Do v R [2010] NSWCCA 182 | Case summary

DECISION: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentences and in lieu thereof sentence the applicant as follows: count 1 imprisonment for a non parole period of three years eleven months to commence on 19 June 2009 and expire on 18 May 2013 and a balance of term of one year four months to expire on 18 September 2014; count 2 imprisonment for a fixed term of two years two months to commence on 19 June 2009 and expire on 18 August 2011. The earliest date on which the applicant will be eligible for release to parole is 18 May 2013.

(2) Possession of a prohibited drug, 0.27 g methylamphetamine, contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985. 5 The applicant sought leave to appeal against the sentences on the grounds that: "1. His Honour erred in commencing the sentences on 24 June 2009. 2. His Honour erred in failing to consider the question of totality. 3. His Honour erred in failing to make a finding of special circumstances. 4. The sentence imposed is manifestly excessive. 5. The sentencing judge erred by not allowing a discount of 25 percent for the plea of guilty before committal in accordance with s 17(1)(a) of the Criminal Case Conferencing Trial Act ." 6 The facts were agreed. In essence, at approximately 3.00 am on 10 June 2008 two police officers stopped in response to traffic lights at an intersection. They observed a Subaru WRX which was also stopped in response to traffic lights at the intersection. There were four male occupants in the vehicle. The actions of the driver and passengers aroused the interest of the police who pulled the vehicle over a short distance from the lights. As his Honour recounted: "Information regarding the WRX and its occupants was then broadcast over police radio and Officer O'Brien reached into the car to remove the keys from the ignition. Officer O'Brien noticed all four [occupants] become extremely nervous, looking from side to side and behind them as they fidgeted and reached down between their legs with their hands. He then stepped back from the vehicle and pulled the restraining clip from his firearm, yelling 'Keep your hands up where I can see them, stop moving around and keep your hands up. If you don't someone is going to get hurt.'" 7 A search of the vehicle and its occupants revealed the presence of a balaclava and three white gloves. One occupant (Nguyen) had a machete with a 50 cm blade secreted in his pants. A black Parabellum pistol containing a magazine with 10 live rounds of ammunition was located in the foot well where one occupant (Chompeay) had been sitting. A 32 calibre Beretta pistol was located in the foot well area on the driver's side where the applicant had been sitting. It contained a magazine with two live rounds of ammunition. A plastic bag containing 0.27 grams of methylamphetamine was located in his pocket. The occupant Tran had a Taser-type device, in working order, on his person and a copper coloured bullet in his pocket. A .25 calibre pistol with a magazine with six live rounds was found in the foot well area where Tran had been sitting. The pistols were prohibited and unregistered. The occupants had no licences or permits in respect of them. Numerous items of correspondence in the name of the applicant were located in the glovebox of the vehicle. 8 All four occupants of the vehicle were arrested. Subsequently Nguyen was deported before charges were laid against him. The applicant and the other two occupants were sentenced together. 9 In sentencing the applicant, his Honour, the sentencing judge, allowed a 20 percent discount for the guilty pleas. Regrettably, his Honour's attention was not drawn to the Criminal Case Conferencing Trial Act 2008 which had application in this case and provided: "17(1) If an offender pleaded guilty to an offence at any time before being committed for sentence, the sentencing court must allow a discount for the guilty plea calculated as follows: (a) if the court imposes a sentence of imprisonment for a term - a term that is 25% less than the term the court would otherwise have imposed" 10 The Crown conceded that a material error had occurred in this regard. In the circumstances the sentences must be quashed and the applicant resentenced. It is therefore unnecessary to consider the other grounds of appeal. 11 The applicant was born in October 1976 in Vietnam. He gave evidence on sentence that he and his family escaped as boat people from Vietnam to Malaysia where they spent time in a refugee camp. In 1982 they migrated to Australia. At age 14 he left school and was recruited into a criminal gang and adopted a life of crime. 12 The applicant has a wife and two young children. At the time of his arrest he was unemployed and had been for six months. In the past he had had problems with gambling and drug use. 13 He was examined by a psychologist, Professor Woods, who assessed him as suffering from substance abuse disorder, severe personality disturbance with paranoid features, residual symptoms of post traumatic stress disorder and pathological gambling. He had seen the applicant in late 2004 and early 2005 and had commenced therapy which, he said, resulted in the applicant making excellent progress. Treatment ceased during incarceration and the applicant reported his symptoms were returning. 14 Professor Woods' opinion was based largely upon a history given to him by the applicant. As the applicant was not a credible witness (see para [18] hereof), little weight can be attached to Professor Woods opinion as to the applicant's mental state. 15 I have had regard in resentencing the applicant to his affidavit affirmed on 7 May 2010 in which he states he is participating in a printing traineeship, has enrolled for rehabilitation courses, is receiving treatment for his drug problems, has family support, and is determined that this will be his last time in gaol. It is to be hoped that the applicant is now on a path that will lead to his rehabilitation but the evidence is not sufficient to consider the applicant's prospects in this regard as other than equivocal. 16 The applicant's record showed that he had been convicted of a number of types of different offences including illegal use of a motor vehicle, self administer prohibited drug, break enter and steal, armed robbery, steal motor vehicle, possess firearm without licence, resist officer, enter inclosed lands, behave in an offensive manner, supply prohibited drug, possess unauthorised firearm, possess prohibited drug and goods in custody. He has served previous terms of imprisonment. 17 At the time of the offence the applicant was on conditional liberty, being on parole, having been sentenced to four years imprisonment with a 15 month non parole period for drug supply, and a concurrent ten month fixed term for possession of an unauthorised firearm, with the sentences commencing on 25 June 2005. He was released to parole on 24 September 2006. As a result of the subject offences, the parole was revoked effective as of the date of his arrest, 10 June 2008, and he was ordered to serve the balance of parole of one year 15 days, which expired on 24 June 2009. 18 The applicant informed Professor Woods and gave evidence that he was in the process of purchasing a gun for self protection from the 5T gang, of which he had been a member. He said he and the other occupants of the vehicle had obtained the guns on credit a few hours earlier and that when stopped by the police they were on their way to borrow the funds to pay for the weapons. There is no evidence to confirm this explanation (apart from the evidence of the co-offender Mr Chompeay). The circumstances make it improbable, and I do not accept it. I am confirmed in my conclusion by the comments of the sentencing judge who had the benefit of observing the applicant give evidence on sentence and who described the applicant's oral evidence as "trite, fanciful, unbelievable and contrary to common sense". He totally rejected that evidence, observing that, even if it was true, it did not mitigate the seriousness of the offences. 19 The Firearms Act 1996 s 7(1) provides: "A person must not possess or use a prohibited firearm or pistol unless the person is authorised to do so by a licence or permit." 20 A prohibited firearm is defined in s 4 and means a firearm described in Sch 1 of the Firearms Act 1996. The firearms there described ranged from a machine gun, rifle, shotgun down to replica firearms. A prohibited pistol is defined in s 4C(1). 21 Section 7(1) refers to both possessing and using a firearm. It can be argued that using is a more serious offence than possessing and that a pistol is less dangerous than a machine gun. However, each can be lethal and a pistol may be readily concealed upon the person. Much depends upon the circumstances. 22 In this case the pistol was loaded and unsecured. It was in the applicant's possession when he was a member of a group of heavily armed young men. The pistol was within a vehicle upon a public street in an urban area. It was capable of being concealed upon the applicant's person or in the vehicle. A balaclava and gloves were in the vehicle. The pistol represented a high risk to members of the public and to the arresting police though it was not used on this occasion. There was no acceptable innocent explanation for the possession of the pistol which in any way mitigated the objective seriousness of the offences. 23 The objective circumstances of this offence, in my opinion, place it significantly above the middle range of objective seriousness for such offences. In these circumstances, reference to the yardstick provided by the standard non parole period is of limited assistance. The maximum penalty of 14 years thus becomes the principal factor in determining the sentence as the objective criminality is above the mid range - R v Mitchell [2007] NSWCCA 296; (2007) 177 A Crim R 94 at [37] and Micklesson v R [2009] NSWCCA 61 at [15]-[16]. 24 The offences were committed by the applicant in circumstances where punishment, including imprisonment for a previous similar offence, had had no rehabilitative effect upon him and the offences were committed in breach of parole. A lengthy custodial sentence is warranted for specific deterrence and protection of the community. 25 I have had regard to ss 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. No penalty other than full time imprisonment is appropriate and no submission to the contrary was made. 26 The applicant is entitled to a 25 percent discount for the pleas of guilty. The subjective factors are of little assistance to the applicant. There is no acceptable evidence of remorse or contrition and I have already commented on rehabilitation. The applicant's record is not one which entitles him to any leniency from the Court. 27 The doctrine of totality requires the Court to consider "the total criminality involved not only in the offences for which the offender is being sentenced, but also in any offences for which the offender is currently serving a sentence" and to ensure that the aggregation of sentences is a "just and appropriate measure of the total criminality involved" - Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per McHugh J at 307-308, R v Kerr [2008] NSWCCA 201 at [26]. At the time of sentence the applicant was completing a period of imprisonment following the revocation of an earlier parole. He had only a few days remaining of that sentence. The applicant was serving the earlier sentence for a serious offence of supplying the commercial quantity of heroin. The sentence for the possession of the prohibited firearm had expired well before his arrest on the subject charges. The drug offence was a serious matter and distinct from the subject offences. I do not regard it as a special circumstance which would justify reduction of the non parole period. In my opinion, there were no special circumstances. 28 Judicial Commission statistics and a table of cases were before the Court. However, the statistics were based upon a small number of cases. They were too limited to provide guidance as to the appropriate range particularly when dealing with an offence where the circumstances may be so variable. Similarly, I did not find the table of cases of any real assistance. 29 I have taken into account on count 1 the two matters on the Form 1. 30 In my opinion, the appropriate sentence (rounded off) on the count 1 offence is imprisonment for a non parole period of three years eleven months with a balance of term of one year four months. The penalty that would have been imposed on count 1 but for the guilty plea was seven years imprisonment. 31 The second count relates to the same pistol. In my opinion, the appropriate sentence for this offence is a fixed term of imprisonment for two years two months, to be served concurrently with the sentence under count 1. 32 The sentences for counts 1 and 2 should commence on 19 June 2009, being the day on which the sentences were imposed in the District Court. 33 I propose the following orders:

Do v R

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