Truong v R; R v Le; Nguyen v R; R v Nguyen - [2013] NSWCCA 36 - NSWCCA 2012 case summary — Zoe

NSWNSWCCA

Truong v R; R v Le; Nguyen v R; R v Nguyen

[2013] NSWCCA 36

Court of Criminal Appeal (NSW)|2012-09-10|Before: McClellan CJ, Garling J, Button J, Hulme J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2012-09-10

Before

McClellan CJ, Garling J, Button J, Hulme J

Source

Original judgment source is linked above.

Judgment (54 paragraphs)

[1]

Background and Submissions 26This ground was founded upon the following portions of the remarks on sentence: "Way's Case in the legislation says that the standard non-parole period applies to a mid-range case where an offender is convicted after trial and without any adjustment for any of the factors in s 21A including special circumstances and common law factors. The offender has pleaded guilty and therefore there are reasons why the non-parole period should not be applied but as the courts have said, it is still relevant as a reference point or guidepost. ... I consider, based on all those matters, that the offences fall below, but not substantially below, the mid-range of objective seriousness and the appropriate starting point is a non-parole period of eight years. I have noted that the offender pleaded guilty at the earliest opportunity and this, accordingly, warrants a twenty five per cent discount for its utilitarian value. There are, as I have said, subjective factors which warrant a reduction of that non-parole period and also justify a finding of special circumstances." 27Senior counsel for Mr Truong submitted that the process adopted by his Honour is inconsistent with the approach discussed in Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120. In short, it was submitted that the approach adopted by his Honour was too structured and prescriptive. 28Senior counsel for the Crown submitted that his Honour correctly referred to the standard non-parole period as nothing more than a guidepost. She referred to Butler v R [2012] NSWCCA 23 in support of the proposition that it will be rare for remarks on sentence that predate the judgment in Muldrock v The Queen and refer to the standard non-parole period as a guidepost to be found to be erroneous by this Court. She submitted that, in truth, what occurred was an instinctive synthesis in accordance with Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357.

[2]

Determination 29I respectfully suggest that, for ease of comprehension, grounds of appeal to this Court are formulated more pithily than the ground under consideration. 30I consider that this ground can be dealt with quickly and without reviewing the history of this Court's reaction to the decision in Muldrock v The Queen over the past 16 months. Such a review is contained in R v Koloamatangi [2011] NSWCCA 288 at [9] - [21] and "After Muldrock - sentencing for standard non-parole period offences in NSW" (2010) 24(10) Judicial Officers' Bulletin 81 by R A Hulme J. 31It seems to me that the submissions of senior counsel for Mr Truong have a degree of force. Whilst it is true that his Honour referred to the standard non-parole period as a reference point or guidepost, the latter extract from the remarks on sentence is suggestive to me of an approach that is not consistent with the principles enunciated in Muldrock v The Queen and Markarian v The Queen. Although it is a matter of interpretation, I consider that it is open to infer that, with regard to count two, his Honour took as a starting point the standard non-parole period of imprisonment for 10 years; made a finding that the objective seriousness of the offence fell below, but not substantially below, the mid-range of objective seriousness; as a result took as a starting point a non-parole period of imprisonment for 8 years (that point being below, but not substantially below, the standard non-parole period of 10 years); reduced that non-parole period by 25 per cent in order to reflect the utilitarian discount, arriving at a non-parole period of imprisonment for 6 years; and, finally, reduced that period of time by 1 year in order to reflect subjective features and special circumstances. 32I consider that such an approach was overly prescriptive and inconsistent with the approach explained in Muldrock v The Queen, even bearing in mind the reference by his Honour to the standard non-parole period as a guidepost and the note of caution sounded in Butler v R at [26]. 33I emphasise that my opinion that this ground should be upheld is not founded on the mere fact that the remarks on sentence were delivered before the judgment in Muldrock v The Queen. As Davies J (with whom Whealy JA and Rothman J agreed) said in Butler v R, simply because remarks on sentence predate Muldrock v The Queen does not found a ground of appeal. That is especially the case when there has been a plea of guilty, and as a result the sentencing judge has referred to the standard non-parole period as a guidepost. 34To the contrary, I consider that the ground should be upheld because, in this particular case, it is tolerably clear that his Honour has engaged in a process of reasoning that is rigid to the point of being inconsistent with Muldrock v The Queen and Markarian v The Queen. 35In short, I would uphold this ground of appeal. Whether it would result in the reduction of any aspect of the sentence structure of Mr Truong is an entirely separate question, and depends upon the application by this Court of s 6(3) of the Criminal Appeal Act 1912. I shall deal with that question at the end of my consideration of all the grounds of appeal of Mr Truong. 36In short, I would uphold ground one.

[5]

The first submission 38This was founded on confusion that developed in the proceedings on sentence. It requires a little explanation. In a nutshell, the question was whether the Bruni pistol, the subject of count one, could actually fire live rounds. There was no dispute that that firearm was originally designed to fire blanks or gas cartridges only. However, the ballistics expert who examined it provided a report that was ambiguous as to whether or not, when he examined the firearm, it had been modified so as to permit the discharge of live rounds. 39In the proceedings on sentence of Mr Truong, his Honour was provided with an agreed statement of facts to the effect that the Bruni pistol was capable of firing live rounds. As one would expect, his Honour made a finding in the remarks on sentence to that effect. 40In subsequent proceedings on sentence pertaining to the co-offender Mr Nguyen, counsel for Mr Nguyen challenged the proposition that the Bruni pistol was capable of firing live rounds. The Crown conceded that it was not, and Mr Nguyen was accordingly sentenced upon that basis. So was, it seems, the offender Mr Le. 41In light of those subsequent events, this part of the ground as originally formulated was to the effect that Mr Truong had been sentenced on a basis that was factually wrong. In response, senior counsel for the Crown sought to read an affidavit that was intended to establish the contrary proposition; in other words, that his Honour had not been misled, and the Bruni pistol was indeed capable of firing live rounds, and that the error was in truth in the proceedings on sentence of Mr Nguyen and Mr Le, who received an unearned benefit as a result. In the event, the affidavit was not read, but senior counsel for Mr Truong accepted that, in truth, his complaint was that Mr Truong had not received the benefit of the erroneous concession by the Crown that Mr Nguyen and Mr Le had received in their proceedings on sentence. 42In short, the submission of senior counsel for Mr Truong was that, to borrow a well-known phrase used in discussing erroneous disparity of sentence, Mr Truong would experience a "justifiable sense of grievance" about the fact that his co-offenders were sentenced on a factually erroneous basis that may have led them to receiving shorter sentences than they would otherwise have received, but that the error did not occur in his case.

[10]

Background and submissions 54It will be recalled that the second matter on the Form 1 was selling ammunition between 9 and 10 June 2010. In the remarks on sentence, his Honour said that the facts of that charge were as follows: "In relation to the sell ammunition without licence offence, the second matter on the Form 1, the brief facts are that on the evening of 9 June, Mr Le met the offender in Silverwater where Le supplied ammunition for the pistol to Mr Truong, the offender. He drove to Mr Nguyen's place where he supplied that ammunition to Mr Nguyen. On 10 June, Mr Nguyen drove his vehicle to the Meadowbank wharf car park, met the relevant police officer and supplied three Smith and Wesson .38 calibre rounds to him. That was, monitored both physically and electronically." 55Senior counsel for Mr Truong emphasises the phrase "for the pistol" in that extracted portion. 56It will be recalled that the firearm that was sold on 7 June 2010 was the Bruni pistol, which is the subject matter of count one. It was not a weapon capable of firing .38 calibre ammunition. The Bruni pistol was only capable of firing .32 calibre ammunition. 57In contrast to the extract, in the latter part of the remarks on sentence, when assessing the objective gravity of the offences, his Honour said "[n]ext, the weapons were supplied but not with ammunition. That is a matter which bears upon the issue." 58Senior counsel for Mr Truong submitted that his Honour must have taken into account the incorrect proposition that the .38 calibre rounds could be used in the Bruni pistol as a matter of aggravation. He submitted that that would have led the second offence on the Form 1 to have wrongly inflated the sentence imposed for count two. In short he submitted that that sentence should be somewhat reduced in order to reflect the factual error that his Honour had made. 59Senior counsel for the Crown noted that the portion of the remarks on sentence now complained of is derived verbatim from the facts to which Mr Truong agreed at first instance and that, in the circumstances, this Court should be slow to permit him to complain successfully about it now. She also invited attention to the latter extract from the remarks on sentence to which I have referred, and which stands for the opposite proposition. Finally, she submitted that his Honour made no connection between the offences contained in the counts with the offence in the Form 1 under consideration.

[12]

Ground Four "The effective sentence imposed was manifestly excessive." 62Senior counsel for Mr Truong submitted that a combination of factors had resulted in a sentence that is manifestly excessive. First, there had been the overly prescriptive approach to the standard non-parole period, which, he submitted, would have led to a sentence more severe than would otherwise have been imposed. Secondly, he referred to the "factual errors" with regard to the serviceability of the two firearms, though by the end of the hearing I understood it to be accepted that the Bruni pistol was indeed serviceable and his Honour had understood that the Melior pistol was indeed inoperable at the time of sale. Thirdly, it was submitted that the mistake of fact about the three .38 calibre cartridges had played the same role. In short, it was submitted that all of those matters must have had an effect on his Honour, with the result that the sentence is manifestly excessive. 63To the contrary, senior counsel for the Crown emphasised a number of matters. First, his Honour had imposed wholly concurrent sentences on the two counts, which extended a substantial degree of leniency to Mr Truong. Secondly, the second count needed to reflect the significant criminality encompassed by the offences on the Form 1. Thirdly, although the criminal record of Mr Truong was not of the greatest seriousness, it was a matter of aggravation that he had been subject to the bond for the driving offence when he committed these offences. Fourthly, special circumstances were found that reduced the operative non-parole period by one year. Fifthly, the offences were undoubtedly part of organised criminal activity. Sixthly, the maximum penalty of imprisonment for 20 years and the standard non-parole period of imprisonment for 10 years demonstrate that Parliament regards such offences as nothing other than grave. In short, she submitted that the sentences, whether viewed individually or as a whole, are not manifestly excessive.

[13]

Determination 64This ground can be dealt with quickly and without detailed reference to other decisions of this Court, although nothing in R v Dunn [2003] NSWCCA 169, R v Goktas [2004] NSWCCA 296 or R v Howard [2004] NSWCCA 348 (to all of which his Honour referred in the remarks on sentence) is helpful to the submission of senior counsel for Mr Truong in support of this ground. 65The fact is that Mr Truong was dealt with for two offences whereby handguns were illegally provided. It was only through good fortune that they were not disseminated into the community. Of course, Mr Truong had no idea that the ultimate purchaser was an undercover operative, and thought that the weapons and ammunition were being provided to a criminal. Not only that, Mr Truong engaged in a conspiracy to sell five further pistols. He also agreed to supply a Beretta pistol, although that transaction did not proceed. And he supplied, on at least two occasions, live ammunition. The motivation for the offences was a desire to profit, and the sums received by Mr Truong in return for his criminality were not insubstantial. 66In short, Mr Truong engaged in the business of the professional supply of deadly weapons. Every single one of the firearms that Mr Truong supplied, or offered to supply, or conspired to supply, could have fallen into the hands of a hardened criminal, or a desperate drug addict, or a mentally disturbed person, but for the interposition of the police. In any of those cases, the outcome could have been fatal; indeed, catastrophic. Events in Australia and overseas demonstrate the ghastly consequences of illicit lethal weapons being at large in the community. Parliament has indicated by way of the maximum penalty and standard non-parole period that those who profit from trading in lethal weapons should receive condign punishment. Semi-automatic pistols are especially pernicious, not only because they are able to be readily concealed, but also because they are capable of firing projectiles in quick succession. 67As for the structure of the sentences themselves, his Honour extended a noteworthy degree of leniency by making the two sentences wholly concurrent. Many judges at first instance would have made the sentence for count two partly cumulative upon the sentence for count one, at least to some degree. 68The submission that the sentences, whether individually or in their total effect, are manifestly excessive cannot be sustained. It follows that I would not uphold ground four.

[16]

Offences and Objective features 72As indicated above, there is no application for leave to appeal against sentence by Mr Le. However, there is a Crown appeal against the sentences imposed upon Mr Le. 73It is convenient to deal with the offences and their objective features together. 74Mr Le was sentenced for six offences by Judge Sides QC in the District Court on 13 February 2012. I shall discuss them in the order in which they were discussed in the remarks on sentence. There were also four offences on a Form 1. 75The first was selling the Bruni pistol on 7 June 2010. This was the same pistol discussed by me with regard to Mr Truong. It will be recalled that Mr Le supplied the pistol for $5,000 to Mr Truong, who supplied it to Mr Nguyen, who supplied it to the undercover operative. It was not clear from the evidence how much Mr Le had paid to obtain the pistol. As noted above, his Honour approached the matter (wrongly, as it turns out) on the basis that the Bruni pistol could not discharge live rounds, but merely an explosive irritant. 76This offence was brought pursuant to s 51(1A) of the Firearms Act. It carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of imprisonment for 10 years. 77On 9 June 2010, Mr Le supplied Mr Truong with the three .38 calibre rounds referred to by me above. Mr Truong supplied them to Mr Nguyen, who then supplied them to the undercover operative. This offence carried a maximum penalty of a $5,500 fine. It was dealt with on a Form 1 that was taken into account with regard to the Melior pistol offence discussed immediately below. 78On 22 June 2010, Mr Le supplied Mr Truong with the Melior .25 calibre pistol. Mr Truong supplied it to Mr Nguyen, who supplied it to the undercover operative. This offence was brought pursuant to s 51(1A) of the Firearms Act. It carried a maximum penalty of imprisonment for 20 years with a standard non-parole period of imprisonment for 10 years. 79As I have said, this was the offence to which the Form 1 was attached. It will be recalled that that Melior pistol was not in working order when supplied to the undercover operative, but the ballistics officer made it so. 80On the same day, Mr Le gave Mr Truong six .25 calibre rounds. Mr Truong supplied them to Mr Nguyen, who supplied them to the undercover operative. This offence was also contained on the Form 1. It also carried a $5,500 fine. 81On 6 July 2010, Mr Le offered to sell the five firearms that he was proposing to obtain in Queensland to Mr Truong. It will be recalled that, on the return of Mr Le from Queensland, the police found three replica pistols in the boot of his car. Those events gave rise to a charge of offering to sell a pistol, pursuant to s 51(1A) of the Firearms Act. The maximum penalty of that offence is 20 years and there is a standard non-parole period of 10 years. That offence was taken into account on the Form 1 as well. 82Mr Le was also sentenced for two offences of manufacturing a firearm. Pursuant to s 50A(2) of the Firearms Act, the maximum penalty was imprisonment for 20 years. Those charges were based upon some telephone intercepts, and also upon what Mr Le told police during an ERISP on 22 July 2010. He informed them that he had undertaken some work on the Bruni pistol, including replacing the handle and polishing the firearm. Although in the interview he denied modifying the barrel, it is recorded in the remarks on sentence that the Crown accepted the plea on the basis that it was indeed Mr Le who had done so. In relation to the Melior pistol, Mr Le admitted to the police that he had received that firearm in parts, and had put it together using new screws. He had also fixed the trigger and slide and modified the handle. 83On 22 July 2010, police executed a search warrant at the home of Mr Le and arrested him. During that search they found an unassembled pistol in a shed. It was found to be an imitation pistol. As a result, Mr Le was dealt with for possessing a firearm. Pursuant to s 7(1) of the Firearms Act, that offence carries a maximum penalty of imprisonment for 14 years with a standard non-parole period of imprisonment for 3 years. 84Finally, during the execution of the search warrant, police located 42.34 grams of methylamphetamine. The street value of that drug was around $5,000. Indicia of supply were also located. The home of Mr Le was fortified and secured in such a way as to give rise to an inference that he was a drug dealer who feared for his safety and possessions. 85Finally, during the search, the police located a taser. Mr Le claimed to have it for his own protection. Pursuant to s 7(1) of the Weapons Prohibition Act 1998, the offence of possessing that item carries a maximum penalty of 14 years with a standard non-parole period of 3 years. That offence was placed on the Form 1. 86In short, Mr Le was sentenced for six substantive offences, and four offences were taken into account on a Form 1. Five of the substantive offences were to do with firearms, and one was an offence of supplying drugs. The Form 1 offences were to do with ammunition, firearms, and a taser.

[18]

Sentences imposed 92I shall briefly detail the sentences that were imposed. Again, annexed to this judgment is a diagram that seeks to explain the structure of the sentences imposed in a readily comprehensible form. 93For the offence of possessing the imitation pistol, a head sentence of 1 year 6 months with a non-parole period of 9 months was imposed. Although the remarks on sentence refer to that sentence commencing on 16 February 2012, I infer that that is a typographical error, and that the sentence in truth commenced on 6 February 2012. So much is clear from the portion of the remarks on sentence immediately preceding the imposition of that sentence. 94For the offence of manufacturing the Bruni pistol, a head sentence of imprisonment for 2 years with a non-parole period of 1 year was imposed. That sentence commenced on 6 February 2012. 95For the offence of manufacturing the Melior pistol, a head sentence of imprisonment for 2 years with a non-parole period of 1 year was imposed. That sentence commenced on 6 May 2012. 96For the offence of supplying methylamphetamine, a head sentence of imprisonment for 2 years 6 months with a non-parole period of 1 year 3 months was imposed. That sentence commenced on 6 November 2012. 97For the offence of selling the Bruni pistol, a head sentence of 3 years 6 months with a non-parole period of 1 year 9 months was imposed. That sentence commences on 6 November 2013. 98For the offence of selling the Melior pistol (which included the four matters on the Form 1), a head sentence of imprisonment for 4 years 6 months with a non-parole period of 2 years was imposed. That sentence commences on 6 May 2015. 99A number of aspects of the sentencing structure may be noted. 100First, the total head sentence is imprisonment for 7 years 9 months, and the total non-parole period is imprisonment for 5 years 3 months. 101Secondly, the sentence for the offence of possessing a firearm is wholly concurrent with one of the sentences for manufacturing a firearm. In turn, the period in custody referable to those two offences is 3 months. The period in custody referable to the second manufacture firearm sentence is 6 months. The period in custody referable to the drug supply sentence is 12 months. The period in custody referable to the sentence for selling the Bruni pistol is 18 months. The period in custody referable to the selling of the Melior pistol is 2 years. 102Thirdly, the ratio between the head sentence and non-parole period of each sentence is in most cases 50 per cent, and in the case of the two offences of selling a firearm it is 50 per cent and 44 per cent. 103Fourthly and finally, the ratio between the total non-parole period and total head sentence is a little under 68 per cent.

[20]

Ground Two "The Judge erred in his assessment of the seriousness of the offences of manufacturing and selling firearms [sequences 1, 3 and 12]." 106In the remarks on sentence, his Honour said: "[E]ach offence is towards the lower end of their respective range, but not at the bottom of their respective range." It was submitted that that finding was an error on the part of his Honour. In particular it was submitted that, with regard to the manufacture of the Melior pistol, Mr Le had worked on it with an eye to making it operational (even though, at the time of sale, that was not in fact the case), and believed that he had achieved his goal. It was also noted that his Honour had accepted that the offences were premeditated and part of organised criminal activity. 107It was also submitted by the Crown that that characterisation by his Honour could not apply to the offences that encompassed the criminality of selling two pistols. 108Senior counsel for Mr Le submitted that that characterisation was open to his Honour, and this Court would be very slow to interfere with it. 109Senior counsel for Mr Le referred to Mulato v R [2006] NSWCCA 282, in which Spigelman CJ said at [37]: "Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised." 110Senior counsel for Mr Le submitted that, in short, there was no complaint about the characterisation as it applied to the work done on the Bruni pistol. As for the Melior pistol, it was objectively unable to operate when sold. As for the sale offences, on the facts as agreed between the parties, that pistol was capable of firing an irritant only, and not live rounds. Again, as for the Melior pistol, he emphasised that it was not functional when sold.

[26]

Background and submissions 122The Crown submissions in support of this ground had a number of aspects. 123First, it was noted that, in many cases, the ratio between the head sentence and the non-parole period was 50 per cent or less. 124Secondly, it was submitted that the shortness of the non-parole periods limited the degree to which accumulation could sensibly occur. 125Thirdly, senior counsel for the Crown focussed on the two offences of selling pistols. It will be recalled that the two offences of selling the pistols carried a maximum penalty of imprisonment for 20 years with a standard non-parole period of 10 years. And yet with regard to the selling of the Bruni pistol, a head sentence of 3 years 6 months with a non-parole period of only 1 year 9 months was imposed. With regard to the selling of the Melior pistol, a head sentence of 4 years 6 months with a non-parole period of only 2 years was imposed. 126Fourthly, with regard to the manufacturing of the Melior pistol, it will be recalled that there was a maximum penalty of imprisonment for 20 years. And yet a head sentence of imprisonment for 2 years with a non-parole period of 1 year was imposed. That was, it was submitted, indicative of error. 127Senior counsel for Mr Le submitted that there was nothing erroneous about the head sentences or the non-parole periods. He submitted that the ratio between the individual non-parole periods and the head sentences of around 50 per cent was not only open to the discretion of his Honour, but also had to be considered in the context of the ratio between the total non-parole period and the total head sentence, which is 68 per cent. That is hardly a substantial reduction from the statutory ratio of 75 per cent. 128Focusing on the three sentences that were the subject of particular attack by the Crown, he submitted that the manufacturing of the Melior pistol was in truth primitive, and resulted in a firearm that in any event could not fire live rounds. As for the selling of the two pistols, he submitted that the offences, although motivated by financial gain, were relatively unprofessional. They were committed by a young man of prior good character who had suffered an unsatisfactory background and sunk into depression upon the death of his father. In all of the circumstances, the sentences could not be said to be manifestly inadequate.

[27]

Determination 129There is a degree of artificiality, with respect, in seeking to analyse the length of individual head sentences and non-parole periods within an overarching sentencing structure in order to demonstrate that one or more of them were manifestly inadequate. After all, if a sentence were longer, but maintained its position in the structure, it could well be that that would have no operative effect on the time that an offender is to spend in custody. By way of example, if the sentence for manufacturing the Melior pistol had been a head sentence of imprisonment for 3 years with a non-parole period of imprisonment for 2 years (as opposed to a head sentence of imprisonment for 2 years with a non-parole period of 1 year), it can be seen that, unless its position in the structure were also altered, that would have no effect whatsoever on the period in custody actually to be served by Mr Le. This Court should not concern itself with altering sentences to no practical effect, except in unusual circumstances. 130Furthermore, there is a degree of artificiality in discussing the ratio between individual non-parole periods and individual head sentences within an overarching structure. Again, the operative ratio that determines how long Mr Le must spend in custody and how long he may spend on parole is that between the total non-parole period and the total head sentence. As I have indicated, the reduction in the total non-parole period on the basis of special circumstances was in truth quite small. 131In discussing the submission on behalf of Mr Truong that the sentences imposed upon him were manifestly excessive, I have emphasised the seriousness of these kinds of offences. This Court has done so on many occasions in the past: see Cunningham v R [2005] NSWCCA 416 at [22] - [23] and R v Howard at [65]. 132On the other hand, it was appropriate for the lack of prior or subsequent criminality on the part of Mr Le to be reflected in the sentences to be imposed to a substantial degree. 133Finally, it needs to be borne in mind that one of the major aims of the adoption of a sentencing structure that features both partial accumulation and partial concurrence with regard to a large number of offences, such as the one under consideration, is to avoid the imposition of a crushing sentence upon an offender. 134Undertaking the analysis of individual sentences upon which this ground is founded, I consider it is true that the head sentences could be characterised as lenient. And it is also true that the ratios between the individual non-parole periods and the individual head sentences could be described as generous. But it is well known that neither of those characteristics of a sentence are sufficient to found a ground of manifest inadequacy. I am not satisfied that the latter characterisation can be applied to the individual sentences. 135It follows that I would not uphold ground four.

[35]

Offences and objective features 158By way of overview, Mr Nguyen was dealt with for a large number of serious drug and firearm offences. Seven were committed for sentence to the District Court. Six were contained upon a Form 1. Nine driving offences were contained on a certificate pursuant to s 166 of the Criminal Procedure Act 1986. 159On 18 October 2011, in the District Court of New South Wales, Judge Johnstone imposed an aggregate head sentence of imprisonment for 9 years with an aggregate non-parole period of imprisonment for 6 years. Clearly enough, special circumstances were found that led to a variation of the statutory ratio to 67 per cent. His Honour also provided a number of indicative sentences, which I shall detail shortly. 160I shall discuss each of the offences in the order in which his Honour dealt with them. I commence with the offences that were before his Honour for sentence. It is convenient to include a brief summary of the objective features of the offence as I do so. 161Again, annexed to this judgment is a diagram that seeks to explain the structure of the sentences in a readily comprehensible form. 162The first offence was that Mr Nguyen supplied methylamphetamine on three or more occasions between 26 March 2010 and 20 April 2010. Pursuant to s 25A(1) of the Drug Misuse and Trafficking Act 1985, that offence carried with it a maximum term of imprisonment of 20 years. It has no standard non-parole period. On five separate occasions, Mr Nguyen supplied an undercover operative with the drug. The total amount supplied was 14.14 grams. The amount of money received was $7,700. The purity of the drug was between 64 and 78 per cent. 163The second charge was in identical terms, and related to the period between 28 April and 26 May 2010. Five separate supplies of the same drug were provided to the same undercover operative. The total amount of methylamphetamine was 13.42 grams, and the amount of money obtained was $7,200. The purity of the drug was between 64 and 78 per cent. 164The third offence was supplying the Bruni pistol on 7 June 2010. As noted before, pursuant to s 51(1A) of the Firearms Act, that offence attracted a maximum penalty of imprisonment for 20 years, and a standard non-parole period of 10 years. It will be recalled that this pistol had been supplied by Mr Le to Mr Truong, who in turn supplied it to Mr Nguyen, who supplied it to the undercover operative. The sum of $9,500 was received. Mr Nguyen profited in the amount of $2,000 from this transaction. 165The fourth offence was in identical terms. It occurred on 22 June 2010, and the subject matter was the Melior pistol. The purchase price was $8,000. Mr Nguyen had himself purchased the firearm for $7,500, leading to a profit of $500. 166The fifth offence was knowingly dealing with the proceeds of crime. It was brought pursuant to s 193B(2) of the Crimes Act 1900. That offence carried a maximum penalty of imprisonment for 15 years with no standard non-parole period. It arose by way of the police executing a search warrant at the home of Mr Nguyen on 22 July 2010. There they found a large bundle of banknotes, amounting to $50,700 cash. 167The sixth offence was supplying methylamphetamine. Pursuant to s 25(1) of the Drug Misuse and Trafficking Act, the offence attracts a maximum penalty of imprisonment for 15 years and no standard non-parole period. This offence was founded on the finding of 19.1 grams of methylamphetamine at the home of Mr Nguyen when the search warrant was executed on 22 July 2010. The drug had a purity of 75.5 per cent. 168Finally, the seventh offence was one of possessing an unauthorised prohibited pistol. Pursuant to s 7(1) of the Firearms Act, that offence carries a maximum penalty of imprisonment for 14 years, and a standard non-parole period of imprisonment for 3 years. Again, to state matters succinctly, when the police executed the search warrant at the home of Mr Nguyen on 22 July 2010, they located a .32 calibre Colt pistol fitted with a magazine contained five rounds of ammunition. In other words, the pistol was loaded, although it is not clear whether there was a live round in the chamber. 169The s 166 Certificate contained nine driving offences. Each offence carried a maximum penalty of imprisonment for 18 months. These offences arose from Mr Nguyen driving a motor vehicle, whilst disqualified, to meetings with an undercover police officer for the purposes of supplying prohibited drugs. There is no need for me to discuss them in detail in this judgment. 170There was a Form 1 that was attached to the fourth offence, that is, the selling of the Melior pistol. Six offences were contained on the Form 1. The first was offering to sell a Beretta 9mm pistol. That offence carried a maximum penalty of imprisonment for 20 years with a standard non-parole period of imprisonment for 10 years. The facts of the offer to sell the Beretta pistol were that on 16 May 2010 the offender offered to sell to an undercover police officer the firearm at a price of $10,000. However, the sale never eventuated. 171The second offence on the Form 1 was selling ammunition without seeing the license or permit of the buyer. That offence carried a fine only. The selling of the ammunition was the provision of the three Smith and Wesson .38 calibre rounds on 10 June 2010 to the undercover operative. 172The third offence on the Form 1 was an identical charge of selling ammunition. It was alleged that between 22 June 2010 and 22 July 2010, Mr Nguyen supplied six .25 calibre rounds to the undercover operative. 173The fourth offence on the Form 1 was conspiring to sell five pistols. That offence was said to have taken place between 6 July 2010 and 22 July 2010. The subject matter of this offence was the five pistols that, it will be recalled, Mr Le proposed to obtain in Queensland. The maximum penalty of the common law offence of conspiracy is at large. 174The fifth offence on the Form 1 was possessing ammunition without holding a license or permit to do so. The maximum penalty for this offence was a fine. Again, this charge arose from the execution of the search warrant on 22 July 2010, and related to the finding of a box containing 35 Winchester .32 calibre rounds. 175Finally, the sixth offence on the Form 1 was selling a prohibited .22 calibre pistol without a license between 14 October 2009 and 16 October 2009. Pursuant to s 51(2A) of the Firearms Act, that offence carried a maximum penalty of imprisonment for 20 years and a standard non-parole period of imprisonment for 10 years. To state the facts succinctly, Mr Nguyen sold a .22 calibre pistol fitted with a silencer to a man called Wijeyakumar for $3,500.

[36]

Subjective features 176Mr Nguyen pleaded guilty to all offences. He received a discount of 25 per cent in return for doing so. That discount is impugned by neither party to this appeal. His Honour accepted that Mr Nguyen was remorseful. 177Mr Nguyen was 28 years of age when he stood for sentence. Although as a child he suffered from Attention Deficit Hyperactivity Disorder, his background had generally been a happy one. Perhaps as a result of his condition, he left school in Year 10 and enrolled in TAFE, but did not complete any course there. He had "more or less" regular employment. 178In his early twenties he was introduced to drugs by friends and quickly became addicted to crystal methylamphetamine and heroin. In 2009 he was admitted to a drug rehabilitation centre. After that he entered a methadone programme. At the time of the offences he was taking methadone, but also continuing to abuse heroin. 179The criminal record of Mr Nguyen was lengthy. It featured convictions for possessing a prohibited drug, a number of property offences, and a large number of driving offences. It is true that, at the time of the commission of the offences under discussion, he was subject to a bond imposed in the Local Court for three charges of possessing a prohibited drug. On the other hand, it seems that Mr Nguyen had only received one custodial disposition in his life, namely a control order of 8 months with a non-parole period of a little over 1 month. Although he had been subject to a sentence of imprisonment by way of periodic detention for 3 months as a result of a shoplifting offence, it is noteworthy that he had never been sentenced to full-time imprisonment in an adult gaol before. 180By the date of sentence, Mr Nguyen claimed to be drug free and to have been able to use his time in custody whilst bail refused to think more clearly about the course his life had taken. He gave evidence on the proceedings on sentence that all of the offences were motivated by a desperate desire to obtain money for drugs.

[41]

Determination regarding Bruni pistol 190In a sense this ground is highly artificial, for a number of reasons. The first is that, as I have indicated, in the appeal of Mr Truong, it was accepted by both parties that in fact the agreed facts in the proceedings on sentence of Mr Nguyen were incorrect, and the Bruni pistol was indeed capable of firing live rounds. However, no concession to that effect was made by counsel for Mr Nguyen, and the ground was maintained. Furthermore, the Crown accepted that Mr Nguyen was entitled to have his sentence determined on the basis of the evidence placed before his Honour, even if that evidence was in truth erroneous. 191The second artificial aspect of the submission is that no sentence was actually imposed for the selling of the Bruni pistol. An indicative head sentence of 3 years was provided, but in truth only one sentence was actually imposed: the aggregate head sentence of imprisonment for 9 years and the aggregate non-parole period of imprisonment for 6 years. In other words, even if the indicative head sentence of imprisonment for 3 years were reduced to reflect this finding of fact, the ground would only be efficacious if the aggregate head sentence were also reduced. 192The third artificial aspect is that, on any analysis, the indicative head sentence of imprisonment for 3 years with regard to an offence that carried a maximum penalty of imprisonment for 20 years and, more importantly, a standard non-parole period of imprisonment for 10 years, must be characterised as markedly lenient. 193In short, his Honour referred to the fact that Bruni pistol was not capable of discharging live rounds as at the date of its sale. It seems that, by way of a slip, his Honour referred to it as being "readily capable of being made operable". A markedly lenient indicative head sentence was provided for that offence. Should this Court, even if it accepts that an error of fact has been made (on the evidence before his Honour), uphold the appeal in the sense of reducing, even to a small degree, the aggregate head sentence and the aggregate non-parole period? 194The answer to that question can be found in my discussion of the next ground of appeal of Mr Nguyen: namely, that the aggregate head sentence and aggregate non-parole period are manifestly excessive. It is also to be found in my discussion of the last ground of appeal in the Crown appeal regarding Mr Nguyen, namely that the aggregate head sentence and aggregate non-parole period are manifestly inadequate. It is also to be found in my discussion of the submission by Mr Truong that the total sentence imposed upon him was manifestly excessive. 195It suffices to say at this stage, that I consider that an error of fact has been established. And I am prepared to accept that the potential serviceability of the Bruni pistol could have been a material fact that was given some weight by his Honour in setting the aggregate head sentence and the aggregate non-parole period. In other words, I am prepared to proceed on the basis that the error has some materiality. I therefore uphold this part of ground two. But it is convenient to move immediately to s 6(3) of the Criminal Appeal Act.

[50]

Background and submissions 224In the remarks on sentence, his Honour described the drug and firearm offences as "objectively serious". A little later, with regard to the drug offences, his Honour said: "I am satisfied that the drug offences involved trafficking to a substantial degree. This was not a street level operation. This offender was engaged in a sophisticated operation involving the regular supply of significant amounts of illegal drugs." 225It was submitted that a review of the indicative head sentences demonstrates that they simply fail to reflect those characterisations of the objective seriousness of the offences. For example, it was submitted that it could not be the case that the selling of the Bruni pistol, which constituted the third offence, could properly have an indicative head sentence of imprisonment for 3 years, in the context of a 20 year maximum penalty and a 10 year standard non-parole period. Furthermore, the selling of the Melior pistol, which was reflected in the fourth offence, and which took into account the offences on the Form 1, two of which were serious, could not properly be visited with an indicative head sentence of imprisonment for 5 years. Again, with regard to the drug offences, it was noted that the two ongoing supplies had a maximum penalty of imprisonment for 20 years, and yet resulted in two indicative head sentences of imprisonment for 5 years. 226Finally, the supply of methylamphetamine encompassed in the sixth offence, again a serious example of an offence that carries a maximum penalty of imprisonment for 15 years, could hardly be adequately reflected in an indicative head sentence of imprisonment for 2 years. 227These submissions have a substantial degree of force. However, it must be remembered that the indicative head sentences cannot be the subject of an appeal to this Court. It is only the aggregate head sentence and aggregate non-parole period that can be the subject of an appeal. It follows that it is not a matter of this Court analysing each indicative sentence and determining whether it is erroneous. Rather, it is a matter of looking at the whole of the sentencing structure in order to determine whether the aggregate sentence can stand or not. 228For that reason, I shall regard these submissions as a particular of ground five, and an explanation by the Crown of how it is the error asserted in ground five is said to have arisen. They will be taken into account when I come to consider ground five. 229I would not uphold this ground as a separate ground.

[52]

Ground Five "The sentence is manifestly inadequate." 234To recap, Mr Nguyen faced seven offences to which he had pleaded guilty in the Local Court. All of them were serious. Two of them had a standard non-parole period of imprisonment for 10 years. Contained on a Form 1 were two further serious offences, and a number of other offences. 235With regard to the firearm offences, looked as a whole, the matter can be summarised as follows: on separate occasions, Mr Nguyen sold three pistols (the Bruni pistol, the Melior pistol, and a pistol with a silencer); he offered to sell a Beretta pistol; he conspired to sell five pistols; he possessed at his home a loaded Colt pistol; and he also sold and possessed ammunition. 236Quite apart from that, he supplied methylamphetamine of high purity on a number of occasions and netted as a result $14,900. He also possessed for supply at his home a not insignificant amount of methylamphetamine. 237To complete the picture, he had over $50,000 cash in his home. 238Is it conceivable that an aggregate head sentence of imprisonment for 9 years and an aggregate non-parole period of imprisonment for 6 years adequately reflects the criminality of Mr Nguyen? 239On the other hand, he pleaded guilty in the Local Court and received a 25 per cent discount. Two of the serious matters were contained on a Form 1. He was found to be remorseful. He was sentenced on the basis that one of the guns could not fire live rounds at all, and the other was in no state to do so when sold. His Honour approached the matter on the basis that Mr Nguyen was not a professional seller of prohibited drugs and prohibited firearms, but rather a desperate drug addict. His criminal record, although not unblemished, on analysis is not that serious, and could be interpreted as the typical record of a drug addict rather than a professional criminal. His prospects of rehabilitation were found to be good. 240The starting point adopted by his Honour must mathematically have been an aggregate head sentence of imprisonment for 12 years with an aggregate non-parole period of imprisonment for 8 years. That, on any reckoning, is not an insubstantial sentence to begin with regarding a person whose previous criminality did not remotely approach that encompassed in the offences under consideration. 241It can be said without the need for deep analysis that many of the indicative head sentences are lenient. It can also be said that, considering all of the criminality of Mr Nguyen, the aggregate head sentence and aggregate non-parole period are notably lenient. It can finally be said that, speaking for myself, I would have imposed a longer aggregate head sentence and a longer aggregate non-parole period on Mr Nguyen. However, it is well known that the establishment of all of those propositions does not of itself lead to a successful Crown appeal on the ground of manifest inadequacy. 242I have given earnest consideration to this question. Ultimately, I have come to the view that the aggregate head sentence and the aggregate non-parole period are on the cusp of being manifestly inadequate. In the end, I have decided that the aggregate sentence was open to the discretion of his Honour. I consider that that is the case if his Honour was giving full weight to the subjective features, and approaching the matter mercifully, as of course his Honour was entitled to do. 243It follows that, on the basis that the aggregate head sentence and the aggregate non-parole period just managed to come within the discretion available to his Honour, I would not uphold ground five.