R v Nguyen - [2005] SASC 329

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Gray)
31 August 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Application by DPP for leave to appeal against sentence – Respondent pleaded guilty to possessing heroin for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984 and unlawful possession contrary to s 41 Summary Offences Act 1953 – Respondent addicted to gambling and accumulated substantial debt – Creditor induced respondent to facilitate sale of heroin as means of repaying debt – Single suspended sentence imposed of 4 years 3 months imprisonment with 2 years non-parole period – Whether decision to suspend was attended by error – Whether irrelevant considerations taken into account – Whether suspension would shock the public conscience – Leave to appeal granted – Appeal allowed – Head sentence confirmed but not suspended – Non-parole period of 15 months fixed.
Controlled Substances Act 1984 (SA) s 32(1)(e); Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(j) and s 18A, referred to.
Everett v The Queen (1984) 181 CLR 295; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; R v Burrt (1987) 139 LSJS 235; R v Mangelsdorf (1995) 66 SASR 60, applied.
R v Watson (1981) 3 A Crim R 254; Police v John (1995) 79 A Crim R 510; R v Di Maria (1996) 67 SASR 466; R v Proon (2003) 85 SASR 120, considered.

R v NGUYEN
[2005] SASC 329
Court of Criminal Appeal: Doyle CJ, Bleby and Gray JJ

DOYLE CJ: I agree with the orders proposed by Bleby J. I agree with his reasons. There is nothing that I wish to add.
BLEBY J: This is an application by the Director of Public Prosecutions for leave to appeal against a sentence imposed by a Judge of the District Court.
The respondent pleaded guilty to one count of possessing heroin for sale contrary to s 32(1)(e) of the Controlled Substances Act 1984 and to one count of unlawful possession contrary to s 41 of the Summary Offences Act 1953 relating to certain electrical equipment and mobile phones.
The offence occurred on 3 November 2003. As a result of a search of the respondent’s house, police located a number of balloons containing in total 5.53g of a white powder, which on analysis was found to contain 1.19g of heroin, indicating the powder was approximately 20% pure heroin. The police also found goods they suspected had been exchanged for drugs, including a DVD player, several VCRs and mobile phones.
The respondent had a serious gambling addiction and had accumulated a large amount of debt as a result. He was induced by a person to whom he owed money to sell heroin as a means of repaying his debt. The respondent had pre-packaged heroin delivered to him. He would take telephone calls from buyers, arrange to meet them and give them the heroin in exchange for cash and occasionally electrical equipment if buyers did not have enough money. The proceeds were then collected from the respondent by his creditor. His debt was incrementally reduced by $20 each time he concluded a deal worth $100. The respondent admitted to having sold heroin over a period of approximately two months. During this time he reduced his debt of about $12,000 to about $6,000, which is an average of about five $100 deals per day. He was not himself a consumer of heroin.
The maximum penalty for possession for sale of the amount of heroin found by police is a fine of $200,000 or imprisonment for 25 years or both and for unlawful possession a fine of $10,000 or imprisonment for 2 years.
The Judge imposed a single sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. He would have imposed a sentence of five years imprisonment were it not for the respondent’s pleas of guilty. The Judge allowed a discount of about 15% for those pleas and fixed a sentence of four years and three months imprisonment with a non-parole period of two years. He then exercised his discretion to suspend the sentence conditional upon the respondent entering into a bond in the sum of $100 to be of good behaviour for two years, to be under the supervision of an officer of the Department of Correctional Services, to obey that officer’s directions to undertake psychological counselling and to refrain from attending the Adelaide Casino during the period of the bond. It is the suspension of the sentence against which the Director now seeks leave to appeal.
The Director submits that the suspended sentence is manifestly inadequate and so far below the appropriate range of sentence that it amounts to an error of principle or would shock the public conscience and impair public confidence in the administration of justice.[1]
[1] Everett v The Queen (1994) 181 CLR 295 at 299-300; R v Osenkowski (1982) 30 SASR 212 at 213; R v Nemer (2003) 87 SASR 168 at [24]
The Director submits that the sentencing Judge placed too much weight on the personal circumstances of the respondent and gave insufficient weight to both personal and general deterrence and to the fact that the offending was part of a course of conduct.
The respondent, who is now 43, has had a difficult life. He was born in Vietnam, the fifth child in a family of 10 children. Although his childhood was happy prior to the Vietnam War, it was disrupted when his father was taken and imprisoned due to his political affiliations. The respondent was then aged 13. When the respondent was 19 he fled Vietnam by boat to avoid military service. The boat sank and he then spent about six years in displaced persons camps first in China and later in Hong Kong before being sponsored by one of his brothers to come to Australia.
He arrived in Adelaide in 1985 and described it as the happiest day of his life. He studied English and began working at the Holden factory in Elizabeth. He discovered that the rest of his family was still in Vietnam and began sending money back to support them. His father, whose whereabouts had been unknown to the respondent throughout the previous decade, survived his imprisonment but died as a result of illness shortly after his release. The respondent was very upset that he was unable to see his father again before he died.
In 1987 the respondent became unemployed and began to gamble. He had been good at games involving elements of gambling as a child in Vietnam and believed that he would be successful in winning money. He enjoyed the company of friends at the Adelaide Casino. The following year he married and between 1989 and 1991 had three daughters. During this time the respondent was working part time in a restaurant, as a cleaner and picking fruit. He continued to gamble and this ultimately led to the breakdown of his marriage and divorce in 1992. His former wife, believing him to be irresponsible and unworthy father, refused to allow the respondent to see his daughters.
The respondent’s gambling escalated after his divorce. He continued to work but spent many hours at the casino. In 1996 he gained employment as a salesperson in an electrical goods store. His income increased and he was able to apply for a number of credit cards, personal loans and lines of credit. He gambled away his earnings and accrued a large amount of debt using these high interest credit facilities. The respondent then began borrowing money from friends and acquaintances. He owed one man about $10,000. In 1999 when the respondent realised he would not be able to repay his debts he decided to run away to Melbourne.
The respondent spent about four years in Melbourne. He worked selling electrical goods for most of that time but was unemployed for a period of nine months. He continued to gamble at the Melbourne Casino and lost most of his wages. The respondent did not make child support payments to his former wife and accrued a debt of about $8,000 in this respect.
In 2003 he decided to return to Adelaide with his partner who he had met in Melbourne. He wanted to be closer to his friends and family and felt he needed to face his debts. The person to whom he owed the private debt of $10,000 plus interest demanded that the debt be repaid in full immediately. The respondent was in real fear for his personal safety. When he conceded that he could not repay the debt, the lender induced him to do so by facilitating the sale of heroin in the manner previously described. He did not himself buy and sell the heroin but was a provider. The respondent began arranging the heroin sales in about September 2003 and continued to do so for about two months until his arrest.
Since his arrest the respondent, with the assistance of his partner, has made a concerted effort to reform his ways. He has stopped gambling and has not visited the casino since mid 2004. Since September 2004 he has been employed at an electrical store and has been very successful in his role as a salesperson. He has a good base salary which he has been able to add to by way of bonuses. His employer is very happy with his work. At the time of sentencing, the respondent had reduced his credit card debts to all but a few hundred dollars. He had also made significant inroads into reducing the debt relating to unpaid child support. The respondent’s main goals, as submitted by his counsel, were to repay all of his debts, particularly the child support, as quickly as he is able, to continue to abstain from gambling and to become financially secure to allow him better to support his three daughters. Ultimately he would like to restore regular contact with them.
The sentencing Judge had the report of a psychologist before him. The psychologist diagnosed the respondent as a pathological gambler. He carried out several personality tests and determined that a number of interpersonal and emotional problems made the respondent more susceptible to becoming addicted to gambling than the average person. The psychologist’s opinion was that the personality problems suffered by the respondent could be attributable to the difficult life experiences the respondent had had to cope with, particularly the extended period of time he spent in refugee camps. He recommended that the respondent undergo counselling to assist him to manage his gambling addiction and also to help him to understand and deal with other emotional stress such as grief relating to the death of his father, his experiences as a young man living as a refugee, the breakdown of his marriage and the subsequent separation from his daughters.
The respondent had several convictions for offences of dishonesty for which fines had been imposed, but none occurring after his arrest for these offences. All appear to have been induced by his gambling addiction.
In deciding to suspend the sentence the sentencing Judge said:
I may only suspend this sentence if I am of the view that good reason to do so exists. For the reasons I have mentioned, I am of that view. In my opinion, this is an appropriate matter in which to recognise your quite different personal circumstances, your long-term psychological difficulty and the fact that you were, in the true sense, a non-using street salesman who has now demonstrably changed the shape and purpose of your life.
Such a circumstance cannot benefit the community by serving a prison sentence at this time. Indeed, the very opposite may well be so. In my view, this is one of those relatively rare cases where mercy may be offered in the full expectation that it will be rewarded.
In one sense, there is a certain futility in committing the respondent to a custodial sentence. He has continuous and rewarding employment which he will lose if he is required to serve the sentence. He will be exposed to further criminal influences. He will be unable to continue to repay his debts. His children and his relationship with them will be the most affected by that. His ability to affirm the rejection of his gambling addiction by appropriate counselling will be jeopardised. I can well understand the desire of the sentencing Judge to avoid an immediate custodial sentence for the appellant. There were powerful factors in favour of the course he took. However, the process by which he arrived at that result was attended by error.
In the course of his sentencing remarks the Judge said:
It is important to note that your activity with heroin was as a provider. You did not buy and sell for profit and you did not use heroin.
That seems to have been a relevant factor in the Judge’s decision to suspend the sentence. While the appellant did not buy and sell heroin, it cannot be said that he did not profit from the activity. By every sale he made he derived a benefit by reduction of an existing debt which he would otherwise have had to repay.
The second error relates to the observation which also carried some weight with the sentencing Judge:
In this case, I accept that there is a significantly reduced need for personal deterrence as you have never been a heroin user.
The deterrent effect of any sentence is a matter to which the Court should have regard in fixing the sentence.[2] That includes both personal and general deterrence. The point about that is, however, that it is deterrence against further offending of the same type which is relevant, not deterrence against a continuing addiction, whether it be to drugs or to gambling. There may be cases where an addiction drives the offending in the sense that the offence is committed solely to enable the addiction to be satisfied. In such cases, there may be an indirect deterrence against continuing the addiction. But deterrence, for sentencing purposes, must always be directed against further offending of the type for which the person is being sentenced. In that sense, the fact of an addiction is not relevant. The Judge was therefore wrong to suggest that the need for personal deterrence was reduced because the appellant was not a heroin user.
[2] Section 10(1)(j) Criminal Law (Sentencing) Act 1988
In this case, it is apparent that the appellant’s offending was not in order to maintain his gambling addiction. That addiction continued while he was selling the heroin for no cash benefit. The sale of heroin did not feed his addiction. Moreover, the gambling continued for six months after the offending had ceased. The appellant had a choice, albeit limited, as to how he might repay the debt. He chose to repay it by breaking the law. The need for personal deterrence was not reduced by the fact that he was not a heroin user or, for that matter, by the fact that he was at the time a continuing gambling addict.[3]
[3] R v Watson (1981) 3 A Crim R 254 at 255; Police v John (1995) 79 A Crim R 510 at 511-512; R v Di Maria (1996) 67 SASR 466 at 476; R v Proon (2003) 85 SASR 120 at 127 [36]
The sentencing Judge mentioned that the appellant felt threatened by those to whom he owed the debt and was in real fear for his personal safety. The nature of such threats was never revealed. However, a plea based on fear or desperation driving an offence of armed robbery was rejected in R v Burrt[4] where King CJ said:
It seems to me, however, that the weight which can be given to this factor as extenuating the crimes or mitigating the punishment, must be very limited. The respondent’s story amounts to saying that he gambled with money which he did not have and that, being unable to pay the gambling debt, he was subjected to pressure. Many people are under pressures of various kinds arising out of their habits or associations, to commit crime. It seems to me that the courts must be extremely cautious about accepting the existence of such pressures as a factor in mitigation of penalty for crime, especially for serious crime. The criminal law exists for the protection of the community. One of its purposes is to apply pressures, called deterrents, to those tempted to commit crime which will act as a counter to whatever pressures may be tempting such persons in the direction of crime. Many people who mix in criminal circles or who engage in undesirable habits, find themselves under great pressure to commit crime. It important that the sanctions of the criminal law operate to deter such people.
[4] (1987) 139 LSJS 235 at 236
There is no reason why a similar approach should not apply to this offending.
The principal personal factors in the appellant’s favour related to his likely rehabilitation from a gambling addiction and the redirection of his available financial resources to repayment of his debts, especially for the maintenance of his children. Those factors require positive reinforcement if he is to continue as a responsible member of the community. However, it seems that the sentencing Judge allowed those personal considerations, coupled with the other errors I have identified, to dominate the approach to sentencing.
By his actions, the appellant was exploiting the weaknesses of others addicted to heroin. As was observed in R v Mangelsforf[5], the street trade in drugs continues because of the participation in it of those like the respondent. The public interest in deterring that trade must be uppermost in the Judge’s mind.
[5] (1995) 66 SASR 60 at 70
Having identified that the sentencing Judge fell into error, that is not sufficient in itself to justify allowing an appeal by the Director. I doubt whether the errors which have been identified could properly be described as errors of principle such as would justify intervention by this Court on a prosecution appeal. The question is whether, as the director properly acknowledged in his submissions, the resultant sentence would shock the public conscience and impair public confidence in the administration of justice.
In R v Mangelsdorf[6] this Court conducted a comprehensive review of penalties for offences against s 32 of the Controlled Substances Act. All three cases then before the Court were appeals by the DPP. Mangelsdorf himself had been convicted of one count of possessing heroin for sale in circumstances attracting the same maximum penalty as the respondent in this case. He had been selling about 10 to 12 “tastes” per day for about two months. As with the respondent in this case, he was dealt with on the basis that the offence formed part of a course of conduct consisting of a series of offences of a similar character. As in this case, the respondent was a street trader, and the offence had a commercial flavour to it. He pleaded guilty and made full and frank admissions to the police.
[6] (1995) 66 SASR 60
Mangelsdorf’s personal circumstances were described by the Chief Justice as “sad, and perhaps tragic, but unfortunately they are not unique”. He had no previous convictions but had become addicted to heroin in an attempt to secure pain relief following a back injury. He had begun selling heroin in order to provide himself with the heroin upon which he was then dependent. Since his arrest he had attempted to overcome his addiction and the prospects of his doing so were described as “reasonably good”. The sentencing Judge had imposed a sentence of 18 months imprisonment with a non-parole period of 12 months, and had suspended the sentence.
This Court held that the sentence was manifestly inadequate and of a type that would shock the public conscience and impair public confidence in the administration of justice. The Court substituted a sentence of 4 years imprisonment with a non-parole period of 18 months. It declined to suspend the sentence.

Of Mr Mangelsdorf’s mitigating circumstances the Chief Justice said:[7]
This was an offence which was characteristic of its type. Against the mitigating circumstances, and the sympathy which one feels for Mr Mangelsdorf, must be set the seriousness of the offence and the fact that the trade in heroin continues because of the participation of street traders like Mr Mangelsdorf, many of whose personal circumstances equally excite sympathy. The sad fact of addiction is a recurring theme in these cases, as is, although less commonly, its origin in some injury or personal tragedy. The impact of the sentence on Mr Mangelsdorf’s family is a cause for concern but it is only in exceptional cases that that can be taken into account.
…
It has to be said yet again that in dealing with offences such as this, individual and general deterrence must be given great weight. The public interest in deterring those who would trade in heroin must be uppermost in the judge’s mind.
[7] Ibid at 70. Prior and Williams JJ agreed.
On the question of suspension the Chief Justice said:[8]
In my opinion it was wrong to suspend the sentence. For offences of such seriousness, suspension must be rare indeed. In my opinion the circumstances of this case, cogent as they are, do not justify the decision which the judge made. To allow suspension of the sentence in such a case would, in my opinion, tend to erode the standard of punishment which this Court has set as appropriate for this offence. As King CJ said in R v Taddeo (1993) 67 A Crim R 338 at 340 in words equally applicable to the heroin trade:
“It would send an entirely wrong signal to people who are tempted to engage in cannabis trading and could only tend to weaken the defences which the community expects to be erected and maintained against the drug trade.”
[8] Ibid at 70-71
While comparison with other cases on sentencing appeals can often be odious, this particular decision of the Full Court must carry substantial weight in this case, at least on the question of suspension of any sentence. The circumstances are almost indistinguishable. The nature and period of trading was similar. While one defendant was driven by an addiction, the other was driven by the need to repay debts caused by an addiction. Both defendants were driven by an addiction. Both demonstrated good prospects of rehabilitation. Both demonstrated personal circumstances that could command a great deal of sympathy.
In those circumstances this Court is constrained to do likewise and to uphold the Director’s appeal in relation to the suspension of the sentence.
On the other hand the sentencing Judge correctly identified the very strong prospects of rehabilitation of the appellant and the unlikelihood, in present circumstances, that he would offend again. While the circumstances of the offending require an immediate custodial sentence, some greater recognition to the appellant’s prospects of rehabilitation should be given in the setting of the non‑parole period. In the absence of a suspended sentence I consider that two years is too long. I also give some recognition to the fact that since the date of sentencing the appellant has been subject to the obligations imposed by the bond.
I would grant leave to appeal. I would allow the appeal. In all the circumstances I would confirm the head sentence of four years and three months imprisonment. I would set a non‑parole period of 15 months. I would not suspend the sentence. I would direct that the head sentence and non-parole period are to commence from the time when the appellant is taken into custody.
GRAY J: I would grant leave to appeal and allow the appeal. I agree with the sentence proposed by Bleby J. I agree with his reasons.