R v Nguyen
[2000] VSCA 189
•20 September 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 185 of 1999
| THE QUEEN |
| v. |
| MANH TUAN NGUYEN |
---
JUDGES: | PHILLIPS, C.J., CHARLES and CALLAWAY, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 September 2000 | |
DATE OF JUDGMENT: | 20 September 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 189 | (1st revision – 13 October 2000) |
---
Criminal law – Appeal against sentence – Allegation of manifest disparity with sentence on co-offender upheld – Exceptional assistance to authorities by appellant – Sentence reduced.
---
APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. G.M. Horgan | P.C. Wood, Solicitor for Public Prosecutions |
| For the Appellant | Mr. D.B. Baker | Victoria Legal Aid |
PHILLIPS, C.J.:
The appellant, who is aged 32, pleaded guilty in the County Court at Melbourne to a presentment containing one count of aggravated burglary (count 1) and one count of theft (count 2). These offences, which carried maximum penalties of 25 years' and 10 years' imprisonment respectively, were committed at St Albans on 15 February 1999.
The appellant admitted eight prior convictions from four previous court appearances between 1990 and 1998. His earlier prior convictions included three for theft and one for trafficking in a drug of dependence. In August 1998, at the Melbourne Magistrates' Court, he was convicted on a charge of recklessly causing serious injury arising out of a domestic dispute and ultimately received an intensive correction order by way of penalty, which order he was undergoing at the time of the commission of the instant offences. On 19 May 1999 the appellant, who was then on bail in relation to these offences, was sentenced to 132 days' imprisonment for breach of the intensive correction order.
In the course of a plea for leniency the learned judge heard viva voce evidence from a detective named Tulley, who spoke of the appellant surrendering himself, making admissions and assisting in the identification and apprehension of two co-offenders; the appellant's wife, who spoke of his history of drug addiction, a psychiatric admission and the availability of work for him on his release; and the appellant, who confirmed these matters and the contents of a statement he had made to the police on 19 February 1999. The appellant gave a sworn undertaking that he was prepared to give evidence at proceedings against his co-accused, named McKenzie and Johnston. The learned judge also received a bundle of documents tendered on the appellant's behalf.
On 24 August 1999 the appellant was sentenced to be imprisoned for three-and-a-half years on count 1 and one year on count 2, making for a total effective sentence of three-and-a-half years' imprisonment, which sentence was directed to be served cumulatively on the sentence he was then undergoing, namely, the sentence of 132 days' imprisonment. His Honour fixed a non-parole period of one year and eight months.
The appellant later lodged notice of application for leave to appeal against sentence, pleading the following grounds:
"1.The learned sentencing judge erred in that he failed to give sufficient weight to the applicant's co-operation and assistance in the investigation.
2.The learned sentencing judge erred in that he failed to give sufficient weight to the applicant's undertaking to give evidence against his co-accused.
3.The learned sentencing judge erred in that he failed to give sufficient weight to the applicant's prospects of rehabilitation.
4. The sentence was in all the circumstances manifestly excessive."
Leave to appeal was granted on 19 June 2000. When the appeal was called on, and after some discussion, counsel for the appellant sought leave to add an additional ground in the following terms:
"5.That the sentence imposed on the appellant offends against the principle of parity when compared with that imposed on the co-offender Johnston."
Such leave was also granted.
I have said there were two co-offenders. The first of these was Philip Raymond Johnston, now aged 37. The second was Christopher McKenzie, now aged 38. On 30 August 1999 these men were committed for trial in the County Court on charges of aggravated burglary, false imprisonment and armed robbery. They reserved their pleas. The appellant had been one of the witnesses against them in this proceeding.
On 30 November 1999 Johnston's solicitors sent a letter to the Director of Public Prosecutions confirming their client was prepared to provide a written statement to the police and to give evidence against McKenzie at his trial. On 7 March 2000 Johnston made the statement admitting his own part, implicating the appellant and McKenzie and two other Asians in the instant offences.
On 27 March last Johnston pleaded guilty to one count of aggravated burglary and one count of robbery before a judge other than the sentencing judge in this matter. Johnston had 114 prior convictions from nine previous Magistrates' Court appearances from 1981 to 1998, including convictions for burglary, theft and other prior convictions for dishonesty and violent offences.
After a plea for leniency, during which Johnston gave sworn evidence which included an undertaking to give evidence against McKenzie, the learned judge on 12 April last sentenced Johnston to three-and-a-half years' imprisonment for the offence of aggravated burglary and two years' imprisonment for the other count, making for a total effective sentence of three-and-a-half years' imprisonment. A non-parole period of two years and three months was fixed and a declaration made as to 399 days' pre-sentence detention. Johnston later lodged notice of application for leave to appeal against sentence, which application he later decided to abandon. As I believe this judgment will later demonstrate, that decision was a decidedly prudential one.
In the meantime, McKenzie had pleaded guilty on 28 March to a like presentment and was later sentenced by the judge who had sentenced Johnston to four-and-a-half years' imprisonment for aggravated burglary, four-and-a-half years' imprisonment for armed robbery, two years' imprisonment for burglary and one year's imprisonment for theft. Cumulation directions made for a total effective sentence of four years and nine months' imprisonment and his Honour fixed a non-parole period of three years and made a declaration of 399 days' pre-sentence detention. McKenzie had admitted 21 prior convictions from eight previous court appearances, including offences of dishonesty and burglary and violent offences. No argument touching parity has been advanced in relation to McKenzie's sentence. I mention these matters because it is likely that Johnston's conduct produced McKenzie's plea of guilty before the court.
It is now necessary to set out in summary form the evidence relating to these offences, and I refer to the summary of evidence supplied to the court, which has not been challenged. On 15 February 1999 Kanh Le, aged 21 years, and her brother Son Le, aged 23 years, were residing at 185 St Albans Road, St Albans. Son Le was a dealer in heroin and the appellant one of his customers. The appellant was a heroin addict and had met McKenzie and Johnston in the detoxification centre at Western Hospital a few days earlier. The appellant told them that Son Le, known as "Jimmy", was a drug dealer and often had heroin and, from time to time, large amounts of money in his house.
In the afternoon on 15 February 1999 the appellant and another Asian male knocked on Son Le's front door at about 4 p.m. Son and Kanh Le stood outside the door while the appellant and Son Le discussed a drug debt owed by the appellant to Le. The appellant wished to purchase more heroin from Le, who refused to sell to him again. The appellant and the other male went to Footscray to try and buy some heroin.
That morning Johnston had received a telephone call from McKenzie. Johnston agreed to visit McKenzie later in the day. McKenzie wanted him to wear a suit. After attending a job interview at the Sedano Cheese Factory, Johnston returned to his home in Hoppers Crossing and injected himself with heroin and speed. He then drove in his car to McKenzie's home in Braybrook, arriving at about 1 or 2 p.m. McKenzie talked about needing money to purchase drugs. They discussed stealing money and drugs from Son Le's home. McKenzie suggested that they dress in suits and pretend to be police. They did so. McKenzie rang the appellant to discuss the burglary; however, the appellant was not at home. McKenzie showed Johnston an imitation gun that he intended to carry, made of wood, with a metal pipe for a barrel. After injecting themselves with heroin and ingesting Normison prescription tablets, the two men went to Footscray and ultimately found the appellant there.
The appellant, on a promise of receiving some heroin or proceeds from the proposed burglary, agreed to take McKenzie and Johnston to Son Le's house. The appellant and the other two Asian men involved were concerned about being recognised by Son Le or his sister if they were at home. In the early evening, the appellant, accompanied by two other men known as Phung and Khang, drove to Le's home in the appellant's van. Johnston and McKenzie followed in the appellant's car.
According to the appellant, he parked his van about two houses away from Le's home. At this stage he did not know whether Son or Kanh would be home. He remained outside in the van with Phung and Khang while the other two went around to the back door. After about ten minutes, Johnston came out of the house and told them to go in. The appellant stated that he remained in the car with Khang and that Phung went in. Phung returned a short time later because, he said, there was a girl in the house who had seen him.
The appellant stated that Johnston came out again. Following his directions, the appellant reversed the van into the drive to load some electrical equipment that Johnston had left there. Khang and Phung loaded the equipment into the back of the van, with the appellant remaining in his seat.
According to Johnston, when they arrived at the house he parked some distance away and he and McKenzie walked back. The others were in the van, driving back and forth past the house. He and McKenzie knocked on the front door and nobody answered. They went to a side door and knocked, with still no answer. Johnston observed an alarm, which concerned him. He started to walk back towards the front of the property and McKenzie went around to the back of the house. McKenzie yelled out that there was a window open and that he was going in. McKenzie ultimately opened the front door. Johnston stated that he signalled to the three Asians and they all went inside the property.
Inside the house McKenzie came across Kanh Le. McKenzie was carrying what looked to Kanh to be a pistol. A demand for money was made of her. McKenzie pushed Ms Le to the floor and tied her hands behind her back. According to Ms Le, the first man called out and a second Caucasian man, dressed in a green suit, joined the man holding the pistol and she was pushed into an en suite bathroom attached to the main bedroom. The door was locked. Son Le, who was on the toilet, was then confronted by the man holding the pistol. Son Le then saw a second Caucasian man in a dark suit. A demand for money was made and Le's hands were tied up. He was also forcibly taken to the en suite bathroom. He was, according to him, punched in the head on a number of occasions. Neither Kanh nor Son Le referred to seeing any other men present during the invasion. The house was ransacked. Money, clothing, jewellery and electrical equipment were stolen.
According to Johnston, he found $900 under a mattress in a bedroom, where he and the Asians were searching. McKenzie came into the room and told them that he had found a girl in the house, tied her up and locked her in the en suite bathroom. McKenzie opened a bathroom door and they saw an Asian male. McKenzie forced him into the en suite with the girl. This is the first time that Johnston saw the girl. The two victims were tied with electrical cables that Johnston had seen hanging out of McKenzie's pocket earlier that day. Johnston stated that things had got out of hand and he left the house. He saw the Asians loading some stolen merchandise into the van, which was parked across the driveway on the nature strip.
Johnston went to his car and drove off. The appellant drove his van out of the driveway. Worried about having left McKenzie behind, Johnston drove back to the house and, observed by the appellant, who was waiting at the lights, drove into the driveway. He got out of the car and called out to McKenzie. There was no answer. The appellant observed another vehicle approach the house and turn into the driveway. According to Johnston, another car drove into the entrance of the property and on to the grass. He got in his car and drove away.
The appellant and Johnston drove a short distance and Johnston stopped to pick up McKenzie who had walked away from the house. Johnston stated that one of the Asians was with McKenzie. The appellant then drove to a nearby street and, according to him, was soon after joined by McKenzie and Johnston. Johnston gave the appellant and the others $170 each in cash. The appellant gave Johnston a stereo and retained a speaker, a video and a laser disk. The appellant, Khang and Phung drove to the appellant's home. They stored the electrical equipment in the garage and went to Somerville to purchase heroin. As they were driving in the car, McKenzie pulled out $5,000, which he shared with Johnston. Johnston and McKenzie drove to a friend's house where they injected heroin. Johnston then dropped McKenzie and his friend off somewhere else and went home. Johnston, on his own statement, got $2,700 in cash from the robbery, plus a stereo recorder, which he later sold for $200.
I now turn to the arguments of counsel on the appeal. Mr Baker for the appellant, addressing ground 5, began by tendering a letter from certain police officers dated 19 June last. This was received and marked Exhibit 1. Mr Baker submitted that there was great dissimilarity between the prior convictions of the appellant and Johnston. Those of Johnston, he contended, displayed much greater criminality. The next matter that loomed large, said Mr Baker, was the respective roles of the appellant and Johnston in the offences. The sentencing judge had accepted that the appellant did not enter the premises, no doubt because, had he done so, he would have been immediately recognised. McKenzie had entered the house through a window and had let Johnston in. They were involved in the violence inside the house, whereas the appellant was not. Mr Baker pointed out that after the offence Johnston committed another burglary at a golf club, for which he was caught, whereas the appellant had turned himself in to the police some four days later, in circumstances where he was not even a suspect. Mr Baker pointed out the sentencing judge of Johnston did not find remorse, but the sentencing judge of the appellant did do so. Referring to relevant statistics, Mr Baker contended for a sentence of some two years' imprisonment should the Court decide to intervene in this matter.
Mr Horgan for the Crown submitted that these crimes would not have been committed were it not for the information that the appellant had given about the victim to the co-offenders. Mr Horgan pointed out that both the appellant and Johnston were sentenced on the basis that their accounts of their involvement in the offences were true. Mr Horgan submitted it was likely that Johnston's offer to give evidence produced a plea of guilty from McKenzie. Finally, speaking rhetorically, I think, Mr Horgan suggested it was difficult in circumstances where the offences were serious to say what would be an appropriate sentence if some alteration of the appellant's sentence were made on account of parity.
I now turn to my conclusions. I would uphold ground 5. The principles relevant to the resolution of such a ground are conveniently set out in the judgment of my brother Callaway in R. v. Taudevin[1]. After explaining that an appellate court intervenes because of disparity only when the difference between the relevant sentences is manifestly excessive and such as to engender a justifiable sense of grievance or to give the appearance in the mind of an objective observer that justice has not been done, his Honour noted: "[I]t is certainly true that a sense of grievance is not justifiable unless it would be shared by an objective observer."
[1][1996] 2 V.R. 402, commencing at p.404
It is now necessary to refer to some comparisons which need to be drawn between the appellant and Johnston. The appellant is aged 32; Johnston is aged 37. The appellant's eight prior convictions occurred in late 1990 and early 1991, with a gap of nearly seven-and-a-half years then occurring before a further conviction in late 1998. Four of these offences were for dishonesty but none was for burglary. He was given in relation to some of these matters a community-based order and an intensive correction order as punishments. He breached the latter of these. He was sentenced to imprisonment twice, the greater of these sentences being but two months. Johnston's 114 prior convictions occurred from February 1981 to February 1998. There was a gap between 1981 and 1991. No fewer than 82 of these prior convictions were for offences of dishonesty, including 36 burglaries. He has been sentenced to terms of imprisonment on over 60 occasions. Each time he was given a community-based order, a suspended sentence or a s.28 sentencing order, he breached the trust that the court had placed in him. The second count to which the appellant pleaded guilty was a count of theft with a maximum penalty of 10 years' imprisonment. The second count to which Johnston pleaded guilty was one of robbery, for which the maximum penalty is 15 years' imprisonment. Both men assisted the police and the prosecution authorities. The appellant, as I have said, four days after the offences voluntarily surrendered himself to them in circumstances where he was not a suspect. Both men gave sworn undertakings to give prosecution evidence. The appellant actually did so, but it may be that Johnston's undertaking produced a plea of guilty from McKenzie. Some other matters may be mentioned. Johnston had a problem with alcohol, three children and a somewhat favourable employment record, but, to my mind, he played a significantly more prominent part in the offences than did the appellant. The appellant was a heroin addict and he also had three children, but in my opinion he played a significantly lesser role in the offences and he had been much more helpful in his co-operation with the police and the authorities.
Applying relevant principles, I am prepared to find that, on the whole of the evidence, the difference between the sentences of the appellant and Johnston is manifestly excessive and is one that would engender the relevant sense of grievance. Accordingly, in my opinion, the appeal should be allowed.
Should the other members of the Court agree, it would be necessary to re-sentence the appellant. In that event I would propose that he be re-sentenced as follows: count 1 - two years' imprisonment; count 2 - 12 months' imprisonment, making for a total effective sentence of two years' imprisonment, and I would further propose that a non-parole period of 12 months be fixed.
I want to emphasise that I make these proposals in the light of the particular and, I think, exceptional circumstances of this case. The most prominent of those circumstances in this connection are the co-operation and assistance given to the
authorities by the appellant. They were given, I am satisfied, fully and freely in circumstances of grave personal danger to the appellant and were engendered by a genuine sense of remorse in him and a desire to make amends for his conduct. The quality and extent of his assistance is vividly demonstrated by the content of Exhibit 1, and the Court is indebted to its authors, Detective Senior Constable Walsh and Detective Sergeant Punton.
CHARLES, J.A.:
I agree that the appeal should be allowed and the appellant re-sentenced in accordance with the reasons of the Chief Justice.
CALLAWAY, J.A.:
I also agree. Although the implicit discount proposed is substantial, it does not require us to consider the point which recently divided the Western Australian Court of Criminal Appeal in Goddard v. R[2]. When that day comes reference may be made to Director of Public Prosecutions v. Bulfin[3] at 141, lines 20 to 24, and the cases there cited.
PHILLIPS, C.J.:
[2](1999) 21 W.A.R. 541
[3][1998] 4 V.R. 114
The orders of the Court are:
The appeal is allowed. The sentence imposed on the appellant in the court below is in part set aside and in lieu thereof he is sentenced as follows: count 1 - two years' imprisonment; count 2 - 12 months' imprisonment, making for a total effective
sentence of two years' imprisonment. The Court fixes a non-parole period of 12 months.
The Court declares that the period of 358 days is the period of pre-sentence detention already served as part of the said sentence by the appellant and the Court directs that the contents of this declaration be entered in the records of the Court.
The Court further directs that Exhibit 1 be placed in a sealed envelope and not opened other than at the direction of a judge.
0
0