REGINA v Ngoc Anh aka John NGUYEN [2004] NSWCCA 332 | Case summary

1 SPIGELMAN CJ: The Respondent was a Detective Sergeant of the New South Wales Police Service. On 8 April 2004 he pleaded guilty to the most serious of six counts on an indictment which the Crown accepted in full satisfaction of the indictment. The charge to which he pleaded guilty was: "Between 27 April 2003 and 25 July 2003 at Sydney in the State of New South Wales he did pursue a course of conduct in order to procure Steven Ho to plead guilty to a charge of 'goods in custody' knowing that Steven Ho was not guilty of the charge with intent thereby to pervert the course of justice." 2 The man Steven Ho referred to in the charge was related to Huong Nguyen, the Respondent's wife. 3 The offence is created by s319 of the Crimes Act 1900 and carries a maximum sentence of 14 years imprisonment. 4 27 April 2003, the date on which the course of conduct constituting the offence to which the Respondent pleaded guilty commenced, was the day on which Huong Nguyen, a flight attendant with Vietnam Airlines, arrived at Sydney International Airport to perform her duties on a departing Vietnam Airlines flight. Customs officers searched her hand luggage and found ten mobile phones. During the course of the search Huong Nguyen's personal mobile phone was contacted on about five occasions. Ms Nguyen disclosed that the caller was her husband and identified him as a New South Wales police officer. 5 On 28 April 2003 Customs officials provided advice to the Special Crime and Internal Affairs Command and an investigation was launched. Inquiries confirmed that four of the handsets were stolen. 6 The Respondent apprehended that his wife's involvement could impact on her application for residency in Australia. 7 Between 28 and 29 April 2003, the Respondent made contact with Customs officers in an attempt to claim the mobile phones, allegedly on behalf of the owner. Customs provided advice to the Respondent that if the mobile telephones were not now leaving Australia, they could be collected pending the presentation to Customs of proof of ownership, an authority from Huong Nguyen, together with identification of the persons claiming the mobile phones. This advice was provided despite the fact that Customs officials had referred the matter to police and despite the fact that at least four of the mobile phones were confirmed as being stolen. 8 On 29 April 2003 the Respondent made arrangements with a Customs officer to have the IMEI numbers for the phones faxed to him claiming that the owner needed the IMEI numbers in order to find the correct receipts. He said the owner was a "Mr Tran", but claimed not to know his contact number. Customs complied with the request. 9 On 28 and 29 April 2003 the Respondent contacted Steven Ho on a number of occasions. Mr Ho had family links to Huong Nguyen when she lived in Vietnam. He had previously been the operator of a mobile telephone business called Baulkham Hills Cellular World. During those conversations the Respondent persuaded Mr Ho to pretend that he was the owner of the mobile phones. 10 Mr Ho had no prior knowledge of the telephones. He was asked to fabricate receipts for them, but refused. He provided information about his business that allowed the Respondent himself to prepare false receipts. The Respondent told Mr Ho that the mobile phones had been given to his wife by a third person, who could no longer be found and reassured Mr Ho that the phones were not stolen. 11 During the course of 28 and 29 April the Respondent prepared a permission slip from Huong Nguyen and two documents purporting to be receipts for the mobile phones. At about 5pm on 29 April 2003 he met Mr Ho and took him to Sydney International Airport. On the way he showed Mr Ho the false receipts and advised him to pretend to Customs officers that he could not speak English. In fact Mr Ho spoke English, although poorly. 12 The Respondent and Mr Ho attended at Customs at the airport and the Respondent purported to be there as a translator. The receipts and other documentation were handed to the Customs officer and both men provided identification. Shortly after, by prior arrangement with Customs, two detectives from the Botany Bay Local Area Command came in to pursue their investigation. I will set out the events in greater detail below. It is sufficient to note certain matters at this stage. The detective informed the Respondent that some of the mobiles were stolen. In discussions that took place the Respondent denied any knowledge of the phones, or links with the business associated with the receipts, and affirmed his role as a translator only. Mr Ho was arrested. The Respondent took Detective Sergeant Richardson aside and informed him that he was a police officer and reaffirmed his role as a translator who was assisting a friend. 13 Following his arrest Mr Ho was taken to Mascot Police Station where he declined to participate in any further questioning. He was charged with having goods in custody and with receiving. He was granted bail. The Respondent provided Mr Ho with money for a taxi. 14 In telephone conversations, that were lawfully intercepted, the Respondent arranged a meeting between Mr Ho and his legal representatives and undertook to pay the legal fees of Mr Ho. Mr Ho indicated that he was scared of going to prison but the Respondent assured him that no one would go to prison over such a small matter. 15 On 5 August 2003 Mr Ho participated in an induced statement with police, and as a result proceedings against him were withdrawn. 16 On 25 August 2003 the Respondent was arrested and charged. He declined to participate in an interview with police. 17 Ellis DCJ, in his remarks on sentence, found that between 27 April 2003 and 30 May 2003 Huong Nguyen was in Vietnam. His Honour found that during the course of that visit she was subject to threats when she failed to produce the mobile phones to the intended recipients in Vietnam. His Honour found: "It would appear that Mrs Nguyen's explanation was not accepted by the intended recipients in Vietnam and I accept that the offender's wife was very scared and that she conveyed her fears to her husband …" 18 His Honour also made the following findings of fact: "The prisoner gave evidence that when he was told by police that four of the mobile phones were stolen that he panicked, that he was scared for himself because of his position as a police officer, and scared for his wife because of the issue of her current application for permanent residency. He gave evidence that apart from providing a cab fare on one occasion and undertaking to pay the legal fees, that he provided no money to Mr Ho and indeed offered no other money to Mr Ho. I accept his evidence in that regard. I also accept his evidence that he never threatened Mr Ho but he acknowledges that he continued to request or pressure Mr Ho to go along with the scam and that when Mr Ho changed his mind he pressed him to continue to accept the plea of guilty. But I accept that ultimately he told Mr Ho that Mr Ho had to do what he believed to be right and that on Mr Ho's declining to continue with the plea he did not in fact attempt to further pressure him, threaten him or provide him with a bribe of some type." 19 His Honour further found: "I accept his explanation that his motivation was fear for his wife's safety, concern about the impact on her Australian residency application, and concern about his career being jeopardised." 20 His Honour also made the following findings: "I find as a matter of fact that this offender used his friendship with Steven Ho to encourage or pressure Steven Ho to plead guilty. It is clear to the Court that the offender did not use violence nor threaten Mr Ho in any manner at all. The Court finds that the offender did not abuse or misuse his position as a police officer in any manner at all, this is not a case involving corrupt conduct by a police officer. This is the case of a person who happens to be a police officer committing an offence in his private capacity. That this offender was a police officer is no more relevant other than subjectively, than it would have been had he been a bank manager or a plumber. The Court finds that the offender did not stand to and did not personally gain at all from his offending conduct. The Court finds that the offender was motivated purely by his desire to protect his wife against the possibility of physical violence when she was in Vietnam, and in relation to the jeopardising of her application for Australian residency. The Court agrees with the psychologist's conclusion that the offender's loyalty to his wife created a panic reaction which substantially impaired his otherwise reasonably sound judgment." 21 Ellis DCJ referred to the range of specific offences associated with interference with the course of justice found in s314 to s326 of the Crimes Act. He described s319 as being "intended to otherwise cover the field of potential perversions of the course of justice". On this basis he described it as "a protean crime the continuum of criminality that reveals offences calling for sentences and imprisonment towards the upper range of the maximum penalty at one extreme, and offences calling for non-custodial punishment at the other". His Honour went on to refer to the "nearly limitless potential factual circumstances that could constitute a general offence of perverting the course of justice". 22 His Honour referred to the importance of the protection of legal proceedings and the need to punish an offender and to deter others. He acknowledged the authorities which establish that corrupt conduct by police officers in the course of their duties and corrupt conduct by individuals motivated by self-gain will lead to sentences of full time imprisonment. His Honour accepted that a case involving police corruption, i.e. by a police officer in the course of his duties, and offences motivated by personal gain would call for a sentence of full time imprisonment. His Honour did not regard the circumstances of this case as falling within either category. 23 His Honour stated that he assessed the criminality of the Respondent as being within "the lower to mid range of seriousness for offences" within s319. Nevertheless he said that this was "an extremely serious offence that at least prima facie calls for a sentence of full time imprisonment". His Honour reiterated the significance of general deterrence in sentencing for offences of this character, the need to protect the community and to denounce such conduct. 24 He noted that there were no applicable aggravating features from the list contained in s21A of the Crimes (Sentencing Procedure) Act 1999. He identified a range of mitigating factors in the personal circumstances of the Respondent. 25 The Respondent is a man of 30 years of age with no prior criminal convictions and of good character. His Honour formed the view that he was "unlikely to re-offend, has good prospects of rehabilitation, has shown remorse and is prepared to make reparation in the sense that he has indicated preparedness to pay for the legal fees of Mr Ho". His Honour also referred to the plea of guilty, the utilitarian value of which he assessed at the top of the range identified in judgments of this Court. 26 Ellis DCJ went on to refer to s5 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act") which requires the Court to consider all sentencing alternatives and to conclude that no penalty other than imprisonment is appropriate. His Honour did conclude that in this case no penalty other than imprisonment would be appropriate, in view of the range of sentencing objectives that needed to be served, including punishment and specific and general deterrence. 27 His Honour noted that because of the offender's background as a policeman he could be at risk in a periodic detention environment, referring to the report from the Probation and Parole Service. He also referred to a psychologist's report that expressed the opinion that: "The offender is a serious, responsible young man with traditional values whose actions in this offence were out of character and against his usual decision-making. It was noted that the offender was deeply ashamed, regretful of his behaviour and offered the view that he has let his parents and work colleagues down very badly." 28 His Honour referred to the evidence of the Respondent, which he generally accepted. He set out the personal background of the offender. His Honour noted his contribution to the police force, particularly in the Asian Crime Squad and as a Detective Sergeant in the South East Asian Crimes Squad. It is unnecessary to set out his Honour's observations in full. It is sufficient to say that the Respondent's background is entirely without blemish and reflects the achievement of a competent young man who has been, and remains capable of being, a useful and important citizen. 29 His Honour noted the Respondent's fear of being imprisoned, particularly the possibility of coming into contact with Asian gang members who, as one of the few Asian detectives in the New South Wales Police Force, he had been responsible for arresting, and also with members of a number of Lebanese criminal gangs. In particular he referred to his work as an undercover operative. His Honour noted that in these circumstances it was inevitable that the Respondent would be placed on strict protective custody with limited opportunity to participate in programs available in the prison. His imprisonment would be far harsher than otherwise would be the case. On this appeal the Crown has not sought to challenge the reliance Ellis DCJ placed on such allegedly harsher conditions of incarceration (cf R v Mostyn [2004] NSWCCA 97 at [179]-[180]; R v Way [2004] NSWCCA 131 at [176]-[177]). 30 His Honour summarised the Respondent's position in the following passage: "… As a consequence of committing this offence, the offender has lost a successful and promising career as a police officer. He has lost the respect and regard that is, a loss of face of his work colleagues, the Vietnamese community, his family and friends, and he has lost financially through lost income and legal expenses for himself and those he has undertaken to pay on behalf of Mr Ho." 31 His Honour did draw the conclusion that "no penalty other than imprisonment is appropriate" and imposed a sentence of two years and six months which, by reason of the plea, was reduced to a period of one year and ten months. His Honour then said: "Having regard to the exceptional subjective features of the offender, the punishment and penalties already suffered by the offender, that the offender is unlikely to re-offend, that he has excellent prospects of rehabilitation and that it is inappropriate to send the offender to gaol for the first time, especially as any such sentence would need to be served on protective custody, the court has concluded that the sentence should be suspended." 32 His Honour noted that a suspended sentence is still capable of reflecting both general and specific deterrence and referred to R v Zamagias [2002] NSWCCA 17. 33 His Honour imposed the sentence and suspended it pursuant to s12 of the Sentencing Procedure Act, on condition that the Respondent enter into a good behaviour bond for the term of the sentence. 34 The Crown appeals from what it submits is the manifest inadequacy of the sentence. It submitted that any sentence other than full time custody was inappropriate in all the circumstances of this case. 35 The Crown submitted that the offence was carried out in a calculated manner: approaching Mr Ho to assist; preparing false documents; knowing the documents to be false, using them in approaches to Customs officials; persuading Mr Ho to pretend to be unable to speak English and explaining his own presence as an interpreter; permitting Mr Ho to be charged with an offence which he knew he had not committed and pressuring him to plead guilty. 36 The Crown submitted that specific legal error occurred by his Honour's failure to treat the fact that the Respondent was a serving police officer as a matter of aggravation. It also submitted that his Honour's characterisation of the criminality as "low to medium" in the range was an error. Finally, it submitted that the sentence was manifestly inadequate in the requisite sense. 37 I have extracted above the passage from his Honour's remarks on sentence in which his Honour dismissed as irrelevant the fact that the Respondent was a police officer. His Honour emphasised that this offence was not committed in the course of duty, but in a "private capacity". In my opinion, his Honour's analysis is flawed. 38 The fact that the offence of perverting the course of justice is committed by a person directly involved in the administration of justice is a relevant consideration, even if the conduct does not occur in the course of that person's official duty. Furthermore, it is not accurate to say, with respect to the present case, that the Respondent's status as a police officer had nothing to do with the commission of the offence. 39 There is authority in this Court to the effect that it is relevant that a person who commits an offence with respect to the administration of justice is a police officer. In R v Chapman (NSWCCA, unreported, 21 May 1998) the Court was concerned with a charge of making a false statement on oath, contrary to s330 of the Crimes Act 1900. The Respondent to a Crown appeal was a police officer who had shot a deer in a national park. In the course of giving evidence in the Local Court, with respect to a contravention of the National Parks & Wildlife Act 1974, the Respondent had denied that he went to the national park with a rifle. Two weeks after that evidence it was clearly established that he had taken his rifle to the national park. 40 Simpson J, with whom Studdert and Newman JJ agreed, said in the course of dealing with a Crown appeal against inadequacy of sentence: "Another matter argued by the Crown concerned the circumstances that the Respondent was, at the time he gave his evidence, a serving police officer. The Crown argued that this was a factor calling for more severe penalty. On behalf of the Respondent it was argued that, as he was charged, and gave evidence, in his private capacity, that fact should not operate against him on sentence. I do not agree. Those concerned in the administration of the law must be taken to appreciate the supreme importance of truthful evidence being given in judicial proceedings. The Respondent did not cease being a police officer, or carrying out the duties and responsibilities, and having the privileges of that office, because these events arose out of recreational and not professional activities. He must be taken to have known, better than most, how important the curial procedure is, and with what respect it must be treated. These matters all tended to severity rather than leniency." 41 Later in her judgment, her Honour reiterated the proposition when she said: "The fact that the Respondent was a serving police officer underlines the seriousness of the offence." 42 This reasoning is applicable to the present case. There are a number of other authorities to similar effect. (See Fox & Frieberg Sentencing: State and Federal Law in Victoria (2nd ed) Oxford Uni P, Melbourne, 1999 at [3.622]; note particularly the unreported Victorian case of R v Edwards (Victorian Full Court, unreported, 6 October 1981) discussed in Fox & Frieberg. See also R v Moyse (1988) 38 A Crim R 169 esp at 171-172, 176, 177; R v Wright (No 2) [1968] VR 174 at 181 lines 15-40; R v Whelan [1997] VSCA 232 at 4; R v Pilarinos [2001] VSCA 9 at [15]-[16].) 43 One of the purposes of sentencing is the denunciation of the conduct in which an offender has engaged. This purpose is now expressly stated in s3A(f) of the Sentencing Procedure Act. In my opinion, the fact that a person, like a police officer, who is directly involved in the administration of justice acts in a way that perverts the course of justice means that the object of denunciation is entitled to greater weight in the sentencing exercise than it is in the case of other offenders. 44 For these reasons his Honour erred in proceeding on the basis that the fact that the Respondent was a police officer was irrelevant to the sentencing exercise because the conduct occurred in a private capacity rather than in any official capacity. 45 Furthermore, as I have indicated above, the Respondent's position as a police officer was not entirely irrelevant to the circumstances of the offence. I put to one side the fact that the false documents were concocted on a Police Service computer at the Cabramatta Police Station, during the period when the Respondent was attending to his operational duties and the fact that he used a covert police vehicle to transport himself and Mr Ho to Sydney International Airport. I set these matters aside, although they are pertinent background facts, because they did not constitute conduct involved in the course of committing the offence to which he pleaded guilty. 46 As noted above, the Respondent presented himself as an interpreter for Mr Ho in an attempt to deceive Customs officials with respect to the provenance of the mobile phones. It was during the interview between police officers and Mr Ho and the Respondent at the airport that he became aware of the fact that a number of the mobile phones were in fact stolen. He realised immediately that the situation was more serious than he anticipated. I have quoted above his Honour's finding of fact that at this time the Respondent panicked and became scared both for himself "because of his position as a police officer" and for his wife, because of her application for permanent residency. 47 Contrary to the Crown submissions made to this Court, the actual offence for which he was convicted was an offence which was spontaneous. The degree of planning and pre-meditation that went into the preparation of the documents and the arrangement for Mr Ho to appear was not a form of pre-meditation that is pertinent for the sentencing exercise for the offence to which he pleaded guilty. 48 It was in this context that he informed the police officers who had interviewed Mr Ho that he was a Sergeant with the New South Wales Police. After indicating that fact to the investigating police, he reaffirmed his role as a mere translator and permitted the arrest of Mr Ho to continue. 49 Mr D Fagan SC who appeared for the Respondent submitted that as nothing was put to the Respondent in his cross-examination that he was using his status as a police officer in order to ensure that the matter proceeded against Mr Ho personally, it cannot be said that he must have understood that that was what he was doing. That may be so. The fact remains that he informed the police officers of the fact of his occupation and permitted the matter to proceed in the light of that knowledge. 50 Furthermore, the evidence before the sentencing judge included a number of intercepted conversations in one of which Mr Ho told the Respondent that his barrister advised him that he would, as a result of pleading guilty to the offence, have a record and that he may be imprisoned. The Respondent assured Mr Ho that "no-one will go to prison because of a small matter like that". In this respect he was using his knowledge of the criminal justice system in a manner calculated to convince Mr Ho to continue with the course of conduct in which he had embroiled him. 51 For these reason also, in my opinion, the sentencing judge erred when he proceeded on the basis that the Respondent's status was an irrelevant factor in the sentencing exercise. 52 The Crown also relied on the proposition that the sentence was manifestly inadequate and drew particular attention to the sentencing judge's characterisation of the criminality of the offender in the following terms: "The court has assessed the criminality of this offender as being within the lower to mid range of seriousness for offences that fall within the ambit of s319." 53 In this part of his reasons, his Honour appeared to be referring only to the objective gravity of the offence. It was later in his remarks on sentence that his Honour outlined the strength of the Respondent's subjective case. On any view an offence in the "mid range of seriousness" of offences under s319 would call for a full time custodial sentence, save in the rare case. No doubt for this reason Mr Fagan SC emphasised the "low" part of his Honour's reasoning. 54 I do not see that the objective gravity of this offence could be assessed as "low". Encouraging a person to plead guilty to an offence, which that person did not commit, and thereby allowing a citizen to acquire a criminal record and to suffer criminal punishment is, in my opinion, a significant form of the offence of perverting the course of justice. 55 Ellis DCJ distinguished a number of authorities in this Court on the basis that the offences had been committed by some person with a view to them obtaining monetary gain for themselves. However, personal advantage can take many forms. Greed may be regarded as a less worthy motive than protection of a family member. The latter is no less a form of personal gain to an offender and, often, is a more powerful motive. Protection of the system of criminal justice should not be significantly less vigilant where its perversion is attempted for reason of family ties, rather than the expectation of monetary gain. 56 Furthermore, in this case, on his Honour's findings of fact and on the agreed statement of facts before the Court, the Respondent's motivation was not entirely to protect his wife and their relationship. In part it was motivated by his wish to protect himself from the consequences of his involvement up to that point of time, by producing false documents for an illegal purpose. The Respondent was placed in the position where many people find themselves placed who commence a course of improper or illegal conduct. In order to protect themselves they have to exacerbate the severity of the conduct in which they engage. The dilemma, such as it is, is self-made. 57 It is plain that the reason the sentencing judge imposed a short sentence, which he proceeded to suspend, was the strength of the Respondent's subjective case. On any view his Honour was entitled to give that case considerable weight. Nevertheless it was not entitled to such weight as to result in the considerable leniency of a suspended sentence. In my opinion, notwithstanding the Respondent's subjective case, the end result that the Respondent served no time in custody was a sentence that was manifestly inadequate in the relevant sense. For this alternative reason this Court should intervene. 58 As often happens with a case in which a criminal offence has been committed by an individual who would normally be punctilious about observing his obligations and who is most unlikely to re-offend, there is a high sense of tragedy associated with the events which propelled the offender to commit the crime. Most of those circumstances are set out in the judgment of Ellis DCJ and it is not necessary to repeat them here. It is clear that the Respondent has already suffered to a very substantial degree from the aberrant behaviour in which he engaged. He has lost his job and to a considerable, but not necessarily irreversible, degree he has lost his reputation and his future prospects. From the point of view of society, the administration of justice has lost a person who has made a substantial, indeed in many respects unique, contribution to the rule of law in this community and was clearly capable of continuing to make such contribution for many years in the future. 59 Notwithstanding the strong subjective case which the Respondent has made, I have nevertheless come to the conclusion that the objective gravity of the offence, particularly one committed by a serving police officer, requires a period of actual custody in order to serve the purposes of general deterrence and denunciation of the conduct. 60 The total length of sentence which Ellis DCJ imposed of one year and ten months could well be regarded as inadequate. The Crown made no submission about the length of the sentence but concentrated on the failure to impose full time custody. 61 In the context of a Crown appeal and the restraints upon this Court in such an appeal, the Court should accept the period which his Honour reached after taking into account a wide range of factors, including the plea. This appeal has come before the Court expeditiously and the Respondent has been at risk under the suspended sentence for a period of almost three months. Section 70 of the Sentencing Procedure Act prevents this Court backdating a sentence to his Honour's commencing date of 30 June 2004. This requires an adjustment of the term. 62 Accordingly, the orders I propose are:

REGINA v Ngoc Anh aka John NGUYEN

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