Thach v R

The factual background

1. On 15 January 2014, officers from Strike Force Herd (DSC Daniel Walker and DSC Gary Adams) observed a Volkswagen Caddy with registration BGN09Y ("the Volkswagen") parked outside 11 Greenfinch Street, Green Valley. This Volkswagen was frequently used by the applicant and Mr Bunthoeun Thin. Mr Thin was observed driving the vehicle in Greenfield Park when the applicant was the passenger. The vehicle and the attached trailer were registered to associates of the applicant.
2. In May 2014, police installed a number of surveillance devices into an Isuzu truck with registration BL96ZI ("the Isuzu") parked at the rear of an industrial yard at Narellan in accordance with a surveillance warrant. Police also obtained telephone intercepts for the applicant's mobile phone which showed, in addition to observations of the Volkswagen, the applicant attending the site of the Isuzu on 6 and 7 August 2014.
3. On 1 September 2014, Police installed surveillance devices in the Volkswagen and, in conjunction with the applicant's phone records, it was determined that the applicant's mobile phone location and the Volkswagen's location corresponded between 5 and 24 September 2014.
4. Telephone intercepts revealed that the applicant discussed the movement of the Isuzu truck with Mr Thin and a tow truck driver known as "Chris". These conversations included: i. On 17 September 2014, Mr Thin told the applicant "Yeah you know the truck." The applicant replied, "Yeah". Mr Thin then said "17m, we've got to move it ... for, like, ASAP rocky." ii. Later that day the applicant spoke to "Chris" and organised for "Chris" to collect the truck. iii. On the evening of 17 September 2014, the applicant informed Mr Thin he had spoken to the "truckie" and Mr Thin told the applicant, "We've just got to get everything by, yeah, we've got to get everything out by Tuesday, so we've got to load the truck up too."
5. On 18 September 2014, the applicant, Mr Thin and another person were observed attending the truck's location in Narellan. Listening devices, in conjunction with the previous conversations, revealed them moving items within the truck. On 19 November 2014, the truck was moved to 395 Devonshire Road, Kemps Creek with the applicant and Mr Thin leading the convoy that took it there. It was moved to 285 Devonshire Road, Kemps Creek on 22 November where it was seized by police on 8 January 2015.
6. Mark Green was the fiancée of Ms Theavy Thin (the sister of Mr Thin). Mr Green confirmed that Mr Thin received his permission to store a truck at his industrial site in Narellan in February or March 2014. He further confirmed that the truck was brought over by Mr Thin and another Asian man of a similar age with possible arm tattoos. Sometime later he asked Mr Thin to move the truck as he needed the space.
7. Police obtained CCTV footage from the Top Ryde City Living Complex for the dates between 21 November 2014 to 6 January 2015 inclusive. The footage revealed: i. On 21 and 25 November 2014, the applicant held a black and white bag which appeared identical to one later seized from the Volkswagen and which contained 1,210.8 grams of methylamphetamine. He was in the company of a "Person of Interest" who was also seen on 22 November 2014 carrying the bag. ii. On 23 November 2014, the Person of Interest was seen wheeling a trolley with a grey coloured tub which had an orange lid and is consistent with the tub later seized from the Volkswagen containing 25,613 grams of ephedrine. iii. On 21 and 22 December 2014, the applicant was seen carrying a blue and yellow sports bag on multiple occasions.

Search of the Applicant's Residence

1. On 8 January 2015, police searched the applicant's residence at 24 Ashur Crescent, Greenfield Park. Police seized the following items: i. A blue and yellow sports bag in the applicant's bedroom containing 705.2 grams of heroin, one block of which had a purity of 72.5% purity; ii. 1,630.7 grams of methylamphetamine in various locations of the applicant's bedroom including in coffee filters, plastic containers, the TV cabinet and the bedhead; iii. Seven mobile phones, an iPad, rubber gloves, keys to the Volkswagen and the attached trailer, keys to the Isuzu and a padlock to the cargo area at 285 Devonshire Road, Kemps Creek; and, iv. Glad snap lock bags, a bucket containing a glass beaker and receipts for "Digger's" caustic soda, 20 litres of Toluene, distilled water, a Hill's spray bottle, a Sunbeam Frying pan, Cloudy Ammonia and two Breville frying pans .

Search of the Volkswagen and Attached Trailer

1. Police seized the vehicle on 8 January 2015 and searched it on 9 January 2015 where the following items were located: i. 7,582 grams of methylamphetamine in various bags or containers with purity levels ranging between 7% and 79.5%. One container had the applicant's fingerprints in various places; ii. 14,616.99 grams of heroin in various bags with purity levels ranging between 41% and 45.5%; and, iii. 41,435 grams of ephedrine in a grey container with an orange lid and a duffle bag. The orange lid had the applicant's fingerprint on it.
2. In the attached trailer, police found the following items: i. A shortened 5.56 x 45mm calibre Australian Arms self-loading rifle; ii. A Colt detachable box magazine capable of holding 30 rounds; iii. A silencer; iv. A 9mm Parabellum calibre Uzi pistol; v. Two Uzi detachable box magazines for the Uzi capable of holding 26 rounds; vi. A Uzi silencer; vii. A shortened 12-gauge shotgun; viii. A shortened 12-gauge self-loading firearm; ix. A 0.22 calibre self-loading pistol; x. A 0.44 Magnum pistol; xi. A 0.32 Smith and Wesson pistol; xii. A 9mm Glock pistol; and, xiii. 20 kilograms of iodine.
3. Other items which were found included 9 latex gloves containing the applicant's DNA, an airline ticket in the name of Mr Thin, a set of scales, garbage bags containing used rags, gloves and wipes.
4. One of the latex gloves revealed DNA from at least 2 individuals, and the applicant could not be excluded as a major contributor. Similarly, swabs taken from a bag containing two of the firearms revealed DNA from at least 3 individuals, and the major component of the mixture matched the applicant's DNA profile.

Search of the Isuzu

1. Police seized the following items from the Isuzu on 8 January 2015: i. 17,968 grams of iodine; ii. 22,344 grams of safrole; iii. 147 grams of hypophosphorous acid; iv. Five heating mantles, twelve reaction flasks, three condensers, one distillation head and one splash head.

Expert Evidence

1. Dr Daniel Coughlan provided an expert certificate which contained the following: i. A common method of manufacturing methylamphetamine in NSW is combining ephedrine with hypophosphorous acid and iodine; ii. 25.4 kilograms of methylamphetamine can be produced from the total amount of pure ephedrine seized from the Greenfield address and the Volkswagen; iii. 41.5 kilograms of 50% hypophosphorous acid and 45 kilograms of iodine would be required to produce the methylamphetamine (dependent upon the skill of the operator); iv. 3,4-methylenedioxyphenyl-2-propane ('MDP2P') is a prohibited drug under Schedule 1 of the DMT Act and is also listed as a precursor in the Drug Misuse and Trafficking Regulation 2011 (NSW) as it can be used in the manufacture of the prohibited drug, 3,4-methylenedioxymethylamphetamine ('MDMA'). v. One method of manufacturing MDP2P is a reaction between safrole, benzoquinone and palladium chloride; vi. As a guide, 5.25 kilograms of MDP2P could be manufactured from 22,344 grams of safrole.
2. The applicant was arrested on 8 January 2015 and has remained in continuous custody since that date.

Subjective matters

1. The applicant was 29 years of age at the time of sentence. He had no prior criminal antecedents.
2. His family were refugees from Vietnam. They fled Vietnam in 1986 and travelled to Malaysia where they were placed into a refugee camp. The applicant was born while his parents were in the refugee camp. They arrived in Australia when the applicant was two years of age. The applicant is the eldest for four children.
3. The plaintiff did well at school and commenced a business degree at the University of Western Sydney. Despite doing well at University, he left in second semester to pursue a career as a tattoo artist. In that environment he became exposed to illicit drugs and he commenced to use them socially with colleagues. In due course he developed a serious addiction.
4. Through his contacts in the tattoo industry he met a man referred to as 'the Lieutenant'. That man introduced him into the drug syndicate that he commenced to work for. Working for the syndicate enabled him to pursue his tattooing business from home, to earn extra income to support his drug habit, and to obtain a free supply of drugs. In due course he developed a gambling habit as well.
5. He was examined by Dr Bruce Westmore on 11 October 2016. The history he gave to Dr Westmore he affirmed as true in his evidence before the sentencing judge.
6. Dr Westmore considered that the applicant suffered from a Substance Use Disorder which was in remission while he was in prison. Dr Westmore said that the history of depression relayed to him by the applicant was probably an Adjustment Disorder. Dr Westmore did not think the applicant was clinically depressed at the time he examined him. He said that the applicant did not have an Antisocial Personality Disorder and there was no evidence that he suffered any significant form of personality pathology.
7. Dr Westmore said that the applicant volunteered that he knew what he did was wrong, that he knew it affected the community and that he regretted putting himself in the position he was in. He accepted that he was to blame for the choices he had made.
8. Dr Westmore thought that the applicant's rehabilitation prognosis was extremely good. Dr Westmore thought the applicant would benefit from attending a drug rehabilitation program, which ideally should commence while he was in custody and should certainly continue on his release back into the community. Dr Westmore thought an extended period of community supervision and associated ongoing community-based drug rehabilitation would assist the applicant.

Remarks on sentence (ROS)

1. In relation to each of the offences of supplying a large commercial quantity, the sentencing judge noted that the amount of the drugs in sequences 17 and 18 substantially exceeded the large commercial threshold. Her Honour said the value of these drugs would have been substantial. The commercial quantity of heroin was well in excess of the threshold.
2. The sentencing judge found that the applicant had a significant role to play, being the warehousing of very significant quantities of illicit substances and firearms for the syndicate, and being ready, willing and able to fetch and carry for 'the Lieutenant'. Her Honour said that while he was not a principal he was more than a mere courier, although he did not appear to exercise any independent role in excess of that which he was instructed to perform.
3. Her Honour noted his early plea of guilty and said he was entitled to a 25% discount. Her Honour said that the applicant was remorseful and contrite, although she thought he attempted to minimise his moral culpability in his oral evidence. Her Honour found that he had good prospects of rehabilitation and had good support from his mother and brother.
4. In relation to special circumstances her Honour said this: I am asked to make a finding of special circumstances, I decline to do so. The sentences to be imposed will allow for a significant period of time on supervised parole which will enable him to attend courses or counselling if that is necessary. True it is that this is the first time that he finds himself in custody but that does not constitute of itself a special circumstance such to (sic) warrant a variation of statutory ratio. His time in custody will be sufficient for him to attend courses such as the compulsory drug treatment program if he so desires.

Submissions

1. First, the applicant submitted that the sentencing judge erred in focusing the entire consideration of special circumstances on the question of whether the applicant required an extended period of supervision. The applicant submitted that proper consideration should have been on the minimum period of incarceration that was required. Reference was made to what was said in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534.
2. Secondly, the applicant submitted that it was erroneous for the sentencing judge to decline to find special circumstances on the basis that the applicant would have sufficient time in custody to do a drug treatment program. That was because the availability of such treatment in custody is a matter in the executive's discretion, and an offender may not qualify for a program in custody or it may not be available. Reference was made to what the High Court in Muldrock v The Queen (2011) 244 CLR 120 at [56]-[58]. The applicant submitted that there was no evidence as to available courses in custody.
3. The applicant submitted that counsel appearing for him at the sentence hearing relied upon a number of factors for a finding of special circumstances including: 1. good prospects for rehabilitation; 2. the need for treatment for drug addiction; 3. the need for rehabilitative treatment; 4. first time in custody; and 5. accumulation of individual sentences.
4. The applicant submitted that, in addition, the following factors were an available basis for a finding of special circumstances: 1. contrition and remorse; 2. insight into his offending; 3. disadvantages from his childhood; 4. serious addiction to substances and the need for treatment; and 5. the diagnosis and opinion of Dr Westmore including his Substance Use Disorder and his past history of depression.
5. The Crown submitted that the sentencing judge's remarks on special circumstances should be considered in the light of the submissions made by counsel for the applicant. It said that those submissions were limited to a generic identification of the matters set out at [39] above, the first three of which were said to overlap. The Crown said that it was appropriate for the sentencing judge to focus on the question of rehabilitation because the matters put on behalf of the applicant were themselves focused mainly on the question of rehabilitation. The Crown also submitted that counsel for the applicant did not identify any rehabilitation programs in which the applicant intended to participate, nor was evidence of that intention given by the applicant.

Consideration

1. It is not appropriate to fix a non-parole period primarily from the perspective of the length of the period of supervision on parole, or primarily by reason of considerations of rehabilitation: Simpson at [55]-[59]. The correct perspective is reflected in the terms of s 44(1) of the Crimes (Sentencing Procedure) Act 1999, and the line of authority was summarised by this Court in R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92 at [33]: [T]he Court in Simpson followed what had been said by the High Court in Power v The Queen (1974) 131 CLR 623 at 627-629 to the effect that the purpose of fixing the non-parole period is not to convert a punishment into an opportunity for rehabilitation, but that the non-parole period should be the minimum period that the offender must spend in gaol having regard to all the elements of punishment, including the objective seriousness of the crime, deterrence and the subjective circumstances. [Emphasis added]
2. Accordingly, the discretion to find special circumstances is subject to "the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence": Simpson at [63] per Spigelman CJ. This principle was restated in R v Lulham [2016] NSWCCA 287 at [55], where Bellew J held (Bathurst CJ, Beazley P, Hall and N Adams JJ agreeing) that a sentencing judge is not permitted to reduce a non-parole period to a level below that which is necessary to punish the offender and provide specific and general deterrence, even if he or she is satisfied that there are special circumstances.
3. Senior counsel for the applicant sought in his oral submissions to draw support from this Court's decision in Lulham. It is apt to clarify what was said there about the discretion of a sentencing judge to find that prospects of rehabilitation constitute special circumstances.
4. The majority in Lulham did not agree with Bellew J's observation (at [54]) that "a sentencing judge must be satisfied that there exist positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful as opposed to a mere possibility". Bathurst CJ (Beazley P, Hall and N Adams JJ agreeing) held (at [7]) that a sentencing judge would be entitled to find special circumstances if he or she is satisfied merely that the offender has prospects of rehabilitation and that those prospects would be assisted by longer parole period. Beazley P drew attention (at [10]) to the need for a sentencing judge to be entitled to find special circumstances even in the case of a long prison sentence where prospects of rehabilitation may be difficult to assess or even non-existent at the time of sentencing.
5. Nothing said in Lulham derogates from the wide discretion that a sentencing judge has to find or decline to find special circumstances warranting a shorter non-parole period.
6. In Simpson, this Court rejected the applicant's submission that the sentencing judge failed to give reasons for refusing to find special circumstances. Spigelman CJ noted that there was no universal obligation to give reasons for not varying the statutory proportion, and went on to say: [88] In my opinion, in view of the wide range of considerations that are capable of constituting "special circumstances", a failure to "explain" why the statutory proportion was not varied will not readily be accepted as a basis for an inference that the sentencing judge did not turn his or her mind to the issue. It cannot do so where, as here, the sentencing judge makes the express reference that Gibson DCJ made here: "I see no reason to find special circumstances in this case". [89] The applicant submitted that this reference contained some form of ambiguity in that it was not clear whether his Honour was adopting a restrictive view of special circumstances by saying that none of the facts and matters he had referred to were capable, as a matter of law, of constituting special circumstances or, whether, on the other hand, his Honour accepted that the matters were capable of constituting special circumstances but found that, in the circumstances of the case, they were not sufficiently "special" to conclude that the statutory relationship should be varied. [90] Decisions on sentencing matters by District Court judges should not be analysed so finely. (See R v Majors (1991) 27 NSWLR 624 at 628.) The suggestion of ambiguity in the applicant's submissions is to manufacture an error in his Honour's reasons which nothing in his Honour's reasons warrants. [91] The applicant sought to draw some support from the fact that the sentence that I have quoted above appears immediately after his Honour's treatment of the issue of mitigation by reason of assistance to the authorities. I reject the suggestion that his Honour may only have been referring to the subject matter he was considering in the paragraphs immediately before the reference to "special circumstances". In the pages prior to that reference, his Honour had referred expressly to the various reports that were before him and to all of the matters which the applicant asked this Court to take into account in order to make a finding of special circumstances. [92] In my opinion, his Honour's reasons should be understood to say that all of the facts and matters to which he had earlier referred did not constitute a sufficient "reason to find" special circumstances. His Honour was entitled to make a judgment of that character. No error is suggested which would entitle this Court to intervene.
7. These remarks are relevant notwithstanding that the applicant's submission in this case was not that the sentencing judge failed to give reasons, but that her Honour's finding should not have been expressed with particular emphasis on certain matters, and should have given consideration to the minimum incarceration period that was required.
8. Within the paragraph of the ROS identified by the applicant (and set out at [36] above), it appears that her Honour's focus was on whether the applicant required an extended period of supervision on parole for the purpose of rehabilitation. That expressed focus was, perhaps, unfortunate in the light of what was said in Simpson at [57] and [59], but it occurred because of the focus of the submissions made on the applicant's behalf. It can be seen from a reading of the whole of the paragraph in the ROS dealing with special circumstances that her Honour was responding to the matters put forward as constituting special circumstances. Any complaint that no mention is made by her Honour of the minimum period to be served when considering special circumstances, shows that the reasons are being "analysed [too] finely": Simpson at [90].
9. I do not, furthermore, read her Honour's reference to attending drug treatment programs in custody as contravening what was said in Muldrock at [56]-[57]. It is clear from the preceding sentences in the paragraph that it was the significant time on parole for treatment which led her Honour to the "sentences to be imposed". A mere reference to the custodial sentence being of such a length that the applicant might elect to undertake rehabilitation programs does not support the submission that "the structure of the sentence" was determined on a view that the applicant would benefit from treatment while in custody.
10. When one has regard to the facts and matters to which the sentencing judge referred before declining to find special circumstances, it is apparent that the her Honour extensively considered the objective seriousness of the offence, the applicant's subjective circumstances, the imperatives of general and specific deterrence, evidence of the applicant's efforts to rehabilitate himself from drug addiction, and the extent to which a finding that the applicant was remorseful was tempered by attempts to minimise his moral culpability. Her Honour subsequently considered the applicant's need for continued assistance towards his efforts to rehabilitate.
11. In my opinion, a reading of the whole of the ROS demonstrates that her Honour considered "the full range of issues which are relevant to the determination of the minimum period of actual incarceration", including those which were said by the applicant to constitute special circumstances: Simpson at [57]. I do not accept the applicant's submission that her Honour focused her entire consideration of special circumstances on the question of whether the applicant required an extended period of supervision to rehabilitate. Moreover, simply because some of the matters before the sentencing judge might have been capable of constituting special circumstances did not mean that her Honour was obliged to vary the statutory proportion: R v Fidow [2004] NSWCCA 172 at [22].
12. The other matters now put forward by the applicant as providing an available basis for a finding of special circumstances were not raised as such a basis by the applicant before the sentencing judge. It is a well-established principle that an appeal is not the occasion to reformulate the case made in the court below: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460. The matters put forward by the applicant as constituting special circumstances were dealt with by her Honour.
13. Finally, in Simpson Spigelman CJ said at [73]: As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive.
14. In Caristo v R [2011] NSWCCA 7, R A Hulme (Giles JA and Adams J agreeing) said: [28] A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83]. [29] "As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive": R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp at [36]. [30] Simply because there are circumstances which are capable of constituting special circumstances, the court is not required to make such a finding and reduce the non-parole period: R v Fidow , above, at [22].
15. I am not persuaded that the non-parole period was manifestly excessive. There was no ground of appeal asserting such manifest excess, although the applicant's submissions drew attention to the fact that the undiscounted non-parole period in the indicative sentence for Sequence 18 was two years greater than the SNPP, where there was no finding concerning the objective seriousness of that offence. There was no ground of appeal complaining that the sentencing judge was in error in not making a finding of objective seriousness.
16. A reading of the ROS shows that her Honour considered that the weight of the heroin in sequence 18 was "substantially in excess of the one kilogram threshold", and that the applicant "had a significant role to play, warehousing very significant quantities of illicit substances and firearms for 'the syndicate'". Her Honour also said: As I have previously said, there must necessarily be a significant element of general deterrence in respect of each of the penalties to be imposed, for the firearms offences and of course the drug matters. The community must understand that such behaviour cannot and will not be tolerated, whatever the motivation for the offending might be, but those who are attempted (scil. tempted) to offend in this way will be severely punished in accordance with the intention of the legislature when life imprisonment is set as the maximum penalty and the standard non-parole period of 15 years applies in respect of those offences which attracts that maximum penalty.
17. Where her Honour immediately thereafter passed sentence on the applicant and specified the indicative sentences, her Honour's awareness of the SNPP must mean that she considered the objective seriousness of that offence to have been at least high in the mid-range. In any event, an aggregate sentence was imposed. There is no appeal from an indicative sentence. Such a sentence can only help to inform a conclusion that there has been some error in the aggregate sentence imposed. When regard is had to the total of the indicative sentences, including the specified non-parole periods, and the aggregate sentence, there is a very significant level of concurrence of the sentences.
18. In my opinion, having regard to all of her Honour's findings, it cannot be said that either the sentence or the non-parole period is manifestly excessive. This was a significant drug operation involving large quantities of two different drugs, precursors and firearms in which the applicant had a significant role. Put another way, even if I had considered that the sentencing judge's remarks on special circumstances demonstrated error, in the independent exercise of the Court's discretion to re-sentence, I would have held that no lesser sentence was warranted.

Conclusion

1. Accordingly, I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal.

Amendments 12 November 2018 - Title page - name of counsel corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2018