R v NGUYEN

Court of Criminal Appeal (NSW)|2006-11-29|Before: James J, Hidden J, Hislop J

JUDGMENT OF: James J at 1; Hidden J at 37; Hislop J at 38

DECISION: Appeal allowed - Sentence quashed - In lieu thereof, impose a head sentence of six years commencing on 16 May 2006, with a non-parole period of three years.

CATCHWORDS: Criminal Law - Appeal against sentence - importing prohibited imports- whether hardship to third persons relevant to the sentencing of an offender - "exceptional" hardship

Crimes Act 1914 (Cth) LEGISLATION CITED: Criminal Appeal Act 1912 Customs Act 1901 (Cth)

Anna Le v Regina [2006] NSWCCA 136 R v Bednarz [2000] NSWCCA 533 R v Byrne (1998) 104 A Crim R 456 CASES CITED: R v Girard [2004] NSWCCA 170 R v Sarca (unreported Court of Criminal Appeal 11 May 1993) R v Togias (2001) 127 A Crim R 23 R v X [2004] NSWCCA 93

COUNSEL: Ms W Abraham QC - Appellant P Winch - Respondent

SOLICITORS: Commonwealth Director of Public Prosecutions - Appellant Legal Aid Commission of New Souoth Wales - Respondent

IN THE COURT OF CRIMINAL APPEAL 2006/2065

JAMES J HIDDEN J HISLOP J

29 November 2006 REGINA v Nhu Mai Huynh NGUYEN Judgment 1 JAMES J: This is a Crown appeal pursuant to s 5D of the Criminal Appeal Act against a sentence imposed on the respondent Nhu Mai Huynh Nguyen by his Honour Judge Berman SC in the District Court on 4 August 2006. For an offence of importing prohibited imports being not less than a trafficable quantity of methylamphetamine, of which the respondent had been found guilty after a trial, his Honour imposed a sentence of imprisonment for four years with a non-parole period of two years commencing on 16 May 2006, the date on which at the trial the jury returned its verdict of guilty. The offence had been committed on 29 April 2005. The respondent had been arrested on that day but had been allowed bail and had remained at liberty on bail until 16 May 2006. 2 Importing prohibited imports is an offence under s 233B of the Customs Act 1901 (Cth) for which the maximum penalty is imprisonment for twenty-five years and a fine of $550,000. 3 At the beginning of his Honour's remarks on sentence his Honour concisely stated the facts of the offence in a way which has not been the subject of any challenge on the hearing of this appeal. His Honour said:- "On Friday 29 April 2005 the offender arrived back at Sydney Kingsford Smith Airport from Vietnam. Her bags were searched. A customs officer discovered some towels in a plastic bag. The towels appeared to be heavy and stiff. Suspicions were aroused. Presumptive tests proved positive for the presence of methylamphetamine. The offender was arrested and a further analysis of the towels was conducted. It was discovered that the towels had been laced with methylamphetamine. The total weight of pure methylamphetamine contained in the towels was 537.2 grams. There is evidence to suggest that the wholesale value of the quantity of pure methylamphetamine was about $90,000 with a street value of $160,000. Thus the offender had in her possession when she returned to Australia from Vietnam a significant quantity of methylamphetamine". 4 In his remarks on sentence his Honour noted that the respondent's defence at the trial had been that whilst she was overseas she had taken the towels to be cleaned and had later picked them up and that she had had no knowledge that the towels contained methylamphetamine. His Honour observed in his remarks on sentence that the respondent's false claims of innocence made it difficult to assess the objective criminality of the offence. His Honour said that he would sentence the respondent for what she was proved to have done and that he would not make any attempt to classify the respondent as having had any particular role in a criminal organisation. 5 In his remarks on sentence his Honour noted some of the subjective circumstances of the respondent. The respondent had been born in Vietnam. At the age of fourteen she had left Vietnam and gone to the Philippines to escape political and social unrest to which she was exposed in Vietnam. At the age of eighteen the respondent had come to Australia. Her sisters with whom she had gone to the Philippines were unsuccessful in their applications to come to Australia, so that the respondent had been the only member of her family in Australia. 6 Importantly for the present appeal, the sentencing judge noted in his remarks on sentence that the respondent was the mother of three children, a boy aged ten and a boy aged eight, whose father had been the respondent's first de facto husband but who had left the respondent when she was pregnant with the second child, and a boy aged seven months whose father is a man named Michael Leuzzi. While the respondent had been in prison awaiting sentence the two older boys had been looked after by a friend of the respondent and the youngest child had been looked after by his father Mr Leuzzi. 7 A report by Associate Professor Carolyn Quadrio, a consultant psychiatrist, was tendered on behalf of the prisoner and admitted into evidence in the proceedings on sentence. In his remarks on sentence Judge Berman noted that none of the opinions expressed by Associate Professor Quadrio had been challenged by the Crown and his Honour stated that he accepted those opinions. In his remarks on sentence Judge Berman quoted part of Associate Professor Quadrio's report about the two older boys, as follows:- "In my opinion there would have to be very grave concerns about the psychological and emotional development of the older two boys if they continue to be separated from their mother for a significant period of time, because they have been in her primary care since birth. The older boys are highly at risk of developing serious mental health issues as a result of the effective loss of their mother. Loss of a parent before the age of eleven is strongly correlated with subsequent psychiatric problems and is the biggest risk factor for adult depression and suicide. By being separated from their mother at this stage of life, especially where there is no significant extended family, these two boys are being placed in a position where they will be in extremely high risk of long term mental health disturbance as well as possible delinquency. The long term prospects for children raised without a stable attachment relationship with an ordinary devoted mother or father are quite poor. They [are] prone to psychological and psychiatric disturbances of all sorts, including anti-social personality and are at much greater risk for school failure, employment difficulties, delinquency and ultimately criminal adjustment". 8 His Honour noted that the youngest child was being well looked after by his father Mr Leuzzi but that Mr Leuzzi was fifty-nine years old, had problems with his health including that he had had a heart attack and that he suffered from back pain and an ulcer and that he found having the sole care of a young child stressful. While the respondent had been in custody she had been able to see the youngest child regularly. 9 Judge Berman found that the respondent's custody would be more than usually onerous because she needed and missed her children and knew that her children needed and missed her. His Honour observed that an offsetting consideration was that the respondent "went into this with her eyes open", in that she knew at the time she imported the drugs that she was the mother of two children and was pregnant with another child and that, if her offence was detected, she was likely to be imprisoned; yet she went ahead and committed the offence. 10 In his remarks on sentence the sentencing judge considered the subject of the relevance to the sentencing of an offender of the hardship that a sentence imposed on the offender would cause to third parties, such as members of the offender's immediate family. In the present case, a sentence of imprisonment on the respondent would cause hardship to the respondent's present de facto husband and to all of her three children. 11 The sentencing judge referred to a line of authority that hardship to third persons is relevant to the sentencing of an offender, only if the hardship is "exceptional". His Honour cited R v Sarca (unreported Court of Criminal Appeal 11 May 1993), R v Byrne (1998) 104 A Crim R 456 and R v Bednarz [2000] NSWCCA 533. 12 His Honour noted that this line of authority had been followed in applying s 16A(2)(p) of the Crimes Act 1914 (Cth), which provides that a sentencing court must take into account, so far as is relevant and known to the court, "the probable effect that any sentence or order under consideration would have on any of the person's family or dependants". 13 The sentencing judge then made a finding that the circumstances in the present case were not exceptional. Distressing as they were, they were, "unfortunately, all too common". 14 In the proceedings on sentence counsel for the respondent had referred the sentencing judge to two decisions of the Court of Criminal Appeal R v X [2004] NSWCCA 93 and R v Girard [2004] NSWCCA 170 in which, his Honour said, it had been held that hardship to third persons, even if not exceptional, could be taken into account "as part of the general mix of subjective matters". 15 In his remarks on sentence Judge Berman noted a submission made on behalf of the Crown that, if there had been any change in the law, this change did not apply in the sentencing of Commonwealth offenders. This submission was rejected by his Honour and was not pressed on the hearing of this appeal. 16 Judge Berman decided that he should apply X and Girard and that, in sentencing the respondent, he should take into account hardship to the respondent's de facto husband, which his Honour considered would not be significant, and hardship to the respondent's three children, which his Honour considered would be significant, even though the respondent was aware at the time she committed the offence that, if she was apprehended and imprisoned, hardship would be caused to her children and notwithstanding that his Honour had already found that the hardship would not be "exceptional". 17 In other parts of his remarks on sentence:-

(i) His Honour refused to find that the respondent had good prospects of rehabilitation. His Honour commented that he did not know why the respondent had offended and, for all his Honour knew, she might re-offend, if given the opportunity.

(ii) His Honour found that the respondent had not shown any contrition.

(iii) His Honour found that the respondent's custody would be more than usually onerous, because, quite apart from needing and missing her children, she had little English and would be "culturally deprived" while in custody.

(iv) His Honour found that there was a need for both general and specific deterrence. 18 In what I consider to be a key passage in the remarks on sentence his Honour, after referring to the objective gravity of the respondent's offence and to the need for general and specific deterrence, said:- "On the other hand the three children have done nothing wrong. They are suffering and will continue to suffer from their mother's incarceration. It is with a sense of mercy, not towards the offender but towards the children, that I have decided to impose a sentence which no doubt will be considered lenient and indeed it is lenient in the light of the objective gravity of the offender's conduct". 19 His Honour said that he would vary, in the respondent's favour, the usual kind of ratio of a non-parole period to the head sentence "to further mitigate the hardship to the offender's children". 20 On this appeal the Crown submitted that the sentence imposed on the respondent was manifestly inadequate. The Crown also submitted that the sentencing judge had made an error of principle in allowing what, it was contended, had been a substantial discount because of the hardship to the respondent's children which would be caused by a sentence of imprisonment passed on the respondent and that this error of principle helped to explain why the sentence had been manifestly inadequate. 21 The Crown referred to the line of authority that hardship to third persons, including children of the offender, should be taken into account in the sentencing of the offender, only if the hardship would be exceptional. The Crown referred to the decision of this Court in R v Togias (2001) 127 A Crim R 23 in which Spigelman CJ said at 25-26 (13-17):- "[13] His Honour approached the sentencing exercise on the basis that hardship to a child had to be classified as "exceptional" before it could be given substantial weight for the purposes of s 16A(2)(p). Counsel for both the appellant and the respondent in this appeal accepted that his Honour was correct.

[14] The necessity for such an "exceptional" effect has long been accepted for sentencing at common law: see, for example, Edwards (1996) 90 ACrimR 510 at 516-517 per Gleeson CJ.

[15] The South Australian Court of Criminal Appeal held that legislation in that State to the same effect as s 16A(2)(p) did not affect the application of the common law principle: Adami (1989) 51 SASR 229 ; 42 ACrimR 88 . The Western Australian Court of Criminal Appeal came to the same conclusion with respect to s 16A(2)(p): Sinclair (1990) 51 ACrimR 418 especially at 430-431. This was also the conclusion of the Court of Appeal in Victoria : Matthews (1996) 130 FLR 230 at 233; see also Carmody (1998) 100 ACrimR 41 at 45.

[16] Courts of Criminal Appeal in three States have interpreted s 16A(2)(p) as not altering the common law. Exceptional hardship is required. It is important that Courts of Criminal Appeal adopt the same approach to the interpretation of national legislation. Some comments by Dunford J appear to express a different view: Caradonna (2000) 118 ACrimR 312 at 316 [25]. However Gleeson CJ referred to the South Australian and Western Australian decisions without disapproval in Edwards (at 517). Subsequently to Caradonna, where he had agreed with Dunford J, Wood CJ at CL affirmed the authority of the earlier cases: Ceissman (2001) 119 ACrimR 535 at 540-541 [36].

[17] If there is to be any change in this position, and that was not put in this case even on a formal basis, only the High Court can effect it".

22 In the very recent decision of this Court in Anna Le v Regina [2006] NSWCCA 136 Latham J, with the concurrence of McColl JA, said at 25:- "A number of decisions of this Court have confirmed the approach taken by the Chief Justice in R v Togias (2001) 127 A Crim R 23; [2001] NSWCCA 522, namely that s 16A(2)(p) must be construed consistently with the common law, in that exceptional hardship is required to ameliorate an otherwise appropriate sentence ". 23 Although submitting that this Court should apply its earlier decisions in such cases as Togias and Le, counsel for the Crown on the present appeal did not submit that X and Girard, the cases relied on by the sentencing judge, had been wrongly decided or should not be applied in the sentencing of Commonwealth offenders. A submission which was made was that X and Girard, properly understood, did not involve any real change of the law and did not authorise the passing of the sentence which the sentencing judge had passed in the present case. 24 In X, which was in fact the earlier of the two cases, the sentencing judge had made a finding that hardship to members of the offender's family from the sentence to be passed on the offender would be exceptional. The Court of Criminal Appeal held that the sentencing judge had fallen into error in finding that the hardship would be exceptional. At paragraph 24 of his judgment Sully J, with whose judgment the other members of the Court agreed, said:- "I have already acknowledged the exigent nature of the respondent's family circumstances. To have regard to those circumstances as part of the general mix of subjective matters is one thing. It is, however, an entirely different thing to isolate those family circumstances, characterise them as highly exceptional, and use that characterisation as a justification for a discrete and substantial measure of leniency added onto the respondent's entitlements under the general law and under the general requirements of ss 22 and 23 of the Sentencing Procedure Act…". 25 In Girard Hodgson JA, with whose judgment the other members of the Court agreed, noted a submission made on behalf of Mrs Girard that there were exceptional circumstances. At par 21 Hodgson JA said:- "In relation to the children, in my opinion this was not shown to be a case falling within the category of exceptional circumstances as discussed in Edwards . It is certainly a matter of concern, and a matter that can be taken into account as one subjective circumstance in assessing the appropriate penalty, that innocent children will be adversely affected by the imprisonment of their parents. However, in the absence of exceptional circumstances, this is not to be taken into account as a specific and particular matter resulting in a substantial reduction or elimination of a sentence of imprisonment". 26 Hodgson JA then referred with approval to the part of paragraph 24 of Sully J's judgment in X which I have quoted. 27 It was submitted by the Crown that, accepting that X and Girard had been correctly decided and should be applied in the sentencing of Commonwealth offenders, all that those cases had decided was that hardship to members of an offender's family, while it could be taken into account as a part of the general subjective facts, could not be used to justify any substantial reduction in sentence, unless it was truly exceptional. In my opinion, this submission is in accordance with the parts of Sully J's judgment in X and Hodgson JA's judgment in Girard which I have quoted and should be accepted. 28 It was then submitted by the Crown that his Honour, having expressly found that the hardship to the respondent's de facto husband and her children was not exceptional, had nevertheless relied on the hardship to the respondent's children to make a substantial reduction in the sentence he would otherwise have imposed. In my opinion, this submission by the Crown should be accepted. The passage in his Honour's remarks on sentence which I have already quoted, to the effect that his Honour had decided to impose a sentence which would be regarded as lenient out of a sense of mercy towards the respondent's children, is susceptible only to the interpretation that his Honour decided that, because of the hardship to the respondent's children, he would make a substantial reduction in the sentence he would otherwise have imposed. 29 I conclude that the Crown has established the specific error of principle it contended for. 30 I am further of the opinion that the sentence imposed by his Honour was manifestly inadequate. The respondent had imported over 500 grams of methylamphetamine. Unlike many other offenders, she had not pleaded guilty but had stood trial and she had not provided any assistance to the authorities. She had not shown any contrition. The sentencing judge had declined to make a finding that she had good prospects of rehabilitation. Even after taking into account some subjective circumstances in favour of the respondent, including her difficult life, the absence of any serious previous criminal conduct, the fact that prison for the respondent would, for a number of reasons including the separation from her children, be more than usually onerous and the hardship to members of her family (to the extent to which that factor could properly be taken into account), the sentence imposed was manifestly inadequate. 31 The Court provisionally received two affidavits, one by the respondent and one by Mr Leuzzi. The affidavit by the respondent confirmed that the two older children are being looked after by a friend and that the infant is being looked after by his father. The respondent has not told her two older children that she is in gaol. The children have been told that the respondent is working and will be away for two years. 32 In his affidavit Mr Leuzzi confirms that he has a number of health problems and recently he has had problems with sciatic pain in his leg and back. 33 The case, as the sentencing judge recognised, is a distressing one but, in my opinion, this Court should not exercise its discretion so as not to allow the Crown appeal. 34 I have already in this judgment referred to the maximum penalty for the offence, the objective facts of the offence committed by the respondent and to the subjective circumstances of the respondent, including her present subjective circumstances. 35 In re-sentencing the respondent I take into account the principle that, if the Court of Criminal Appeal allows a Crown appeal, the sentence it imposes in re-sentencing the respondent will usually be less than the sentence which the Court considers should have been imposed in the first instance. I would vary the usual ratio of the non-parole period to the head sentence when sentencing for Commonwealth offences, for the same reasons and in the same way as the sentencing judge did. 36 In my opinion, the following orders should be made:-

The Crown appeal against the sentence imposed by Judge Berman on 4 August 2006 allowed.

In lieu thereof, impose a head sentence of six years commencing on 16 May 2006, with a non-parole period of three years.

The respondent will be kept in custody for at least three years up to 15 May 2009. On 15 May 2009 the respondent will be eligible to be released on parole. If the respondent is released to parole on that day or any subsequent day she can be returned to custody if she does not comply with the conditions of her parole. 37 HIDDEN J: I agree with James J. 38 HISLOP J: I agree with James J. **********

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