Vo v The Queen

[2014] NSWCCA 146

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Vo v R [2014] NSWCCA 146

Hearing dates:

08/07/2014

Decision date:

08 August 2014

Before:

Emmett JA at [1];
Price J at [2];
Fullerton J at [3]

Decision:

1. Leave to appeal granted.

2. Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - supply large commercial quantity of heroin - whether sentencing judge allowed sufficient discount for guilty plea

Legislation Cited:

Crimes Act 1900 (NSW), s 193B(1)
Criminal Appeal Act 1912 (NSW), s 6(3)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited:

Cameron v The Queen [2002] HCA 6; 209 CLR 339
Morton v R [2014] NSWCCA 8
R v AB [2011] NSWCCA 229
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Sharma [2002] NSWCCA 142; 54 NSWLR 300; 130 A Crim R 238
R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104

Category:

Principal judgment

Parties:

Huu Thanh Vo (Applicant)
The Crown (Respondent)

Representation:

B Brassil (Applicant)
P Ingram SC (Crown)
Greenfield Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2010/357431

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-05-09 00:00:00

Before:

Williams J

File Number(s):

2010/357431

Judgment

1. EMMETT JA: The applicant seeks leave to appeal against a sentence imposed in the District Court of New South Wales following pleas of guilty to two counts of supplying heroin and one count of knowingly dealing with the proceeds of crime. The essence of the applicant's proposed grounds of appeal is that the sentencing judge did not afford an adequate discount for his pleas of guilty. I have had the advantage of reading in draft form the proposed reasons of Fullerton J for granting leave to appeal and dismissing the appeal. I agree with the orders proposed by her Honour for the reasons proposed by her Honour.

1. PRICE J: I agree with Fullerton J.

1. FULLERTON J: The applicant seeks leave to appeal against a sentence imposed by Williams DCJ on 9 May 2013 following his pleas of guilty to two counts of supply of heroin contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and one count of knowingly dealing with the proceeds of crime contrary to s 193B(1) of the Crimes Act 1900 (NSW).

1. The pleas of guilty were entered on 21 February 2013 following the applicant's arraignment in the District Court at some unspecified time prior to trial.

The offences and the sentences imposed

1. The first supply count (charged as Count 1 on the indictment) involved an actual supply of a large commercial quantity of heroin between June and October 2010. The statement of facts tendered on sentence identified a total of 1.9 kilograms as having been supplied on 71 separate instances between those two dates. A large commercial quantity of heroin is specified in Schedule 1 to the Drug Misuse and Trafficking Act as not less than 1 kilogram. That offence attracts a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The applicant invited the sentencing judge to take into account on a Form 1 his possession of two small amounts of prohibited drugs when sentencing for that offence.

1. The second supply count (charged as Count 2 on the indictment) involved a deemed supply of a commercial quantity of heroin, being 754 grams found in three separate locations in the applicant's home upon his arrest on 27 October 2010. A commercial quantity of heroin is specified in Schedule 1 to the Drug Misuse and Trafficking Act as not less than 250 grams. That offence attracts a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years.

1. The offence contrary to s 193B (1) of the Crimes Act (charged as Count 3 on the indictment) related to the applicant's possession of $217,109 which was also located at his home on his arrest. That offence attracts a maximum penalty of 20 years imprisonment.

1. The sentencing judge reduced an undiscounted sentence of 14 years to 12 years on the first count in recognition of the utility of the plea of guilty and its timing. This calculates to a discount of approximately 14 per cent. His Honour made no express reference to discounting the sentences on Counts 2 and 3 by the same amount although it may be assumed he did. Counsel does not submit to the contrary.

1. After taking into account the offences on the Form 1, a sentence of 12 years comprised of a non-parole period of 8 years and an additional term of 4 years was imposed on the first count. That sentence was ordered to commence on 30 April 2013 to account for a brief period on remand. The applicant was released to conditional bail on 4 November 2010.

1. Concurrent terms of imprisonment of 10 years and 6 years were imposed on Counts 2 and 3 which comprised, respectively, a non-parole period of 5 years and an additional term of 3 years and a non-parole period of 4 years and an additional term of 2 years.

The grounds of appeal

1. The four grounds pressed on the application for leave to appeal articulate, in slightly different ways, what is said to be error in the assessment of the discount allowed for the pleas of guilty. They are as follows:

Ground 1: The sentencing judge erred in failing to allow sufficient discount to the plea of guilty.

Ground 2: The sentencing judge erred in placing weight on the strength of the Crown case when assessing the applicable discount for the plea of guilty.

Ground 3: The sentencing judge erred when sentencing the applicant by failing to take into account that the applicant was entitled to be accurately informed of the particulars of the charge before he could reasonably be expected to plead to the charge.

Ground 4 (in the alternative to Ground 3): The sentencing judge erred in penalising the applicant for not pleading guilty earlier to a charge that lacked an important particular relevant to the sentencing process.

1. These grounds of appeal can conveniently be dealt with together.

1. Given the confined nature of the errors contended for by the applicant, it is sufficient to set out the facts upon which sentence was imposed in very short compass.

The facts

1. A police investigation into the supply of heroin in the Birrong area in Western Sydney identified two people who were supplying heroin to drug users, including street level suppliers of heroin, in amounts of between 3.5 and 10 grams. Intercepted telephone conversations between these two persons and the applicant identified him as their supplier with the heroin being supplied from his home in Bankstown by pre-arrangement.

1. On 27 October 2010 police arrested one of the people as he drove from the applicant's premises after having discarded a package containing 28 grams of heroin with a purity of 30 per cent. Assistance provided to police by the purchasers of the drugs confirmed that it was customary for them to purchase 1 ounce (28 grams) of heroin from the applicant on a regular basis at a cost of $5600 for their on-supply to end users.

1. Search warrants were executed at the applicant's premises where the heroin the subject of the second count and the money the subject of the third count were located. The applicant admitted possession of the heroin at his home which he said he was holding for another person. He was unable to provide any details to assist investigators to identify that person. He maintained that he had been in possession of the heroin for a period of two to three weeks. He claimed that he intended to return the heroin to the other person at some future date. He admitted to possession of the cash found in a combination lock safe which he opened at the request of police. He claimed that only $15,000 was the proceeds of drug supply and that the balance was from gambling.

1. A large quantity of material commonly mixed with high purity heroin to increase the bulk quantity of the drug as an admixture was located. Electronic scales and small quantities of individually packed bags of heroin were located in the refrigerator. The applicant then admitted supplying heroin that day and supplying heroin on previous occasions.

Consideration of the grounds of appeal

1. On sentence the Crown submitted that a discount in the order of 10 to 12½ per cent for the pleas of guilty was in accordance with the principles in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1, in particular Howie J's observation at [31] that the maximum discount for the utilitarian value of a plea is reserved for cases where the guilty plea is entered at the earliest opportunity in accordance with the guideline judgment in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; 115 A Crim R 104. In Morton v R [2014] NSWCCA 8 at [32]-[33] Hoeben CJ at CL (with whom Schmidt J and Barr AJ agreed) reaffirmed the principles to be applied by sentencing courts when assessing the utilitarian value of a plea as articulated by Howie J in Borkowski and his Honour's analysis to a similar effect in R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510.

1. Experienced senior counsel who appeared for the applicant on sentence submitted that a discount in the order of 15 per cent was appropriate. He accepted that the applicant had no entitlement to what counsel described as "the full discount". That submission would appear to reflect what Howie J observed later in [31] in Borkowski that in the "usual case" a plea of guilty entered on arraignment could not justify a discount of more than "about 15 per cent".

1. In that same paragraph, his Honour went on to say:

... There may be a valid reason in the exercise of discretion for awarding the maximum discount where the plea of guilty does not occur until the District Court but that would be exceptional and arise from the peculiar factual situation in a particular case...

1. Counsel on the appeal submitted that this was an exceptional case.

1. In oral submissions in this Court the applicant's counsel submitted that senior counsel misunderstood the relevant law and that he should have urged the sentencing judge to apply a discount of 20 per cent for the pleas of guilty (that is, an increase of 6 per cent on the 14 per cent his Honour allowed) and that this Court should intervene to re-sentence the applicant to correct that error. Counsel further submitted that despite the sentencing judge's finding that the totality of the applicant's criminality could be reflected in the imposition of wholly concurrent terms of imprisonment (a generous finding but not the subject of a Crown appeal against the inadequacy of sentence) the sentencing error was such that other sentences were warranted at law as provided for in s 6(3) of the Criminal Appeal Act 1912 (NSW).

1. The reason for the applicant's late plea was said to be delay in the Crown notifying him of the precise quantity of heroin the subject of Count 1. This was also said to be a circumstance sufficiently exceptional to have attracted a discount in the order of 20 per cent despite the plea of guilty being entered after arraignment. Counsel submitted that it was not for the applicant to press for the quantity of heroin he was alleged to have supplied to be calculated before he considered whether he would enter a plea of guilty to the first count. That was a matter exclusively within the province of the prosecution in an accusatorial system of criminal justice and that he should not be penalised for failing to plead guilty earlier in those circumstances. The applicant relied on what Kirby J observed in Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [77] as authority for that proposition as a corollary to the submission that the sentencing judge erred by not allowing a greater discount for the guilty plea. He submitted that the applicant's senior counsel in the sentence proceedings should not have abandoned what he invited this Court to apply as a statement of principle articulated by Kirby J in Cameron by proposing a discount of 15 per cent. Rather, he should have urged the sentencing judge to find that the plea was entered at the first reasonable opportunity and that a discount of at least 20 per cent should have been allowed to reflect that fact.

1. I am not persuaded that senior counsel's submissions revealed any misunderstanding of principle. To the contrary. They were properly made in accordance with established authority. It follows that I am not persuaded that the circumstances in which the pleas were ultimately entered were exceptional such as might allow for the conclusion that the sentencing judge's discretion miscarried in allowing no greater discount than 14 per cent for the plea of guilty or that there is any statement of principle in Cameron which dictates any different result.

1. In Cameron the original charge alleged that the appellant possessed a particular prohibited drug. On further analysis, that substance proved to be a different prohibited drug and the charge was amended. The plea of guilty was entered to the amended charge six months after the appellant's arrest but before he was committed for sentence to the District Court of Western Australia. The sentencing judge reduced the discount for the guilty plea because of the timing of the plea. The Court of Criminal Appeal rejected the appellant's submission that it was not possible for a plea to be entered until the charge was amended to properly identify the prohibited drug in his possession. In the joint judgment of Gaudron, Gummow and Callinan JJ at [23]-[25] in upholding the appeal the following was said:

[23] Although the original charge specified the elements of the offence charged, it was not reasonable to expect the appellant to plead to an offence which wrongly particularised the substance to which the charge related. And that is so even if the identity of the substance would not have affected sentence. In this regard, it should not be assumed that the appellant knew that the sentence would be the same regardless of the nature of the substance.

[24] More importantly, the appellant should not have been expected to acquiesce in procedures which might result in error in the court record or, indeed, in his own criminal record. At the very least, a plea of guilty to a charge wrongly particularising the substance he had in his possession would not necessarily provide the basis for a plea of autrefois acquit to a subsequent charge specifying the correct substance.

[25] The Court of Criminal Appeal was in error in holding that the appellant could have pleaded guilty before the charge was amended to correctly specify the substance which he had in his possession. Moreover, it was in error in stating that there had been "no saving in the Magistrates Court" for the appellant's plea of guilty rendered a preliminary hearing unnecessary.

1. In R v Sharma [2002] NSWCCA 142; 54 NSWLR 300; 130 A Crim R 238 Spigelman CJ gave detailed consideration to whether the reasoning in the joint judgment of Gaudron, Gummow and Callinan JJ in Cameron at [12]-[15] as to the relevance of the plea of guilty on sentence was binding authority in New South Wales. His Honour resolved that it was not (Mason, Barr, Bell and McClellan JJ agreeing), principally because of the different statutory schemes for dealing with pleas of guilty in New South Wales and Western Australia. His Honour confirmed that the decision in R v Thomson; R v Houlton represented the law in this State in that the focus for sentencing purposes is on the objective utilitarian value of the plea of guilty.

1. Neither counsel referred the Court to the decision in Sharma nor whether the passage which I have extracted from the joint judgment in Cameron above applies as a statement of guiding principle. Even accepting that it does, I do not consider that it assists the applicant in this case.

1. The Court was not referred to any evidence to indicate as to when the particulars of the heroin supplied in Count 1 were ultimately notified to the applicant's legal representatives, and nothing produced by way of correspondence with the prosecuting authorities or notes of appearances either in the Local Court prior to the applicant's committal for trial, or following his appearance in the District Court after that date, to support the submission that dilatoriness by the prosecuting authorities was the reason he delayed his answer to the charges. Additionally, there was nothing put by way of submission to this Court to explain the delay in the applicant entering pleas of guilty to Counts 2 and 3 on the indictment (as to which at least partial admissions were made on arrest) which may have attracted the "usual discount" for those offences if entered at the first reasonable opportunity.

1. There is force in the Crown's submission that the delay in entering the pleas of guilty to all charges might be explained by the applicant's belief that there was some forensic advantage to him on sentence if the heroin supplied in Count 1 was only marginally greater than the large commercial quantity and that he could preserve his position as to whether he would enter a plea of guilty to that charge at all until the Crown nominated that amount. Whatever else might be said about that approach, it diminished the utilitarian value of his plea when it was entered. As Howie J observed in Borkowski generally the reason for the delay in the plea being entered is irrelevant because, if it is not forthcoming, its utilitarian value is reduced.

1. For my part, I am satisfied the applicant could have been in little doubt upon service of the brief that the weight of evidence was against any realistic expectation that the amount of heroin he supplied in excess of 1 kilogram was incalculable given that he knew that the people he was supplying were assisting police and that his telephones, as the means by which the arrangements for those ongoing supplies were made, were intercepted. When his Honour observed that the only matter delaying the entry of the plea was the weight of the drug supplied on the first count and that "... it is difficult to see how a plea of guilty could have been avoided except in a very unrealistic scenario", it is clear his Honour was not referring to the strength of the Crown case as a factor relevant to the assessment of the discount of the plea, as the applicant contends in the third ground of appeal, but to the fact that the applicant had not entered a plea at an earlier stage in the proceedings when it was reasonably open to him to do so.

1. Accepting that the amount of heroin in excess of 1 kilogram was a matter relevant to sentence, the question remains whether the applicant was entitled to defer entering a plea for over two years until he was notified by the Crown as to the quantity they alleged he supplied whilst still claiming a discount for an early plea. I am not persuaded he was. What was alleged was a supply of a prohibited drug, namely heroin, in an amount not less than a large commercial quantity of that drug. The particularised amount in excess of 1 kilogram was not an element of the offence. This is not a case where there were ongoing negotiations with the prosecuting authorities as to the final form of the charges on the indictment, or to the number of charges to which pleas were sought, such as might explain pleas of guilty being entered in the District Court on or after arraignment. In cases in that category, where the particular circumstances allow for it, it may be open to a sentencing judge to find that a plea of guilty was entered at the earliest reasonable opportunity and, in the exercise of discretion, to apply a discount for the plea to reflect that fact. Neither was it a case where it was suggested to the sentencing judge or to this Court that the weight of the drug might convert the charge from one of supplying a large commercial quantity to supplying a commercial quantity where the maximum penalty reduces from life imprisonment to imprisonment for 25 years. Although the weight of the drug is a factor relevant to sentence, it is not decisive and did not prove to be in this case.

1. As I have noted, the charge to which the applicant pleaded guilty as Count 1 on the indictment was, in any event, the same offence as that charged by police on his arrest. Furthermore, even when pleas of guilty to all three counts were entered in February 2013 (two and a half years after his arrest), Count 1 did not particularise the amount of drug supplied as constituting a large commercial quantity. It may be assumed that when the plea was entered it was accepted that the precise weight of the heroin would be either agreed before sentence, or if it remained in contest, that it would be the subject of a disputed issue of fact in the sentence proceedings. This was the approach most recently endorsed as the correct approach by Bathurst CJ (with whom Hoeben J agreed) in R v AB [2011] NSWCCA 229 at [2]-[3].

1. I am not persuaded that any of the grounds of appeal are made out.

1. The orders I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 14 August 2014