Nguyen v The Queen [2010] VSCA 180

1 This is an appeal against sentence by Minh Duc Nguyen, who pleaded guilty to one count of trafficking in a large commercial quantity of heroin and one count of handling stolen goods. He was sentenced as follows:

Trafficking a drug of dependence - large commercial quantity

2 The appeal will be allowed and the appellant resentenced, for reasons which follow. There was no dispute on the plea about the factual basis upon which the appellant was to be sentenced. In the period August to December 2005 he was conducting a business of heroin trafficking. His counsel conceded on the plea that it was the appellant's own business. He had various suppliers of heroin, to one of whom we will refer later in these reasons, and a number of different customers to whom he sold the drug. In the period covered by the presentment, a period of a little over three months at the end of 2005, the appellant trafficked 2.765 kilograms of heroin to his regular customers, in 37 separate transactions. The heroin was sold in multiples of one ounce.

3 As the sentencing judge noted in his reasons, the value of the heroin in the appellant's hands was something like $1 million. Its value would have been considerably greater when sold at street level. The large commercial quantity of heroin in a mixture is one kilogram. The quantity trafficked by the appellant was therefore almost three times the amount fixed by Parliament as the threshold for this offence. It is an offence which carries a maximum penalty of life imprisonment.

4 Defence counsel on the plea accepted that these were serious matters. Particular reliance was placed, however, on the report of a psychologist prepared a few days before the plea hearing. By that time the appellant had been in custody for almost two years. The sentencing judge accepted the account of the appellant's history contained in the report, as follows. He had arrived in Australia in 1981 as a refugee with virtually nothing. Life had been very difficult for him during this period. His single income as a manufacturing process worker was insufficient to support his family, so he took on part-time work as a casual machinist in a clothing factory. He was the sole income earner for the family.

5 In June 2001 there was an armed robbery at the family home. In his attempts to resist the intruders the appellant suffered multiple injuries, including a gunshot wound to his upper left thigh and stab wounds to his face, hand, chest and upper shoulder. The report continued:

As a result of the event, Mr Nguyen's behaviour became increasingly nervous, and socially withdrawn. Tension and anxiety have also manifested as indirectly related symptoms. He has an ongoing sleep disturbance both in terms of falling asleep and remaining asleep and admitted that every night after the incident, he must have "a few drinks" before he could go to bed. He admitted that his alcohol drinking habit affected his asthma. His poor memory and lack of concentration have also directly affected his daily tasks. As a result, he became severely depressed. He stated that there have been stages when he becomes so depressed that he has experienced suicidal thought. Due to his language difficulties, he was unable to communicate with anyone about his psychological problems.

In relation to his physical condition, Mr Nguyen has been diagnosed with gout by the prison's doctor, both of his feet are swollen and he cannot walk properly without support of the crutches.

Mr Nguyen's initial involvement with gambling was purely due to boredom. He spent a considerable amount of time at the local Tabaret and Crown Casino. He stated that he was aware that he had problems controlling his gambling habit but was unable to resolve his addiction to gambling.

He admitted that he frequently lost money when gambling. In order to recoup his losses he increased his gambling. He borrowed money from friends and resorted to antisocial behaviour to obtain fund[s].

I previously saw Mr Duc Minh Nguyen at Port Phillip Prison in April 2007 and observed that he presented himself as severely depressed. He complained of symptoms of depression. He also complained of trouble sleeping, loss of energy and lack of motivation. He reported that he had not been eating or sleeping properly. His headaches had also intensified and he presented with a melancholic expression and appeared to be quite depressed.

Clinical assessment confirmed that Mr Duc Minh Nguyen is suffering from symptoms of depression and pathological gambling and I find that they are consistent with the guidelines of the Diagnosis and Statistical Manual of Mental Disorders, Fourth Edition ... which is the most up to date and current edition of these schedules.

Mr Nguyen described symptoms of depressive disorder including sleeping problems associated with mood swings, poor appetite, highly emotional and suggested self-despair. He acknowledged [that] he was adversely affected after the tragic event [that] occurred at his family home in June 2001 [for] which he received support counselling for an extensive period. It would appear that his condition relapsed and instead of resolving his emotional problem professionally, he involved himself with gambling. Clinically, Mr Nguyen retreated into the unrealistic world created by these gaming venues as the environment offered him ways to escape reality. In particular, the urge to gamble and gambling activities often increased during periods of stress or depression.

6 The appellant was 50 years old at the time of sentencing. He had prior convictions from 1994 and 1995 but the sentencing judge said, rightly in our view, that they were of no real significance in the circumstances. The defence submission on the plea drew attention to the following matters, and we take each of these into account in the re-sentencing task which now must be carried out:

• prison had been difficult and onerous for the appellant because he had become severely depressed;

• he had a close relationship with his three children so the separation from them had had an enormous impact on him;

• there was no evidence of any great enrichment; and

• he had made attempts to rehabilitate himself in custody.

7 In argument this morning counsel for the appellant supplied to the Court some up-to-date material from a worker at Fulham Correctional Centre, which contained the following:

Minh has been seeing me for support and counselling nearly every week for a year now. In classes, Minh is a respectful and very helpful participant. He is also a role model for inmates in classes. During the counselling sessions with me, Minh often tells me that looking back at his past he now feels very bad about the whole situation. He said that he desperately wants to change his life and that he wishes he could turn the clock back. He misses his family, especially his children who are growing up so fast. They really need him at this time of their life! He often feels so sad and has found life very hard.

8 This satisfies us that, whatever may have been the correct view of the appellant's remorse on the date of the plea, he is genuinely remorseful for his offending conduct and wants to change his life. We are also satisfied that in those circumstances the efforts he has made to rehabilitate himself in custody give him reasonable prospects for rehabilitation. That is, as this Court has often said, a matter of very significant public interest. This offending having occurred, the public interest will very much be served by the enhanced prospect of this man never offending again.

Ground 1 - failure to accord any or sufficient weight to the appellant's depressive disorder

9 Ground 1 contends that the judge erred in failing to accord any or sufficient weight to the appellant's depressive order. Although the judge said that he accepted the history which the appellant had given to the psychologist, his Honour made no reference in his reasons to the unchallenged evidence that the appellant had suffered from depression before the period of offending, and was suffering from serious depression while in custody.

10 The Crown in its submission conceded that the absence of any reference by the judge to the depressive condition indicated specific error. In our view, this concession was correctly made. On the uncontested evidence, the judge was obliged to consider - on the authority of R v Tsiaras,[1] by then an authority which had stood for ten years - whether the depressive condition which existed at the date of sentencing might mean that the sentence of imprisonment to be imposed would weigh more heavily on the appellant than it would on a person in normal health.

11 Because of the concession (which we accept) on this ground, it is not necessary to consider either of the other grounds.

12 The question for consideration in view of the error is whether the Court thinks that a different sentence should have been passed.[2] In our view, for reasons which follow, there should have been a different sentence, and accordingly the appeal will be allowed.

13 As noted earlier, the offence of trafficking in a large commercial quantity of a drug of dependence carries a maximum penalty of life imprisonment. As the sentencing judge pointed out to defence counsel, this offence had been created by an amendment to the Drugs Poisons and Controlled Substances Act 1981 (Vic) in 2001. That amendment came into force on 1 January 2002. Until then there had been only two quantitative levels of trafficking, as follows: trafficking in not less than a commercial quantity, carrying a maximum of 25 years' imprisonment; and trafficking in less than a commercial quantity, carrying a maximum of 15 years' imprisonment.

14 In introducing the amendments, the Attorney-General said:

[I]t has become apparent that the current regime for drug trafficking and cultivation offences is inadequate. Because of the changing nature of the drug trade, new offences are required to provide higher penalties for larger quantities of drugs and to close loopholes that exist for those who trade in a range of drugs. ...

The new offence of trafficking in a large commercial quantity will attack the Mr Bigs of the drug trade, who operate at the top of the manufacturing and distribution hierarchy and who make large profits from trafficking in drugs. It is not directed at drug addicts who peddle drugs in order to obtain money to feed their own drug addiction. ...

The new maximum penalty of life imprisonment reflects the community's abhorrence of large-scale drug trafficking and cultivation and will warn potential offenders of the price they could pay for engaging in this illicit trade.[3]

15 The sentencing judge rightly took care to ensure that defence counsel was aware of the new sentencing regime. His Honour sought submissions as to what significance the new offence, and the new maximum, had for the sentencing of this appellant. Defence counsel referred his Honour to the decision of this Court in R v Sibic,[4] in which the two appellants were each sentenced for trafficking in a large commercial quantity of a drug of dependence, one appellant to nine years' imprisonment, and the other to eight years. In that case Redlich JA referred to the decisions in R v Duncan[5] and R v D'Aloia,[6] which involved co-offenders both sentenced for trafficking in a large commercial quantity of a drug of dependence. In Duncan[7] the applicant was sentenced to eight years' imprisonment, a sentence which this Court said could 'only be regarded as merciful'.[8] In D'Aloia,[9] the applicant, who operated at a higher level in the distribution chain than his co-offender, was sentenced to nine years' imprisonment, a sentence said by this Court to be 'well within the range'.[10]

16 Recently this Court dismissed a sentence appeal where the offender had been sentenced on two separate counts of trafficking in a large commercial quantity of a drug of dependence.[11] The first offence - which is the relevant one for this purpose - attracted a sentence of nine years' imprisonment. That was, like the present case, a Giretti[12] count of carrying on a trafficking business. It had been agreed that the quantity trafficked placed the offence in the middle level range. There was no challenge to that sentence of nine years.

17 But for a most important matter raised by senior counsel for the Crown on the hearing of this appeal, we would not have interfered with the head sentence. In our view, the sentence of nine years which this judge imposed was entirely appropriate, taking full account of the matters available in mitigation. (We make these remarks leaving aside the issue of parity, to which we will return.)

18 The appellant was the person who ran this trafficking business. While the prosecution did not lead evidence of any great enrichment, the admitted fact was that he had established and conducted a sustained business of drug trafficking over three months. This was precisely the kind of conduct at which, as can be seen from the Attorney-General's remarks, the new offence was directed. It follows that we do not agree with the Crown's submission that the head sentence imposed by this judge was 'out of kilter' with current sentencing practices. On the contrary, it was a sentence commonly imposed, as the earlier authorities demonstrate.

19 The larger question raised by the Crown's submission is whether current sentencing practices for this offence are 'out of kilter' with the maximum penalty of life imprisonment. The Crown submission is that they are. That is a matter of the first importance but, as we have said on other such occasions, it is not a matter upon which it is appropriate for this Court to express a view until the Director's submission to that end is supported by proper material and a fully developed argument, as occurred recently in Winch v The Queen.[13]

20 The non-parole period, in our view, raised different questions, in view of the serious mental illness from which the appellant was suffering at the date of sentencing. We think, leaving aside the question of parity, that a shorter non-parole period should have been imposed.

21 We turn to consider the question of parity which, in view of what we have said, can be seen to be the decisive matter in the appeal. Acting in accordance with the highest ethical standards, senior counsel for the Crown at the opening of the appeal hearing drew to our attention the fact that one of the appellant's co-offenders was sentenced by a different judge on 5 November 2008, more than a year after the appellant was sentenced.[14] The co-offender was sentenced, like the appellant, for trafficking in not less than a large commercial quantity of heroin, also at the end of 2005.

22 The Crown's submission on that occasion, which the judge accepted, was that that co-offender's criminality was greater than the appellant's. The quantity of heroin was comparable, being of the order of two and a half kilograms. Properly, counsel for the Crown on this appeal adheres to the position adopted by the Crown on that plea. There might well have been scope for debate about whether that was the correct characterisation of the relative criminality of the two but, in the circumstances, that was not pursued - rightly, in our view.

23 In sentencing the co-offender, the judge appears to have acted on a mistake as to the maximum applicable to the offence of trafficking in a large commercial quantity. That was a mistake which operated to the advantage of the co-offender and, because of parity, it operates to the advantage of this appellant. The co-offender was sentenced on the same offence to a term of imprisonment of eight and a half years, with a minimum of five. Like the appellant, that co-offender had had, so his Honour recorded, to deal with 'a severe disability whilst in prison'.

24 The co-offender, as his Honour noted, had a prior conviction which this appellant did not have. With respect, it is difficult to understand how a lighter sentence could have been imposed on the co-offender than on the appellant, given that prior conviction and the acceptance of the submission that his criminality was greater than that of the appellant. There do not appear to be any other differentiating circumstances which would explain a lesser sentence. We note also that this appellant's plea was early and the plea in that case was late.

25 As the High Court and this Court have repeatedly said,[15] a proper concern for relativity of sentencing between co-offenders is one of the fundamental requirements of the rule of law and one of the conditions of just punishment. In resentencing the appellant we are therefore bound to ensure that there is an appropriate differential between the appellant and the co-offender, given that the appellant's criminality was accepted as being less and that he had no prior conviction for trafficking. It is also necessary to take proper account of the mental illness from which he has suffered (though counsel was able to indicate that the severity of that condition has been somewhat reduced).

26 In our view, the appropriate sentence is as follows. On the count of trafficking in a large commercial quantity of heroin, seven and a half years' imprisonment. On the count of receiving stolen goods, three months' imprisonment. The total effective sentence will be seven years and six months' imprisonment and we would fix a non-parole period of four years and eight months. We are conscious in fixing that non-parole period that, since the appellant has already served 1664 days, he may be almost eligible for parole.

1. Appeal allowed.
2. The sentence of imprisonment imposed below is quashed and in lieu thereof the appellant is sentenced as follows:

The total effective sentence is seven and a half years' imprisonment. A non-parole period of four years and eight months is fixed.

1. All other ancillary orders of Judge Hart made 20 August 2007 are confirmed.

It is declared that the period of 1664 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

[1] [1996] VicRp 26; [1996] 1 VR 398. See now R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[2] Crimes Act 1958 (Vic) s 568(4).

[3] Victoria, Parliamentary Debates, Legislative Assembly, 16 August 2001, 28-9 (Rob Hulls, Attorney-General).

[4] [2006] VSCA 296.

[5] [2006] VSCA 239 ('Duncan').

[6] [2006] VSCA 237 ('D'Aloia').

[7] [2006] VSCA 239.

[9] [2006] VSCA 237.

[11] Vasic v The Queen [2010] VSCA 89.

[12] R v Giretti (1986) 24 A Crim R 112.

[13] [2010] VSCA 141.

[14] R v Phu Dinh, Julie Le, Van Le & Tri Ton [2008] VCC 1771.

[15] See, for example, Teng v R, Lam v R, Tan v R & Wong v R [2009] VSCA 148; (2009) 22 VR 706, 723.