Nguyen v R

Court of Criminal Appeal (NSW)|2014-02-13|Before: Hoeben CJ, Schmidt J, Barr AJ

Judgment 1HOEBEN CJ AT CL: I agree with Schmidt J and the orders which she proposes. 2In relation to the application for leave to appeal against sentence, there was no "Muldrock error" in his Honour's approach. On the contrary, his reference to the maximum penalty, the standard non-parole period and the objective seriousness of the offence was fully consistent with the guidance provided by Muldrock v The Queen [2011] HCA 39; 244 CLR 120. 3SCHMIDT J: On 19 May 2011, a jury convicted the appellant of being knowingly concerned in the supply of not less than a large commercial quantity of the prohibited drug cocaine (s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW)). He appeals his conviction and also seeks leave to appeal the sentence imposed by Taylor DCJ on 4 October 2011. 4The appellant was convicted after a trial at which the issue was whether he was a participant in the supply of the cocaine, or an innocent agent utilised by his co-accused Ho Thien Chuong Pham, not having the knowledge necessary to commit the offence charged. Taylor DCJ sentenced the appellant to a total term of imprisonment of 11 years, with a non-parole period of 7 years, 6 months, commencing from 6 July 2010 when he was arrested in the company of Mr Pham. The maximum penalty for this offence was life imprisonment and the standard non-parole period 15 years. 5Mr Pham pleaded guilty to his offence in the Local Court. He was sentenced by Cogswell DCJ to a total term of imprisonment of 13 years, 6 months, with a non-parole period of 9 years, 6 months, after a 25% discount for his plea. The starting point for his sentence before discount was 18 years. An appeal against the severity of his sentence was dismissed (see Pham v R [2013] NSWCCA 217). 6The appellant advanced one ground in relation to his conviction and one in relation to his sentence: Conviction - The judge erred in failing to put the defence case in summing up to the jury. Sentence - The judge erred in giving the standard non-parole period determinative significance.

The cases at trial 7The trial commenced on 10 May 2011. The appellant gave evidence on 16 May, the same day the parties addressed the jury. Taylor DCJ summed up on 17 May and the verdict was delivered on 19 May. His Honour's sentencing remarks outline the evidence at trial, much of which was not in dispute. 8The appellant was arrested during a controlled police operation in which police had substituted 240kg of cocaine which had been secreted in pavers with a similar substance. The cocaine had been detected by the Australian Customs Service in a consignment of pavers imported from Mexico in two containers. They arrived in Melbourne in June 2010. On 14 June, the Australian Federal Police examined the containers, found 240kg of cocaine and later made the substitute. 9On 18 June, the containers were delivered to a warehouse in Victoria. A Mexican national took delivery. He sorted the pavers and on 2 July, pavers containing the substitute were loaded onto a truck and driven to Sydney, where they were delivered to another Mexican national. 10They unloaded the pavers into a garage and purchased equipment then used to break open the pavers. On 4 July, police, who were using an authorised listening device, heard the pavers being opened. They executed a search warrant, made an arrest and seized a Land Rover and a BlackBerry phone. Examination of the phone revealed emails exchanged with the intended recipients of the cocaine. It was used to make contact with them. 11The controlled operation was pursued using information obtained from the emails, which included 'ask for Adam', referred to '30 in one go', provided a mobile phone number and the last four digits '0838'. The purchaser was 'Tommy'. An undercover police operative 'Damian' using the name 'Adam', phoned the number and made arrangements to meet a person who identified himself as 'Tommy' at the carpark at a McDonald's at Botany at 6.30pm on 6 July. Their conversations were recorded. 12Before the arranged meeting the appellant and Mr Pham were observed outside in a Mazda. Damian drove the seized Land Rover into the McDonald's carpark shortly before 6.30pm. He was wearing a recording device. Mr Pham drove into the carpark with the appellant in the passenger seat. Damian had a phone conversation with Mr Pham, which was also recorded. They confirmed that they were both at the carpark. Damian claimed his leg was injured and asked Mr Pham to go to his car. 13The appellant approached Damian near the Land Rover. Their conversation was also recorded. The serial number '0838' was identified and the appellant gave Damian a $5 note ending in that number. 14Mr Pham moved the Mazda and parked it beside the Land Rover. Damian showed the appellant two large plastic bags in the back of the Land Rover, one inside the other. They contained 30kg of the substance substituted for the cocaine wrapped in clear plastic and taped. 15The Crown's case was that the appellant appeared to look inside the bag, lift it and put it back down. He then walked to the Mazda, tapped on the boot, which Mr Pham released and the lid rose. The appellant returned to the Land Rover and reached in to grab the bag, when police intervened and arrested the appellant, Mr Pham and Damian. 16Mr Pham was found in possession of the phone with the number referred to in the email taken from the seized BlackBerry. It contained an email stating 'ask for Adam, serial number 0838'. The $5 note which the appellant gave Damian was 'DH05470838'. 17The appellant gave evidence at the trial that he had known Mr Pham since school and that he had gone with him on 6 July 2010 to his mother's house, where he received a phone call. Mr Pham asked him to go for a drive and told him they were going to McDonald's at Mascot. After they had eaten there, Mr Pham said he had to wait for a friend. They waited for a while and as they were leaving to buy cigarettes, a four wheel drive drove in. Mr Pham told him he thought it was the person he was supposed to meet. 18The four wheel drive drove away and they drove to a service station at the front of McDonald's. He went in and bought cigarettes. Mr Pham received a phone call in which he said 'I can see you'. He then asked the appellant to give the guy a $5 note. 19The appellant got out of the car and the guy called to him. He walked over and they spoke about his leg. He was not sure if he was the guy to whom he was to give the note. 20The recorded conversation was: "UCO Yeah. I didn't' even see your car there man. NGUYEN Yeah man, same,. Yeah what note is it, man? UCO Ah, do you have it? NGUYEN Yeah man. UCO Yeah? NGUYEN Yeah. UCO What is it? NGUYEN Oh ... UCO Zero eight three eight (0838), yeah is that the one you got? NGUYEN Haven't looked. Yeah man. Awesome. UCO Yeah. Double check it. NGUYEN Yeah we're good man, we're good. UCO Yeah? NGUYEN Yeah. Alright. UCO I'd help you bro, but my leg. " 21The appellant's evidence was that the guy started talking about some digits. He did not know what he was talking about. The guy pointed to the note and he looked at it and said 'Yeah awesome man'. The guy asked him to double check it and he did. The guy said 'Yeah we're good man, we're good'. 22The guy then opened the boot where the appellant saw a bag. The guy said 'I'd help you, but my leg' and gestured to the bag. He did not know what to do. He went back to Mr Pham's car and knocked on the window and may have tapped on the boot. He told Mr Pham that the guy had something for him. He walked back to the guy and they spoke again about his leg. Police then intervened and they were arrested. He denied having looked inside the bag or picking it up. 23The case advanced for the appellant at trial was that he was not guilty and was entitled to the presumption of innocence, which required that the jury be sceptical of the case against him, demanding powerful cogent proof before they convicted him, having regard to the onus which fell on the Crown, to prove each element of the offence beyond reasonable doubt. 24It was submitted that they would conclude that the police operative Damien was not a reliable witness and that the standard of proof was not lowered, because the appellant was a friend of the accused. They could not convict him on the basis of guilt by association. Suspicion and conjecture was not sufficient. It was also submitted that Police evidence was on occasion fabricated and had been in this case. 25The appellant had not been the subject of the police operation, during which many photos and video recordings had been made, but none were taken of the McDonald's meeting, the arrest phase of the operation. Nor had there been any fingerprint or DNA analysis of the bag the appellant was alleged to have picked up, while the $5 note had been tested. Those steps had not been taken, it was submitted, because the observations of the undercover operative Damien had been fabricated. The appellant had not picked up the bag. 26The evidence, it was submitted, was not enough to convict the appellant. It could not establish that the drugs were in the appellant's possession at the time of his arrest. Other officers had not seen him pick up the bag or tap on the Mazda's boot and speak to Mr Pham. CCTV footage showed him walking to Mr Pham and returning to the Land Rover. 27The appellant's lack of prior convictions was submitted to be relevant to the assessment of his evidence. It was also relevant that it was the operative who had asked him about the serial number of the note, knowing that the conversation was to be recorded. The appellant's answer showed that he didn't know about the code. The conversation and the appellant then returning to Mr Pham were consistent with him not picking up the bag, or being complicit in the offence. 28It was submitted that picking it up and putting it back down in the Land Rover made no sense if the appellant was involved, as did the absence of any conversation about the drugs. Further, the record which the operative later made of what he had observed did not record the appellant picking up the bag and checking its contents, which didn't corroborate what the operative claimed to have seen. 29The appellant had not been bound to give evidence, but did so. He was inexperienced in giving evidence, but the police were not. The operative was skilful in the art of deception and it was not easy to decide if he was telling the truth. The appellant said he trusted Mr Pham, but was troubled about the bags he was shown and so went to Mr Pham, who he wanted to get out and speak to Damian, because he didn't know what was going on. Even if that evidence were not accepted, it did not follow that the appellant would be convicted. The behaviour of the police did not need to be rubber stamped by the jury. Their evidence had to be approached cautiously, given that it was alleged that the appellant had picked up the bag twice, which made no sense.

Conviction appeal - summing up 30There was no issue between the parties as to the trial judge's obligation to put the defence case to the jury in summing up (see Wong v R [2009] NSWCCA 101 at [129] - [146]). Whether that obligation was met was in issue. 31There was no complaint at trial that his Honour had not fairly put the defence case in his summing up and no further directions were then sought. In these circumstances, Rule 4 of the Criminal Appeal Rules applies. It requires the appellant to obtain leave to rely on this ground. 32Leave under Rule 4 is not a technicality. As discussed in ARS v R [2011] NSWCCA 266 at [147] - [148]: "147 The effect of the rule was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]): "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted ... " 148 Subsequent cases have established that the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]." 33The appellant contended that the trial judge's directions were so deficient that leave to rely on this ground would be given, the deficiency having struck at the root of the trial (see AS v R [2010] NSWCCA 218 at [20].) 34This submission cannot be accepted. 35Section 161 of the Criminal Procedure Act 1986 (NSW) provides that a judge need not summarise the evidence to a jury at the end of the trial, if of the opinion that in all of the circumstances of a trial, a summary is not necessary. What is required is an even balance between the cases of the prosecution and the accused, fairly directing the jury to the matters raised by the accused in his defence (see Cleland v the Queen (1982) 151 CLR 1 at 10). 36What was required of the trial judge was, as Wood CJ at CL explained in R v Meher [2004] NSWCCA 355 (at [76]) that he: ' ... explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt ... So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v The Queen (1971) 124 CLR 107." 37In summing up his Honour directed the jury to what was in issue, which he correctly identified to have been narrow, essentially requiring the jury to determine what had happened at McDonald's at 6.30pm on 6 July 2010, which he said was of critical importance. 38After giving general directions as to the jury's task, how they should approach it and the onus which fell on the Crown his Honour explained the elements of the offence. His Honour then turned to how the Crown put its case, referring to the matters not in dispute and directing that what happened at the carpark was of critical importance in the case. His Honour then gave general directions as to how the evidence was to be assessed and how inferences could be drawn, explaining the inferences on which the Crown's case rested. 39His Honour did not summarise the evidence which the jury had recently heard. He gave directions as to the evidence which the appellant had given and how it was to be approached, given that it was not challenged that he was a person of good character. 40His Honour then turned to the Crown's arguments, noting that it was the appellant's case that the evidence of Damian and other police officers had been fabricated and the appellant's explanation for the recordings made at the carpark. He noted that there was no suggestion that the appellant had been involved in the importation and that the Crown's case against him was that it was inherently unlikely that he was involved at the carpark, not knowing what was going on, because it was inherently unlikely that Mr Pham would take someone not involved and who he could trust, to collect the drugs. 41His Honour directed the jury to carefully consider the conversation between Damian and the appellant and the submissions which the Crown and the appellant had made about that conversation and what had happened with the boot of the Mazda. 42In summarising the Crown's address his Honour also raised points taken by the appellant, explaining that the lynchpin in its case was the evidence given by Damian, an undercover operative, whose evidence was in part not supported by other police officers. His Honour directed: "... I direct that you must scrutinise it carefully before you can reach the conclusions contended for by the Crown. I direct you that his evidence was that of a person who is experienced in undercover operations and that it is part of his work to adopt roles and everything that goes with it, including lying. I say that to you just to make sure I have communicated to you, that is the reason that you will scrutinise the evidence carefully, also because it's critical to the Crown case. The Crown has put to you there was an explanation for all the other officers not observing what was happening by the car. You have heard that evidence and that there is some support for his observations in the evidence of Officer Downey, which of course was challenged by the accused." 43His Honour then turned to the appellant's case, noting that it had rested on the presumption of innocence, the onus which fell on the Crown, and the evidence which the appellant had only recently given. His Honour did not summarise that evidence, which he said was of obvious importance and which had to be considered in light of the submissions put by defence counsel. 44He dealt with the defence submissions directing that: "An accused in a criminal trial is not obliged to give evidence. When an accused gives evidence, he or she becomes a witness like any other witness in a trial, and you evaluate the witness exactly on the same basis as I have described to you. The important direction to give is that by taking the step of giving evidence then it is not to be taken as a concession, in any way and it should not divert you from the understanding that you will have, that the Crown must prove the case. It is not for the accused to prove anything. Mr Wilkinson then addressed you consistently with what the Crown Prosecutor said about the importation and confirmed to you that the accused had nothing to do with that importation, which is the correct position." 45The appellant was represented at the trial by experienced counsel who addressed the narrow point on which the appellant's case rested, after a short trial. The parties' submissions were closely followed by succinct but adequate directions about which no complaint was made by appellant's counsel. There was no explanation for that on appeal, but on the material it is evident. There was no error in his Honour's approach. It satisfied the obligation which fell upon him to put the defence case to the jury, directing attention to the matters relied on, which assisted the case he advanced. No miscarriage of justice can have flowed from his Honour's approach. There was no error in defence counsel then not seeking any further direction in relation to the appellant's case. No real injustice has been revealed, given the course which the trial took and what was there in issue. 46In the result leave under Rule 4 must be refused and the appeal dismissed.

Sentence appeal 47The appellant was convicted of a serious offence, involving 30 kg of cocaine. The standard non-parole period fixed for a mid-range offence of this kind was 15 years and the maximum penalty life imprisonment. 48On sentencing Taylor DCJ found that: "He comes before this Court for sentence on what he did. In the ordinary course I could expect that he may have had very limited knowledge of the whole of the operation. I am satisfied beyond reasonable doubt that he did what he is alleged to have done. I have carefully considered his association with Pham. I accept that the offender's role did not involve planning and organisation. There is no persuasive evidence to suggest that this was other than an isolated offending in the context of a debt that he was otherwise unable to pay and some drug use. He was involved on the day of 6 July at the request of his co-offender and played a small part at the bottom of the hierarchy." 49It was not suggested that those conclusions did not accurately reflect the evidence on sentencing. 50The appellant was aged 24 years. He had only one prior conviction for an offence of driving with a low range prescribed concentration of alcohol. He resided with his mother and three siblings, who supported him. His parents had separated and he had no contact with his father. He had past employment as a kitchen hand, packer, cashier and in a call centre, prior to a back injury at work in 2007 and further injury in a car accident in 2009. He suffered ongoing pain and difficulty maintaining employment. 51The appellant had history of drug abuse, with ecstasy use at age 18 and ice use three times weekly from 2 years prior to sentence. There was alcohol abuse after the breakdown of his relationship in 2009 and a gambling problem, of some $500 per fortnight. He was intending as a consequence to become bankrupt prior to his arrest. 52He had been in custody since arrest, drug free, involved in no misconduct. He was employed in a textile workshop as a machinist, where his work was highly regarded 53His Honour found : "A recitation of the facts of the matter earlier and the findings on sentence for Pham indicate an involvement by him, that is by Pham, much greater than the present offender. I think it is fair to accept Mr Nguyen's statement to the Probation and Parole Service that he was not involved in dealing with drugs, but was accompanying Mr Pham. For the reasons I have given I find the offence falls at the lower end of the middle range, towards the bottom of the middle range of objective seriousness. This is because I accept Mr Nguyen's role in the transaction. I have considered the schedule of cases handed up by the Crown, which includes Pham's case. Taking all of these matters into account and with particular reference to the maximum penalty available, the standard non-parole period and where this matter lies within the range of objective seriousness, I regard a sentence of eleven years imprisonment is appropriate for this crime. 54Mr Pham's greater involvement in this offence was reflected in the total term of the sentence imposed upon him, 13 years, 6 months, with a non-parole period of 9 years, 6 months after a 25% discount for a plea, which reflected a starting point of 18 years. By comparison, the appellant was sentenced to a term of 11 years and a non-parole period of 7 years, 6 months. 55That conclusion may perhaps have reflected a view on his Honour's part that the sentence imposed on Mr Pham was stern, as was later found on appeal (see Pham at [45]). It was not, however, found to be "unreasonable or plainly unjust". 56The sentence was imposed before the decision in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 was given. The appellant was thus sentenced according to the principles in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 which required a two stage process involving a consideration being given to where the offence stood on a hypothetical range of objective seriousness. Muldrock overturned Way. 57It was the appellant's case that his Honour had wrongly adopted a two stage approach to the sentence, by reference to the standard non-parole period in accordance with the Way judgment and that a lesser sentence would have been imposed upon him, if the standard non-parole period had not unduly constrained this sentencing exercise. Although the quantity of drugs involved was large, given the small compass of the appellant's offending, the sentence of 11 years with a non-parole period of 7 years, 6 months was not warranted for his offence. 58In Butler v R [2012] NSWCCA 23 it was observed at [26] that: "... Merely showing that a sentencing judge sentenced pre- Muldrock following the dictates of Way will not be sufficient to demonstrate error. What should be ascertained in each case is whether a reliance on Way has sufficiently infected a sentence with such error that this Court must intervene. Ordinarily this might occur in cases where an applicant is found guilty by a jury, with the result that the sentencing judge will have considered that a two-stage process must be applied and that the standard non-parole period is mandatory unless factors can be found to justify a variation from it. It is far less likely that intervention will be required from this Court where a sentence has been imposed following a plea of guilty and the sentencing judge has referred to the standard non-parole period as simply a guideline or yardstick." 59Like Butler, here little suggests that such an error occurred in this case. 60At the sentence hearing the appellant accepted that his offence was a very serious one, given the quantity of the drugs involved, a matter which had to be taken into account. That concession was plainly connect. This was a very serious offence. It was also submitted that the amount of the drug involved could not be considered in isolation. The offender had to be sentenced for what he had done in the context of this criminal undertaking. 61He was Mr Pham's underling and had accompanied him so that Mr Pham could take possession of the drugs and transport them. It was Mr Pham who had arranged the pickup and the appellant had merely assisted him. He was not an intrinsic part of the enterprise, but had become involved in the collection of the drugs. 62These matters and his subjective circumstances where such that: "... in my submission there is a greater level of criminality by Pham such that notwithstanding his plea of not guilty the objective criminality would equate to similar sentences being imposed on this offender. HIS HONOUR: Sorry would you repeat that please? WILKINSON: Yes. Your Honour what I'm indicating is that because of the greater level of criminality as I've submitted in respect of Pham but notwithstanding the plea of not guilty that was entered by this offender, but the objective criminality of this offender would equate to a similar sentence being imposed as that was imposed on Pham, because the level of his criminality is lower. One of the matters that your Honour's got to look at- HIS HONOUR: You say it's lower but it's balanced by the plea of not guilty. WILKINSON: That's so your Honour. HIS HONOUR: So the outcome would be similar." 63How the appellant's case was conducted at trial may not be overlooked on appeal. As discussed in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [81]: "The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13],[18]; Bayram v R [2012] VSCA 6 at [28]-[29]." 64Given the way in which the appellant's case was advanced to his Honour, the approach which he adopted to the evidence and the comparison which had to be drawn with the sentence imposed on Mr Pham, having regard to the appellant's differing circumstances and offending, his Honour's observations do not suggest that that this sentence was wrongly determined by a two stage approach 'tethered' to the standard non-parole period. That was a matter properly to be taken into account, as was the maximum penalty and the other matters which he took into account, including the case advanced by the appellant. 65As it transpired, his Honour concluded that the appellant's offending was much less than that of Mr Pham. The standard non-parole period was 15 years. After a 25% discount, Mr Pham received a non-parole period of 9 years, 6 months and the appellant a non-parole period of 7 years, 6 months, without discount. That conclusion confirms that his Honour did not fall into the error for which the appellant contended. 66In the result the leave to appeal this sentence must be refused.

Orders 67For the reasons given, I would order:

The conviction appeal be dismissed.
Leave to appeal the sentence is refused. 68BARR AJ: I agree with Schmidt 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: 26 February 2014

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