R v Tran - [2000] NSWCCA 409

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Tran [2000] NSWCCA 409 revised - 17/10/2000

FILE NUMBER(S):
60647/98

HEARING DATE(S): 4 October 2000

JUDGMENT DATE: 04/10/2000

PARTIES:
Crown /Respondent
Si Ngoc TRAN/Applicant

JUDGMENT OF: Simpson J Hidden J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/21/2176

LOWER COURT JUDICIAL OFFICER: Rummery DCJ

COUNSEL:
R A Hulme - Crown
J C Nicholson SC - Applicant

SOLICITORS:
S E 'Connor - Crown
D J Humphreys - Applicant

CATCHWORDS:

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985

DECISION:
Leave to appeal granted - appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60647/98
SIMPSON J
HIDDEN J

4 October 2000

REGINA v SI NGOC TRAN

Judgment

SIMPSON J :

The applicant seeks leave to appeal against a sentence imposed by Judge Rummery in the District Court on 23 October 1998 following the applicant's plea of guilty to a charge of supplying not less that the trafficable quantity of heroin. His Honour imposed a total term of seven years’ imprisonment made up of a minimum term of five years and an additional term of two years. The maximum custodial sentence applicable to the offence, by reason of ss 25 and 29 of the Drug Misuse and Tracking Act 1985, is imprisonment for fifteen years.
Facts
On 14 August 1997 the applicant was found to be in possession of $80,000 in cash. A search of his home produced another $109,600 in cash, items associated with the distribution of drugs, one of which contained an amount of heroin and, in the applicant's bedroom, heroin amounting to 147.78 grams in pure form. The applicant was arrested but declined to be interviewed. His arrest came as a result of an ongoing investigation and surveillance.
There was some susubjective material placed before the court. The applicant was born in Vietnam on 1 December 1959. He was thirty-seven years of age at the time of the offence. He came to Australia with his father and brother in 1981, having spent some time in a refugee camp in Malaysia. His mother and other siblings remain in Vietnam. The applicant completed his education in Vietnam. In Australia he has had some employment, mostly labouring, and in 1991 was involved in a work accident in which he suffered head injuries. He has not worked for about five years and he has been addicted to heroin.
The most significant matter relating to sentence concerns the applicant's prior record. In February 1995 he was convicted of supplying heroin and sentenced to three years’ imprisonment made up of a minimum term of eighteen months and an additional term of eighteen months. The minimum term expired on 21 March 1996. At the date of the present offence, therefore, he was still subject to the additional term of the previous sentence, with about five weeks left to serve. Plainly this is a significant aggravating factor. The amount of the drug involved in the earlier offence was ninety-six grams.
Sentencing the applicant Judge Rummery fixed 21 September 1997 as the date for commencement of the sentence. He did this, notwithstanding that the applicant was arrested on 13 August 1997 and remained in custody thereafter. He expressly took this course because 21 September 1997 was the date the applicant's parole expired. The choice of the sentencing date therefore amounted to a de facto revocation of parole. This, however, does not appear to be outside the power conferred by the Sentencing Act 1989, under which the applicant was sentenced.
On behalf of the applicant it was accepted that no patent error in the remarks on sentence could be identified, although that position was somewhat modified in the course of oral submissions. In written submissions it was submitted that the sentence is manifestly excessive and denotes a failure to take adequate account of the plea of guilty, the applicant's contrition, some limited but useful cooperation with the authorities, his family background and circumstances, particularly his refugee status, the effect of the work injury, his heroin addiction and its antecedent causes, his rehabilitation and the surrender of the money in his possession.
During the course of the argument senior counsel pointed to the manner in which the sentencing judge dealt with the question of the plea of guilty. What his Honour said was this:
“As to specific deterrence, the prisoner does have the benefit of a plea of guilty. It comes one year approximately after his arrest. He is entitled to have me take that into account as going firstly to contrition and remorse and going also to its utilitarian effect of saving the state the cost of a criminal trial. In terms of considering specific deterrence further, the prisoner's admitted addiction to heroin is a matter which is relevant in the court's consideration of what is likely to deter him from further similar or cognate offences, I say in the context of what is said on his behalf that he claims to have been heroin free since incarceration.”
The submission that was made is that his Honour considered the plea of guilty only in the context of his consideration of the requirements of the specific deterrence element of the sentencing process and did not give him the value to which he was entitled for the utilitarian effect of the plea of guilty. I do not think this is an appropriate way to read the remarks on sentence. It seems to me that in the first part of the passage quoted, his Honour was considering the plea of guilty in relation to the question of specific deterrence and as evidencing contrition and therefore some hope of rehabilitation which would mitigate the need to pay as much attention as perhaps otherwise would be the case, to specific deterrence.
He then deflected himself to acknowledge the plea of guilty in relation to the utilitarian effect and then returned to the question of specific deterrence. I don't think a fair reading of the sentencing remarks permits the conclusion that the applicant was denied the benefit of the plea of guilty in the sense which has been argued today.
Heavy reliance was placed on statistics provided by the Judicial Commission of New South Wales which would suggest that the sentence is in the top three per cent of the sentences imposed on offenders charged with the same offence as the applicant. However, as senior counsel acknowledged, the statistics provide no enlightenment in gauging sentencing trends in relation to offences committed whilst on parole and particularly offences committed whilst on parole for an offence of an identical kind.
Notwithstanding what was said by the sentencing judge about specific deterrence, this was plainly a case in which that consideration had considerable relevance. A prior sentence of three years imposed on the applicant plainly had not deterred him from his course of conduct. Stronger measures were necessary to bring home to him the fact that neither the courts nor the community will tolerate heroin dealing.
As to the subjective features, his Honour's careful remarks on sentence show that he took account of all the material that had been placed before him and gave detailed consideration to the subjective features. He recognised in particular the favourable reports of the applicant's conduct whilst in custody. The applicant was entitled to the benefit for a plea of guilty, but this he was given. It was limited to the utilitarian value, because the Crown case was unanswerable. Moreover, given the fact that this was a second offence and committed whilst on parole, to suggest that the plea signifies contrition, rings very hollow.
I am satisfied that there was no error in the sentencing process. I would grant leave to appeal, but dismiss the appeal.
HIDDEN J: I agree.
SIMPSON J: The orders of the court are that leave to appeal is granted, but the appeal is dismissed.

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LAST UPDATED: 17/10/2000