Huynh v R

High Court of Australia (Special Leave)|2009-03-12|Before: Allsop P, Johnson J, Price J

The Applicant's Subjective Circumstances 24 The Applicant was born in 1976. He was 29 years old at the time of the offences and 31 years old at the time of sentence. He is a single man and has no dependants. 25 The Applicant was born in Vietnam and came to Australia when he was about six years old. 26 He has a significant criminal history. This history includes offences of armed robbery in company and conspiracy to commit armed robbery which was dealt with in the Children's Court in 1993 by way of control order. In 1995, he was fined and placed on a good behaviour bond for possession of a prohibited drug and goods in custody. 27 On 14 November 1996, he was sentenced in the Sydney District Court, for supplying a prohibited drug, to imprisonment by way of periodic detention for three years to commence on 22 November 1996. On 17 June 1998, he was sentenced in the Melbourne County Court for offences under s.233B Customs Act 1901 (Cth) of attempted possession of a prohibited import (heroin) and possession of a prohibited import (heroin) to a term of five years' imprisonment with an order that he be released at the expiration of four years on entering a recognisance to be of good behaviour. An appeal against these sentences was dismissed by the Victorian Court of Appeal on 29 April 1999. 28 On 19 July 2001, the Applicant was sentenced in the Sydney District Court for assault occasioning actual bodily harm to a term of imprisonment for two years with a non-parole period of 10 months. On the same day, he was sentenced to imprisonment for failing to appear and an order was made cancelling the sentence of periodic detention imposed in the Sydney District Court on 14 November 1996 for the supply drug offence, with a sentence of full-time imprisonment being fixed in its place. 29 Thus, an examination of the Applicant's criminal history reveals two prior convictions for serious offences of drug supply and possession of prohibited imports, with the latter offence apparently being committed in Victoria whilst the Applicant was subject to a term of imprisonment by way of periodic detention for the former offence in this State. 30 The Applicant did not give evidence at the sentencing hearing. 31 A letter from the Applicant was tendered on sentence together with a report of Mr Watson-Munro, psychologist, dated 21 February 2008. In addition, the Applicant's sister, Kathy Huynh, gave evidence in the sentencing proceedings. She indicated that there was family support for the Applicant. 32 Mr Watson-Munro observed that the Applicant had a "variable work history although it does not appear that he has been employed for a number of years". The Applicant told Mr Watson-Munro that his last employment was as a trainee photocopy technician which lasted for three months about six years ago. He had also done some intermittent work to assist a friend to market mobile phones. 33 According to Mr Watson-Munro, the Applicant stated he had been a chronic gambler for a number of years and that this, in part, accounted for the large quantities of money which had been located by the authorities. He told Mr Watson-Munro that he would gamble on a daily basis, which involved attending Star City Casino and bets on horses and dogs. 34 The Applicant told Mr Watson-Munro that he had not used drugs during the time he had been in prison since November 2006.

Some Findings of the Sentencing Judge 35 The learned sentencing Judge found that the supply prohibited drug offence was "below the mid range of objective seriousness for the offence". His Honour accepted the Applicant's claim that he had the prohibited drug both for his own use and to supply to his friends. His Honour accepted that he had been a user of methylamphetamine and had been so for a period of time. 36 His Honour made no findings with respect to the nine proceeds of crime offences beyond observing that they were "serious offences". 37 His Honour accepted that the Applicant pleaded guilty at an early opportunity and allowed a discount "in the vicinity of 20%" for his pleas of guilty. 38 Reference was made to the Applicant's difficult background in Vietnam and then in Australia, and the Applicant's history of abuse of alcohol and stimulant drugs. His Honour noted that Mr Watson-Munro had expressed the opinion that the Applicant had long-standing symptoms of depression and anxiety. His Honour noted the Applicant's prior criminal history and observed that he had not been dealt with for any drug offence since 2001. His Honour concluded that the Applicant had "reasonable prospects of rehabilitation". The submission that the Applicant was at "a watershed in his life" was accepted. 39 Having announced the sentence on the supply prohibited drug matter, his Honour said "I find special circumstances", but did not provide reasons for that finding. 40 Thereafter, his Honour imposed sentences for the nine s.193C offences. Having done so, his Honour stated again "I find special circumstances" without expanding upon that statement. 41 In the course of his remarks on sentence, the learned sentencing Judge observed that, in sentencing the Applicant for the drug supply offence and the nine s.193C offences, he had regard to "principles contained in R v Pearce including the principle of totality" (ROS4). In sentencing the Applicant in respect of the nine s.193C offences, his Honour observed again that he had "regard to the totality principle" (ROS6).

Grounds of Appeal 42 By Notice of Appeal filed 18 July 2008, the Applicant advances the following grounds of appeal:

In determining that the sentences for the proceeds of crime matters should be served consecutively to the sentence for the drugs matter, his Honour did not have regard to his finding of special circumstances.

In determining the sentences for the proceeds of crime matters, his Honour did not have regard to his finding of special circumstances.

Submissions of Applicant 43 In support of Grounds 1 and 2, Mr Lange, counsel for the Applicant, observed:

(a) that the sentence for the drug supply offence involved a total term of four years with a non-parole period of two-and-a-half years, with the non-parole period being 62.5% of the full term;

(b) in relation to the s.193C offences, that a total term of 12 months with a non-parole period of nine months was imposed, being a ratio of 75%;

(c) that a total sentence of imprisonment was imposed for all offences of four years with a non-parole period of three years and three months, with the non-parole period being 81.25% of the full term. 44 Mr Lange submits that, although the sentencing Judge found special circumstances with respect to both groups of sentences, the finding was only reflected with respect to the drug supply sentence (62.5%) and not the s.193C sentences (75%). Further, he submits that the overall sentence involved a non-parole period that was 81.25% of the total term of imprisonment. He contends that it is apparent, from his Honour's remarks on sentence, that he intended to fix an effective non-parole period that was less than 75% of the total term. Reliance was placed upon R v Ibrahim [2005] NSWCCA 43 at [14]-[18] and R v Nightingale [2005] NSWCCA 147 at [45]-[47]. For these reasons, he submits that error has been demonstrated in the manner alleged in Grounds 1 and 2. 45 In support of Ground 3, Mr Lange submits that the sentence for the offence of supplying a prohibited drug was manifestly excessive. Although acknowledging that the Applicant was entitled to less leniency because of his previous convictions for drug-related offences, he contends that a number of findings were made in the Applicant's favour which assisted the Applicant on this ground of appeal. In particular, he points to the finding that the offence was "below the mid range of objective seriousness" and the finding that the Applicant possessed the drugs for personal use and for social supply. 46 Mr Lange submits that a review of what were said to be similar cases demonstrated that the sentence imposed fell outside the range of that ordinarily viewed as proportionate, pointing in this respect, in particular, to R v Vera [2008] NSWCCA 33. Although acknowledging that a review of previous cases cannot, by itself, lead to the conclusion that a particular sentence is manifestly excessive, Mr Lange submits that an examination of these cases supports his contention with respect to this sentence. 47 Mr Lange contends that, since the sentence for the drug supply matter is manifestly excessive and the s.193C sentences were ordered to be served consecutively to that sentence, then the overall sentence imposed was manifestly excessive and that this Court should intervene.

The Crown Submissions 48 The Crown submits that error should not be found in the way in which the sentencing Judge structured the sentence. It was open to the sentencing Judge to impose a higher than statutory proportion if he saw fit: R v Simpson (2001) 53 NSWLR 704 at 719 [70]. Further, his Honour followed proper sentencing principles demonstrated by his overriding consideration of the question of totality. 49 The Crown submits that the Judge had adjusted the ratio for the supply offence, and that the Applicant had been afforded the benefit of complete concurrency as between the nine proceeds of crime offences, and partial accumulation of the head sentences for those offences with the head sentence for the supply offence. The Crown submits that had the overall ratio been any less, this would have meant that the sentences imposed for each count would be manifestly inadequate. The sentencing Judge was required to ensure that the non-parole period did not fall below the minimum acceptable period: R v Cramp [2004] NSWCCA 264. 50 The Crown noted that the sentencing Judge did not indicate why he made a finding of special circumstances in his remarks on sentence. If rehabilitation was the basis of such a finding, the Crown submits that this factor had been double counted as it had been taken into account, along with the other subjective factors, in mitigation: R v Fidow [2004] NSWCCA 172 at [18]. 51 If some error was found in the implementation of the finding of special circumstances, the Crown submits that the non-parole period must reflect the criminality involved in the offence, including its objective gravity, and the need for general deterrence. Accordingly, this Court ought not intervene. 52 With respect to Ground 3, the Crown submits that the sentence for the drug supply offence was not manifestly excessive. Reference was made to the available maximum penalty (15 years' imprisonment), the quantity, value and purity of the drug found and the presence of drug paraphernalia, including scales and plastic bags, all located in the premises of the Applicant who had not been in gainful employment for several years, and who had a record of convictions for serious drug supply offences. 53 The Crown contends that the finding that the Applicant had reasonable prospects of rehabilitation was generous in the circumstances of this case, as was the fixing of entirely concurrent sentences for the s.193C offences: R v MMK (2006) 164 A Crim R 481 at 486 [13]. 54 The Crown submits that the Applicant has not demonstrated a basis for intervention by this Court and that no lesser sentence is warranted and should have been passed: s.6(3) Criminal Appeal Act 1912.

Determination 55 The question for this Court is whether error has been demonstrated and, if so, whether a positive opinion ought be formed that some other sentence is warranted in law and should have been passed: R v Simpson at 720-721 [79]. 56 With respect to Grounds 1 and 2, it is the case that an element of uncertainty arises in this case concerning "special circumstances" for two reasons:

(a) the sentencing Judge's statement, on two occasions, that special circumstances were found;

(b) his Honour's failure to comply with the statutory and common law obligation to record reasons for a finding of special circumstances in accordance with s.44(2) Crimes (Sentencing Procedure) Act 1999 ; R v McDonald (NSW Court of Criminal Appeal, 12 October 1998). 57 Insofar as it may be divined from the remarks on sentence, the foundation for a finding of special circumstances appears to lie in his Honour's conclusion that the Applicant had reasonable prospects of rehabilitation. If this be the basis for the finding, however, there is force in the Crown submission that double counting operated in favour of the Applicant. In my view, it is clear that his Honour took into account his assessment of prospects of rehabilitation in mitigation of penalty: s.21A(3)(h) Crimes (Sentencing Procedure) Act 1999. 58 It is correct that the non-parole period component represents 81.25% of the total sentence imposed. I am not persuaded, however, that error has been demonstrated in the sense that the sentences imposed did not accord with his Honour's intention. His Honour applied the principles of concurrency, accumulation and totality before reaching the final sentence imposed. I do not uphold Grounds 1 and 2. 59 However, even if error was established in that the sentences actually imposed did not accord with his Honour's intention (a finding which I do not make), the question which remains is whether a total non-parole period of less than three years and three months ought be fixed. 60 It is appropriate, at this point, to move to Ground 3. It must be observed that some generous findings were made in favour of the Applicant. The Applicant has a history of significant drug supply for which he has served two separate terms of imprisonment. Including the present offence, he had committed three serious drug supply offences before reaching the age of 30 years. The facts of the present drug supply offence do not sit comfortably with a finding that he possessed the drugs for his own use and for social supply only. It might be thought that a social supplier is unlikely to possess the paraphernalia of the supplier for gain, including scales and plastic bags. The Applicant had not been in employment for some years. Further, the s.193C offences, which are related offences, do not assist the Applicant. 61 I do not consider that the Applicant's reliance upon other sentencing decisions establishes a range of sentences which assists an argument that the present sentence is manifestly excessive. The practice of approaching sentencing appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor supported by authority: R v Morgan (1993) 70 A Crim R 368 at 371; R v George (2004) 149 A Crim R 38 at 47 [48]-[49]. The Applicant's reliance on R v Vera exemplifies why the Court takes this approach. That case was a Crown appeal involving a significantly different offence (with no drug paraphernalia such as scales and bags) and an offender without a background comparable to this Applicant. 62 The Applicant stood for sentence for an offence of drug supply. He possessed, for the purpose of supply, a significant quantity of drugs. The maximum penalty for this offence was imprisonment for 15 years. He had a history of drug supply and had served terms of imprisonment in that respect. In the circumstances of this case, it has not been demonstrated that the sentence imposed for the drug supply offence lay outside the proper range of sentence applicable to the offence and the offender. 63 The Applicant's criminal history for offences of drug supply was such that the principles in R v McNaughton (2006) 66 NSWLR 566 were capable of operating adversely to him on sentence. The Applicant was fortunate with respect to certain findings made and the sentence ultimately imposed. 64 When both groups of sentences are viewed together, a similar conclusion can be reached. The learned sentencing Judge said very little concerning the s.193C offences. These were very serious examples of this class of offence, with the Applicant having dealt criminally with a sum exceeding $3,500,000.00 over a few months in 2006. The Applicant had not been in paid employment for a number of years, yet was involved in a number of very substantial financial transactions which constituted crimes under s.193C. The Applicant was most fortunate to be dealt with by way of entirely concurrent sentences for these offences.

65 In my view, a non-parole period of three years and three months represents the minimum period that the Applicant should spend in prison having regard to all the elements of punishment, including the objective seriousness of his crimes, deterrence, denunciation, protection of the community and the Applicant's subjective circumstances: R v MA (2004) 145 A Crim R 434 at 440-441 [33]-[34]. 66 I am not persuaded that any error has been demonstrated in the sentencing process in this case. However, if error had been demonstrated with respect to "special circumstances", I would readily conclude that no lesser sentence was warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson at 720-721 [79]-[80].

Observations Concerning Related Offences 67 Before concluding this judgment, I wish to make some observations concerning the course taken in these proceedings before the District Court. Nine serious summary offences under s.193C were dealt with as related summary offences pursuant to s.166 Criminal Procedure Act 1986. The jurisdictional foundation for this course is the requirement, revealed in the definition of "related offence" in s.165(1), that the related offences arose from substantially the same circumstances as those from which the first indictable offence (supply prohibited drug) had arisen. 68 The provisions for dealing with certain summary offences as "back up offences" or "related offences" are frequently engaged when a clearly related or back-up offence exists. Typical examples of these include a charge of negligent driving occasioning death or grievous bodily harm under s.42(1) Road Transport (Safety and Traffic Management) Act 1999 where the first indictable offence is one of dangerous driving occasioning death or grievous bodily harm under s.52A Crimes Act 1900, and an offence of goods in custody (usually money) under s.527C Crimes Act 1900 where the first indictable offence is one of supplying a prohibited drug. 69 In the present case, nine offences under s.193C were dealt with as related offences to the first indictable offence of supplying a prohibited drug. Despite the operation of the statutory trigger which permits offences to be dealt with as related offences, it was argued for the Applicant in the District Court, and again in this Court, that there was no relationship between the offence of supplying a prohibited drug and the nine related offences of dealing with property reasonably suspected of being the proceeds of crime. The learned sentencing Judge made no finding on this issue at all in his remarks on sentence. Indeed, as I have noted, his Honour said virtually nothing concerning these offences. Counsel sought to take this Court to exchanges in the transcript between counsel and the sentencing Judge to throw light on this issue. With respect, given the seriousness of the s.193C offences and the very large sums of money being dealt with by a long-term unemployed person, findings of fact ought to have been made by the learned sentencing Judge with respect to these crimes. It is not appropriate to resort to interchanges between the Bench and counsel during submissions in an attempt to ascertain his Honour's views: R v Thompson (2005) 156 A Crim R 467 at 474-475 [32]. 70 There is a strong argument that the s.193C offences were of such seriousness in themselves that they ought not to have been dealt with as related offences in the District Court. This view is reinforced by a debate that appears to have occurred in the District Court concerning the operation of s.58 Crimes (Sentencing Procedure) Act 1999, which places a limitation on consecutive sentences imposed by Local Courts. Because the learned sentencing Judge was exercising the sentencing powers of a District Court judge for the drug supply offence and the sentencing powers of a Magistrate for the related offences, arguments were advanced concerning the outer limits of sentence which could be imposed on the Applicant for all offences. Once again, his Honour did not advert to s.58, or the legal issues arising from its construction and application, in his remarks on sentence. 71 Section 58 was enacted in its present form in 2003. Earlier provisions governing this area, such as s.444 Crimes Act 1900, had experienced a chequered history: R v Clayton (1997) 42 NSWLR 268. According to the Second Reading Speech for the Crimes Legislation Further Amendment Bill 2003 (Legislative Council, 20 November 2003), the new s.58 was intended to increase the length of accumulated sentences which a Local Court Magistrate could impose to five years, and to remove the restriction on the number of sentences that can be accumulated. The former s.58 was considered to have prevented Magistrates from imposing effective sentences on offenders for discrete offences in the Local Court. The former s.58 prohibited a Local Court from imposing a sentence of imprisonment on a person who was serving two or more consecutive sentences of imprisonment or who was serving a sentence that, together with the proposed sentence, would exceed a total of three years. 72 This Court did not hear submissions concerning the proper construction of s.58 and, as observed, the learned sentencing Judge did not advert to this issue at all in his remarks on sentence. In these circumstances, it is not appropriate to expand upon the proper construction and application of the provision. It is sufficient to observe that a number of very serious summary offences were dealt with by way of wholly concurrent sentences of imprisonment of 12 months with a nine-month non-parole period, an outcome which is extraordinarily favourable to the Applicant in the circumstances of the case. There is, however, no Crown appeal brought with respect to sentence and it is not appropriate to comment further upon this aspect of the case.

Orders 73 I propose that leave to appeal against sentence be granted, but that the appeal be dismissed. 74 PRICE J: I agree with Johnson J.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Appeal Outcome: Special leave dismissed by the High Court (s486/2009) 12 March 2009 [2009] HCASL 53

Maxwell v The Queen (1996) 184 CLR 501 R v Ibrahim [2005] NSWCCA 43 R v Nightingale [2005] NSWCCA 147 R v Vera [2008] NSWCCA 33 R v Simpson (2001) 53 NSWLR 704 R v Cramp [2004] NSWCCA 264 R v Fidow [2004] NSWCCA 172 CASES CITED : R v MMK (2006) 164 A Crim R 481 R v McDonald (NSW Court of Criminal Appeal, 12 October 1998) R v Morgan (1993) 70 A Crim R 368 R v George (2004) 149 A Crim R 38 R v McNaughton (2006) 66 NSWLR 566 R v MA (2004) 145 A Crim R 434 R v Thompson (2005) 156 A Crim R 467 R v Clayton (1997) 42 NSWLR 268

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