Le Huynh v R

Johnson v The Queen (2004) 205 ALR 346 Markarian v The Queen (2005) 215 ALR 213 Pearce v The Queen (1998) 194 CLR 610 R v Giang [2005] NSWCCA 387 CASES CITED: R v Henry (1999) 46 NSWLR 346 R v Huang: R v Lin [2001] NSWCCA 76 R v Jordan [2002] NSWCCA 228 R v Koklas [2003] NSWCCA 302 R v Mucenski [2004] NSWCCA 299 R v Siljanovski: R v Kostadinovic [2003] NSWCCA 38

COUNSEL: C Craigie SC - Applicant J Dwyer - Respondent

SOLICITORS: Steve O'Connor - Applicant S Kavanagh - Solicitor for Public Prosecutions - Respondent

IN THE COURT OF CRIMINAL APPEAL 2005/1556

JAMES J SIMPSON J HALL J

Wednesday 29 March 2006 Le HUYNH v R Judgment 1 JAMES J: Le Huynh applied for leave to appeal against sentences imposed on him in the District Court on 2 December 2004 by his Honour Judge Shillington, after he had pleaded guilty to four charges, namely:-

1. Supplying a prohibited drug (heroin) on 21 June 2004.

2. Supplying a prohibited drug (heroin) on an ongoing basis on three or more separate occasions between 3 June 2004 and 19 June 2004.

3. Possessing a pistol on 21 June 2004, without being authorised to do so.

4. Goods in custody being an amount of cash. 2 For each of the offences of supplying a prohibited drug and supplying a prohibited drug on an ongoing basis, his Honour imposed a sentence of imprisonment for eight years with a non-parole period of five years commencing on 21 June 2004, the date on which the applicant had been arrested and from which he had remained in custody. For the offence of possessing a pistol without being authorised his Honour imposed a sentence of a fixed term of imprisonment, also commencing on 21 June 2004. 3 For the offence of goods in custody which was dealt with in accordance with Div 7 of Pt 3 of the Criminal Procedure Act, his Honour imposed a sentence of a fixed term of imprisonment of six months, also commencing on 21 June 2004. 4 Supplying a prohibited drug is an offence under s 25(1) of the Drug Misuse & Trafficking Act for which the maximum penalty is imprisonment for fifteen years and/or a fine of 2000 penalty units. 5 Supplying a prohibited drug on an ongoing basis is an offence under s 25A(1) of the Drug Misuse & Trafficking Act for which the maximum penalty is imprisonment for twenty years and/or a fine of 3,500 penalty units. 6 Possessing a prohibited firearm or pistol without being authorised to do so is an offence under s 7(1) of the Firearms Act for which the maximum penalty is imprisonment for fourteen years. There is a standard non-parole period of three years for an offence under s 7(1) of the Firearms Act. 7 In the proceedings on sentence a statement of the facts of the drug offences and a statement of the facts of the firearms offence were admitted without objection and in his remarks on sentence the sentencing judge briefly summarised those statements. The following statement of the facts of the offences is largely derived from his Honour's summary. 8 On each of 3 June, 9 June, 18 June and 19 June 2004 the applicant supplied a quantity of approximately .2 of a gram of heroin to an undercover police operative for a price of $50 or, in one case, $70. These supplies gave rise to the charge of supplying on an ongoing basis. 9 On 21 June 2004, after the applicant had agreed to supply the undercover operative with a further amount of heroin, the applicant was arrested. 10 When the applicant was searched after having been arrested, a plastic bag containing heroin and two other small plastic bags containing heroin were found. The total amount of heroin found was 8.53 grams. The possession of this amount of heroin, which exceeded the trafficable quantity for heroin of 3 grams, gave rise to the charge of supplying a prohibited drug. 11 After he had been arrested the applicant informed police of the presence of a pistol in a safe at his home. Police applied for and were granted a warrant to search the applicant's home. When the warrant was executed police located the safe. The applicant assisted police in opening the safe by entering the correct combination. Inside the safe police found a pistol with two live rounds in the magazine well of the pistol. The serial number of the pistol had been obscured. The applicant did not hold a licence for the pistol under the Firearms Act. 12 When the applicant was searched police found a total of $3,550 in cash in one of his pockets. The possession by the applicant of this cash gave rise to the charge of goods in custody. 13 In his remarks on sentence Judge Shillington noted that a controlled operation had been set up by police, after information had been received about drug transactions occurring at or near premises in Punchbowl occupied by the applicant's mother. The supplies of heroin to the undercover operative on 3, 9 and 19 June had occurred in the vicinity of those premises. The supply of heroin on 18 June 2004 had occurred at Roselands Shopping Centre. His Honour noted that the applicant had arrived at Roselands driving a BMW car. 14 In his remarks on sentence his Honour rejected a submission made by the applicant's counsel in the proceedings on sentence that, having regard to the small quantities of heroin supplied, the applicant should be regarded as a street dealer. His Honour concluded that the applicant's role was "a more significant" one. His Honour found that the possession of a firearm was consistent with the applicant being "a serious operative in the drug trade". 15 The applicant was born in Vietnam on 2 June 1981. He came to Australia when he was three years old. When the applicant was in primary school his mother had become seriously disabled as a result of her attempting to commit suicide and sustaining burns to 80 per cent of her body. The applicant's father died of cancer about four years prior to the applicant being sentenced. 16 The applicant obtained a school certificate but was suspended on a number of occasions and finally expelled from school. After leaving school, he had only short periods of employment. At the time he was arrested the applicant was in a relationship with a young woman. 17 The applicant began using cannabis at the age of nineteen and became seriously addicted. The applicant began using heroin in 2004 and he and his partner became addicted to heroin. The sentencing judge noted in his remarks on sentence a claim by the applicant that his own addiction was the reason why he was involved in the sale of drugs to others. His Honour made no express finding about whether he accepted this claim. 18 The applicant had a substantial criminal record, including convictions for drug offences and for firearms offences. His criminal history included the following entries. 19 In 2002 the applicant had been sentenced for a number of firearms offences to concurrent terms of imprisonment of sixteen months, commencing on 17 September 2002 with non-parole periods of twelve months expiring on 16 September 2003. 20 In 2003 for the offence of supplying a prohibited drug the applicant had been sentenced to a term of imprisonment for eighteen months commencing on 17 March 2003 with a non-parole period of nine months expiring on 16 December 2003. 21 The applicant was released on parole on 16 December 2003 and was on this parole when all of the present offences were committed. On 29 July 2004 his parole was revoked and the applicant was required to serve a balance of parole, being a fixed term of three months seven days commencing on 22 June 2004 and expiring on 28 September 2004. 22 In his remarks on sentence Judge Shillington found that the pleas of guilty had been entered at the earliest opportunity, that the applicant had co-operated with police in informing them about the pistol and that these facts suggested some contrition on the part of the applicant. His Honour found special circumstances in the applicant's youth and his need for supervision on his release from prison. His Honour stated that the two drug offences arose from the same criminal activity and for that reason the sentences for the two offences should be served concurrently. 23 On this appeal the applicant relied on the following grounds of appeal. "1. The sentences imposed for deemed supply of heroin and ongoing supply of heroin are in error in regard to the application of proper principle as to totality in sentencing. 2. The sentence imposed for deemed supply of heroin is manifestly excessive. 3. The sentence imposed for ongoing supply of heroin is manifestly excessive".

Ground 1 24 The essence of counsel for the applicant's submissions on this ground was that the sentencing judge had failed to apply the principles of sentencing stated in the well known passage in the joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 at 624 (45), where their Honours said:- "A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality". 25 It is true that in Johnson v The Queen (2004) 205 ALR 346 the High Court held that, while it is preferable for a judge sentencing an offender for more than one offence to apply the principles stated in Pearce, a judge sentencing an offender for more than one offence is not prohibited from achieving an appropriate total sentence by the means of lowering the sentences for the individual offences and then aggregating them (Johnson at par 26). However, in the present case it is clear that the sentencing judge did not proceed by adopting this means of sentencing. 26 In my opinion, there are, as was submitted by counsel for the applicant, strong indications in the sentences imposed that the sentencing judge did not apply the principles stated in Pearce. The sentences for the two drug offences, regardless of any differences between them, were made of equal length and the sentences were made fully concurrent with each other. The sentence for the firearms offence was made fully concurrent with the first three years of the sentences for the drug offences. 27 I would uphold the first ground of appeal.

Ground 2 28 The supply of heroin for which the applicant was sentenced was a deemed supply under s 29 of the Drug Misuse & Trafficking Act. The quantity of heroin in the possession of the applicant was 8½ grams, which, according to an analyst's certificate, had a purity of only 28 per cent. 29 Under the Drug Misuse & Trafficking Act the trafficable quantity for heroin, the possession of which gives rise to a rebuttable presumption of having possession for supply, is 3 grams and the commercial quantity for heroin is 250 grams. Hence, the quantity of heroin in the applicant's possession was little more than the trafficable quantity and close to the bottom of the range of quantities which give rise to an offence under s 25(1) of the Act (but not an offence under s 25(2) of supplying not less than a commercial quantity of the drug). 30 It is true that in sentencing for drug offences there are other factors to be taken into account, apart from the quantity of the drug involved, but the quantity of the drug involved remains important and in the present case there were no special circumstances which would make the supply of a relatively small quantity of a drug an offence of greater than usual objective seriousness. Compare Markarian v The Queen (2005) 215 ALR 213 per Gleeson CJ, Gummow, Hayne and Callinan JJ at (33). 31 In the present case the applicant had pleaded guilty and the sentencing judge had found that the plea of guilty had been entered at the earliest opportunity and had demonstrated some contrition, with the consequence that the applicant should have received a discount in sentencing for his plea of guilty and contrition. 32 In my opinion, notwithstanding the presence of some aggravating factors to which the sentencing judge referred in his remarks on sentence, a sentence of eight years for an offence of a deemed supply of 8½ grams of heroin of a purity of 28 per cent, to which the applicant had made an early plea of guilty and where there were no circumstances rendering the offence especially objectively serious, was manifestly excessive. 33 I would uphold the second ground of appeal. 34 I have upheld the first two grounds of appeal, namely that in sentencing the applicant the sentencing judge failed to comply with the principles of sentencing in Pearce and that the sentencing judge imposed a manifestly excessive sentence for the offence of supplying a prohibited drug. The sentencing judge made the sentence for the offence of the ongoing supply of drugs equal to, and fully concurrent with, the sentence for supplying a prohibited drug. In all of these circumstances, I consider that it should be held that the sentencing of the applicant miscarried generally and this Court should intervene generally and re-sentence the applicant for all of the offences, without it being necessary to consider whether the third ground of appeal should be upheld. 35 I have earlier in this judgment set out the objective facts of the offences and the subjective features of the applicant and there is no need to repeat these matters. In re-sentencing the applicant I take into account the principles of sentencing stated in Pearce and the relevant provisions of the Crimes (Sentencing Procedure) Act. It is convenient to deal first with the offence under the Firearms Act. 36 I would not impose any different sentence for the offence under the Firearms Act from that imposed by the sentencing judge, that is a fixed term of imprisonment (or a non-parole period) of three years. This sentence is equal to the standard non-parole period for an offence under s 7(1) of the Firearms Act. 37 There were aggravating factors in that the firearm contained two live rounds and the serial number had been obscured and the applicant had previous convictions for firearms offences. 38 On the other hand, the applicant had informed police about the firearm, the firearm was being kept securely in a safe, the applicant assisted police by opening the safe and the applicant pleaded guilty to the offence. 39 I will now consider the sentence which this Court should impose for the offence of the ongoing supply of drugs. 40 In submitting that the sentence imposed by the primary judge was manifestly excessive, counsel for the applicant had stressed that the quantity of the drug supplied on each occasion was very small. 41 Counsel for the applicant submitted to the Court a table setting out short particulars of twenty-eight cases which have come before this Court of sentences for offences under s 25A of the Drug Misuse & Trafficking Act. Of these cases the sentence imposed on the applicant by the primary judge is the heaviest sentence which has been imposed on any offender, apart from the two co-offenders in R v Huang: R v Lin [2001] NSWCCA 76. It was submitted by counsel for the applicant that the criminality of both Huang and Lin was at a much higher level than the criminality of the applicant. 42 Other cases to which the Court's attention was particularly drawn by counsel for the applicant were R v Jordan [2002] NSWCCA 228, R v Siljanovski: R v Kostadinovic [2003] NSWCCA 38, R v Koklas [2003] NSWCCA 302, R v Mucenski [2004] NSWCCA 299. 43 A number of submissions were made by the Crown about the sentencing of the applicant for the offence under s 25A. 44 It was submitted that s 25A is not primarily concerned with the quantity of the drug supplied. In R v Giang [2005] NSWCCA 387 Hulme J, with the concurrence of the other members of the Court, said at paragraph (18), with respect to sentencing for offences under s 25A:- "While quantity is a relevant consideration in the determination of the proper penalty, it is wrong to look merely at the quantity supplied and to attempt to judge an offender's conduct by that quantity and those provisions of the Act which impose penalties for supply and grade those penalties by reference to quantity. The persons at whom the section is directed are those who are indulging in a practice or business of supplying prohibited drugs - see Simiroldo (2000) 112 A Crim R 47 at 50-51 (15); R v Hoon ; R v Pouoa [2000] NSWCCA 137 at (39) et seq." 45 The Crown submitted that it was clear, and the sentencing judge had found, that the applicant had engaged in the selling of drugs on more than simply the four occasions relied on to establish the offence. This was a matter which could properly be taken into account in sentencing the applicant (Giang at par 17). 46 The sentencing judge had found that the applicant's role was "more significant" than that of being a mere street dealer and that the applicant's possession of a firearm was consistent with his being a serious operative in the drug trade. 47 As the applicant had previous convictions for the supply of drugs, more weight could properly be given in the sentencing of the applicant to some of the purposes of punishment, such as individual deterrence. 48 The offence had been committed while the applicant was on parole and the fact that the offence had been committed while the applicant was on conditional liberty was an important circumstance of aggravation. 49 Even if the sentencing judge should be taken as having accepted the applicant's claim that he had engaged in drug dealing in order to support his own addiction, that was not a circumstance of mitigation R v Henry (1999) 46 NSWLR 346. 50 As regards the submissions made by counsel for the applicant on the basis of the table of cases put before this Court, the cases in the table were limited to cases which had come before this Court and did not extend to sentences for offences under s 25A generally. As this Court has repeatedly said, the penalty which a court should impose in a particular case cannot, except in the case of co-offenders, be arrived at by a detailed comparison of the particular case with some other case or even a number of other cases. 51 I have taken into account the submissions made on behalf of the parties. 52 I accept that caution should be exercised in considering the other cases of sentences for offences under s 25A which were submitted to this Court by counsel for the applicant. However, these other cases (and counsel for the Crown on this application did not refer the Court to any other cases) do appear to me to indicate that the sentence imposed by the primary judge on the applicant, even if not manifestly excessive, was very severe and higher than this Court should impose. 53 In R v Huang: R v Lin the two applicants were co-offenders. Huang supplied heroin on three occasions to an undercover operative, the heroin being provided by Lin. Each of Huang and Lin pleaded guilty to a charge under s 25A. The sentencing judge sentenced Huang to a term of imprisonment for eight years with a non-parole period of six years and Lin to a term of imprisonment for eight years with a non-parole period of five and a half years. For a separate offence Lin was sentenced to a fixed term of imprisonment of two years upon which the sentence for the offence under s 25A was made fully cumulative. Appeals by Huang and Lin against the severity of their sentences were dismissed by this Court. 54 In Huang and Lin the quantities of the drug supplied were very much greater than the amounts in the present case, being 27.9 grams, 83.5 grams and 346 grams and the degree of purity of the drug was much higher, namely about 70 per cent. The amount paid for the drug supplied on the last occasion was $72,000. Even though the quantities of the drug supplied are by no means the only matter to be considered when sentencing for offences under s 25A and effect must be given to the evident purpose of s 25A, I consider that it is of some significance in the present case that the quantities supplied were so small and that the degree of purity of the drug was so low. 55 Taking into account the objective facts, the subjective features of the applicant, the relevant provisions of the Crimes (Sentencing Procedure) Act and the submissions of the parties, I consider that a total sentence of six years should be imposed for the offence under s 25A. 56 Taking the same matters into account, I would impose a sentence of a non-parole period or fixed term of imprisonment for three years for the offence of supplying a prohibited drug. I would impose the same sentence as the primary judge for the offence of goods in custody. 57 I would find special circumstances in the circumstances found by the sentencing judge to be special circumstances and I would maintain approximately the same ratio between the total effective sentence and the total effective non-parole period. 58 In accordance with the statement of principles of sentencing in Pearce, I have regard to questions of totality and cumulation and concurrence of sentences. 59 In my opinion the following orders should be made.

2. Appeal against sentence allowed and the sentences imposed by Judge Shillington on 2 December 2004 quashed.

3. In lieu thereof the applicant be sentenced:- (i) For the offence under s 7(1) of the Firearms Act to a fixed term of imprisonment for three years commencing on 21 June 2004. (ii) For the offence under s 25(1) of the Drug Misuse & Trafficking Act to a fixed term of imprisonment for three years commencing on 21 December 2004. (iii) For the offence under s 25A of the Drug Misuse & Trafficking Act to a non-parole period of three years four months commencing on 21 June 2005 and a balance of term of two years eight months. (iv) For the offence of goods in custody to a fixed term of imprisonment for six months commencing on 21 June 2004. 60 The earliest date on which the applicant will be eligible for release on parole will be 20 October 2008. 61 The total effect of the sentences would be that the applicant is sentenced to imprisonment for seven years with non-parole periods or fixed terms totalling four years four months. 62 SIMPSON J: I agree with James J. 63 HALL J: I agree with James J.

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