Kha v R

The applicant's role

1. When questioned by police, the applicant said that the co-offender had brought the seized drugs and items to his residence and asked him to store them, and that he assisted the co-offender by weighing and packaging the drugs. He said that he had agreed to be the "driver" for the co-offender for the supplies on 3, 18 and 25 June 2015 and that the co-offender paid him $3,500 for his assistance on each of the first two dates.

The applicant's subjective case

1. The applicant was born in Vietnam. The Crown tendered a pre-sentence report that had been prepared by a Community Corrections officer. According to the report, the applicant described a supportive family environment in Vietnam. He left school in Year 5, in order to assist his family in their business. The applicant came to Australia in 1991 on an employment sponsorship and obtained permanent residency. At the time of his arrest, he lived in rented accommodation with his partner and their four children, his mother and his mother-in-law. The applicant had worked in several unskilled positions in the hospitality industry, and was a full-time carer for his mother and mother-in-law, who both had medical conditions. He was receiving Centrelink benefits and was under significant financial pressure.
2. In the report, the applicant was recorded as claiming he was introduced to his co-offender through a friend who was aware of his financial difficulties, and that his involvement in the drug-dealing was motivated by a desire for "financial stability for his family". The report noted that he said he felt "shame and regret for his behaviour".
3. The applicant was aged 41 when arrested. At the time of his sentence hearing in August 2016, his four children were aged 4, 13, 16 and 18. The three eldest children handwrote testimonials that were tendered into evidence. They attested to the family being close and loving, and heavily dependent on their father emotionally, financially and for his practical assistance in their lives.
4. The eldest child gave evidence. She was in her HSC year when her father was arrested. Her father had no formal education in Vietnam and had encouraged her to pursue university studies. At the time of the sentencing hearing in 2016, she was a first-year university student.
5. The applicant's daughter stated that she and the family had no prior knowledge of the applicant's involvement in drug dealing and that they were shocked by those revelations. She stated that the family was surviving on Centrelink benefits and struggling to pay bills, and neither she nor her mother were able to find work.
6. The family was only able to visit the applicant every few weeks. The youngest child, aged 4 at the time of the sentence hearing, no longer remembered the applicant's appearance, since he had been on remand at that point for 14 months.
7. On a practical level, the children all depended on their father as their driver, as their mother, the applicant's partner, was not an experienced or confident driver. The applicant's eldest child said her mother did not understand English, so she attended to family tasks that required knowledge of English. The overall picture emerging from the evidence was of a socially isolated family, absent the applicant's support.
8. The applicant's prior criminal record comprised three driving offences in 1996 that were dealt with by fines and periods of disqualification. There were also two offences of goods in custody in 1998, which had also been committed in 1996, for which the applicant received a sentence of 4 months periodic detention and a 12 month supervised recognizance. The pre-sentence report noted that he had satisfactorily completed the recognisance without any infringements.
9. The applicant was assessed in the pre-sentence report as having a "low-medium" risk of reoffending, the risk factors being "financial" and "companions", the latter apparently being a reference to the capacity for associates to induce him into criminal activity. The report concluded that the applicant was unlikely to benefit from a period of supervision, since there were "no apparent underlying issues that could be addressed by way of supervision".

The procedural history

1. The applicant entered pleas to all three counts in the Local Court. The co-offender also pleaded guilty at that stage and the sentence hearing for both offenders was ultimately set down in the District Court for 18 August 2016. On that date, the co-offender was not ready to proceed. The Court stood over the co-offender's hearing to 9 September 2016 and proceeded to hear the applicant's matter. During the hearing, the learned sentencing judge came to the view that it should proceed to the stage of oral submissions and then be stood over, to be re-joined with the co-offender's matter. His Honour explained that he took this course because each offender had alleged to police that the other owned the large commercial quantity of heroin. His Honour noted that, although the applicant did not give evidence, if the co-accused gave evidence on his sentence hearing, the applicant might wish to cross-examine him and perhaps reconsider giving evidence himself on that issue.
2. For reasons that were not the fault of the applicant, the joint hearing did not occur until nine months later, on 15 May 2017. On that date, at the outset, the applicant's counsel sought to be excused. He indicated that there was no further evidence and, as he and the Crown had made oral submissions on the last occasion and an agreed set of facts had been tendered, he could not assist the court further. He was excused and the hearing in respect of the co-offender proceeded, with the co-offender not giving evidence. His Honour reserved his judgment in respect of both offenders. The sentences and his Honour's remarks on sentence were handed down three months later, on 7 August 2017, by which time just under 12 months had passed since the applicant's sentence hearing.

The remarks on sentence

1. His Honour declined to accept the applicant's account to police of his role in the enterprise, in the absence of sworn evidence from him. Applying R v Olbrich (1999) 199 CLR 270; [1999] HCA 54, his Honour observed: "… [the applicant] falls to be sentenced for his actual possession which, of course, comprises deemed supply because of the amount of the one kilogram that was at his home."
2. Equally, his Honour found that: "… there is no basis upon which one would find that [the co-offender] was, in effect, an employee of [the applicant's] rather than, if I use employment-type terms, some form of independent contractor."
3. His Honour allowed a 25 per cent discount for the applicant's early pleas of guilty. His Honour acknowledged the delay in sentence was not due to any fault of the applicant and said he had taken it into account "to some extent". As to the objective seriousness of count 3, his Honour noted the quantity and value of the large commercial quantity of heroin, being over 1kg and $250,000, respectively.
4. His Honour did not indicate a NPP for count 3, although he was required to do so pursuant to s 54B(4) of the Act. His Honour made no reference to special circumstances and the ratio of the NPP to the total sentence was 75 per cent, being the statutory ratio.

The grounds of appeal

1. The applicant advances three grounds of appeal.

Ground 1: His Honour erred in omitting to adjust the non-parole period to reflect a finding of special circumstances, such omission arising from an oversight, or alternatively the product of procedural unfairness

1. At the sentence hearing, the oral submissions by both parties were brief and to the point. Counsel for the applicant submitted that a finding of special circumstances was appropriate: "CLARK: … I'd ask that you find special circumstances due to this being his first time in custody, take into account the family's hardship. I don't think that's so great that it can affect the sentence your Honour will ultimately impose but of course they're quite powerful matters that you can take into account. I mean these children range from four years old to 18 and there seems that a young 18 year old girl has had an enormous amount of responsibility that's being now thrust upon her and she is somebody who wants to get on with her own life, she's trying to study, she's trying to get herself educated and of course there is a tremendous burden upon her. HIS HONOUR: And certainly part of the overall matrix. I understand. CLARK: Certainly. I think, really, your Honour, unless there is any particular issue that you wish me to address you on, those are effectively the submissions I wish to make on Mr Kha's behalf."
2. The Crown responded: "As regarding special circumstances, I don't think I'd be heard against that, and I'm sure he qualifies in one way or another for special circumstances."
3. His Honour responded: "Prima facie I think that must be so".
4. The parties disagree as to how the defence counsel's submission on the basis for special circumstances should be interpreted. The applicant contended that counsel put the submission on two bases, being the applicant's first time in custody and the impact that the incarceration would have on his young family ("family hardship"). The respondent submits that the terms of the submission disclose only one basis, being the applicant's first time in custody. It further submits that defence counsel's submission on family hardship was pitched as relevant to the general mix of factors and his Honour's reference to it being "part of the general matrix" put counsel on notice that it was accepted as such.
5. His Honour did not mention the issue of special circumstances in his remarks on sentence at all. Accordingly, why he had not made a finding of special circumstances where the Crown had expressly acknowledged that such a finding was appropriate and his Honour had expressed a preliminary acceptance of that position, was unexplained.
6. The applicant submitted that if the failure to consider or apply a finding of special circumstances was an oversight, then it was an error and should be corrected. Alternatively, if the sentencing judge had considered it and determined not to make a finding of special circumstances, then in view of the exchange between the Crown and the sentencing judge, considerations of procedural fairness required counsel to have been alerted to that likelihood and afforded an opportunity to submit otherwise.
7. The respondent submitted that it cannot be assumed that his Honour had not turned his mind to the issue of special circumstances. It noted that an offender's first time in custody has been doubted by this Court as a sound basis for such a finding, which suggests that his Honour on reflection had rejected the submission. Further, the respondent submitted that it is apparent from his Honour's remarks on sentence that he was cognisant of the evidence of family hardship, describing it as "a concomitant effect of his criminal involvement".
8. The respondent further submitted that reliance on an exchange in the course of submissions has attracted this Court's concern, citing a number of authorities, but I think succinctly expressed in Dang v R [2014] NSWCCA 47, in which Adamson J (Simpson J (as her Honour then was) and Davies J agreeing) said: "[32] A substantial part of [the applicant's counsel's] submissions in support of this ground relied on his reading of the transcript of the sentence hearing and her Honour's responses to propositions put in oral argument. The practice of alleging error based on such exchanges is to be discouraged. It is an important part of procedural fairness that a judge will, at times, express views in the course of oral argument. However, judgment is necessarily suspended until all evidence has been adduced and all submissions made. Only then can all matters be considered, a decision made and reasons for decision given in the remarks on sentence. The remarks comprise the reasons. The reasons are not to be discerned from the exchanges in the course of the hearing, since the latter may constitute no more than the articulating of a proposition propounded for the purposes of argument and, at best, the expression of a preliminary view."
9. However, when the remarks on sentence were handed down, the issue of special circumstances was not mentioned at all. This suggests that it had either been overlooked, or his Honour had concluded that special circumstances were not made out and omitted, by design or oversight, to refer to it and his reasons for so finding. It is not possible to discern which of these two explanations is apposite, although the end result is the same; the remarks on sentence bespeak an unexplained rejection of both the joint position at the sentence hearing of the defence and Crown on the issue of special circumstances and the expressed preliminary concurrence of the sentencing judge, which is a "practical injustice": Button v R [2010] NSWCCA 264 at [18]. The delay of 12 months before judgment was handed down was potentially a contributing factor to how the issue may have come to be overlooked, and for that reason leaves a sense of unease that this is what occurred.
10. Had the applicant's counsel at the sentence hearing been made aware that this outcome was a realistic possibility, there can be little doubt that he would have renewed his submission, particularly with the knowledge that the Crown supported it. If his Honour's position changed after hearing, it was open to him to invite written submissions on the issue or to have a further oral submission: see, for example, Brennan v R [2018] NSWCCA 22 at [93]-[95].
11. The applicant relied upon observations by R S Hulme AJ (Basten JA and Button J agreeing) in Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318, at [45]: "I do accept that if a judge gives a positive indication that he or she is disposed to adopt a particular argument or approach, and a party or legal representative in reliance on that indication, also adopts a particular course, then the judge will, because of his or her or own conduct, come under an obligation to warn of the possibility of any change of view. To maintain silence when the judge's view has changed is to mislead and is in character no different from representations that are or become misleading in other fields of activity. Thus, I have no difficulty in accepting the law as laid down in Fairbairn v R; Baroudi v R; and Nair v R."
12. I am of the opinion that in the circumstances of this case, the applicant was denied procedural fairness by not being afforded a further opportunity to submit in favour of a finding of special circumstances. The question then arises, whether the denial of an opportunity to be heard has occasioned actual unfairness. In Weir v R [2011] NSWCCA 123, Garling J (Macfarlan JA and Johnson J agreeing) said, referring to Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 ("Lam") at [34] per Gleeson CJ: "[66] The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37]. [67] One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18]."
13. A finding of special circumstances does not necessarily mean that the ratio of the NPP to the total sentence will be adjusted to less than 75 per cent: see, for example, R v Fidow [2004] NSWCCA 172 per Spigelman CJ at [22]. However, by virtue of the denial of procedural fairness, the applicant was led to believe that it was unnecessary for him to further submit on that issue, in view of the express position of the Crown and the sentencing judge's stated preliminary view. By not being informed that his Honour had reversed that view, he lost the opportunity to persuade the sentencing judge to find special circumstances and adjust the sentencing ratio of the NPP to the total sentence favourably to the applicant.
14. That being so, I am satisfied that ground 1 is made out.

Ground 2: His Honour erred in failing to make a finding in relation to the objective seriousness of the offence

1. The essence of the applicant's submission in relation to ground 2 is that the sentencing judge failed to fix the level of objective seriousness of the offences. Had his Honour done so, it is submitted, he would have imposed a lesser sentence than the aggregate total sentence of 11 years, which is disproportionate to the category of objective seriousness suggested by the evidence.
2. The applicant made full admissions when arrested and entered a guilty plea in the Local Court, which attracted a 25 per cent discount for the early plea. The nominative starting point, therefore, for the 9 year indicative sentence for the third count, being the supply of a large commercial quantity of a prohibited drug (1.038kg of heroin), was 12 years.
3. The applicant submits that the evidence of the factors that are relevant to establishing the objective seriousness of the offences indicates a less significant level of criminality than what is reflected in the aggregate total sentence. This, it is submitted, is particularly the case for the starting point of the indicative sentence for the third count, given that the quantity of heroin involved was only 38g over the threshold for a large commercial quantity of 1kg, to which there is no upper limit.
4. Counsel for the applicant in the sentence hearing submitted that the applicant's role in the enterprise was as a driver and running the storage facility, which included "bagging it up" and "weighing the amounts that he had been told to", placing the seriousness of the offence at the "lowest end of the scale".
5. The Crown conceded that "it's a matter which [is] probably towards the lower end of large commercial quantity because it really only just gets into that threshold".
6. His Honour did not make an express finding as to the applicant's level of objective seriousness but did assess the applicant's objective criminality, under a sub-heading in his remarks on sentence titled "Objective criminality". His Honour noted that an assessment of the offender's criminality required consideration of a number of factors, including the offender's role, the quantity of drug involved, the period of time over which the conduct was charged, the value of the drug and consideration of financial gain.
7. To that end, his Honour noted the maximum penalties for each count and the standard NPP for count 3, the wholesale value of the heroin, which was $250,000, the applicant's involvement in multiple supplies which are reflected in the first two counts and the Form 1 matters, his role in weighing and packaging the drugs, and driving his co-offender to meetings for the purposes of supply.
8. His Honour also adopted more generally for the purpose of assessing the applicant's objective criminality, his overview of the circumstances in which the applicant was charged, being a summary in the remarks on sentence of the agreed facts in relation to both offenders. His Honour concluded that, in the absence of sworn evidence by the applicant, he was unable to make a finding of fact as to whether the applicant was an employee of his co-offender in the enterprise, as the applicant had asserted to police.
9. The third count had a standard NPP of 15 years. An assessment in terms of the range of objective criminality where there is a standard NPP is appropriate in order to gauge where the case lies respective to the standard NPP, which is taken to be in the middle range of seriousness, in terms of objective factors. Although advisable, its absence is not necessarily fatal. In R v Van Ryn [2016] NSWCCA 1, R A Hulme J, at [136], in considering a sentence appeal involving offences with standard NPPs, quoted Delaney v R; R v Delaney [2013] NSWCCA 150 with approval in which Hoeben CJ at CL said at [56]: "While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account."
10. Although his Honour did not fix the applicant's objective criminality on a scale or range, he did carry out an assessment. Such an assessment is an exercise in judicial discretion, in which this Court is slow to intervene, and is reviewable only on the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40. The question on appeal is whether the particular characterisation which the sentencing judge gave to the objective seriousness was open: see Obeid v R [2017] NSWCCA 221 per R A Hulme J at [444]-[446].
11. In his oral submissions on this ground, counsel for the applicant drew attention to two aspects of the evidence that were relevant to the objective seriousness of the offences and that were not identified as such in his Honour's remarks. These were the absence of evidence of wealth or high living, which was relevant to the issue of financial gain, and of any sophistication or a criminal network; the applicant used his garage and a car that was registered to his co-offender to carry out the offences.
12. Although his Honour did not expressly deal with financial gain in the section of the remarks under the heading "Objective criminality", under the section titled "Subjective factors", he did refer to the applicant's motive for committing the offences, being his family's parlous financial situation. His Honour also referred to the evidence from the applicant's daughters to the effect that, before the applicant's arrest, the family could afford to buy clothing and food, but have been in a dire financial state since that event. This is indirect evidence that the applicant had not benefitted unduly from his commission of the offences.
13. By adopting his earlier summary of the circumstances in his assessment of the objective criminality, his Honour incorporated references to the applicant using a car that was registered to his co-offender when engaging in supply, transactions taking place in his garage and his residence being the place of their warehousing and packaging.
14. Accordingly, this ground is not made out.

Ground 3: His Honour erred in not indicating a non-parole period for the offence of supplying a large commercial quantity of prohibited drug (sequence 5)

1. Section 54B of the Act relevantly provides as follows: "54B Consideration of standard non-parole period in sentencing (1) This section applies when a court imposes a sentence of imprisonment for an offence, or an aggregate sentence of imprisonment with respect to one or more offences, set out in the Table to this Division. … (4) When determining an aggregate sentence of imprisonment for one or more offences, the court is to indicate and make a written record of, for those offences to which a standard non-parole period applies, the non-parole period that it would have set for each such offence to which the aggregate sentence relates had it set a separate sentence of imprisonment for that offence. (5) If the court indicates under subsection (4) that it would have set a non-parole period for an offence that is longer or shorter than the standard non-parole period for the offence, the court must make a record of the reasons why it would have done so and must identify in the record of its reasons each factor that it took into account. … (7) The failure of a court to comply with this section does not invalidate the sentence."
2. The sentencing judge was obliged by s 54B(4) of the Act to indicate the NPP for the third count, because that offence had a standard NPP. However, pursuant to s 54B(7), his failure to do so did not invalidate the sentence.
3. The applicant submits that, had his Honour complied with this legislative requirement, then by quantifying 75 per cent of the indicative sentence for the third count, which is 6 years and 11 months, his attention would have been drawn to the impact of accumulation on the aggregate non-parole period. This, it is submitted, would have assisted him to arrive at the appropriate aggregate sentence and aggregate non-parole period.
4. While an understanding of indicative NPPs may assist a Court to arrive at the appropriate aggregate sentence, it is not in itself a ground that in the circumstances of this case would be a basis for overturning the sentence.

Re-sentence

1. As ground 1 is made out, the applicant is to be re-sentenced. The applicant relies upon two affidavits that were read in the hearing, in the contingency that he would be re-sentenced. One is an affidavit affirmed by him on 20 March 2019, in which he relates his progress in prison. The applicant has completed some courses, most notably English for Speakers of Other Languages. This has enabled him to enrol in programs that he previously was unable to finish because of his limited understanding of English. The applicant is hoping to complete a home maintenance and painting course, having previously done that sort of work. He has completed courses in hospitality and hygiene and is working as a cleaner and garden labourer seven days a week from 6am to 11am, and studying in the afternoons.
2. The applicant stated that for the last 12 months, he has been held at the Hunter Correctional Centre in Cessnock, which makes it difficult for his family to visit him. Two of his children are now at university. He expressed remorse and regret for his offences.
3. The other is an affidavit affirmed by his solicitor on 21 March 2019, annexing Department of Corrective Services case notes in respect of the applicant, which corroborate that he is working seven days a week (he is described as having a "strong work ethic") and that he does not have many family visits because of the distance involved.
4. The matters relevant to assessing the objective seriousness of the offences have been set out in the course of this judgement. They include, in short form, the maximum penalties for each offence and the standard NPP in relation to the third offence; the value of the heroin involved in this offence, being a wholesale value of $250,000; the period of time over which the offences occurred, with the earliest being a Form 1 offence of supply a traffickable amount of heroin (3.14g) on 27 May 2015, to the third count and another of the Form 1 matters on 25 June 2015; and the offender's role in the enterprise which comprised storing, weighing, packaging and delivering the prohibited drugs of methamphetamine and heroin in the quantities referred to in the charges.
5. The indicia of supply preclude a finding that these were "one-off" offences. The evidence of financial gain is to the effect that the applicant was paid $3,500 on each of two occasions that he delivered an indictable quantity of methamphetamine, being the first count and one of the Form 1 matters. Beyond those instances, there is no evidence of the quantum of payment received by the applicant, but there is no evidence of significant financial gain.
6. I am satisfied that the objective seriousness of the third count is towards the bottom of the range of seriousness taking into account all relevant factors, in particular, the fact that the quantum of drug is 38g over the lower limit of a large commercial supply. It is not at the bottom of the range, taking into account the applicant's multifaceted role in the enterprise and its ongoing nature. The fact remains that this is a serious example of the supply of a large commercial quantity of heroin.
7. The subjective features have been canvassed earlier in the judgment and are taken into account. I would assess the applicant's prospects of rehabilitation as slightly better than they were by the sentencing judge, who adopted the assessment provided in the pre-sentence report of a "low-medium" level of risk. This Court has the benefit of information on his progress in prison since his sentence hearing in 2016. This is to be combined with the continuing close support of his family, in spite of the distances involved in them visiting him.
8. I find special circumstances, being a combination of factors. The primary factor is the nature of the vulnerability to re-offending that was identified in the pre-sentence report, which is that the applicant may succumb to offers of payment for criminal activity in order to relieve financial pressures. The applicant would benefit from a longer period of parole to ensure that, when he returns to the community and grapples again with the financial pressures on his extended family, which is likely to be an extended exercise, he does not over time succumb to such tainted offers of assistance. This factor incorporates a recognition of family hardship, the family's social isolation and the pressure placed on the applicant, although those factors are not the focus.
9. An additional factor is that this is the applicant's first prison sentence, his only prior offences having being committed in 1996. This Court has said that a factor of this type is unlikely to be a basis for special circumstances by itself, but may be so in combination with other factors, particularly if there is another more significant basis for it: R v Dashti [2016] NSWCCA 251 at [90]-[93].
10. However, even in combination, these special circumstances are not so significant as to warrant an overly significant variation to the ratio of the non-parole period to the total sentence. I note as well that a degree of accumulation is appropriate in formulating the aggregate sentence, in view of there being discrete acts of supply.
11. The applicant is entitled to a 25 per cent reduction on his sentence for his early plea of guilty.
12. The indicative sentence for each of counts 1 and 2 is 3 years. The indicative sentence for the third count, taking into account the three Form 1 matters and the discount of 25 per cent, is 7 years and 6 months. The indicative non-parole period is 5 years.
13. The applicant is re-sentenced to an aggregate sentence of 9 years, with an aggregate non-parole period of 6 years.
14. The orders I propose are: (1) Grant the applicant leave to appeal. (2) Appeal allowed. (3) Quash the sentence imposed on 7 August 2017. (4) Sentence the applicant to an aggregate non-parole period of 6 years commencing on 25 June 2015 and expiring on 24 June 2021 with a balance of term of 3 years expiring on 24 June 2024. (5) The earliest date upon which the applicant will be eligible for release is 24 June 2021.
15. HIDDEN AJ: I agree with Ierace 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. Decision last updated: 13 September 2019