Regina v Thanh Van Nguyen

[2001] NSWCCA 132

CITATION:	Regina v Thanh Van Nguyen [2001] NSWCCA 132
FILE NUMBER(S):	CCA 60303/00; 60317/00
HEARING DATE(S):	6 April 2001
JUDGMENT DATE:	6 April 2001
PARTIES :	Regina v Thanh Van Nguyen
JUDGMENT OF:	O'Keefe J at 1 ; Smart AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/21/2215
LOWER COURT JUDICIAL OFFICER :	Tupman DCJ

COUNSEL :	(A) H Dhanji (C) G E Smith
SOLICITORS:	(A) D J Humphreys (C) S E O'Connor
CATCHWORDS:	Sentencing - supply of heroin - significant offences taken into account - sentence not excessive elements of "attempt" to steal from the person - sufficiency of charge
LEGISLATION CITED:	Nil
CASES CITED:	Nil
DECISION:	Leave to appeal refused

IN THE COURT OF
CRIMINAL APPEAL

60303/00
60317/00

O'KEEFE J

SMART AJ

Friday 6 April 2001

REGINA v THANH VAN NGUYEN
JUDGMENT

1   O'KEEFE J: I will ask Mr Justice Smart to give the first judgment.

2   SMART AJ: Thanh Van Nguyen seeks leave to appeal against the severity of a sentence of imprisonment for three years with a non-parole period of 18 months for the offence of supplying a prohibited drug, 8.26 grams of heroin, having a street value of about $600. The judge took into account some seven offences comprising the three driving offences of driving a motor vehicle at night without lights being alight, not signalling intention to change lanes and driving whilst his licence was suspended; two charges of attempted stealing from the person; one of goods in custody, being a State Rail concession card in the name of another, reasonably suspected of being stolen or otherwise unlawfully obtained; and without lawful excuse having in his possession car breaking implements.

3   About 11.10pm on 10 February 1999 the applicant drove a vehicle east along Hume Highway from Bass Hill to Yagoona. Its head lights were dimmed. He did not give any indication when he changed lanes. His driving licence had been suspended in September 1998 due to non-payment of a fine. After the applicant stopped his vehicle on the instructions of the police he was searched by them. In a pocket was a cigarette packet containing two wrapped pieces of foil and two folded pieces of foil. The police unwrapped the foil and a small quantity of white powder was revealed. The applicant, on being asked where he had got it, replied "Cabramatta". He furnished no other information, nor was he obliged to.

4   A white plastic bag containing white rock powder was found under the driver's side mat. When questioned, the applicant said, "It's not mine, it's my friend's". In the right pocket of a jacket on the rear seat of the car there were some aluminium foil, razor blades and a pair of scissors. In his record of interview the applicant said that he had never worn the jacket. He knew nothing about the items found in the jacket. Some white powder was on the actual blades of the razor blades.

5   On 23 April 1999 the applicant was at Flemington Markets. As he walked around he brushed against a number of ladies. He placed his hand inside a bag being carried on the left arm of a lady. He walked up closely behind 20 people and looked inside their bags. He placed his hand inside the brown bag of another lady. It was resting on her right shoulder. Both bags were wide open and unzipped. The applicant continued to walk and look into other bags. The applicant saw some police officers and began to walk away. He was stopped and arrested. Inside a pocket he had a railway concession card in the name of another person. The applicant gave an incorrect name for himself.

6   On 28 March 1999 the police stopped the applicant in or in the vicinity of premises in Illawarra Road, Marrickville. On emptying his pockets at the direction of the police, the applicant produced, amongst other items, a set of keys on a ring. There were two keys for a Mazda, two keys for a Toyota and a key for a Ford. On being questioned, the applicant stated that he did not have a car any more.

7   The offences of March and April 1999 were committed while the applicant was on bail for the February drug and driving offences.

8   The applicant was born in Vietnam on 4 April 1971. In August 1998 he was fined $500 for possessing a prohibited drug. In September 1998 he was convicted of driving a conveyance taken without the consent of the owner and placed on a two year good behaviour bond. On 24 March 1999 he was convicted of goods in custody and fined $50. On 29 April 1999 he was convicted of possessing car breaking implements. It is not clear when those latter offences were committed. The applicant attributed all entries to his heroin use.

9   The applicant lived with his grandmother and later with his mother in Vietnam. He left school in Vietnam at the age of 15 when he was in the fourth year of high school. He came to Australia in 1991 via Hong Kong. He is able to communicate in English to some extent. Between 1991 and 1995 he was unemployed and this was due, at least in part, to his poor English. He worked in 1996 and 1997 and early 1998. He has not worked since.

10   In 1997 he commenced using heroin. He ceased using heroin in May 1999. He treated himself by using morphine until December 1999. He has not used any drugs since then. He spent most of his time in the family home. This assisted him not to relapse into using drugs.

11   The applicant told the Probation and Parole Officer that he was addicted to drugs at the time of the offence (February 1999). The officer's report was guarded. She wrote:

"The offender presents as a man who appears to have experienced some problem with his parents which may have been conducive to his involvement with undesirable peers and subsequent drug use. Clash of cultures and poor comprehension skills may have played a part in influencing his behaviour. He now appears to be drug free and his desire to remain drug free seems genuine. His family dynamics however remain unknown, but if the offender is to be believed, this is no longer an issue; at least while the offender is drug free."
12   A consulting psychologist, Ms K Barrier saw the applicant on 6 and 23 March 2000. He told her that he felt very ashamed of his offending behaviour, particularly that involving attempts to steal from women's bags at Flemington markets. Ms Barrier notes the dislocation the applicant experienced in his early and teenage years. She made this assessment:
"While Van tests out as possessed of Sound Average intelligence, he has clearly struggled to learn English and this has caused problems for him in finding work and making social contacts. Personality test results indicate that he is very confused in his thinking, and possessed of a particularly negative self image and feelings of self worth. Although he has committed antisocial acts, however, he does not test out as markedly antisocial and he is extremely uncomfortable about his involvement in such activities.

The client commenced drugs use after experiencing problems in getting along with his father. Those problems would appear to have centred around Van's inability to get work. Family members did, however, offer him ongoing support in his endeavours to rid himself of illegal drugs use and he is clearly grateful for that. He also impressed as accepting of the fact that his family continues to monitor and support his efforts to avoid drugs relapse, in various ways.

The man's limited English makes it difficult for him to benefit from counselling aimed at drugs relapse prevention, however, it is believed that Van would respond positively to any support that can be offered. When he is available to do so, Van would benefit from assistance in finding suitable employment and a firm arrangement with the Probation and Parole Service is also recommended."

The judge summarised the position thus:
"I do not have to state how serious the offence of supplying heroin is. It is apparent from the fact that the law imposes a maximum custodial sentence of 15 years. It is apparent from all of the above facts which I have taken into account that the prisoner's family history and his lack of English probably led him to use heroin, which it would seem he has not used since May of last year.

Mr Darbon put that there were special circumstances and I agree. The particular circumstances are that the prisoner undertook to treat himself and it would seem that he has succeeded. A further special circumstance is that he has been drug free for such a long time."

Appeal Ground 1

13   The applicant submitted that the judge erred in taking into account the charges of attempting to steal from the person. The applicant drew attention to the form of the charges:

"That Van Thanh Nguyen on the 23rd day of April 1999 at Flemington ... did attempt to steal from an unknown female's handbag."
14   The applicant submitted that neither of these charges disclosed an offence as neither alleged any property was the subject of the attempted theft and a larceny must relate to a specific tangible item. An attempt must relate to an offence known to the law.

15   These points were not taken when the applicant admitted all the offences and asked the Court to take them into account when dealing with the indictable offence of supply a prohibited drug.

16   In Britten v Alpogut (1986) 23 A Crim R 254 the Victorian Full Court considered the law of attempt in some detail and carefully reviewed the English authorities. At 259 Murphy J (with whom the other members of the Court agreed) pointed out that the crime of attempt derives its criminality from the conduct intended or sought to be done. At 260 he commented:

"Attempts are not to be confined to acts which if not interrupted would result in the comission of the crime itself. Attempts are crimes because of the criminal intent of the actor."

And

"[The accused] is punishable for an attempt, not because of any harm that he has actually done by his conduct, but because of his evil mind accompanied by acts manifesting that intent. The criminality comes from the conduct intended to be done. That conduct intended must amount to an actual and not an imagined crime, but if it does, then it matters not that the gun is in fact unloaded, or the police intervene, or the victim is too far away, or the girl is in fact over 16, or the pocket is empty, or the safe is too strong, or the goods are not cannabis."

17 Murphy J at 262 refers with evident approval to the comments of Lord Bridge in Shivpuri [1986] 2 WLR 988 at 1,000-1,001, part of which I quote:
"What turns what would otherwise from the point of view of the criminal law, be an innocent act into a crime is the intent of the actor to commit an offence ... A puts his hands into B's pocket. Whether or not there is anything in the pocket capable of being stolen, if A intends to steal, his act is a criminal attempt ..."
18   I agree with the comments of Murphy J and Lord Bridge. I would further add that the charge in the present case is not deficient when regard is had to the principles discussed by Murphy J at 260-262. The charge appears to be in similar terms to that used in Ring [1892] 17 Cox CC 491.

19   Britten v Alpogut was followed by this Court in R v Mai (1992) 26 NSWLR 371 at 384A. At 384E Hunt CJ at CL said that the law relating to attempt was:

"directed primarily to the intention of the accused provided that it is accompanied by an act towards the commission of the intended crime, which goes beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime."
20   I reject the applicant's argument on this point. The charges were not deficient The judge correctly took into account the two charges of attempting to steal from the person.

Appeal Ground 2

21   It was next submitted that the sentence imposed was manifestly excessive. In making this submission the applicant dealt with the objective seriousness of the offence and relied upon a series of other matters.

22   Considerable attention was devoted in the submissions of the parties to whether the applicant was trafficking. The judge made no findings in that regard, concentrating on the evidence led before her. In the absence of a finding by the judge, I abstain from making any finding on this point and proceed on the basis that it has not been established beyond reasonable doubt that the applicant was trafficking.

23   The applicant submitted that the objective facts of the present supply offence placed it at the lower end of the scale. However, on any view it is a serious offence.

24   The applicant further submitted that the Crown case was not overwhelming. In my opinion, it was a strong Crown case. The applicant relied on sentencing statistics provided by the Judicial Commission. Having regard to the large range of sentences for this offence, I do not think that either party gets any assistance from those statistics. It cannot be overlooked that at the time of the commission of these offences the applicant was on a recognisance.

25  In his oral arguments counsel for the applicant contended that this was a case in which a non-custodial sentence for the offence itself was available. He submitted, however, that in the light of the Form 1 matters it was open to the judge to impose a custodial penalty, but not one of three years. This was because the offence primarily charged was at the lower end of the scale or, as he put it, at the bottom end of the range. His submission was that, at most, there should be a shorter gaol sentence.

26   Some of the matters taken into account were at the lower end of the scale. I do not regard the driving offences as significant in the current context, but the attempts to steal from the person were. The applicant was particularly ashamed of these.

27   When regard is had to the offences taken into account, along with the offence of supply, I am of the opinion the sentence imposed was within the permissible range and that leave to appeal should be refused.

28   O'KEEFE J: I agree. The orders of the Court will be as proposed by Smart AJ.

********