Pham v R

Findings of the sentencing judge

1. His Honour's findings included: The objective seriousness of the drug supply offence was "just below the midrange" and of the weapon offence was "towards, but not at, the bottom of the range". Each offence was additionally aggravated by the applicant having been on parole. The criminal history meant the applicant was not entitled to the leniency that could be given to a first offender. Prospects of rehabilitation were guarded. The applicant's pleas of guilty entitled him to a discount of 25%. The applicant's mental health issues meant that general deterrence was "not fully engaged" but that specific deterrence and protection of the community were "fully engaged". In relation to the latter, the judge observed that heroin which the applicant had been selling "is a terribly destructive drug". His Honour was not sure if the applicant was genuinely remorseful. The sentence could commence upon the expiry of the balance of parole of the earlier sentence, but the judge said he would, "as a deliberate act of leniency" commence it on the day of arrest, 19 June 2019. Special circumstances were found because the applicant was a non-English speaking inmate in a correctional context and there were presently harsh conditions of custody with prisoners not being able to receive visitors.

Ground 1 - error in relation to Form 1 procedure

1. The procedures for taking further offences into account are set out in Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act. Judges and practitioners are well aware of them but sometimes things can be overlooked in a busy court. In this case, everyone overlooked the requirement for the judge to ask the offender whether he wanted the court to take any further offences into account (s 33(1)). A court is authorised to take further offences into account if the offender admits guilt and indicates that they want them taken into account, providing the court considers it appropriate to do so (s 33(2)).
2. A problem arising from the failure to comply with the required procedure in this case is that there was an error in the Form 1 document. It listed two offences, one being the proceeds of crime offence and the other was said to be "Possess prohibited drug (3.65g methylamphetamine)". This led to a contention in this Court that the applicant "should have been entitled to expect that" the drug offence being taken into account was one of possession, not supply. It was for this reason the applicant contended he had been sentenced "on a false basis".
3. It appears to have been common ground that the drug offence everyone intended the judge to take into account was one of supply. That is for the following reasons: The "Agreed Facts on Sentence" document is short (6 paragraphs over 1.5 pages). It was signed at the foot of both pages by the applicant. It would be surprising if he did not notice that it included reference to the drug offence on the Form 1 being an offence of supply as it was prominently stated, twice. The Crown Sentence Summary included that one of the "Charges to be dealt with on a Form 1" was "Supply prohibited drug … (3.65g methylamphetamine)", with reference to the applicable statutory provision (s 25(1) of the Drug Misuse and Trafficking Act). While the Form 1 itself nominated the offence as one of "Possess prohibited drug", the Court Attendance Notice annexed to it was for the supply charge. The police charge reference ("Sequence 2") mentioned on the Form 1 corresponded with that on the Court Attendance Notice. The Crown's written submissions included a helpful table of the charges on the first page. It referred to the first offence on the Form 1 as one of supply. Further, it included a submission that the Form 1 offences, including the supply, supported an inference that the applicant was operating a business dealing and supplying drugs. Likewise, the written submissions by counsel for the applicant (who did not appear in this Court) included reference to the drug offence on the Form 1 being one of supplying 3.65g of methylamphetamine. This appeared on the first page and was repeated later under the heading, "Form 1 (attached to count 1)".
4. Curiously, the Form 1 appears to have been signed by the accused, but the date next to the signature is the date of the sentence hearing. If he in fact signed the document on that day it is difficult to understand how that occurred, given he was not physically in attendance; he appeared from gaol by way of audio-visual link. Without purporting to invoke any expertise in comparing handwriting, I observe that the signature on the agreed statement of facts appears somewhat different to the one on the Form 1.
5. There can be no doubt that there should be strict compliance with the statutory requirements for taking further offences into account. In Woodward v R [2017] NSWCCA 44 at [25], citing R v Felton [2002] NSWCCA 443; 135 A Crim R 328 at [3] and R v Brandt [2004] NSWCCA 3; 42 MVR 262 at [8], I observed that "it has been said that courts should be astute that they are complied with".
6. Nothing turned on the fact the judge in Woodward v R had neglected to comply with s 33(1) as the point was not taken in this Court. Something did turn on it in Ghalbouni v R [2020] NSWCCA 21 as there was a question as to whether the offender was in truth guilty of one of the Form 1 offences.
7. The Crown relied upon Kabir v R [2020] NSWCCA 139 to argue that this ground should be rejected. That case was concerned with the similar, but not identical, provisions of s 16BA of the Crimes Act 1914 (Cth). The offender asked that a further offence be taken into account, but the sentencing judge did not ask him about it personally and he did not personally admit guilt. Senior counsel appearing for him conveyed as much to the sentencing judge. On appeal, it was accepted that he had signed the form and he had no complaint about how the judge had taken the further offence into account. He contended, however, that the procedural error alone should lead to the appeal being allowed.
8. Harrison J noted a distinction between s 16BA of the Commonwealth Act and the equivalent NSW provision, noting that the latter included that "the court is to ask" whereas the former provides that the court "may .. ask". It was held that in the context of the Commonwealth provision, it would suffice if the offender's legal representative conveyed to the court that the offender admitted guilt and consented to the admitted offences being taken into account. That was clearly done in the case at hand and so the ground of appeal was rejected.
9. The Crown submitted that Kabir v R should be followed in this case. It contended that the decision there did not turn on the difference in statutory language but on the fact that there had been compliance, in substance, by the conduct of the offender's counsel. The Crown contends that what was approved by this Court in the context of the Commonwealth legislation was just as acceptable in the context of the State legislation.
10. There is much to be said for the Crown's approach which I would seriously consider accepting if it were not for three matters: the combination of the Form 1 referring on its face to an offence of possession as opposed to supply of a prohibited drug; the issue about the signature on the Form 1; and the fact that English is not the applicant's first language. For these reasons there is a doubt as to whether the applicant himself understood what the judge was being asked to do, no matter how clearly it may have been understood by everyone else. It is necessary to ensure there is transparency about the Form 1 procedure, a matter which has been said to be one of the objects of s 33 of the Crimes (Sentencing Procedure) Act: LS v R [2020] NSWCCA 27 at [35] (Harrison J). The importance of this was emphasised by Howie J in R v Felton at [3]: "However, the formalities of s 33(2) were not attended to and the applicant was not asked whether he admitted his guilt to those matters or whether he wished them to be taken into account. Although no point has been taken concerning this irregularity, the criminal courts should be astute to comply with the procedural formalities attending to the steps towards sentencing. They are not empty gestures, but are important safeguards to ensure that the offender is aware of what is taking place and consents to procedures that may have a significant impact upon his freedom or the period during which he will remain in custody."
11. The applicant provided an affidavit for resentencing purposes, but he did not trouble himself to provide any evidence of what transpired between himself and his lawyers in relation to the Form 1 issue, let alone adduce evidence from them. This is a troubling aspect about the matter but ultimately the issue would never have arisen if there had been compliance with the statutory requirements in the first place.
12. I would uphold Ground 1.

Ground 2 - failing to take into account the applicant's mental problems in assessing the degree of moral culpability or in moderating the weight to be given to specific deterrence

1. The points raised under this ground can be answered briefly. First, it was not obligatory for the judge to find that the applicant's moral culpability was reduced on account of his mental problems: Aslan v R [2014] NSWCCA 114 at [34]. Second, the judge was not asked to moderate the weight to be given to specific deterrence. Third, because of the applicant's prior history of drug offending, it was well open to the judge to regard specific deterrence as an important consideration in the assessment of sentence.
2. This ground should be rejected.

Ground 3 - error in assessment of objective seriousness

1. The obligatory assessment of objective seriousness of offences has become a minefield for sentencing judges and this Court in recent times. It is now a common source of complaint and it is as if no appeal is complete without taking issue with what the sentencing judge did or did not do in an endeavour to comply with the requirement. Part of the problem relates to ranking objective seriousness on a scale, a need largely deriving from standard non-parole period legislation. A significant part of the problem is the use of expressions that are rife with imprecision. One judge might have in mind a narrow band for the "mid-range" and/or for the "bottom of the range" whereas another may contemplate something quite broad. And what does it mean when it is said an offence is in the "high range" or the "low range"; the top or bottom of the range or simply above or below mid-range? Counsel making submissions on sentence, might have something in mind that is quite different to what the sentencing judge comprehended was intended by counsel. Counsel formulating grounds and submissions on appeal might comprehend something quite different to what the sentencing judge meant. Generally, see R v Pearce [2020] NSWCCA 61 at [55]-[59].
2. In this case the judge said the drug supply offence was "just below the mid-range" but in written submissions to this Court it was argued the finding should have been "falling towards the lower end of the scale but not at the lowest level".
3. The judge found the weapon offence was "towards but not at the bottom of the range" but it is said he should have found "at the bottom".
4. The distinctions between what the judge said and what was submitted in this Court highlight the problems of imprecision of terminology when objective seriousness is assessed by reference to a scale. Having regard to the applicant's success on other grounds it is not productive to dwell upon this ground.

Ground 4: manifest excess

1. The well-known "blunt tool" description of sentencing statistics is apt but there is utility in referring to them in this case. Since the reforms introduced in the sentencing legislation on 24 September 2018, 69% of the 993 offenders who have pleaded guilty and have been sentenced in the District Court for supplying a prohibited drug (not cannabis) have received something other than a full-time custodial sentence. For the 305 (31%) who have received full-time imprisonment, only 13 (4.3%) of them received sentences of more than 4 years.
2. An even more significant database is available for sentences imposed prior to the reforms. From January 2008 to 23 September 2018 there were 4422 offenders who pleaded guilty and were sentenced in the District Court for supplying a prohibited drug (not cannabis). Non-full-time custodial outcomes applied in 61% of the cases. Of the 1714 (39%) who were imprisoned, only 80 (5%) of them received sentences of more than 4 years. A sentence equal to or greater than the applicant's 5 years and 3 months was imposed in only 23 cases (1.4%)
3. These statistics do not by themselves indicate that the sentence indicated for the applicant's drug supply offence was erroneously high. They do, however, indicate a need for close examination of whether a sentence of 5 years and 3 months, after a 7-year starting point, was within the available range.
4. The offence was constituted by the applicant's possession for the purpose of supply but there were indicia found at his home that indicated he was trafficking in drugs. The quantity the subject of the charge for which he was to be sentenced was relatively modest. It was 22.47g which is low in the range of 5g to 250g which constitutes the indictable quantity for heroin.
5. The possession of the taser in conjunction with this drug dealing was not held by the sentencing judge to be an aggravating factor and nor was the applicant's prior criminal history. However, the fact he was on parole at the time of the offence certainly was.
6. It is trite that a sentence must be proportionate to the objective seriousness of an offence: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [15]. The applicant's sentence could not be elevated beyond the appropriate range because of subjective matters like his criminal history and being on parole.
7. Rightly or wrongly (see above under Ground 1), the judge took into account offences of supplying a prohibited drug (3.65g of methylamphetamine) and dealing in the proceeds of crime (possession of $4500 in cash) in the assessment of the 7-year starting point for the drug supply offence. It may be expected that they had an upward influence on the assessment, but not substantially.
8. The 7-year starting point for the drug supply offence was erroneously high when viewed in the context of the quantity of drug involved within the indictable quantity range and the statutory guidepost of a maximum penalty of 15 years.
9. An appeal does not lie in relation to indicative sentences, but they may be a guide as to whether error is established in relation to an aggregate sentence: JM v R (2014) NSWCCA 297; (2014) 246 A Crim R 528 at 40. Here it seems inescapable that the major influence in determining an aggregate sentence of 6 years was the indicative sentence for the drug supply offence of 5 years and 3 months. In all the circumstances it is manifestly excessive.

Outcome

1. Ordinarily the upholding of grounds of appeal would lead to this Court embarking upon a re-sentencing exercise but that is not possible given the problem with the Form 1 procedure. It was agreed that if error be found in that respect the appropriate disposition would be to remit the matter to the District Court.
2. I propose the following orders: 1. Grant leave to appeal against sentence. 2. Allow the appeal. 3. Quash the sentence imposed in the District Court on 22 June 2020 and remit the matter for resentencing in the District Court. 4. List the matter in the District Court at Campbelltown for mention on 7 October 2021.
3. WILSON J: I agree with R A Hulme J.

Endnote

1. A non-parole period should have been indicated as well because this offence had a standard non-parole period prescribed for it: Crimes (Sentencing Procedure) Act, s 54B(4). No complaint was raised about this and for present purposes nothing turns on it. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 October 2021