Nguyen v R [2019] NSWCCA 213

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Nguyen v R [2019] NSWCCA 213 Hearing dates: 14 August 2019 Date of orders: 14 August 2019 Decision date: 14 August 2019 Before: Brereton JA at [1] Johnson J at [29] Lonergan J at [33] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIME – appeals – appeal against sentence – application for leave to appeal – whether sentence was manifestly excessive – whether denial of procedural fairness – whether error in not finding special circumstances – appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) s 44 Criminal Appeal Act 1912 (NSW) s 5 Cases Cited: Allen v R [2015] NSWCCA 113 Caristo v R [2011] NSWCCA 7 Clarke v R [2009] NSWCCA 49 Hughes v R [2018] NSWCCA 2 Jiang v R [2010] NSWCCA 277 MD v R [2015] NSWCCA 37 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 R v Cramp [2004] NSWCCA 264 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 Category: Principal judgment Parties: Van Canh Nguyen (Applicant) Regina (Respondent) Representation: Counsel: Mr A Hallas (Applicant) Mr D Patch (Respondent)

Solicitors: Tran Solicitors & Attorneys (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2015/369736 Decision under appeal Court or tribunal: District Court Date of Decision: 14 December 2016 Before: English DCJ File Number(s): 2015/369736

Judgment (Ex Tempore) 1. BRERETON JA: The applicant Van Canh Nguyen pleaded guilty to one count of manufacture large commercial quantity of prohibited drugs, namely 706.8 grams of methylamphetamine, and was sentenced in the District Court at Campbelltown to imprisonment for a non-parole period of 5 years, 7 months and 15 days, commencing on 16 December 2015 and expiring on 30 July 2021, with a total term of 7 years and 6 months, expiring on 15 June 2023. From that sentence he seeks leave to appeal to this Court, pursuant to the Criminal Appeal Act 1912 (NSW) s 5(1)(c). 2. The offence was committed on 16 December 2015, on which date the applicant was taken into custody and charged. On 1 September 2015 the threshold of the large commercial quantity had been reduced from 1 kilogram to 500 grams. The maximum penalty for the offence is life imprisonment, and the standard non-parole period is 15 years. Had the offence been committed prior to the amendment on 1 September 2015, the maximum penalty for the same quantity would have been 20 years, and the standard non-parole period 10 years. 3. The sentence proceedings were conducted on agreed facts. The applicant did not give evidence, but tendered a psychiatrist's report. The agreed facts recorded, at para 7: "A forensic chemist examined the evidence and found a total amount of 415.8 grams of pure methylamphetamine. In total the substances found containing any methylamphetamine weighed many kilograms, although the purity of the majority of the substances was very low. 706.8 grams of the total amount of the substances contained methylamphetamine at over 49% purity." 1. The sentencing judge, in remarks which very plainly closely followed the format and language of the statement of agreed facts, referred to 41.58 grams where the statement of agreed facts referred to 415.8 grams, but otherwise repeated verbatim para 7 of the statement of agreed facts. The Crown contended that this reflected an error on her Honour's part, and a misunderstanding of the gravity of the offence, such that the applicant was sentenced on a basis erroneously favourable to him. However, I do not accept that her Honour misapprehended the quantity or gravity of the offence, and that this was anything more than a slip of the tongue. Her Honour assessed the objective seriousness of the offence on the basis that there were more than 700 grams of the drug, with a purity of close to 50%. Her Honour also took into account that the drug was a dangerous and highly addictive one, which had debilitating psychological and social impacts on its users and on the community. For that reason, her Honour gave considerable weight to the need for general deterrence. 2. Her Honour took into account, favourably to the applicant, that the offence was committed over a period of only a couple of days, that it revealed minimal planning and sophistication, that he was acting alone and not as part of a syndicated criminal process manufacturing for supply to others, and that there was no evidence of profit. However, her Honour did not accept the contention that he was manufacturing solely for his own use, as the quantity manufactured and his association with other users meant, in her Honour's view, that it was inevitable that he would have been at least under pressure to share it, if not to sell it. Her Honour also took into account that the clandestine laboratory was located in a family backyard, as distinct from in premises especially procured for the purpose, although this was to some extent offset by the risk posed to nearby residents by a clandestine laboratory. For those reasons, as well as for the reason that the amount in question only slightly exceeded the threshold, her Honour concluded that the objective seriousness of the offence fell well below the mid-range for this offence. 3. The applicant, as her Honour noted, was 34 years of age with a record that included prior imprisonments, for 12 months for dealing with suspected proceeds of crime, and for a non-parole period of 12 months (with a total sentence of 1 year and 9 months) for supplying a prohibited drug, namely methylamphetamine. He has a five year old son of a relationship which broke down when he was incarcerated. He has an unstable employment history, associated with his drug addiction. He has been diagnosed with a substance abuse disorder, but has not, to this date, attended a drug rehabilitation programme. 4. Her Honour also took into account that he made immediate admissions when arrested, co-operated with police, and entered a very early plea of guilty entitling him to a 25% utilitarian discount. Her Honour accepted that he was truly remorseful and contrite, but considered that his prospects for rehabilitation were guarded unless he was committed to a longer term drug rehabilitation programme. 5. For the reasons that included, first, that the objective seriousness of the offence fell well below the mid-range; secondly, his plea of guilty and degree of co‑operation, and thirdly, the subjective circumstances to which her Honour referred, her Honour said that she would impose a non-parole period significantly less than the standard non-parole period of 15 years, and imposed a non-­parole period of 5 years, 7 months and 15 days. Her Honour declined to find special circumstances, and the total term was 7 years and 6 months. 6. The applicant propounds three grounds of appeal: first, that the sentence was manifestly excessive; secondly, that he was denied procedural fairness; and thirdly, that her Honour ought to have but did not find special circumstances. It is convenient to defer the manifest unreasonableness ground until last.

Ground 2 – Procedural Fairness 1. Ground 2 complained that the applicant was denied procedural fairness. As has been noted, her Honour found that the applicant was acting alone in part to produce methylamphetamine for his own use, but her Honour also did not accept that the entire quantity was for his own use, and observed that the quantity of the drug, and his association with other users, meant that it was inevitable that he would experience pressure to sell to or to share with others, or that it might be stolen by others. 2. The applicant complained that in taking into account those possibilities her Honour departed without prior notice from a position agreed between the applicant and the Crown, and without giving the applicant an opportunity to address it. The only agreement reflected in the statement of agreed facts in this respect was that when the applicant was arrested, he asserted that the purpose of the manufacture was for his own use. There was no agreement that that was in fact his sole purpose. In submissions before the sentencing judge, the Crown referred to R v Qutami [1] and explicitly submitted in respect of the claim that this was for the applicant's own use, that: "[T]he Court would have some circumspection, particularly in the absence of tested evidence, evidence on oath in relation to that claim, in light of the principles of Qutami and … given the significant quantity." 1. That was a submission made before the sentencing judge, which the applicant self-evidently had an opportunity to answer. Her Honour's finding, about which complaint is now made, reflects and responds to that submission. No denial of procedural fairness is apparent. Ground 2 therefore fails.

Ground 3 – Special Circumstances 1. Ground 3 complains that her Honour ought to have found special circumstances. Her Honour declined to find special circumstances for the purposes of departing from the statutory ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), observing first, that the sentence as a whole would be such that there would be sufficient time on supervised parole to attend a full time residential rehabilitation programme, and for there to be supervision thereafter; secondly, that this was not the first occasion on which the applicant had been in custody; thirdly, that he was not especially young; and fourthly, that no other matters which might amount to special circumstances appeared. 2. As this court observed in MD v R, [2] simply because there are circumstances which are capable of constituting special circumstances does not compel the court to make such a finding and reduce the non-parole period. The decision to find special circumstances is first, one of fact, to identify the circumstances, and secondly, one of judgment to determine that those circumstances justify a lowering of the non-parole period below the statutory ratio. 3. On appeal, the applicant points to a number of circumstances which were not advanced as such before the sentencing judge. The first is that the intent that the manufacture be for personal use only should have been taken into account in this respect. In circumstances where her Honour accepted that the manufacture was substantially, though by no means entirely, for personal use, and took that into account in respect of the sentencing exercise as a whole, I do not see how it amounts also to a special circumstance relevant to reducing the statutory ratio. 4. Secondly, it was submitted that there were special circumstances in the applicant's remorse and future aspirations, and his past apparent inability to access a rehabilitation program. Her Honour accepted that the applicant was remorseful, noted that he was working while in custody and his aspirations, and considered that he had some prospects of rehabilitation - but was guarded about this conclusion. Fundamentally, her Honour adverted to and took into account the need for a full time rehabilitation period, and considered that in this case that did not amount to a special circumstance, since the parole period would sufficiently accommodate it. 5. Thirdly, it was submitted that the applicant knew - or thought he knew - the risks associated with manufacturing methylamphetamine from his previous custodial experience, but was unaware of the change of the threshold in the quantity for a large commercial quantity. This submission was made without any evidence whatsoever to support that that was the applicant's state of knowledge or belief. 6. The cases make clear that the question of special circumstances is one for the sentencing judge, with whose judgment on this issue the Court of Criminal Appeal should be slow to intervene absent manifest error: see, for example, Jiang v R; [3] Caristo v R; [4] and Allen v R. [5] In Clarke v R, [6] McClelland CJ at CL, with whom James J and Adams J agreed, pointed out that the extent of any adjustment to the statutory requirement was essentially a matter within the sentencing judge's direction, noting that Spiegelman CJ had observed in R v Cramp [7] that an adjustment for special circumstances raises so many issues of a discretionary character that this court should be very slow to intervene, and should do so only if the non-parole period provided is manifestly inadequate or manifestly excessive. Those considerations are relevant not only to the extent of any adjustment, but also to the finding of special circumstances in the first place. 7. Even if I were of the view, which I am not, that the matters now raised and advanced by the applicant as special circumstances, which were not advanced as such before the trial judge, amounted to special circumstances and could now be relied on notwithstanding that they were not before the trial judge, that would at best be a difference of opinion on a discretionary question within a range of reasonable judgment. No error in the trial judge not finding special circumstances is apparent. Ground 3 therefore fails.

Ground 1 – Manifest Excess 1. That leaves then the first ground of manifest excess. The relevant principles to be applied in respect of a contention that a sentence is manifestly excessive were summarised relatively recently in this Court in Hughes v R, [8] by Payne JA, R A Hulme J and Garling J, as follows: When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust. 1. Thus, to succeed on this ground of appeal, an applicant must demonstrate that the sentence passed by the sentencing judge was unreasonable or plainly unjust. 2. In this case the applicant points to two principal matters, namely the legislative amendment to which I have referred which had the consequence that the quantity involved was a large commercial quantity and not a mere commercial quantity as it would have been four months earlier, and secondly that the relative weight attributed by her Honour to the use of the residential premises as an aggravating factor, as distinct from the circumstance that they were not specifically sourced commercial premises as a mitigating factor, was unclear. 3. As to the reduction in the threshold for a large commercial quantity the practical consequence was, as I have noted, to increase the maximum penalty from 20 years to life and the standard non-parole period from 10 years to 15 years. This offence took place not on the day after the amendment but more than three months after the amendment came into effect. Nonetheless, had the matter fallen for sentence under the former regime, it would not then have been an offence that would have been well, if at all, below the mid-range for a mere, as distinct from a large, commercial quantity. The starting point might well have been the standard non-parole period of 10 years. The applicant was entitled to a discount of 25% for his early plea, which would have reduced that to 7 years and 6 months. The actual non-parole period of 5 years, 7 months and 15 days imposed by her Honour is exactly 75% of that, implying a further 25% reduction on account of a view that it fell somewhat below the mid-range even of the lesser offence and/or the subjective considerations. While her Honour did not explicitly explain how she took into account the recent change in the threshold, the point at which it is referred to in her Honour's remarks on sentence and the place which it occupies in the sequence of her Honour's reasoning suggests that it could well have been taken into account along the lines which I have just outlined. In any event, the exercise demonstrates that the non-parole period ultimately fixed would not have been excessive, even according to the former regime. 4. As to the "family shed" issue, this was an aspect of the unsophisticated and relatively unplanned nature of the offence. It is plain that her Honour took into account, in a way favourable to the applicant, that this was a most unusual instance of the offence, because of its unsophisticated nature and the place and manner in which it was conducted and that it was not part of a profit making criminal enterprise. It is also plain that, to some extent, that was offset by the risk involved to public safety. 5. The sentencing judge does not have to explain with precision how much relative weight is given to each countervailing consideration. It is clear here that on balance her Honour regarded the circumstances of the manufacture as reducing its overall criminality, to a point that was, in her Honour's words, "well below the mid-range." 6. Looked at overall, the non-parole period of 5 years, 7 months and 15 days was 37.5% of the standard non‑parole period. Before the 25% discount for the plea of guilty, it was 50% of the standard non-parole period. Bearing in mind the applicant's previous conviction for supplying this very drug, and the need for general and specific deterrence, it cannot be said that that non-parole period or the total sentence of seven years and a half was manifestly excessive. Ground 1 fails.

Disposition 1. All the grounds of appeal therefore fail. 2. I propose that leave to appeal be granted, but the appeal dismissed. 3. JOHNSON J: I agree with the orders proposed by Brereton JA and generally with his Honour's reasons. 4. It has not been established that there was a denial of procedural fairness in the sentencing proceedings nor is error demonstrated with respect to her Honour's approach and finding concerning special circumstances. 5. With respect to the claim of manifest excess, having regard to the legislative guideposts represented by the maximum penalty and the standard non-parole period in accordance with the principles in Muldrock v The Queen [9] and having regard to her Honour's findings generally, it has not been demonstrated that the sentence imposed was manifestly excessive. In my view, the sentence imposed was well within the reasonable exercise of sentencing discretion in the circumstances of this case. 6. For these reasons, I agree with the orders proposed by Brereton JA. 7. LONERGAN J: I agree with Brereton JA and the additional remarks of Johnson J. I also agree with the orders proposed by Brereton JA.

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Endnotes 1. (2001) 127 A Crim R 369; [2001] NSWCCA 353. 2. [2015] NSWCCA 37 at [38]–[42] per Gleeson JA. 3. [2010] NSWCCA 277 at [83] per R A Hulme J. 4. [2011] NSWCCA 7 at [27] per R A Hulme J. 5. [2015] NSWCCA 113 at [33] per Hoeben CJ at CL. 6. [2009] NSWCCA 49 at [13]. 7. [2004] NSWCCA 264 at [31]. 8. [2018] NSWCCA 2 at [86]. 9. [2011] 244 CLR 120; [2011] HCA 39 at [27]. 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: 06 September 2019