R v Nguyen

Case [2004] SASC 405

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NGUYEN

Judgment of The Court of Criminal Appeal

(The Honourable Justice Duggan, The Honourable Justice Bleby and The Honourable Justice Anderson)

7 December 2004

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES

Appeal against sentence - Plea of guilty to one count of knowingly taking part in the sale of heroin - Agreed factual basis of the plea - Appellant knowingly allowed two of her children to sell heroin from her residence - Appellant indirectly benefited financially from the sale - Sentenced to five years imprisonment with a non-parole period of two years - Whether allowance should have been made for guilty plea - Whether allowance should have been made for prevous periods in custody and on home detention bail - Whether appropriate weight given to Appellant's personal circumstances - Whether sentence manifestly excessive - Whether sentencing Judge erred in failing to suspend the sentence - Appeal allowed - Reduction in sentence

Controlled Substances Act 1984 s 32, s 44; Criminal Law Sentencing Act 1988 s 30(2)(a), s 10, s 11; Criminal Assets Confiscation Act 1996 s 8, s 9, s 10, s 15, referred to.
Signato v The Queen (1998) 194 CLR 656; Cameron v The Queen (2002) 209 CLR 339, applied.
R v Allen (1999) SASC 321; R v Malesevic (1999) 204 LSJS 32; R v Carpentieri (2001) 81 SASR 164; O'Malley v French (1971) 2 SASR 110; Anderson v The Queen (1993) 177 CLR 520; R v Perre (1986) 41 SASR 105; R v Mangelsdorf (1995) 66 SASR 60, considered.

R v NGUYEN
[2004] SASC 405

Court of Criminal Appeal: Duggan, Bleby and Anderson JJ.

  1. DUGGAN J:         The background to this appeal and the circumstances surrounding the offence are set out in detail in the reasons for decision of Bleby J.

  2. I agree with Bleby J and Anderson J that this appeal should be allowed.  In reaching this view I place particular reliance on two factors.  Firstly, no allowance was made for the plea of guilty.  The uncontested history of the steps which led to the plea render it appropriate that some reduction be made on this account.  Secondly, I think that insufficient regard was paid to the unique circumstances of the offending which justified a measure of leniency.

  3. Nevertheless, the appellant committed a serious offence of a continuous nature.  Of particular relevance is the fact that she permitted an apparently well-organised operation for the sale of heroin to take place over a period of approximately 12 months.  It was not suggested that she was unaware that her children were breaking the law in a serious way by selling heroin and she must have realised that she was assisting them to do so.  An aggravating feature of her offending was that she appears to have continued despite the first police search of the premises and after…

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AGLC
R v Nguyen [2004] SASC 405
Case
[2004] SASC 405
Decision Date

CaseChat Overview and Summary

The appeal was brought by Nguyen against her sentence for knowingly taking part in the sale of heroin. Nguyen allowed two of her children to sell heroin from her residence, indirectly benefiting financially from the sale. She was sentenced to five years imprisonment with a non-parole period of two years. The legal issues before the court were whether the sentencing judge should have allowed for the guilty plea, previous periods in custody, and home detention bail, and whether the appropriate weight was given to Nguyen's personal circumstances, and whether the sentence was manifestly excessive and if the sentencing judge erred in failing to suspend the sentence.

The court found that Nguyen's personal circumstances were relevant to the sentence which should be imposed. The delay in sentencing, the appellant's heritage, background, migration, and life in Australia since migration were all relevant. The court agreed with the exercise carried out regarding the time spent in custody and on home detention, and concluded that the sentence imposed was manifestly excessive. However, the court did not agree that the sentence should be suspended. The court found that there are a variety of factors which require the appellant to serve a term of imprisonment.

The appeal was allowed, and the sentence was reduced. The court fixed a fresh head sentence of two years and eight months with a non-parole period of ten months, to take effect from the date of the decision. The court directed that the sentence be suspended on condition that Nguyen enter into a bond to be of good behaviour for a period of two years, under the supervision of a Community Corrections Officer, and obey the lawful directions of the officer assigned to her. However, as the majority of the Court did not favour suspension of the sentence, the appropriate sentence to be imposed was a head sentence of three years and one month with a non-parole period of fifteen months, commencing on a specified date. The court made this order on the condition that any forfeiture of Nguyen's property was limited to the purpose of recovering any benefit which she had received or in which she had participated with members of her family.

Orders

Orders of the court

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Background

Background to the litigation

In order to understand the nature and circumstances of the offending and the delay in excess of three years between committal for trial and sentence, it is necessary to recite some of the appellant’s relevant personal circumstances.Background to the offence The two children engaged in the selling of heroin from the premises were a son then aged 19 and a daughter then aged 18. They were living at home with the appellant and the appellant’s younger children. The appellant was born in Vietnam in 1962 and grew up in Saigon. She was one of eight children. In 1975, at the end of the Vietnam war, her family was relocated from their relatively affluent existence in Saigon to a “new economic zone” in Long Khanh Province. She eventually left school in order to help her parents. Her father had been a South Vietnamese soldier. He had been injured and received a small disability allowance. The family had very little money or food. She helped her father work on a farm and helped her mother to run a small market stall in the local village. She had an older brother who died from heroin use. Life was difficult in the new economic zone. Work was constant and the appellant had no friends. She eventually began working less on the farm and more with her mother on the village stall. In 1980, the appellant married, and between 1981 and 1985 had three children. In 1985 her husband died as a result of a motor vehicle accident. Thereafter until 1990, in order to support her family financially, the appellant divided her children amongst various relatives during the day so that she could work at the market and spend the nights with her children. The appellant decided that there was no future for her and her children in Vietnam. In 1990 she fled Vietnam by boat leaving her three children with relatives in Vietnam. She ended up in a refugee camp in Malaysia. It was her intention that, upon settlement in another country, she would seek to arrange for her children to join her. She made her way from Malaysia to Australia where she was resettled as a refugee in 1990. Three years later she was able to sponsor her children to come to Australia. She has had no immediate family support in Australia other than, more recently, a married brother and his family. Her parents remained in Vietnam, her father having since died. While at secondary school in Australia her eldest son began exhibiting behaviour problems. He left school at an early age and ran away from home several times. He began to use heroin. Eventually he began selling heroin in order to fund his own addiction and in order to make some money. The next child, a daughter, followed a similar behaviour pattern, and under the influence of her elder brother commenced using heroin also. She became addicted and ultimately began selling. Her third child, a son, was likewise affected and spent some time in prison. After learning that her two eldest children were addicted to and selling heroin she evicted them from the house. However, the children caused problems in the Vietnamese community with criminal activity to support their addiction. The appellant made a decision that it was better to have her children back at home where she could try and exert some control over them. They resumed living in the appellant’s house at the beginning of the period the subject of the charge.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Accordingly, I would have suspended the sentence upon the appellant entering into a good behaviour bond under the supervision of a Correctional Services Officer. Supervision would ensure that, if the circumstances remain appropriate and if the opportunity is available, she can be required to undertake the therapy contemplated by Mr Ireland.Conclusion It follows that in my opinion the appeal should be allowed and the appellant re-sentenced as at today’s date taking into account her time already spent in custody. Including the week spent in custody in December 2000 the appellant has now served in excess of three months in custody. If she is to be re-sentenced, and particularly if the sentence should properly have been suspended, that period must be brought into account. She has been deprived of the ability to have that portion of the sentence suspended. Taking that into account I would now fix a fresh head sentence of two years and eight months with a non-parole period of ten months, the head sentence and non-parole period to take effect from today. I would direct that the sentence be suspended on condition that she enter into a bond to be a good behaviour for a period of two years, that she be under the supervision of a Community Corrections Officer for the period of the bond and that she obey the lawful directions of the Community Corrections Officer to whom she is assigned. However, as the majority of the Court does not favour suspension of the sentence, the appropriate sentence now to be imposed is that which I consider should have been imposed by the sentencing Judge, namely a head sentence of three years and one month with a non-parole period of fifteen months, the head sentence and non-parole period commencing on 5 August 2004. I would make this order on the footing that any forfeiture of the appellant’s property is limited to the purpose of recovering any benefit which the appellant has received herself or in which she has participated with members of her family. ANDERSON J: I have read the draft reasons of Bleby J which set out in detail the relevant background facts surrounding this matter. I agree that all of the appellant’s personal circumstances as set out by his Honour are relevant to the sentence which should be imposed. In particular, her heritage, background and migration are all relevant. So is her life in Australia since she migrated. The circumstances of delay are also relevant prior to the plea of guilty which was entered when the new Information was filed. I am also in general agreement with his Honour in relation to the exercise he carried out regarding the time spent in custody and on home detention, and I agree with his conclusion that the sentence imposed was manifestly excessive. However, I do not agree that the sentence should be suspended. It is my view that there are a variety of factors which require the appellant to serve a term of imprisonment. There has clearly been a very large commercial operation carried on from within the appellant’s house, by members of her family, under her eyes and with her approval.

Ratio Decidendi

Legal Principle Established

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