Regina v Nguyen

[2002] NSWCCA 333

CITATION:	Regina v Nguyen [2002] NSWCCA 333
FILE NUMBER(S):	CCA 60244/02
HEARING DATE(S):	12 August, 2002
JUDGMENT DATE:	21 August 2002
PARTIES :	Crown Duc Hung Nguyen
JUDGMENT OF:	Hidden J at 1; Adams J at 11

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	01/11/1040
LOWER COURT JUDICIAL OFFICER :	Andrew ADCJ

COUNSEL :	AJ Bellanto QC - Applicant D Frearson - Crown
SOLICITORS:	Mark Klees and Associates - Applicant SE O'Connor - Crown
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against sentence - supplying heroin - special circumstances.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985
CASES CITED:	R v Simpson [2001] NSWCCA 534
DECISION:	See para 10.

60244/02
HIDDEN J
ADAMS J
21 August, 2002

REGINA v Duc Hung NGUYEN

JUDGMENT

1 HIDDEN J: The applicant, Duc Hung Nguyen, pleaded guilty in the District Court to supplying a commercial quantity of heroin, an offence under s 25(2) of the Drug Misuse and Trafficking Act which carries a maximum sentence of twenty years imprisonment. He was sentenced to imprisonment for four years, to date from his arrest on 30 October 2000, with a non-parole period of three years. He seeks leave to appeal against that sentence.

2 Put briefly, on 30 October 2000 police seized some four hundred and twenty three grams of heroin at premises in Marrickville, following a surveillance operation. The applicant had attempted to dispose of some of the heroin down the kitchen sink, and his wife had tried to dispose of a block of heroin by flushing it down the toilet. In an electronically recorded interview, the applicant told the police that he had found that block of heroin in a plastic bag with a note which instructed him to deliver it, upon receipt of a phone call, in exchange for two thousand dollars.

3 The sentencing Judge said of the offence that it could not “be said to be the most serious of its type, if judged by quantity alone”. His Honour also noted a concession by the prosecution that the applicant’s “level of involvement was at the lower end of any drug operation…”. His Honour found that the applicant was remorseful and took into account his plea of guilty. The applicant was able to make out favourable subjective case, to which I shall turn in a moment.

4 As submissions were refined in this Court, no complaint was made about the sentence of four years. Argument was confined to the length of the non-parole period. It was said that his Honour failed to deal with a submission that there were special circumstances and there was material which called for such a finding.

5 The applicant was thirty-five years old at the time of the offence and is now thirty-seven. He was brought up in Vietnam but left that country in 1988, at the age of about twenty-three. He spent two years at a resettlement camp in Hong Kong before arriving in New Zealand in 1990. There he married in 1994 and there are three children of that marriage.

6 The family came to Australia in 2000, only a matter of months before the offence. At that time there were two children, aged two and four, and the applicant’s wife was pregnant with the third. He was unable to obtain employment and received limited social security benefits. Their financial position was exacerbated by his gambling losses, and the situation caused tension between him and his wife. It was in these circumstances that he became involved in the offence. He has no prior convictions.

7 Submissions on sentence before his Honour have been recorded in the transcript. It is apparent that counsel then appearing for the applicant (who did not appear in this court) argued that there were special circumstances in the light of his background and family situation. It is true that the argument was not put forcefully, counsel saying that “I’d only just get there if I’d get there at all…”. However that may be, in his remarks on sentence his Honour made no reference to the argument or, indeed, to the question of special circumstances at all.

8 I appreciate that the question whether there are special circumstances in any case is very much a matter for the discretion of the sentencing judge and this Court would not likely interfere with the exercise of that discretion: R v Simpson [2001] NSWCCA 534, per Spigelman CJ at para 73. However, what concerns me in the present case is that his Honour was silent about the matter in his remarks even though it had been argued. Moreover, although the argument was put in a somewhat half hearted way, it had considerable merit. The applicant, a man of prior good character, was facing his first gaol term. He had only recently come to this country where, perhaps through his own fault, he found himself in financial and emotional difficulty. On the evidence before his Honour, one cannot say to what extent his relationship with his wife and family might have been compromised. If he is to remain in this country upon his release, I would expect that he would need supervision and guidance for an extended period to re-establish himself and to ensure that difficulties of a similar kind do not cause him to relapse into criminal activity.

9 In my view, this is one of those exceptional cases in which it can be said that the sentencing judge erred in failing to find special circumstances. For the purpose of re-sentence, we received some additional evidence, including a psychological report, which attests to the applicant’s prospects of rehabilitation but makes the desirability of an extended period of supervision even more apparent. I am aware that the non parole period itself should reflect the criminality of the offence and the need for deterrence: Simpson at paras 63-5, but I consider that the reduced non parole period which I propose would still serve those ends.

10 I would grant leave to appeal and allow the appeal. I would affirm the sentence of 4 years, to date from 30 October 2000, but I would quash the non parole period fixed by his Honour and substitute a non parole period of 2 years. The applicant would be eligible for release on parole on 30 October 2002.

11 ADAMS J: I agree.

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