DO, Van Nghiem v R

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985

R v De Simoni [1981] HCA 31; 147 CLR 383 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 CASES CITED : R v Way [2004] NSWCCA 131; 60 NSWLR 168 The Queen v Lowe [1984] HCA 46; (1984) 154 CLR 606 The Queen v Postiglione [1997] HCA 26; (1997) 189 CLR 295

PARTIES: Van Nghiem Do (Applicant) Regina (Respondent)

COUNSEL: G D Wendler (Applicant) N Adams (Respondent)

SOLICITORS: AKN & Associates (Applicant) S Kavanagh - Solicitor for Public Prosecutions (Respondent)

IN THE COURT OF CRIMINAL APPEAL CCA 2006/5141

McCLELLAN CJ at CL GROVE J SIMPSON J

28 February 2008 DO, Van Nghiem v R Judgment 1 McCLELLAN CJ at CL: I agree with Simpson J. I accept that the principles of parity require the intervention of this Court. But for that matter the sentence received by the applicant was lenient and that imposed on Tran even more so. The standard non-parole period specified by the Parliament is ten years. It is difficult to reconcile the sentences which his Honour imposed with the expectation of the legislature. 2 GROVE J: I agree with Simpson J. 3 SIMPSON J: The applicant seeks leave to appeal against a sentence imposed upon him in the District Court at Parramatta on 17 August 2006 by Ellis DCJ following his plea of guilty to a single count of knowingly taking part in the supply of not less than the commercial quantity of a prohibited drug. The prohibited drug was methylamphetamine. By ss 25(2) and 33(2) of the Drug Misuse and Trafficking Act 1985 a maximum custodial penalty of imprisonment for 20 years is prescribed. By Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") a standard non-parole period of 10 years is specified. 4 Ellis DCJ sentenced the applicant to imprisonment for 7 years made up of a non-parole period of 4 years and an additional term of 3 years, commencing on 5 October 2005.

The facts 5 The offence was committed on 5 October 2005. The applicant was acquainted with another man, Van Vu Tran. Tran was under surveillance because he was suspected of being involved in the supply and distribution of methylamphetamine in suburban Sydney. On 5 October 2005 Tran expressly agreed to supply to another man, known to him as "Robert", 500g of the drug for a purchase price of $113,000. "Robert" was, in fact, an undercover police officer. Tran gave "Robert" a sample of the drug, and "Robert" showed Tran the money. 6 The applicant and Tran spoke to one another a number of times by telephone during that day, and then met. They kept in contact with one another during the course of the afternoon. Eventually, at the Bass Hill shopping centre, the applicant handed to Tran a plastic resealable bag which later proved to contain 497.4g of crystal methylamphetamine. In turn Tran supplied this to "Robert". 7 Police arrested the applicant as he was about to drive away. The drug was analysed and found to be 74 percent pure. An estimated street value of $250,000 was placed on the drug.

Subjective circumstances 8 The applicant was born in Vietnam in January 1959. He was 46 years old at the time of the offence. He had one previous conviction, for social security fraud, for which he was, in 2000, fined $600 and required to pay reparations of under $1000. The sentencing judge (correctly, in my view) disregarded this as irrelevant for sentencing purposes. 9 The applicant married in 1978 while still in Vietnam, and a daughter was born a year later. He came to Australia, by fishing boat, in 1981. Three years later his wife and daughter arrived in Australia, and two more children were subsequently born. The applicant developed a gambling problem, which led to the breakdown of his marriage. He nevertheless remains on good terms with his former wife, who has been supportive during his incarceration and the sentencing proceedings. 10 The applicant was in employment as a labourer in a kitchen factory for five years until an injury caused the termination of his capacity for physically demanding work. 11 A psychologist who prepared a report for the sentencing judge was of the view that the applicant suffered from a closed head injury, the result of a wound caused by shrapnel from a hand grenade that struck him above the left ear when he was 20. He demonstrated a "marked memory deficiency", and was thought likely "to be often beset by periods of irrational thought". His criminal conduct was thought to be out of character, probably precipitated by "financial desperation", itself the consequence of his gambling addiction.

The Remarks on Sentence 12 Ellis DCJ set out the facts of the offence and referred to the evidence of the subjective matters that was before him. He made relevant findings of fact. Specifically, he found that the applicant and Tran were working together and that they had approximately equal roles (though performing different functions, Tran as purchaser and the applicant dealing with the supplier) in the transaction. In each case, the role was "more than that of a mere courier but less than that of those up the line sourcing the drug". For the purposes of considering the applicability of the standard non-parole period, Ellis DCJ assessed the gravity of the applicant's offence as: "… not within the mid range but falls within the low to mid range." 13 Notwithstanding that the applicant's plea of guilty was entered at a late stage (the day before the day fixed for the trial commenced) his Honour specified the discount attributable to the plea of guilty on the principles stated in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 as 20 percent. In large measure, the extent of this discount, which appears to be generous, was referable to the administrative regime that governs criminal proceedings in Parramatta, where the trial was listed for hearing. His Honour said: "The plea of guilty was therefore still within the case management period so far as this Court, Parramatta is concerned. The case management process at Parramatta has endeavoured to ensure that all that can be done to produce pleas of guilty prior to the day of trial including offering a discount which might in some ways be regarded as more generous than the guideline judgment in Thomson and Houlton might specifically indicate nevertheless the fact is the utilitarian benefit to the Court of a plea coming on call-over day as distinct from the trial day is significant. It has allowed, at Parramatta at least for a greater certainty in the allocation of trial dates. It has reduced the need to over-list which in turn reduces, from an administrative point of view, the difficulties associated from an accused's point of view in not knowing whether or not his trial will be reached by the Court and from the DPP's point of view and that of complainants in not knowing whether in fact the trial date will be date upon which the trial starts. Accordingly having regard to the genuinely expressed contrition and to the assessment the Court has made of the utilitarian benefits the Court proposed to allow a discount in the order of twenty percent." 14 His Honour then referred to sentences imposed on Tran. In fact it was Ellis DCJ himself who had sentenced Tran, four months earlier, on 7 April 2006. Tran pleaded guilty to two charges - supply of methylamphetamine, committed on 15 September 2005, and supply of not less than the commercial quantity of methylamphetamine (the offence jointly committed with the applicant). In addition, Tran asked, pursuant to Pt 3 Div 3 of the Sentencing Procedure Act, that a further offence identified on a Form 1 be taken into account. This was another offence of supply of methylamphetamine, committed on 5 October 2005, and was constituted by the supply of the sample of the drug that he had given "Robert". 15 Notwithstanding his recognition that Tran was to be sentenced in respect of three separate offences, his Honour determined that the sentence imposed upon the applicant would be of the same length as the effective overall sentence he had imposed on Tran. 16 In Tran's case Ellis DCJ held that his pleas of guilty were entered at the earliest opportunity and accorded him "the full utilitarian discount of twenty five percent". He increased that to 30 percent by reason of a finding that Tran was genuinely contrite and remorseful. Tran also had a significant gambling problem. He had no prior criminal conviction. He was 37 years of age at the time of sentencing. Ellis DCJ concluded that he was unlikely to re-offend and had good prospects of rehabilitation. He had a history similar to that of the applicant, having been born and raised in South Vietnam, in impoverished circumstances. He came to Australia in 1987 at the age of 19. His marriage also had broken down as the result of a gambling addiction. 17 Two passages from the Remarks on Sentence have been identified as relevant to the grounds of the applicant's application for leave to appeal. His Honour said: "The Court is suspicious that Mr Do had a greater involvement in that he may have been above Mr Tran and closer to the supplier. However, having regard to the need for the Court to be satisfied beyond reasonable doubt the Court has concluded that given the agreed statement of facts … and of the content of the conversations as gleaned from the interceptions … the Court concludes that each was on a similar plane in terms of their criminality." 18 Later, his Honour said: "Mr Tran faced two counts and also asked the Court to take one other matter into account on a Form 1. While it may be that this offender is likely to have been involved in that entire process he has not been charged in relation to all of those matters." 19 It was immediately after this latter observation that his Honour stated that he had determined to impose the same sentence upon the applicant that he had imposed on Tran. He said he did that: "… despite Mr Tran's entitlement to an additional discount of 10 percent."

The grounds of the application 20 Two grounds of the application were identified. They were: "1 That the sentencing judge erred by holding: ' While it may be that this offender is likely to have been involved in that entire process he has not been charged in relation to all of those matters ';

2 That the applicant has a justifiable sense of grievance having regard to the sentence imposed upon the offender Van Vu Tran and therefore the applicant's sentence was manifestly excessive."

Ground 1 21 It was argued that the italicised passage quoted in the first ground as framed suggested that his Honour took into account matters of aggravation justifying offences with which the applicant was not charged, in contravention of the principle stated in R v De Simoni [1981] HCA 31; 147 CLR 383. There is, in my opinion, no substance to this ground. His Honour expressly noted that the applicant had not been charged in relation to the two matters for which Tran was sentenced and with which he was not charged. 22 I would reject Ground 1 of the application.

Ground 2 - parity 23 The principles relevant to a ground asserting unfairly unequal treatment are well known. They are stated in The Queen v Lowe [1984] HCA 46; (1984) 154 CLR 606 and The Queen v Postiglione [1997] HCA 26; (1997) 189 CLR 295. Here, of course, the two offenders have been treated precisely equally, but it is the applicant's case that it is that equality of treatment which is unfair and gives rise to a justifiable sense of grievance on his part. That is for the simple reason that Tran was to be sentenced in relation to three separate offences, and he for one only. (I interpolate here that it would be not unreasonable for the sentencing judge to have regarded the Form 1 offence as integrally connected with the second offence to which Tran pleaded guilty.) Had that been the only additional offence I would have no hesitation in rejecting this ground of appeal. However, Tran also faced another charge, which was separate and distinct from the applicant's offence, which had been committed some two to three weeks earlier. There was no suggestion that the applicant was in any way connected with that offence. 24 Having regard to the standard non-parole period which now applies to offences of this kind (and recognising that, because the applicant pleaded guilty to the offence, the standard non-parole period is relevant only as a guide post or indication: R v Way [2004] NSWCCA 131; 60 NSWLR 168), the sentences imposed on both the applicant and Tran had a significant measure of leniency. However, the Crown has not appealed against the sentences imposed upon Tran and it was not suggested that they were manifestly inadequate. In my opinion the principles of parity dictate that, where one offender is accorded a significant degree of leniency, a co-offender is entitled also to expect an equal measure of leniency. In this case that required imposing on the applicant a sentence which reflected the incontrovertible fact that he was to be sentenced only in respect of one offence as compared with the three, or two (if the Form 1 offence is to be treated as I have suggested) separate offences in the case of Tran. 25 I have earlier recounted something of the subjective circumstances of the two offenders. They are remarkably similar. There is nothing to distinguish them. In particular, although Tran was a first offender, and the applicant had committed a prior offence, the judge correctly disregarded that prior offence. 26 In my opinion the parity argument has been made good. I would, accordingly, grant leave to appeal, allow the appeal, and reduce the non-parole period imposed upon the applicant by six months. I would also reduce the total term. 27 I propose the following orders:

(3) Sentence imposed in the District Court on 17 August 2006 be quashed, and in lieu thereof the applicant be sentenced to imprisonment for 6 years and 6 months, made up of a non-parole period of 3 years and 6 months, commencing on 5 October 2005 and expiring on 4 April 2009, and an additional term of 3 years commencing on 4 April 2009 and expiring on 4 April 2012. **********

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