Nguyen v Regina

LEGISLATION CITED: Customs Act 1901, s 233B Drug Misuse and Trafficking Act 1985, s 25(2)

Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1996) 189 CLR 295; R v Ismunandar (2002) 136 A Crim R 206' CASES CITED: R v Li [2005] NSWCCA 154; R v Nguyen, Pham, To and Vu [2004] NSWSC 144; R v Nguyen, Pham, Vu and To (2005) 157 A Crim R 80; Weininger v The Queen (2003) 212 CLR 629.

PARTIES: Dinh Minh Nguyen - Applicant The Crown - Respondent

COUNSEL: P Hamill SC - Applicant D G Staehli SC - Respondent Crown

SOLICITORS: Hardinlaw - Applicant Commonwealth Director of Public Prosecutions - Crown

LOWER COURT DATE OF DECISION: 27 August 2004 (Sentence)

IN THE COURT OF CRIMINAL APPEAL CCA 569/2007 DC 984/04

GILES JA LATHAM J MATHEWS AJ

Monday 30 July 2007 Dinh Minh NGUYEN v REGINA Judgment 1 GILES JA: The applicant pleaded guilty to three charges of offences under s 233B of the Customs Act 1901 and one charge of an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985. He was sentenced by Shillington DCJ to an effective overall sentence of 24 years with non-parole period of 18 years 6 months. He applied for leave to appeal against sentence on the grounds -

(1) that he has a justifiable sense of grievance as a result of the unfair disparity and lack of due proportion between the sentence imposed on him and those imposed on his co-offenders;

(2) that the judge erred in taking into account uncharged and unproven acts of criminality; and

(3) that the sentence is manifestly excessive in all the circumstances and a different less severe sentence is warranted and ought to have been imposed.

The offences and sentences 2 The offences under the Customs Act were offences of being knowingly concerned in the importation of prohibited imports. 3 The first of the offences was that between 23 June and 16 October 2001 the applicant was knowingly concerned in the importation of a traffickable quantity (38.1 grams) of heroin. The applicant was sentenced to a fixed term of imprisonment for 8 years commencing on 16 October 2001, the date he was taken into custody. 4 The second of the offences was that between 23 June and 16 October 2001 the applicant was knowingly concerned in the importation of a traffickable quantity (10.4 grams) of methylamphetamine. The applicant was sentenced to a fixed term of imprisonment for 8 years commencing on 16 October 2001. 5 The third of the offences was that between 23 June and 19 September 2001 the applicant was knowingly concerned in the importation of a traffickable quantity (477.8 grams) of heroin. The applicant was sentenced to a fixed term of imprisonment for 10 years commencing on 16 October 2001. 6 The importations in the first and second offences were by post, and they may be called the postal importations. The applicant flew to Hong Kong on 23 June 2001 and organised the sending by post of packages containing drugs to various addresses in Sydney. They were to be collected by or at the direction of the applicant's son-in-law Quang Vu. Five of the packages were intercepted by the authorities. Four contained the heroin and one contained the methylamphetamine. The judge said that it was clear from recovered wrappings that a number of packages passed through the postal system undetected. The drugs were to be sold in Australia and part of the proceeds remitted to Hong Kong to finance further transactions. 7 In the importation in the third offence the heroin was brought into Australia in a Baileys Irish Cream bottle by Tran Van Le. It may be called the bottle importation. When in Hong Kong the applicant negotiated the purchase of the heroin from Van Ha Pham and his principal Peter Lam. He gave it to Le at Hong Kong airport. He was to share in the profits from the transaction. 8 The offence under the Drug Misuse and Trafficking Act was that between 4 October and 16 October 2001 the applicant knowingly took part in the supply of a large commercial quantity (150.478 kilograms) of 3, 4-methylenedioxymethylamphetamine (MDMA or ecstasy: the MDMA offence). The applicant was sentenced to imprisonment for 22 years with a non-parole period of 16 years 6 months commencing on 16 October 2003. Thus there was accumulation for 2 years on the sentences for the postal importation and the bottle importation, which were subsumed within the non-parole period for the MDMA offence. 9 The MDMA was concealed in a container of marble tiles imported from Malaysia. The applicant was a member of a syndicate which organised the importation, other members including Pham, his wife Thanh Hai Nguyen, Kam Piu To and Vu. I will return in a little more detail to what the applicant did in relation to the MDMA importation. 10 For each of the offences under the Customs Act the maximum sentence of imprisonment was ordinarily imprisonment for 25 years (Customs Act, s 235(2)(d)(i)). The applicant, however, was liable to life imprisonment because of a prior conviction for a like offence in 1996 (Customs Act, s 235(2)(c)(ii)). The maximum sentence of imprisonment for the MDMA offence was life imprisonment (Drug Misuse and Trafficking Act, s 33(3)(a)).

Ground 1: Parity 11 The applicant did not take issue on parity grounds with the sentences for the offences under the Customs Act. They must, however, be taken into account in considering his complaint of disparity with the sentences imposed on Pham, Thanh Hai Nguyen, To and Vu for their parts in the MDMA importation. 12 The applicant was originally charged with an offence under the Customs Act of conspiracy to import the MDMA. He was charged together with Pham, Thanh Hai Nguyen, To and Vu. Shortly before the trial the offenders indicated that they would plead guilty to substantive offences. 13 The substituted charge of the offence under the Drug Misuse and Trafficking Act was laid against the applicant, and he pleaded guilty. Substituted charges of offences under the Customs Act were laid against the co-offenders, to which they pleaded guilty, namely - · Pham: importation of the MDMA; · Thanh Hai Nguyen: being knowingly concerned in the importation of the MDMA; · To: possession of the MDMA without reasonable excuse; and · Vu: conveying the MDMA without reasonable cause. 14 The maximum periods of imprisonment for each of these offences was imprisonment for life. 15 The substituted charge against the applicant was remitted to the District Court, for sentencing together with sentencing for the postal importations and the bottle importation to which the applicant had already pleaded guilty. 16 The co-offenders were sentenced by Sully J on 9 March 2004: R v Nguyen, Pham, To and Vu [2004] NSWSC 144. Pham and Thanh Hai Nguyen also pleaded guilty to, and were sentenced for, being knowingly concerned in the bottle importation, and Vu also pleaded guilty to, and was sentenced for, being knowingly concerned in the postal importations. The sentences imposed are in the table set out later in these reasons. 17 The applicant was sentenced by Shillington DCJ on 27 August 2004. In sentencing him for the MDMA offence his Honour referred to the sentences imposed on the co-offenders by Sully J, saying - "Quang Vu, the son-in-law of the prisoner, pleaded guilty and was sentenced in the Supreme Court by Justice Sully on the 9 March of this year to related charges to the two offences on the first indictment and received concurrent sentences of eight years. The prisoner has told investigating police that Vu's role was to assist the prisoner at all times at the prisoner's request. ... Dealing now with the charge relating to the MDMA, as I have said the prisoner entered a plea of guilty to this charge on 15 August before me. The charge relates to the importation into Australia from Hong Kong of 150.478 kilograms of MDMA which were concealed in crates. The National Crime Authority had arranged surveillance of related activities which resulted in the arrest of this prisoner, and Than Hai Nguyen, Van Ha Pham, Kam Piu To and Huy Quang Vu. Mr Justice Sully sentenced the latter four on this and other charges on 9 March of this year, and I have been provided with his Honour's reasons for sentence. The importation involved the supply of 57.702 kilograms by pure weight of MDMA. It was a highly sophisticated operation and involved considerable planning and massive profits for the syndicate, if successful. The principal in Hong Kong of the operation was Lam, and in Australia Van Pham. The prisoner before me is said by the Crown to be the Australian principal next in order of importance after Pham.

Justice Sully described the importation as an example of the worst case of the importation of prohibited narcotics for the purposes of sentence, and I agree with this description." 18 His Honour did not more specifically relate the sentences imposed on the applicant to the co-offenders' sentences. The accumulation he adopted, however, was the same 2 years as was adopted by Sully J. 19 The co-offenders applied for leave to appeal against sentence. On 31 October 2005 leave was granted, the appeals were upheld and their sentences were varied: R v Nguyen, Pham, Vu and To (2005) 157 A Crim R 80. 20 A table showing the sentences imposed by Sully J and as varied is as follows. Sully J CCA Bottle importation Bottle importation 15 years commencing 16 October 2001 10 years commencing 16 October 2001 Pham Importation of the MDMA Importation of the MDMA Life with 23 years non parole period commencing 16 October 2003 27 years with 18 years non parole period commencing 16 October 2002 (query 2001) Overall Overall Life with 25 years non parole period 28 years with 19 years non parole period (query 27 and 18 years) Bottle importation Bottle importation 15 years commencing 16 October 2001 10 years commencing 16 October 2001

Thanh Hai Nguyen Knowingly concerned with importation of the MDMA Knowingly concerned with importation of the MDMA 25 years with 16 years non parole period commencing 16 October 2003 21 years with 15 years 6 months non parole period commencing 16 October 2002

Overall Overall 27 years with 18 years non parole period 22 years with 16 years 6 months non parole period To Possession of the MDMA Possession of the MDMA Life with 22 years non parole period commencing 16 October 2001 22 years with 16 years 6 months non parole period commencing 16 October 2001 Each postal importation Each postal importation 8 years commencing 16 October 2001 6 years commencing 16 October 2001 Vu Convey the MDMA Convey the MDMA 10 years with 6 years non parole period commencing 16 October 2003 8 years with 5 years 3 months non parole period commencing 16 October 2002 Overall Overall 12 years with 8 years non parole period 9 years with 6 years 3 months non parole period

21 In general, the sentences and non parole periods were reduced and the accumulation of 2 years was reduced to 1 year. The queries in Pham's varied sentence for importation of the MDMA are because the non parole period was said to date from 16 October 2001. I take that to have been a slip. The non parole periods in the cases of Thanh Hai Nguyen and Vu were said to date from the commencement of the relevant period of imprisonment, and the reasons do not indicate a different course in the resentencing of Pham. I have therefore adopted the date of 16 October 2002. 22 The applicant relied in particular on the reductions whereby - · Pham's life sentence was reduced to 27 years and his non-parole period was reduced from an overall 25 years to an overall 18 years; · Thanh Hai Nguyen's sentence was reduced from an overall 27 years to an overall 22 years and her non-parole period was reduced from an overall 18 years to an overall 16 years 6 months; · To's life sentence was reduced to 22 years and his non-parole period was reduced from 22 years to 16 years 6 months. 23 The applicant submitted that, in the light of the re-sentencing of the co-offenders since he was sentenced, he had a justifiable sense of grievance (Postiglione v The Queen (1996) 189 CLR 295 at 301, referring to Lowe v The Queen (1984) 154 CLR 606 at 610, 613, 623) and the inconsistency of punishment left him wearing the "badge of unfairness" to which Mason J referred in Lowe v The Queen at 611. He submitted that - · his overall sentence of 24 years was almost as long as that imposed on Pham and his overall non-parole period of 18 years 6 months was longer than Pham's, notwithstanding that the applicant had been described by Shillington DCJ as the Australian principal of the operation next in order of importance after Pham; · his overall sentence of 24 years was 2 years longer than that imposed on Thanh Hai Nguyen and his non-parole period for the MDMA offence was 3 years (in fact 2 years) longer than hers, notwithstanding that Sully J had described the role of Thanh Hai Nguyen as at a level similar to that of Pham; · his overall sentence was 4 years longer (in fact 2 years) than that imposed on To and his overall non-parole period was 2 years longer than To's non-parole period, notwithstanding that in the re-sentencing the Court at [89] considered To and the applicant to have "approximately equal criminal responsibility as well as broadly equivalent subjective factors"; and · none of the co-offenders' sentences was accumulated for more than 1 year. 24 In the applicant's submission, Shillington DCJ placed the applicant's sentence at a significantly lower level than the sentences of Pham and To, and at a similar level to that of Thah Hai Nguyen. He submitted that this relativity between the offenders was undone by the re-sentencing of the co-offenders, and should be restored by reduction of the applicant's sentence. 25 The Crown accepted that the sentencing by Sully J and by Shillington DCJ proceeded on facts which were "materially identical", with the possible but unexplained exception as to Vu; it did not suggest that parity considerations were out of place because of sentencing on materially different facts before the respective Courts. 26 The Crown's response began with the submission that Shillington DCJ had been overly lenient in the sentence he imposed on the applicant; that, although noting that the applicant "is said by the Crown to be the Australian principal next in order of importance after Pham", his Honour sentenced him to a significantly less term of imprisonment and non-parole period for the MDMA offence than the sentence imposed on Pham, and also that imposed on To, without explaining where he differed from Sully J. In the Crown's submission the re-sentencing of the co-offenders on appeal ameliorated the discrepancy, but because the applicant had initially been treated leniently he could have no valid complaint of disparity. 27 The Crown then took issue with the complaint of disparity as propounded by the applicant. It said that while the applicant's overall non-parole period was longer than Pham's, his non-parole period of 16 years 6 months for the MDMA offence was less than Pham's non-parole period of 18 years for importation of the MDMA, and that the applicant's additional overall non-parole period was due to his sentences for the postal importations and the bottle importation - Pham was not sentenced for the postal importations. It said that the applicant's sentence and non-parole period for the MDMA offence were only 1 year longer than Thanh Hai Nguyen's sentence and her non-parole period for her MDMA offence, and that again the greater overall discrepancy was due to sentencing for the postal importations which she did not face. It said that the applicant's overall sentence and non-parole period could not be compared with To's sentence and non-parole period, only the applicant's sentence and non-parole period for the MDMA offence, and that on the proper comparison there was equality. And it said that the applicant's greater accumulation of 2 years was readily explained by his combination of the postal importations, the bottle importation and the MDMA offence, which none of the co-offenders had. 28 The Crown submitted that only a marked disparity could give rise to a sense of grievance, and that this Court would intervene only when there was a manifest discrepancy (Lowe v The Queen at 309 per McHugh J); and that equally there could not be a sense of grievance if there were "factors which support different treatment" (ibid at 313), and that the differences in the offences with which the offenders were charged alone warranted any difference in the sentence received by the applicant. It submitted also that, although Shillington DCJ did not refer to it, the applicant's position differed from that of the co-offenders because he was liable to life imprisonment for the postal importations and the bottle importation. 29 In the Crown's submission, if any disparity had come about, restoration of parity was not warranted. It referred to R v Ismunandar (200) 136 A Crim R 206 and R v Li [2005] NSWCCA 154 for subservience of parity with co-offenders to imposing a proper sentence on the offender in question. 30 Shillington DCJ did agree with Sully J in a description of the importation of the MDMA as "an example of the worst case of the importation of prohibited narcotics". The applicant submitted that his Honour assessed the part played by the applicant at a much lower level than the parts played by Pham and Thanh Hai Nguyen. The applicant accepted this description as applying to an importation in which they were entrepreneurs, but said that his involvement was in the nature of an employee. It was said that the applicant played an early part only in some trips to Vietnam and Hong Kong in March and April 2001, and was to receive $40,000 from Pham; whereas Pham and his wife were long involved in arranging the importation, and were to receive $500,000, later reduced to $350,000. 31 The Crown, on the other hand, stressed the applicant's active involvement with receipt of the MDMA in Australia, housing To when he came to observe, picking up the tiles and unpacking the MDMA, and finding a purchaser. It was conceded that his role was a lesser role than that of Pham, but the Crown said that what he did was essential to the enterprise and he did it as a full participant; correctly in my view, the Crown said he "took a managerial role" in dealing with the MDMA after arrival. 32 It is necessary, in my view, to see why this Court reduced the sentences imposed on the co-offenders. 33 For each of Pham, Thanh Hai Nguyen and Vu there was reference to whether insufficient regard had been given to the plea of guilty (at [31]-[36], [50] and [64]-[66]). The resolution of this is unclear. 34 Specifically, as to Pham, Grove and Barr JJ accepted that there was error in Pham's sentencing to a life term on the basis that the importation of the MDMA was a "worst case", with that categorisation determined by reference to the quantity of drug involved and severance of favourable subjective matters (at [41]-[47]). Howie J saw no error (at [112]). 35 All members of the Court considered that there was disparity between Pham and the applicant as to the bottle importation, and that Pham should receive the same sentence as the applicant (at [93]-[95]). They considered also that, in addition to the matters earlier mentioned, there was disparity between Pham and the applicant as to Pham's importation of the MDMA and the applicant's MDMA offence: it was said by Grove J, with whom Barr and Howie JJ relevantly agreed - "99. However, the ultimate question in my view is whether the life sentence can stand in the light of the grounds already discussed and the circumstance that two others, one of almost equivalent culpability as a principal (NGUYEN DINH), and the other an important supervisor on behalf of another principal (TO), should receive determinate sentences. The custody to be served by NGUYEN DINH and that to be served by PHAM stands in such stark contrast that I have concluded that PHAM's case for intervention is made out. The conclusion receives some emphasis when it is observed that NGUYEN DINH participated in all three of the occurrences which I initially described, PHAM in two of them. In my view, the discrimination would entitle PHAM to harbour a justifiable sense of grievance and he should receive a determinate sentence although, as a reflection of his greater culpability (even if it was only marginally so) it should be a longer term than the others." 36 This disparity was the material matter to Howie J's opinion that Pham should be resentenced (at [113]). The resentencing of all the co-offenders was "in accordance with their objective criminality and subjective circumstances" (at [104]). It is evident that Pham was resentenced to 27 years imprisonment with 18 years non-parole period as a participant of greater culpability than the applicant in relation to the MDMA, hence the more severe sentence. 37 Then as to Thanh Hai Nguyen, she did not assert a "worst case" error. Again it was considered that she should received the same sentence as the applicant for the bottle importation (at [91]-[95]). In relation to the offence of being knowingly concerned with importation of the MDMA her submissions concerning her subjective circumstances were not accepted (at [51]-[55]). Her parity argument was confined to the bottle importation (at [100]). The re-sentencing for the offence of being knowingly concerned with the importation of MDMA appears to have been an adjustment in consequence of the reduction in Pham's sentence. 38 Then as to To, his only offence was possession of the MDMA. It was considered that his life sentence was excessive having regard to "detectable patterns of sentencing" (at [62]). While differences were recognised, Grove J said - "89 In assessing sentence there should be reflection of the criminality of each offender in accordance with what each has done in pursuit of the crime, and, although TO and NGUYEN DINH did materially different things, I conclude that they should be assessed as having approximately equal criminal responsibility as well as broadly equivalent subjective factors. I would resentence TO to a similar term as that received by NGUYEN DINH for his MDMA charge." 39 I go finally to Vu, although his different offence in relation to the MDMA made parity considerations more difficult and the applicant made little if anything of them. Error was found in failure to give him the benefit of regard to his cultural background as required by s 16A(2)(m) of the Crimes Act 1914, the regard being that it was hard for him to refuse the requests of his father-in-law, the applicant (at [67]-[72]). The principal matter was that there was disparity with the sentence imposed on the applicant by Shillington DCJ for the postal importations, in that Sully J's accumulation subjected Vu to 2 more years of non-parole period (at [82]-[85]). The re-sentencing for the offence of convey the MDMA again appears to have been an adjustment in consequence of the reduction in Pham's sentence. 40 The dominant consideration in resentencing Pham and Thanh Hai Nguyen for the bottle importation was achievement of parity with the sentence imposed on the applicant. The dominant consideration in resentencing Pham for importation of the MDMA was bringing parity with the sentence imposed on the applicant for the MDMA offence; that flowed through to the resentencings of Thanh Hai Nguyen and Vu for their respective offences. The resentencing of To was expressly by way of parity with the sentence imposed on the applicant. 41 Where the co-offenders were resentenced so as to bring parity with the applicant's sentence, I do not think the applicant can justifiably feel aggrieved that there is a lack of parity. 42 Further, the comparisons on which the applicant relied were incomplete and did not compare like with like. There was equality in the sentencing for the bottle importation and the postal importations. In the sentencing for the offences in relation to the MDMA, there was near equality between the applicant and Thanh Hai Nguyen in sentencing for being knowingly concerned in its importation, there was equality between the applicant and To in sentencing for their respective offences, and Pham was sentenced materially more severely than the applicant for his importation of the MDMA. Greater accumulation in the applicant's case was appropriate, since he was sentenced for all of the postal importations, the bottle importation and the MDMA offence. 43 The acceptance that what the applicant did warranted a lesser sentence than that imposed on Pham was maintained in the resentencing, and I do not think that what the applicant did in relation to the MDMA was inadequately reflected in the difference of 5 years imprisonment and 1 year 6 months non parole period. In my opinion, this ground of appeal should not be upheld.

Ground 2: Uncharged and unproven acts 44 In the course of his remarks on sentence Shillington DCJ said - "Clearly this group of offences represented criminal activity of the most serious kind. Having regard to the prisoner's conviction in 1996 for being knowingly concerned in the importation of heroin, and the current offences, one can only reasonably conclude that the prisoner has been actively engaged in the trade of narcotics and illegal drugs as a major player for some time." 45 The applicant submitted that, while the prior conviction could be taken into account as something which disentitled the applicant to leniency, it could not properly be used to sentence the applicant on the basis that he had for some time committed uncharged and unproven acts of importation and supply. 46 The Crown submitted that the prior conviction and the current offences entitled his Honour to come to the reasonable conclusion, and that there was no error in the expression of the conclusion. It submitted that the expression of the conclusion fell within the observations of Gleeson CJ and McHugh, Gummow and Hayne JJ in Weininger v The Queen (2003) 212 CLR 629 at [29], speaking of a statement that an offender could not be treated as a first offender - "[29] Taken in isolation the reference to "first offender" may have been unfortunate. Divorced from its context it appears to suggest that the primary judge was treating the appellant as a person guilty of crimes with which he had not been charged. But set in its context it is evident that the primary judge was doing no more than expressing a conclusion that the absence of prior convictions did not, as ordinarily would be the case, demonstrate absence of prior criminal behaviour. That is, the primary judge concluded from the evidence before her, that what was known of the character and antecedents of the appellant did not show that these offences were the first criminal conduct in which he had engaged. The fact that the primary judge was not persuaded that the appellant was probably a person who had not previously engaged in drug importation or money laundering reveals no error. Her Honour treated what was known of the appellant's character and antecedents as neither working in his favour nor against him." 47 In Weininger v The Queen there was greater context than in the present case. It included that the judge spoke of the absence of prior convictions as a matter which must receive some recognition, and said that the offender could not be treated as a first offender "with the attendant leniency that that status usually attracts". 48 However, the passage in question came as Shillington DCJ referred to subjective matters, immediately after reference to entitlement to a degree of leniency by virtue of the utilitarian value of the applicant's pleas. His Honour had earlier described more fully the conviction in 1996. In my opinion, his Honour was doing no more than emphasising that the applicant could not be sentenced as a man who had not hitherto offended, and in particular who had not offended in trading in prohibited drugs. I would not uphold this ground of appeal.

Ground 3: Manifestly excessive sentence 49 The applicant's submissions in support of this ground were quite limited. First, it was submitted that the sentences imposed when this Court re-sentenced Pham, Thanh Hai Nguyen and To "provide powerful support for the contention that the sentences imposed on the present applicant were too long". Secondly, and it seems as a possible explanation for the sentences being too long, it was said that Shillington DCJ said only that the pleas of guilty should result in "some leniency" for utilitarian value and that the assistance derived from information provided "was limited", without indicating any amelioration of the sentence. 50 Although a preferable course, failure to quantify discounts, does not without more constitute error. It is evident that the judge considered that the pleas should bring some leniency and that the assistance was taken into account. In the light of what I have said under ground 1, I do not think that the sentences imposed on the co-offenders on re-sentencing support that the applicant's sentence was manifestly excessive. In my opinion, the sentences were well open to his Honour and no lesser sentences were warranted. I would not uphold this ground of appeal.

Orders 51 I propose that leave to appeal be granted but the appeal be dismissed. 52 LATHAM J: I agree with Giles JA. 53 MATHEWS AJ: I agree with Giles JA. **********

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