TRAN, Brendon v Regina

Ground 1: The applicant was denied procedural fairness in that the sentencing judge failed to warn the applicant's representative that he considered the objective gravity of Count 1 (the Supply charge) to be above the mid range of objective seriousness

Ground 2: His Honour erred in the assessment of the objective seriousness of the Count 1 (the Supply charge) 11These two grounds were argued together and it is convenient to deal with them on that basis. 12Following the hearing on 12 April 2013 the proceedings were stood over for sentence on 31 May 2013. In the Remarks on Sentence the sentencing judge stated: "The Form 1 offences tend to prove that the offender is in fact a significant dealer in drugs who was in Sydney to top up his supplies before transporting them to Perth. His utilisation of a courier for that purpose only enhances the seriousness of his offending. It demonstrates a sophistication that he was prepared to employ in carrying out his activities. In my view, given the quantity of the drug which was close to the large commercial quantity, the amount of money paid for the drugs and the use of the courtier to transport the drugs, this offence is well above the middle of the range of seriousness for such offences..." (at 6). 13In the course of the sentencing hearing, Senior Counsel then appearing for the applicant, Mr Boulten SC, addressed the issue of the objective seriousness of the offence the subject of Count 1 and the following exchange is recorded in the transcript of the sentencing hearing on 12 April 2013 as follows: "BOULTEN: I'm happy to deal with whatever you want to deal with. These are serious offences and a substantial term of imprisonment is warranted. The offender was clearly involved in transactions that demonstrate substantial drug trafficking that has an interstate flavour to it or aspect to it, it is therefore accepted that his offending is quite serious. Just exactly where your Honour fits that on the scale is a matter for your Honour to determine. HIS HONOUR: Just at first blush, just for arguments sake, had there been no plea, you might have said this was in the middle range of objective seriousness, given the quantities involved. That's how serious I think it is. Middle range of objective seriousness without a plea. BOULTEN: Well I wouldn't argue with that. HIS HONOUR: When you've got the 977g, almost the large commercial quantity BOULTEN: Your Honour I'm not arguing with that. HIS HONOUR: But obviously there is a plea and it's only one factor ... BOULTEN: However, I accept that middle range objective seriousness is a finding open to the court..." (at T 16). 14The applicant's submission is that the finding made by the sentencing judge as to objective seriousness was at odds with the indication given in the course of the sentencing hearing and that Senior Counsel for the applicant had expressed his acceptance that the offending was at the mid-range of objective seriousness for such offences, and no further debate then took place. 15The Crown in its submissions accepted that the finding made as to objective seriousness was at odds with the indication given by the sentencing judge in the course of the proceedings. The Crown further conceded that unfairness did arise in the circumstances, being a denial of the opportunity for Senior Counsel for the applicant to make additional submissions to the sentencing judge in opposing a sentence greater than that which had been indicated. 16A denial of the opportunity to the applicant's Senior Counsel to make submissions against a finding of objective seriousness higher than mid-range did constitute a denial of procedural fairness to him. As observed by Kirby P (as his Honour then was) in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 at 296: "... Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view. In the United States, there is a developed jurisprudence which would hold that a failure to disclose such thinking amounts to a departure from the requirements of procedural fairness ..." 17Accordingly, the Crown's concession in relation to Ground 1 is one properly made. That brings forward for consideration Ground 2, namely whether the sentencing judge erred in the assessment of the objective seriousness of Count 1 (the Supply charge).

Applicant's Submissions on Ground 2 18Mr Dhanji on behalf of the applicant acknowledged the difficulty of challenging such findings in the ordinary course: Mulato v R [2006] NSWCCA 282; Boney v R [2008] NSWCCA 165: R v Bonett [2009] NSWCCA 135. However, it was submitted that the restraint referred to in those cases is not applicable in the context of this case, made as it was in the absence of submissions or argument on the subject given the sentencing judge's indication as to the objective seriousness of the offence (Count 1). 19Reference was made to what was described as the "primary factors" that were relied upon by the sentencing judge as recorded in the Remarks on Sentence at 6.7, namely:

• The quantity of the drug;
• The amount of money paid;
• The use of a courier to transport the drug. 20The first of these matters was properly conceded as a matter to be taken into account but, as noted in the applicant's written submissions, that it was "just one factor": Wong v R [2001] HCA 64; (2001) 207 CLR 584. 21It was submitted for the applicant that the amount of money paid by the applicant to the supplier bore a direct relationship with the first matter and, in that sense, it did not of itself appreciably increase the seriousness of the offence (apart from establishing that the applicant was acting in his own right, which was not in issue). 22As to the third matter, it was submitted that this was not a case where the offender was at a position high in a sophisticated structure or organisation. To the contrary, attention was drawn to the fact that while he engaged a courier to take some of the drugs, he himself transported the remainder and that he was acting for himself as distinct from being principal in a large or sophisticated structure. Additionally, it was submitted that not only did he transport drugs in his own body, but that he allowed himself to be directly connected to the courier, the courier having a note on her when arrested with his address written on it, and the courier having an address written in his handwriting as to where she was to go to. 23These matters were relied upon to support the submission that the applicant's use of a courier, contrary to the finding made by the sentencing judge, was not particularly sophisticated. 24A further criticism made of the findings of the sentencing judge (at Remarks on Sentence 6.1), was that the applicant "recruited and utilised drug couriers". The evidence, it was submitted, suggested that this was the first time Ly had acted as a courier for the applicant as indicated by the instructions provided to her. Further, the applicant's discussions with Nguyen concerning the purchase of the drugs on 3 August were not in the context of an "established arrangement". It was submitted that the discussion appears to have been more consistent with entering into a venture (albeit one that had the potential of an ongoing relationship). It was also submitted that the purchase of the methylamphetamine on 25 August appeared to be a continuation of the arrangements put in place on 3 August. 25It was accepted that the supply on 25 August could not be seen as a "one off" or isolated event and the contrary had not been suggested, but that the sentencing judge went further in stating: "The Form 1 offences tend to prove that the offender is in fact a significant dealer in drugs who was in Sydney to top up his supplies before transporting them to Perth." (Remarks on Sentence at 6.5) 26Insofar as the remarks of the sentencing judge in this respect found that the applicant was engaged in substantial drug dealing extending beyond the charges and the Form 1 offence, it was submitted that such a finding was not supported by the evidence. Additionally, before such a finding could be made it was necessary that his Honour could be satisfied beyond reasonable doubt of the fact. Finally, on this aspect, it was submitted that the Form 1 offences could not operate to increase the objective gravity of the instant offence. 27In relation to the matters of personal deterrence and retribution with respect to Count 1, the Form 1 matters, it was accepted, were relevant. As to specific deterrence, it was submitted this was not a significant aspect of the sentencing exercise given that the applicant had no prior record and a significant gaol sentence was inevitable. Additionally, it was submitted, his co-operation admits to willingness to cut his ties with the criminal community. 28These circumstances relied upon in respect of Ground 2, it was observed, were not put to the sentencing judge in relation to the objective seriousness of the offence given the issue concerning Ground 1.

Crown's Submissions on Ground 2 29The Crown observed that Senior Counsel for the applicant at the sentencing hearing accepted that Count 1 lay within the mid-range of objective seriousness, indicating that "the offender was clearly involved in transactions that demonstrate substantial drug trafficking that has an interstate flavour to it or aspect to it" (Remarks on Sentence at 16.6). 30The matters upon which, in the Crown's submission, his Honour was entitled to conclude that the offence was above mid-range included:

• The quantity of 977.7g is only 22.3 short of the large commercial quantity (1000g). The maximum penalty for the present offence is one of 20 years with a SNPP of 10 years. Where a large commercial quantity is involved, the maximum penalty increases to life imprisonment.
• The high purity of the drug, being 78% and 79.5% (depending on satchels), enables it to be cut to a greater extent thus increasing its street value.
• The amount of money paid - some $240,000. This has a relevance in the Crown's submission to both the quantity and purity as the same quantity at half the purity would have a lesser street value because it would be cut fewer times
• The offender was a principal who utilised and organised a courier for interstate trafficking. With respect to the instant offence, the applicant only carried a limited quantity of drugs in his underpants because the quantity to be carried was more than Ly could reasonably strap on.
• This supply was not a "one-off" or isolated event.
• The offence was planned and premeditated: s.21A(2)(n). 31The Crown submitted that in this case the applicant did not seem to be a street-level supplier, but was one investing a significant amount of money in purchasing almost a kilogram of the drug. 32That activity, the Crown submitted, required him to source the drug in New South Wales, travel to Sydney in early August to then confer with, and arrange a deal with his supplier (Ms Nguyen), and then to arrange a courier to travel on the same return flight in late August to effectively shield him from exposure. 33The Crown further noted that the applicant gave the courier instructions on wearing perfume to avoid detection, and how to avoid security at the airport. These features, the Crown submitted, indicate a certain sophistication in the operation conducted by the applicant. 34The Crown acknowledged that these matters were not fully ventilated on sentence because of the exchange that occurred between the Bench and the Bar table on the issue of objective seriousness and that the Crown's concessions with respect to Grounds 1 and 3 now brings the matters clearly into focus with respect to Ground 4. 35I propose to consider and deal with the competing submissions in relation to Ground 2 in the discussion below concerning Ground 4.

Ground 3: His Honour erred in sentencing the applicant on the basis that his plea of guilty was late 36This ground may be dealt with briefly. The Crown conceded error in the sentencing judge's finding on this aspect and proceeded on the basis that the applicant pleaded guilty to the offences at a late stage. It is clear from the Remarks on Sentence that his Honour, wrongly, proceeded to determine the discount for the applicant's plea upon the basis that it had been entered only in the District Court after negotiations with the Crown with respect to facts. 37As noted above, the plea was entered in Central Local Court on 19 July 2012, that is to say approximately a little over 10 months from the date of his arrest. The Crown further concedes that as a consequence the applicant would ordinarily expect to receive a 25% discount for the utilitarian value of the plea.

Applicant's Submissions 38In addition to addressing the matters to which I have referred above, it was noted in the written submissions for the applicant at paragraph [32], that ultimately the sentencing judge imposed a combined discount for the plea and assistance of 42.5%. The submission was that it would appear that the sentencing judge would have allowed a discount of 50% but for the fact that his Honour regarded the plea of guilty as late. It was submitted that such a discount should be substituted for that allowed by the sentencing judge.

Crown Submission 39The Crown stated that setting the utilitarian discount for the plea at 25% raises the issue of the value of the discount for assistance. The Crown referred to the exchange between Senior Counsel and the sentencing judge on this issue as follows: "[CROWN]: Well, the Crown's position is that your Honour's aware of the usual authorities of Ellis and Lewins, and that, essentially, a combined discount of anything over 50% would be highly exceptional. In this case, the bulk of the charges, as I've indicated, were pleaded to in the Local Court, so he is entitled to that benefit. As far as the discount for assistance goes, certainly it is of value; your Honour's heard the evidence that Ms Nguyen was positively identified by the offender. It's a case where I did have carriage of that matter, and she did waive committal in the Local Court, contesting the charges, and it was only after the matter was in the District Court that she's then changed her plea of guilty. As Mr Boulten's indicated, I've also spoken with Mr Wagstaff [the prosecutor with the carriage of Ms Nguyen's matter]. He has indicated that he is likely to call Mr Tran in the sentence proceedings against Ms Nguyen. So, there is a high degree of assistance, and, including future assistance, the Crown would say that somewhere in the region of 40% would be about the mark in respect of the combined discount. HIS HONOUR: I think he could probably do better than that, but anyway, maybe not 50%. BOLTEN: Well 50% is in the region of 40% and I submit that 50% is about right your Honour. HIS HONOUR: Yes. All right, I will make a note of both those submissions." (Proceedings on Sentence at 13-14) 40The Crown referred to the observations in R v Sukkar [2006] NSWCCA 92 of Howie J at [5], namely, that a discount for a plea and assistance of more than 40% should be very exceptionally, if at all, granted where there is no evidence that the offender will spend the sentence, or a substantial part of it, in more onerous conditions than the general prison population. 41Reference was made by the Crown to the evidence given by Detective Sergeant Hawkins who was called by the applicant to give evidence about the nature and value of the applicant's assistance (Proceedings on Sentence at 11:44-46). Detective Sergeant Hawkins agreed that as at the date of sentencing hearing "the offender is not currently placed on protection in prison". 42The Crown argued that given that the combined discount afforded, the applicant already exceeded the 40% maximum spoken of by Howie J. As there was no evidence called by the applicant as to his custodial situation, the Crown submitted that it is pertinent to consider whether the 25% discount allowed for assistance would have been forthcoming had the utilitarian discount been set at 25%, for upon that point there would then have to have been some consideration of s 23(3) of the Crimes (Sentencing Procedure) Act and its injunction that the sentence must not be unreasonably disproportionate to the nature and circumstance of the offence. These observations, the Crown observed, do not strictly bear upon Ground 3 but arise in respect of consideration of Ground 4. 43These issues are relevant to the issue as to whether this Court should, in the circumstances of the case, exercise its power to quash the sentence imposed and to re-sentence.

Ground 4: The sentence imposed with respect to Count 1 was, in all the circumstances, manifestly excessive 44In the Remarks on Sentence his Honour observed: "... In my view, given the quantity of the drug which was close to the large commercial quantity, the amount of money paid for the drugs and the use of the courier to transport the drugs, this offence is well above the middle of the range of seriousness for such offences. Of course the late plea of guilty does entitle him to a discount for any such sentence. The standard non-parole period in this case remains a guide to the sort of penalty that should be applied in cases such as this" (at 6). 45As observed in the written submissions for the applicant at paragraph [12], whilst the prosecutor referred to the fact that the quantities of the drugs the subject of Count 1 were significant and that Count 1 involved an amount bordering on the large commercial quantity, a submission was not made that the applicant's offending was above the mid-range of objective seriousness. I further observe that the Crown did not submit that such a finding was open in this case. It is in those circumstances it was submitted that it was not surprising that the applicant's counsel did not address the matter in reply.

Applicant's Submissions 46The submission on behalf of the applicant is that the total sentence of 6 years 10 months for Count 1 is manifestly excessive and that a lesser sentence is justified and ought to have been passed. 47In that respect, it was submitted that the sentencing judge's starting point in respect of Count 1 was almost 12 years (the starting point being 11 years 10½ months), which it was argued was manifestly excessive. 48In support, the applicant relied upon the submissions referred to above in relation to Ground 2.

Crown's Submissions 49The Crown submitted that had the applicant been convicted after trial, and the offence found to have been in the mid-range of objective seriousness, then the notional starting point would have been in the vicinity of 13 years and 4 months. 50On the basis of the sentencing judge's finding that the offence was "well above the middle of the range of seriousness for such offences", the Crown submitted that one would expect the notional starting point on that basis to have been in the vicinity of 16 years, and yet his Honour's notional starting point was only 11 years 10½ months, a starting point below what one would have expected even in respect of a middle range offence. This, it was contended, leads to the conclusion that his Honour failed, for whatever reason, to translate his finding about objective seriousness into an appropriate starting point. 51The Crown further submitted that the "generosity" of the notional starting point was even more obviously decided in the applicant's favour when one considers that the notional starting point of 11 years and 10½ months was a starting point arrived at after the three matters on the Form 1, all supply charges, had been taken into account. 52The Crown additionally submitted that the three matters on the Form 1 were very serious matters. When the applicant was arrested on 26 August 2011, in addition to the 240.1g of crystal methylamphetamine in his underpants, he also had 89.3g of pseudoephedrine with a purity of 65.5% in his possession (matter 3 on the Form 1). 53With respect to matter 1 on the Form 1, it was agreed that on 3 August 2011 half a kilogram of dimethylamphetamine was purchased by the applicant from Thi and subsequently, 244.5g of dimethylamphetamine was located in the applicant's Haymarket apartment, and a further 27g in his Perth apartment. Matter 2 on the Form 1 related to 121.4g of methylamphetamine also located at the applicant's Perth apartment. 54The Crown's submission, accordingly, was that the gravity of the Form 1 matters was such that, had they been taken into account with respect to Count 1, based on the sentencing judge's finding of above mid-range objective seriousness, the notional starting point would have to be demonstrably in excess of 16 years. Thus, had a 50% discount then been applied for the utilitarian value of the plea and the applicant's assistance, the non-parole period would have exceeded 8 years. 55The Crown submitted therefore that no less severe sentence is warranted in respect of Count 1. 56The Crown also made submissions in relation to the firearm offences, both of which carried a maximum penalty of 14 years and a standard non-parole period of 3 years. Those offences were dealt with by a sentence that imposed a 2 year non-parole period on each with an additional term of 1 year, with the sentences to be concurrent. There was a 12 month accumulation on Count 1. 57An aggregate form of imprisonment was imposed of 8 years commencing on 26 August 2011, comprising a non-parole period of 5 years 9 months and a balance of term of 2 years 3 months.

Decision 58On a consideration of the relevant objective and subjective circumstances established before the sentencing judge, I do not consider that the starting point for the sentence imposed in respect of Count 1 was, as contended for the applicant, too high. The facts clearly enough establish that the offending was in the mid-range of objective seriousness and, even allowing for the applicant's subjective circumstances, I do not consider that any lesser starting point would, in this case, have been appropriate. In addition, in determining the aggregate sentence the matters on the Form 1 were serious offences, as the Crown has submitted. They, of course, were required to be taken into account when determining the sentence to be imposed: Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act, 1999 No 1 of 2002 [2002] NSWCCA 518. 59In R v Simpson [2001] NSWCCA 534, Spigelman CJ observed: "79 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 the opinion that error has occurred in the sentencing process'. That is not the statutory formulation. By s 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 pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore' is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s 6(3) further requires the identification of error in the requisite sense." 60Additionally to the above observations, there is a need to consider whether, notwithstanding the Crown concession in respect of Ground 3, a combined discount for the plea and assistance as high as 50% would be justifiable. Speaking for myself, I do not consider that such a combined discount could be justified upon a consideration of all of the circumstances of this case. 61Section 23(2) of the Crimes (Sentencing Procedure) Act requires a court to consider all the matters listed in that sub-section. A court must not reduce the sentence so that it becomes unreasonably disproportionate to the nature and the circumstances of the offence: s 23(3). Accordingly, there is a limit to the value that may be accorded for the applicant's assistance to authorities in this case. Care is required to be taken to ensure that the ultimate sentencing result is not one that is so far out of touch with the circumstances of the particular offence and the particular offender: R v Gallagher (1991) 23 NSWLR 220 at 232 per Gleeson CJ. The appropriateness of any discount for assistance involves an assessment of other features of a case where the ultimate consideration is whether the resultant sentence is a just one: R v Dib [2003] NSWCCA 117 at [53]; R v NP [2003] NSWCCA 195 at [26]. 62In my assessment, a combined assessment of 50% could not be justified. The assistance given by the applicant does not, in my opinion, qualify as exceptional. 63I am accordingly of the opinion that: (i) The aggregate sentence imposed was an appropriate sentence upon the basis that the offence Count 1 was an offence involving mid-range objective seriousness. (ii) A combined discount greater than that allowed and applied by the sentencing judge (42.5%) would be unreasonably disproportionate to the nature and circumstances of the offending for which the applicant was sentenced. 64I have accordingly concluded that no other less severe sentence is warranted in law. 65The orders I propose are: (1) Leave to appeal be granted. (2) The appeal be dismissed. 66R A HULME J: The learned sentencing judge imposed an aggregate sentence and indicated the sentences he would have set if he had sentenced for the offences individually. He did not indicate a notional starting point before discounts for the pleas of guilty and assistance in respect of the indicative individual sentences. He said in respect of the aggregate sentence that his starting point was "at least fourteen years imprisonment". Then, applying a combined discount of 42.5 percent, he imposed the aggregate sentence of 8 years. 67Assessment of the objective seriousness of the individual offences was of obvious importance. His Honour found that the commercial supply charge (count 1) was "well above the middle of the range" and that the two firearm offences, involving as they did the possession by a drug dealer of a revolver and a sawn-off shotgun, were assessed as being "within the middle of the range of seriousness for such offending". 68For the disposition of this matter I am prepared to assume that the objective seriousness of the drug supply offence was in the middle of the range, rather than "well above" it. But when one has regard to the facts in relation to that charge as outlined in the judgment of Hall J; the need for a significant increment because of the need to take into account three further drug supply charges, one involving a commercial quantity; and the applicant's possession of two concealable and obviously very lethal firearms; it is apparent that a very stern sentencing imposition was called for. 69The "at least fourteen years" starting point adopted by the sentencing judge for the aggregate sentence cannot be criticised. The conceded error in relation to the reduction of sentence on account of the utilitarian value of the pleas of guilty is counterbalanced by the excessively generous reduction for assistance which was valuable but not "exceptional". 70I agree with Hall J that, despite the conceded errors of the sentencing judge, no lesser sentence was warranted and should have been passed. I also agree with the orders his Honour proposes. 71DAVIES J: I agree with Hall J and with the additional remarks of RA Hulme J.

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