Thuong Nguyen v R

[2012] NSWCCA 184

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Thuong Nguyen v R [2012] NSWCCA 184

Hearing dates:

18 July 2012

Decision date:

04 September 2012

Before:

Allsop P at [1]
Latham J at [2]
Davies J at [3]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - importing marketable quantity of heroin - whether sentence manifestly excessive - prior criminal record involving trafficking in heroin - admissions of uncharged acts of the same type as the offence charged - admissions made as part of assistance to authorities - relevance to personal deterrence

Legislation Cited:

Crimes Act 1900 (Cth)

Cases Cited:

Angus John Lindsay v R [2012] NSWCCA 124
Dinsdale v The Queen [2000] HCA 54; (2000) 282 CLR 321
Director of Public Prosecutions v De La Rosa (2010) NSWCCA 194
House v The King (1936) 55 CLR 499
Kuti v R [2012] NSWCCA 43
Remus Ritter v R [2012] NSWCCA 121

Category:

Principal judgment

Parties:

Thuong Nguyen (Applicant)
Crown

Representation:

Counsel:
Mr M Johnston (Applicant)
Mr C P O'Donnell (Crown)
Solicitors:
Legal Aid Commission NSW (Applicant)
Commonwealth Director of Public Prosecutions (Defendant)

File Number(s):

2010/136705

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-03-25 00:00:00

Before:

Wells DCJ

File Number(s):

2010/136705

Judgment

1. ALLSOP P: I agree with Davies J.

1. LATHAM J: I agree with Davies J.

1. DAVIES J: On 1 December 2010 the Applicant pleaded guilty in the Central Local Court to an offence of importing a marketable quantity of a border controlled drug being heroin. The maximum penalty for the offence is 25 years imprisonment and/or a fine of $550,000.

1. On 25 March 2011 Judge Wells sentenced the Applicant to a term of seven years imprisonment with a non-parole period of four years and two months.

1. The Applicant seeks leave to appeal against the sentence imposed on the grounds that it was manifestly excessive.

Circumstances of the offence

1. The Applicant, who is an Australian citizen, left Sydney for Ho Chi Minh City on 30 April 2010. He arrived back in Sydney on 30 May 2010 from Ho Chi Minh City internally concealing two large pellets and 79 smaller pellets containing heroin. The powder weighed 387.4 grams gross and contained 274.7 grams of pure heroin.

1. The Customs officers in Sydney were alerted on arrival to the possibility that he was carrying drugs when an ion scan wand of his luggage and his wallet returned a positive reading for the presence of heroin. He submitted to internal searching and was later admitted to St George Hospital for that purpose.

1. He spoke to the police in a formal interview on 1 June 2010. During the course of that interview he told the police that there had been two or three prior occasions when he had engaged in exactly the same type of behaviour. He told them that he knew that the pellets that he swallowed contained heroin. He said that he was paid about $40,000 for the trip.

1. Her Honour accepted that the heroin, if sold at street level, would amount to between 27 to 80 street deals and if sold in that way its value would have been between $310,000 and $530,000 approximately.

Subjective matters

1. The Applicant was born in Vietnam on 10 December 1961 and at the time of sentence was aged 49 years. After having basic schooling he left school at the age of 15. He said that he later joined the army and fought the communists in Cambodia in 1979. He came to Australia in 1990 as a refugee. He married in 1992 but divorced in 2000.

1. He had a criminal record for burglary and theft, larceny, possession of ammunition without licence, stalking or intimidating, common assault, obtaining money by deception, destroying or damaging property, shoplifting, and drug offences including possession and use of heroin as well as trafficking in heroin. Despite the number of offences as well as the offence of trafficking in heroin, the Applicant had not, prior to this sentence, been imprisoned.

1. He was first diagnosed with a major mental illness in 1997. From that time onwards there was a history of mental illness including admissions to various mental health units. He told Dr Adam Martin, a forensic psychiatrist who examined him at the MRRC on 18 November 2010, that he had been admitted to various psychiatric hospitals for periods ranging from three to seven weeks. There was some history of visions, auditory hallucinations and paranoid delusions. There was a previous suicide attempt by overdose when he was depressed.

1. He told Dr Martin that he had used various substances in the past including heroin, cocaine and methamphetamine and had used those drugs intravenously.

1. He had been placed on the Methadone program for about three weeks in about 2007 but he said that he did not like it and had never been to formal drug and alcohol rehabilitation. At the time of his interview with Dr Martin he was taking Zyprexa and Seroquel, both anti-psychotic medications.

1. Dr Martin believed that the Applicant suffered from a major mental illness, probably chronic schizophrenia of schizo-effective disorder. Dr Martin described this as a chronic lapsing and remitting major medical illness characterised by periods of psychosis, sometimes with major mood disturbance. It is severely disabling, it interferes with a person's ability to think logically and it has an effect on a person's social and cognitive function. Dr Martin noted that the Applicant's condition had been complicated in the past by non-adherence to treatment which, he said, was frequently the case with similar sufferers, and his condition had also been complicated by his use of various illicit substances.

1. Dr Martin thought that he would also probably fulfil the diagnostic criteria for poly-substance dependence.

1. Dr Martin addressed the issue of whether the Applicant had a mental illness defence available. He concluded that he did not, and noted that the Applicant denied suffering symptoms of mental illness at the time of the offence and said that he had been taking regular medications at the time. Dr Martin thought, however, that his major mental illness had generally affected his ability to make the best decisions, and that he was a fairly guileless man who was rather concrete and unsophisticated in his thinking.

Remarks on sentence

1. Her Honour noted the maximum penalty for the offence, the circumstances of the offence and the Applicant's background including his criminal record and mental health issues. She then went on to say that general deterrence and specific deterrence were matters of fundamental importance in offences of the kind charged.

1. In relation to the Applicant's mental illness her Honour found that there was no evidence that would suggest that he was unduly suffering the effects of that illness at the time of the offence to the extent that his moral culpability should be mitigated substantially or that his judgment at the time of the offence was substantially affected. Her Honour relied in that regard on the hospital records five days after his arrest which noted nil psychotic or delusional ideas at that time, what he said to Dr Martin about his mental illness at the time of the offence, and the detail of what he told the police when interviewed on 1 June 2010. Her Honour concluded that his mental illness did not warrant a substantial impact upon considerations of general deterrence.

1. Her Honour then noted his statement to the Police that he had engaged in the same activity two or three occasions previously, and concluded that he would have had "a pretty good idea" of the weight and value of the drugs, and she concluded that he knew he was carrying heroin.

1. Her Honour noted that the amount fell below the mid range for the offence but she noted also that weight was not the only consideration or the most significant consideration. She regarded his role as that of a courier at the lower end of the drug supply hierarchy. However, there was planning and premeditation on his part. Her Honour found that he was rather well versed in the nature of the operation. She found that his motivation was money, and she rejected the suggestion made by him that he gave the money to the poor people in Vietnam.

1. Her Honour said that the importation could not be regarded as an isolated incident given his open declaration to the police that he had done two trips

prior to this matter.

1. Her Honour allowed a discount of 40% for the early plea and what she described as the high level of assistance to authorities which may have exposed him to considerable risk.

1. Her Honour said that she took into account particular aspects of his personal circumstances in the sentencing which she listed as follows:

(1) It would be his first time in custody;

(2) His mental condition would make a term of full-time custody more difficult for him.

(3) His drug addiction, though not mitigating the commission of the offence to any great extent, at least explained the offence.

(4) His impoverished and traumatic background.

(5) To a very limited extent, the hardship to his family.

(6) His inability to speak English well would make his time in custody more difficult than would otherwise be the case.

Her Honour thought he had modest prospects of rehabilitation.

1. Her Honour said that she had regard to the maximum penalty, the range suggested by the extensive number of comparable cases placed before her particularly the guidance provided in Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, and to a lesser degree the statistics.

The appeal

1. The Applicant identified four matters (which I will refer to as sub-grounds) to suggest the sentence was manifestly excessive. Those sub-grounds were:

(1) The range of sentences identified in De La Rosa;

(2) The treatment by the Sentencing Judge of the Applicant's antecedent history;

(3) The discount of 40%;

(4) The treatment by the Sentencing Judge of the Applicant's mental illness.

1. It is convenient to deal with the range of sentences last. The other matters identified allege specific and identifiable errors whereas the appeal to De La Rosa involves a submission of an error of the final kind mentioned in House v The King (1936) 55 CLR 499 at 585. That is to say that the result reached by the trial judge was "upon the facts ... unreasonable or plainly unjust [so that] the Appellate Court may infer that in some way there has been failure properly to exercise the discretion which the law reposes in a court of first instance": Dinsdale v The Queen [2000] HCA 54; (2000) 282 CLR 321 at [22].

Sub-ground 2: The antecedent history

1. The issue here concerned the admission made by the Applicant that he had engaged in the same sort of behaviour on two occasions prior to the offence charged. The Applicant submitted that whilst the absence of a previous criminal history was less relevant for drug offences than others, and whilst it was appropriate for the Sentencing Judge to take the admissions into account as dispelling any notion that the offence was an aberration, it was submitted that too much emphasis was given to this matter by both the Crown and the Sentencing Judge.

1. The Applicant accepted that the Sentencing Judge was entitled to take those prior occasions into account in not according him leniency but that they should not have been considered in relation to personal deterrence. That was the more so when the information was provided in conjunction with the assistance provided to the authorities.

1. The Applicant pointed to two passages in the Remarks on Sentence which were said to highlight the problem. The Sentencing Judge said:

This importation by the offender could not be regarded as an isolated incident, given his open declaration to the police that he had done two trips prior to this matter that brings him before the court.

A little later she said:

I take into account though that the present offence is not an aberration. He has past drug related offences on his record and there are the admissions that he made to police. Accordingly, personal deterrence should play a significant role in sentencing this offender. That is not to say of course that he will receive a greater sentence than is appropriate having regard to the objective circumstances by virtue of his prior record.

1. In my opinion no error is shown by her Honour. Quite apart from the admissions to the police the present offence was not an aberration - the Applicant had previously been convicted for trafficking in heroin. Nevertheless it was not appropriate for the admissions to be ignored simply because they were made in the context of assistance being provided. Section 16A(2) Crimes Act 1900 (C'th) made the admissions relevant. Although made in the context of the provision of assistance the admissions had to be considered as part of the instinctive synthesis involved in the sentencing. Personal deterrence was of significance notwithstanding the relationship between the admissions and the assistance. Her Honour reminded herself that the Applicant should not receive a greater sentence than is appropriate by virtue of those matters.

Sub-ground 3: Discount for assistance

1. The Applicant first submitted that the assistance showed a high level of contrition and that it ought to have operated to benefit the Applicant not only in terms of the limited discount for assistance but as to remorse and prospects of rehabilitation. However, the complaint in respect of this issue was not ultimately pressed because the Applicant accepted that her Honour had made what he described as a "modest finding of prospects of rehabilitation".

Sub-ground 4: The Applicant's mental illness

1. The Applicant's written submissions pointed out that s 16A(2)(m) Crimes Act refers specifically to the mental condition of a person and was, therefore, a relevant consideration. Reference was made to what McClellan CJ at CL said in De La Rosa at [178] that mental health problems did not need to amount to a serious psychiatric illness before they would be relevant to the sentencing process.

1. This matter was but faintly pressed in oral submissions. The Applicant accepted that her Honour made a finding in relation to the fact that his mental condition would make full-time custody more difficult, and that her Honour also made a finding with regard to how his mental condition impacted on considerations of general deterrence.

1. In fact her Honour dealt at length with the Applicant's mental condition. She referred to the material concerned with the issue including reports from Dr Law, the notes from various mental health units and the detailed report of Dr Martin. Relying on that material her Honour made a finding which was not challenged:

[T]here is no evidence that would suggest he was unduly suffering the effects of mental illness at the time of these offences to the extent that his moral culpability should be mitigated substantially or that his judgment at the time of the offence was substantially affected.

1. In my opinion no error is shown in relation to the treatment by the Sentencing Judge of the Applicant's mental illness.

Sub-ground 1: The range of sentences and De La Rosa

1. The Applicant submitted that the head sentence and non-parole period imposed was within the range of sentences imposed in the second group of cases identified by McClellan CJ at CL in De La Rosa at [221] and [222]. The Applicant said that the starting point for the Sentencing Judge before the 40% discount must have been 11 years and 8 months imprisonment. A realistic view of the Applicant's case, it was said, was that it fell somewhere between the second and third groups identified in De La Rosa.

1. The appeal to De La Rosa must be approached with caution. This Court has held on a number of occasions recently that limited assistance is to be gained by an Applicant endeavouring to place himself in one or other of the categories described by McClellan CJ at CL in that case: Angus John Lindsay v R [2012] NSWCCA 124 at [7]-[8]; Kuti v R [2012] NSWCCA 43 at [45]-[48]; Remus Ritter v R [2012] NSWCCA 121 at [42]-[44]. De La Rosa was not written as a guideline judgment: De La Rosa at [196] - [200] and [2003]. The judgment should only be used for general guidance and assistance: Lindsay at [8].

1. The difficulty for the Applicant is that it cannot be said that the sentence imposed was outside the range of appropriate sentences in the circumstances - see for example Kuti v R and Angus John Lindsay v R. There were aspects of the present offending which might have resulted in a sentencing judge imposing a sentence more consistent with cases in the third group identified in De La Rosa. Equally, there were aspects of the offending which a sentencing judge might have considered would place it within the second group. Further, her Honour made specific reference to De La Rosa.

1. Sentencing involves an evaluative judgment. The Sentencing Judge considered all relevant matters. A number of considerations weighed against leniency including the prior trips, the level of planning, the Applicant's criminal record including an offence of trafficking in heroin, and the fact that the Applicant's mental condition was of limited relevance at the time of the commission of the offence. On the other hand her Honour did not fail to consider factors which ought to have been weighed in the Applicant's favour being those matters she listed that are set out in paragraph 24 above as well as the assistance he provided.

1. It cannot be said that the sentence imposed was obviously wrong or not open to her Honour. In that way it cannot be said to be manifestly excessive: De La Rosa at [69] per Allsop P.

Conclusion

1. In my opinion the following orders should be made.

(1)   Leave to appeal granted.

(2)   Appeal dismissed.

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Decision last updated: 04 September 2012