Regina v Nhan Thanh Truong

Court of Criminal Appeal (NSW)|1999-08-06|Before: Carruthers AJ, Levine J, Blanch CJ

New South Wales Court of Criminal Appeal CITATION : Regina v Nhan Thanh Truong [1999] NSWCCA 272 FILE NUMBER(S) : CCA 60469 of 1998 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 6 August 1999

NHAN THANH TRUONG JUDGMENT OF : Carruthers AJ at 1; Levine J at 35

R D Ellis (Crown) COUNSEL : P M Skinner (Applicant) C K Smith (Crown) SOLICITORS : T A Murphy (Appliant) CATCHWORDS : Appeal against severity of sentence - demand money with menaces - question of parity between co-offenders - deterrent element of importance in protection rackets DECISION : See paragraph 34

1 CARRUTHERS AJ: Nhan Thanh Truong seeks leave to appeal against a sentence imposed upon him by his Honour Judge Blanch, Chief Judge of the District Court on 6 August 1998 when the applicant pleaded guilty to one count under s 99 of the Crimes Act 1900, of demanding money with menaces with intent to steal. That offence was committed on 21 February 1997. Section 99 provides a maximum penalty of penal servitude for 10 years. 2 After receiving evidence on the question of sentence and submissions by respective counsel, his Honour on the same day sentenced the applicant to a minimum term of three years and six months penal servitude to commence on 21 February 1997, the date upon which the applicant was taken into custody, and to expire on 20 August 2000. His Honour fixed an additional term of one year and two months to commence on 21 August 2000 and to expire on 20 October 2001. Accordingly, the applicant received an overall sentence of four years and eight months. 3 The applicant was born on 2 March 1974. He is of Vietnamese background and came to this country at a relatively young age. At the date of the subject offence he was unemployed. 4 Agreed facts were tendered before his Honour and in view of the argument that has been addressed to this Court, I shall incorporate those agreed facts, which were under the hand of Detective Senior Constable Jacovou, in this judgment. "On Wednesday evening the 19th of February six Asian males entered the "Wild Orchid" massage parlour and demanded protection money from one of the staff Dennis HA. He informed them that the "boss" was not in at the time. They said to Ha that if the boss did not allow them to "look after" the establishment there would be big trouble. They then said to Ha that they would telephone the parlour later on that night. At about 10.00pm that evening, a phone call was received at the "Wild Orchid" by another staff member Thanh Phuong Cao. A male person who introduced himself as "Tony" asked to speak with the boss of the establishment about the protection money. Cao informed him that the boss was not there but he wanted to know how much protection money they wanted. Tony replied "five hundred dollars a week". Cao then asked Tony if the boss could see him in person to discuss this. Tony agreed and he made arrangements to meet the boss on Friday at 7.00pm".

5 This incident was reported to the Police by the manager of the Wild Orchid parlour Stephen Ho. As a result, Police mounted an operation on Friday afternoon the 21st of February 1997. A hidden video camera was installed in the office of the parlour. Detective Jacovou and Knezevic took up positions within the parlour and other Police were strategically placed in the vicinity. Surveillance was then commenced.

6 At about 6.35pm that evening, the accused Truong was observed by Police to be loitering at a telephone box directly across the road from the Wild Orchid massage parlour. He was with the co-accused Nguyen. They were observed to be continuously looking up at the windows of the parlour. Truong was wearing a short sleeve black T-shirt at the time. Nguyen was wearing a blue jacket with a USA logo on the front of it. A short time later Truong and Nguyen were observed to leave the telephone box and walk north in Pitt Street towards Goulburn Street.

7 A very short time later Police observed the other two co-accused Ly and Karauwan go to the same telephone box directly across the road from the Wild Orchid. These two males were also observed to be continuously glancing up at the windows of the parlour. The accused Ly was wearing a black vest and the accused Karauwan was wearing a sloppy jo with stars and stripes. A short time later Ly and Karauwan were observed to cross the road and into Cunningham Lane which runs adjacent to the Wild Orchid.

8 A short time after that Ly and Karauwan entered the Wild Orchid and sat on the lounge at the reception area of the parlour. Detective Knezevic was also sitting near the bar at the reception area. Detective Jacovou was waiting in the office of the parlour. A very short time later the accused Truong and Nguyen also entered the parlour. They spoke with staff member Dennis Ha and then Ha escorted them into the office where Detective Jacovou was waiting.

9 Truong then introduced himself as "Tony" to Detective Jacovou assuming that Detective Jacovou was the boss of the parlour. The accused Truong then said to Detective Jacovou "you know why we are here". When he asked as to why, the accused Truong replied "our brothers were here a couple of nights ago". He then went on to say "we want five hundred a week for protection". The accused was then asked by Detective Jacovou "what happens if we don't pay?" Truong replied "if you don't pay, tonight you have trouble, but if you pay, I guarantee you are safe". The accused Truong was then asked by Detective Jacovou to supply his phone number, but after discussing with the co-accused Nguyen, he declined to leave a phone number and he said "no phone, we back nine o'clock". Detective Jacovou then said to the accused Truong that he didn't want any trouble. The accused Truong replied "if you pay money, no trouble".

10 The accused Truong and Nguyen then left the Wild Orchid and walked out into the street. The other two co-accused Ly and Karauwan immediately followed them out of the parlour. All four were then arrested by Police.

11 Truong was later interviewed in relation to this matter in the presence of his solicitor and an interpreter from the Ethnic Affairs. He declined to answer any questions.

12 There were some other statements tendered before his Honour which do not, however, relevantly bear upon the factual matrix upon which his Honour sentenced the applicant. 13 When sentencing the applicant, his Honour indicated that it was not possible on the facts provided to him to make an assessment of the relative parts played by the offenders in the commission of the offence, but it was perfectly plain from the evidence before him that the applicant was certainly a full and active member of the group of people who decided to commit the offence. The Chief Judge said during his remarks on sentence: "So much is perfectly plain by the fact that he was the spokesman to the police officer in the belief that the police officer was the person who was in charge of the massage parlour."

14 Importantly, the Chief Judge also said: "There is a strong element of a need for general deterrence in a case such as this, particularly bearing in mind the criminal history of the prisoner. The offence itself is obviously a very serious offence, bearing in mind the interest of the community in discouraging standover tactics, particularly in the Asian community and bearing in mind that those sorts of matters come before the courts quite often."

15 It is significant that the Chief Judge found it necessary to refer to the prevalence with which matters similar to the present matter come before the courts. It is of course a matter of grave public concern that standover tactics with threats of violence be used in order to seek to obtain protection money from institutions and, accordingly, such offences should be the subject of deterrent sentences. 16 The prior criminal record of the applicant, which was before the Chief Judge, demonstrates a clear manifestation of a refusal on his part to abide by the law, despite leniency consistently afforded to him. Specifically, his criminal record includes a sentence of three and a half years which was imposed on 2 September 1993 in relation to the offence of attempted armed robbery. Also of significance is that the present offence was committed on 21 February 1997 whilst the applicant was on a two year recognisance which had been granted to him on 12 July 1995. 17 Basically, there are three grounds of appeal. The first ground is that of an alleged lack of parity between the applicant's sentence and those which were subsequently imposed upon two or possibly three of his co-offenders. 18 The two co-offenders of particular significance for the parity argument are Kiet Ho Nguyen, to whom I shall refer as Nguyen, and Johannes Karauwan, to whom I shall refer as Karauwan. Nguyen is of Vietnamese descent and Karauwan is of Indonesian descent. These two offenders, unlike the applicant, pleaded not guilty, Nguyen to one count under s 99 in the same terms as that to which the applicant pleaded guilty. Karauwan pleaded not guilty to a similar count under s 99. He also pleaded not guilty to one count of possession of a loaded pistol contrary to s 7 of the Firearms Act, 1989. 19 After a trial lasting some days, both Nguyen and Karauwan were convicted of the s 99 charges and Karauwan was also convicted of the firearms charge. The trial took place before Naughton DCJ in the Sydney District Court and a jury of twelve. This Court has the benefit of the remarks on sentence when both Nguyen and Karauwan were sentenced. 20 I do not propose to descend into a great deal of particularity so far as the factual matrix upon which each of Nguyen and Karauwan were sentenced, or indeed their relative subjective circumstances. Some matters, however, do call for comment. 21 The evidence before Naughton DCJ established to his satisfaction beyond reasonable doubt that when the co-offenders accompanied the applicant to the massage parlour Karauwan was in possession of a loaded automatic pistol, as indeed, was the fourth co-offender Minh Han Ly. During the course of his remarks on sentence Naughton DCJ observed with regard to both Nguyen and Karauwan that they demonstrated no contrition, and that in the case of Karauwan he is liable to deportation to Indonesia upon completion of his sentence. As to prior criminal records, Nguyen had a lesser criminal record than that of the applicant. However, Karauwan had no prior criminal record and was held by Naughton DCJ to be a person of good character. 22 Minh Han Ly, to whom I shall refer as Ly, was tried before Gibson DCJ on an identical count under s 99 to the other co-offenders and an identical count under s 7 of the Firearms Act to Karauwan. For reasons which it is not necessary for this Court to concern itself, there was a verdict by direction with regard to the s 99 count, and Ly pleaded guilty to the charge under s 7 of the Firearms Act. Ly had a substantial criminal record. Gibson DCJ sentenced him to a minimum term of three years and an additional term of one year. The maximum sentence for the firearms offence is ten years. 23 During the course of his remarks on sentence, Naughton DCJ carefully compared the factual and the subjective circumstances so far as the applicant Nguyen and Karauwan were concerned. This was an extremely difficult task because the objective circumstances in respect of the three men were different, as, indeed, as has probably already been made clear, so were their subjective circumstances. 24 One matter of particular interest is that the Crown led no evidence on the sentencing proceedings before the Chief Judge, in relation to the applicant, to the fact that at the time the demands with menaces were being made by the applicant, Karauwan and Ly were on the premises each in possession of the loaded pistols to which I have already referred. The evidence before Naughton DCJ was to the effect that at no stage were those pistols produced and perhaps the Crown in the subject case took the view that in those circumstances it was appropriate that evidence that they possessed those pistols should not be presented before the Chief Judge. 25 An interesting question has arisen as to whether on a parity argument this Court is entitled to take into consideration the distinct possibility that if this evidence had been before the Chief Judge there would have been a significant increase in the sentence which he imposed upon the applicant. However, I respectfully agree with the submission which was ultimately put to this Court by Mr Ellis on behalf of the Crown that at the end of the day this is not a matter with which this Court need concern itself. I rather suspect, however, that it is a problem which will arise more acutely in some future case. 26 Having, so far as he could, compared the respective cases, Naughton DCJ resolved that both Nguyen and Karauwan should receive the same sentences as the applicant. In Karauwan's case, this was the same overall sentence because the sentence which his Honour imposed in relation to the possession of the loaded pistol offence was fixed to run concurrently with the sentence which he imposed on the s 99 offence. 27 By way of general comment, may I say that Lowe's case (1984) 154 CLR 606 contemplates that a prisoner, when sentenced in relation to a joint criminal enterprise with one or more co-offenders, may have a sense of grievance if the sentences which are imposed on a co-offender or co-offenders are relatively less severe than that imposed upon him or her if the circumstances (both subjective and objective) are such that it is possible for the relevant court to determine that there was a lack of parity between the sentences. It is not generally possible to reach such a conclusion if there are distinct differences between both the objective and the subjective features associated with each offender. 28 Thus in the present case there were a number of unequal characteristics by way of prior criminal records. The applicant had by far the worst prior criminal record and it was a bad criminal record at that. Karauwan had no prior criminal record. As to the three convicted of the s 99 offence, the applicant played by far the most significant role. He was the spokesperson and apparently the ringleader. 29 Thirdly, the applicant pleaded guilty which might be thought to have been an acknowledgment of the inevitable, bearing in mind the elaborate precautions that had been taken beforehand by the investigating police officers to ensure that any incriminating evidence would be recorded. 30 Nguyen and Karauwan on the other hand had pleaded not guilty. Ly was dealt with only in relation to the firearms offence. The evidence against Nguyen and Karauwan included the possession by them of concealed weapons. That evidence was not led with regard to the present applicant. 31 This Court in Hodges (1997) 95 A Crim R 85, pointed out the difficulties associated with parity arguments when co-offenders are sentenced in relation to different factual matrixes. If I may respectfully say so, Naughton DCJ carefully attempted, bearing in mind the difficulties with which he was confronted, to achieve parity between the three persons convicted under s 99 and, in my respectful view, achieved the highest degree of parity that the circumstances permitted. It is true that the parity argument is not denied to the applicant by reason of the fact that he was sentenced prior to Nguyen and Karauwan. However, when one considers the approach of Naughton DCJ and the regime of parity which he attempted to achieve, then it seems to me that together with the general problems to which I have adverted that there is no substance insofar as the applicant's arguments on parity before this Court are concerned. 32 The remaining two matters might be dealt with more shortly. It was submitted, secondly, that there was an insufficient discount for the plea of guilty. The Chief Judge specifically mentioned the fact that there had been a plea of guilty and that it was being taken into account. Obviously, this was not a case which called for a significant discount bearing in mind the factors to which I have referred. However, the applicant was entitled to some discount consistently with cases such as Winchester (1992) 58 A Crim R 345, and I am satisfied that he got such a discount. 33 Finally, it was argued, mainly by reference to Judicial Commission statistics, that the sentence was manifestly excessive. There is in my view no substance in this argument. This was a particularly serious offence in a climate where a strong deterrent element was necessary so far as the calculation of the appropriate sentence was concerned. The applicant had very little by way of subjective circumstances to assist him and the sentence imposed by his Honour both insofar as the minimum term and the additional term are concerned was within the discretion available to him. 34 For these reasons, although I would in the circumstances, bearing in mind that the applicant was sentenced prior to the other offenders and some of the other matters which this Court has been called upon to consider, that leave to appeal should be granted but that the appeal should be dismissed. 35 LEVINE J: I agree and the orders will be as proposed by Carruthers AJ. ***********

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