R v Nguyen

[2022] SASCA 128

Supreme Court of South Australia

(Court of Appeal: Criminal)

R v NGUYEN

[2022] SASCA 128

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)

1 December 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION

The respondent was sentenced for one count of trafficking in a controlled drug on 6 December 2019, namely heroin, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), for which the maximum penalty was $10,000 or imprisonment for 10 years. At the same time, the respondent was sentenced for breaching bail by attending a prohibited address, as well as for a charge of possessing a prescription drug. These offences were committed during February and March 2021.

For the subject offending, the respondent was sentenced to a term of imprisonment of two years and one day, with a non-parole period fixed of one year and 20 days.  It was ordered that the sentence be served on home detention. 

The Director applied for permission to appeal against the sentence and contended that both the head sentence and non-parole period were manifestly inadequate and that the sentencing judge erred in ordering that the sentence be served on home detention having regard to the circumstances of the offending and the respondent’s antecedents.

The Court held:

1.      The sentence which was imposed was not manifestly inadequate.

2.Even if it had been demonstrated that the sentence was manifestly inadequate, this is not a case in which it is appropriate to grant the Director permission to appeal sentence.

3.      Permission to appeal refused.

Controlled Substances Act 1984 (SA) s 32; Criminal Procedure Act 1921 (SA) s 157; Criminal Law Consolidation Act 1935 (SA) s 20, s 24; Sentencing Act 2017 (SA) s 26, referred to.
Adeseolu v The King [2022] SASCA 113; Director of Public Prosecutions v Dalgleish (2017) 262 CLR 428; Everett v The Queen (1994) 181 CLR 295; R v Buttigieg (2020) 352 FLR 170; R v Dell (2016) 126 SASR 571; R v Filipponi (2016) 126 SASR 464; R v Hosking (2017) 128 SASR 37; R v McInerney (1986) 42 SASR 111; R v Nguyen [2004] SASC 405; R v Osenkowski (1982) 30 SASR 212; R v Yaroslavceff [2022] SASCA 123; R v Young (2016) 126 SASR 41, considered.

R v NGUYEN
[2022] SASCA 128

Court of Appeal – Criminal:  Livesey P, Bleby and David JJA

THE COURT:

Introduction

1. The Director of Public Prosecutions (SA) applies for permission to appeal against sentence pursuant to s 157 of the Criminal Procedure Act 1921 (SA).

2. On 17 June 2022, the respondent was sentenced for one count of trafficking in a controlled drug on 6 December 2019, namely heroin, contrary to s 32(3) of the Controlled Substances Act 1984 (SA), for which the maximum penalty was $10,000 or imprisonment for 10 years. At the same time, the respondent was sentenced for breaching bail by attending a prohibited address, as well as for a charge of possessing a prescription drug. These offences were committed during February and March 2021.

3. For the principal offending, the respondent was sentenced to a term of imprisonment of two years and one day, with a non-parole period fixed of one year and 20 days.  It was ordered that the sentence be served on home detention. 

4. The applicant contends that both the head sentence and non-parole period are manifestly inadequate and that the sentencing judge erred in ordering that the sentence be served on home detention having regard to the circumstances of the offending and the respondent’s antecedents.

5. The applicant also contends that the sentence fails to adequately punish the respondent and fails to maintain public confidence in the administration of justice.

6. For the reasons that follow, permission to appeal should be refused.

   The circumstances of the offending

7. At around 11.00 pm on 6 December 2019, police attended a house in Kilburn and forced entry through the front door.  The respondent and another woman were seen to be running toward a bathroom.  The respondent was stopped and searched.  Police found 13 water balloons containing paper wraps of heroin in the respondent’s shirt pocket, and another balloon of heroin in her jacket pocket.  At trial it was alleged that immediately prior to the search the respondent disposed, by flushing down the toilet, a quantity of drugs.  The total of the material found in the possession of the respondent was 3.4 grams which included heroin. 

8. The respondent was also found to be in possession of $2,270 in cash.  A search of the premises disclosed further cash together with numerous empty balloons and paper wraps as well as a set of scales on which were detected traces of heroin.

9. It was not suggested that the respondent occupied the house.  It was agreed for the purposes of sentence that the balloon in the respondent’s jacket pocket had been purchased by her for her own use.  It was also agreed that the other balloons and cash found in the possession of the respondent belonged to one of the residents.  The respondent had gathered up 13 of the balloons and the cash so as to hide them from police.  Although the respondent knew that the owner intended to sell the heroin, and that the cash was connected with the trafficking of heroin, it was not suggested that the respondent was otherwise involved in the heroin trafficking conducted from the house. 

10. Nonetheless, the offending was committed whilst the respondent was on bail for an offence which was ultimately withdrawn. 

    The circumstances of the offender

11. The respondent had two relevant prior convictions. 

12. On 7 December 2004, the respondent was sentenced to a term of imprisonment of three years and one month, with a non-parole period of one year and three months, for one count of taking part in the sale of heroin.  On 25 September 2008, the respondent was sentenced to a term of imprisonment for three years, six months and two days, with a non-parole period of 18 months, for one count of possessing heroin for sale, committed on 2 December 2006.  That offending was committed whilst the defendant was still on parole for the earlier offending.

13. The 2004 sentence was imposed following a successful appeal.[1]  The charge arose out of searches by police of the respondent’s home on 9 and 30 November 2000.  Those searches disclosed four water balloons containing around 0.4 grams of heroin, nearly $80,000 in cash and 21 mobile telephones.  It was accepted that the trafficking in heroin was conducted by two of the respondent’s children but that the respondent had acquiesced in their drug trafficking.  The respondent was sentenced on the basis that she did not personally effect any heroin sales, nor had she directly received any proceeds from the sale of heroin.  She was “perhaps in a misguided and inadequate way, attempting to deter her children from dependence on and sale of heroin” by allowing them to remain in her home where she hoped to wield greater influence.[2]  Nonetheless, the respondent had acquiesced in an apparently well-organised operation conducted from her home over a period of around 12 months.[3] 

    [1]     R v Nguyen [2004] SASC 405 (Duggan, Bleby and Anderson JJ).

    [2]     R v Nguyen [2004] SASC 405, [41] (Bleby J, in dissent as to suspension).

    [3]     R v Nguyen [2004] SASC 405, [3] (Duggan J), [74] (Anderson J).

14. Only two years after the decision of the Court of Criminal Appeal, the respondent was again involved in the sale of heroin.  On 2 December 2006, the respondent’s brother-in-law was arrested attempting to sell heroin to an undercover police officer.  The police then attended the respondent’s home and found heroin, unused balloons, scissors and scales. 

15. She was arrested.  Apparently, the heroin and equipment had been delivered to the respondent’s home the day she was arrested.  It was agreed that the heroin and equipment were being used by the respondent’s brother-in-law for his intended trafficking operation.  The respondent had agreed to package the heroin for a payment of between $100 and $200 at a time when she was unemployed and experiencing financial difficulty.  The sentencing judge described it as a “worrying feature” that the offending was committed whilst on parole for the earlier offending.[4]

    [4]     Sentencing remarks of Judge Millsteed dated 25 September 2008, page 4.

16. At the time of those sentences, as well as the subject sentence, each sentencing court paid very careful regard to the respondent’s personal circumstances.

17. The respondent is now 60 years, having been born in Vietnam.  She grew up in Saigon in prosperous circumstances until the end of the Vietnam war.  Because the respondent’s father had been a South Vietnamese army officer, her family was forced to leave Saigon and move to a rural area where conditions were harsh. The respondent helped her father work on a farm, and she helped her mother manage a stall in the local village. 

18. In 1980, the respondent married a local factory worker when she was 18.  The marriage was happy and produced three children.  The respondent’s husband died in a motor accident in 1985.  Despite her best efforts, the respondent became financially destitute and depressed.  She determined to flee Vietnam.  Two attempts were unsuccessful.  The first attempt resulted in the respondent being assaulted and robbed.  Following the second attempt, the respondent was detained.  Eventually in around 1989 the respondent escaped.  She made the difficult decision to leave behind her three children. 

19. The respondent left Vietnam by boat, which capsized off the coast of Malaysia.  The respondent was one of the survivors who was washed ashore.  Many of the passengers, including children, drowned.  The respondent spent 18 months in a refugee camp in Malaysia before coming to Australia.

20. In 1993, the respondent sponsored her children to come to Australia.  She encountered difficulty bonding with her children, and they had difficulty adjusting to life in Australia.  The respondent’s eldest son left high school, ran away from home and began using and selling heroin.  He involved his brother and sister in the use and sale of heroin.  Whilst the respondent initially evicted her children from her home, she eventually allowed them to return so as to exercise some control over them.  Their involvement in drug dealing continued. 

21. After the appellant was sentenced in 2004, by April 2005 she was released on parole and obtained employment.  That continued until late 2005 when the snack bar in which the respondent worked was sold. 

22. The respondent remained unemployed until arrested on 2 December 2006.

23. After arrival in Australia, the respondent had two relationships which did not last, though each produced a daughter. 

24. The respondent was diagnosed with a Dysthymic Disorder by Mr Ireland, psychologist, in 2004.  The essential feature of that disorder is chronically depressed mood.  Although the respondent initially reported to Mr Ireland that the charge following the 2000 offending came as a surprise, because the respondent did not realise that she had done something wrong, she eventually reported being ashamed of her actions and expressed concern about what might happen to her youngest child. 

25. Despite Mr Ireland’s recommendations, the respondent has never undergone medical or psychological treatment.  The prospect of engaging in treatment was impeded by the respondent’s inability to speak English and need for a Vietnamese speaking therapist. 

26. In a 2008 report, the psychologist Mr Fugler agreed with Mr Ireland’s diagnosis.  Mr Fugler expressed the view that the respondent’s depression stemmed in part from the guilt she experienced in relation to her children.  Again, he recommended treatment. 

27. On 18 January 2021, the respondent was sentenced for breaching a condition of bail on 31 March 2020, relating to attendance at an address which was precluded by the terms of her bail.  The magistrate recorded a conviction and discharged the defendant without further penalty on account of 32 minutes spent in police custody.[5] 

    [5]     Sentencing remarks of Magistrate Basheer dated 18 January 2021.

28. On 18 November 2021, the respondent pleaded guilty to eight breaches of bail committed between 22 July and 11 September 2021, connected with stopping for food on the way home after “legitimate pass-outs”.  The sentencing magistrate emphasised that home detention bail was “bail of last resort and a message needs to be sent out to people who break the rules of bail that imprisonment is the tough consequence”.[6]  The respondent had already served two months and 11 days in custody and that was regarded by the sentencing magistrate as an adequate penalty.

    [6]     Sentencing remarks of Magistrate McGrath dated 18 November 2021.

29. In a Home Detention Order Suitability Report sent on 19 May 2022, the respondent admitted to past heroin use but denied heroin trafficking.  She expressed confidence that she could abstain from using heroin in the community, explaining that it had been some months since she had used heroin when imprisoned or on home detention.  Whilst on parole during 2010, the respondent underwent drug counselling and was granted permission to travel to Vietnam to see family.  These trips were completed without incident.  During the most recent home detention bail during 2021, no breaches were recorded.

30. It was determined that it would be better for the respondent to live with her younger daughters rather than residing alone in order to avoid returning to heroin use.  The respondent was assessed as being suitable for home detention.

31. At the time of sentence before the sentencing judge there was no suggestion that the respondent’s ongoing mental illness issues had been treated in any way. 

    The approach of the sentencing judge

32. The sentencing judge acknowledged that the respondent had been involved in offending relating to the sale of heroin, a drug which causes great harm in the community.  He noted that the respondent had experienced the tragedy of suffering through her children’s use and abuse of heroin and their criminal offending.  He held that there was a need to deter the respondent from further offending as well as to reflect to others the seriousness with which this kind of offending is regarded.

33. The sentencing judge had regard to the respondent’s age and traumatic life experiences which predisposed her to mental health issues and made it difficult for her to cope with life. 

34. Importantly, the sentencing judge accepted that the respondent’s involvement in the subject offending was of a very limited nature and, though it fell within the broad category of taking part in the sale of heroin, the respondent did not directly sell or intend to sell any heroin.  The sentencing judge accepted that the respondent was attempting to assist another to dispose of drugs when police attended the house.

35. Were it not for the respondent’s late plea of guilty, the sentencing judge would have imposed a period of imprisonment of two years and nine months.  The sentencing judge allowed a sentencing reduction of 5 per cent for the guilty plea, making the sentence two years, seven months and 11 days.  A non-parole period of one year and eight months was fixed.

36. For the charge of breaching bail on 21 February 2021, the sentencing judge imposed a fine but, because that would have resulted in undue hardship, he recorded a conviction without penalty.  The same approach was taken in relation to the charge of possessing a prescription drug. 

37. It was common ground that the respondent was entitled to a credit of seven months and 10 days spent in custody until granted home detention bail on 12 March 2021.  The respondent remained on home detention bail for unrelated matters until 14 September 2021, a period of six months and six days.  The sentencing judge determined not to give any credit for the time spent on home detention bail. 

38. After giving credit for seven months and 10 days spent in custody, the respondent’s sentence became two years and one day, and the non-parole period one year and 20 days. 

39. The sentencing judge then explained to the respondent why home detention was appropriate:[7]

    I consider that having regard to your history it is not appropriate to suspend the sentence.  However, I consider that having regard to the fact that you have spent a lengthy time in prison as well as a continuous period involving the two months and 11 days for bail breaches, the fact that you have abstained from drug use while in custody, the fact that you have a good relationship with your two younger daughters and their full support, the fact that you have stable accommodation and the possibility of work available to you, and having regard to the contents of the home detention suitability report, it is appropriate to order that the sentence be served under home detention conditions.

    [7]     Sentencing remarks of Judge Soulio dated 17 June 2022, page 8.

    The submissions of the parties

40. The Director submitted that both the head sentence and the non-parole period were manifestly inadequate and that the sentencing judge had failed to apply the sentencing standard set in R v Young.[8]  It was submitted that a starting point of four years was warranted but, given the respondent’s antecedents, the need for general deterrence and the need for personal deterrence, a higher starting point would not have been erroneous. 

    [8]     R v Young (2016) 126 SASR 41, [66] (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).

41. Whilst it was acknowledged that the respondent’s personal circumstances excited sympathy, the respondent had been extended leniency in the past for heroin-related offending and the subject offending represented not only a refutation of the court’s previous leniency but a continued disregard for the law.  It was submitted that a non-parole period in the order of 53 per cent of the head sentence was both unexplained and manifestly inadequate because it failed to “fit the crime” and did not operate as a deterrent to others who may be minded to commit similar crimes.

42. The Director submitted that, in a case of serious drug trafficking, where general deterrence and punishment operate to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.[9]  The Director submitted that punishment and deterrence have a paramount role to play in determining whether to grant home detention.[10] 

    [9]     R v Filipponi (2016) 126 SASR 464, [37] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed).

    [10]   Adeseolu v The King [2022] SASCA 113, [50] citing R v Dell (2016) 126 SASR 571, [42], [56]-[57] (Doyle J, with whom Kelly and Parker JJ agreed); R v Hosking (2017) 128 SASR 37, [59]-[61] (Blue J).

43. In oral address, it was submitted that the respondent’s personal circumstances are now of less importance given her recidivism and the continued involvement in heroin-related offences.  It was submitted that these matters, even after serving two gaol terms, spoke against her potential to remain free of trafficking in heroin. 

44. For the respondent, it was submitted that the circumstances of the respondent’s offending were different and less serious than the type of offending described in R v Young.[11]  It was submitted that the respondent’s offending should be seen as a poor decision made on the spur of the moment to assist another without any expectation of reward.  It was characterised as offending of a very limited nature. 

    [11]   R v Young (2016) 126 SASR 41 (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).

1. Having regard to the long period of time between the earlier sentences and the subject sentence, the unusual nature of the involvement of the respondent in the subject offending and the period of time spent in custody, the respondent submitted that both the head sentence and the non-parole period were not manifestly inadequate. 

2. In addition, as the respondent could not be said to have engaged in “serious drug trafficking” of the kind described by Kourakis CJ in R v Filipponi,[12] it could not be said that a home detention order was unable to meet the purposes of sentencing in this particular case.  Indeed, it was submitted that this was a case which fell at the very lower end of the range of objective seriousness and, when combined with the respondent’s strong prospects of rehabilitation, this was a case which attracted a favourable exercise of discretion. 

   [12]   R v Filipponi (2016) 126 SASR 464, [37] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed).

   The determination of the application for permission to appeal

3. In Everett v The Queen, the High Court explained:[13]

   An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed.

   [13]   Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ).

4. It is necessary to recognise that the discretion to impose sentence is vested in the sentencing judge, not this Court.  The broad sentencing discretion reposed in the sentencing judge must be respected. This Court cannot intervene on appeal even if it disagrees with the sentence and would have sentenced differently. 

5. In consequence, a Crown appeal must be approached with care.  The grant of permission to appeal should be reserved for cases which are “rare and exceptional”.[14]  It has been emphasised that this test should be rigorously applied.[15]

   [14]   Everett v The Queen (1994) 181 CLR 295, 299 (Brennan, Deane, Dawson and Gaudron JJ).

   [15]    R v Buttigieg (2020) 352 FLR 170, [39] (Lovell J, with whom Kourakis CJ and Nicholson J agreed).

6. When considering whether to grant permission, this Court must consider, first, whether an error has been disclosed.  There may be a specific error which can be identified in the exercise of sentencing discretion.  Alternatively, there may be an error in the outcome which suggests that there must have been an error made in the application of the relevant sentencing principles, though that error cannot otherwise be identified. 

7. Unlike appeals by a defendant, however, it is not sufficient for the Director to identify an error made in the exercise of the sentencing discretion.  It is not enough to point to a specific error or demonstrate that the sentence is manifestly inadequate.  More must be shown. 

8. It is necessary for the Director to establish both error and strong reasons of public policy to justify the intervention of this Court.  It is for the Director to persuade this Court that it is necessary to grant permission to appeal despite the evident public interest in not twice vexing a respondent. In order to obtain a grant of permission to appeal the Director must demonstrate that it is necessary for this Court to intervene.[16]

   [16]   R v Yaroslavceff [2022] SASCA 123, [53]ff (Livesey P and David JA).

9. In some cases that will be demonstrated by the necessity to establish a matter of sentencing principle or to maintain adequate standards of criminal punishment.  In other cases, it will be necessary to intervene so as to correct the idiosyncratic views of particular judges.  In some cases, it may be necessary to intervene where the sentence falls so far below the appropriate range of sentence that the sentence not only reflects an error of principle but it has the capacity to undermine public confidence in the administration of criminal justice.[17]  That is, the sentence must fall so far below the appropriate range that, in the language of an earlier era, it is the kind of sentence which may shock the public conscience.[18]

   [17]   R v Osenkowski (1982) 30 SASR 212, 213 (King CJ); R v Nemer (2003) 87 SASR 168, [28] (Doyle CJ).

   [18]   Director of Public Prosecutions v Dalgleish (2017) 262 CLR 428, [62] (Kiefel CJ, Bell and Keane JJ) .

10. In this case, the respondent did not come to the Court with a good record.  However, the circumstances of her earlier offending demonstrated that the respondent’s involvement, whilst serious, did not involve what might be described as typical drug trafficking.  Similarly, the respondent’s subject offending, whilst serious, could not be said to involve what might be described as typical drug trafficking.  Her criminal conduct was both ill-advised and fleeting.  The respondent was not making off with heroin that she intended to sell to anyone.  She was attempting to hide heroin and cash that belonged to the owner at a time when she was buying heroin for her own use.

11. This was not the typical trafficking case that the Chief Justice had in mind when setting the sentencing guidance in R v Young.  Whilst relevant, that sentencing guidance was not directly applicable.  When the respondent fell to be sentenced for the subject trafficking offending in 2019, whatever might have been said about her earlier offending, she was not “motivated to a greater or lesser extent by profit”.[19]

    [19]   R v Young (2016) 126 SASR 41, [66] (Kourakis CJ, with whom Vanstone and Stanley JJ agreed).

12. Quite apart from the unusual and atypical nature of the respondent’s offending, it was necessary to give full weight to the respondent’s personal circumstances. 

13. The effect of those circumstances did not, as was suggested in argument, abate over time.  Each case must depend upon its own facts and circumstances.  In this case the appellant’s traumatic life in Vietnam and the difficulties she encountered in Australia resulted in various difficulties and mental illness which, on the evidence, had never been properly addressed or treated.  Giving full weight to these matters did not require that her earlier offending be ignored.  Far from it.  However the respondent could not again be punished for her earlier offending for, as King CJ explained in R v McInerney, the “cardinal rule” is that good character may operate to reduce a sentence but that bad character “cannot increase it”:[20]

    A person is not to be punished, or punished again, for crimes other than the crime for which sentence is passed.

    [20]   R v McInerney (1986) 42 SASR 111, 113 (King CJ).

14. The earlier sentences concerned offending which had occurred just under 20 years and then 13 years before the subject offending in December 2019.  Various breaches of bail were themselves the subject of separate sentences.

15. In all of these circumstances, it cannot be concluded that the head sentence or the non-parole period were manifestly inadequate, still less that they were so manifestly inadequate as to require this Court’s intervention.

16. So far as the order made for home detention is concerned, it must be recalled that in R v Filipponi, Kourakis CJ had explained:[21]

    In the case of serious drug trafficking the demands of general deterrence and punishment are such that if these considerations have operated to preclude a suspended sentence then, in the ordinary case, it is unlikely that the purposes of sentencing will be met by imposing a home detention order.

    On the other hand cases of trafficking which fall at the very lower end of the range of objective seriousness when combined with strong prospects of rehabilitation may attract a favourable exercise of the discretion.

    [21]   R v Filipponi (2016) 126 SASR 464, [37]-[38] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed).

17. Accepting the breadth of the definition of “trafficking” under the Act, and that the respondent by her plea admitted that she was guilty of drug trafficking as defined, the nature and extent of her involvement nonetheless needed to be assessed for the purposes of passing sentence.  This was not a case of “serious drug trafficking”.  It was clearly a case falling “at the very lower end of the range of objective seriousness”.[22]

    [22]   R v Filipponi (2016) 126 SASR 464, [37]-[38] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed).

18. In all of the circumstances of this case it cannot be said that imposition of a home detention order represented a manifestly inadequate response or an inappropriate exercise of sentencing discretion.

19. Even if the conclusion of error were open, however, this case presents no opportunity to establish or correct any sentencing principle.  There are no strong reasons of public policy which justify the intervention of this Court so as to twice vex this respondent.  It has not been demonstrated that the sentence is so inadequate that it would, if left uncorrected, so undermine public confidence in the administration of justice that the respondent should now be returned to prison after serving more than five months on home detention.

    Conclusion

20. It has not been demonstrated that the sentence which was imposed is manifestly inadequate. 

21. However, even if that had been demonstrated, this is not a case in which it is appropriate to grant the Director permission to appeal sentence.

22. The application for permission to appeal sentence should be dismissed.