Nguyen v R [1999] WASCA 54

Sentencing Act 1995

Respondent : Acting State Director of Public Prosecutions

Respondent : Acting State Director of Public Prosecutions

Australian Coal and Shale Employees' Federation v The Queen [1953] HCA 25; (1953) 94 CLR 621

Badron v The Queen, unreported; CCA SCt of WA; Library No 99099; 4 March 1999

Cheshire v The Queen, unreported; CCA SCt of WA; Library No 9724; 4 September 1989

House v The King [1936] HCA 40; (1936) 55 CLR 499

Little v The Queen, unreported; CCA SCt of WA; Library No 970041; 3 February 1997

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Mumme v The Queen, unreported; CCA SCt of WA; Library No 940344; 12 July 1994

Penny v The Queen, unreported; CCA SCt of WA; Library No 990189; 16 April 1999

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Chan (1989) 38 A Crim R 337

R v Liddington (1997) 97 A Crim R 400

R v Thompson, unreported; CCA SCt of WA; Library No 940311; 21 June 1994

R v VC, unreported; CCA SCt of WA; Library No 990142; 23 March 1999

Rotham v Cox, unreported; SCt of WA (Anderson J); Library No 940069; 14 February 1994

Thomson v The Queen, unreported; CCA SCt of WA; Library No 980482; 28 August 1998

Thorburn v The Queen, unreported; CCA SCt of WA; Library No 7866; 27 September 1989

Vasich v The Queen, unreported; CCA SCt of WA; Library No 980038; 6 February 1998

1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Wallwork J, in which the relevant facts are set out.

2 I agree that the application of the second applicant, Quang Tung Tran, for leave to appeal against his sentence should be dismissed for the reasons which his Honour gives.

3 In relation to the application of the first applicant, Phuong Thi Kieu Nguyen, I would decline to interfere with the decision of the learned sentencing Judge to impose a suspended prison sentence. The imposition of such a sentence, in my view, fell within the exercise of a sound discretionary judgment. However, having regard to the fact that each of the first applicant's co-offenders was sentenced to a period of 2-1/2 years' imprisonment, in my opinion, the length of the sentence imposed upon her should have been less, for the reasons set out below.

4 The offence of aggravated burglary attracts a maximum term of 20 years' imprisonment. It is not lightly to be dismissed as being merely an offence against property. In this case, it amounted to a home invasion. It involved three persons. Although it is suggested that the first applicant played a lesser role in the offence than her co-offenders, in that she waited outside the premises as a look-out, this burglary involved a team effort, in which her role as a look-out was of some importance, being designed to prevent those inside the house being surprised by the return of any of the residents. A window was broken by the first applicant's co-offenders in order to gain entry to the house. The fact that the first applicant was not a mere bystander in relation to the offence was further demonstrated by the fact that she was subsequently arrested in the course of endeavouring to dispose of one of the stolen video recorders. The recovery of goods to the value of $4,800 out of a total value of approximately $5,000 owes nothing to any assistance from the offenders.

5 It was suggested that a boarder in the house was indebted to the applicant and it was claimed that the decision was made to break into that house and to recover the debt by taking some of that person's property; but, as counsel who appeared for the second applicant acknowledged, "who the actual items taken belonged to was a bit indiscriminate and I don't know, and I don't think my client knows, but they took a number of items as has been related in order to recoup the moneys". The sentencing of the offenders apparently proceeded on this basis.

6 The first and second applicants have been living in a de facto relationship for some time, and there is a three year old child from that relationship.

7 The second applicant had two prior convictions for burglary, in respect of which he was granted 2 years' probation. He breached the probation orders some 18 months later and was then fined a total of $2,000. Some 2 months prior to the present offence, he was convicted of unlawful possession of a computer, for which he was fined $600.

8 In contrast, apart from traffic convictions, the first applicant had just the one conviction, recorded two months prior to the present offence, for possessing a quantity of heroin, in respect of which a fine of $200 was imposed. Her record was therefore significantly better than that of her co-offenders. Furthermore, she alone of the offenders co-operated fully with the police from the beginning and she pleaded guilty to the charge on the fast track system. She has demonstrated remorse.

9 The other co-offender, Thanh Dung Le, who has not sought to appeal against his sentence, had a number of previous convictions, including convictions for stealing a spotlight, for driving a motor vehicle while under suspension, for being in possession of a stolen Medicare cheque, for a breach of a bail undertaking, for stealing a camera and for having in his possession a mobile telephone reasonably suspected of being stolen. He had previously been given a suspended sentence of 4 months' imprisonment for stealing. The present offence was committed during the period of suspension of that sentence.

10 There is evidence that all three offenders have been heroin users. The evidence as to the first applicant's present position with respect to heroin use is somewhat obscure; but there is no reason to doubt counsel's suggestion that she is not a "desperate" drug addict, although in need of supervision.

11 Home burglaries are the cause of grave community concern and deterence, both personal and general, is a factor to which sentencing Judges must give careful consideration. In recent times, there have been a number of decisions of this Court indicating that the penalties for burglaries should now be "firmed up" - see, for example, R v Pezzino (1997) 92 A Crim R 135, at 138, 148. Aggravated burglaries must be regarded as serious offences.

12 Section 6 of the Sentencing Act 1995 sets out a number of principles of sentencing. The first principle is that a sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of the offence is to be determined by taking into account the statutory penalty for the offence, which, as previously noted, is a maximum of 20 years' imprisonment, the circumstances of the commission of the offence, any aggravating factors and any mitigating factors. A court is enjoined from imposing a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it.

13 As I have already indicated, in my opinion, the decision of the learned sentencing Judge that a sentence of imprisonment should be imposed cannot be said to be outside the range of his Honour's discretion. However, by s 76(2) of the Act, suspended imprisonment is not to be imposed unless imprisonment for a term equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances. In my view, a sentence of 2-1/2 years is excessive, and it falls outside the appropriate range, primarily because it does not bear a fair relationship to the sentences imposed upon the co-offenders, having regard to the first applicant's significantly better record of convictions, and to the fact that she was the one who co-operated most fully with the police from the earliest stage and who has shown considerable remorse for her offending. An additional factor is that the first applicant is the mother of a three year old child, although there was nothing before the sentencing Judge or before this Court to indicate that satisfactory arrangements were not capable of being made for the child with the first applicant's family.

14 In the circumstances, in my view, in terms of s 76(2) of the Act, an appropriate sentence of imprisonment would be 18 months. In my opinion therefore, the first applicant's application for leave to appeal against her sentence should be allowed, the appeal allowed and, in lieu thereof, a sentence of 18 months' imprisonment should be imposed. It should be ordered that the whole of that term be suspended for a period of 18 months.

15 IPP J: I have read the reasons to be published by Kennedy J. I agree with them and his Honour's conclusions. I have nothing further to add.

16 WALLWORK J: These are reasons for judgment after the hearing of applications for leave to appeal against sentences for an offence of burglary in company which were imposed upon the applicants in the District Court at Perth on 24 November 1998.

17 The first applicant, whom the learned Judge said had no record to speak of and who was the mother of a three and a half-year-old daughter, was sentenced to a term of two and a half years imprisonment which was suspended for a period of two years. The second applicant had previously committed two break and enter offences with intent in 1990 and been placed on probation for two years with a 240 hours community service order. He had breached that probation order on 17 June 1992 and been fined $2,000. Later, on 1 April 1998 he had been fined $600 for unlawful possession. On this occasion the learned sentencing Judge said that although his record was not as bad as the third offender, a Mr Le, his role in the commission of the offence probably had been greater. His Honour said he thought the appropriate starting point for the offence was a term of imprisonment for three and a half years. He reduced that to a term of two and a half years imprisonment because of the applicant's early plea of guilty, his intention of reforming his conduct, and the fact that he had decided to provide for his defacto wife (the first applicant) and their daughter.

18 One of the reasons for distinguishing between the applicants was that the first applicant had been forthright in her dealings with the police. The learned Judge said:

"You were open and frank and as far as I am concerned, of the three of you, you most have recognised your wrongdoing. You have no record to speak of. You have almost a completely clear record. You have a three and a half-year-old daughter. You are presently living with your parents and appear capable of reform, to me. Your part in the commission of this crime was less, but it was you who attempted to pawn the stolen property, and so your behaviour was complicit and knowing."

19 I note that the first applicant had been convicted of an offence of possessing a quantity of heroin on 1 April 1998 for which she was fined $200.

20 The relevant offence to which the three persons had pleaded guilty and been sentenced was that on 27 May 1998 being in the place of another person without her consent, which place was ordinarily used for human habitation, there committed the offence of stealing whilst in company. The third offender, Mr Le, had also been charged with a number of offences which were dealt with pursuant to s 32 of the Sentencing Act 1995, but as he is not an applicant in this appeal I will not relate the details of those charges.

21 The facts concerning the burglary in company were that a bedroom window had been broken. Two of the offenders had then gained entry to the house. They had removed property to the value of just over $5,000. That property included two stereo systems, four video-recorders, a number of compact discs and other items.

22 The first applicant had attempted to sell one of the stolen video-recorders and had been arrested. Further enquiries had resulted in the arrest of the other two offenders. Property valued at $4,800 was recovered. One video remained outstanding. The complainant had not been insured.

23 The learned prosecutor advised the Judge that the second applicant had been in custody from 30 May to 30 June 1998 and from 23 October 1998 to 24 November 1998. Because of that any sentence could be backdated until 18 October 1998. The first applicant had not spent any time in custody in relation to the offences.

24 Counsel for the first applicant told the learned Judge that the first applicant had acted as a lookout. The owners of the relevant house were friends of the applicants and had owed the first applicant some money. It was said that the first applicant had previously lent them some items, "washing machines and so forth" which they had sold without her permission. It was said that in the light of that the third offender had suggested to the two applicants that they force entry into the house and take some goods to pay the first applicant back.

25 The learned Judge was told that the first applicant had become involved with drugs. That explained the previous heroin offence. It was said that on this occasion the first applicant had stayed outside the premises. She was 26 years-of-age and had a three and a half-year-old daughter whom she looked after. The father of the child was the second applicant with whom the first applicant lived on a defacto basis.

26 The first applicant had arrived in Australia in 1983 as a refugee with her parents and sister after living in a refugee camp in Thailand for approximately a year. She had finished Year 11 in Australia and had then obtained a full time job in a window blind factory. She had worked there for five years full time and then moved to another factory. She had then purchased a business with the second applicant which, after some time, had gone into liquidation. Both the applicants had experienced financial problems during that time.

27 Counsel for the first applicant told the learned Judge that when the business began to get into difficulties, both the applicants had begun to use heroin. Counsel told the learned Judge that the first applicant was no longer using heroin. She was residing with her parents. She had the care and control of their child. The applicants had been owed money and they had had the underlying drug problem.

28 Counsel for the second applicant submitted that one of the householders had owed money to his client and the first applicant. The second applicant had instructed him that a person in the house had informed the second applicant that the applicants' property had been sold for $250. That person had offered to pay $250 to the second applicant who had declined it. The second applicant had, on two occasions, gone to the house where the person who owed them the money lived as a boarder. The person who owed them the money had not been there. It was on the third occasion that the burglary had been committed. It was then that the decision had been taken to break and enter and recover the loss by taking some of that person's property.

29 The learned Judge was told that the applicants' business had been sold for $85,000 which sum had been paid to creditors in satisfaction of $100,000 owed by the business. Neither of the applicants had received any social security moneys at the time of the break-in. They had financial difficulties.

30 At the time of sentencing the second applicant was 29 years of age. He had arrived in Australia in 1980. He had been employed for most of the time since he had arrived in Australia. He had worked at Kresta Blinds for eight years and had reached the position of a supervisor earning around $480 per week. It was at that time that he and the first applicant had set up their own business. The business had gone well for the first two years, but after that it had failed.

31 The learned Judge was told that both the applicants intended to marry and hoped to re-establish the business. It was considered that with the assistance of the first applicant's parents, the business could be re-established. The first applicant's father had informed the second applicant that he would assist them back into the business providing that the second applicant rid himself of any dependence on drugs. It was said that the second applicant had been introduced to heroin about eight months previously due to financial difficulties and family squabbles. He had also been offered a job with a company in a supervisor's position in which he would earn about $30,000 a year. It was said that he was quite well respected due to his dozen or so years in that industry. That apart from the two break and enter offences in 1990 for which he had been placed on probation, which was later breached because of a confusion over the reporting conditions, there had been no further offences until an unlawful possession offence in April of 1998. That offence had concerned a laptop computer he had bought from a friend. He had pleaded guilty to that offence. The two break and entering offences in 1990 had been committed prior to his commencing the lengthy employment earlier referred to. The learned Judge was urged to consider non-custodial options in his case. In reply, the learned prosecutor referred to the prevalence of this type of offending behaviour in order to support drug habits.

32 Taking into account his prior record, the learned Judge said he could not say that the second applicant's offence was out of character. Property of a considerable value had been stolen. The offence was aggravated by the fact that it was committed on a dwelling. The penalty ought to reflect the seriousness with which the law regards burglary offences on dwellings. His Honour referred to the 20 year maximum sentence of imprisonment prescribed for the offence.

33 The learned Judge noted the difference between the first applicant and the other two offenders arising from her antecedents, her clear co-operation in the video interview with the police which interview had indicated remorse and the acceptance of her crime. He contrasted the antecedents of her co-offenders and their uncooperative attitude with the police. He made the comment that the householder was not home and had not been assaulted and that the value of the property stolen was not great.

34 The learned Judge referred to the fact that aggravated burglary was a very serious offence punishable by 20 years imprisonment. It was prevalent in Western Australia. His Honour said that when the persons living at the house were found not to be at home, the three offenders had taken the opportunity of robbing the premises with a view to selling the property for reward. $4,800 worth of that property had been recovered in a situation in which there had been a clear attempt by the first applicant to pawn some of the property.

35 Concerning the second applicant, in my view it could not be contended that the prison sentence imposed on him was not appropriate. The maximum sentence for the offence is 20 years imprisonment. He had prior convictions for breaking and entering and dishonesty. It could not be said that it was in error to take a starting point at a term of three and a half years imprisonment. That term was then reduced to two and a half years imprisonment because of the second applicant's early plea of guilty, his intention for reform, and his desire to provide for his defacto wife and daughter. The sentence was backdated to 16 October 1998.

36 I would refuse the second applicant's application for leave to appeal.

37 The position, however, in my view, was different with respect to the first applicant. She was 26 years of age and had no previous convictions for dishonesty, although there had been a conviction on 1 April 1998 for the possession of a quantity of heroin for which she was fined $200. She had co-operated in every way after her apprehension for this offence and had pleaded guilty by the fast track method. She had shown remorse. That was accepted by the learned Judge. The second applicant had a drug problem, but it was said that she had desisted from using drugs at the time of sentencing. She had a young child.

38 At the hearing of this application counsel for the respondent conceded that in commencing at a term of two and a half years imprisonment and not reducing that term by giving the applicant the benefit of whatever mitigating factors were there, the learned Judge may have been in error.

39 In my view the starting point for the first applicant in a case like this is s 6(4) of the Sentencing Act 1995. That sub-section provides that a Court must not impose a sentence of imprisonment on an offender unless it decides that:

"(a) The serious of the offence is such that only imprisonment can be justified; or

40 Those principles of sentencing were introduced into the Statute law of Western Australia after the decision in James v R (1985) 14 A Crim R 364 in which Burt CJ stated:

"It is now, I think, accepted everywhere that imprisonment is a sentence of last resort, by which I mean in the terms of the Law Reform Commission's interim report on Sentencing of Federal Offenders:

'...that so far as is consistent with the protection of society, Courts should not resort to the use of imprisonment as a punishment unless no other sanction can achieve the objectives contemplated by law.' "

41 At p 366 of the reasons for judgment of James Burt CJ said:

"...and I think it to be important, that in the application of those criteria, one must always have regard to the character and physical and mental condition of the person to be sentenced and, indeed, to all things personal to him...and it is also important, I think, to bear in mind that the question is not whether the person to be sentenced has committed an offence which can be said to be 'deserving of ' imprisonment, in a sense that without considering the alternatives it would sustain such a sentence. The question is whether in all the circumstances no other sentence is appropriate."

42 In this case the learned Judge could have imposed a community based order on the first applicant, without having received a pre-sentence report - s 61 of the Sentencing Act 1995.

43 Section 64 of the Sentencing Act provides that a community based order may contain a supervision requirement under s 65 or a programme requirement under s 66.

44 Section 65 provides that the purpose of a supervision requirement is to allow for the offender to be regularly monitored in the community and to receive regular counselling, in a way and to an extent to be decided by a CCO for the purpose of either or both -

(b) ensuring that the offender complies with any direction given by the Court when imposing the requirement."

45 Pursuant to s 65(3) when imposing a supervision requirement a Court may give any directions which are necessary to secure the good behaviour of the offender.

46 Pursuant to s 66 there may be a programme requirement to allow any personal factors which contributed to the offender's criminal behaviour to be assessed, to provide an opportunity for the offender to recognise and, to take steps to control, and if necessary, to receive appropriate treatment for those factors. Pursuant to s 66(2) "The CCO may require the offender to undergo assessment by various skilled professionals and if necessary, appropriate treatment in relation to the abuse of alcohol, drugs or other substances..."

47 In my view, in this case, the learned trial Judge erred in imposing a sentence of imprisonment (suspended) upon the first applicant. It goes without saying that a prison term should only be imposed as a last resort where absolutely necessary. This was not a situation as envisaged in s 6 of the Act where only imprisonment could be justified. The protection of the community did not require it.

48 In my opinion the suspended prison term of the first applicant should be set aside and replaced with a community based order.