Phan v R

Fairbairn v R [2006] NSWCCA 337 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Huynh [2005] NSWCCA 220 CASES CITED: R v Moffitt (1990) 20 NSWLR 114 R v Musgrove [2007] NSWCCA 21 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168

PARTIES: Hai Tu Truong Phan - Applicant Crown - Respondent

COUNSEL: H Dhanji - Applicant R Herps - Respondent

SOLICITORS: SE O'Connor - Applicant S Kavanagh - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/2457

SIMPSON J HOWIE J BUDDIN J

Tuesday 27 February 2007 Hai Tu Truong PHAN v REGINA Judgment 1 SIMPSON J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court on 12 April 2006 following his pleas of guilty to three charges. The charges were:

(i) one count of supplying a prohibited drug (heroin); (ii) one count of possession of a prohibited firearm; (iii) one count of carrying a firearm in a manner likely to injure a person or property. 2 Pursuant to s25(1) and s32(1) of the Drug Misuse and Trafficking Act 1985, the first count carries a maximum custodial penalty of imprisonment for 15 years. Pursuant to s7(1) of the Firearms Act 1996 the second count carries a maximum penalty of imprisonment for 14 years. By Part 4, Division 1A of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") a standard non-parole period of three years applies to this offence. Pursuant to s93G(1)(c) of the Crimes Act 1900 the third offence carries a maximum penalty of imprisonment for 10 years. 3 Sorby DCJ sentenced the applicant as follows:

Count 1: imprisonment for a fixed term of twelve months, commencing on 22 August 2005 and expiring on 21 August 2006;

Count 2: imprisonment for a fixed term of two years, commencing on 22 August 2005 and expiring on 21 August 2007 (that is, concurrent with, but extending beyond, the Count 1 sentence);

Count 3: imprisonment with a non-parole period of four years, commencing on 22 August 2006 (that is, wholly cumulative upon the sentence imposed in relation to the first count, and partially cumulative upon that imposed in respect of the second count), with a balance of term of two years expiring on 21 August 2012.

The facts 4 The drug offence was committed on 15 March 2005. While driving a motor vehicle the applicant was observed by police. Because of his manner of driving police activated sirens and lights in order to have him stop the car and submit to a roadside breath test. A passenger in the vehicle, Khoi Nguyen, threw from the window a small box. By his plea of guilty the applicant accepted that the box had been in his possession. The box was later found to contain 3.77 grams of heroin. By reason of the quantity of heroin involved, and by the operation of s29 of the Drug Misuse and Trafficking Act, the applicant was deemed to have had the drug in his possession for the purpose of supply (and therefore, by the definition of "supply" in s3, to have been guilty of supply) unless he proved that he had it in his possession for purposes other than supply. He made no attempt to do so, and pleaded guilty to the offence of supply. Possession alone was sufficient in the context of the relevant legislation to make him guilty of supplying the drug. The applicant was arrested, charged, and granted unconditional bail. 5 The second and third offences were committed during the evening of 21 August 2005 and the early hours of the following day. (They were thus committed whilst he was still subject to the bail order made in respect of the drug offence.) The applicant was at his home in Yagoona with three friends. One of the them was Khoi Nguyen, the applicant's best friend. After a conversation about a grievance the applicant had concerning a Sydney nightclub the applicant produced a shortened double-barrelled shot gun. He showed this to his friends. He revealed that the gun was loaded with two rounds of ammunition. He posed with the gun, while the other men took photographs using mobile telephones. Mr Nguyen walked to a doorway. The applicant discharged one shot. The bullet penetrated the back of Mr Nguyen's skull, causing severe injury. With the other two men the applicant drove Mr Nguyen to hospital. The applicant was then driven to his sister's home. The gun was later found by police, wrapped in a shirt and secreted at the rear of a garage at his Yagoona home. Police then went to the applicant's sister's home. The applicant was found under a doona. He was arrested, taken to Bankstown Police Station and interviewed. He admitted having had possession of the gun, and said that he had been playing with it, and that it was in locked mode, and that he believed it would not fire. He declined to disclose how he came to be in possession of the firearm, or how Mr Nguyen came to be shot. The applicant consented to certain forensic procedures, and gunshot residue swabs, photographs and a buccal swab were taken. 6 Later, on the same day, at his own request, he was further interviewed. The transcript of the interview reveals that he was considerably distressed, at times almost incoherent. He told police that all four men had been involved in playing with the gun. He insisted that the safety guard had been on. He said that the shooting had been accidental, but that, because he was frightened, he had hidden the gun. He acknowledged that he had previously been involved in an incident in a nightclub, when he had been hit over the head with a bottle, but denied that he had obtained the gun for the purpose of revenge in relation to that incident. He said that he had had the gun for "half a year" and that it was for protection. He said that two years previously, people had shot at his house and that "they" (presumably the police) could not do anything about it. 7 The applicant was again arrested and remained in custody until the sentencing hearing. He entered pleas of guilty to all charges in the Local Court on 21 December 2005.

The sentencing proceedings 8 Evidence about the condition of Mr Nguyen was scanty. Such evidence as there was was contained in email communications between an officer of the Director of Public Prosecutions and a police officer involved in the investigation. The police officer conveyed information he had received from a medical registrar on 20 December 2005, four months after the offence. It was as follows: "I have just spoken with Dr RAYKAR, the registrar at the brain injury unit, and she has informed me of the following: NGUYEN, still suffers from a craniotomy (portion of skull missing). The bone will be replaced in January and he will suffer the complications of that surgery. At the moment he can walk short distances without assistance, but otherwise requires aid to walk. He has left upper limb weakness, with his left hand being useless. He has cognitive deficits, but the long-term seriousness of the deficits are unable to be assessed until he re-enters the community. He is suffering from depression for which he is being medicated." 9 The applicant gave evidence in the sentencing proceedings. He again denied that he had possession of the gun for the purpose of revenge following the nightclub incident, and repeated that his home had previously ("a few years ago") been the target of a drive-by shooting and that this was the reason for his possession of the gun. Also available to the sentencing judge was a pre-sentence report, and a psychiatric report. The evidence on sentencing disclosed the following subjective circumstances.

Subjective circumstances 10 The applicant was born on 28 May 1984 in Vietnam, the fourth of five siblings. He came to Australia at the age of 11. The evidence concerning the circumstances in which he came to this country is conflicting. What is clear is that he experienced considerable disruption in his early family life. It seems that his parents separated for a time, his father travelling first to Thailand and then to Australia, his mother going first to the Philippines, and then to Australia. Until he came to Australia the applicant was looked after in Vietnam by his grandmother and older sister. Eventually, the family was reunited in Sydney. According to the author of the pre-sentence report, the family was supportive and the family environment stable. When the applicant was 13 his father died in a fishing accident. 11 The applicant attended school to year 11. Thereafter he held a variety of short term forms of semi-skilled employment. 12 He has a criminal history, commencing in July 2002 in the Children's Court, when he was found guilty of two counts of robbery in company. In respect of each, he was granted a probation order. In October of the same year he was again before the Children's Court, again on two charges of robbery in company. This time he was subjected to a 12-month control order, with a non-parole period of eight months. An appeal against the severity of the order had a modicum of success. The control order was confirmed (with a reduction in the non-parole period to six months) but suspended on his entering a 12-month good behaviour bond. 13 In about 2003 the applicant began using alcohol, although not, apparently, to excess. However, he also began using drugs, beginning with cannabis and proceeding to ecstasy and heroin, and sampling cocaine on occasions. He claimed not be addicted to drugs. 14 The psychiatrist, Dr Sinclair, recorded that the applicant had been deeply affected by the shooting. Mr Nguyen had been a close friend. Within a week of the shooting the applicant made an attempt on his own life by trying to cut his wrists. He has made no subsequent attempts and does not contemplate suicide. He is comforted by being informed that Mr Nguyen is making a recovery, although slowly. The two are in regular contact. The applicant suffered from acute stress disorder during the first months after the shooting, followed by acute post-traumatic stress disorder. His concentration has been affected and he suffers from anxiety. His functioning is to some extent impaired.

The remarks on sentence 15 Sorby DCJ recounted the facts of all offences. He observed that the facts relating to the offences, particularly the s93G offence, are objectively serious, and referred to the prevalence of drug dealing and supplying and to the maximum penalty of 15 years prescribed by the legislature as an indicator of the society's condemnation of such activity. He referred to other sentencing principles such as retribution, rehabilitation, protection of society and general deterrence. He noted the subjective circumstances. He accepted the applicant's expressions of remorse as genuine, particularly for the serious injury inflicted upon Mr Nguyen. He appears to have accepted that the applicant had made attempts at rehabilitation and to have been drug free whilst in prison. He noted the applicant's age (not quite 22 at sentencing). He considered that these factors amounted to special circumstances within the meaning of s44(2) of the Sentencing Procedure Act, justifying departure from the statutory ratio between the non-parole period and the total sentence there stated. This conclusion gives rise to the principal ground of the application. 16 In relation to the plea of guilty, his Honour said: "The prisoner pleaded guilty at the first opportunity and is entitled to the full discount under Thomson [ R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383] for the pleas' utilitarian value."

He considered the provisions of s21A of the Sentencing Procedure Act. 17 He concluded that the applicant had not been engaged in trafficking in drugs in any substantial degree, but recognised (correctly) that the amount of the drug involved called for a custodial sentence. He concluded that a 12-month fixed term was appropriate in respect of that offence. 18 He then turned to the two firearms offences. He considered the offence of possession to be objectively serious. He noted the standard non-parole period (three years) prescribed by s54B of the Sentencing Procedure Act. 19 Having referred to the decision of the High Court in Pearce v The Queen [1998] HCA 57; 194 CLR 610, his Honour said the following: "For the offence under the Firearms Act and taking Way 's [ R v Way [2004] NSWCCA 131; 60 NSWLR 168] case into consideration and the statutory non-parole period as a benchmark only, the appropriate sentence is less than mid-range and I consider that two years is the appropriate sentence. In relation to the s93 offence, given the overall circumstances, the loaded gun and the severe injury suffered by the victim, I consider four years appropriate." 20 Having then considered the principle of totality, his Honour said: "Applying the principle of totality, I consider the period of non-parole period should be five years with a further period of two years' parole." 21 This was intended to be a reference to the combined effect of all three sentences and the result to be achieved by the accumulation of the sentences. His Honour proceeded to impose sentences in accordance with those determinations.

The grounds of the application 22 Originally, two grounds of the application were pleaded. They are: "Ground 1 - the learned sentencing judge erred in, having found special circumstances pursuant to s44(2) of the Crimes (Sentencing Procedure) Act 1999 , failing to take into account this finding in the determination of the non-parole period.

Ground 2 - the sentence imposed with respect to the offence against s93G(1)(c) Crimes Act , is manifestly excessive." At the hearing leave was granted to plead and argue an additional ground, as follows: "Ground 3 - the applicant was denied procedural fairness as a result of the sentencing judge's indication during the proceedings that the sentences should be concurrent."

Ground 1: special circumstances 23 S44(1) and (2) of the Sentencing Procedure Act provide: "(1) When sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). (2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)." The effect of subs(2) is that a sentence structured in accordance with the statutory proportions will be composed of a non-parole period that is 75% of the total sentence, and balance of term that is 25% thereof. For a historical overview of the sequence of legislative provisions concerning the ratio between the non-parole period and the head sentence see R v Musgrove [2007] NSWCCA 21.

24 Because the first two sentences imposed were of fixed terms, the first ground applies only to the third sentence and, more particularly, to the overall sentence after accumulation. Effect was given to the finding of special circumstances in the sentence imposed in respect of the s93G offence. The balance of term significantly exceeded one third of the non-parole period. The non-parole period and parole periods were each 50% of the total. 25 The same did not ensue in respect of the overall sentence, after accumulation, or at least not to any significant degree: as imposed the non-parole period of the accumulated sentences is 71.4% of the total. A total sentence of seven years divided in the statutory proportions would consist of a non-parole period of five years and three months, and a balance of term of one year and nine months. Alternatively put, a non-parole period of five years would be accompanied (in a sentence structured in the statutory proportions) by a balance of term of one year and four months. The principal purpose and effect (with an exception to which I will in a moment refer) of a finding of special circumstances is to give the offender the benefit of a shortened non-parole period, with a corresponding extension of the balance of term: see R v Moffitt (1990) 20 NSWLR 114; R v Huynh [2005] NSWCCA 220; R v Musgrove [2007] NSWCCA 21. 26 The essence of the argument advanced in respect of this ground has become all too familiar in this Court. In my opinion, as I mentioned in Musgrove, the manner in which the legislation is framed has the tendency to lead sentencing judges into error, or into the appearance of error. That is because, in requiring that the non-parole period first be fixed, the statute may appear also to require that the non-parole period first be determined. If a judge takes that course, and then finds special circumstances, the almost inevitable result will be an extension of the balance of term rather than a reduction in the non-parole period. That would result, not only in error, but in injustice. The offender receives no benefit if the non-parole period is first determined, and effect is given to the finding of special circumstances by the extension of a balance of term. 27 The exception to which I referred arises when a finding of special circumstances is made in the context of sentencing an offender for multiple offences, to accumulated or partially accumulated terms. Such a process can distort the statutory proportions. A judge who expressly intends to maintain the statutory proportions in the overall sentence may therefore vary the proportions of individual sentences in order to restore the statutory proportions. 28 It is thus necessary to give consideration to what it was his Honour intended by the finding of special circumstances. There is to be found in the Remarks no reason to believe that it was his intention to vary the proportion of the third sentence in order to overcome the effect of accumulation and restore the statutory proportions. The considerations - age, attempts at rehabilitation, being drug-free in prison - that led him to make the findings are all considerations conventionally associated with an intention to benefit the offender by reduction of the non-parole period and extension of the balance of term. 29 I am satisfied that his Honour's intention, in making the finding, was to do just that. However, it was argued, the manner in which the sentences were ultimately structured may have deprived the applicant of much of the benefit of the finding. The overall non-parole period was reduced by only three months. From this, it was suggested on behalf of the applicant, it ought to be concluded that the judge began by determining the non-parole period and then, in order to give effect to the finding of special circumstances, extended the balance of term: thus giving the appearance of a benefit to the applicant but, in reality, imposing a longer head sentence than would otherwise have been imposed. 30 I have concluded that the argument ought not be accepted. There are, I accept, some features of the Remarks that would permit a construction as contended for on behalf of the applicant - that in order to accommodate the finding of special circumstances, the judge fell into the error of extending the balance of term rather than reducing the non-parole period. 31 But there is another, preferable, construction of the Remarks. His Honour expressly held that the non-parole period ought to be five years. In my opinion he reached this view after taking into account the finding of special circumstances - that is, five years represents the already varied (reduced) non-parole period. The reduction allowed (three months) was not great, but also not insignificant. 32 This conclusion has the added attraction that it conforms with what would be an appropriate sentence. Having regard to the totality of the criminality, a non-parole period of less than five years would scarcely be adequate. 33 I would reject this ground of appeal.

Ground 2: manifestly excessive? 34 This ground also applies only to the s93G offence. The argument advanced in support is also familiar. 35 From the judge's reference to the "full discount" under the decision in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 it is to be inferred that he proposed to allow the applicant a reduction in sentence, referable to the utilitarian value of the plea of guilty, of 25%. Factoring this into the sentence imposed, it must be concluded that the starting point for that sentence was of a total term of eight years - against a statutory maximum of ten years. It was submitted that this starting point was excessive. 36 In putting this submission, counsel accepted that the fact that the applicant was on bail at the time of the second and third offences was an aggravating factor, and that the severity of the injury occasioned to Mr Nguyen was also relevant to the determination of the sentence to be imposed. Other, mitigating, factors were, however, advanced. These included that the discharge of the weapon was accidental; that the applicant was, at 21, a young man, and that the circumstances of the offence reflected immaturity; the absence of any relevant record; the significant psychological distress (including the suicide attempt) occasioned to the applicant; the remorse shown by the applicant from the outset, including his action in calling an ambulance, in admitting his conduct to police, and his evident distress when interviewed. (I would note that, if the discharge of the weapon had been anything other than accidental, the overwhelming likelihood is that the applicant would have been facing significantly more serious charges. The fact that the weapon discharged made this a very serious instance of an offence against s93G.) 37 Counsel also referred to other decided cases concerning offences against s93G. In my opinion these are of little assistance in determining the issues raised by this ground of the application. 38 When seen as a proportion of the maximum sentence available, it may be recognised that the starting point was indeed high. However, when the circumstances of the offence itself are measured against offences encompassed by the section, the starting point is not, in my opinion, manifestly excessive. 39 Under this ground, complaint was also made about the structure of the sentences, specifically, the accumulation of the s93G offence upon the Firearms Act offence - possession of the prohibited firearm. It was pointed out that the two firearms offences were closely related, the implication being that it would have been appropriate to have ordered that those sentences be served concurrently. 40 In my opinion, having regard to the nature of the three offences, and the dates of their commission, it would have been more conventional to have made the two firearms offences concurrent, or partly concurrent, with one another. However, it would also have been conventional, and, in my opinion, required, that those sentences be accumulated upon the sentence imposed in respect of the drug offence. Accordingly, although the nature of the accumulation is, perhaps, a little unusual, no injustice to the applicant has been occasioned thereby. 41 I would reject this ground of the application.

Ground 3: procedural fairness 42 This ground arose out of an exchange, during the course of submissions, between the sentencing judge and counsel who appeared for the Crown. Having discussed the drug offence, counsel (for the Crown) recognised that the quantity of drug involved was relatively small and accepted that, while a custodial sentence would have been appropriate, it would have been open to have suspended that sentence or ordered that it be served by way of periodic detention. However, both he and the sentencing judge also recognised that a period of full-time custody was called for in relation to the firearms offences. Counsel for the Crown then said: "The other option of course your Honour is if your Honour does think that it is appropriate, sentencing him together with the other offences, is giving him a short term of imprisonment for that particular offence."

To this his Honour replied: "And make it concurrent."

Counsel said: "Make it concurrent. Precisely." 43 A little later, still in discussion with counsel for the Crown, his Honour observed: "It's one course of conduct though isn't it." This, presumably, was intended to refer to the two firearms offences and not the drug offence. Counsel for the Crown answered in the affirmative, and his Honour said: "So concurrent sentences." 44 Counsel for the applicant therefore submitted that the applicant (through his counsel) had been lulled into a false sense of security by believing that all sentences would be made concurrent; and that counsel, accordingly, did not further address on this question. 45 Reliance was placed upon a decision of this Court: Fairbairn v R [2006] NSWCCA 337. There, the sentencing judge (the same sentencing judge as in the present case) had also expressed an opinion that the offences were part of one course of conduct, to which the Crown assented. His Honour then said: "I don't think there should be cumulative sentences imposed in this case." Counsel for the Crown expressly acknowledged that this was an appropriate approach.

46 A similar ground of appeal was there taken. Bell J, with whom Basten JA and Hidden J agreed, said: "To my mind the judge should not have departed from the indication without alerting the applicant's legal representative to the fact that he was considering accumulating the sentences. … Here the applicant was for practical purposes denied the opportunity of having his representative address the judge on the factors that favoured concurrency. As R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 makes clear, there is not one correct answer to the question of how sentences should be structured in a case such as this." 47 There are, in my opinion, two answers to the complaint made on behalf of the applicant. Firstly, I do not read the exchanges as being, in the present case, as explicit as was the exchange in Fairbairn. The passages I have extracted suggest that his Honour was repeating the submissions put on behalf of the Crown, in order to be clear; although he referred to "one course of conduct", that was in the context of a reference to "both offences", and could not rationally have been a reference to the drug offence. As I have indicated above, it would have been open to him to have imposed concurrent sentences in relation to the two firearms offences; it would have been quite inappropriate, indeed, indicative of error, to have imposed a wholly concurrent sentence in relation to the drug offence. 48 I would reject this ground of the application. I do not think the applicant was denied procedural fairness having regard to the way the discussions were conducted. 49 Accordingly, I propose that leave to appeal be granted, but the appeal be dismissed. 50 HOWIE J: I agree with Simpson J. 51 BUDDIN J: I agree with Simpson J.

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