R v NGUYEN

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0972 FILE NUMBER(S) : LOWER COURT Shillington DCJ JUDICIAL OFFICER :

• 1 - IN THE COURT OF CRIMINAL APPEAL 60498 of 2003

HODGSON JA LEVINE J HOWIE J

Wednesday 12 May 2004 REGINA v TAM VAN NGUYEN Judgment 1 THE COURT: This is an appeal by the Director of Public Prosecutions pursuant to s5D Criminal Appeal Act 1912 against the sentence imposed by his Honour Judge Shillington QC at the Sydney District Court on 14 November 2003. The Director gave notice of the appeal on 5 December of that year. 2 On Wednesday 12 May 2004 the Court ordered that the Crown appeal be dismissed undertaking to provide its reasons later. 3 These are the Court's reasons. 4 On 4 August 2003 the respondent was found guilty after a trial lasting approximately 4 weeks of the following offences:

Count 1 - For that he between 1 November 2001 and 6 February 2002 at Fairfield and elsewhere in the state of New South Wales did supply a prohibited drug, namely heroin in an amount not less than (1 kilo) the large commercial quantity.

Count 2 - For that he between 1 November 2001 and 6 February 2002 at Fairfield and elsewhere in the state of New South Wales did supply a prohibited drug, namely, cocaine. 5 The offence under count 1 was pursuant to s25(2) Drugs Misuse and Trafficking Act 1985 and carried a maximum penalty of life imprisonment: s33(3)(a). Count 2 was an offence contrary to s25(1) and carried a maximum penalty of 15 years imprisonment: s32(1)(c). 6 The respondent was arraigned on an indictment which contained two counts of supply, one of supplying heroin and the other cocaine, both in amounts not less than the large commercial quantity. Each count also contained an alternative lesser count of supplying an amount of the relevant drug in an amount not less than the commercial quantity (250 grams). On the 11th day of the trial the respondent pleaded guilty in front of the jury to the alternative count to count 1. The Crown did not accept this plea nor ultimately did the jury accept it. In respect of count 2 the jury were not satisfied that the respondent supplied cocaine in either an amount not less than the large commercial quantity or even a commercial quantity, but rather an amount less than the commercial quantity. 7 The respondent was tried jointly with 2 co-offenders, Vien Duc Do and Quynh Duc Do. Vien Duc Do was found guilty of the same 2 principal offences and had pleaded guilty at the outset of the trial to the alternative to count 1. The Crown did not accept that plea nor ultimately did the jury. Quynh Duc Do pleaded not guilty to both principal counts, however the jury found him guilty of count 1, not guilty of count 2, but guilty of the alternative to count 2. We are informed that 8 offenders were ultimately convicted and sentenced for their part in the enterprise. 8 A substantial drug syndicate operating in Sydney obtained heroin and cocaine in bulk in block form. The drugs were then either on-sold in that form or cut down and mixed with a cutting agent and then pressed back and on-sold in that diluted form. What is described as the "syndicate" had, as its customers, dealers. 9 Evidence was given that the heroin and cocaine found in block form came in the shape of a block and weighed approximately 350g. It was compressed into that shape then normally wrapped in plastic. To dilute a drug in block form, the evidence was that a piece would be cut off the block, mixed with the diluting agent, placed in a blender or coffee grinder to mix it, recompress it into a block size, or weighed and placed into amounts needed for sale. Evidence was given that a 350g block of heroin had a retail value at the time of about $120,000 to $160,000 depending on the purity and that a block of cocaine had a retail value of up to $120,000. 10 A house at 10 Margaret Street, Fairfield was used for the purpose of dilution, recompression and distribution of heroin and cocaine and as a meeting place for members of the syndicate. A house at 85 Station Street, Fairfield, occupied by the respondent, was used for the storage. 11 The issue in the case in relation to the respondent was identification, which issue, as the Crown rightly says, became a non-issue upon his pleading guilty to the alternative charge which plea was not accepted by the Crown. 12 The sentences imposed upon the respondent were as follows: in relation to count 1, supply prohibited drug (heroin) being an amount not less than a large commercial quantity, imprisonment for 5 years to date from 6 February 2002 and to expire on 5 February 2007; a non-parole period of 2 ½ years was fixed and it will expire on 5 August this year. In relation to count 4, which was the alternative to count 3, being supply prohibited drug being an amount not less than a commercial quantity, a fixed term of 1 year was imposed to date from 6 February 2002 and obviously has expired as indeed it had expired at the time of its imposition. 13 His Honour's remarks on sentence are brief. There is an explanation for that. His Honour sentenced Quynh Duc Do, and it is to be taken from his Honour's remarks, in the present appeal, that issues of fact and comparative roles were canvassed far more broadly in the other sentencing proceedings. His Honour had a summary of facts which described the respondent as a junior member of the syndicate. 14 His Honour noted in his remarks on sentence that the respondent's primary role was to store drugs at the Station Street, Fairfield, premises. He also assisted the recompression of heroin and as runner for the syndicate in deliveries and collection of monies. 15 There was no evidence that the respondent was engaged in the syndicate's activities prior to 6 January 2002, and the relevant period of any involvement was from 6 January to 6 February (the date of his arrest). 16 When he was arrested there was found at his premises a large quantity of the drug, some 927g of heroin. His Honour found additionally that the respondent's role was to store drugs for the syndicate during its operation. His Honour noted a degree of contrition was reflected by the entering of the plea to the alternative charge. 17 His Honour then said: "With regard to this prisoner before the court, he is described in this summary as a junior member of the syndicate. His primary role was to store drugs at his premises at 85 Station Street, Fairfield. He also assisted the recompression of heroin and as runner for the syndicate in deliveries and collection of monies. He was overseas from the 4th of October until the 6th January. There is no evidence that he was engaged in the syndicate's activities prior to the 6th of January, so that the period runs with regard to his activities from the 6th of January to the 6th of February. When he was arrested there was found at his premises a large quantity of the drug, some 927 grams of heroin, and his role, among other things, as I have said, was to store drugs for the syndicate during its operations. There is certainly some evidence of contrition on his part by entering the plea of guilty to the alternative charge, that is to the first charge. The plea to the second charge in the indictment, as I have indicated, was not accepted by the Crown and the jury ultimately returned a verdict of guilty on the first count. I am satisfied that the prisoner was not a major member of the syndicate. His role was a relatively menial one. He was described by the Crown in the Crown's opening as "the general dogs'-body" and that has been emphasised by Mr Fisher in his final submissions to the court. The fact that he was required to keep the substantial quantities of drugs from time to time would suggest that he was expected to take on the relatively dangerous activities of having the drugs under his personal control. Those are the objective facts". 18 Having dealt with the objective facts and having so characterised the role of the respondent his Honour proceeded to deal with subjective matters, finding special circumstances based upon rehabilitation needs. Apparently, upon his arrest, at his request, the respondent went into protective custody, which was peculiarly stressful for him. 19 The Court was assisted by the provision by both the Crown and the respondent of extremely lengthy and detailed written submissions. 20 The Crown submissions assert error in the view his Honour took of the role in the organisation of the respondent as entitling him to a considerable degree of leniency; in failing to have regard to the maximum penalty; in failing to have proper regard to the objective gravity of the crimes; and in giving too much weight to the subjective feature of rehabilitation. 21 In the course of oral submissions the Crown amplified what it had put in writing by reference to the fact that the learned sentencing Judge, so it was said, appeared not to have given sufficient attention to a description of the respondent as a "loyal, trusted and industrious lieutenant". When, however, one reads, at the least, the extract cited from the remarks above, this view cannot comfortably be held. 22 Emphasis was also sought to be placed upon the asserted failure of the sentencing Judge to give proper attention to the role identified by him in such a serious commercial drug dealing enterprise (cf R v MacDonnell [2002] NSWCCA 34 at [33]). In other words, as the Court understood the submission, his Honour's focus on the role of the respondent as found by him was erroneous at the expense of balancing it in the context of the overall large commercial quantity involved in the criminal enterprise. It is to be borne in mind that his Honour of course dealt with co-offenders, and was well acquainted with the ambit of the enterprise in which each offender participated. Reference is made below to sentences imposed on other offenders, however for present purposes the Court could not be persuaded by the Crown's proposition, more particularly articulated in the course of oral submissions. The Court also was not persuaded by the Crown's submissions that sought to expose error on his Honour's part by not attending to what are asserted to be lies or unsatisfactory explanations in the ERISP and the notion of "profit" as part of the major commercial criminal enterprise as distinct from "reward" in relation to storing the drugs at his premises. The point the Crown was making was that his Honour was in error in some way in not inferring that, in addition to the hundreds of dollars received for storage, by reason of the other activities in which he engaged and which his Honour noted, the respondent would have received greater remuneration. 23 The plea of guilty to which his Honour refers, it was suggested, was the subject of erroneous weight and attention by his Honour: it could have been no more than a mere tactical move consequent upon the admission of evidence over objection. His Honour was entitled to give such weight to that plea, as he considered appropriate. 24 The Crown usefully provided details of the sentences imposed upon the other offenders in relation to the charges in respect of which respectively guilt was acknowledged or guilt found. In brief, these are as follows:

25 He pleaded guilty to two charges of supplying heroin and cocaine both in amounts not less than the large commercial quantity. He was sentenced to imprisonment for 16 years with a non-parole period of 12 years. He was the leader of the syndicate. His Honour found conservatively that during the period of the enterprise 6 kilos of heroin and 1.5 kilos of cocaine were involved (ROS 5.9-6.1). He had a criminal record which included offences for drug supply. Vien Duc Do

26 The jury found him guilty in the joint trial with the respondent of the two charges of supplying heroin and cocaine both in amounts not less than the large commercial quantity. He was sentenced to imprisonment for 12 years with a non-parole period of 9 years. Whilst Quyen Duc Do (above) was overseas from 13 to 26 January 2002 he acted as the leader of the syndicate. He was aged 25 years at the time of sentence, had no prior convictions, but had a serious gambling habit at the time of arrest and was a user of cannabis and amphetamines. Quynh Duc Do

27 He stood trial jointly with the respondent and Vien Duc Do. He was convicted of the two charges of supplying heroin and cocaine both in amounts not less than the large commercial quantity. He was sentenced to imprisonment for 8 years with a non-parole period of 4 years. Nam Van Pham

28 He entered an early plea to three offences contrary to s25A Drugs Misuse and Trafficking Act of ongoing supply of heroin. The period spanned by the three offences was from 19 November 2001 to 5 February 2002. Each offence carried a maximum penalty of 20 years imprisonment. He was sentenced to concurrent sentences of 4½ years imprisonment with a non-parole period of 2½ years. He was a runner who delivered both samples and larger amounts to customers and collected the money. He was 31 years at sentence. He had prior convictions for possession of drugs and goods in custody. His Honour accepted that his involvement arose from addiction to heroin and as a means of satisfying that addiction rather than greed. He gave evidence expressing his remorse. Chien Van Khong

29 He pleaded guilty to three offences. Firstly, on 2 November 2001 knowingly took part in the supply of heroin. This involved negotiating with senior members of the syndicate regarding the supply of heroin. Secondly, on 23 December 2001 he knowingly took part in the supply of cocaine. On this day he demonstrated testing methods for the purity of cocaine at 10 Margaret Street. The maximum penalty for knowingly take part in the supply of these drugs was 15 years imprisonment. Thirdly, an offence of "ongoing supply of heroin and cocaine" from 8 January to 19 January 2002. He was also a customer of the syndicate. His Honour also took into account a matter on a Form 1 being his possession of .79 grams of heroin on the day of his arrest on 29 January 2002. He was sentenced to concurrent sentences of 5 years imprisonment with a non-parole period of three years.

30 These offences breached a good behaviour bond he had received in October 2000 for supplying drugs. He was 37 years at the time of sentence. At the time of his arrest he was addicted to heroin, ecstasy and cocaine. He gave evidence in which he expressed his remorse.

31 He entered an early plea of guilty to two offences of ongoing supply of heroin and cocaine. The period spanned by the two offences was from 10 December 2001 to 8 January 2002. The total amount of drugs involved in these offences was 252 grams. He was sentenced to concurrent terms of imprisonment of 4½ years with a non-parole period of 2½ years.

32 He leased the premises at 10 Margaret Street although his Honour did not find great significance in this fact. His Honour observed that "it would be in the interests of those involved more higher up in the hierarchy to keep their names off the (tenancy) document" (ROS 2.4).

33 His Honour referred to the summary document A (ROS 1.8) which referred to Triet Minh Do, Nam Van Pham and Minh Tuan Truong being "runners" for the syndicate and delivering samples and larger amounts of heroin and cocaine to customers and collecting money. In imposing the same sentence as that received by Nam Van Pham, another runner, his Honour appears to have accepted the submission that this offender should not receive a heavier sentence.

34 He was 28 years at the time of sentencing with a low intellectual capacity. His involvement in the enterprise was due to addiction to heroin. He had prior offences dating back to 1995 which included possession of drugs and supplying drugs, receiving a sentence of six months periodic detention for the latter offence.

Triet Minh Do 35 He entered an early plea to three offences of ongoing supplying of heroin and cocaine. The period spanned by the three offences was from 10 December 2001 to 26 January 2002. The total amount supplied was 670 grams of heroin and 240 grams of cocaine. He was sentenced to concurrent sentences of imprisonment of 4 ½ years with a non-parole period of 2 years. 36 His role was a runner. He was 31 years old at the time of sentence and addicted to gambling, heroin and using ecstasy regularly. His Honour found he became involved to fund his own need for drugs. His Honour found there were "excellent prospects for rehabilitation" (ROS 4.10), that he had had a very difficult upbringing, was a person always ready to work and that he was now intent of giving up any return to drugs. 37 The Crown then seeks to distinguish the role of the respondent in the context of "parity" vis-à-vis each of the above, which exercise of course can only be undertaken given certain assumptions as to the merits of the Crown appeal. 38 The respondent, in equally detailed submissions, paid particular attention to a record of interview given by the respondent and some evidence in other material, pointing to the extent of the respondent's involvement which was available to his Honour for appropriate and proper consideration of the sentence of the respondent. Not unnaturally, particular attention was paid by the respondent in submissions to subjective circumstances. 39 In R v Hernando (2002) 136 A Crim R 451 at [12], Heydon JA, with whom Levine J and Carruthers AJ agreed, said that the Crown must surmount two hurdles if the Court is to impose a more severe sentence. The first is to locate an appellable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised. 40 When one considers his Honour's remarks on sentence against the background of such factual material as was available to this Court and which clearly had been available to his Honour, we were not persuaded of any error in his Honour's approach. 41 The sentence imposed upon the respondent could well be regarded as lenient even in the context of the symmetry constituted by the sentences imposed upon his co-offenders. A view would be open that to some extent those sentences were lenient in the light of the criminal enterprise with which all of them were concerned. 42 The Crown failed, however, to provide any basis for this Court to intervene. Thus the order dismissing the appeal was made. **********

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