Regina v Vu

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0549 FILE NUMBER(S) : LOWER COURT Dagleish AJ JUDICIAL OFFICER :

• 11 - IN THE COURT OF CRIMINAL APPEAL 060247/03

SPIGELMAN CJ O'KEEFE J GREG JAMES J

31 OCTOBER 2003 REGINA v TUAN CHAN VU Judgment 1 SPIGELMAN CJ: I invite Mr Justice O'Keefe to deliver the first judgment. 2 O'KEEFE J:

Tuan Chan Vu, the applicant, has applied for leave to appeal against sentences of imprisonment imposed in the District Court on 12 July 2002. The applicant had pleaded guilty to two offences, namely: (i) on 3 January 2002 he supplied a prohibited drug, namely heroin, the amount involved being 0.37 grams; (ii) on 8 January 2002 he supplied a prohibited drug, namely heroin, the amount involved being 84 grams in contravention of s 25 of the Drug Misuse and Trafficking Act 1985. 3 The maximum penalty for the first offence is imprisonment for two years, or fifty penalty points, $5,500, or both. The maximum penalty for the second mentioned offence is imprisonment for fifteen years, or 2,000 penalty points, or both. 4 In the District Court the Judge (the Judge) sentenced the applicant to imprisonment for a fixed term of six months to commence on 26 June 2002 and to expire on 25 December 2002 in respect of the first offence. The penalty imposed in respect of the second offence was imprisonment for four years to commence on 26 December 2002 and expire on 25 December 2006. The Judge fixed the non-parole period in respect of this offence as three years to expire on 25 December 2005. 5 The applicant has raised the following grounds of appeal: (1) the sentence imposed was manifestly excessive; (2) the Judge erred in not giving the appropriate weight to the applicant's plea of guilty; (3) the Judge erred in not imposing concurrent sentences; (4) the applicant's sentence is excessive in comparison to the sentence imposed on his co-accused; (5) the Judge erred in failing to consider special circumstances and rehabilitation.

The Facts 6 On 3 January 2002 the applicant supplied 0.37 grams of heroin to undercover police officers in Lewisham following discussions with them about such supply. The heroin was concealed in two water balloons that were in the applicant's mouth. These were removed and handed over after the deal had been struck. 7 There was then further conversation between the applicant and the police in the course of which he agreed to meet them again and supply three ounces (86 grams) of heroin to them on a later date. 8 On 8 January 2002 the applicant arrived at Park Road, Marrickville and had a discussion with his co-offender, Tran, who was seen to hand the applicant a blue coloured napkin, in which heroin was concealed. The applicant then met the two undercover police officers who gave him $23,700 in cash. In return he gave them the napkin and concealed heroin that was found to be 84 grams in weight and 27 per cent pure. The event was recorded on a recording device, for which appropriate authority under the Listening Devices Act 1984 had been obtained. 9 The applicant was subsequently arrested and by way of explanation claimed that he was selling the drugs for Tran in order to pay off a gambling debt. Tran, on the other hand, claimed that he took the drugs to the applicant as a favour and to pay off a gambling debt that he had. 10 Tran was charged with one offence and was sentenced by Judge Williams in the District Court, after the applicant had been sentenced. Tran's sentence was three years and six months, with a non-parole period of two years. 11 In the form expressed in the notice of appeal, grounds of appeal numbered 2 to 5 are, in effect, the asserted errors that are said to give rise to the sentence of four years imprisonment being excessive. Ground 5 has an additional connotation, that is, it is concerned with the relationship between the head sentence and the non-parole period, it being claimed, in effect, that the Judge failed to consider special circumstances that should have led to the applicant being dealt with more favourably in respect of his non-parole period. 12 It is convenient, therefore, to look at the individual grounds before returning to the first ground, namely, that the sentence imposed was manifestly excessive.

Ground 2 13 In his remarks on sentence the Judge adverted to the applicant's plea of guilty and that it had been an "early plea". He also took into account that the applicant had shown contrition. These two factors in combination gave rise to a discount of almost a year in the total term that would have otherwise been imposed. Thus, the allowance made in respect of the plea of guilty, and the contrition that it evidenced was some 20 per cent. This is well within the range referred to in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 418, paragraph 152. 14 It does not bespeak error and certainly does not fall within the type of case that would entitle this Court to interfere with the exercise of the discretion involved in fixing this discount (House v The King (1936) 55 CLR 499 at 504-505). In my opinion this ground of appeal fails.

Grounds 3, 4 and 5 15 Although each of these grounds was advanced as a separate basis for challenging the overall sentence imposed, they should, in my opinion, be taken in conjunction with one another. Indeed, on the hearing of the appeal that was the way they were dealt with by Senior Counsel for the applicant. He argued that there should be at least some partial concurrence of the two sentences by reference to: (i) the fact that the first sale of heroin involved a small quantity and the occasion of sale was used as the occasion for the undercover police officers seeking a larger quantity from the applicant; (ii) the cumulative nature of the two sentences meant that whereas the co-offender was sentenced on the basis he should receive a head sentence that was six months less than the head sentence fixed for the applicant, his non-parole period two years. The applicant, on the other hand, received sentences that totalled four and a half years and meant he would not be eligible for parole for a period of three and a half years. This was the error ... in relation to at least the non-parole period; (iii) the age, ill health, lack of previous convictions and good prospects of rehabilitation should have led, or should now lead, to a finding of special circumstances that would, or now will, reduce the non-parole period so as to bear a relationship to the non-parole period for Tran that did not result in a marked disparity of such a kind as to give rise to a justifiable sense of grievance. 16 The Judge considered the question as to whether or not the sentences imposed in respect of the offences of 3 January 2002 and 8 January 2002 should be made concurrent. When the matter was raised he said that he intended to accumulate the sentences "because they are two separate offences ... each ... deserving of a term of imprisonment". However, in the light of such a finding it would then have been appropriate to consider the question of the totality of the criminality involved in the two offences, and to have had regard to that factor in relation to the overall sentence. 17 That was not done and in my view it should have been done. Furthermore, the offences were linked in the sense they involved the same supplier and the same recipients and the second supply was arranged, or at least set up, at the time of the first supply. Whilst this is adverse to the applicant in one sense, it does, in my opinion, link the two sales in a way not considered by the Judge. The fact that no reference was made to the principle of totality, and that there was no degree of concurrence of the two sentences, suggests that the principle was not applied. This bespeaks error. 18 Another complaint made on behalf of the applicant is that he was sentenced to imprisonment for four years with a non-parole period of three years, whereas Tran, a co-offender was sentenced to three years and six months, with a non-parole period of two years. Tran's sentence related to the offence committed on 8 January 2002. 19 The principles concerning parity of sentences were dealt with in detail by the High Court in Postiglione v The Queen (1996-1997) 189 CLR 295. Dawson and Gaudron JJ said: "The parity principle ... is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated ... The parity principle, as identified and expounded in Lowe v Regina (1984) 154 CLR 606 recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a 'justifiable sense of grievance'. (Supra at 301, italics added)." 20 The Judge determined the sentence for the applicant before his co-offender was sentenced. Judge Williams sentenced Tran on the basis that Vu's involvement was greater than that of Tran and adverted to factors such as initial sale and the organisation of the sale of the larger amount by Vu as indicative of a more significant role in the enterprise. That was sufficient to distinguish the two cases and to justify the imposition of a lighter head sentence on Tran. 21 The extent of the difference, namely six months, does not in my view bring the head sentence within the principles set out above. However, it does leave for consideration questions of accumulation or concurrence, and the relationship between the non-parole periods fixed in both cases. 22 At the sentence hearing no reference was made to special circumstances by counsel then appearing for the applicant. In the submissions made on the sentence hearing, counsel addressed on contrition, the plea and the unlikelihood that the offender would re-offend, and argued that if a custodial sentence were to be imposed a non-parole period should be fixed. That submission was in the following form: "I would ask your Honour to consider a not particularly long sentence ... and I'd ask you to consider that if you are going to send him to gaol that you would also fix a non-parole period." 23 No submissions were put to the Judge that there were special circumstances by virtue of which the statutory proportion between the head sentence and the non-parole period should be varied from that specified in s 44 as it then stood. Because no submission was put to the Judge concerning special circumstances he did not refer to it in his remarks on sentence, nor did he reflect it in the sentence imposed. 24 However, on the appeal, the following factors were relied upon as constituting special circumstances, namely: (i) the age of the applicant (42);

Each of these matters is capable of constituting special circumstances, but a finding of special circumstances based on such considerations is not mandated by the Crimes (Sentencing Procedure) Act 1999 (the Act) or otherwise. 25 Section 44 of the Act as it stood at the time of the commission of the offences provided that the non-parole period must not be less than three-quarters of the terms of the sentence unless the Court decides there are special circumstances for it being less. In such a case, the Court must record its reasons for that decision. However, it is not mandatory that a non-parole period be fixed. 26 Pursuant to s 45 of the Act, the Court may decline to set a non-parole period if it is appropriate not to do so because, for example, of the nature of the offence. In the present case I cannot help but think that had the Judge directed attention to the matter of special circumstances he would have found that they existed, and, in my opinion, it is appropriate we should do so. 27 In the Remarks on Sentence he adverted to the need for general and personal deterrence to be reflected in the sentence and said that the trade in heroin had become so prevalent that "only by the imposition of stiff penalties can the Courts hope to curb, control or eradicate the trade". 28 In my opinion the fact that the Judge did not advert to the matters that could have constituted special circumstances, in the context of fixing the non-parole period, could give rise to a justifiable sense of grievance in the circumstances and would also entitle this Court to intervene in relation to the non-parole period.

Ground 1 29 In the absence of demonstrated error in relation to the fixing of the sentence in question, the Court must, before it will intervene, be satisfied the requirements of section 6(3) of the Criminal Appeal Act 1912 have been satisfied. In this regard it is important to bear in mind what was said by Spigelman CJ in Regina v Simpson (2001) 53 NSWLR 704: "Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of opinion that error has occurred in the sentencing process.' That is not the statutory formulation. By section 6(3) this Court must form a positive opinion that 'some other sentence ... is warranted in law and should have been passed.' Unless such an opinion is formed, the essential precondition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefor' is not satisfied. As the judgments in Dinsdale (2000) 202 CLR 321 ... indicate, the exercise of the power in section 6(3) further requires the identification of error in the requisite sense." 30 The "requisite sense" referred to by Spigelman CJ is succinctly and authoritatively expressed in the joint judgment of Dixon, Evatt and McTiernan Australian Discount Mortgages in House v The King (1936) 55 CLR 499 at 504 to 505. (See also Dinsdale v The Queen (2000) 202 CLR 321 at 325 to 326 paragraph 6; 329, paragraph 21; 339 to 340 paragraph 58). 31 In determining an appeal based on the ground that the sentence imposed is manifestly too severe, a court should bear in mind what was said by Gleeson CJ and Hayne J in Dinsdale v The Queen (supra) namely: "Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing Judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because ... the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusion and reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case." (At 325 to 326, paragraph 6) 32 In my opinion the head sentences imposed by the Judge were not manifestly excessive and not such as to trigger the essential precondition for the exercise of the power to quash the sentences imposed and pass another sentence in substitution for it. 33 In submitting to the contrary, reliance was placed by counsel for the applicant on the statistics produced by the Judicial Commission in relation to offences under s 25 of the Drug Misuse and Trafficking Act 1985. In considering such statistics, it should be remembered that there is no material available to inform the Court of the quantity of prohibited drug involved in any particular case, nor as to the circumstances of each case. Furthermore, there is nothing in the statistics to inform the Court as to the situation of the outlier elements of the statistics. What they do show, however, is that a head sentence of four years, even for an offender with no prior convictions, falls within the range of sentences imposed. Some 20 per cent of all sentences are either four years or more; 11 per cent exceed four and a half years. Reference to the statistics does not, therefore, support the proposition that the sentence imposed is manifestly excessive. 34 Moreover, as the Judge said, the applicant was the person that negotiated the sale and the actual supply. The major drug offence, the penalty for which is presently under challenge, was not the only drug offence committed by the applicant. He was found to be "a person actively participating in the trade of supply" of heroin. The more serious offence was characterised as calling for a stiff penalty and, so characterised, the imposition of a head sentence of four years was an appropriate penalty. 35 For the foregoing reasons, I am of the opinion that no error has been demonstrated in relation to the head sentence imposed in respect of the first mentioned charge, nor in respect of the head sentence imposed in respect of the second mentioned charge (see para 1 above). 36 However, for the reasons that I have indicated above, namely, the relationship between the two offences and the accumulation rather than concurrence of each of the sentences imposed on the applicant, and those imposed on his co-offender, I am of the opinion that the existing sentences should be quashed and in lieu thereof, the applicant should be sentenced to a term of imprisonment of six months on the first mentioned charge (that relating to 3 January 2002), to commence 26 June 2002 and terminate on 25 December 2002; and four years on the second mentioned charge (that relating to January 2003), commencing on 26 June 2002 and expiring on 25 June 2006. 37 However, I am of the opinion that in view of the special circumstances found, the non-parole period in respect of the charge relating to 8 January 2002 should be reduced to two and a half years, to expire on 25 December 2004.

Conclusion 38 For the foregoing reasons I am of the opinion that leave to appeal against the severity of the sentences imposed on the applicant should be granted, and that his appeal on sentence should be allowed in the manner indicated above and I would propose orders accordingly. 39 SPIGELMAN CJ: I agree. 40 GREG JAMES J: I also agree. 41 SPIGELMAN CJ: The orders of the Court are as indicated by Mr Justice O'Keefe.

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