R v Vo

R v Vo - [2003] NSWCCA 124 - NSWCCA 2003 case summary — Zoe

[9]

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.

[14]

(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.

[15]

(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."

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Judgment (19 paragraphs)

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Cases Cited (4)