R v Nguyen - [2007] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
[2007] SASC 83
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
8 March 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS PRACTICE CASES
Judgment was delivered extempore dismissing an appeal against sentence - it was subsequently discovered that the prosecutor misstated the amount of the maximum punishment when before the Judge and that the error had not been detected by counsel for the appellant or respondent at any time during arguments on appeal - the error was addressed in post-hearing submissions and the sentence was considered afresh on the basis that the Judge may have imposed the sentence on misapprehension.
Held: appeal dismissed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - consideration of the seriousness of the offence and community expectations.
Held: appeal dismissed.
Controlled Substances Act 1984 (SA) s 32, referred to.
R v Brain (1999) 74 SASR 92, considered.

R v NGUYEN
[2007] SASC 83
Court of Criminal Appeal: Doyle CJ, Gray and David JJ

DOYLE CJ: This appeal against sentence was heard by the Court on 15 February 2007. The Court dismissed the appeal at the conclusion of the hearing, reasons then being given for that decision.
I set out my settled reasons below. Subject to minor corrections, they are in the terms delivered at the hearing of the appeal.
We are indebted to counsel for their arguments. They were brief and to the point and in my view counsel have between them covered all that can be said about this matter. My own reasons will be brief.
I would dismiss the appeal. In my opinion, the drug offences, if I can refer to them that way, are serious offences. Although the amount of drugs involved in each case is relatively small, the serious criminality lies in the fact that the drugs were possessed for sale.
It is the Court’s experience that it is quite common that persons involved in the selling of drugs have only small amounts at any one time for obvious reasons. So the fact that the amount of drugs that Mr Nguyen had in his possession was small is not in any sense a factor that suggests that these are minor or trifling offences of their kind. So they are serious offences and Parliament has indicated how serious they are by the maximum punishments, which are very substantial amounts. Courts must take this into account when considering cases such as this when fixing penalties.
For count 1 the maximum punishment is life imprisonment and a fine of $500,000. On count 2 the maximum punishment is imprisonment for 25 years and a fine of $200,000. On count 3, to which I will come in a moment, the maximum punishment is imprisonment for 10 years and a fine of $50,000. Those maximum penalties indicate how seriously Parliament treats offences of this kind. That is something that this Court cannot disregard.
Turning to the sentence that the Judge imposed, in my view it was well within the range as indicated by similar cases that might be regarded as roughly comparable, although every case is different and the differences in each case have to be considered. But there is nothing at all about either the head sentence or the non-parole period which strikes me as being out of line with sentencing practice in this Court and the District Court. There is nothing about the sentence or the non-parole period which captures one’s attention as being higher than one would expect in the circumstances.
The Judge has referred to all of the relevant factors that are particular to Mr Nguyen. There is nothing that one would say is particularly relevant to him that the Judge overlooked. The Judge has said he made an allowance for these matters and he has made an allowance of an order which appears to me to be quite appropriate. So it cannot be said there is any sign of any apparent error in the Judge’s reasons for sentence, either when one looks at the sentence or when one looks at the matters he took into account when explaining the reasons for the sentence.
I think it can also be said that it was a merciful decision by the Judge to make an order that the sentence he imposed for the possession of the prescribed firearm operate concurrently with the sentence to be imposed on counts 1 and 2. There are certainly reasons why the Judge might well have made that sentence cumulative upon those sentences and, to my mind, that is indicative that the Judge was inclined to be merciful rather than firm.
So in my view no criticism at all can be made of the head sentence or the approach which the Judge took. As to the non-parole period, my view is that it is equally a very merciful approach. It is a relatively low non-parole period for an offence of this kind. That may reflect Mr Nguyen’s peculiar circumstances. But in my opinion it is impossible to say that the non-parole period is excessive; in other words, impossible to say that it is outside the range that it was open to the Judge to work within. Once again, in fixing the non-parole period the indication is that the Judge had regard to all relevant matters including Mr Nguyen’s particular circumstances, particularly the difficulty that he will have in prison because of his physical injuries.
So, as I have said, counsel have said all that can be said. Mr Stokes has made all the points that can be made on the part of the appellant but there is no indication of error when looking at the appellant himself and the sentence appears to be well within the range. For those reasons I would dismiss the appeal.
GRAY J: I would dismiss the appeal. I do not wish to add to the reasons of the Chief Justice.
DAVID J: The appeal should be dismissed. I agree with the reasons of the Chief Justice.
DOYLE CJ: The order of the Court is that the appeal is dismissed.
The day after the appeal was heard the Court was informed by counsel for the Director of Public Prosecutions that the sentencing Judge had erred in sentencing Mr Nguyen on the basis that the maximum punishment for count 1 is life imprisonment and a fine of $500,000 or both. Having regard to the amount of heroin involved, the maximum punishment on count 1 was in fact imprisonment for 25 years and a fine of $200,000 or both.
The transcript indicates that the prosecutor misstated the amount of the maximum punishment when before the Judge. Unfortunately, the error was not detected by counsel for the Director or by counsel for Mr Nguyen on the hearing of the appeal.
Neither counsel asked the Court to sit again to hear further submissions. Counsel provided short written submissions. In particular, counsel for Mr Nguyen submitted that there was a real prospect that the sentencing Judge would have imposed a lesser sentence had he known the correct maximum punishment.
As the Judge imposed sentence under a misapprehension, it is appropriate to consider the sentence afresh. The maximum punishment is usually a material matter, and particularly so in relation to offences against s 32 of the Controlled Substances Act 1984 (SA). It is possible that the misstatement of the maximum punishment on count 1 affected the sentence imposed.
The only way to test this is to consider the sentence afresh.
I have done that, as if I were imposing a sentence afresh. I have read the submissions on sentence made to the sentencing Judge, and the material tendered to the sentencing Judge. I have also re-read his reasons.
In my reasons for dismissing the appeal I said that the Judge had been merciful in fixing the head sentence, in particular in making the sentence on count 3 concurrent with the sentence on the first two counts. I said that the relatively low non-parole period reflected “a very merciful approach”.
Approaching the matter afresh, I would not impose a lesser sentence than did the Judge. I can find no basis for doing so. The offences are serious offences, and while there are substantial mitigating circumstances, a sentence of 4 years’ imprisonment for count 1 and count 2 makes full allowance for all of the mitigating circumstances. The order that the sentence imposed on count 3 operate concurrently with the sentence on count 2 is a generous one in the circumstances.
On re-considering the matter my conclusion is that the misstatement of the maximum penalty has not led the sentencing Judge into error when arriving at the sentence. Alternatively, if one assumes error, my conclusion is that in re‑sentencing Mr Nguyen the same sentence should be imposed, because a lesser sentence cannot be justified in the circumstances.
For those reasons, it is appropriate for the Court to take no further action in connection with the appeal. It is not necessary to examine the question of whether the hearing of the appeal can be re-opened: see R v Brain [1999] SASC 358; (1999) 74 SASR 92. It is appropriate for the Court to indicate that it proposes to take no further action, on the basis that if the appeal were re-opened, the result would be that even were the Court to allow the appeal and re-sentence N, the sentence that would be imposed would not be less than the sentence imposed by the sentencing Judge.
GRAY J. I agree that the Court should take no further action in connection with the appeal. I agree with the supplementary reasons of the Chief Justice.
DAVID J. I agree with the order of the Chief Justice that no further action be taken in connection with this appeal. I do so for the reasons he has given.