R v Vo

LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/3148 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60050/03

LEVINE J SIMPSON J

Friday 2 May 2003 REGINA v An Binh VO Judgment 1 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court on 29 August 2002 by Sorby DCJ following his pleas of guilty to three charges, the second and third of which are of supplying a prohibited drug (heroin) and the first of which was knowingly taking part in the supply of the same drug. Sorby DCJ sentenced the applicant, on the second and third counts, to a fixed term of imprisonment for eighteen months to commence 24 August 2001; on the first count he sentenced the applicant to imprisonment for three years with a non-parole period of twenty months, the sentence to commence on 24 February 2002, that is, six months after the commencement date of the sentences on the other counts. The total sentences imposed were therefore of three and a half years, with a non-parole period of twenty-six months.

facts 2 The facts may be succinctly stated. The first offence occurred during the afternoon of Wednesday 22 August 2001, at Cabramatta. An undercover police operative was approached by an accomplice of the applicant, inquiring whether he (the operative) wanted drugs. A conversation ensued in which the operative agreed to purchase drugs and the accomplice whistled to the applicant who then made a telephone call and shortly after handed him a package. The operative handed the applicant $100. 3 The second and third offences took place in the evening of Friday 24 August 2001, also at Cabramatta. At about 8.35 p.m. an undercover operative spoke to the applicant and enquired if he could provide heroin. The applicant agreed to do so. The operative handed the applicant $50 and the applicant handed the operative a foil containing heroin. At about 9.08 p.m. on the same date another undercover operative had a conversation with the applicant to similar effect. On this occasion he handed the applicant $70 and was provided with a foil containing heroin. 4 The first count involved a supply of .03 grams, the second .01 grams and the third .05 grams. Less than half an hour after the final transaction the applicant was arrested. He declined at that time to be interviewed. A little bit later the applicant was interviewed with the assistance of a Vietnamese interpreter. He said that he had not personally handed the drugs to the undercover operative on the first occasion but he made full admissions in relation to the two incidents of 24 August. 5 The total amount of heroin supplied in all three transactions was .09 grams, which comes within the definition of a small quantity contained in the schedules to the Drug Misuse and Trafficking Act 1995.

subjective circumstances 6 The applicant was born on 2 September 1975, in Vietnam, the third of five children. He and his father escaped from Vietnam in 1990 and lived for four years in a Thai refugee camp. In 1994 they were granted refugee status in this country. It seems that the applicant's mother and siblings remained in Vietnam. Six months after their arrival in Australia, the applicant's father sponsored a woman he had met in a refugee camp to immigrate to this country and, on the applicant's view at least, became irresponsible towards the applicant's mother and siblings who were then still in Vietnam. The applicant moved out of his father's home and became independent. He had returned just two weeks prior to his arrest. 7 The applicant visited Vietnam in June 1998 where he met a woman whom he eventually married. However, before he could complete the process of sponsoring her immigration to Australia, he found that she had begun a relationship with another man in Vietnam and cut off all communication with the applicant and failed to give him any explanation for her decision. As a result the applicant became depressed and began to use drugs to which he became addicted. He was unable to work because of his depression and drug addiction. 8 Before the judge was a pre-sentence report, dated 14 August 2002, from which these subjective features are derived. The author of the report also stated that the applicant accepted his responsibility for the offences, that he had learned a lesson and that he could solve his problems in a more positive way. The author of the report appears to have formed a favourable view of the applicant's prospects of rehabilitation and recommended a program of supervision that would assist him on his release into the community. The favourable opinion did not extend to finding that the applicant was a suitable candidate for a term of imprisonment to be served by way of periodic detention, nor for a penalty by way of a Community Service Order.

the remarks on sentence 9 The sentencing judge expressly took into account the small quantity of the drug involved. He correctly directed himself that in heroin cases general detention is a very important factor in the sentencing decision. He noted that the applicant was on a Section 9 bond for a similar offence, that bond having been imposed on 3 April 2001, that is, less than five months before the commission of these offences. The judge accepted that the applicant had pleaded guilty at the first opportunity and allowed, pursuant to R v Thomson and Houlton [2000] NSW CCA 309; (2000) 49 NSWLR 383, reduction of the head sentence of fifteen per cent. He allowed credit for a period of twelve months and five days' pre-sentence custody and back-dated the sentences on the second and third charges to commence on the date of the applicant's arrest.

application for leave to appeal 10 On behalf of the applicant four grounds of appeal were argued. These were: "1 His Honour erred by imposing sentences which were individually and in total, manifestly excessive in the circumstances. 2 His Honour erred by failing to take into consideration that the offences could have been dealt with summarily. 3 His Honour erred by imposing a sentence for Count One twice as long as for the other counts when the objective seriousness of all three was very similar. 4 His Honour erred by failing to allow a discount for a plea of guilty of twenty-five per cent."

(i) ground two 11 It seems that initially the applicant was charged not only with the three counts to which he pleaded guilty, but also to a count of supplying prohibited drugs on an ongoing basis brought under s25A(1) of the Drug Misuse and Trafficking Act 1985. That charge was subsequently abandoned. The argument that was put on behalf of the applicant was that, had the s25A charge not been brought, the probability is that the three remaining charges would have been prosecuted in the Local Court, which had jurisdiction, and that he would have received the benefit of the considerably lower maximum penalty that could be imposed by that court. We were told that for a single offence the maximum sentencing jurisdiction of the Local Court is two years and for additional offences a total of three years is the maximum. 12 Reliance was placed upon the decision of this court in R v Crombie [1999] NSWCCA 297. It is pertinent to have regard to what was said in that case by Wood CJ at CL with whom I agreed. His Honour referred to previous decisions of this court (R v Dalton-Morgan, unreported, NSWCCA, 14 December 1989; R v Smith, unreported, NSWCCA, 11 September 1991; R v Shepherd, [1999] NSWCCA 162). These cases establish that the fact that a charge may be prosecuted at the Local Court, with its lower jurisdictional limit, is "a relevant consideration in the exercise of the discretion reserved to a sentencing judge".

However, Wood CJ at CL went on to say: "16 None of those decision go so far as to require the sentencing judge to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. At most they establish that the circumstance identified is to be taken into account. Depending upon the objective and subjective criminality of the offender, it may properly be regarded as calling for some mitigation of the sentence that would otherwise be imposed in the District Court for an offence prosecuted upon indictment. Moreover, where it appears that in the circumstance (sic) has been entirely overlooked by the sentencing judge, it may properly justify the granting of leave to appeal." 13 It is, however, correct that, in the present case, the sentencing judge did not make any reference to this circumstance. On behalf of the Crown it was argued that it would be wrong to assume that, had the applicant not been charged also under s25A, these three charges would have been dealt with summarily. This was a matter in which the Crown was entitled to elect to proceed on indictment, and the fact that the applicant was facing three counts was relevant to the exercise of that discretion. Further, it is relevant that the applicant, in committing the offences, was acting in breach of a recognisance for a matter of a similar kind. I have concluded that the absence of reference to the fact that the offences were of the kind that could have been dealt with in the Local Court does not demonstrate error in this instance.

(ii) ground three 14 The sentence imposed in respect of the first count was one of imprisonment for three years with a non-parole period of twenty months. The sentences imposed in respect of the other two counts were of imprisonment for a fixed term of eighteen months, to be served concurrently. Because the sentence in respect of the first count was specified to commence on 24 February 2002, and the other sentences were to expire on 23 February 2003, one year of the count one sentence is to be served concurrently with the other sentences. The reason the sentencing judge imposed a significantly lengthier sentence in relation to the first count was explained by him. He said that this was because, in relation to his role in this offence, he was involved with others. It was submitted that, even if this were so, it did not justify a sentence double the length of the other sentences. 15 I find it difficult to understand why his Honour took the view that the first offence was more serious than the other two offences because it could be seen to have been committed in association with other persons. It is to my mind perfectly plain that all offences were committed in conjunction with others. The applicant must have had access to suppliers. However it does not seem to me that the correct question has been posed. The question is not whether the first count justified a sentence double, or almost double, that of the subsequent offences. It is whether the sentence imposed in relation to that offence taken in isolation is within the range of sentences available for that offence. Of course, in considering that it is necessary also to consider the sentences imposed in relation to the other offences and questions of totality. In my opinion it has not been shown that the sentence imposed in relation to the first count was excessive. I will come to the manifestly excessive ground shortly. 16 Further, the Crown has taken issue with the contention that that sentence was double that of the other sentences. On behalf of the Crown it was pointed out that the non-parole period in respect of the first charge was twenty months and was specified to be served partially concurrently, and that when the full effect of the sentence is perceived, the appearance that that sentence was heavier than others proved to be an illusion. I think this is correct. The mere fact that one sentence in a series is longer that the others in the same series is not demonstrative of error. I would reject this ground.

(iii) ground four - discount for plea of guilty 17 Counsel for the applicant argued that the sentencing judge appeared to have intended to allow the maximum permissible discount for the plea of guilty, but in fact allowed only fifteen per cent. Certainly he did discount the sentence by fifteen per cent and stated expressly that he intended to do so. The basis for the assertion that he intended to allow the maximum discount, which, on the authority of R v Thomson, is twenty-five per cent, emerges from a discussion between his Honour and counsel for the applicant in the sentencing proceedings. Counsel who appeared for the applicant at that time is recorded in the transcript as saying: "I would suggest that he is entitled to the fifteen, the maximum." 18 He then stated that he meant by this fifteen per cent. Counsel for the Crown accepted that the applicant was entitled to a significant discount but argued that this was not at the maximum permissible because his plea was not entered at the earliest opportunity. A little later his Honour is recorded as saying: "Well it seems to me I accept what Mr Kelly (counsel for the applicant) says, that would be the first opportunity and I intend to allow the fifteen per cent Mr Kelly." 19 On the application for leave to appeal it was argued that a discount of twenty-five per cent should have been allowed. 20 I cannot accept that this is so. True it is that his Honour appears to have accepted that the plea was entered at the first available opportunity, and this appears to be a reference to the Crown's abandonment of the s25A charge. However, the other factors relevant to the evaluation of the utilitarian value of a plea of guilty did little to favour the applicant. The trial would have been neither lengthy nor complex, and would not have involved any particular distress to prosecution witnesses who were in the main, if not entirely, police officers. There would have been some inconvenience in undercover operatives being required to expose their identities and this is a relevant factor. I am not satisfied that a discount of fifteen per cent was not open to his Honour and indeed I am satisfied that it was. The only remaining question is whether his Honour intended to allow a maximum discount of twenty-five per cent and was diverted from doing so by the obvious misunderstanding of counsel for the applicant. I do not think the exchange between the legal representatives and his Honour can be so read. His Honour did not say that he intended to allow the maximum discount available to him; he said that he intended, in the light of what he regarded as an early plea, to allow "the fifteen per cent". 21 During the course of oral argument reference was made to a passage in the remarks on sentence in which his Honour said: "I accept that the prisoner pleaded at the first opportunity but in the face of a strong Crown case, particularly on the two counts of supply, the police saved the Crown time and expense, and on a utilitarian basis he is entitled to a reduction of the head sentence of fifteen per cent under Thomson."

It was argued that in this passage his Honour was equating the strength of the Crown case with the utilitarian value of the plea, or at least regarding that as a relevant circumstance in the evaluation of the utilitarian value of the plea. There is some merit in the argument that this passage could be read in that way. But overall I do not think that it should be so read. His Honour went on to refer to the saving in Crown time and expense in the context of the utilitarian value of the plea. I do not think this ground should succeed.

(iv) ground one: manifestly excessive 22 It is argued on behalf of the applicant that, objectively, these offences "were of the lowest level of seriousness for crimes of their type".

This is principally because of the quite small quantities of the drug involved on each occasion. The quantity of the drug is, of course, a relevant and significant consideration. Had this been the applicant's first offence, there may have been some merit in the argument. What could not be overlooked was that the applicant was on a bond in relation to a similar offence, and that, over a very short space of time, he committed three further offences. These circumstances meant that both general and personal deterrence were significant factors in the sentencing decision. 23 I am not persuaded that the sentences imposed were manifestly excessive nor that any error has been shown in the sentencing decision. I would grant leave to appeal but dismiss the appeal. 24 LEVINE J: I agree with Justice Simpson and the orders will be as she proposed.

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