R v Do

Crimes Act 1914 LEGISLATION CITED: Criminal Appeal Act 1912 Customs Act 1901

R v Bedford (1986) 5 NSWLR 711 R v Daetz (2003) 139 A Crim R 398 R v Gilmore (1979) 1 A Crim R 416 R v Klein [2001] NSWCCA 120 R v Kwon [2004] NSWCCA 456 CASES CITED: R v Mas Rivadavia [2004] 61 NSWLR 63 R v MM (2002) 135 A Crim R 216 R v Pang (1998) 105 A Crim R 474 R v Pham [2005] NSWCCA 94 R v Wong and Leung (1999) 48 NSWLR 340 The Queen v Olbrich (1999) 199 CLR 270

LK Crowley (Crown) COUNSEL: H Dhanji (Applicant)

Commonwealth Director of Public Prosecutions SOLICITORS: S O'Connor

IN THE COURT OF CRIMINAL APPEAL 2005/776

BROWNIE AJA BUDDIN J LATHAM J

FRIDAY 22 JULY 2005 REGINA v THI BACH TUYET DO Judgment 1 BUDDIN J: The applicant seeks leave to appeal against a sentence imposed upon her in the District Court. The applicant was sentenced to a term of 8 years imprisonment with a non-parole period of 5 years following her conviction by a jury upon a charge of having imported a trafficable quantity of heroin into Australia. The maximum penalty prescribed by the legislature for this offence is imprisonment for 25 years and/or a substantial fine. 2 The applicant had earlier been sentenced to precisely the same term of imprisonment when she had been previously convicted in respect of the same offence. Her conviction for that offence had been subsequently quashed by this Court and a retrial ordered. 3 The applicant arrived in Australia on 20 October 2002 on a flight from Vietnam. Her luggage was subjected to examination. Nothing of interest was located. The applicant then volunteered her shoes for examination. They were x-rayed and it was apparent that something was concealed within them. In due course analysis of the shoes revealed that 478.4 grams of pure heroin was concealed within them. The trafficable quantity which the legislature prescribes in respect of heroin is 2 grams. 4 The applicant was interviewed by police. She told them that she had decided to return to her native Vietnam for a visit following an argument with her husband. She said that she had purchased an airline ticket and had gone to Vietnam where she had stayed with friends. She said that just prior to returning to Australia, she had tripped on the steps of the hotel at which she was staying and had broken her shoes. She said that she had bought a replacement pair from a stall for the equivalent of $2.50 AUD. 5 Subsequently the applicant asked to be reinterviewed in order that she could "tell the truth about everything that I know". On this occasion the applicant said that she had accumulated a gambling debt of $10,000. The woman to whom she owed the money threatened her and instructed her to travel to Vietnam so that she could "write off the debt". She said that she was also to receive "an extra ten thousand dollars". She went on to say that she was provided with a passport, an airline ticket and $2,500 in cash. She said that she met a woman named Mai at the airport. She travelled to Vietnam with Mai and her son and then stayed with Mai's family in Vietnam. She said that the woman who had provided her with the tickets had also given Mai three dresses and two pairs of shoes. In due course, Mai gave the shoes and the dresses to her. She said that Mai had told her to throw out her own shoes and to wear one of the pair of shoes which Mai had given her. She was then told that she was to hand over the dresses and shoes to a nominated person. She was told to say, if questioned about the matter, that she had bought them at the markets. She said that she thought that she was to be involved in smuggling diamonds. The applicant gave evidence but, as the sentencing judge observed, it was clearly not accepted by the jury. 6 The sentencing judge was obliged, in assessing the appropriate sentence, to have regard to the matters which are enumerated in s 16A of the Crimes Act 1914. Moreover, his Honour was obliged to make an assessment of what the applicant actually did in determining her culpability: see The Queen v Olbrich (1999) 199 CLR 270. His Honour found that the applicant's role should be characterised as that of a courier. 7 The applicant was aged 49 when she stood for sentence. She had no prior convictions, although that matter is of somewhat reduced significance in offences of this kind: R v Pang (1998) 105 A Crim R 474; R v Klein [2001] NSWCCA 120. The sentencing judge was prepared to find, upon the basis of what was contained in a report from a psychologist, that the applicant was remorseful. She was not however entitled to a reduction in sentence that would have followed a plea of guilty. His Honour also found that the applicant was not coping well with her incarceration. His Honour then went on to say: Subjectively the offender has, on all reports, lived a tragic life. It is reported that she lost her entire family in Vietnam due to a natural disaster. She was then adopted and became a labourer but moved to Saigon where she supported herself by selling consumer goods in the day and singing in a café at night. She met her present husband and they married in 1994. He sponsored her to Australia in 1995. That relationship appears to have foundered and Correctional Centre Records reveal that he last visited her in 2003. In Australia she worked part-time in a shop and participated in the dole scheme in the year 2000 by working on a flower farm for three months. The report of the Probation and Parole Service notes that on the information available since she migrated to Australia she had had limited on-going participation in employment and her relationship with her husband unrewarding. "At this stage she has limited support within the community". She has no children. She is a citizen of Vietnam and a holder of a Resident Visa which permitted her to remain in Australia indefinitely. It appears likely that she will be deported on her release from custody. … 8 His Honour then referred to the opinion of a psychologist who expressed "the view that the applicant is an extremely vulnerable person as a result of her early childhood experiences of loss and trauma". 9 The first ground of appeal asserts that "the sentencing judge erred in regarding his sentencing discretion as fettered by the sentence earlier imposed on the applicant in respect of the same matter by Gibson DCJ". As I earlier observed, the sentencing judge imposed precisely the same sentence upon the applicant as had been imposed upon her by Judge Gibson who presided over the trial in respect of which this court quashed her earlier conviction. It is submitted by the applicant that the sentencing judge in the present matter "failed to exercise an independent sentencing discretion, but rather improperly regarded his discretion as fettered by the original sentence". 10 Having referred to the earlier sentence which was imposed, his Honour said that the offender "would in the normal course receive the same sentence now, all things being equal, but of course a discretion remains to allow for any objective or subjective differences that may now exist". Having referred to the matters upon which the applicant was entitled to rely in order to mitigate the otherwise appropriate penalty, his Honour continued: These are compelling subjective features but in balancing all of that with the objective seriousness of the offence and in all of the circumstances I cannot see that there are significant subsequent circumstances or any circumstances justifying any variation to the sentence previously imposed. 11 In R v Gilmore (1979) 1 A Crim R 416 Street CJ (with whom Lusher J agreed) said: It is a sound principle of sentencing that, on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial. The application of this ordinary principle will, of course, necessarily yield in relation to the non-parole period if there is some significant subsequent circumstance to be taken into account (at 419). 12 The rationale for the rule finds its expression in this Court's decision in R v MM (2002) 135 A Crim R 216. Levine J, with whom Hidden and Howie JJ agreed, observed that: First,…persons convicted at trial in which there was some appealable defect should not be deterred from seeking a remedy on appeal for fear of receiving a greater sentence on retrial. Secondly, that the passing of a heavier sentence on a new trial would give the impression, albeit groundless, that the criminal justice system involved a element of retribution in respect of those who succeeded in having their convictions overturned on appeal. (par 8) 13 His Honour, having considered a number of the authorities which were subsequent to Gilmore, went on to say: Irrespective of whether the view could be formed that the first set of sentences was manifestly inadequate or manifestly excessive, it has to be recognised that the second sentencing judge is not "resentencing" but exercising an independent sentencing discretion with respect to the offences of which the particular offender has been convicted. (at par 32) 14 In R v Bedford (1986) 5 NSWLR 711, Street CJ referred to the principle which he had enunciated in Gilmore and continued: lt is significant to emphasise that the enunciation of the principle includes 'should ordinarily not receive'. The word 'ordinarily' must be given full room to operate. It might perhaps have been preferable to have expressed this as a prima facie approach rather than elevating it to principle. Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to his view. (at 713-4) 15 Even if there be some infelicity in the way in which his Honour expressed himself (and I would not necessarily so conclude), I am far from persuaded that his Honour has done anything other than correctly apply the relevant principles. The sentencing judge specifically incorporated the first two sentences from the passage in Gilmore into his sentencing remarks and clearly sought to apply the test which was enunciated in it. His Honour weighed up all the relevant features of the case and ultimately decided, having exercised his own discretion, to impose the same sentence as Judge Gibson had imposed. Moreover, his Honour's conclusion was clearly designed to respond to the way in which the submissions of counsel at the sentencing hearing had been formulated. 16 No doubt his Honour also had regard to the appropriate range which was formulated by this Court in R v Wong and Leung (1999) 48 NSWLR 340. There the court said that a head sentence of between 6 to 9 years was called for in respect of offences involving the mid-range of trafficable quantities (that is, from 200 g to 1 kg). In R v Mas Rivadavia [2004] 61 NSWLR 63 Wood CJ at CL, with whom Adams J and Smart AJ agreed, observed that: Notwithstanding the criticisms which were expressed by the High Court in Wong v The Queen (2001 207 CLR 584 concerning the extent of the emphasis that had been given in the guideline to the weight of the narcotic involved, and concerning the need for greater attention to be given to the role played by the offender, the range of sentences which were suggested by the Court of Criminal Appeal continued to be regarded as providing a useful guide before the repeal of s 16G and s 19AG (which had made similar provisions in relation to non-parole periods: see for example R v Taru [2002] NSWCCA 391; R v Marchando [2003] NSWCCA and R v Cerullo [2003] NSWCCA 201) (at 68-69) 17 By any measure the sentence imposed by the sentencing judge was well within the broad discretion which was available to him, particularly in the light of the repeal of s 16G. 18 The applicant advances an alternative submission which is to the effect that there were "significant differences between the circumstances at the second sentencing and those that pertained at the first". In support of that argument, the applicant points to what is suggested to be a distinction between Judge Gibson's description of the applicant as being "the person that imported that amount of heroin into this country" and the sentencing judge's characterisation of her role as being that of a "courier". Had the sentencing judge been endeavouring by the use of that label to suggest that his assessment of her culpability was less serious than the conclusion at which Gibson J arrived, it is surprising in the extreme that his Honour did not explicitly say so. The fact that his Honour did not do so is a very strong indication that his Honour simply did not make such an assessment 19 It was also submitted that the sentencing judge was more impressed with the applicant's subjective case than was Judge Gibson. It is true that the sentencing judge dealt in greater depth with the applicant's subjective case, which he described as "compelling", than did Judge Gibson. This is however an extremely flimsy basis upon which to conclude that there "were significant differences between the circumstances at the second sentencing and those that pertained on the first". 20 Moreover, as I earlier observed, his Honour specifically indicated that he could not find that there were "any significant subsequent circumstances… justifying any variation to the sentence previously imposed". 21 At the outset of the hearing of this matter leave was granted to the applicant to amend the second ground of appeal. It now reads that the sentencing judge "erred in failing to have regard to: (a) the applicant's loss of her right to remain in Australia; and (b) the effect of the applicant's deportation to Vietnam as a form of extra curial punishment on the applicant". 22 It is important to have regard to the context in which this issue arose. The applicant is a permanent resident of this country, having come here in 1995 following her marriage to a Vietnamese Australian who has now abandoned her. Judge Gibson recommended in his Remarks on Sentence that the applicant should be deported. Counsel for the applicant made a submission to the sentencing judge, for reasons which appear perfectly obvious, that his Honour not make such a recommendation. His Honour acceded to the submission although he observed that it was likely that she would be deported upon her release from custody. 23 It is now contended that the sentencing judge fell into error in making "no reference to the significance of deportation [and] appears not to have regarded the deportation as a part of the punishment resulting from the commission of the offence". It is further submitted that "[the applicant's] forced return to Vietnam is a significant extra curial punishment and should have been taken into account as such". 24 The first observation that needs to be made is that no submission to this effect was made by experienced counsel who appeared on the applicant's behalf at the sentencing hearing. No doubt counsel was well aware of the general principle which governs this aspect of the sentencing process. In R v Pham [2005] NSWCCA 94 Wood CJ at CL, with whom Hislop and Johnson JJ agreed, said: It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ.

The fact that the Respondent would be or might be deported to Vietnam, was accordingly an immaterial factor in structuring a sentence in this case and error would be demonstrated if it could be established that it became a factor in determining any aspect of the sentence including the selection of an appropriate commencement date. (pars 13-14) 25 Moreover, the sentencing judge did not have any evidence before him upon which to base a conclusion as to whether or not the applicant's deportation would eventuate at some time in the future. 26 Even more fundamentally, there was no evidence before the sentencing judge that would enable a conclusion to be drawn that were the applicant to be deported, that such a state of affairs would necessarily constitute additional punishment in the relevant sense (as to the principles which apply to the question of "extra-curial" punishment, see R v Daetz (2003) 139 A Crim R 398). In the absence of any such evidence, it is quite impossible to know what weight, if any, should then be attributed to it. That in my view would be a sufficient basis upon which to dispose of the present ground. 27 Counsel for the applicant however drew the Court's attention to the decision in R v Kwon [2004] NSWCCA 456. That case involved a Crown appeal against the asserted inadequacy of a sentence imposed upon a Korean national who had pleaded guilty to manslaughter. Hulme J, with whom Tobias JA agreed, said that: One of the factors to which I refer as justifying the period of 4 years arises from the fact that the presence of the Respondent and his family in Australia was pursuant to a visa that allowed temporary residence. He hoped to settle in Australia but the result of his offence is that his family have had to leave, and on completion of the custodial portion of his sentence, he will also have to leave Australia. The second factor concerns the consequence of his custodial sentence. He has lost the tiling business which he had established and which was, it would seem, an asset of significant value. At the time of the offence he was tiling a 130 unit development for Meriton Apartments.

These two matters are not insubstantial and one may fairly say, in practical terms, punishing consequences of his offending. I would regard an opportunity for someone in the situation of the Respondent of permanently settling in Australia with his family as something of real value to him. I should perhaps add that, while I have mentioned what has happened to the Respondent's family, I do not regard the hardship they suffer from not being allowed to settle here as falling within the highly exceptional circumstances where hardship to an offender's family can properly be taken into account in mitigation of his sentence - Edwards (1996) 90 A Crim R 510 at 516; R v Byrne (Unreported, CCA, 5 August 1998). 28 For a number of reasons it does not appear to me that Kwon provides any real assistance to the present applicant. It is to be immediately observed that there seems in that case to have been an evidentiary basis for the conclusions at which the court arrived. Furthermore, the court in Kwon appeared to have been moved by the loss which had already been, and which it was anticipated would be, suffered by the offender and his family. Furthermore, the general principle concerning the hardship which the sentencing process will occasion to the offender's dependents was a matter that played a part in apparently influencing the court to take the course which it did. 29 Although the court did not have the benefit of full argument upon the matter, I am presently inclined to the view that persons who commit offences of the kind which the applicant committed involving as they do a contravention of the Customs Act may well, for strong reasons of policy, stand in a very different position to that of the respondent in Kwon. 30 This is in my view a matter in which even if error had been established it could not be said that some lesser sentence was warranted in law: s 6(3) of the Criminal Appeal Act. 31 For all those reasons, it is unnecessary for present purposes to further consider in what circumstances, if indeed there be any, the impact which the possible deportation of an offender, even one with a permanent residency visa, can have upon the sentencing process. 32 The second ground of appeal should also be rejected. 33 I propose that leave to appeal should be granted but the appeal should be dismissed. 34 BROWNIE AJA: I agree. 35 LATHAM J: I also agree. 36 BROWNIE AJA: The order of the court will be as proposed by Buddin J.

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