Nguyen v R

Court of Criminal Appeal (NSW)|2020-10-23|Before: Hoeben CJ, Harrison J, Bellew J

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.
HARRISON J: John Nguyen seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 to appeal against the sentence imposed on him by his Honour Bourke SC DCJ in the Parramatta District Court on 28 February 2020. Mr Nguyen pleaded guilty in the Local Court to one count of ongoing supply of a prohibited drug, contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985. That is an offence that carries a maximum penalty of 20 years imprisonment and/or a fine of 3,500 penalty units. Mr Nguyen also asked the Court to take account of a further offence of knowingly direct the activities of a criminal group on a Form 1. That is an offence contrary to s 93T(4A) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment.
Mr Nguyen was sentenced to imprisonment for 3 years with a non-parole period of 1 year and 9 months commencing on 28 February 2020. The head sentence expires on 27 February 2023. The non-parole period expires on 27 November 2021.
Although Mr Nguyen's Notice of Application for Leave to Appeal filed on 3 September 2020 nominated several grounds of appeal, his appeal to this Court ultimately proceeded upon the single ground asserting: That the sentence was unjustifiably disparate from the sentences imposed on the offenders referred to in 1 above [sic] so as to produce, objectively, a sense of legitimate grievance and was out of accord with the relevant sentencing pattern for such similar offences.

Factual background

Mr Nguyen was sentenced in accordance with a statement of agreed facts. Those facts are essentially as follows.
Between 20 May 2018 and 15 June 2018, Mr Nguyen coordinated a drug supply syndicate in which he provided quantities of cocaine to Joshua La and Huy Nguyen, who acted as "runners". Joshua La and Huy Nguyen physically supplied the drugs they received from Mr Nguyen to various customers, before remitting the cash proceeds of those supplies to him. The individual supplies were detected by police through the interception of the mobile phones of Mr Nguyen and Joshua La.
Between 19 May 2018 and 16 June 2018, Mr Nguyen was involved in the supply of 91.2g of cocaine. He received orders from customers via his mobile phone and arranged for the cocaine to be delivered, usually by one of his runners. At times, Mr Nguyen supplied quantities of cocaine to customers himself.
The individual transactions in which Mr Nguyen was concerned are summarised in the following table: Date Brief description 26.5.2018 Mr Nguyen contacted Joshua La and directed him to collect 3.5g of cocaine from a person named Vish before supplying it to a customer in Fairfield West in exchange for $1200. 27.5.2018 Mr Nguyen supplied Joshua La with 0.7g of cocaine in exchange for $200. 31.5.2018 Mr Nguyen contacted Mr La and directed him to supply 0.7g of cocaine to Charlie Tran in exchange for $300. 31.5.2018 Mr Nguyen supplied 20 bags of cocaine (with a total weight of 20g) to Mr La with the intention that he would supply them to their customer base, which he did across a number of individual transactions. The approximate value of the cocaine was $6000. Mr Nguyen asked Mr La when he would be able to return the proceeds to him. 2.6.2018 Mr Nguyen supplied Jim Ingram with 0.7g of cocaine in exchange for $300. 2.6.2018 Mr Nguyen supplied Mr La with 4g of cocaine and directed him to supply it to unnamed customer in exchange for $1200. 2.6.2018 Mr Nguyen supplied Savandara Sokphon with 3.5g of cocaine in exchange for $900. 3.6.2018 Mr Nguyen contacted a person named Dalton and directed him to supply a customer named Peter Lee with 1.4g of cocaine in exchange for $600. 3.6.2018 - Mr Nguyen was supplied with 28.4g of cocaine by Ronald Kong. Mr Nguyen contacted Mr La and directed him to come to his home and assist in packaging up the cocaine into smaller quantities for supply to customers. Between 3 and 13 June 2018, Mr Nguyen supplied or caused others to supply the 28.4g of cocaine he had received from Mr Kong. 13.6.2018

On 15 June 2018, Mr Nguyen instructed Mr La to come to his house to assist with a "re-stock". He arranged for Mr La to collect one ounce (28.3g) of cocaine from a male named Jimmy Vilaysack. Mr Nguyen arranged the meeting between Mr Vilaysack and Mr La. He contacted Mr Vilaysack prior to the meeting and asked, "Can I send Josh?" He told Mr Vilaysack not to count the money in front of him. Mr Nguyen remitted the funds to purchase the ounce of cocaine to Mr La via an internet-banking transfer. He contacted Mr La and told him that he was about to transfer the money that he was to give to Mr Vilaysack in exchange for the cocaine. He told Mr La to meet Mr Vilaysack in Liverpool.
Police observed Mr La withdrawing money from two ATMs prior to meeting Mr Vilaysack. At the meeting (which was observed by police), Mr Vilaysack supplied Mr La with 28.3g of cocaine in exchange for $6,500. Mr Vilaysack and Mr La were both arrested a short time later in possession of both the cash and the cocaine.

Mr Nguyen's submissions

Mr Vilaysack was sentenced by her Honour Woodburne SC DCJ to 2 years and 9 months to be served by way of an intensive corrections order. His Honour had the benefit of her Honour's remarks on sentence. Mr Nguyen somewhat audaciously submitted that, after reviewing those remarks, his Honour "decided to not apply the principles of parity when determining an appropriate sentence".
He submitted that he has a justifiable sense of grievance "as a result of", presumably meaning "by reference to", the sentence imposed on Mr Vilaysack. He referred to Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46.
He submitted, in accordance with authority, that a court in passing sentence can only impose a sentence different to that of a co-offender where, on an assessment of all objective circumstances concerning their respective roles in the commission of the crime and all differences in their respective subjective circumstances, there is not such a marked disparity as to give a justifiable sense of grievance or the appearance of justice not being done: Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.
Mr Nguyen submitted that there is an unjustifiable disparity between the sentences imposed on these two offenders. On assessment of both the statement of agreed facts and the sentencing remarks of Judge Woodburne, it was open to his Honour to conclude that Mr Vilaysack was part of a larger network that was providing illicit substances to Mr Nguyen for sale in the wider community. He submitted further that his Honour made a specific error in exercising his sentencing discretion, namely, a failure to take into account a factual consideration that would have been available at the relevant time.

Mr Vilaysack's sentence

Mr Vilaysack pleaded guilty to two counts of supply prohibited drug pursuant to s 25(1) of the Drug Misuse and Trafficking Act, an offence which carries a maximum penalty of 15 years imprisonment. A further offence of deal with property suspected of being the proceeds of crime contrary to s 193C(2) of the Crimes Act was taken into account on a Form 1. On 27 June 2019, Mr Vilaysack was sentenced by Judge Woodburne to an aggregate sentence of imprisonment of 2 years and 9 months to be served by way of an intensive corrections order.

The Crown's submissions

The material before his Honour included the statement of agreed facts used in Mr Vilaysack's proceedings and his criminal history as well as Judge Woodburne's remarks on sentence. These demonstrated that Mr Vilaysack was arrested on 15 June 2018 following his meeting with Mr La. Sequence 1 concerned the supply of 28.3g of cocaine to Mr La on that date in exchange for $6,500. Sequence 2 concerned 55.81g of cocaine found in his car at the time of his arrest, a small amount of which was found to be for his personal use. The Form 1 offence related to the $6,500 cash which was the proceeds of Sequence 1.
His Honour carefully considered the material relating to Mr Vilaysack and specifically addressed the issue of parity as follows: "In relation to the co-offenders I note that Joshua La is yet to be sentenced and that Mr Huy Nguyen, another drug runner, was sentenced to a Community Correction Order in the Local Court for an offence of participating in a criminal group. It has not been suggested that that sentence is of relevance for parity purposes. However I note that Jimmy Vilaysack was, on 27 June 2019, sentenced by her Honour Judge Woodburne SC to an aggregate term of imprisonment of two years nine months for two offences of supply prohibited drug, with an offence of dealing with proceeds of crime having been taken into account on a Form 1. I note that her Honour ordered that that term of imprisonment be served by Intensive Correction Order with a condition that Mr Vilaysack among other things perform 60 hours community service. It was argued on behalf of the current offender that he should receive a lesser sentence than Vilaysack and that he would have a justifiable sense of grievance if he did not. I have considered carefully the reasons for sentence of her Honour Judge Woodburne SC and the circumstances of the matter before me and having done so I do not accept this argument. It is true that the current offender has no prior criminal matters, whereas Mr Vilaysack had some driving offences and one assault offence on his record. It is also true that Mr Vilaysack was the person who supplied the 28.3 grams to Joshua La on 15 June 2018 and clearly had access to other quantities of the drug for the purposes of supply. Furthermore it is true that Vilaysack had engaged in discussions about the possibility of supplying up to one 1 kilogram of cocaine to other persons, but as Judge Woodburne noted, he was not being sentenced in relation to those discussions. When considering questions of parity the focus must always be to compare like with like. In Mr Vilaysack's case, her Honour Judge Woodburne SC found that the two offences which I note were committed on a single day, both fell below the mid-range and that there was no evidence that Vilaysack was part of proved drug syndicate. By contrast, I have concluded that the current offender was the principal of his own distribution team and that his ongoing offending was at about the mid-range. I note also his admission to the offence on the Form 1 being that of knowingly direct the activities of a criminal group. Also, the offences for which Mr Vilaysack was sentenced carried a maximum of 15 years imprisonment, whereas the offender faces a maximum of 20 years for the ongoing supply offence. Her Honour also found that Mr Vilaysack was remorseful, and that his prospects of rehabilitation were good, whereas my findings in relation to the current offender are slightly less positive. In summary, while the sentence imposed on Mr Vilaysack is relevant in the sentencing exercise that I must perform, I do not regard that sentence as "on par" with the current offender's case which I regard as being more serious."
As appears from the above comments, his Honour noted that Mr Vilaysack was sentenced for different offences which carried a lower maximum penalty than that for which Mr Nguyen was to be sentenced, that his offences were committed on a single day, that they had been assessed as falling below the mid-range and that her Honour had found that there was no evidence that he was part of a drug syndicate. His Honour observed that, in contrast, Mr Nguyen was the principal of his own drug distribution team, that his ongoing offending was at about the mid-range and that he had asked the Court to take into account an offence of knowingly direct the activities of a criminal group on a Form 1.
Mr Nguyen had also agreed that he participated in the offending out of greed, breaking down the drugs he purchased into smaller amounts before on-supplying them, whereas Mr Vilaysack, who is described as having a cocaine habit, committed the offences for the purpose of funding his own drug habit and in order to pay a drug debt.
His Honour had regard to the subjective cases of both Mr Nguyen and Mr Vilaysack. Both were of a similar age: Mr Vilaysack was 24 years old at the time of the offences. His Honour acknowledged that Mr Nguyen had no prior criminal history whereas Mr Vilaysack had some driving offences and one assault offence on his record. Mr Vilaysack's record was described by Judge Woodburne as "not a significant one". His Honour noted that findings he had made in relation to Mr Nguyen's remorse and his prospects of rehabilitation were "slightly less positive" than those made in relation to Mr Vilaysack. Both entered pleas of guilty in the Local Court and were afforded discounts of 25 per cent.
His Honour rejected the submission made on behalf of Mr Nguyen that he should receive a lesser sentence than Mr Vilaysack. After carefully considering all of the material, his Honour concluded that Mr Vilaysack's sentence was relevant in the sentencing exercise, but it was not "on par" with Mr Nguyen's case, which he regarded as being more serious.
The Crown submitted that Mr Nguyen's complaint that "it was open for the sentencing judge to conclude that Mr Vilaysack was part of a larger network that was providing illicit substances to [him] for sale in the wider community", and his contention that in declining to draw that conclusion his Honour failed to take into account a relevant factual consideration, were misconceived. His Honour had regard to the statement of agreed facts of Mr Vilaysack and the findings made by her Honour. They included that Mr Vilaysack was a willing supplier of prohibited drugs and obtained his drugs from someone with the capacity to supply at least ounce lots but that the evidence did not establish he was a member of a drug syndicate. He was a street level supplier. Although the agreed facts included reference to discussions about other quantities of drugs, Mr Vilaysack did not stand to be sentenced for those matters and their relevance was limited to showing that the offences for which he was sentenced were not isolated instances of supply.
The Crown contended that his Honour was not required in the present case to go behind the carefully considered findings of Judge Woodburne. Those findings informed the sentence that she imposed. Any attempt by his Honour to do so would be destructive of Mr Nguyen's parity argument in any event as it would have diluted the comparative significance of Mr Vilaysack's sentence by reducing the effect of her Honour's findings. Moreover, there is no evidence that Mr Vilaysack was, as Mr Nguyen contends, "part of a larger network". The way in which that submission is put belies its frailty: the assertion that it "was open" to his Honour to conclude that Mr Vilaysack was part of a larger network carries with it an implicit acknowledgment that the opposite finding was also open.

Disposition

The principles that apply in cases such as this are encapsulated in the judgment of the High Court of Australia in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [30]. Of particular relevance is the fact that this court has observed that "considerable obstacles" confront an applicant contending error based on parity where the sentencing judge whose decision is challenged has been fully aware of the sentences imposed upon allegedly comparable co-offenders as well as the judge's reasons, and where the sentencing judge has provided reasons for imposing a different sentence: Tatana v R [2006] NSWCCA 398 at [28]. This is such a case.
In Lloyd v R [2017] NSWCCA 303, RA Hulme J observed at [95]-[97] that differentiation between sentences imposed on co-offenders was a discretionary assessment by the judge who had the facts and circumstances of the offences and each offender in mind in the one sentencing exercise. His Honour noted that it is not for this Court to second guess the primary judge.
In the present case, I am not satisfied that Mr Nguyen has a legitimate sense of grievance that flows from the differences between the sentences imposed upon him and Mr Vilaysack. Accordingly, in my opinion, the following orders should be made: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal.
BELLEW J: I agree with Harrison 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: 04 November 2020

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