R v NGUYEN - [2008] SASC 238

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
[2008] SASC 238
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice David and The Honourable Justice Kelly)
29 August 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - INFORMERS
Application for permission to appeal against sentences imposed in the District Court for two separate episodes of offending - applicant pleaded guilty to all offences - applicant sentenced to imprisonment for three years and nine months for taxation offences and, in addition, one year and one month for Centrelink offences - sentences to be served cumulatively - a non-parole period of two years and ten months was fixed - sentencing judge reduced both sentences because of applicant's guilty pleas and past assistance provided to authorities - sentence for the taxation offences further reduced because of applicant's promised future co-operation with authorities in relation to those offences - whether sentencing judge required to reduce sentences for all offences by reason of promised future co-operation in relation to some offences.
Held: Sentencing judge not bound to give a reduction for every offence - appropriate exercise of discretion to confine discount for future assistance to taxation offences - reductions in sentence not inadequate in the circumstances - permission to appeal refused.
Criminal Code Act 1995 (Cth) s135.1(5), s135.2(1); Crimes Act 1914 (Cth) s16A(2)(h), s21E, referred to.
R v Gallagher (1991) 23 NSWLR 220, discussed.

R v NGUYEN
[2008] SASC 238
Court of Criminal Appeal: Duggan, David & Kelly JJ

DUGGAN J: The applicant pleaded guilty to two separate episodes of offending. The first episode (“the taxation offences”) consisted of nine offences of dishonestly causing a loss to the Commissioner of Taxation contrary to s 135.1(5) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”). The second episode of offending (“the Centrelink offences”) consisted of two counts of obtaining a financial advantage from Centrelink for which the applicant was not eligible, contrary to s 135.2(1) of the Criminal Code.
The sentencing judge imposed one sentence of imprisonment for three years and nine months in relation to the taxation offences and a further sentence of one year and one month in relation to the Centrelink offences. His Honour directed that the second sentence was to be cumulative upon the first sentence, resulting in a head sentence of four years and ten months. The non-parole period was fixed at two years and ten months.
The sentencing judge reduced the sentence for the taxation offences by reason of the applicant’s past co-operation with the prosecuting authority in relation to those offences, and his written undertaking to co-operate in the future by giving evidence for the prosecution against an alleged co-offender in the taxation offences. His Honour said that he would have sentenced the applicant to imprisonment for six years for the taxation offences. However, he said he reduced the sentence to four years and six months because of the pleas of guilty and past co-operation with the authorities. He further reduced the sentence on these offences to three years and nine months because of the applicant’s undertaking as to future co-operation.
The sentencing judge said that he would have imposed a sentence of imprisonment for eighteen months for the Centrelink offences. However he reduced the sentence to thirteen months on account of the applicant’s co‑operation. It would seem that the sentencing judge was referring to past co‑operation in this respect.
The applicant wishes to argue that the sentence for the Centrelink offences should have been reduced further by reason of the promised co-operation with respect to the taxation offences.
Section 16A(2)(h) of the Crimes Act 1914 (Cth) (“the Crimes Act”) states that one of the matters which a sentencing court is required to take into account, if relevant, is:
the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences.
Section 21E of the Crimes Act enables the Commonwealth Director of Public Prosecutions to appeal against the inadequacy of a sentence in the event that the sentence had been reduced by reason of promised co-operation, but where the offender failed to co-operate in accordance with the undertaking to do so. The section provides that, where a sentence or non-parole period is reduced because of promised co-operation, the court must state what the period of the sentence and the non-parole period would have been but for the reduction. It is conceded by the applicant that the sentencing judge complied with this direction in the case of the taxation offences.
It is not in dispute that when a court sentences an offender for a Commonwealth offence, it is entitled to take into account co-operation which the offender has given, or promised, with respect to other matters which may bear no direct relationship to the offending for which the penalty is being imposed. However, that is not to say that the court is required to reduce the sentence for every offence which is charged on the same complaint or information. In R v Gallagher[1] the appellant pleaded guilty to a number of offences against State and Commonwealth law. The offences were not all connected. They included two charges of conspiracy to import heroin. The sentencing judge was asked to take into account the fact that, following his arrest, the appellant had provided information to the police concerning a number of people involved in the distribution of narcotics.
[1] (1991) 23 NSWLR 220
The trial judge reduced the sentences for the two conspiracy offences by fifty per cent. No reduction was given in respect of the other offences. It was argued on appeal that the reduction should have applied to all offences charged on the information. Gleeson CJ (Meagher JA concurring) responded to this submission as follows:[2]
It was argued that his Honour erred in principle in confining the discount to the sentences in respect of the conspiracy charges, and that he should have given the discount in respect of the sentences concerning all the charges. It was pointed out, accurately, that the assistance given to the law enforcement authorities was not confined to assistance in relation either to the two particular drug offences in question, or to drug offences generally. It included assistance in relation to the matter of passports. Further, it was argued, if an offender gives assistance to law enforcement authorities then he or she should be given the benefit of that in relation to all offences the subject of sentencing proceedings. In my view this submission involves a misconception of the relevant principles. All the authorities dealing with those principles emphasise the width of the discretion available to a sentencing judge in relation to this subject matter, and the leading judgments repeatedly disclaim any suggestion that there are rigid formulae to be applied. It was open to his Honour, as a matter of discretion, to take the approach that the most appropriate method of dealing with the matter was to relate the discount to the two most serious offences. He was not obliged to do that, but, consistently with the authorities, he was entitled to do so. It would be quite wrong to suggest that in a case such as the present the sentencing judge has no option but to relate the so-called discount to all the offences with which he is dealing. It is a matter for the exercise of a judicial discretion in the facts and circumstances of each individual case, and there is nothing about the facts and circumstances of the present case making erroneous the approach adopted by the learned sentencing judge.
[2] Ibid at 230
Hunt J agreed with these remarks in a separate judgment.[3]
[3] (1991) 23 NSWLR 220 at 234
Initially Mr Richards, for the applicant, wished to argue that the sentencing judge was bound to discount both sentences because of the promised co‑operation in relation to the taxation offences. However, after his attention was drawn to Gallagher’s case he acknowledged that he was putting the argument too highly. He then argued that the discount was too low in any event. He said that it amounted to a reduction in the order of 10 per cent of the combined sentence and that this was inadequate.
In my view, this argument overlooks the reasoning in Gallagher’s case with which I respectfully agree. The sentencing judge was not bound as a matter of sentencing principle to give a reduction for every offence for which the appellant was sentenced on this occasion.
The promised future co-operation was directly related to the taxation offences. It was alleged that the taxation offences were committed by the applicant at the behest of an associate, Van Dung Phan (“Phan”). Phan operated a labour hire business and it was alleged that over a period of five financial years he failed to declare GST, failed to withhold PAYG tax and understated assessable income.
In 2003 the Australian Taxation Office audited Phan’s business. The applicant then agreed to operate a business which was controlled by Phan. A third person also agreed to operate a similar business for Phan. These two businesses took over the original labour hire business and it is alleged that, through them, Phan continued to avoid tax in the manner referred to above. The applicant was remunerated for his assistance in this respect.
The Centrelink offences did not involve Phan. The applicant was in receipt of a disability support pension from Centrelink. He received $395 per fortnight. From 30 June 2004 to 6 May 2005 he failed to disclose the income he received from the business which he operated for Phan. He received $8,744.70 in pension payments to which he was not entitled.
The sentencing judge was not bound to apply the reduction for assisting the authorities to the Centrelink offences simply because they were being dealt with at the same time as the taxation offences. Furthermore, I am of the view that it was an appropriate exercise of the judge’s discretion to confine the discount for future assistance to the taxation offences.
The sentence for the taxation offences was reduced by 25 per cent for the pleas of guilty and past co-operation and a further 16.6 per cent for future co‑operation. These reductions were not inadequate in the circumstances.
I would refuse permission to appeal.
DAVID J: I would refuse permission to appeal for the reasons given by Duggan J.
KELLY J: I would refuse permission to appeal for the reasons given by Duggan J.