Nguyen v Regina

Court of Criminal Appeal (NSW)|2007-01-18|Before: Adams J, Howie J, Price J

The applicant has a justifiable sense of grievance by virtue of the difference when comparing his sentence with the sentence imposed on the co-offender John Herbert Scott. Ground 3 The sentence is manifestly excessive.

The offence 9 An agreed statement of facts was annexed by the Judge to his remarks on sentence which may be conveniently summarised. 10 A police strike force designated "Biology", commissioned to investigate the distribution of heroin from premises located at 47 Martin Street, Shortland and other locations, commenced on 2 January 2003. Persons of interest included John Herbert Scott, Karen Johnson (Scott's de-facto wife) Keenan Gareth Johnson (the son of Karen Johnson) and Rebecca Jones (the girlfriend of Keenan Johnson). John Herbert Scott, Karen and Keenan Johnson were referred to as the 'family'. 11 During the police operation, which ran until 20 May 2003, police lawfully intercepted four mobile telephone services utilised by these persons. Some 24,830 telephone calls were intercepted and during the course of the intercepts the applicant was found to be the supplier of the drugs to the 'family'. 12 The applicant was referred to as "Asian Dan" on the telephone intercepts. 13 Telephone intercepts and police surveillance indicate that heroin was sold by the applicant to the 'family' at an agreed price of $250 per gram. Over the course of the operation, the 'family' purchased from the applicant heroin estimated to be about one kilogram. 14 None of the 'family' members had a driver licence. They employed a number of drivers to drive them to various locations around the Central Coast to purchase heroin from the applicant. During the operation, there were numerous buying trips. 15 The purchased heroin was returned to 47 Martin Street, where it was weighed and divided, usually by John Scott. The bulk was distributed generally in the ratio two-thirds to John Scott and Karen Johnson and one-third to Keenan Johnson. From there, they would supply the heroin distributed, John Scott and Karen Johnson usually dealing in larger quantities than Keenan Johnson. 16 The operation ended on 20 May 2003. On that day a number of calls between John Scott and the applicant were intercepted whereby Scott agreed to buy 12 grams of heroin and to bring an additional $480 owed to the applicant from a previous transaction. Police observed Scott enter a vehicle in which the applicant was seated. The vehicle was intercepted by police when it was being driven over a bridge. Scott was seen to throw away a package that was found to contain 12 grams of heroin. The applicant was found to be in possession of the sum of money, the subject of the first charge on the Form 1.

Subjective Circumstances 17 Evidence of the applicant's subjective circumstances was put before the Judge by way of a psychiatric report prepared by Dr Dong Binh Tran. 18 The applicant was born on 15 June 1964 and at the time of offending was aged 38 years. He was born in Saigon. He and his elder brother grew up in an orphanage run by a Buddhist practitioner. The applicant's father, a soldier, died on the battlefield and his mother died in the same year. At the time of their deaths the applicant was a baby. The applicant's childhood was marked by poverty and emotional deprivation. When the applicant was 14 years old, the orphanage was closed down. The applicant, refusing to participate in a relocation program, tried to run away and was caught. As punishment, he was sent to a labour camp from which he escaped after one year. His elder brother managed to escape by boat but has not been heard of since. 19 Although the applicant's schooling was interrupted, he eventually completed year 10 at the age of 17 years. He worked as a farmer for about seven years until he escaped from Vietnam by boat in 1988. He arrived in Thailand and spent two years in a refugee camp before migrating to Norway. 20 The applicant migrated to Australia in 1992 having been sponsored by the Vietnamese Buddhist Association in Canberra for whom he worked for a year as a welfare officer. He moved to Sydney and worked in a factory for about four years. The applicant spent the next three years living between Melbourne and Sydney where he maintained his employment as a welfare worker for the Buddhist community and as a factory worker respectively. At the time of arrest, the applicant was unemployed and was living by himself. He had married in Vietnam in 2000, however, his wife was unable to obtain a visa to enter Australia. The marriage broke up in about January 2003. 21 The applicant began to gamble and to smoke heroin. At the time of the commission of the offence he was addicted to gambling and to heroin. 22 He has no prior criminal record.

Dealing with the Appeal 23 Ground 1 of the appeal is that the Judge erred by finding that the applicant, in relation to his respective role, was "at the very top of the scale". 24 The applicant contends there is no basis to find that the applicant's role was any higher than the 'Central Coast Group' the principals of which were the 'family' and the Judge was inadvertently misled into believing that the applicant was not only the principal of the 'Sydney Group' but was also "at the top" of the 'Central Coast Group'. The applicant and the 'family' were equal principals, it is submitted, of their respective groups. 25 When the Judge sentenced the applicant on 9 December 2005, he also sentenced Dich Dao Thi Huynh and Soc Phuoc Chung. The following discussion occurred during the proceedings on sentence:

"His Honour: So is what you're saying at the very top of the scale with the people I'm dealing with today is Mr Nguyen? Crown: Yes. His Honour: And he has beneath him his assistant, Ms Huynh? Crown: Yes. His Honour: And well beneath that is the driver, Mr Chung? Crown: Yes.

His Honour: Then in relation to Scott, you say that Scott is the person who obtains from Nguyen. Crown: Yes, Scott, Keenan Johnson and Karen Johnson. His Honour: They're on the same level? Crown: Yes " (ROS 9.12.05 p 3) 26 The applicant does not cavil with the characterisation that he was the principal of the 'Sydney Group'. 27 There appears to be further on in the proceedings on sentence, the applicant contends, some degree of confusion as to where the applicant stood in relation to the overall criminal enterprise when the following exchange took place between the Judge and the Crown:

"Crown: …….basically there are two halves to the supply. His Honour: Two halves, right. There's the Scott side? Crown: There's the Scott side and Nguyen side.

His Honour: I've done that in my diagram. When you say there's the Scott and Nguyen side, didn't you say that Nguyen was at the top?

Crown: Yes. Nguyen comes from Sydney. They go to the rendezvous point which is on the Central Coast. The other half of the transactions comes from Newcastle. They meet half way basically." (POS 9.12.05 p4) 28 This exchange between the Judge and the Crown cannot be properly understood without detailing the discussion which immediately followed;

"His Honour: I'm aware there's Newcastle. So what you're saying is that Nguyen supplies Scott. Crown: Yes. His Honour: Scott then has drivers under him. Crown: Yes. His Honour: So where do the Johnsons come in?

Crown: Scott and the two Johnsons all live in the one house and it's a joint criminal enterprise between those three.

His Honour: So when you say Scott, you're talking about Scott, Johnson and Johnson.

Crown: Yes, they're the principals in the Newcastle side." (POS 9.12.05 p4). 29 The Judge in his remarks on sentence did not refer to the applicant in the terms expressed in Ground 1 of the appeal. The Judge found the offence was at the upper end of the scale of objective seriousness and: "…..the offender played a major role in the commercial sale of heroin and that the sale of the heroin was well planned and the scheme for the distribution of the heroin was a sophisticated scheme." (ROS 9.12.05 at p5).

30 When sentencing John Scott on 26 May 2006, the Judge remarked: "Insofar as the respective roles played by those persons, as I mentioned I found Tri Van Nguyen to be at the top of the pyramid and I find Karen Johnson, Keenan Johnson and the offender to be distributors. I agree with the submission as to the placement of the sentence between those sentences imposed on Van Nguyen and Karen Johnson…." (ROS John Scott 26.5.06 at p7) 31 The Judge had earlier remarked that the applicant was the 'family' supplier. 32 John Scott was sentenced to imprisonment for eight years and three months, with a non-parole period of five years and three months, Karen Johnson to imprisonment of seven years and eight months with a non-parole period of four years and eight months, Keenan Johnson to imprisonment of seven years with a non-parole period of four years. The terms of these sentences are less than that imposed upon the applicant. Each of the co-offenders had pleaded guilty to one count of supply not less than the commercial quantity of heroin contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 as had the applicant. 33 It is apparent that his Honour found that the applicant's role in the criminal enterprise was at the very top of the scale. There was no confusion of the applicant's role when the Judge made that finding. The Judge clearly understood that the applicant was the source of the heroin, the supplier to the 'family' who would on sell to their customers.

34 The pivotal role of the applicant in the criminal enterprise is demonstrated by numerous meetings he had with members of the 'family'. Karen Johnson met with him on at least 41 occasions and Keenan Johnson on at least 81 occasions. The majority of these meetings involved exchanging cash for heroin supplied by the applicant, others the payment of outstanding debts owed by the 'family' to him. 35 It was open to the Judge to determine that the position of the applicant in the hierarchy of the criminal enterprise was at the top. 36 The Judge was obliged to assess the applicant's degree of criminality by defining his role and the level of his actual participation in the criminal enterprise: R v Olbrich (1999) 199 CLR 270, R v Lam [2006] NSWCCA 11, R v Stankovic [2006] NSWCCA 229. 37 The applicant made to and received from members of the 'family' numerous phone calls to negotiate drug transactions. He travelled to and met with them to supply heroin and to obtain payment. He was the source of the drug. He could be considered as a wholesaler whereas the 'family' were retailers: Barta v R [2006] NSWCCA 6 per Howie J at [33]. 38 The role of the applicant in the criminal enterprise was at the very top of the scale and his actual participation in it was at the highest level. 39 The Judge was entitled to assess the criminality of the applicant as being greater than John Scott, Karen Johnson and Keenan Johnson. 40 I am unable to discern error on the part of the Judge and this ground of appeal fails. 41 Ground 2 of the appeal is that the applicant has a justifiable sense of grievance when compared to the sentence imposed upon the co-offender John Scott (now referred to as the co-offender). 42 The co-offender was sentenced to a term of imprisonment of eight years and three months with a non-parole period of five years and three months. The applicant was sentenced to a term of imprisonment of ten years with a non-parole period of six years. The differential in the non-parole period is therefore nine months and in the total term one year and nine months.

43 The applicant's contention that he and the co-offender were on par in relation to their ranking amongst the co-offenders in the enterprise has been rejected.

44 Furthermore when sentencing the co-offender, the Judge said: "I do have regard to the fact that the offender made no profit from the scheme except for his being able to provide to himself a sufficient quantity of heroin to satisfy his five to six gram a day habit." (ROS John Scott 26/5/06 at p 4). 45 The finding by the Judge that the co-offender was a user/dealer selling to feed his own habit ameliorated to some extent the co-offender's criminality: R v Tulloh (unrep, 16/9/93, NSWCCA per Hunt CJ at CL). Such a finding was open to his Honour. 46 No such finding was made in the case of the applicant. I am unable to discern error on the part of the Judge for failing to do so as the applicant was the singular source of supply of about one kilogram of the prohibited drug to the 'family'. His Honour was satisfied that he was a commercial drug supplier. The supply of heroin out of greed placed the applicant in the worst category of suppliers: R v Liang (unrep, 2/6/95, NSWCCA); R v Ramos (2000) 112 A Crim R 339, R v Kalache (2000) 111 A Crim R 152. 47 There is no substance to the applicant's oral submission that there were no agreed facts handed up to the Judge when the co-offender was sentenced. The agreed facts were directed by the Judge to be annexed to his reasons for sentence and marked with the letter A. Whilst the agreed facts did not separately identify the role of the co-offender, as had been done in the case of Karen Johnson and Keenan Johnson, there was ample material before the Judge to enable the co-offender's criminality to be properly assessed. 48 The applicant contends that having regard to the co-offender's lengthy criminal history and to his committing a drug supply offence whilst on parole in relation to a previous drug supply offence, it would be expected that the co-offender would receive a greater sentence than the applicant who had no prior criminal record. 49 The Judge in sentencing the co-offender referred to the two previous convictions for the supply of drugs and the fact that he was on parole at the time of the commission of the offence as "aggravating factors" (ROS John Scott 26.5.06 p4). When sentencing the applicant, the Judge made reference to the applicant's lack of criminal record and found that the offence was out of character. (ROS 9.12.05 at p6). 50 The relevance of the record of convictions of the co-offender was whether the record disclosed that more weight was to be given to retribution, personal deterrence and the protection of the community than would otherwise be the case: R v McNaughton [2006] NSWCCA 242, R v M.A.K, R v M.S.K [2006] NSWCCA 381. 51 I am not persuaded that the Judge did not properly assess the prior criminality of the co-offender. 52 Careful consideration and appropriate weight was given by his Honour to the subjective circumstances and lack of prior criminality of the applicant. The stronger subjective case of the applicant did not command a sentence of the same duration as the co-offender whose criminality in the joint enterprise was not as substantial. Prior good character has less significance in crimes involving drugs than in other fields of crime: R v Leroy (1984) 2 NSWLR 441. 53 The applicant has not shown that a reasonable person, looking at the circumstances of the case, would regard his grievance as justified: R v Ilbay [2000] NSWCCA 251 (at 6), R v Kollas & Mitchell [2002] NSWCCA 491 [at paras 45 - 50], Lowe v The Queen (1985) 154 CLR 606, Postiglione v The Queen (1997) 189 CLR 295. The sentences imposed by the Judge do not give rise to a justifiable sense of grievance. 54 The second ground of appeal fails. 55 Ground 3 of the appeal is that the sentence is manifestly excessive. 56 The applicant was at the top of the hierarchy of a large, well planned and sophisticated scheme for the commercial supply of heroin. The amount of heroin supplied was at the upper end of the commercial quantity. 57 The Judge correctly found that the offence was at the upper end of the scale of objective seriousness. 58 A standard non-parole period has been prescribed in respect of the offence of ten years imprisonment. The standard represents "an offence in the middle range of objective seriousness" (s 54A(2)) Crimes (Sentencing Procedure) Act 1999. 59 No mention was made by his Honour of the standard non-parole period when he sentenced the applicant and members of the 'family'. With respect to the Judge, he should have done so. It seems that his Honour did not follow the approach to be taken to the imposition of a custodial sentence in respect of an offence where a standard non-parole period applies enunciated by this Court in R v Way (2004) 60 NSWLR 168, R v AJP (2004) 150 A Crim R 575, MLP v R [2006] NSWCCA 21. 60 The present offence is properly characterised as being beyond the mid-range of objective seriousness. The Judge took into account the applicant's plea of guilty and found special circumstances. A non-parole period of six years was set with a total term of ten years. 61 It may well be that if the Judge had used the standard non-parole period of ten years as a reference point, bench mark, sounding board or guide post, a lengthier sentence would have been imposed. 62 The applicant's sentence, in my view, was well within the range of an appropriate sentence. I am unable to find that the sentence was manifestly excessive. 63 The third ground of appeal fails. 64 I propose that leave to appeal be granted, but the appeal be dismissed.

08/02/2007 - Solicitors appearing for the applicant amended - Paragraph(s) -

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.

Crimes Act 1900(NSW)s 527C(1)(a)

CITATION: Nguyen v Regina [2007] NSWCCA 15 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Barta v R [2006] NSWCCA 6 Lowe v The Queen (1985) 154 CLR 606 MLP v R [2006] NSWCCA 21 Postiglione v The Queen (1997) 189 CLR 295 R v AJP (2004) 150 A Crim R 575 R v Ilbay [2000] NSWCCA 251 R v Kalache (2000) 111 A Crim R 152 R v Kollas & Mitchell [2002] NSWCCA 491 CASES CITED: R v Lam [2006] NSWCCA 11 R v Leroy (1984) 2 NSWLR 441 R v Liang NSWCCA unreported 2.6.95 R v M.A.K, R v M.S.K [2006] NSWCCA 381 R v McNaughton [2006] NSWCCA 242 R v Olbrich (1999) 199 CLR 270 R v Ramos (2000) 112 A Crim R 339 R v Stankovic [2006] NSWCCA 229 R v Tulloh NSWCCA unreported 16.9.93 R v Way (2004) 60 NSWLR 168

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