NGUYEN, Van Cong v R [2008] NSWCCA 163

New South Wales Court of Criminal Appeal

CITATION: NGUYEN, Van Cong v R [2008] NSWCCA 163

HEARING DATE(S): 10 July 2008

JUDGMENT DATE: 10 July 2008

JUDGMENT OF: McClellan CJ at CL at 19; James J at 20; Fullerton J at 2

EX TEMPORE JUDGMENT DATE: 10 July 2008

1. Leave to file the notice of appeal out of time be granted. 2. Leave to appeal be granted. DECISION: 3. The sentence imposed by the sentencing judge be quashed. 4. In lieu thereof the applicant is sentenced to imprisonment for a non-parole period of 12 months to date from 7 July 2007 and to expire on 10 July 2008 and a balance of term of 12 months to expire on 10 July 2009. 5. In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act a direction that the applicant be released to parole forthwith.

CATCHWORDS: CRIMINAL LAW - appeal against sentence - whether sentence manifestly inadequate - supply of a prohibited drug - prospect of rehabilitation - special circumstances

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985

CATEGORY: Principal judgment

Ma and Pham v R [2007] NSWCCA 240 CASES CITED : R v Phillips [2003] NSWCCA 373 R v Simpson (2001) 53 NSWLR 704

PARTIES: Van Cong Nguyen (App) The Crown (Resp)

FILE NUMBER(S): CCA 2007/5479

COUNSEL: B Nield (App) J Girdham (Resp)

SOLICITORS: M Rumore (App) Director of Public Prosecutions (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0103

LOWER COURT JUDICIAL OFFICER: McGuire ADCJ

LOWER COURT DATE OF DECISION: 5 October 2007

IN THE COURT OF CRIMINAL APPEAL 2007/5479

MCCLELLAN CJ AT CL JAMES J FULLERTON J

THURSDAY 10 JULY 2008 VAN CONG NGUYEN v R Judgment

1 MCCLELLAN CJ AT CL: I will ask Fullerton J to deliver the first judgment. 2 FULLERTON J: This is an application for leave to appeal against the sentence imposed on the applicant in the District Court on 2 October 2007. On 9 July 2007, he was found guilty of the offence of the supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 after trial. Since the Notice of Intention to Appeal was filed on 27 May 2008 the applicant seeks leave to file the notice out of time. Despite the absence of any evidence to explain the delay the Crown does not oppose leave being granted. In those circumstances I propose that leave be granted. 3 The offence of supply was constituted by the applicant's possession of 17.8 grams of the drug ecstasy for supply on 2 September 2006 in accordance with the deeming provision in s 29(1) of the Act. At trial the applicant did not contest possession but sought to establish, on the probabilities, that his possession was otherwise than for supply in circumstances where he claimed to have been given the drugs to hold on behalf of another person on condition that he return the drugs to that person at some later but unspecified time. 4 The applicant was found in possession of the drugs (comprised of 64 ecstasy tablets) together with two mobile telephones as he was re-entering a nightclub. He claimed that he was re-entering the nightclub with the intention of returning the drugs to their owner having left a short time earlier because he was feeling unwell. Whilst his account of how he came to be in possession of the drugs was corroborated by two witnesses, in the sense that they saw him being handed the items by another person, it is not clear whether this was inside or outside the nightclub. In either event this was not determinative of the question that presented for the jury's consideration. 5 Since the jury rejected the applicant's account, his Honour proceeded to sentence on the basis that the drugs were in the applicant's possession for the purposes of supply. I note that there was no evidence or any indicia of actual supply. The mobile telephones were relevantly untraceable. Nevertheless I am satisfied that the sentencing judge was entitled to sentence the applicant on the basis that he was a supplier of the drug ecstasy for profit. Whilst his Honour made no express finding about the applicant's possession of the telephones, the open inference is that they were in his possession to advance or promote his commercial objectives. 6 On sentence the applicant did not resile from the position that he took at trial. He has not resiled from that position to date. 7 For sentencing purposes his Honour regarded the principle of deterrence (both personal and general) as having predominant weight in the sentencing exercise. In addition, he expressed no confidence that the applicant had any prospects of rehabilitation whilst ever he persisted in maintaining his innocence and, that after considering the question of special circumstances, his Honour was not satisfied that they were established. 8 In the result his Honour imposed a term of imprisonment of 2 years and, in accordance with the ratio provided for in s 44(1) of the Crimes (Sentencing Procedure) Act 1999 his Honour fixed a non-parole period of 18 months with a balance of term of 6 months. Sentence was ordered to commence from the date of conviction. 9 The applicant submits that his Honour's reasoning exposes both latent and patent errors, although, as is submitted, the identification of what is said to be patent errors are both separately and cumulatively linked to the submission that the sentence was manifestly excessive.

Ground 1: An erroneous finding that it was "difficult to be confident of any prospect of rehabilitation" 10 The applicant did not give evidence on sentence however he gave evidence at his trial that he was aged 32 and, since arriving in Australia four years earlier from Vietnam he had obtained Australian citizenship. He had also secured a position of head chef at a Vietnamese restaurant in Cabramatta. Although he did not give the Probation and Parole officer permission to contact his employer, I note in the proceedings on sentence that the Crown did not put the state of his employment in contest. In addition, the applicant advised the Probation and Parole officer that he had commenced an English as a second language course five months before his arrest. Similarly, it was not in contest that prior to his incarceration the applicant was residing with his wife and children in a house owned by his sister at Green Valley. His mother was also resident with the family. He is one of nine children. It would appear that some of his siblings are resident in Vietnam but three siblings reside in Australia inclusive of his sister who owns the family house. It would appear he was a productive and supportive member of that household and otherwise had strong family support. There is no suggestion that the applicant was himself a user of illicit or prescribed substances. He has no relevant prior criminal record. Not unimportantly, there was no offending of any kind between the date of his arrest on 9 September 2006 and his conviction on 9 July 2007. 11 His Honour recited a summary of the applicant's pre-offending work history and his filial circumstances but nevertheless found that it would be difficult to be confident of any prospects of rehabilitation where the applicant persisted in refusing to acknowledge any criminal responsibility for his possession of the drugs. Whilst it is true that in those circumstances the applicant was not entitled to any benefit in sentencing terms for remorse or contrition, in my view it does not necessarily follow that he did not qualify to be considered as a person who may have learned a salutary lesson from his offending such that on his release there would not be some measure of confidence that he would resume a law-abiding life and commit himself to financially supporting his wife and children in gainful and lawful employment. 12 In the Crown's written submissions there is an appropriate concession that the applicant's continued denial that he committed the offence does not equate to no prospects of rehabilitation. What the Crown does seek to emphasise, and correctly, is that since it is a factor that operates in mitigation of sentence the onus was on the applicant to satisfy his Honour that there were good prospects of rehabilitation as provided for in s 21A(1) of the Crimes (Sentencing Procedure) Act. It would appear on a strict reading of his Honour's sentencing remarks that he did not reject outright the prospect of the offender's rehabilitation but rather, that in the circumstances, it was difficult for his Honour to be confident of that fact. It would also appear that his Honour has drawn that conclusion from the pre-sentence report which I note from the transcript of proceedings on sentence was acknowledged to be a brief report by reason of the inability on the part of the Probation and Parole officer to independently verify some of the information provided by the applicant. I note that the applicant provided the officer with his wife's contact details however she had not returned the telephone calls placed by the Service. There may be any number of reasons why that was so, quite independent of any inference adverse to the applicant. 13 While the applicant's work history and absence of any criminal history might generally be thought to be positive indicators of the prospects of rehabilitation, I am not satisfied that his Honour failed to give them any weight at all, but rather that in the circumstances he found it difficult to be confident of the prospect of rehabilitation. This was a finding open to him. In those circumstances I am not satisfied that error is disclosed as contended for on this ground of appeal.

Ground 2: Failure to give adequate and/or proper consideration to the applicant's subjective circumstances 14 This ground of appeal is allied with the previous ground of appeal with the additional complaint that the sentence imposed reflects the fact that his Honour failed to give adequate and/or proper consideration to the applicant's subjective circumstances, in particular his good work history since migrating to Australia, his family circumstances and the absence of any relevant criminal record, each of which it is submitted were deserving of weight and prominence in the sentencing discretion. It is clear that from the remarks on sentence that his Honour was concerned, and in my view rightly so, to emphasise the importance of deterring those who seek to either make a living from or augment their income by what his Honour described as "the easy money to be garnered from supplying ecstasy", a drug which his Honour observed was readily available in city and suburban locales. His Honour expressed the view that a "meaningful price" must be paid by convicted drug suppliers in order to meet the community's indignation at the impunity with which they appear to operate. 15 The issue is not whether his Honour gave undue weight to general or personal deterrence but whether he gave inadequate weight to the applicant's subjective circumstances in the imposition of sentence. It is clear that his Honour did not disregard the subjective circumstances. Rather it appears that his Honour was simply of the view that such circumstances as were established before him did not outweigh the need for the sentence to be appropriately measured against the objective gravity of the applicant's offence. It is not unusual for an offender's subjective circumstances to be given less weight in relation to offences of drug supply so as to give prominence to the principle of deterrence. Moreover, having regard to the maximum penalty of 15 years for the supply of prohibited drugs in trafficable quantities, a 2 year sentence is not outside the permissible range: see Ma and Pham v R [2007] NSWCCA 240 per Hulme J at [91]. Counsel on the appeal did not seek to argue to the contrary. Plainly enough it is not to the point that a lesser penalty may have been imposed, the question is whether his Honour's discretion miscarried such as to result in a sentence that is manifestly excessive or unreasonable or plainly unjust. I am not persuaded that the sentence is of that kind or character.

Ground 3: His Honour erred in failing to find and/or give proper consideration to whether special circumstances were established 16 In his Honour's reasons for sentence he said "I considered the question of special circumstances and I do not believe that they exist". His Honour gave no explanation for so finding. For my part, on the evidence, I regard the finding that special circumstances do not exist as manifestly untenable. His Honour's finding is to be contrasted with a case when circumstances may have been capable of being accepted as special but where, in the discretion of the sentencing judge, no such finding should be made (see R v Phillips [2003] NSWCCA 373 at [16]). In those circumstances this Court may be reluctant to intervene. 17 I am satisfied that the applicant's absence of any criminal antecedents, an established work history and, importantly, the fact that he did not come to fresh notice between the offence and trial, are such as should properly engender a real confidence in his ability to rebuild his life on release with the assistance of appropriate supervision and intervention. Importantly, in this case there can be no suggestion that those matters have been double-counted by reason of the fact that his Honour appears to have given no particular weight to rehabilitation although as I have found not in a way such as to constitute error (see R v Simpson (2001) 53 NSWLR 704 at [47]). I am satisfied that the statutory ratio can in this case be varied to result in the imposition of a non-parole period that appropriately reflects the criminality involved in the offence whilst providing for a longer parole period to facilitate this applicant's readjustment to community life upon his release.

Orders 18 The orders I propose are as follow: 1. Leave to file the notice of appeal out of time be granted.

2. Leave to appeal be granted.

3. The sentence imposed by the sentencing judge be quashed.

4. In lieu thereof the applicant is sentenced to imprisonment for a non-parole period of 12 months to date from 7 July 2007 and to expire on 10 July 2008 and a balance of term of 12 months to expire on 10 July 2009.

5. In accordance with s 50(1) of the Crimes (Sentencing Procedure) Act a direction that the applicant be released to parole forthwith.

19 MCCLELLAN CJ AT CL: I agree. The court had the benefit of written submissions from Mr Neild of counsel but was further assisted by his ready concession, in the course of oral argument, that the fundamental attack which he sought to pursue was on the non-parole period, rather than the overall sentence. This court is a court burdened by a very heavy workload. It is always of real assistance to this court when counsel exercise their judgment and confine the argument so that we can more readily dispatch the business which we have to attend to.

20 JAMES J: I agree with the judgment of Fullerton J and I agree with the further remarks of the Chief Judge.

21 MCCLELLAN CJ AT CL: Accordingly, the orders of the court are as proposed by Fullerton J. **********

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