R v Duy Duc Nguyen [2006] VSCA 184

1 I have read in draft the reasons for judgment of Redlich, J.A. Those reasons deal comprehensively with the matters which led me to join in the orders made on 23 August 2006. There is nothing I would wish to add.

2 I also joined in the orders made on 23 August 2006 for the reasons given by Redlich, J.A.

The facts

3 On 21 April 2005 the applicant pleaded guilty in the County Court to one count of conspiracy to defraud, and was sentenced to two years and six months' imprisonment, with a non-parole period of 20 months. The maximum penalty for conspiracy to defraud was 15 years imprisonment pursuant to s.320 Crimes Act 1958.

4 The applicant sought leave to appeal against his sentence, leave having been refused by Chernov, J.A. on 16 September 2005. But for new evidence placed before this Court, I too would have refused leave to appeal.

5 The applicant was sentenced together with three co-offenders, Kieu Luong ("Luong"), Quang Vo ("Vo") and Nguyet Tang ("Tang"). The applicant admitted two prior convictions from court appearances in 1995 and 1997 for the offences of trafficking a drug of dependence and theft, respectively.[1] Luong pleaded guilty to four counts of money laundering and was sentenced to a total effective sentence of 10 months' imprisonment. Vo and Tang each pleaded guilty to one count of money laundering and were sentenced to four months' imprisonment. All of the sentences

imposed on the applicant's co-offenders were wholly suspended. Another co-offender, Erman Santosa, had been presented on one count of money laundering and had been sentenced by the same judge on 7 December 2004 to 4 months' imprisonment wholly suspended for a period of twelve months. Of the co-conspirators named on the presentment, only one, Huy Huu Nguyen was presented on a count of conspiracy to defraud and numerous other unrelated offences. He was sentenced by a different judge on 1 December 2004 to 5 years' imprisonment with a minimum of 3 years before being eligible for parole.

6 A fraud was perpetrated on the Westpac Bank and some of its customers between 12 May 2003 and 26 June 2003. It involved the illicit transfer of approximately $1.5 million in funds from various Westpac accounts to specified host accounts using an internet banking facility. A person unknown, most likely an "insider" at the Bank, obtained the personal details of account holders with Westpac. Using these details, the perpetrators of the scheme telephoned the Bank and arranged to change the password on these accounts. Once the passwords had been changed, money could be transferred from those accounts to the accounts of persons who had been recruited for the purpose of receiving the funds into their accounts via internet banking.

7 The applicant became involved in the scheme after being approached in Crown Casino by a man named "John", who asked the applicant if he was prepared to allow his account to be used to receive transfers of funds. At this time the applicant was gambling at the casino on a daily basis. The applicant declined to provide "John" with his own account details because he thought the activity proposed was illegal, but agreed to assist "John" by introducing other people who were prepared to allow their accounts to be so used. On the plea and on this appeal counsel for the applicant described "John" as an organiser in the scheme.

8 The applicant recruited a number of people. In order to induce account holders to permit their accounts to be utilised, the applicant gave these people various false explanations for why money was to be transferred into their accounts. After the applicant had recruited someone who was prepared to allow their account to be used, he would provide details of the account to "John". Eventually "John" would contact the applicant when money had been transferred via the internet into an account. The applicant accompanied the recruited account holder to the Bank to withdraw the money. To confirm that they were able to withdraw money from the account the recruited account holder would then withdraw money via an ATM. If that was successful the applicant requested the account holder to withdraw a much larger amount over the counter. The money was passed to the applicant. The account holder was paid a commission of between 5% and 40% of the stolen money and the applicant retained the rest. The applicant told investigators that he paid the money to "John". The applicant said he was paid $200 for each person whom he introduced for the purpose of opening and operating accounts through which the stolen money was to be transferred. He told investigators he needed the money to play at the casino. During the period of the applicant's offending, approximately $174,000 passed through accounts of those persons recruited by him into the scheme. A number of the co-offenders including Vo and Luong, were recruited into the scheme by the applicant.

9 On the plea the Crown alleged that the applicant was heavily involved in the scheme. The prosecution informed the sentencing judge that it was unable to prove what the applicant did with the money after he received it and that, while a lot of suspicion attached to the applicant, it could prove only that he was in fact a recruiter of account holders, that he facilitated the withdrawal of funds from their accounts, received those funds and paid a commission to the account holder. Findings of fact to this effect were made by his Honour. In addition, his Honour was satisfied that the applicant had passed on the money that he received to others.

10 On 31 May 2004, the applicant was arrested and interviewed by the police. Although the applicant offered to co-operate with the police and assist them in trying to identify and locate "John", he told investigators he would not recognise "John" if the police showed him a photo. He also failed to identify people on a photoboard that he undoubtedly knew. The prosecutor informed his Honour that the offer of assistance was not viewed as genuine.

11 The sentencing judge made the following observations concerning the applicant's involvement in the scheme -

"I accept that you were heavily involved as a recruiter and as a facilitator of the transfer of money from Westpac accounts to nominated accounts. You were therefore a go-between recruiting others to access their accounts, receiving instructions, communicating with those you had recruited and at times going with them to banks to withdraw money, then passing the moneys onto others. In the relevant period, approximately $174,000 was paid through accounts that you had recruited. In your record of interview you admitted recruiting others and said you were paid $200 for each new person you recruited Although you offered to help the police with their enquiries, the authorities did not accept that you were making a genuine offer to co-operate and assist them."

Grounds of appeal

12 The applicant originally sought leave to appeal on two grounds: first, that his sentence was manifestly excessive, and secondly, that the extent of the differences between his sentence and the sentences imposed on his co-offenders was excessive and gave rise to a justifiable sense of grievance.

Manifest excess ground

13 In support of the contention that both the head and minimum sentences were manifestly excessive, reliance was placed upon the applicant's role in the offending, his co-operation with investigators, his plea of guilty, his remorse, his depression and psychotic breakdown and his prospects of rehabilitation which the sentencing judge found to be good.

14 Particular emphasis was attached to the applicant's assertion that the only benefit he received from his offending was $200 for each account holder that he recruited. Mr Croucher, who appeared for the applicant on this appeal, submitted the applicant was sentenced on this basis. That submission cannot in my view be sustained. In the reasons for sentence, his Honour referred to the fact that the applicant had said in his record of interview that he had been paid $200 for each person recruited. His Honour made no finding that that was so. As the extent to which the applicant had benefited from the fraud was in issue, it was for the applicant to establish his assertion on the balance of probabilities before it could be taken into account as a factor which mitigated the circumstances of the offence.[2] In regard to the role played by the applicant and the amount of the commission which he paid each of the recruited account holders, it is hardly surprising that the applicant's claim was not treated by the sentencing judge as a mitigating factor. That said, the applicant's culpability was to be primarily measured by the extent of the funds which passed through the accounts of those persons whom he recruited and controlled, and by the applicant's knowledge of the fraud.

15 On the plea, specific reference was made to the fact that the applicant agreed to make a statement following his interview with the investigators. His Honour was also informed that the applicant had volunteered to give evidence against two of the accused but that became unnecessary as they had pleaded guilty. It was submitted that he misdirected himself as to the content of the co-operation which the applicant had offered. In my view, the applicant has not made out the contention that his Honour failed to appreciate the extent or quality of the applicant's offer of assistance.

16 It was submitted that the sentencing judge had undervalued the applicant's willingness to co-operate with investigators. His Honour made no finding as to this question but, as I have mentioned, the Crown did not accept that the applicant's offer of assistance and co-operation was genuine. Again it was for the applicant to persuade the sentencing judge on the balance of probabilities that he had made a useful offer of assistance. This he failed to do. The applicant, in his record of interview and in a statement made later on the same day, gave his account of his involvement in the scheme. He referred to the person "John" and the procedure that he followed in using the bank accounts of those he recruited. In neither the interview nor his statement did he identify any of the persons with whom he was involved nor did he provide any detail to the investigators that would enable their identification. As I have already observed, he failed to identify persons that he knew when shown the photoboard. For sound reasons, his Honour made no positive finding concerning the extent of the applicant's co-operation with police.

17 In 1990 the applicant emigrated to Australia from Vietnam. He eventually opened a restaurant but the business failed in 2001. At that time he experienced a marital breakdown primarily due to financial stresses. In July 2001 he attempted to commit suicide and was admitted as an involuntary patient at the Sunshine Hospital. He was then diagnosed with some psychotic symptoms and severe depression.

18 A number of medical reports were tendered on the plea. They had been obtained in relation to charges of obtaining property by deception, which were heard in late 2004 and resulted in the applicant being placed on a community based order. Those charges concerned offences of the same nature as those the subject of the present appeal which were committed during the same period. It was noted in one of the reports that the applicant denied those offences to which he had pleaded guilty in the Magistrates' Court. The report of the clinical psychologist stated that the applicant's gambling and the commission of the offences resulted from a desire to regain money lost as a result of his business failing and that the applicant had difficulty accepting his present situation and had wished to regain his successful business life.

19 Those reports obtained during 2004 assessed the applicant as having "very poor performances across all cognitive domains". The neuropsychological report obtained in August 2004 recorded that the applicant suffered from cognitive disturbance which was seen within a chronic underlying psychosis. Those symptoms were considered likely to be present at the time of his offending during 2003.

20 In his reasons for sentence his Honour had stated explicitly that he had regard to the content of those reports. His Honour accurately summarised their substance. During the plea his Honour observed that it was difficult to reconcile the content of those reports with the numerous overt acts performed by the applicant during the period of the conspiracy. In response to enquiry as to how the contents of the medical reports might be used in terms of sentencing principles, it was submitted for the applicant that his mental state had rendered him more vulnerable to the suggestion that he should become involved. It was emphasised that the applicant would not have been capable of organising such a sophisticated fraud. Counsel for the applicant disavowed any suggestion that the applicant did not fully understand the nature and consequences of his conduct. In responding to his Honour's inquiry, Counsel for the applicant did not seek to rely upon the principles referred to in R. v. Tsiaras.[3]

21 Before this Court it was said for the first time that the content of the medical reports should have resulted in some moderation of the principle of general deterrence and reduced the level of the applicant's moral culpability.[4] While it was conceded by Mr Croucher that counsel for the applicant had not sought to rely upon the material in this way on the plea, it was argued that it was open to the applicant to do so now.

22 The failure to advance before the original sentencing court an argument that was open on the evidence before that Court may be taken into account in much the same way as the Court may take into account the failure of counsel to take an exception on an appeal against conviction . That said, the mere fact that such an argument had not been advanced on the plea would, not of itself, preclude this Court from acting upon a submission in support of a ground alleging specific error or that the sentence was manifestly excessive.

23 Counsel for the respondent submitted that the sentencing judge did have regard to the content of the medical reports in the way in which they were then relied upon. It was submitted that there may have been good reason why counsel for the applicant on the plea had abstained from arguing that the applicant's cognitive skills were impaired or that mental illness had contributed to the applicant's involvement in the scheme. It was said that such arguments would have invited greater attention to the precise nature and frequency of the overt acts committed by the applicant, acts which revealed his cunning and his command of the fraudulent scheme and which necessitated the consistent exploitation of those persons he had recruited. Counsel asked rhetorically whether oral evidence of the practitioners may have been required had the applicant sought to use the medical reports in the manner now relied upon. There is, in my view, much force in these contentions.

24 Assuming, without deciding, that we should consider the medical evidence in the way now submitted, there is, in my opinion, no discernible nexus between the applicant's mental condition and his offending. The explanation for his willing participation in this serious fraud is to be found in the reasons of the clinical psychologist to which I have already referred. It was acknowledged by counsel for the applicant on this appeal that his mental condition did not bear upon the question of specific deterrence. Having regard to the nature of the applicant's mental condition and the circumstances of his offending, no moderation of general deterrence was called for. Unlike some cases where an offender's mental state may explain the commission of the crime, the applicant's mental condition could not be said to reduce his moral culpability to any appreciable extent.

Parity of sentences

25 I turn now to the question of the extent of the differences between the sentence imposed upon the applicant and those imposed upon his co-offenders. The disparity between the sentences was said to be excessive, so as to give rise to a justifiable sense of grievance in the applicant and demonstrate that his head sentence and minimum period were both manifestly excessive.

26 Only a manifest discrepancy in the sense of a difference that is clearly excessive will satisfy the requirement of unjustified disparity.[5] A discernible difference in the respective roles or criminality of co-offenders may justify disparity and preclude any justifiable sense of grievance arising.[6]

27 It was conceded by counsel for the applicant that it was appropriate to impose different sentences upon the applicant and the co-offenders. It was not disputed that it was open to impose an immediate gaol sentence on the applicant whilst imposing wholly suspended sentences upon the co-offenders. To establish the existence of a disparity which would call for this Court's intervention, the applicant relied upon those factors which it was said established that his sentence was manifestly excessive. In particular it was submitted that, having regard to the small benefit which the applicant obtained, his level of co-operation with investigating police and his mental condition at the time of his offending, the applicant's sentence was unjust when compared to the wholly suspended sentences of each of the co-offenders.

28 His Honour characterised the applicant as having been "heavily involved as a recruiter and a facilitator of the transfer of money from the Westpac accounts to the recruits' accounts". The applicant was a trusted intermediary in this fraudulent scheme, who facilitated the transfer of funds from those accounts to persons unknown. He occupied a higher position in the hierarchy than his co-offenders and the amount of money that he laundered was substantially different to that of each of the other offenders. One may gauge the applicant's level of involvement and importance to the success of the fraud by the number of overt acts which he performed. He well knew that the scheme was fraudulent but concealed the nature of the fraud from the other offenders. The inference is inescapable that he misled them because he knew that they would not co-operate if they knew the truth. The applicant also had prior convictions which were properly to be taken into account particularly in relation to the question of the applicant's rehabilitation. As Chernov, J.A. concluded in refusing the application for leave to appeal -

"[The sentencing judge] examined the circumstances of the offending and the circumstances of the particular offender in each case and articulated them so that it became plain that different sentences were called for. I consider that the difference between the sentence imposed could not give rise to a justified sense of grievance."

29 I respectfully agree. I am not persuaded that the applicant's sentence was manifestly excessive. There was sufficient difference between the circumstances pertaining to the applicant and his co-offenders to justify the disparity in the sentences.

Fresh evidence

30 At the conclusion of oral argument, counsel for the applicant sought to rely upon a written statement by the applicant's daughter, Melissa Nguyen, and a medical report from a consultant physician gastroenterologist, Dr Le, dated 5 May 2006 concerning the condition of Ms Vu, the former wife of the applicant and the mother of the applicant's three children (who are aged 15, 13 and 3). Both documents related to the condition of Ms Vu who has for some time been suffering from hepatitis C. The material suggested that Ms Vu's condition was deteriorating and that she would require assistance from the applicant in caring for the children.

31 As a general rule, it will only be in exceptional circumstances that hardship to an offender's family may be taken into account.[7] It is very difficult to meet the criterion of exceptional hardship as the cases discussed in the judgments in R v Holland[8] demonstrate. The applicant does not submit that exceptional circumstances have been made out but relies instead upon the Court's discretion to show some mercy to Ms Vu and the children even in the absence of exceptional circumstances. Counsel for the applicant relied upon R. v. Carmody,[9] in which the Court applied the principles which inform the exercise of mercy, as discussed in R. v. Miceli[10]. The respondent submitted that the facts in Carmody's case were distinguishable from the present circumstances and that there was no occasion for the Court to exercise its residual discretion to show mercy.

32 It was further argued on the applicant's behalf that his concern for his family would impose an increasing burden upon him during his period of incarceration and was therefore a matter which could be taken into account. Finally, it was submitted that such evidence was admissible if the applicant succeeded on either of the original grounds of appeal and the discretion on sentencing was reopened.[11]

33 At the conclusion of the appeal, the applicant was given leave to file further material. Subsequently the applicant filed an affidavit of Ms Vu, the applicant's ex-wife, and an affidavit of the applicant's solicitor, annexing a report from a psychologist, Michael Crewdson. A further written submission was then filed by counsel for the applicant to the effect that the affidavit material constituted 'fresh evidence' which should bear upon the applicant's sentence.

34 In response to this additional material, the respondent submitted that the Court could only act on the additional evidence if there was a ground of appeal to which the evidence related. The respondent indicated that, upon the addition of such a ground, it would not object to the evidence being admitted. To meet this concern the applicant sought leave to add a third ground to enable the admission of fresh evidence intended to demonstrate that a lesser sentence should be imposed. I would grant leave to amend the grounds of appeal by adding the proposed new ground.

35 Based upon the new material, counsel for the applicant contended that it constituted "fresh" evidence throwing a different light upon circumstances that existed at the time of the applicant's sentence. The material disclosed that Ms Vu had been diagnosed with hepatitis C in 2001 but that the symptoms of the disease had worsened in recent months necessitating medical treatment. Her health now significantly reduced her ability to care for herself and her children. This now caused the applicant concern for Ms Vu and their children which made his imprisonment more onerous, particularly because of his mental condition.

36 It is common ground that this Court may, in limited circumstances - sometimes described as "rare and exceptional" - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;[12]

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;[13]

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;[14]

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;[15]

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error,[16] or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.[17]

37 The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[18]

38 Many of the cases which support these propositions concerned the admission of new evidence of subsequent events which made imprisonment an even greater burden for the offender and which resulted in the Court varying the sentence imposed.[19]

39 The applicant does not rely on the psychological report of Mr Crewdson as providing a basis for the application of any of the principles summarised in R. v. Tsiaras[20]. Mr Crewdson confirmed the previous diagnosis that the plaintiff suffered from a mild degree of psychotic disorder compounded by depression. He noted in his report that the applicant showed concern for his wife and children and concluded that there was a risk of relapse when he was faced with the further stressor of his wife and children's present circumstances.

40 The applicant's concern for his family was recorded in the neuropsychological report tendered on the plea. At that time it had been noted that the applicant was distracted and preoccupied much of the time worrying about his family. Until the applicant's incarceration, the applicant - though separated from his ex-wife - lived in a bungalow at the rear of the family home. He had an ongoing, caring, relationship with his children. Ms Vu deposes to the fact that the applicant was very concerned about the deterioration in her health and its impact on her ability to care for their children. The applicant had taken to calling her at home twice daily to enquire about how she and the children were coping.

41 Counsel for the respondent in further written submissions contended that little weight should be given to the applicant's expressed concern about his ex-wife's health. It was submitted that the applicant did not have a close or caring relationship with her and had previously assaulted her. The respondent relied upon the medical evidence tendered on the plea concerning events in 2001. Such incidents, it appears, occurred at about the time that the applicant suffered a psychotic breakdown which had resulted in him being admitted as an involuntary inpatient at Sunshine Hospital. This evidence does not warrant the conclusion that we should ignore the applicant's repeated statements of concern for his wife and children made over a long period of time.

42 No express reference had been made on the plea to the medical evidence concerning the applicant's preoccupation with his family's welfare and its effect upon his fragile mental state. The further evidence concerning Ms Vu's deteriorating health, and her incapacity to care for the children, does give that consideration a significance that would not have been apparent to the sentencing judge at the time of sentence.

43 Ill health is a factor which may tend to mitigate punishment when it appears that imprisonment would be a greater burden on the offender by reason of his state of health.[21] The emotional hardship and deprivation which accompanies imprisonment will, in this case, be aggravated by matters subjective to the applicant.[22] Those matters together with the applicant's concern for the welfare of his family and the loss of opportunity to care for them may be taken into account in sentencing an offender.[23]

44 In my opinion, the applicant's family circumstances, as now known to the Court, will make imprisonment a greater burden for him and create an appreciable risk of a serious deterioration in his health. The new evidence identifies the risk that the applicant may suffer a psychiatric relapse in the face of this additional stress. The applicant requires careful psychiatric monitoring and treatment. These circumstances and the serious deterioration in the health of Ms Vu, which has substantially impaired her capacity to care for their young child, give rise to considerations of mercy[24] and warrant the reopening of the sentencing discretion, notwithstanding that no error of any kind was present in the judge's sentencing reasons.

45 It was for these reasons that I joined in the orders made on 23 August 2006 that leave to appeal be granted, that the appeal be allowed and that the sentence imposed on the applicant below be varied by reducing the non-parole period that the applicant is required serve to 16 months.

[1] In relation to the trafficking offence, the applicant received a sentence of four months' imprisonment suspended for two years.

[2] Olbrich v. R. [1999] HCA 54; (1999) 199 C.L.R. 270 at 273; R. v. Cheung [2001] HCA 67; (2001) 209 C.L.R. 1; Storey v. R. [1998] 1 V.R. 359 at 369.

[3] [1996] VicRp 26; [1996] 1 V.R. 398.

[4] Neither does it appear that such an argument was advanced on the application for leave to appeal.

[5] R. v. Taudevin [1996] VICSC 7; [1996] 2 V.R. 402 at 404 per Callaway, J.A.

[6] R. v. Pham and Nguyen [2006] VSCA 68 at [21]; Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295.

[7] R. v. Boyle (1987) 34 A.Crim.R. 202; R. v. Fisher [2001] VSCA 164.

[8] [2002] VSCA 118; (2002) 134 A.Crim.R 451[3]-[4] per Batt, J.A.,[53]-[56]per O'Bryan, A.J.A.

[9] (1998) 100 A.Crim.R. 41 at 45 and 47.

[10] [1997] VSC 22; [1998] 4 V.R. 588.

[11] R. v. Carroll [1991] VicRp 87; [1991] 2 V.R. 509 at 511.

[12] R. v. Eliasen (1991) 53 A.Crim.R. 391 at 394; R. v. Rostom [1996] VicRp 60; [1996] 2 V.R. 97 at 101; R. v. WEF [1998] 2 V.R. 385 at 388; R. v. Wooden [2006] VSCA 97 at [7].

[13] R. v. Smith (1987) 27 A.Crim.R. 315; R. v. Eliasen at 394; R. v. Rostom at 99; R. v. WEF at 389; R. v. Holland [2002] VSCA 118; (2002) 134 A Crim R 451 at [2], [35_];_ R. v. McLachlan [2004] VSCA 87; (2004) 8 V.R. 403 at [10]; R. v. SH [2006] VSCA 83 at [9].

[14] R. v. Babic [1998] 2 V.R. 79 at 80, 82; R. v. McLachlan at [10]; R. v. WEF at 388.

[15] Knights v. R (1993) 70 A.Crim.R. 105 at 109-110; R. v. Maniades [1996] QCA 242; [1997] 1 Qd.R. 593 at 597; R. v. Ahmed [2005] VSCA 279 at [11].

[16] R. v. Ahmed at [18]; R. v. SH at [25]-[26].

[17] R. v. Eliasen, at 396; R. v. Rostom at 103; R. v. SH [2006] VSCA 83 at [25]. The reference to 'miscarriage of justice' is found in such cases as R. v. McLachlan at [10] and R. v. Ahmed at [11].

[18] R. v. Eliasen at 396; R. v. Rostom at 102-3. The test is different in N.S.W. and Queensland. See R. v. Fordham (1997) 98 A.Crim.R. 359 at 377-8; R. v. Durocher (2003) N.S.W. C.C.A. 299; R. v. Maniadis [1996] QCA 242; [1997] 1 Qd.R. 593.

[19] R. v. Eliasen; R. v. WEF; R. v. Rostom; R. v. Wooden; R. v. SH; R. v. Ahmed.

[20] [1996] VicRp 26; [1996] 1 V.R. 398.

[21] R. v. Smith (1987) 44 S.A.S.R. 587 at 589 per King, C.J.; R. v. Rostom, at 101-2.

[22] R. v. Vachalec [1981] 1 N.S.W.L.R. 351 at 353 per Street, C.J.

[23] R. v. Ilic [2003] VSCA 82.

[24] See the cases discussed in R. v. Holland [2002] VSCA 118; (2002) 134 A Crim R 451 at [8]- [9] per Eames JA,