Cam Huynh Giang v R

Court of Criminal Appeal (NSW)|2017-02-24|Before: Hoeben CJ, Walton J, Latham J, Ms J

Judgment

HOEBEN CJ AT CL: I agree with Latham J.
WALTON J: I agree with the orders proposed by Latham J and with her Honour's reasons for judgment.
LATHAM J: The applicant seeks leave to appeal against a sentence imposed on 18 December 2014. The applicant pleaded guilty to one count of supplying an indictable quantity of a prohibited drug, namely methylamphetamine carrying a maximum penalty of 15 years imprisonment, and one count of supplying a commercial quantity of methylamphetamine carrying a maximum penalty of 20 years imprisonment and a standard non-parole period of 10 years imprisonment.
A fixed term of two years imprisonment was imposed on count one, commencing 3 April 2014 and expiring 2 April 2016. That sentence having expired, the appeal is restricted to the sentence imposed on the second count.
A sentence comprising a non-parole period of five years and an additional term of three years was imposed on the second count, commencing 3 April 2015 and expiring 2 April 2023. Three additional offences of supplying methylamphetamine were taken into account on a Form One for the purposes of sentence on this offence. A degree of accumulation resulted in an overall sentence of nine years imprisonment with a non-parole period of six years, commencing 3 April 2014, expiring 2 April 2023. The applicant is eligible for release to parole on 2 April 2020.
The applicant's appeal is out of time, the applicant having filed a Notice of Intention to Appeal in this Court on 19 December 2014. That notice expired on 19 June 2015. A Notice of Application for Leave to Appeal was filed in this Court on 20 October 2016. However, in view of the contents of an affidavit sworn by the applicant on 14 October 2016 and the contents of an affidavit sworn 11 October 2016 by a Legal Aid solicitor, the Crown does not object to the extension of time to allow the appeal to be heard and determined.

The Offences

The applicant was sentenced on the basis of an agreed statement of facts. In November 2013 undercover operatives, who were acting pursuant to a drug squad investigation into the supply of prohibited drugs by members of a Vietnamese criminal syndicate, met with a Vietnamese male in Canley Vale in order to discuss the supply of cannabis. During this meeting that male referred the undercover operatives to the applicant to arrange for the supply of methylamphetamine.
On 20 November 2013 an undercover operative met with the applicant in Liverpool. The applicant offered to supply one ounce of methylamphetamine for $7500.00. The applicant supplied the undercover operative with a sample of methylamphetamine and on that basis the operative asked for one ounce of the drug in the coming weeks. The applicant agreed that he could supply that amount. Upon analysis the sample was found to be methylamphetamine at a purity of 75%.
On 10 December 2013 two operatives met with the applicant in Liverpool and negotiations commenced regarding the supply of five ounces of methylamphetamine. The applicant stated that his usual supplier was away and that he was attempting to source the product from a different supplier. Thereafter, the applicant travelled from Liverpool to Canley Vale where he met with two unidentified Asian men. A short time later the applicant told the operative that he would be unable to provide the sample until later that day.
On 17 December 2013 the operative contacted the applicant and requested five ounces of methylamphetamine. The applicant apologised for the delay, stating that his supplier had not returned. On 30 December 2013 the applicant informed the operative that he would have some new high-quality product in the New Year.
On 9 January 2014 the applicant contacted the operative by SMS indicating that he was able to supply a sample of the quality product. On 21 January the applicant met the operative and supplied a sample which was found on analysis to be methylamphetamine at a purity of 86%.
The applicant informed the operative that he could supply one kilogram of methylamphetamine for the amount of $265,000.00. The applicant stated that his profit on this sale would be $5000.00. However, that supply did not take place.
On 9 March 2014 the operative contacted the applicant and negotiated the supply of five ounces of methylamphetamine for $40,000.00. On 11 March, two operatives travelled to Liverpool where they met the applicant, who supplied five ounces of methylamphetamine in exchange for $40,000.00. The drug was contained within five separate plastic resealable bags. The applicant informed the operatives that he would be able to supply larger amounts of methylamphetamine. The drugs were later analysed and found to be methylamphetamine at a purity of 85%. This supply is the basis of the first offence.
On 13 March 2014 the operative contacted the applicant via text message and requested a further large supply within the next couple of weeks. The applicant replied that he would "check stock for you". On 31 March 2014, the operative contacted the applicant and requested the supply of one kilogram of methylamphetamine. The applicant later stated that he was able to supply such an amount but he wished to supply a sample first. That sample was supplied on 2 April 2014 and found to contain methylamphetamine at a purity of 77.5%. The applicant and the operative agreed to meet at the same location on the next day for the purposes of the applicant supplying one kilogram of methylamphetamine in exchange for $255,000.00.
That supply occurred on the following day. It is the basis of the second offence. The substance was later analysed and found to contain methylamphetamine at a purity of 81.5%. The applicant was arrested a short time after this transaction.
The supply of the sample amounts on 20 November 2013, 21 January 2014 and 2 April 2014 are the bases of the three offences on the Form One.

The Grounds of Appeal

The applicant seeks leave to appeal on three grounds: 1. The sentencing judge failed to take into account material considerations, namely the role of police provocateurs in aggravating the seriousness of offending and overall criminality of the applicant and that in supplying to an undercover operative, the methylamphetamine was prevented from entering the community. 2. The sentencing judge erred in taking into account circumstances subjective to the applicant in assessing the objective gravity of count two for the purposes of giving effect to the standard non-parole period. 3. The sentence is manifestly excessive.

The role of Undercover Operatives

This aspect of ground one is wholly without merit for a number of reasons. Despite the way in which it is framed, the applicant submits that the role of the undercover operatives should have been taken into account by way of reducing the applicant's culpability. The applicant did not raise this feature of the offences on sentence. In other words, the applicant now asserts error on the part of the sentencing judge in respect of a feature of the offending to which his Honour's attention was never drawn, no doubt because the applicant's then legal representative regarded it (correctly in my view) as inapplicable to an assessment of the applicant's criminality.
As this Court has already observed, appeals against sentence are not opportunities to revise or re-formulate the case presented below: Vossos v R [2016] NSWCCA 262 at [63].
The applicant's submissions on this issue do not assist his argument, rather they demonstrate the flaws inherent in it. The applicant acknowledges that: "the question is not whether the [applicant] can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police and the commission of the crime was such as diminished his culpability.": per Badgery-Parker J, R v Taouk (1992) 65 A Crim R 387 at 404.
I pause to note that the applicant must demonstrate the real possibility that he would not have committed both offences but for the involvement of the undercover operatives, in addition to demonstrating that in all the circumstances his culpability was diminished.
There were several features of the applicant's conduct, as set out in the agreed facts, which tend to establish that the applicant was a ready and willing supplier of high-grade methylamphetamine to any prospective purchaser. It is not to the point that the police could have arrested the applicant after he first supplied them with a sample on 20 November 2013 or at any time thereafter. It was clearly the applicant's practice to supply a sample to ensure that the purchaser was aware that he was receiving a high quality product. The applicant referred to his usual supplier and the need to source the drug from another supplier in the absence of the usual supplier. The applicant contacted the operative on 30 December 2013 to inform him that there would be "some new high-quality product in the New Year". On 9 January 2014 the applicant contacted the operative of his own volition. The applicant volunteered to the operative that his cousin was able to supply a kilogram of methylamphetamine at a stated price. Thereafter, the contact between the operatives and the applicant was consistent with police efforts to ascertain whether the applicant was in a position to supply such a large amount.
I do not agree with the characterisation of the conduct of the undercover operatives advanced by the applicant on this appeal. The applicant asserts that the undercover operatives initiated the supply, and then repeatedly and consistently pursued the applicant for further supplies, increasing in quantity on each occasion. Any sensible reading of the agreed facts reinforces the impression that, having been referred to the applicant by another person in the Vietnamese community, the undercover operatives did no more than present the applicant with the opportunity to supply methylamphetamine and test the capacity of the applicant to supply commercial quantities. In my view, the facts established that the applicant embraced every opportunity that was presented over a five month period.

The drugs were not disseminated in the community.

This submission was not made to the sentencing judge. Once again, it is a submission that would have been unwise in the circumstances, given that the judgment of RS Hulme J (Hall J agreeing) in R v DW [2012] NSWCCA 66 at [117] upon which the applicant relies, has since been qualified by Johnson J in AB v R [2013] NSWCCA 273 at [92]. As his Honour there points out, the dissemination of drugs into the community constitutes a significant aggravating factor. However, the absence of an aggravating factor does not thereby constitute a mitigating factor. The fact that drugs are not actually disseminated into the community as a result of a police operation is not a factor that reduces the moral culpability of an offender.
I would refuse leave to rely upon ground one.

Ground Two

After setting out the facts of the offences, his Honour addressed the seriousness of the offences (under that heading) in the following terms (italics not in original):- "In considering the seriousness of the offence of supplying 139.6 g of methyl amphetamine, the following matters are significant (a) The amount of drug involved being 139.6 g of high purity, well over the indictable quantity of 5 g and a little over half way towards the commercial quantity of 250 g. (b) It happened after four months of contact between the offender and the UCO, during which a sample of the product was supplied. (c) His role was more than a courier, he is what might be called a mid-level drug dealer who played an important role in negotiating quantities for purchase and sourcing good quality product. (d) Whilst his initial involvement was to repay a debt it progressed to profit. Whilst I take into account that part of his motivation for both offences, and more so the first than the second one, was to extinguish his debt, as Barr J said in R v Botero (unreported NSWCCA 24 June 1998) to make substantial amounts of money to repay debts is no less criminal than to make the same amounts of money for pure profit. Of course much turns on how substantial the amounts of money are involved. Nonetheless, I give modest mitigatory weight to this matter. I give appropriate weight, however, to the fact that his involvement in drug dealing arose out of duress, to which I will return later. I consider the seriousness of this first offence falls toward the lower end of the range of seriousness for offences of this type."
Corresponding findings were made in relation to the objective gravity of the supply commercial quantity offence, namely that the amount of the drug, its purity, the discussions that occurred over a three week period, and "his role and the reason he was involved as I have already stated.." were relevant to that assessment. His Honour found that "the objective seriousness" of that offence fell slightly above that midpoint between mid range and low range.
His Honour then went on to deal with the applicant's subjective circumstances (under that heading) and to summarise the evidence that the applicant and his wife gave on sentence. His Honour accepted the evidence from the applicant that he became involved in selling drugs because of his gambling debts and that thereafter, the applicant and his family were threatened by those from whom he obtained the drugs.
His Honour observed that "claims of non-exculpatory duress are treated by the courts with circumspection because they are easy to make and hard to disprove. However, I find there was a measure of duress involved in his decision to involve himself in selling drugs."
The applicant submits that these remarks demonstrate error in that the judge took into account a circumstance, namely the commission of the offences whilst under duress, that was purely subjective when assessing the objective gravity of the offence and compounded that error by failing to give the same circumstance any consideration in arriving at the appropriate sentence (the process of instinctive synthesis). The applicant also submits that the judge erred in finding that this factor had little impact upon the ultimate sentence.
The applicant points to these and other passages in the remarks to support the conclusion that his Honour drew a deliberate distinction between the seriousness of the first offence and the objective seriousness of the second offence. It may be accepted that his Honour adopted that difference of expression to distinguish between the gravity of offending generally for an offence that did not carry a standard non-parole period, on the one hand, and the objective gravity of an offence to which a standard non-parole period applied, on the other. The latter required his Honour to assess where the offence fell, relative to the notional mid-range of objective gravity. On my reading of the remarks as a whole, nothing turns on this, since it is clear that his Honour factored duress into the sentencing exercise at both the objective and subjective stages in respect of both offences.
The distinction between factors that are relevant to "the nature of the offending" (Muldrock v The Queen (2011) 244 CLR 120) (objective factors) and those that are purely subjective to the offender is not always easy to draw. The applicant submits that the Court in Muldrock clearly placed duress, provocation, mental state and mental illness outside the scope of objective features, when it disapproved the approach set out in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168; Muldrock at [22].. For my part, I can see nothing in the High Court's judgment that justifies that conclusion. At [22] of Muldrock, the Court was merely summarising the approach of the Court of Criminal Appeal to s 54B of the Crimes (Sentencing Procedure) Act 1999. The Court went on to disapprove of Way to the extent that it suggested a departure from the identification of all the factors that are relevant to the sentence, including a discussion of their significance and the making of a value judgment as to what is the appropriate sentence given all the factors of the case; at [26].
There is nothing which confines duress as a purely subjective factor in any of this Court's relevant decisions since Muldrock: see Kuti v R [2012] NSWCCA 43, Lindsay v R [2012] NSWCCA 124, Cherdchoochatri v R [2013] NSWCCA 118, RCW v R (No. 2) [2014] NSWCCA 190; (2014) 244 A Crim R 541. The Court has continued to apply Tiknius v R [2011] NSWCCA 215; (2011) 221 A Crim R 365 in which Johnson J summarised the law relating to the application of non-exculpatory duress to sentence at [30] to [54] (Tobias AJA and Hall J agreeing). Of particular note is the prevailing importance of general deterrence :- [51] General deterrence has a very substantial role on sentence in cases where non-exculpatory duress is relied upon by the offender: R v Riddell at 536-539 [54]-[63]. The grooming and pressuring of persons to become involved in drug importation offences have been said to be "unremarkable features of many importation offences" : Anna Le v R at [32]; R v Huynh at [11]. At times, the persons targeted by those recruiting them are said to have submissive or compliant personalities ( R v Liu at [34]) or to be naive ( Anna Le v R at [32]).
To like effect are the observations by Allsop P in Lindsay at [18] (Davies J and Schmidt J agreeing). These remarks are as apposite to supply offences as they are to importation offences.
Whilst accepting there was an element of duress in the commission of the offences, his Honour appropriately found that general deterrence was an "important consideration".
I would grant leave to appeal but dismiss this ground of the appeal.

Ground Three

The applicant relies upon a comparison with B v R [2015] NSWCCA 314 and the cases referred to therein, as well as fourteen further cases extracted from the JIRS statistics, to support the contention that his sentence is plainly unjust.
The offender B supplied a commercial quantity of methylamphetamine at 59% purity. The sentence of three years and six months, with a non parole period of two years, was a reflection of a remarkable degree of assistance, both past and future. Allowing for the discount of 60% applied in that case, the starting point of eight years and nine months for one offence does not appear at all inconsistent with the sentence imposed upon the applicant for count two (taking into account the offences on the Form One). None of the cases referred to in B v R assist the applicant. Three of the five summarised by Johnson J were Crown appeals, and the remaining two cases related to the supply of approximately half the quantity of methylamphetamine that the applicant supplied.
Similarly, the cases extracted from the JIRS statistics reinforce the conclusion that the sentence was well within range. Of the fourteen cases cited, one was an appeal against the drug proceeds order, not the sentence imposed, and another was a Crown appeal. A further case relied upon (Kemp v R [2014] NSWCCA 153) was an appeal on the basis of disparity with a co-offender, whose sentence this Court considered "artificially lenient". The balance of the cases, excluding those where significant discounts were given for assistance, demonstrate that for quantities of methylamphetamine between 296 grams and 999 grams, sentences of between six years and ten years imprisonment were imposed.
I would grant leave but dismiss this ground of the appeal.

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