R v Nguyen - [2002] NSWCCA 183

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Van Nam Nguyen [2002] NSWCCA 183

FILE NUMBER(S):
60111/02

HEARING DATE(S): 16 May 2002

JUDGMENT DATE: 16/05/2002

PARTIES:
Van Nam Nguyen (Respondent)
Crown (Appellant)

JUDGMENT OF: Stein JA Bergin J Carruthers AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 01/11/0903

LOWER COURT JUDICIAL OFFICER: Coorey DCJ

COUNSEL:
P G Ingram (Appellant)
M Thangaraj (Respondent)

SOLICITORS:
S E O'Connor (Appellant)
Michael Croke & Associates (Respondent)

CATCHWORDS:
Crown appeal against sentence imposed for guilty plea under s 25(2) of the Drug Misuse and Trafficking Act for supply of not less than the commercial quantity (700g) of heroin; Form 1 offence for supply of not less than the commercial quantity (700g) of heroin.

LEGISLATION CITED:
Crime (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

DECISION:
See para 77.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

60111/2002
Stein JA
Bergin J
Carruthers AJ
16 May 2002

REGINA v VAN NAM NGUYEN
JUDGMENT

STEIN JA: I agree with Bergin J.
BERGIN J: This is a Crown appeal from a sentence imposed on the respondent, Van Nam Nguyen, by his Honour Judge Coorey in the District Court on 6 February 2002. The respondent pleaded guilty to a count on indictment that he supplied not less than the commercial quantity of a prohibited drug, namely heroin, contrary to s 25(2) of the Drug Misuse and Trafficking Act (the Act) 1985. The maximum penalty for this offence is 20 years imprisonment and/or $385,000: s.33(2)(a) of the Act.
There was also a Form 1 matter that the respondent asked to be taken into account on sentencing. The charge on the Form 1 was knowingly take part in the supply of not less than the commercial quantity of a prohibited drug, namely heroin: s.25(2) of the Act. The maximum penalty is 20 years imprisonment and/or a fine of $385,000.
The sentence imposed by Coorey DCJ, taking into account the matter on Form 1, was a term of imprisonment for 5 ½ years to commence on 18 November 2000 and to expire on 17 May 2006. His Honour imposed a non parole period of 2 ½ years to commence on 18 November 2000 and to expire on 17 May 2003.
Facts
The facts before the sentencing judge disclosed that the National Crime Authority had conducted an investigation in conjunction with the Queensland Police service and the Queensland Crime Commission (the Police) into the alleged sale and distribution of heroin from Sydney to the Gold Coast. That investigation initially focused on two persons on the Gold Coast, Neagu Petrea (Petrea) and his associate Pompiliu Tutoveanu and a person in Sydney, Tare Antin Kirikian also known as David Kirikian (Kirikan).
The investigation involved physical surveillance, electronic surveillance and telephone interception material. The facts before his Honour stated that the interception material had assisted in identifying the respondent as the Sydney heroin supplier. Further inquiries also identified Charles Sukkar (Sukkar) as acting as an intermediary between the respondent, Kirikian and Tutoveanu in facilitating the heroin supply.
At approximately 9 pm on Saturday 14 October 2000 Petrea and two associates, Florin and Bogdan Pascu, departed from Tutoveanu’s Gold Coast residence and travelled in Tutoveanu’s vehicle to Sydney. On 15 October Petrea obtained two 350g blocks of heroin from the respondent while at Kirikian’s former residence at 18-20 Norfolk Street Liverpool Sydney. This is the matter on the Form 1 which the respondent asked to be taken into account on sentence.
The facts disclosed that on the morning of 16 October 2000 the police intercepted the vehicle driven by the Pascus as it travelled back over the Queensland border into the Coolangatta area from New South Wales. A search of the vehicle located a package in the glove box that contained the two 350g blocks of heroin. Both Florin and Bogdan Pascu were charged with unlawful possession and unlawful supply of heroin under the Drugs Misuse Act (Qld).
The monitoring of intercepted phone calls subsequent to the Pascus arrest revealed planning and arrangements by Petrea, Tutoveanu, Kirikian, Florin Pascu, Sukkar and the respondent for the supply of a further 700g of heroin.
On 14 November 2000 Petrea flew to Sydney and on 15 November met with Kirikian and Sukkar at the Sheraton Hotel in Sydney. Electronic surveillance revealed that Petrea and Kirikian intended to send Sukkar to Perth. Sukkar indicated that he would drive to Perth and fly back, because he was not comfortable carrying what he referred to as “the other thing” on a flight.
On 16 November 2000 Tutoveanu and Pascu flew to Sydney and hired a vehicle from the airport. They travelled to the Lone Star restaurant at Warwick Farm where they met with Petrea and Sukkar. Tutoveanu, Pascu, Petrea and Sukkar then travelled to the Hunts Motel at Casula.
During this time further telephone intercepts established that Kirikian made contact with the respondent and informed him that Sukkar would give him “fifty” and that the respondent would then give Sukkar “two”. Kirikian stated that they could not contact the person in Perth and therefore only “two” and not “four” were needed. Kirikian subsequently flew out of Sydney back to the Gold Coast but made arrangements by telephone for Sukkar to continue to deal with the respondent.
A series of phone calls between Sukkar and the respondent established that they were arranging to meet each other. On the afternoon of 16 November Sukkar travelled in Tutoveanu’s Sydney hired car to Guilford Road, Guilford where he met the respondent. Subsequent observation showed the respondent getting out of the hired car carrying a brown paper bag.
Later in the evening of 16 November 2000 intercepted telephone calls between Kirikian, the respondent and Sukkar had paid $50,000. The facts before Coorey DCJ included a statement that the intercepted calls also indicated that (the respondent’s) suppliers wanted full payment before supplying the heroin blocks, and that the respondent stated that his supplier intended to retain the money as part payment for an outstanding debt incurred by Kirikian relating to the previous two 350 blocks of heroin that had been seised on the arrest of the Pascu brothers.
There were numerous telephone conversations between Kirikian and Petrea involving negotiations about the money and the supply of heroin by the respondent. The respondent agreed to provide two blocks of heroin and Kirikian arranged to pay US$20,000 to the respondent on the basis that he would “fix up the rest” for the payment of the heroin by the end of the following week. Kirikian contacted Sukkar by telephone and advised Sukkar of the new arrangement with the respondent. He also advised that Tutoveanu would arrive the next day and hand Sukkar some money.
On 18 November 2000 arrangements over the telephone continued between Kirikian and the respondent about the imminent heroin purchase. Kirikian telephoned Petrea and Tutoveanu and advised them of the arrangements. Kirikian then advised Tutoveanu to travel to Sydney by 3pm or 4pm that day and to contact Sukkar and give him the money.
At 1pm on 18 November 2000 Tutoveanu flew from Coolangatta to Sydney and subsequently hired a white Corolla sedan. Tutoveanu then contacted Sukkar by telephone and arranged a meeting at Parramatta. He also contacted Petrea to check that the arrangements for the supply had been made.
Kirikian had further telephone contact with the respondent to finalise the heroin purchase and exchange. He also provided further instructions to Sukkar by telephone to give the respondent “the papers”, alleged to be code for money, and to wait one street away whilst the respondent collected the heroin and returned with it to Sukkar.
At 4.44pm on 18 November 2000 Tutoveanu met Sukkar at Parramatta where he took a white envelope from his suitcase and travelled with Sukkar to the Yum Yum bakery at Guilford. At 6.10pm the respondent arrived by vehicle and also entered the bakery. At 6.40pm Kirikian had a further telephone conversation with Sukkar in which the respondent and Totuveanu also participated. Discussions during this conversation involved how the heroin transaction would take place and that Tutoveanu would hand over the money.
At 7.30pm on 18 November Tutoveanu and Sukkar met the respondent at Station Street, Guilford. Tutoveanu entered the vehicle driven by the respondent. Sukkar returned to his own vehicle and retrieved a small object which was then handed through the window of the respondents car to Tutoveanu. At 7.36pm Tutoveanu, Sukkar and the respondent were arrested. A subsequent search of the respondent’s vehicle located two 350 grams block of heroin. Tutoveanu was found in possession of $10,000 cash.
Sukkar was sentenced by Shillington QC DCJ on 23 November 2001 to a term of imprisonment of 3 years with a non-parole period of 15 months for an offence of knowingly take part in the supply of not less than the commercial quantity of a prohibited drug, namely, 700 grams of heroin. His Honour found that Sukkar was a relatively minor player.
Kirikian was sentenced by Judge Patten at the Sydney District Court on 15 February 2002 on two counts on indictment. Both counts related to the supply of the heroin the first in Liverpool and the second in Guilford. His Honour found that Kirikian “played a very major role” in the offences. He allowed a discount of one third in relation to Kirikian’s undertaking to give evidence against his co-offenders and imposed two concurrent terms of imprisonment of six years. In relation to each term a non-parole period of three years was set. Special circumstances were also found to exist.
Subjective features
A Probation and Parole Service Pre-Sentence Report dated 22 October 2001 prepared by Ms Patti Hammond set out some of the respondent’s history. He was born on 11 November 1975. He and his family were refugees from South Vietnam and came to Australia by boat in 1982. He and the members of his family later became Australian citizens. It is apparent that the respondent experienced a good upbringing and is the only member of his family to come into conflict with the law.
Ms Hammond reported that in discussing the offences with the respondent he claimed that he was guilty of only one offence and disagreed with the majority of the facts to which reference has already been made. He claimed that he was not fully involved, played only a minor role and that the telephone intercepts were not his voice. The respondent also claimed that he did not know the other names mentioned in the facts before the Court and, although he was arrested with two of the persons named, they were never previously known to him.
The respondent gave a version to Ms Hammond that a friend who had been supplying heroin to him at no cost for his personal use later asked him for a favour. He claimed that he felt bound to comply with that request because the friend had been supplying the heroin at no cost. He also claimed that he was required to pass a package to other people in exchange for cash which he was then to pass on to his friend. He claimed that he was to receive a quantity of heroin, and no cash, from his friend as a reward for his participation in the supply.
The respondent informed Ms Hammond that he considered that his drug problem was linked to his offending behaviour and that he was drawn into the supply of drugs. He claimed he did not actively seek participation and that he commenced smoking in early 2000 when he was feeling somewhat depressed over difficulties in his relationship and family problems relating to the loss of a business. He also informed Ms Hammond that his initial use involved smoking heroin with his friends on weekends which he felt had a relaxing and calming effect. He stated that after three months his usage increased to three or four times per week and then quickly became daily use in order to avoid feeling ill. He also stated that he had never smoked heroin in front of his family or fiancé.
The respondent obtained his Higher School Certificate and completed most of a one year Engineering/ Draughtmanship TAFE course. He worked in a variety of electrical retail shops for approximately twelve month periods and for three years as foreman in a workshop. His job immediately prior to committing the offence was as a manager of an audio communication store for approximately eight months. He claimed he left that employment because of the adverse impact his drug habits were having on his capacity to do his job properly.
Although it is clear from Ms Hammond’s report that the respondent downplayed his involvement, his counsel, Mr Ainsworth, advised the sentencing judge on 1 February 2002 that the respondent abandoned that position and accepted his guilt.
The respondent relied upon a report of psychologist Mr Bill Robertson in the sentencing proceedings. Mr Robertson interviewed the respondent on one occasion for two hours and his report provides similar personal details as provided in Ms Hammond’s report. However Mr Robertson expressed the opinion that the respondent had strong support of social networks and good prospects for future employment and that such attributes were not the usual indicators of someone with problematic drug and alcohol usage. He also expressed the view that the respondent is a man that is easily lead by a group of friends “to whom he felt beholden and did not have the courage to say no”. He thought this was exacerbated by the respondent’s drug use which would have also disinhibited his ability to be assertive.
Mr Robertson concluded that he would find the prospect of the respondent re-offending “unlikely”. He expressed the view that the respondent had demonstrated a high degree of contrition with his current situation as it had markedly interfered with his life goals and direction. The respondent also relied upon a reference from his former employer and certificates from courses attended in pre-sentence custody.
In 1995 the respondent was charged with two counts of assault police and offensive language for which he received, at Burwood local Court on 6 July 1995, a s.556A recognisance on each count, self in the sum of $1,000 to be of good behaviour for two years.
Remarks on Sentence
His Honour referred to the respondent’s guilty plea, the maximum term and the fact that the respondent had been in custody since arrest on 18 November 2000. He then stated that in imposing the sentence he had taken into account the offence on Form 1. His Honour did not recount the facts but said that the facts showed that the respondent was a “major player in a substantial heroin transaction to supply 700g of heroin”.
His Honour then set out a number of detailed submissions made by the respondent’s counsel, Mr Ainsworth. The first was the submission in relation to a full discount for the early plea of guilty which the Crown had conceded was appropriate in the circumstances. The second matter was the report of Mr Robertson extracts of which his Honour referred to including the opinion expressed by Mr Robertson that the respondent was unlikely to re-offend, and the recommendation for some psychological counselling. He also noted the certificates of achievement from the gaol.
The third matter was the respondent’s counsel’s submission that the “only criminal record that related to the prisoner refers to a charge of assault and using offensive language in 1995” which were dismissed under s.556A of the Crimes Act. His Honour recorded that he would regard the prisoner as a person of good character with no criminal history.
The fourth matter was the respondent’s counsel’s submission that the court could not infer that the respondent was the principal player in the crime. His Honour said, “the Court cannot infer that the prisoner was trading on his own behalf. The evidence shows that he was subordinate to another player”.
The fifth matter was the respondent’s counsel’s argument that “the six year total sentence referred to by the Crown is too severe a sentence” and “that the proper sentence to be imposed is a total sentence of four and a half to five years and then there should be some increase for the Form 1 offence”. There was then reference to the co-offender Sukker, who had been sentenced by Shillington QC DCJ to three years imprisonment with a non-parole period of fifteen months, a note that he had a prior conviction and the fact that his role was not as significant as the respondent’s.
The sixth submission referred to by his Honour was the reliance the Court could place on the evidence given by the respondent’s fiancé Ms Lao and the fact that she had stated that he had admitted to her since his arrest he had been “using heroin for some years”. His Honour also recorded the fact that Ms Lao said she would wait for the respondent until he is released from gaol and that she believed that he had left his criminal behaviour behind him.
The seventh matter noted was the fact that the respondent had been in custody since 18 November 2000 and that he would commence the sentence since 18 November 2000.
His Honour recorded that it was difficult to classify the respondent’s precise role and position in the crime but that there “is no doubt that the prisoner is substantially active in the events leading up to the supply of drugs. There is no doubt that he is a major player”. His Honour stated that he could not be satisfied that the respondent was the major player or even the source supplier. However he accepted that the respondent was a principal in the first degree and a major player.
His Honour then recorded the personal background of the respondent referring to the contents of the Pre-Sentence Report and stated that he accepted the evidence of remorse, referring to the prisoner’s family and fiancé’s observations of the respondent which made them confident that he was unlikely to re-offend.
After referring to the sentence imposed on Sukker his Honour once again stated that the respondent played a major role in a substantial operation to supply 700g of heroin. He said that he was satisfied that the prisoner’s use of drugs influenced his decision to get involved with the crime. His Honour then referred to the statistics from the Judicial Commission of NSW showing that 39% of all offenders received a total sentence of five to six years imprisonment and 38% of all offenders received a minimum term of two and a half to three years. He then recorded acceptance of the respondent’s counsel’s submission that a total sentence of six years “is slightly above the appropriate sentence”. His Honour then said:
It seems to me that after taking into account the Form One offence that the total sentence should be five and a half years. I note that the Form One offence occurred merely four weeks or so before the offence in the indictment. I find that there are special circumstances. I note also there have been in court at all of the sittings a large number of supporters who appear to be the prisoner’s family and relatives.
There is no doubt that this prisoner will receive a lot of support when released on parole. He is still a young man and seems to have shown his family that he is determined never to re-offend.
His Honour then convicted the respondent and sentenced him to a term of imprisonment for five and a half years to backdate to 18 November 2000 and to expire on 17 May 2006. His Honour set a non-parole period of two and a half years to date from 18 November 2000 and to expire on 17 May 2003.
Grounds of Appeal.
The appellant claims that the sentencing Judge erred by imposing a sentence that was manifestly inadequate because:
(1) his Honour erroneously disregarded entirely the criminal
antecedents of the respondent;
(2) his Honour erroneously failed to set the term of the sentence so as to properly reflect the totality of the criminality of the respondent for both the offence on indictment and the offence to be taken in to account in the Form 1;
(3) his Honour reduced the non-parol period pursuant to s 44(2) of the Crimes (Sentencing Proceedure) Act 1999 but erroneously failed to identify reasons for so doing, as required;
(4) his Honour erroneously set a non-parole period that was manifestly inadequate having regard to the objective seriousness of the offence and the nature of any special circumstances of the respondent.
(1) Disregarding the criminal antecedents

In his remarks on sentence Coorey DCJ referred to the antecedents of the respondent and said that he would “regard the prisoner as a person of good character with no relevant criminal history”.
The appellant submitted that the criminal antecedents of the respondent demonstrated previous serious disregard for criminal law and as such was relevant to be considered. It was submitted that any offence of assaulting police officers was to be regarded as serious and such as to show a significant disregard for the criminal law.
It was also submitted that his Honour failed to accurately record the number of assault charges and failed to note the serious nature of them. This submission refers to his Honour’s statement in the remarks on sentence that “Mr Ainsworth points out that the only criminal record that related to the prisoner refers to a charge of assault and using offensive language in 1995”. It was submitted that his Honour failed to recognise there were two charges and that they were charges of assaulting police officers. This, it is submitted, indicated that his Honour did not acknowledge the real gravamen of those antecedents. It was also submitted that considered appropriately such prior offences precluded the respondent from being regarded as a person of good character with no relevant criminal history.
The appellant also submitted that his Honour thereby erred in that, although the earlier offences were not drug offences, they were offences that ought to have been taken into account when considering the degree of any leniency to be allowed to the respondent in relation to his antecedent history. It was submitted that such leniency ought not to have been to the same extent to that which would have been extended to a person of good character with no relevant criminal history.
The respondent submitted that to ascertain whether offences were appropriately categorised as a serious disregard of the law the penalty imposed should be taken into account. The respondent highlighted the fact that (1) at that time the respondent was a teenager; (2) he was granted a 556A bond on each count and; (3) no appeal was lodged.
It was submitted that it is for the sentencing judge to assess the relevance of any criminal history and in this case, on the material tendered, Coorey DCJ was entitled to find that the respondent was a person of good character.
The capacity for a court to dismiss charges under s.556A of the Crimes Act reflected the willingness of the legislature, and thus the community, to provide to first offenders, in certain circumstances, a second chance to maintain a reputation of good character. The fact that such an opportunity was afforded to the respondent is in my view appropriately recognised by his Honour in regarding the respondent as a man of good character with no relevant criminal history. I am not satisfied that his Honour fell into error in this approach.
(2) Totality
The sentencing judge in his remarks on sentence said “the facts show that the prisoner was a major player in a substantial heroin transaction to supply 700 grams of heroin (18.6); that the court could not infer that the prisoner was trading on his own behalf (20.5); that “although it is difficult to classify the prisoner’s precise role or position in this crime, there is no doubt that the prisoner is substantially involved in the events leading up to the supply of drugs. There is no doubt that he is a major player…I cannot be satisfied that this prisoner is the major player or even the source supplier”. (22.5). His Honour accepted that the prisoner was a principal in the first degree and that he was a major player but he could not be satisfied beyond a reasonable doubt that he was the source supplier. (22.7) His Honour also said that the respondent played a major role in a substantial operation to supply 700 grams of heroin (24.2).
In opening his remarks on sentence his Honour stated that in imposing a sentence he had taken into account an offence on Form 1 of being knowingly concerned in the supply of a commercial quantity of heroin on 15 October 2000 (18). After referring to statistics from the Judicial Commission his Honour said that he accepted the respondent’s counsel’s submission that a “total sentence of six years is slightly above the appropriate sentence that should be given in this matter” (24). His Honour continued “it seems to me that after taking into account the Form 1 offence the total sentence should be five and a half years. I note that the Form 1 offence occurred merely four weeks or so before the offence in the indictment”.
In submissions prior to the imposition of the sentence an exchange occurred between counsel for the respondent and his Honour. It was as follows:
Counsel:Your Honour with respect, it is going to come down and then it is going to go back up a little bit because of the one on the form 1.
His Honour: Yes.
(tr.16.52. 1/2/02)
The appellant submitted that it is apparent that Coorey DCJ acceded to the proposition that in the circumstances of this matter the sentence had only to be increased “a little bit” to reflect the Form 1 offence.
His Honour does not refer to the details of the Form 1 offence in the consideration of the objective seriousness of the offence for which the respondent was to be sentenced. I agree with the appellant’s submissions that the remarks on sentence concentrate exclusively on an assessment of the role of the respondent in the offence on the indictment. It was submitted that had the sentencing judge found that the respondent played a significantly different role in the offence on the Form 1 it would be reasonably anticipated that he would have recorded such a distinction in his remarks in sentence. That was not done.
When taking an offence into account on a Form 1, the sentencing judge is required to impose a sentence that appropriately reflects the totality of the criminality of the offender: Regina v Morgan (1993) 70 A Crim R 368 at 371-372 per Hunt CJ at CL; Regina v Barton (2001) 121 A Crim R 185 per Carruthers AJ at 35, with whom Spigelman CJ at 48, and Sperling J at 66 agreed. It is submitted that it is incumbent upon the sentencing judge to appropriately increase the sentence for the offence of supply heroin on the indictment to reflect that the offence of knowingly take part in the supply on the Form 1.
His Honour decided that six years was slightly above the appropriate sentence that should be given in the matter. It is apparent that his Honour took the view that a sentence of less than six years was “appropriate”. He then seems to have taken the Form 1 offence into account to reach a sentence of five and a half years.
The respondent submitted that the Crown had conceded that 6 years was at the lower end of the range for this offence and that in those circumstances this Court should not intervene: R v Jermyn (1985) 2 NSWLR 194; R v O’Connor [2002] NSWCCA 156 at [32]-[34] The basis of that submission is an exchange between the Crown and Coorey DCJ on 1 February 2002. The Crown had referred his Honour to a case in which persons of the same surname as the respondent had been sentenced: R Nguyen [2000] NSWCCA 547. That was a case in which the accused had been arrested after being stopped at a random breath testing station and the police had found 725g of heroin and some scales in the car.
The exchange included the following immediately after the Crown referred to R v Nguyen:
Crown:The Crown’s position is the tariff, if you like, that an appropriate tariff would commence at some six years on the bottom, with a further figure to take account of the Form 1 matter….If I could clarify..six on the top, a head sentence of six years would be at the bottom of the range appropriate for this sort of offence.
HH:  Yes you mean a total sentence of six years.
Crown:   Yes anything less than that…
HH:  You say that’s the bottom of the range.
Crown:   Yes.
HH:I think Mr Ainsworth thought that you were saying that was the minimum term.
Crown:No, it is a mater for your Honour of course, yes, it is a matter for your Honour.
HH:Yes, but you say that six years in this matter before me, six years would be the bottom of the range.
Crown:   I think so, yes your Honour
(tr. 8. 01/02/02)
There is in my view no concession by the Crown that the total sentence for the two offences, that is the one on the indictment and the further charge on the Form 1, would be six years at the bottom of the range. In the circumstances of this exchange I am of the view that the Crown was referring to the six years as being the bottom of the range for the matter on the indictment and that there would then have to be a “further figure” for the Form 1 offence. There is a lack of precision in this exchange and, in any event, having regard to the approach adopted by his Honour I am not satisfied that this exchange would or should prevent this Court from intervening in the circumstances of this case.
At sentence the Crown conceded with clarity that the respondent was entitled to the full discount and his Honour said that he would allow the full discount for the respondent’s plea of guilty: Regina v Thompson & Houlton [2000] NSWCCA 309. It is submitted given that the term of the sentence was five years and six months, his Honour would appear to have started with a pre-discount sentence of seven years and six months. It was submitted that such a starting point was too low and that it failed to reflect the totality of the criminality involved in the offences. It was also submitted that after the deduction of the full discount for the plea the resultant term is manifestly inadequate in that, it too fails to appropriately reflect the totality of the respondent’s criminality involved in the offences.
It seems to me that his Honour fell into error in that the Form 1 offence was not considered appropriately in the circumstances where the respondent had knowingly taken part in supply of 700g of heroin on 15 October 2000. To refer to it simply as having occurred “merely four weeks or so before the offence on the indictment” does not assist in ascertaining the approach that was taken to the Form 1 matter. However I am satisfied that whatever increase it was it could only have been a “little” increase, impermissibly with what is required in such circumstances: R v Morgan and R v Barton.
(3) Non-Parole period
Section 44(2) of the Crime (Sentencing Procedure) Act 1999 requires the sentencing judge to make a record of the reasons for the decision that special circumstances exist which justify the reduction of the non-parole period to less than three-quarters of the term of the sentence. The Crown submitted that his Honour failed to provide those reasons.
It was submitted that the remarks on sentence do not identify what special circumstances were in fact found by his Honour nor do the reasons appear for the decision to reduce the non-parole period because of those special circumstances. It was submitted that given that the non-parole period was reduced from the statutorily required 4 years and 2 months to 2 years and 6 months the failure to set out reasons discloses an error which had a significant and unexplained impact on the overall structure of the sentence imposed.
It is true that his Honour has not in his remarks on sentence set out the specific circumstances that he found to be “special circumstances”. It is clear however from a review of the transcript of the sentencing proceedings on 1 February 2002 that his Honour identified a number of circumstances which he then stated were special circumstances. They were that the respondent was a drug user and was obviously going to need supervision (tr.10-11); that it was the respondent’s first offence, first drug offence, and first time in gaol and that he had a need for counselling (tr.18). Section 44(4) provides that if the record of reasons for the existence of special circumstances is not made the sentence is not invalidated.
I am satisfied that the special circumstances identified in his Honour’s statements in the sentencing proceedings justify a reduction in the statutory relationship between the non-parole period and the head sentence.
(4) Non-Parole Period Manifestly Inadequate.
Where a reduction in the head sentence occurs the application of the statutory proportion will have the result of reducing the non-parole period. Before a sentencing judge further reduces that period there must be a process of analysis which travels beyond that which would have been undertaken in the course of determining the head sentence: Regina v Simpson [2001] NSWCCA 534 per Spigelman CJ at 67.
It is submitted that his Honour failed to give the requisite separate consideration to whether such circumstances of the respondent warranted such adjustment in the non-parole period. It is submitted that such a period set by his Honour was manifestly inadequate in that it patently failed to appropriately reflect the criminality of the offences.
The respondent submitted that the adjustment was a matter for the sentencing judge and that the analysis is not required to be recorded.
Re-Sentence
It is apparent that the head sentence of five and a half years was reached, taking into account the Form 1 offence, and reducing the sentence by 25% for the full discount. That means that the original head sentence prior to reduction of the discount was 7 years and 4 months. The actual amount by which the head sentence was increased in taking the Form 1 offence into account is not certain. However it is apparent from an exchange between counsel and the sentencing judge that his Honour acceded to the correctness of the proposition that the sentence was going up “a little bit”.
I am of the opinion that his Honour fell into error in this regard and that another sentence is warranted in law and that another sentence should have been passed. This was a very serious offence of the supply of a commercial quantity of heroin. The offence on Form 1 was also very serious. The seriousness of the offence and the totality of the respondent’s involvement were not reflected in the sentence imposed by the sentencing judge. I propose therefore that the appeal be allowed and the sentence imposed by Coorey DCJ be quashed.
The respondent filed an affidavit in Court this morning setting out a number of matters referring to his involvement in courses within the prison system. Some of those were completed prior to the sentence being imposed. The respondent had by December 2001 completed an Alcohol & Drug Awareness Program and Stress Management Course. He also annexed a Certificate of Achievement in the Life Management Program Stage II dated 4 December 2001, two Statements of Attainment for courses in Information Technology (Computer Applications) both dated 14 January 2002 and a Certificate, valid to 22 April 2005, of Completion of the Course in Senior First Aid.
The respondent is currently involved in two courses. The first is the Job Seeking Skills Course that will conclude in two weeks. The second course is the Twelve Steps Drug and Alcohol program. The respondent is mid way through that course. The affidavit also states that the respondent currently works as an education clerk in the gaol library with duties that include typing and filing. He assists other inmates with their class work and studies and acts as a translator. In due course the respondent also intends to enrol in the Drafting Technology course. These are important matters and will be taken into account in re-sentencing the respondent.
Having regard to the further material filed on behalf of the respondent today, the significant and major role the respondent played in the supply of 700g of heroin but taking into account the double jeopardy in the Crown Appeal, I am satisfied that in re-sentencing, the appropriate starting point from which to fix the head sentence is 11 years, taking into account the offence of supply of 700g of heroin on the Form 1. Applying the full discount for the plea of guilty I would propose an appropriate head sentence of 8 years imprisonment commencing on 18 November 2000 and expiring on 17 November 2008.
The statutory non-parole period is 6 years. However it seems to me that a finding of special circumstances is justified in this matter. As his Honour said in the hearing on 1 February 2002, this is the respondent’s first drug offence, it is his first custodial sentence and there is a need in this case for a longer period of supervision to enhance the respondent’s prospects of rehabilitation a course upon which he has already commenced. In those circumstances and keeping in mind the need for such period to reflect the criminality involved I would propose that an appropriate non-parole period is 5 years to date from 18 November 2000. The respondent will be eligible to be considered for release on parole on 17 November 2005.
CARRUTHERS AJ: I agree with Bergin J.
STEIN JA: Accordingly, the orders of the Court will be as follows:
1. Appeal allowed.
2. Sentence imposed by Judge Coorey be set aside.
3.In lieu thereof the respondent sentenced to 8 years imprisonment commencing on the 18 November 2000 and expiring on the 17 November 2008 and the non-parole period of 5 years to date from the 18 November 2000. The respondent will be eligible for release on parole on the 17 November 2005.
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LAST UPDATED: 22/05/2002