R v Nguyen [2000] VSCA 223

5. After pleas for leniency in which the learned judge received some viva voce evidence, the appellants were sentenced on 19 October 1999. Diep was sentenced to be imprisoned for three years on each count making for a total effective sentence of three years and his Honour fixed a non-parole period of 18 months. Sang was sentenced to be imprisoned for four years on each count making for a total effective sentence of four years' imprisonment and his Honour fixed a non-parole period of two years. Both appellants later lodged notices of application for leave to appeal against sentence pleading the ground that their sentences were manifestly excessive and in June last the learned Registrar granted Diep leave to amend his grounds by adding two additional ones, and I now quote:

"2. The learned sentencing judge erred in characterising the applicant's conduct as a serious example of the offence of armed robbery (p. 47-8) 3. The learned sentencing judge erred in failing to warn the applicant that he was considering imposing other than a suspended period of imprisonment notwithstanding the submission as to sentence by the Crown."

"2. Given the indication of the prosecutor that "a term [of imprisonment] with a partial suspension which would not require immediate return to gaol falls well within the range open" and that "that is the position the Crown has taken as indicated to the accused men and it has done so with the usual discretion that it exercises when it comes to accepting a plea" (Plea at 36), the learned sentencing judge denied the appellant procedural fairness: (a) in failing to alert the appellant that he was minded to impose a sentence of imprisonment longer than the maximum which in law might be suspended; (b) in failing to alert the appellant that he was minded to impose a sentence which would require him to return to custody. 3. (a) The sentences infringe the principle of parity among co-offenders. (b) Given the indication of the prosecutor that the Court "should not differentiate between the two [appellants]" (Plea at 34 and 36), the learned sentencing judge denied the appellant procedural fairness in failing to alert the appellant that he was minded to sentence the appellant on a contrary footing. (c) The learned sentencing judge erred in differentiating the roles of the appellants for sentencing purposes."

13. On 6 June, Charles, J.A. granted the appellants leave to appeal.

16. It is now necessary to set out in summary form the facts of these matters. For this purpose I propose to quote the Summary of Evidence supplied to this Court, the accuracy of which, save for one point - that it was Sang who held the knife the to the victim's throat, has not been disputed on these appeals.

19. "Jason Nguyen, brother of Sang Anh Nguyen, has stated that he is the owner of a Silver Ford sedan registered number NDP-267. He has stated that he was in Vietnam from 18 April 1998 until 25 August 1998 and that during that period the keys were left at his and Sang Anh Nguyen's home at 16 Ardoyne Street, Sunshine. He has stated that Sang Anh Nguyen would use the car from time to time.

22. Jason Nguyen has also stated that about two years earlier he learned that his brother, Sang Anh Nguyen was using drugs. He stated that during that time he had twice sent his brother back to Vietnam to undergo treatment for drug addiction in hospitals in Hanoi and Hai Phong.

25. Crown Casino records disclose that Sang Anh Nguyen is the holder of a Crown Club card and that he had utilised his card at the Casino on 21 occasions between 1996 and 1998.

28. Van Thuoc Hoang, an associate of Sang Anh Nguyen, has stated that at about 2.30 a.m. on Tuesday 18 August 1998, he and the defendants attended at the Crown Casino. They travelled in a silver Ford Sedan driven by Sang Anh Nguyen. Hoang has stated that they remained at the Casino for about an hour and then walked back to the car.

31. Hoang has stated that he stopped to urinate on the roadside near the car. He then went to the car and saw that the defendants were missing. He stated that he waited in the car.

34. At about 3.35 a.m. on Tuesday 18 August 1998, Emma Brown and Vicky Chen finished work at the Shark Fin restaurant situated in the Crown Casino Complex. Accompanied by a male employee, Chang Zhou, they walked out to Brown's car which was parked in the "KC Park Safe" car park situated under the Flinders Street fly-over near the intersection of King and Flinders Street Melbourne. Zhou then went to his own car, started his car and proceeded to drive away.

37. The two women proceeded to step into Brown's vehicle. Emma Brown placed her handbag and some take away food in the rear hatch area and sat down in the driver's seat. Vicky Chen placed her handbag on the floor of the car prior to stepping in.

40. Brown suddenly saw one of the defendants run towards the car wielding a large knife. Emma Brown fled on foot screaming. She attracted the attention of Chang Zhou who had only proceeded a short distance along King Street. Brown stepped into Zhou's car. Zhou immediately drove back to the scene.

43. Meanwhile, Vicky Chen suddenly saw a knife being pointed at her throat. The man with the knife grabbed Vicky Chen's handbag from the floor of the car. The man with the knife then went round to the driver's side and activated the boot release. The man then removed Brown's handbag from the rear of the car. Chen stated that the man came back to the front passenger door and searched through the glove box.

46. Vicky Chen has described the man with the knife as, "Asian...about 25 to 30 years old, maybe younger...wearing a black jacket...I think it was leather...dark coloured trousers...short black hair...about 170 centimetres tall."

49. The attention of two passing taxi drivers was attracted by the victims and the fleeing defendants. Each defendant carried a handbag as they ran to the silver Ford sedan registered number NDP-267 which was parked in Flinders Street a short distance away.

52. The defendants then drove over the Westgate Bridge, and along Williamstown Road. The defendants abandoned the stolen handbags and the knife in Birmingham Street Spotswood. The defendants and Hoang were travelling north along Williamstown Road when they were intercepted by police. Sang Anh Nguyen was driving the vehicle.

55. Upon searching the vehicle, the police found a staff identification badge for the Shark Fin Restaurant inscribed "Emma". They also found two pairs of woollen gloves, and two pairs of latex gloves.

58. Upon searching Sang Anh Nguyen, the police found on his person, $895 in cash.

61. Upon searching Diep Duc Nguyen, the police found on his person $725 in cash, two ladies watches, a gold broach and a used eyebrow pencil, all of which belonged to the victims. A black balaclava was found in Diep Duc Nguyen's back trouser pocket.

64. No money or other property was found on Hoang's person.

67. The defendants were conveyed to the South Melbourne Police Station and interviewed. Sang Nguyen denied any allegations of being involved. Diep Nguyen made a no comment record-of-interview.

70. Hoang assisted the police by directing them to Birmingham Street, Spotswood and to the location where the police found the victim's handbags. Inside Brown's handbag, the police found a large carving knife and a pay packet containing $1260 in cash."

73. I now turn to the arguments of counsel on these appeals.

76. Mr Bourke, for Diep, began his submissions by addressing ground 3 of his client's grounds. He said this aspect of the appeal is directed to the practical application of fairness in the courts. He allowed that counsel on the plea for Diep would have known that, ultimately, the sentence for his client lay in the discretion of the judge. But, so the argument went, the submissions on a plea by the Crown Prosecutor can be very important. They are, presumably, approached with gravity and reflect a considered view of the office of the Director of Public Prosecutions in the particular case.

79. Mr Bourke submitted it was reasonable for Diep's counsel on the plea to understand he would be put on notice if the judge disagreed with what the Crown Prosecutor had to say in the matter of sentence.

82. Turning to the plea transcript, Mr Bourke contended that it showed that a submission was made for Diep that a sentence of imprisonment be imposed which was suspended wholly or in part. It further showed, he argued, that the Crown's submission was that imprisonment was the only sentence option but that "a term with a partial suspension which would not require immediate return to gaol falls well within the range open." (36) The reference to no "immediate return" reflects the circumstance that Sang had spent some four months in custody on remand, although, as will be later explained, the Crown's submission apparently related to both appellants. Diep had not been on remand.

85. Finally, Mr Bourke submitted, the transcript showed the judge did not indicate any disagreement with the Crown's stated position on sentence. Counsel cited West v Creasey and Anor. (2000) VSCA 80.

"18. Silence on the part of a judge may mislead a party or his counsel if the judge proceeds on the basis which is contrary to an assumption reasonably made by the party or his counsel."

89. Mr Bourke contended that the failure by the sentencing judge to give any warning of a departure from the disposition urged by the prisoner and conceded in the sentencing range indicated by the Crown represented a departure from the conventional basis upon which cases are conducted. It raised a question of procedural fairness which bore similarity to situation when pleas proceeded upon agreed statements of facts. (See R. v. Milecki 1994) 73 A. Crim. R. 72 at 79.) By not being alerted to the fact that the Court took a radically different view of the matter, Diep's counsel, it was said, was denied the opportunity of leading evidence and making submissions, e.g., Diep might have been called on the plea to provide evidence of his role in the criminal conduct and concerning remorse.

92. Counsel submitted that should the Court uphold this ground, the sentence should be set aside and the matter referred back to the County Court to allow for a "properly presented" plea.

95. Mr Bourke then turned to ground 2, submitting that it was appropriate to regard the appellant's offences as falling at the lower end of the scale of armed robbery and that it was error to regard them as "a serious example of this serious offence" as the learned sentencing judge had done. Counsel conceded that "by its nature" armed robbery was a very serious offence, but argued that within the range of such crimes there were more and less serious examples.

98. Some of the indicia of seriousness might include, so the argument went, whether force was actually applied or merely threatened; injuries received; the type of weapon used; the duration, location and effects of the offence; the gravity of threats used and the victim's circumstances. One could add to this the value of property stolen and the level of premeditation and planning.

101. In the instant case, it was submitted, there was merely a threat of force and the use of an article not adapted or intended to cause injury, the duration was short and involved no gratuitous threats or degradation. The amount of money stolen was modest and fully recovered and there was only a minimal level of premeditation.

104. Mr Bourke indicated that ground 1 was abandoned.

107. Mr Croucher, for Sang, began by addressing ground 1 of his client's grounds, submitting that the position expressed on sentence by the Crown Prosecutor clearly related to both appellants. He emphasised that in stating it the prosecutor had referred "to the accused men". (Emphasis mine.)

110. Counsel submitted that the learned sentencing judge denied Sang procedural fairness in failing to alert him that he was minded to impose a sentence of imprisonment longer than the maximum which in law might be suspended and in failing to alert him that he was minded to impose a sentence which would require him to return to custody. The course of the plea, it was argued, engendered in the appellant a reasonable apprehension either that something approximating the sentence suggested in submissions would be imposed or that at least the judge would have alerted him to the fact that such a markedly different disposition was in contemplation. Had the appellant been so alerted, so the argument continued, he would have sought to call further evidence, e.g. from the Brosnan Centre touching the appellant's progress on bail and to make further submissions.

113. Turning to ground 2, Mr Croucher submitted that the parity principle recognises that, as between co-offenders, there should not be a marked disparity in sentence which gives rise to a justifiable sense of grievance. If there is, the sentence should be reduced, notwithstanding that it is otherwise appropriate and within range. Further, even if the co-offender's sentence is low, or even inadequate it is preferable to err on the side of leniency and eliminate or diminish the sense of grievance by reducing the more severe penalty in appropriate cases see Postiglione v. The Queen [1997] HCA 26; 1997 189 CLR 295 at 301; and Lowe v. The Queen [1984] HCA 46; 1984 154 CLR 606 at 612.

116. Counsel argued that the circumstances of the offences and the offenders did not justify different sentences in the instant case. Nor did their respective criminal histories justify the difference in the sentences imposed.

119. As to parity in procedural fairness, Mr Croucher reminded the Court that on the plea counsel for Diep had sought to draw a distinction between his client and Sang, whereas counsel for Sang had submitted a joint enterprise was involved, that parity was appropriate and that he understood that was the Crown's position.

122. The Crown Prosecutor had told the Court in his submission that it "should not differentiate between the two accused" and had confirmed what Sang's counsel had said as to parity.

125. Nevertheless, the learned judge had found that Sang was "the principal actor in the commission of these crimes" and accordingly the lesser sentence should be imposed on Diep. These circumstances constituted a denial of procedural fairness, it was submitted, and, in any event, the judge erred in differentiating the roles of the appellants, his conclusion therein being not open on the appropriate standard of proof.

128. As to ground 3, Mr Croucher allowed it did not admit of much argument but contended that in the circumstances the individual sentences, the total effective sentence and the non-parole period were manifestly excessive. The plea of guilty, the mitigating factors and the prospects of rehabilitation were powerful factors insufficiently acknowledged by the learned judge.

131. Ms Carlin, for the Crown, addressing ground 2 of Diep's grounds, submitted that the judge's characterisation of the offences was appropriate and she referred to circumstances she said were of aggravation. The head sentence imposed on Diep was less than one eighth of the maximum penalty available. As to ground 3, she submitted the judge said nothing to lull the appellant into a false sense of security to his detriment. His Honour made it clear to counsel that it was up to them to decide evidence to be called and submissions made. In fact, comprehensive pleas were made. Counsel must have been aware that the Crown statement on sentence did not bind the judge and the suggested analogy with an agreed statement of facts was not apposite.

134. As to Sang's grounds, Ms Carlin relied on her earlier submissions as to procedural fairness and she pointed out that, as to prospective evidence from the Brosnan Centre, the judge indicated he accepted the evidence which would have been given (51).

137. With respect to parity, Ms Carlin submitted this was a live issue on the plea, despite the Crown's position. Counsel had referred to the limitations of the simple putting of instructions from the Bar table without the calling of evidence. The finding by the judge that Sang was the main offender who brandished the knife was open on a strict standard of proof. In Sang's case the head sentence was less than one sixth of the maximum penalty available. Finally, counsel reminded the Court that Sang had breached the Community Based Order he had received on 31 July 1998.

143. The picture of the plea in these matters conveyed by the appellants' counsel is that of stated understandings between counsel as to the parameters of the respective sentences without demur from the learned judge. In my opinion, a study of the transcript does not support this picture.

146. While contending for particular sentences, having regard to the Crown's stated position, one counsel acknowledged, in the presence of the other, that the ultimate decisions lay in the judge's discretion. Sang's counsel said:

"...I understand - it is a matter for Your Honour as it always is - in the exercise of sentencing discretion..." (12 and 13). "...And then it is a question of the other sentencing factors as to what part, if any or all, of that sentence ought to be suspended, and that's obviously a matter which is within the province of Your Honour." (33) (Emphasis mine.) "...Notwithstanding the position of the Crown...it's a matter for your Honour..." (26)

150. In statements from the Bar table, counsel for Diep asserted that

"...My instructions are that it was the co-accused, Sang, who actually perpetrated the robbery and that Sang had the knife and took the bags." (5) "My instructions are, Your Honour, that it was Sang's idea to commit this offence. My client agreed to it. The proposition was put to my client that he could make some money and he went along essentially to back up the co-accused - the prisoner, Sang." (7)

154. In support of the first of these statements counsel referred to the depositions where there was evidence that a person having dark clothing was seen "carrying a large knife in his hand about 30 metres from the car" and other evidence that the man who took the handbags was wearing a black jacket. A photograph taken by the police, said counsel, showed Sang wearing a leather jacket.

"...My instructions are completely at odds with the instructions which (Diep's counsel) has put in relation to whose idea it was." (11) (Emphasis mine.)

"...the Crown position is that parity is appropriate, they are acting together and it is a joint enterprise." (11)

Sang was not called to give evidence as on these points or his role in the criminal conduct although his counsel referred to the limitations of statements from the Bar table.

164. It is sufficient to say that the transcript of the pleas shows that these significant factual matters remained unresolved at that hearing and reserved for further consideration by the judge.

167. It should be noted that on the pleas counsel were never placed under any constraint of time by his Honour. At the very beginning of proceedings the judge contemplated a second day's hearing. (1) Asked about the possible recall of a witness by Sang's counsel, the judge readily agreed, stating:

171. After the Crown Prosecutor had completed his submissions, both counsel were allowed to further address his Honour (38 and 40). When the prospect of a further adjournment arose so that a witness might be heard, his Honour assured counsel that he was not delaying anything and expressed himself as being more than willing to hear the evidence the next day. When Diep's counsel expressed difficulty in contacting a further witness, the learned judge revoked an earlier order and extended that appellant's bail to facilitate such contact (40). At the very end of the plea for Diep the judge asked his counsel "You have no further material, I take it?" (44) Both the appellants' counsel conceded that their clients' criminal conduct was "serious" (10 and 20) and that it involved offences in company and committed at night on women who were terrified. They must be taken to have realised that they were asking for sentences of extraordinary leniency against a maximum available penalty of 25 years' imprisonment (for Sang an allowance for an actual custodial period of four months on remand and for Diep no custodial period at all).

174. Further, when counsel for Sang submitted that his client's conduct was, "on its facts at the lower end of armed robberies" (20), to my mind the judge showed evident resistance to this proposition saying, "Why do you say that?" (20) and when counsel went on to contend that there was no evidence of pre-planning other than immediately prior to the offence, his Honour said, "We'll never know that, will we?" (21) When counsel suggested the site of the criminal conduct was fortuitous, his Honour responded "I'd need to be a little naive to accept that, wouldn't I?" (22) As to whether the criminal conduct was opportunistic or lengthily planned, the judge said in argument "...we don't know".

177. The foregoing, it seems to me, conveys a clear picture of pleas which, when completed, left a number of significant factual issues unresolved and where counsel were given every consideration in the presentation of their cases.

180. Most significantly, the transcript of the pleas reveals one matter beyond argument. The learned judge had not read the depositions. He repeatedly said so.

"I've not looked at the depositions." (20) "I need to read this material, in any event." (38) "Yes, well, I think I should say that I do need to read this material. I have been helped, of course, by (the Crown Prosecutor's) opening, but with serious offences such as these, to say the least of it, it is more than appropriate to be satisfied that one is completely conversant with the facts as contained in the depositions." (39)

184. Otherwise, his Honour indicated again and again his unfamiliarity with the facts. He asked the size of the knife (20). He was unsure exactly where the offences took place (21). In my opinion, it would have been patently obvious to all counsel that the significant issues of fact and principle canvassed on the pleas and the assessment of the merits of their submissions, would have to await his Honour's reading of the depositions.

187. When he came to read the depositions after the plea, his Honour must have been struck by the comparison between their contents and the opening of the Crown Prosecutor. Remarkably, that opening contained no mention of what one would have thought was the single most serious feature of the criminal conduct, viz, "Meanwhile, Vicky Chen, suddenly saw a knife being pointed at her throat" (I here quote from the Summary of Evidence). So, too, there was no mention in the opening of what one would have thought was the best evidence of pre-planning, namely, the finding in the getaway vehicle of two pairs of woollen gloves and two pairs of latex gloves and of a black balaclava in Diep's back trouser pocket. (Indeed, counsel for the Crown had indicated acceptance that there was a dearth of evidence of "earlier planning or earlier resolve to commit the crime" (35) without telling the judge of the discovery by the police of the pairs of gloves and the balaclava. So, too, the incompleteness of the description by one of the appellants' counsel of a robber "carrying a large knife in his hand about 30 metres from the car" (5) was never drawn to the judge's attention.)

190. In my opinion, any judge, upon discovery of these matters, would regard the Crown's submissions as to sentence, particularly the reference to "well within range" as flawed.

193. In the plea situation that I am satisfied occurred, there was, in my opinion, having regard to the particular circumstances of these cases, no obligation on the learned judge to warn of a prospective departure from the penalty ranges submitted by both counsel. No denial of procedural fairness occurred. Further, I am quite unpersuaded that those counsel were lulled into a failure to present plea material. There were repeated references in argument to the limitations of statements from the Bar table and counsel were well aware of their capacity to call evidence should they so wish. Accordingly I would not uphold grounds 3 (Diep) and 2 (Sang).

196. Diep's ground 2 alleges error in the judge characterising his conduct as a serious example of armed robbery. In my opinion, there is nothing in this ground. It was plainly open to the judge to make the observation that he did. It is sufficient to refer to the involvement of the knife (which conduct, assuming its commission by Sang) was encompassed by Diep's plea to count 2, together with the circumstances of criminal conduct committed in company at night, and using terror, upon two women.

199. To my mind, the arguments advanced on this ground lack forensic validity. Of course, the weapon used was not a firearm or an explosive. The knife was sufficient for the offenders' purposes. Of course, no wound was inflicted. Fear sufficed. Of course, with frightened females the offence did not continue for an extensive period. Of course, the invasion of a home may have been even more culpable. In my opinion, the amount of money actually stolen was fortuitous. The plain intention of the robbers was to relieve the victims of all their money in their possession and this they did. Nor did the recovery of the money represent some voluntary act by the offenders. It was only a determined pursuit of the robbers - at first by witnesses and later by the police which brought about their undoing. It was only police interception which brought their flight to an end. This ground fails.

202. I now turn to consider ground 2 of Sang's grounds.

205. In argument reliance was placed upon the Crown's submission to the sentencing judge that the Court "should not differentiate between the two (appellants)" (34 and 36). In my opinion, upon reading the depositions his Honour must have regarded this submission as flawed for the reasons I have advanced in paragraph 59. Once the learned judge, having been referred to supporting evidence, found that it was Sang who menaced the woman with the knife at her throat, (which finding, I am satisfied, was plainly open to him upon the criminal standard), then, taking that into account together with Sang's prior convictions and the circumstance that only weeks earlier he had been placed on a Community Based Order, the different sentence imposed on Sang was, in my opinion, both warranted and necessary. In the matter of the above finding, it is very significant that, on the plea, while Sang's counsel disputed the contention of Diep's counsel that it was Sang's idea to commit the criminal conduct, he never gainsaid the assertion that it was Sang who put the knife to the woman's throat. This ground fails.

208. As to Sang's ground 3, it is for this appellant to show that the sentence imposed fell altogether outside the range of those properly available to the learned judge. For reasons which, I believe, sufficiently appear in the foregoing I am unpersuaded that it did and I would not uphold this ground.

211. Consequently, I am of the opinion that each of these appeals should be dismissed.

221. I agree that the appeals should be dismissed for the reasons stated by Phillips, C.J.