that sentence because of the sentence passed on the second charge: s45(1)(b) of the Act. In accordance with s50(1), I would direct the applicant’s release on parole at the end of the non-parole period, subject to the supervision referred to in s51(1A). The applicant would be entitled to release on parole on 27 November 2000.
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LAST UPDATED: 05/12/2000
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