LUU, Phong Tran v R

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985; Firearms Act 1996.

Cahyadi v R [2007] NSWCCA 1; Ma and Pham v R [2007] NSWCCA 240; Mill v The Queen (1988) 166 CLR 59; R v Allen [2008] NSWCCA 11; CASES CITED : R v Cromarty [2004] NSWCCA 54; R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66; R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369; R v Tolley [2004] NSWCCA 165; R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168.

PARTIES: Phong Tran Luu - Applicant The Crown - Respondent

COUNSEL: P Boulten SC - Applicant Ms J Girdham - Crown

SOLICITORS: Adam Ly - Applicant Solicitor for Public Prosecutions - Respondent

LOWER COURT DATE OF DECISION: 16 November 2007 (Sentence on plea of guilty)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/00005566 DC 07/21/3254

GILES JA LATHAM J MATHEWS AJ

Thursday 27 November 2008 Phong Tran LUU v REGINA Judgment 1 THE COURT: After a period of investigation and authorised interception of telephone calls, on 20 December 2006 police executed a search warrant at the applicant's home at Canley Vale. When the police arrived the applicant and another man were standing at the front door, which the applicant was opening with his keys. The other man was holding a box containing plastic bags of a sugar based cutting agent used with crystalline methylamphetamine (ice). The search found quantities of heroin and crystalline methylamphetamine in different bags and packaging, a considerable number of mobile phones and SIM cards, $10,550 in cash, two pistols and accompanying ammunition, and a round of non-matching calibre ammunition. 2 On 22 December 2006 the police executed a further warrant at the applicant's home. A New South Wales driver's licence was found displaying the applicant's photograph but with a false name and date of birth. The licence had not been issued by the Roads and Traffic Authority, and was a fabrication. 3 The applicant pleaded guilty in the Local Court to four charges brought by Court Attendance Notices, and was committed for sentence to the District Court. Because of technical error in the Court Attendance Notices an indictment was presented in the District Court containing the same four charges, to which the applicant pleaded guilty. He asked that seven offences on a Form One be taken into account in sentencing on the first count in the indictment. 4 The charges in the indictment were as follows:

Unauthorised possession of a prohibited pistol contrary to s 7(1) of the Firearms Act 1996, being a .22 calibre self-loading Jennings pistol found on the search. The offence carried a maximum penalty of 14 years imprisonment and a standard non-parole period of 3 years.

Possession of an unregistered pistol contrary to s 36(1) of the Firearms Ac t, being a 9 mm Luger self-loading pistol found on the search. The offence carried a maximum penalty of 10 years imprisonment.

Supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, being 19.72 grams of crystalline methylamphetamine found on the search. The offence carried a maximum penalty of 15 years imprisonment.

Supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act , being 7.29 grams of heroin found on the search. The offence carried the same maximum penalty of 15 years imprisonment. 5 The seven offences on the Form One were possession of a firearm with defaced identification (the Luger pistol); possession of ammunition without a licence or permit (the various items of ammunition found on the search); two offences of not keeping a firearm safely (the two pistols); possession of an unregistered firearm (the Jennings pistol); dealing with suspected proceeds of crime (the $10,550); and having a false instrument with intent to use (the driver's licence). 6 The applicant was sentenced as follows -

Imprisonment for 2 years commencing on 20 December 2006 with a non-parole period of 1 year 4 months.

Imprisonment for 3 years commencing on 20 June 2007 with a non-parole period of 2 years.

Imprisonment for 3 years commencing on 20 June 2008 with a non-parole period of 2 years.

Imprisonment for 4 years commencing on 20 June 2009 with a non-parole period of 1 year 10 months. 7 The effective total sentence was imprisonment for 6 years 6 months with a non-parole period of 4 years 4 months. 8 The offences the subject of counts 3 and 4 were "deemed supply" offences. The learned sentencing judge was satisfied that the applicant was operating as a drug dealer. His Honour recorded his understanding that the applicant had advanced in the pre-sentence report that his possession of the pistols was from concern for the safety of himself and his daughter following two home invasions, at least one of which involved threats being made to kidnap his daughter. However, his Honour was satisfied that the pistols were kept at the applicant's home "as part of the tools of trade of a drug dealer". The applicant accepted that it was open for his Honour to make these findings. 9 There were three grounds of appeal against sentence.

Ground 1: His Honour erred by failing to find that the applicant's psychiatric diagnosis mitigated the offences . 10 The applicant had left Vietnam at the age of 18 to seek a better life. He was rescued from a sinking boat and taken to Japan, where he lived for about two years before coming to Australia. At the time of the offences he was aged 39. He had been in a de facto relationship for about 4 years and had an 11 year old daughter from this relationship. His partner had died and the sentencing judge accepted that her death "has had considerable repercussions on the offender". Following her death the applicant turned to use of alcohol, then use of drugs, at first heroin and then ice and occasionally cannabis, cocaine and ecstasy. He became addicted to heroin, then switched to ice, and when sentenced had not overcome his addiction. 11 According to the applicant via the reports next mentioned, in 1999 he was the victim of a home invasion robbery, which he did not report to the police, and in May 2006 he was the victim of a further home invasion where he was blind-folded and tortured and was threatened that his daughter would be kidnapped if he reported the robbery to the police. As we have said, the sentencing judge did not accept that this explained his possession of the pistols. 12 There were tendered before the sentencing judge a pre-sentence report and a report of Dr Tran, psychiatrist. The applicant relied for this ground on the latter report. 13 Dr Tran recorded a "Provisional Psychiatric Diagnosis (DSM-IV)" of post-traumatic stress syndrome, together with polysubstance abuse in remission, and said - " Opinion and recommendations

Mr Luu had experienced multiple adverse life-events with lasting psychiatric sequelae.

His relatively late onset of substance use disorder could be understood in the context of unresolved grief, which was subsequently compounded by the traumatic experiences as a victim of a violent crime.

Mr Luu's lack of effective (non-substance oriented) coping strategies could be attributed to his disadvantaged background and resulting inadequate development of internal (psychological and intellectual) resources. Mr Luu's lack of English skills would have impacted on his acculturation. The resulting lack of familiarity with the legal and social system could form the basis for misinformed and consequential decisions.

In addition Mr Luu's psychoactive substance use would have impaired his judgment as to all the legal ramifications of his action.

Mr Luu gave the impression of being a reliable and consistent historian. He did not evidence any personality dysfunctional traits of the antisocial type. He displayed a fair level of insight into the issues underlying his criminal conduct. He appeared motivated for changes. He would have good prospects for rehabilitation.

Prolonged incarceration would be detrimental to Mr Luu's fragile mental health. The resulting lack of parental care and support would compromise his young daughter's psychosocial development." 14 The multiple adverse life-events to which Dr Tran was referring appear to have been the applicant's troubled departure from Vietnam and journey to Australia, the death of his partner, and the home invasions. Relevantly to the psychiatric sequelae, the history recorded by Dr Tran included details of the 2006 home invasion going beyond those in the pre-sentence report and that the applicant had recurrent nightmares of the incident, would often wake at night covered in sweat, and had since become jumpy, irritable and withdrawn. It also included that the applicant said that although he was aware it was illegal to possess firearms, he did not realise the seriousness of his actions. It did not include anything of the same kind about drug dealing. 15 The applicant submitted that Dr Tran's opinion was a sound basis for a conclusion that, at the time of the offences, he had impaired judgment as to the social impact and the legal and moral seriousness of his criminal conduct, and that the interaction of his post-traumatic stress syndrome with his substance abuse must have combined so as to impair his moral culpability for his offending conduct. He submitted that the sentencing judge was in error in saying only that the death of the applicant's partner explained his subsequent use of alcohol and then subsequent drug use and that these together provided the background for the offending and explained how the offences came to be committed, and that he was not satisfied there was any nexus between the diagnosis of post-traumatic stress syndrome and the applicant's conduct in respect of the commission of the offences or that the applicant's drug addiction at the time amounted to mitigating circumstances. In the applicant's submission, the post-traumatic stress syndrome and the drug abuse meant that he was not able properly to judge the seriousness of his misconduct and there should have been some measure of reduction in the assessment of the objective seriousness of the offending. 16 The report of Dr Tran did not support the applicant's submissions. The provisional psychiatric diagnosis was really not explained in the opinion and recommendations, and the opinions so far as expressing consequences of the diagnosis were mostly in very general terms and less than definite ("could be understood", "could be attributed", "could form the basis"). The sentencing judge noted that it included that the applicant "displayed a fair level of insight into the issues underlying his criminal conduct". As to a nexus between the applicant's psychiatric condition and his offending, the possibly misinformed and consequential decisions were attributed not to a psychiatric condition but to lack of familiarity with the legal and social system, and the "impaired … judgment as to all the legal ramifications of his action" was attributed only to the substance abuse and was far less than impaired judgment as to the legal and moral seriousness of the applicant's offending. 17 The applicant relied in particular on the last-mentioned opinion, which used the more definite phrase "would have", but it was scarcely a link between the appellant's psychiatric condition and his offending. Further, the applicant's recorded lack of realisation that possession of firearms was a serious matter could hardly be accepted when their possession was not for the asserted protection of the applicant and his daughter following a home invasion but as part of the tools of trade in the applicant's drug dealership, and the absence of any like expression of lack of realisation of the import of the drug dealing was marked. 18 The applicant did not give evidence to support the history as recorded by Dr Tran (see R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369), and consequent on objection taken at the sentencing hearing he did did not rely on the history in the psychiatric report concerning the home invasions beyond what was contained on that subject in the pre-sentence report. There was more in the psychiatric report, including the account of nightmares et cetera, which must have underlain Dr Tran's provisional psychiatric diagnosis and his opinion and recommendations. Partial taking away of the basis for Dr Tran's diagnosis and opinion severely compromised reliance upon it. 19 The applicant submitted that even if there was no nexus between his psychiatric condition and his offending, the explanation and background for the offending as accepted by the sentencing judge brought less need for denunciation and general deterrence and for that reason alone the sentences should have been moderated. His Honour took account of those matters to the extent to which they were relevant to the sentencing, and we are not persuaded that he failed adequately to do so. 20 In our opinion, it was well open to the sentencing judge to decline to find that the applicant's psychiatric condition moderated his culpability or the regard to be had to denunciation or general deterrence as a sentencing consideration. We would not uphold this ground.

Ground 2: His Honour erred by finding that the offences were "objectively most serious". 21 The sentencing judge said - "The present offences are objectively most serious. In relation to both the offences of supply prohibited drugs and the firearms offences, general deterrence and punishment are of particular importance. Personal deterrence is also of some significance. I am satisfied beyond reasonable doubt in respect of each of the supply prohibited drug offences that the offender's conduct in committing each of those offences involves trafficking in a substantial degree. In all the circumstances, having regard to the objective seriousness of each of the four present offences, there is no option but to impose upon the offender substantial custodial sentences". 22 His Honour went on to refer to the standard non-parole period of 3 years for the offence of unauthorised possession of a prohibited pistol, noting that it provided "a reference point for sentencing purposes" (R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168) and saying that he was "satisfied that the present offence falls within the middle range of objective seriousness for offences of this type". In the result, however, the sentencing judge gave reasons for departing from the standard non-parole period. 23 The applicant said that the quantities of drugs were relatively small, well below the commercial quantities of 250 grams, and that the quantity of heroin was only just above the indictable quantity. He said that the drug offences were "deemed supplies" rather than actual supplies. It was pointed out that the applicant had himself previously been addicted to heroin and was addicted to ice. The ultimate submission was that "this was not an example of the more serious, criminally significant profile of an exploitative, non-using drug dealer". 24 We do not find useful this comparison with a hypothetical drug dealer. The applicant's position was to be assessed for itself. The applicant was a drug dealer. Both heroin and ice were found in his possession, in different forms of packaging indicative of a number of future actual supplies. The sentencing judge was entitled to find, as he did, that the applicant's conduct involved "trafficking in a substantial degree", the character of the possession of the drugs being informed by the two kinds of drugs, the different forms of packaging, the possession of the pistols, and the possession of the $10,550. 25 In his description "objectively most serious" the sentencing judge was referring globally to all offences. We do not accept the applicant's further submission that there was inconsistency with his later placing the offence of unauthorised possession of a prohibited pistol in the middle range of objective seriousness. Understood as a whole, in his Honour's description "most" did not mean at the height of seriousness, but was an expression of emphatic seriousness. This was, in our opinion, an assessment well open to his Honour. 26 The applicant submitted, with reference to sentencing statistics, that the sentence for supplying the crystalline methylamphetamine was demonstrably excessive. He said that the sentence for supplying the heroin was "even more severe" given the small quantity, which he said took it outside the sentencing statistics. The Crown responded that the measure of an appropriate sentence was primarily found in the maximum penalty set by the legislature and the facts of the particular case, rather than such limited guidance as might be obtained from statistics (see Ma and Pham v R [2007] NSWCCA 240 at [91]; R v Allen [2008] NSWCCA 11 at [24]), but also with other statistics from which it was submitted that the sentence for firstmentioned offence was within the range of sentences imposed in other cases. The debate was outside the ground of appeal, save so far as the sentence imposed might be thought to have reflected an excessive view of the objective seriousness of the offences, and did not greatly contribute to whether there was error in that respect. In our opinion there was not; nor in our opinion were the particular sentences outside the range available to the sentencing judge. We would not uphold this ground.

Ground 3: His Honour failed to properly apply the principle of totality. 27 The sentencing judge said that each of the sentences had been determined in accordance with the principles enunciated in Pearce v The Queen (1998) 194 CLR 610, and that "[i]n order to reflect totality of criminality there will need to be partial accumulation in the sentences to be imposed." 28 His Honour acted accordingly. The sentences were made partially concurrent and partially cumulative, by staggering their starting dates. The period of each sentence overlapped with the period of the preceding sentence, but the staggering was such that the sentence on count 1 commenced shortly after the expiry of the sentence on count 4. 29 The applicant submitted that the aggregate total sentence and the aggregate non-parole period were both excessive. He submitted that the four offences were substantially connected, the two drug offences being in relation to the applicant's stock as a drug dealer and brought separately only because there were two different types of drugs, and his possession of the pistols being connected with his activities as a drug dealer. In the applicant's submission, it was wrong to stagger the starting dates of the two drug offences and it was wrong to stagger the starting dates of the two firearms offences, because each pair of offences bore substantial connections, and greater concurrency should have been given to the two sets of offences. In his submission, there was the risk of double punishment insofar as the drug offences may have been regarded as more serious because the pistols were held as part of the drug dealing enterprise or the firearms offences may have been regarded as more serious for the same reason, and that on looking at the totality of the criminal behaviour the aggregate sentence was not "just and appropriate" (Mill v The Queen (1988) 166 CLR 59 at 62-3). 30 We do not agree that there was such connection that greater concurrency was called for. 31 In Cahyadi v R [2007] NSWCCA 1 at [27] Howie J said that - " … there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality." 32 Possession of the two different kinds of drugs giving rise to the "deemed supply" offences is not properly regarded as one episode of criminality. There were two deemed supplies, as there would be two (or more) actual supplies were the different drugs to be sold to two (or more) purchasers in the course of the applicant's drug dealing. Nor is the criminality in the possession of the pistols, and two pistols one of which was a prohibited pistol involves greater criminality than one, to any substantial degree reflected in the sentences for the drug offences. The drug dealing could be carried on without firearms; that the applicant had them in his possession in connection with his drug dealing was significant additional criminality, and there was no double counting. The Firearms Act gives effect to the significant legislative policy of strict control upon the possession of firearms, and offences against it inimical to that policy called for substantial recognition in their own right: see R v Cromarty [2004] NSWCCA 54; R v Tolley [2004] NSWCCA 165. 33 The applicant's submission also left out of account the Form One offences. In deciding the concurrency and accumulation the sentencing judge was exercising a discretion, see R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66. In our opinion, no error has been shown in the exercise of the discretion, and we would not uphold this ground.

The result 34 In our opinion, leave to appeal should be granted but the appeal should be dismissed. **********

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