Truong v R

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Truong v Regina [2006] NSWCCA 318

FILE NUMBER(S):
2006/759

HEARING DATE(S): 11/08/2006

DECISION DATE: 06/10/2006

PARTIES:
Vinh Hai Truong v Regina

JUDGMENT OF: Tobias JA Howie J Rothman J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/31/0028

LOWER COURT JUDICIAL OFFICER: Marien DCJ

COUNSEL:
V. Lydiard - Crown
S.J. Buchen - Applicant

SOLICITORS:
S. Kavanagh - Crown
R. Goold - Applicant

CATCHWORDS:
Criminal Law - Sentencing - Knowingly take part in supply - relevance of amount of drug supplied.

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985 - s 25(1)

DECISION:
Leave to appeal is granted but the the appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/759
TOBIAS JA
HOWIE J
ROTHMAN J
FRIDAY 6 OCTOBER 2006

Vinh Hai TRUONG v REGINA

Judgment

TOBIAS JA: I agree with Howie J.
HOWIE J: The applicant pleaded guilty in the District Court to an indictment containing a single count being that on 19 May 2004 he did knowingly take part in the supply of a prohibited drug namely heroin. That is an offence contrary to s 25(1) of the Drug Misuse and Trafficking Act for which a maximum penalty is prescribed of imprisonment for a term of 15 years.
On 19 October 2005 Judge Marien SC (the Judge) sentenced the applicant to a term of imprisonment made up of a non-parole period of one year and 10 months and a total sentence of two years and six months. The sentence commenced on 21 September 2005 and the non-parole period expires on 20 July 2007, the date upon which the applicant is entitled to be released to parole. The sentence was backdated to take into account a period of 15 days spent by the applicant in pre-sentence custody for this offence. The applicant now seeks leave to appeal against the sentence.
There was an agreed statement of facts placed before the District Court. They can be summarised briefly as follows. As part of an ongoing investigation two undercover police operatives named "Sarah" and "Jamie" made arrangements to obtain heroin from two persons named Lam and Severino. After purchasing some small amounts of heroin, an agreement was reached on 13 May 2005 that Lam would supply Jamie with 2 ounces of heroin for $7,500 per ounce. On 18 May Jamie telephoned Severino regarding the supply of this heroin for the following day.
On 19 May Jamie received a telephone call from Severino confirming the supply of the heroin. He later met with Severino in Bossley Park. After a short conversation Jamie showed Severino money in the boot of his vehicle for the purchase of the heroin. Severino then contacted Lam who arrived a short time later with the applicant. As the applicant and Lam approached Jamie, the applicant reached into the front of his pants and removed two packages of white powder that he then handed to Lam. Lam handed the packages to Severino who sat in Jamie's vehicle while he weighed the packages. Severino then retrieved the packages and went with Jamie to the boot of the vehicle in order to obtain the money. Jamie then gave a prearranged signal and a number of police officers approached the vehicle. Severino, Lam and the applicant ran from the scene but were arrested shortly thereafter. The packages were analysed and each found to contain about 28 grammes of heroin. One of the packages was tested and found to contain heroin with a purity of 28 per cent.
The applicant was aged 28 years at the time of the offending. He has a criminal record dating from August 1992. In June 1993 he was sentenced in the Children's Court for drug offences and ordered to perform 100 hours of community service in respect of an offence of supplying a prohibited drug. In 1996 he was sentenced by the District Court to a term of 30 months imprisonment for possessing a shortened firearm. Thereafter from 1996 through to 2001 he was dealt with in the Local Court for a number of driving matters and received sentences of community service and periodic detention. There are no offences recorded against him after July 2001 when he was placed on a two-year good behaviour bond for an offence of drive while disqualified.
The presentence report in evidence before the Judge disclosed that the applicant and his family arrived in Australia in 1988 having fled from Vietnam by boat and spending three years in a refugee camp in Thailand. He was raised in a caring family environment and enjoys a close relationship with his parents and five siblings. He has been in a de-facto relationship since the age of 16 and has had three children as a result of that relationship. Although from time to time the relationship has been strained and they resided together only intermittently, the applicant, his fiancée and their children had been living together continuously since the beginning of 2004.
The applicant has had various unskilled employment usually of a casual short term position although his longest period of continuous employment was for a period of 12 months. At the time of the preparation of the report the applicant had obtained full-time permanent employment that he was due to commence in August 2005.
The applicant told the officer preparing the report that one of his co-offenders had been a long-time friend. He claimed that he initially refused to hold the drugs but his friend offered him $200 and the applicant said that, as he did not have a job at that time and owed his friend a number of favours, he agreed to hold the drugs for him while he was in the car. The applicant expressed regret for his involvement in the offence. He was described to the officer by others as a person who was too trusting and too easily led by his friends. He appeared to have addressed drug issues in his past and had been drug-free for several years. The probation officer assessed the applicant as unlikely to require, or benefit from, supervision by the Service.
There was also in evidence a psychological report. It indicated that the applicant had experimented with cannabis and heroin at the age of 16 but had ceased using heroin after a couple of months. The applicant did not consider that he had ever been addicted to any illegal drug and had not needed the assistance of drug rehabilitation. As to the circumstances of the offence, he told the psychologist that he met a friend to have coffee and then learned that there was going to be a drug transaction. The applicant said that he did want to be there but his friend had insisted and said that his help would make up for all the favours he had done for him in the past. The friend also said that he would give him $200. His friend had given him two packets of drugs and asked him to hold them for him until he wanted them. He said that he knew nothing of the drugs before meeting with his friend. The applicant told the psychologist that he regretted his involvement and believed that he been influenced by his friend to commit the offence.
The psychologist reached the opinion that the applicant had a "lower than average likelihood of recidivism". He believed that the applicant had suffered a dysthymic disorder for many years associated with his difficulties in obtaining regular employment because of his limited knowledge of English. The psychologist stated, "Although not responsible for his offending behaviour, his dysthymia would have made him somewhat vulnerable to the influence of his peers particularly if he felt that he could gain some financial benefit".
The applicant’s partner gave evidence before the Judge. She confirmed that his lack of English had limited his opportunities for employment but that at the time of sentence he was working at a nursery in the western suburbs of Sydney. A friend of the applicant also gave evidence as to the applicant's poor English and his regret at becoming involved in the offence.
The applicant's co-offenders were dealt with by a different judge before the applicant was sentenced. The sentencing remarks in relation to the co-offenders were before the Judge. They were both sentenced for a number of drug offences including an offence arising from the supply in which the applicant was involved. They also asked the court to take into account matters on a Form 1. They were each sentenced to a total sentence of four years with a non-parole period of two years.
The first ground of appeal relied upon by the applicant is that the Judge overstated the role of the applicant in the offence. After setting out the agreed statement of facts, the Judge stated:
As is apparent from those facts, it was the role of the offender to bring the 2 ounces of heroin, in fact 55.9 grams, to the meeting between the undercover operative Jamie and Severino. The offender came to that meeting place with the co-offender Lam.
Although the offender is to be sentenced on the basis that he played no other role in this drug supply, his role as the courier of the drugs was still an important and critical role in this particular supply to the police undercover operative.
The offence of supplying heroin or knowingly take part in the supply of heroin, even when the offender who commits the offence may be low in the hierarchy of drug distribution, is an offence of extreme gravity. This is clearly demonstrated by the maximum penalty of 15 years imprisonment imposed for the offence by the legislature.
The dissemination of prohibited drugs into the community and particularly heroin is a source of misery, death, destruction of lives and destruction of families. The courts must impose appropriate deterrent sentences to send the clearest message to the community that those who traffic to any extent in prohibited drugs will be treated with the utmost harshness by the Courts.
Although in this case I am satisfied that the offender's role was low in the drug distribution hierarchy, there being no evidence that he was involved in the negotiations for the supply, the objective seriousness of the offence is made the greater by the large quantity of heroin which was supplied. The quantity of 55.9 grams is just over 18 times the trafficable quantity applicable to heroin.
Later in his sentencing remarks, when the Judge was dealing with the issue of parity between the applicant and his two co-offenders, he returned to the role played by the applicant. His Honour stated:
In my view on the facts before me, the role played by the offender before me was at the lower end of the hierarchy than the role played by Lam and Severino. As I stated earlier, there is no evidence of any involvement by this offender in any of the negotiations for the supply of the heroin. His only role was to (sic), on the evidence before me which I find to be the case, is that he was asked to hold the heroin until such times as he received a message presumably on his mobile phone that he was to come to the meeting place and hand over the heroin to his co-offender, to one of the co-offenders.
Later in considering a submission by the solicitor for the applicant to the effect that the Judge should suspend any sentence of imprisonment imposed by reason of the “peripheral" role of the applicant, his Honour stated:
In my view, despite the role of the offender only as a courier in bringing the drugs to the meeting, and I accept that his involvement did not commenced before his meeting with Mr Lam at the coffee shop, the large quantity of heroin involved must have been clearly apparent to the offender who had the two packets down the front of his pants. This clearly escalates the objective seriousness of this offence to a level where only a full-time custodial sentence can be imposed.
Although it is apparent that at one stage in his remarks the Judge erroneously referred to the applicant bringing the drugs to his two co-offenders, it is clear that, when making his assessment of the applicant’s criminality, his Honour had a correct appreciation of the fact that the applicant was in the company of Lam when he brought the drugs to the place where they were to be supplied.
The only issue under this ground of appeal is whether it was reasonably open for the Judge to find that the applicant’s role in this supply was a critical one, in that the actual supply would not have occurred without the applicant’s participation. In my view it was within the Judge’s discretion to make that finding. The applicant’s written submissions to this Court accept that the applicant provided his co-offenders with “a marginal degree of protection in a risk laden enterprise”. Even on the applicant’s version, which the Judge appears to have accepted, it was open to conclude that the supply was not going to occur unless Lam had somebody who was prepared to run the risk of carrying the drugs to the place of supply. That would appear to be the reason why Lam invited the applicant to have coffee with him shortly before the supply was to take place. It is common for those higher in the drug organisation to protect themselves by using other persons to take the risk of being caught with the drug at the point of transfer. This is apparently why, on the applicant’s account, Lam was so insistent that the applicant take on this role even to the point of offering him a financial reward.
In my opinion, it matters little what words are used to describe the role played by the applicant. The concern in assessing the appropriate sentence is with what he did in the context of the supply in which he took part. Here he was prepared to carry what he must have known was a relatively large amount of drug on his person to what he knew to be a “drug transaction”. He knew that he was running a risk that Lam was not prepared to take and he undertook this risk for a cash reward. He knew he was facilitating the actual supply of the drug and believed he was assisting in its dissemination into the community. It does not seem to me to matter greatly whether that activity is described as crucial to the supply or not. He certainly was not on the periphery of the actual supply of the drugs even though he might not have been involved in arranging the transaction.
Further, he knew the serious criminality of his conduct because he had previously been convicted of supplying drugs as a juvenile. Any vulnerability he might have had to his peers, has to be seen against his criminal record and his earlier involvement with drugs. It should be noted that in this regard Lam was a much younger man who had never been to gaol and was a heroin addict with only one prior offence of being in possession of heroin. He was described as having an intellectual capacity in the low average range. Similarly Severino was a drug addict who had never been to gaol and had only one prior offence for possession.
I do not believe that there was any error in the way the Judge assessed the criminality of the applicant and the first ground fails.
The second ground relied upon is that the sentence is manifestly excessive. It has to be said at the outset that a minimum period of custody of 22 months for being involved in the actual supply of almost 56 grams of heroin seems to me to be lenient at least when the applicant’s subjective matters are taken into account. The sentencing Judge reduced the applicant’s sentence because of some concern for parity. With respect I do not understand why he did so. I agree with the Judge that it is difficult to understand how the co-offenders could have been sentenced as couriers based upon the facts that were before the court. But in any event the Judge, when sentencing the applicant, was entitled to form his own view of the comparative criminality of the offenders and was not bound by the findings made by the judge who sentenced Lam and Severino. Disparity does not arise from differences in sentences based upon different factual findings arising from different material placed before different courts.
In support of this ground it is submitted that the role of an offender in a supply offence is more important than the quantity of drugs supplied. The decision of this Court in R v MacDonnell (2002) 128 A Crim R 44 at [33] is relied upon to support that proposition. What was said by Wood CJ at CL at that paragraph was (my underlining):
It is also to be accepted that the mere quantity of the drugs is not the sole, or even the principal, determinant for sentencing in relation to drug offences. What is more important is the role of the offender, and the level of his or her participation in the offence; subject of course to the fact that, in relation to supply offences under State law, there is a gradation of seriousness reflected by an increase in penalty as the quantity of drug involved moves into those levels which answer the descriptions of a commercial quantity, or of a large commercial quantity.
This statement appears to be a reflection of what was said by the majority in Wong v The Queen (2001) 107 CLR 584 in their consideration of the role played by the weight of the drug in sentencing for the offence of knowingly being concerned in an importation. It has to be remembered that what was said there about the significance of weight was in the context of Commonwealth offences where it is not the weight of the substance imported that is significant but the weight of the drug as determined by the percentage of pure drug in the substance. But that is not the approach under the Drug Misuse and Trafficking Act where the amount of the substance containing the drug is what determines the seriousness of the offence as classified by the various amounts set out in respect of a particular prohibited drug in the Schedule to that Act.
The reason why the majority in Wongthought that too much significance could not be attributed to the weight of the drug in determining the appropriate penalty is made clear in the following passage at [68]:
It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.
Even if that observation could be generally applied to offences under the State Act, which I doubt, it has no relevance to the present case. The applicant clearly knew that he was carrying two bags of what he believed to be heroin. He knew its approximate weight and the purity of the drug was of no great relevance so far as his criminality was concerned. It is in this regard that his previous involvement in drugs is significant. In any event, in my opinion, the Judge did not attribute too much emphasis to the weight of the drug and was concerned with what the applicant did in taking part in the supply. The fact that the applicant was to receive $200, even if this is accepted, is of little relevance other than to indicate that he was committing the offence, at least in part, for profit. Nor is the seriousness of the offence mitigated to any great degree because the drug was not actually disseminated to the community: see R v Chan [1999] NSWCCA 103. That fact has no bearing on the applicant’s moral culpability for the offence.
It was suggested that the applicant’s plea of guilty had significant utilitarian value and that it was a relevant matter that it came when the Crown changed the nature of the charge. It seems to me, with great respect to those involved, that this is yet another example of what seems to be a forensic game in which the Crown is prepared to participate with the defence in the period leading up to a trial date. On the agreed facts the applicant was clearly guilty of supply on the basis of acting in a common purpose with his co-offenders. Even on the applicant’s version he was guilty of that offence. I do not understand how the substitution of the offence of knowingly take part in supply was to make the slightest difference to the nature of the criminal activity in which the applicant was involved or how it would have the slightest impact upon the sentence to be imposed. The prescribed maximum penalty was the same. It was not suggested to the sentencing judge that the nature of the charge made any difference to the applicant’s criminality or the appropriate penalty, nor was such a submission made before this Court.

This type of plea bargaining was implicitly criticised in R v Nguyen [2005] NSWCCA 362 where after plea negotiations persons involved in an importation were charged with different offences all relating to the importation and pleas of guilty were accepted in relation to those charges but without any understanding by the parties as to what the different charges were to represent in a practical way so far as the criminality of the various offenders were concerned or what impact it was to have on sentencing; see at [103].
The Judge did not indicate the level of discount given other than to indicate that it was “at the lower end of the range of ten to twenty-five per cent”. No criticism is made of that assessment and I believe that it could not have been any more than 15 per cent. Although there had been delay in the finalisation of the charge, that did not prejudice the applicant but rather aided in his rehabilitation.
The applicant relied upon a decision of this Court in R v Bertoli (unreported, 27 May 1994) to show that the sentence was outside the discretion open to the Judge. Quite frankly I doubt that the Court receives any assistance from an isolated decision some 12 years ago where this Court described the sentence as being “quite lenient”. In any event the applicant in that case had never before served a period of imprisonment, was grieving from the death of his father that occurred a few weeks before the offence, had made an early plea of guilty and he had no contact with the drug supplied but rather acted as a bodyguard for a friend who had shown him support in his grief. The sentence of 12 months imposed in that case does not indicate that the sentence in the present case was manifestly excessive.
The finding that there were no special circumstances justifying a decrease in the non-parole period was not, and could not be, challenged. As I have already indicated the applicant was in my view fortunate to have his sentenced reduced because of the sentences imposed on the co-offenders.
I propose that leave be granted but that the appeal be dismissed.
ROTHMAN J: I agree with Howie J.

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LAST UPDATED: 10/10/2006

[2006] NSWCCA 318

6 October 2006