Nguyen v Regina

Court of Criminal Appeal (NSW)|2017-03-16|Before: Hoeben CJ, Garling J, Beech-Jones J

Judgment

HOEBEN CJ at CL: I agree with Garling J and the orders which he proposes.
GARLING J: Thi Kim Ngan Nguyen seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 against a sentence imposed upon her on 30 October 2015 in the District Court of New South Wales. She submits that the sentence was attended by error in two respects and that it was also manifestly excessive.

Charge

The applicant, to whom it will be convenient to refer as the appellant, because I am of the view that leave to appeal ought be granted, was charged with an offence contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 ("the DMT Act") of conspiracy to supply a prohibited drug between 25 July 2013 and 20 August 2013 at Mascot. It was alleged that the between those dates, the appellant and three other co-accused, (Huynh, Ho and Xiao) conspired to supply 4.035kgs of pseudoephedrine. That quantity is an amount which is not less than the commercial quantity applicable to the drug.

Procedural History

The appellant was first charged, when arrested, on 31 October 2013. At the same time, a search warrant was executed at the premises where she was then living.
She was initially held in custody with bail refused. Bail was granted on 14 November 2013. The appellant remained on bail until 15 October 2015 when she was taken into custody.
It is apparent that the appellant pleaded guilty to the offence of conspiracy to supply 4.035kgs of pseudoephedrine in the Local Court. On 17 July 2014, she was committed for sentence to the District Court. It was accepted that the appellant pleaded guilty at the earliest available opportunity and she was afforded a discount of 25% by the sentencing Judge on any sentence which was otherwise applicable.
The proceedings came before the District Court on 19 September 2014, at which time the sentencing proceedings were fixed to commence on 19 December 2014. The proceedings were before the Court on two occasions in March 2015 and on one occasion in May 2015. Ultimately, sentence was formally imposed on the appellant on 30 October 2015.
The reason why the imposition of the ultimate sentence was significantly delayed was that, on the application of the appellant to the sentencing Judge, sentencing was deferred because the appellant was pregnant. Her pregnancy carried a high risk of difficulties and complications, and the sentencing Judge acceded to the view that the appellant ought remain in the community until her baby had been born and for a short period thereafter.
The appellant gave birth to a baby girl on 20 August 2015, and the sentencing proceedings were accordingly finalised on 30 October 2015.
In the course of the various District Court hearings, the sentencing Judge in fact indicated the intended sentence, and his reasons, on 20 March 2015, at the same time as he dealt with Xiao and a drug courier, Hoang.
Accordingly, in due course, it will be appropriate to refer to the sentencing Judge's remarks on that day, as if they were his final Remarks.

Facts

A Statement of Agreed Facts was tendered to the sentencing Judge. The Crown asserted two additional facts which were not agreed. First, that the appellant was one level below the head of the criminal syndicate in which she was operating, Huynh. Secondly, that the appellant received the drugs for the purpose of on-supply. These two facts were not admitted by the appellant.
A brief summary of the facts found relevant to the sentence is as follows. A criminal syndicate consisting of at least the appellant, Mr Robin Xiao, Ms Het Thi Ho and Ms Pho Nhi Huynh was identified by the police some time prior to late July 2013.
On 25 July 2013, police lawfully intercepted a telephone call from Ho to Huynh in which they discussed using Xiao as a drug courier. Huynh (who can properly be regarded as the senior member in Australia of the criminal syndicate) contacted the appellant to make arrangements to discuss the suitability of Xiao as a drug courier.
In late July 2013, Huynh and Ho made arrangements for Xiao to travel to China and Vietnam and return to Australia. It seems that by 29 July 2013, the appellant had met with Xiao. She reported back to Huynh on her assessment of the suitability of Xiao as a courier.
Xiao's departure from Australia was monitored by Customs and Border Protection authorities. He travelled to China and then to Vietnam. He returned to Australia on the morning of 20 August 2013. One of the other members of the syndicate, Ho, together with a female friend, was at the airport to collect Xiao and the drugs he was carrying, and to drive him to a meeting with Huynh for the drugs to be handed over.
Xiao was stopped by Australian Customs and subjected to a search. A number of items in his luggage were tested and returned a positive result for ephedrine. The items were seized by Customs officials and subjected to sample testing. The analysis indicated that the substance he was carrying included 4.035kgs of pseudoephedrine and 263.31gms of ephedrine. Xiao was allowed to leave the airport after the goods containing the drugs that he was carrying were seized.
A series of telephone conversations were lawfully monitored by police on that day and the following days, some of which included the appellant.
The sentencing Judge summarised these phone calls in two paragraphs. No complaint is made about any inaccuracy in the summary. He noted: "Ms Nguyen became involved again - and much more, on the arrival of Mr Xiao from Vietnam on 20 August. It became obvious to Ms Nguyen, Ms Ho and Ms Huynh that there must be a problem. Mr Xiao was meant to arrive on the flight at 8.15am, but he was not seen for some hours. In the telephone conversations being monitored by police, there are regular exchanges among Ms Nguyen, Ms Ho and Ms Huynh. Ms Nguyen was relaying information between Ms Ho and Ms Huynh. She was also giving directions to Ms Ho. It is relevant to observe that Ms Nguyen admitted in the phone calls to being very nervous. It is also relevant to observe that at one stage - towards the end, when they had abandoned hope of seeing Mr Xiao - Ms Ho said to Ms Nguyen 'What sort of treat do I get from you two ladies when I come back because I've been shaking like hell all morning?' "
The agreed facts note that obviously Ms Ho is "requesting additional payment for additional work". The facts noted the response of Ms Nguyen, namely: "I am the same, my heart keeps pounding all morning too. You go up there and find out and report back to me."
When the appellant was arrested on 31 October 2016, she was offered the opportunity to give an explanation of her involvement in the events, but declined so to do.

Appellant's Case on Sentence

The appellant did not give evidence, however some documentary material about her was tendered.
She was born in October 1978 and, accordingly, was almost 35 at the time of the offences. She came to Australia as a refugee with her family in 1992.
A medical report was tendered which contained a history of the appellant's background, which it seems the sentencing Judge largely accepted. This report was from Dr Ben Teoh, a consultant psychiatrist and physician in addiction medicine. The report was dated November 2014.
From that report, it is apparent that the appellant claimed to have an addiction to gambling. Unsurprisingly, such addiction had led to her experiencing financial difficulties. She claimed to Dr Teoh that she was in debt for more than $300,000. She also claimed that she had been barred from the casino in 2013. She told Dr Teoh that she expected to receive $5,000 from her participation in the offence.
She gave a history that she had had a number of miscarriages over the years and had attempted several IVF programs without success. She said that in June 2013 she was about 16 weeks pregnant, but that it had become necessary to terminate that pregnancy. She found the termination stressful and experienced intense grief followed by significant depression.
She informed Dr Teoh that she was caring for her somewhat disabled mother who had had a seizure in November 2014.
She described her upbringing in a family in which her parents were separated. She described one previous marriage and recorded that her current marriage had taken place in 2009.
She said that she had used methamphetamine for a period, but had stopped using it about the time of the termination of pregnancy in June 2013. She described her husband, who had been ignorant of her gambling addiction and financial woes, as being supportive.
Dr Teoh concluded that the appellant's presentation was consistent with a diagnosis of major depression and pathological gambling.
He said that she had expressed remorse for her behaviour and told him that she was acting foolishly and impulsively because of her financial difficulties and her depressed mood at the time of the offence.
Dr Teoh had been undertaking some treatment of the appellant. He described that in this way: "Ms Nguyen has been attending treatment with me regularly. She has been compliant with her treatment with psychotherapy. She has developed good insight into her condition. She is less impulsive, and she has been able to manage her compulsive gambling. Her prognosis is good provided she continues to attend treatment. … I recommend that she should attend counselling, fortnightly to monthly for at least another 12 months to deal with her major depression and pathological gambling."
Other reports from medical experts described the fact of her then current pregnancy which had been achieved through an IVF procedure involving embryo transfer. The obstetric expert, Dr Ngo, expressed the opinion that, in effect, her pregnancy was properly regarded as a high-risk one.
He reported on 2 March 2015 that: "Based on her poor obstetric history, she will need to be closely monitored at least fortnightly, and the baby will be delivered by caesarean section at 38 to 39 weeks gestation because of her history."
The only other document before the Court was a short, and somewhat unhelpful, letter to the Court from the appellant.
It is worth repeating in full to demonstrate that it contained little, if any, factual material of relevance to the sentencing exercise. It read: "I, Thi Kim Ngan Nguyen, came to Australia with my family on 1 June 1990 as a 12 year old refugee. I have three brothers and I am the youngest. My parents separated in 1992. I purchased a home in October 2009 with my husband, Peter Tannous. And because my mother is not well, suffering from seizures and the early stages of dementia, she also lives with us as well as my cousin. My father sometimes sleeps at my house when he is not feeling well. He suffers from asthma, high blood pressure and diabetes. I married Peter Tannous on 19 December 2009. He comes from a large family, and has 13 brothers and sisters, as well as 53 nephews, nieces and grand-nephews and nieces. My mother-in-law is 88 years old and currently lives with her eldest son George and his wife Violette, as well as her youngest daughter Mary at Westmead NSW. We visit them as often as we can, and mostly look forward to seeing her on special occasions like Christmas Day, Easter and Mother's Day, because that's the only time we get to see all the nephews and nieces together."
Some matters arising from the content of this statement may be noted: 1. it was not put in a form which was sworn; 2. she does not adopt as correct the history which she gave to Dr Teoh; 3. she gives no account or explanation of what caused her to be involved in the commission of the offences, nor of any of the circumstances in the period leading up to those offences.
The statement merited very little, if any weight.

Remarks on Sentence

At the same time as he sentenced the appellant, the sentencing Judge also sentenced Ms Hoang and Xiao. Ms Hoang was a courier involved in a separate drug importation to that of Xiao, and in which the appellant had no role to play. So far as the appellant was concerned, the learned sentencing Judge summarised the facts and described the circumstances leading up to her arrest. I have set those out earlier.
His Honour made a finding about the role which the appellant played in the conspiracy. He said that he was satisfied that the appellant was higher than Ho in the hierarchy of the criminal syndicate and closer to Huynh who, he was satisfied, was the senior person in the syndicate to the extent that it had been discovered. He then said this: "Ms Huynh gives directions and approvals to both Ms Nguyen and Ms Ho. Others go to see her. Ms Nguyen, the offender, reports back to Ms Huynh regarding progress at the airport. Ms Nguyen gives directions to Ms Ho as well as analysing the circumstances and providing advice. Her role is clearly an advisory role to Ms Huynh."
His Honour concluded that the appellant's contribution involved her, perhaps in a limited fashion but nevertheless using her judgment, intelligence and advice to contribute to the criminal activity. The sentencing Judge found that he was satisfied that Ms Nguyen had no independent decision-making role and derived no profit.
He turned to the appellant's personal circumstances and noted that she had no prior convictions, which he took into account. He noted the fact of her pregnancy and the stage which it had reached. He noted that the expected confinement date was 4 September 2015 and noted the appellant's earlier difficulties with previous pregnancies. He also noted that the appellant was a person of previous good character, who had no criminal convictions.
The sentencing Judge noted the submissions by counsel for the appellant with respect to her pregnancy and summarised them in this way: "[Counsel] realistically acknowledges that his client is most likely to receive a full time custodial sentence. His submissions were focussed on my delaying the commencement of that sentence until after she has given birth."
His Honour noted that the Crown had tendered material which described the extent to which Justice Health could provide medical and health services for pregnant offenders.
The sentencing Judge noted the contents of the report of Dr Teoh and, in particular, noted as he was entitled to do, that the appellant had not given any account from the witness boxes of the factual history which had been provided to Dr Teoh. He then said this: "Again, in respect of Ms Nguyen … she has not given evidence in the witness box so I do not have a verified account of her circumstances. I say that, not to doubt her reaction to the termination of the pregnancy, which I might add was followed by a funeral she arranged, but because of the importance of any diagnosed causal relationship between that and her offending behaviour."
His Honour then turned to consider the appropriate sentence for the appellant. He said this: "Ms Nguyen was involved for almost a month in the criminal activity which resulted in the conviction of conspiracy and, as I have found, contributed her intelligence, her judgment and her advice. The weight of the drug in her case was also just over 4kgs, more than three times the commercial quantity and a kilogram short of a large commercial quantity. In her case, so far as her place in the notional hierarchy is concerned, I have indicated where that is - it is higher than Mr Xiao and Ms Hoang."
His Honour indicated that he regarded an appropriate sentence as one of 8 years imprisonment. From that, he found that it was appropriate to deduct 25% for her early plea of guilty and concluded that a sentence of 6 years imprisonment was appropriate.
His Honour found special circumstances because of the fact that it was Ms Nguyen's first time in custody, she needed treatment in the community for her psychiatric conditions including her gambling addiction, and also that she would serve custody harder because of her mental health issues. He also took into account the fact that there would be a young baby in the community outside of her custodial circumstances.
His Honour reduced the statutory percentage of 75% to 55% and fixed a non‑parole period of 3 years and 4 months. He acceded to counsel's submission that the commencement of the appellant's sentence should be deferred until after the birth of her child.
In so doing he concluded that in all of the circumstances, her particular pregnancy and her case would be best managed in the community by her own doctor. Accordingly, the final imposition of sentence was stood over to enable appropriate obstetric monitoring to take place. The sentence was formally imposed on 30 October 2015, but to commence on 15 October 2015.

Other Offenders

Xiao, a 63 year old man, also of previous good character, who was the courier, was sentenced to a total of 4½ years. The non-parole period was 2½ years.
Huynh was sentenced in the District Court at Parramatta on 12 February 2016 by Armitage DCJ. His Honour had available to him the sentences which were imposed by Cogswell SC DCJ, to which I have referred. Huynh also pleaded guilty and was given a 25% deduction with respect to that plea.
Armitage DCJ indicated a sentence for the conspiracy to supply the 4.035kgs of pseudoephedrine as commencing with a period of 10 years' imprisonment being reduced by 25% with a resulting sentence of 7½ years' imprisonment with a non-parole period of 4½ years.
Because Huynh was also charged with a second count of possessing a pistol, his Honour ultimately imposed an aggregate sentence taking account of both matters.
Ho was dealt with on 11 August 2016 by Lakatos SC DCJ. She pleaded not guilty to the two offences with which the appellant was involved. She was convicted of the two offences after a trial by jury. Accordingly, she received no discount for a plea of guilty as the other participants in the criminal syndicate had.
Lakatos SC DCJ categorised Ms Ho's role as being "relevantly on par with the co-offender Nguyen, perhaps slightly below her". He also found that their subjective circumstances were substantially similar. He imposed a sentence of 7 years of which the non-parole period was 4 years and 6 months. Ms Ho was also found guilty of the offence to which the appellant pleaded guilty and which was dealt with on a Form 1. In Ms Ho's case, a separate sentence was imposed which was ordered to be served wholly concurrently with the sentence on the principal offence.

Application for Leave to Appeal

The Application for Leave to Appeal which was filed on 11 November 2016, contained the following grounds: 1. Ground 1 - the sentencing Court erred in failing to have proper regard to the relationship between the appellant's emotional stress and the commission of the offences; 2. Ground 2 - the sentencing Court erred in failing to have proper regard to the relationship between the appellant's diagnosed mental health conditions and the commission of the offences; 3. Ground 3 - the sentence is manifestly excessive.

Crown Identifies a Possible Material Error

The submissions filed by the Crown identified another entirely separate matter which the Crown acknowledged might possibly, but ought not, be regarded by this Court as a material error sufficient to warrant the Court quashing the sentence which was imposed and proceeding to re-sentence the appellant.
In oral submissions, counsel for the appellant submitted that the Court ought not to find error in the respect identified by the Crown. He specifically noted that the appellant did not rely on the possible error as a ground to support the orders sought on the appeal.
The possible material error concerned a reference by the sentencing Judge to a standard non-parole period, when none was applicable to the conspiracy offence to which the appellant pleaded guilty. The Crown accepted that its representative had erroneously informed the Court that the standard non-parole period was applicable. This statement was not corrected by counsel for the appellant in the District Court.
It will be appropriate to address the possible error, and deal with it in due course.

Grounds 1 and 2

It is appropriate to deal with these grounds together. The appellant submitted that the Court did not take into account her emotional distress immediately preceding the commission of the offences as being a causative element in her criminal conduct. She submitted that it was the close proximity of the death of her unborn child in June 2013, her emotional reaction to it and the funeral which she organised, and the commencement of the offence in July 2013, that demonstrated an important causal factor to be taken account.
The appellant also submitted that the sentencing Judge erred in failing to find a causal link between that emotional stress and the occurrence of the offences, and a causal link between the appellant's diagnosed mental health conditions of major depression and gambling addiction at the time of the commission of the offences and her offending behaviour.
In his written submissions in this Court, counsel for the appellant criticised the sentencing Judge for declining to find a causal link between the appellant's emotional stress and her mental illness and the commission of the offence on the basis that the appellant did not give evidence and relied on the history given to Dr Teoh. In oral submissions, counsel said that a causal link was the only finding available to the sentencing Judge.
The conclusion of the sentencing Judge about the unreliability of the appellant's history given to Dr Teoh, in the absence of any sworn evidence from the appellant, and in light of the contents of the statement of the appellant tendered to the Court, was, in my view, an entirely appropriate one. This Court has said on many occasions that sentencing Judges are entitled to give little or no weight to histories given to medical experts in circumstances where there is no sworn evidence in support of those histories. This is yet another example of such an occurrence. The criticism of the sentencing Judge is without foundation and is misplaced.
As well, the submissions of counsel for the appellant to the sentencing Judge on this causal link were underdeveloped. He referred to the appellant's emotional and mental state and the commission of the offence in the context of a submission dealing with s 11 of the Criminal Procedure Act as a mechanism for delaying the imposition of a sentence. In so doing, he eschewed a causal connection with any mental illness of the appellant but submitted there was "a real connection" between the termination of the appellant's pregnancy and the offence. Counsel put this further submission: "I've indicated motivation to commit the offence. … There is a direct nexus between her loss of child, her gambling, her inability to cope with those traumas. … they are matters that I would [ask] your Honour to take into account in regards to the motivation."
This was hardly a persuasive submission in the face of a conceded financial benefit in undertaking the crime. The assertion of a "direct nexus" was unsupported in the submission. It amounted to nothing more than an "ipse dixit". The sentencing Judge correctly dismissed it.
But, of greater importance, as it seems to me, is that the report of Dr Teoh himself does not opine that there is any direct causal connection between the emotional stress and mental illness of the appellant and the commission of the offence. The report of Dr Teoh described circumstances which would explain the commission of the offence, namely that the appellant was in serious financial difficulties, had debt collectors knocking at her door and needed to account for her gambling debts. This is a far more likely and probable cause for the appellant's behaviour. There was simply no evidence available for the sentencing Judge to draw a conclusion that the appellant's mental state and emotional stress had anything to do with her commission of the offences. All that the sentencing Judge had was a coincidence of timing. Without more, this was an insufficient basis for the causal finding urged by the appellant. On that basis I would not be prepared to uphold either of these grounds.
However, it seems from the submissions of the appellant's counsel that he also sought to rely upon the fact that the sentencing Judge did not take into account, and give proper weight, in accordance with authorities such as R v Israil [2002] NSWCCA 255, to the more general implications of mental health on sentencing. I am unpersuaded by these submissions. The sentencing Judge clearly knew of and took into account the appellant's mental health issues. He said so. There is no reason to conclude that he ignored those factors.
I am unpersuaded that Grounds 1 and 2 have been made out.

Ground 3

This is a ground of manifest excess.
It is not sufficient for the appellant to demonstrate that the sentence was severe. The appellant must demonstrate that the sentence was so unreasonable as would constitute an error of law: House v The King [1936] HCA 40; (1936) 55 CLR 499. Putting it differently, for the appellant to succeed on this ground, she is required to demonstrate that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6] per Gleeson CJ and Hayne J. It is also to be noted that there is not a single correct sentence in any one matter, because varying opinions resulting from an evaluative exercise are only to be expected: Vuni v The Queen [2006] NSWCCA 171 at [33] per Hoeben J (as the Chief Judge then was).
In support of this proposition the appellant submitted that having regard to the objective gravity of the offence and the appellant's limited role in the conspiracy, her diagnosed mental health illness, the appellant's age, previous good character, low moral culpability and hardship of repeated separation from her infant, together with prospects of rehabilitation, the Court would be persuaded that the sentence imposed was manifestly excessive.
The appellant did not call attention to any other cases of comparable offences. She merely submitted by reference to those identified factors that the Court ought conclude that the sentence fell outside the legitimate sentencing discretion of the sentencing Judge.
I am quite unable so to do. The appellant was involved, and not at a low level, in a syndicate which was engaged in the supply of over 4kgs of pseudoephedrine which was a quantity well above the threshold for a commercial quantity of the drug. The offence was a serious one. It carried a maximum penalty of 25 years imprisonment, which is one statutory guidepost to be considered. General deterrence with respect to people who commit such crimes is of significant importance, and has always been so regarded.
Even giving full weight to all of the subjective circumstances which the appellant had in her favour, I am wholly unpersuaded that the sentence was manifestly excessive.
I would not uphold this ground of appeal.

Crown Identified Possible Error

In his Remarks on Sentence, on 20 March 2015, the sentencing Judge listed the offences committed by each of the offenders standing for sentence. He commenced with Xiao. He noted that Xiao had pleaded guilty to an offence against s 25(2) of the DMT Act. He then said this: "Parliament regards that crime as so serious that it has fixed a maximum of 20 years' imprisonment to the offence and, in addition, has fixed a standard non-parole period of 10 years."
His Honour then turned to deal with Hoang and said this: "Again, that is an offence against s 25 of the Drug Misuse and Trafficking Act and carries the same maximum penalty and standard non-parole period."
His Honour then turned to deal with Nguyen. It is to be recalled that the first two offenders, to which reference has just been made, were charged with the substantive offence of supply. Nguyen was charged with the offence of conspiracy. Section 26 of the DMT Act provides that where a person conspires with another person to commence an offence against the DMT Act, they are liable to "… the same punishment, pecuniary penalties and forfeiture as the person would be if the person had committed [the substantive offence]".
The penalty imposed by s 33 of the DMT Act for conspiring to commit an offence against s 25(2) of the DMT Act is described by s 33(2) as "imprisonment for 20 years or a fine of [$385,000] or both". Although an offence contrary to s 25(2) of the DMT Act is one specified in the Standard Non-Parole Period Table which forms part of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act, a conspiracy to commit such an offence is not so specified. Accordingly, a standard non-parole period does not apply to the offence to which Nguyen pleaded guilty.
The sentencing Judge said this: "Ms … Nguyen has pleaded guilty to conspiracy to supply a prohibited drug. In her case, the amount is just over 4kgs of pseudoephedrine. That, too, is an offence against the same legislation and carries the same maximum penalty and standard non-parole period."
His Honour then moved on to deal with the circumstances of the offence, to which reference has earlier been made. His Honour did not again refer to the standard non-parole period in respect of the appellant, Nguyen, nor did he refer to it with respect to either of the other two offenders who were being sentenced in the same judgment.
It cannot be doubted that the Judge erred in his reference to the standard non-parole period as being applicable to the appellant.
The learned sentencing Judge was, by giving that reference to the existence of the standard non-parole period, merely repeating what he was told by the Crown lawyer during the sentencing proceedings on 13 March 2015. When he was told that a standard non-parole period was applicable, erroneously, counsel for the appellant did not correct that statement.
It is a matter of some regret that lawyers, apparently experienced in the field of criminal law and no doubt familiar with the applicable sentences, would either lead the sentencing Judge into error or, alternatively, permit the sentencing Judge to be led into error. It is the responsibility of counsel and lawyers appearing in sentencing proceedings to ensure that correct information, particularly as to applicable sentences, is provided to the sentencing Judge.
This Court has had occasion in a number of matters to consider what consequences flow from an erroneous statement of a kind made by the sentencing Judge here. In McGrath v The Queen [2010] NSWCCA 48, the sentencing Judge had referred to the existence of standard non-parole periods which were only effective from a time after the commission of the requisite offences. The sentencing Judge having referred to the amendments, had noted that the concept had "no direct bearing" upon the sentencing of the offender.
However, the sentencing Judge went on to say that it would be wrong for the Court to: "… ignore the clear legislative intent evinced … that offences of this nature should be regarded as meriting the most condign punishment. … I do not think it is possible to exclude entirely the effect of those guidelines, even on sentences for crimes which were committed shortly before the operation of the section itself, but I have placed no great reliance upon the standard non-parole periods prescribed which I record simply for the purpose of completeness …"
Macfarlan JA, in this Court, found that the sentencing Judge was "… to some extent influenced by the standard non-parole periods prescribed after the dates of the offences …". Johnson J, referring to the portions of the Remarks which I have earlier set out, concluded at [60] that the sentencing Judge "… had (at least) indirect regard to the existence of the standard non-parole period for these offences" thereby falling into error. His Honour noted that if the sentencing Judge had merely concluded his reference to the existence of the amendments and the conclusion that the standard non-parole period had no direct bearing upon the sentencing of the appellant, there may not have been an error.
The appeal was upheld because the Court was satisfied that error had been found.
In BP v the Queen [2010] NSWCCA 159, the appellant, who was a juvenile at the time of the commission of the offences, was the subject of remarks at the time of sentencing from the sentencing Judge about the standard non-parole period. His Honour said: "In this case, there is a standard non-parole period which applies for cases that fall within the middle range of objective seriousness for the offence … Section 54D(3) of the Crimes (Sentencing Procedure) Act provides that the standard non-parole period does not apply if the offender is under the age of 18 at the time of the offence."
His Honour went on to note that it was unnecessary for him to resolve a dispute as to whether s 54D(3) applied having regard to the time of its introduction because, his Honour said: "It is not a matter that must be resolved, because in my view this offence is not one that falls within the middle range of objective seriousness for the offence in any case."
However, the sentencing Judge went on to say: "I further note that whether s 54D(3) of the Crimes (Sentencing Procedure) Act applies or not, the standard non-parole period still remains as a guide to the sort of sentence that should be applied."
This Court (Johnson J (with whom Hodgson JA and Rothman J agreed)) found that the standard non-parole provisions had no application and the appropriate course for the sentencing Judge was to disregard those provisions entirely.
Johnson J concluded that the Remarks of the sentencing Judge demonstrated that he had taken the standard non-parole period into account "… as a guide". Johnson J regarded such "an oblique use" of those provisions as demonstrating error.
In HJ v R [2014] NSWCCA 21, the sentencing Judge inappropriately referred to a standard non-parole period. She did so at the commencement of her Remarks on Sentence where she recorded the nature of the offences, when they were committed, and the fact that the aggravating feature in respect of each case was that the offender was in company. The sentencing Judge was sentencing two offenders, one an adult offender, and the other who was a juvenile at the relevant time. The standard non-parole period did not apply to the juvenile by reason of that fact.
The sentencing Judge said: "The maximum available penalty is 20 years' imprisonment and a standard non-parole period of 5 years applies. Each offender entered a plea of guilty at the earliest reasonable opportunity and is entitled to a 25% discount for the plea."
That was the only occasion when her Honour made reference to the standard non-parole period. Her Honour went on then to consider, in a conventional way, the matters which she took into account for the purpose of sentencing of both of the offenders.
A ground of appeal on behalf of the juvenile was that the learned sentencing Judge erred in taking into account (because it was irrelevant) the existence of the standard non-parole period.
In that judgment, with which Hoeben CJ at CL and R S Hulme AJ agreed, I wrote: "49. The only reference to the standard non-parole period was made at the very start of her Honour's Remarks on Sentencing, and there was no further reference to the standard non-parole period at any later time, including how it would be used consistently with the authorities. 50 The reference to the standard non-parole period upon which the applicant relies was a generic reference when the sentencing Judge was setting out the nature of the offences, when they occurred and the maximum penalty applicable to the offences. 51 Her Honour's reference to the standard non-parole period was not made specifically in relation to the applicant. It is explicable in the context in which it was used, to being relevant to the co-offender. Her Honour's later references to the fact that the applicant was a juvenile at the time, and that she was bound to apply the provisions of the Children (Criminal Proceedings) Act when sentencing the applicant, all combine to satisfy me that such reference as her Honour made to the standard non-parole period was intended to relate to the co-offender and not to the applicant. 52 The absence of any further reference to the standard non-parole period and the proper use to be made of it, makes it plain to me that her Honour did not have any additional regard to it and did not take it into account when sentencing the applicant. 53 I am not satisfied that the reference relied upon by the applicant indicated any error on the part of the sentencing Judge."
In HJ, the issue was whether a mere reference to the standard non-parole period, in explicable circumstances, without any further reference indicating the Judge had "additional regard" to it, was sufficient to found error. No error was found.
In Potts v R [2017] NSWCCA 10, the issue again arose. In that case, the sentencing Judge had, at the commencement of the Remarks on Sentence, said: "The maximum penalty for [the] offence is 20 years' imprisonment and there is a standard non-parole period of 5 years."
In so doing, his Honour was repeating the information contained on a document handed up by the Crown. That information was erroneous because the offender who stood for sentence was being sentenced for an offence of attempting to commit and aggravated break, enter and steal. A standard non-parole period did not apply to such an offence of an attempt; it applied only to the substantive offence.
The question which fell for consideration was whether that mere reference to the standard non-parole period constituted error. The Crown in that case submitted that the Court of Criminal Appeal (Basten JA, Johnson and Button JJ) could not be "certain" that the error had had any effect on the sentence ultimately imposed by the sentencing Judge.
Button J referred to some other remarks of the sentencing Judge in which the sentencing Judge made a finding of the level of objective seriousness of the offence, as having "… the flavour of the application of the standard non-parole period". Button J also referred to the nature of the sentence as comprising a "stern one". These two factors suggested to him that the standard non-parole period may have played a role in the sentencing exercise by the sentencing Judge.
Ultimately, Button J was persuaded that adopting a cautious approach, the Court should accept that error had been established and proceed to resentencing the appellant.
Basten JA agreed with Button J, but reasoned to the same result slightly differently. His Honour said: "2. This was not a case of the judge turning over a red herring in order to identify and then discard it. Further, although it is sometimes said that a standard non-parole period does not "apply" to a case dealt with on a plea of guilty, it remains available as a relevant guidepost to be considered by the sentencing judge. In this case, the standard non-parole period did not "apply" in a stronger (legal) sense; it did not constitute a guidepost at all. Reference to it was equivalent to referring to a wrong statutory maximum term. 3. Once it is accepted that an extraneous factor was taken into account, it is necessary for the court to exercise its own independent discretion in determining the appropriate sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]."
Clearly his Honour was persuaded that the sentencing Judge had "taken into account" the standard non-parole period which his Honour found was an extraneous factor.
Johnson J, the third judge, reached a different conclusion concerning the outcome of the appeal on re-sentencing. However, he agreed with both Basten JA and Button J that error had been demonstrated and that resentencing was necessary.
It can be seen from these authorities that the mere reference to a standard non-parole period by itself, and without more, does not always carry with it a finding of material error leading to re-sentencing. What is necessary is for the Court to be persuaded that the sentencing Judge has either directly, indirectly or obliquely had regard to the erroneous factor of the standard non-parole period.
In this case, the Crown submitted that the Court would not find that the erroneous reference to the standard non-parole period had any effect on the sentence because it could not be satisfied that the sentencing Judge had in any way had regard to it and, accordingly, the Court would not uphold the appeal on this basis.
The Crown pointed to the following factors: 1. that there was only one reference to the existence of a standard non-parole period, which was made in the context of joint remarks involving two other co-offenders who were charged with substantive offences to which the standard non-parole period applied; 2. the reference to the standard non-parole period did not specify what that actual non-parole period was said to be by reference to a number of years; 3. at no stage in the Sentencing Remarks did the sentencing Judge indicate that he was taking the standard non-parole period into account in any way whatsoever; 4. the fact that the sentencing Judge did not make any finding in respect of the appellant to the effect that the offence fell within the mid-range or somewhere else in the appropriate range of offending was significant as indicating that he did not have any regard to the standard non-parole period; and 5. finally, the Crown submitted that the fact that the erroneous standard non-parole period was 10 years, whereas the non-parole period imposed was 3 years and 4 months, suggested strongly that the standard non-parole period had no effect whatsoever, and was not taken into account by the sentencing Judge.
The reference to the standard non-parole period was in words which were identical to the reference made to it by the sentencing Judge when referring to the offender Hoang and consistent with the reference to the co-offender Xiao. Although it was included when the sentencing Judge described the offence to which the appellant had pleaded guilty, it was part of an overall, standard phrase used by the sentencing Judge to refer to, erroneously, the offence which was the subject of the sentence.
It seems to me that the proper approach for this Court to take is in each matter to enquire into all of the facts and circumstances of the matter, the terms in which the standard non-parole period has been mentioned, erroneously, and to ask whether this Court is satisfied that the erroneous reference to the standard non-parole period had any effect upon the sentence pronounced. That effect does not have to be, but may be, a direct effect. The references by the sentencing Judge may indicate that it has been a significant matter as a guideline in the determination of the sentence which is imposed. A less than direct effect would also be sufficient, because an indirect or oblique effect on the sentence imposed would be sufficient to demonstrate a material error, justifying the Court setting aside the sentence.
Here, I am wholly unpersuaded that the demonstrated error had any effect whatsoever on the sentence imposed. His Honour's reference to it was in passing. It did not form any part of the reasoning which he applied when considering the particular facts, circumstances and matters. Nor, when he came to recite the basis upon which he was sentencing the appellant, did he have any regard, or make any mention of it.
The fact that counsel for the appellant did not suggest that the erroneous reference had any impact on, or influence on, the sentence imposed is also a significant matter to which this Court ought have regard when considering whether a material error has been demonstrated.
In summary, I have concluded that the sentencing Judge's reference to the standard non-parole period, whilst erroneous, was of no impact at all when he considered the sentence that was applied.
Accordingly, I would not be inclined to uphold the appeal by reference to this factor.

Orders

I propose the following orders: 1. Leave to appeal granted; 2. Appeal dismissed.
BEECH-JONES J: Save for one matter I agree with the judgment of Garling J.
The one matter of exception concerns the affirmative conclusion that no error of the kind stated in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504 has been shown because of the single reference by the sentencing Judge in his judgment to the standard non-parole period for the offence committed by the Applicant when no such period has been prescribed. This mistake was brought to the appellant's attention by the Crown in its written submissions. At the hearing of this application Counsel for the applicant expressly disclaimed any reliance on it. In those circumstances I prefer to express no view upon that matter other than to note that if it had been raised it would have had to have been addressed within the constraints of the statement in Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 at [42] that "when a judge acts upon wrong principle….. the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome" but that not "all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion" (see Sutton v R [2016] NSWCCA 249 at [28] to [39]). In the absence of any submissions from the parties directed to this issue I cannot take the matter further.
I agree with the orders proposed by Garling J.

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