Nguyen v R [2008] NSWCCA 308 (16 December 2008)

Last Updated: 19 December 2008

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Nguyen v R [2008] NSWCCA 308


FILE NUMBER(S):
2007/2788

HEARING DATE(S):
5 December 2008

JUDGMENT DATE:
16 December 2008

PARTIES:
John NGUYEN - Applicant
REGINA - Respondent/Crown

JUDGMENT OF:
McClellan CJ at CL Grove J Howie J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
05/11/0835

LOWER COURT JUDICIAL OFFICER:
Bennett DCJ

LOWER COURT DATE OF DECISION:
20 October 2006


COUNSEL:
G N Whitehead - Applicant
V Lydiard - Respondent/Crown

SOLICITORS:
Nyman Gibson Stewart - Applicant
S Kavanagh - Public Prosecutions

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
Sentence
Co-offenders originally dealt with together
Subsequent quashing of sentences on one of them
New sentencing proceedings regarding that offender
New findings by resentencing judge
Appeal by other offender
Parity with co-offender's resentence
Resentence arguably inadequate
No justifiable grievance in the circumstances

LEGISLATION CITED:
s 166 Criminal Procedure Act 1986

CATEGORY:
Principal judgment

CASES CITED:
Hodges v R [1997] 95 A Crim R 85
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Boney [2001] NSWCCA 432
R v Diamond (NSWCCA, unreported 18/2/93
R v Doggert (NSWCCA, unreported 24/3/96)
R v Ilbay [2006] NSWCCA 251
R v Wei Pan [2005] NSWCCA 114

TEXTS CITED:


DECISION:
Appeal against sentence dismissed.



JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/2788

McCLELLAN CJ at CL

GROVE J

HOWIE J

16 December 2008

John NGUYEN v REGINA

Judgment

1 McCLELLAN CJ at CL: I agree with Grove J.

2 GROVE J: This is an application for leave to appeal against severity of sentence imposed by Bennett DCJ at Parramatta District Court on 20 October 2006. The applicant and a co-accused William Le each pleaded guilty to an indictment containing four counts, jointly charging them with specially aggravated kidnapping and three counts of robbery in company. Those offences carry maximum available penalties of 25 years and 20 years imprisonment respectively.

3 The applicant was sentenced on the first count of kidnapping to imprisonment consisting of a non-parole period of 6 years commencing on 10 November 2004 and expiring on 9 November 2010 with a balance term of 2 years, and on each of the counts of robbery to a non-parole period of 3 years with a balance term of 1 year to be served concurrently with each other and concurrently with the imposition on count 1. Pursuant to s 166 of the Criminal Procedure Act his Honour dealt with a further offence of driving whilst licence suspended in respect of which no penalty was imposed but an automatic disqualification came into effect.

4 Bennett DCJ sentenced Le to imprisonment consisting of a non-parole period of 2 years 6 months commencing on 2 October 2006 with a balance term also of 2 years and 6 months for the kidnapping and non-parole periods of 2 years with balance terms of 1 year on each of the robbery counts to be served concurrently with each other and the first 2 years of the non-parole period of the sentence on count 1. In circumstances which it will be necessary to detail, following an appeal to this Court Le was remitted to the District Court for resentence and on 17 April 2008 Blackmore DCJ imposed a sentence of imprisonment for the kidnapping consisting of a non-parole period of 13 months 14 days commencing on 4 March 2007 with a balance term of 46 months and 15 days and for the three offences of robbery to imprisonment for non-parole periods of 12 months also commencing on 4 March 2007 with balance terms of 2 years.

5 Le had been released to bail following the quashing of the sentences imposed in October 2006 and the resentence in April 2008 was structured to avoid his being returned to custody. The quashing of the sentences on Le by this Court was ordered on 23 November 2007 and Blackmore DCJ referred to Le “leaving custody in December 2007”. It appears therefore that the commencement date of 4 March 2007 was selected so as to create equivalent periods from that date to 17 April 2008 when his Honour ordered release to parole and the span of actual custody following the sentence by Bennett DCJ until release in December 2007.

6 A ground of appeal filed expressed a single ground that “the sentence imposed is manifestly excessive”. The thrust of submissions was to claim that the applicant has a justifiable sense of grievance by reason of the heavier sentence which he is serving compared to that ultimately received by Le: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606; Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295.

7 Although they remain relevant, it is noted that the sentences on counts 2, 3 and 4 are now expired and the applicant is now serving only the sentence imposed in respect of the kidnapping.

8 At the hearing before Bennett DCJ the Crown tendered a lengthy statement of facts. Without reciting all of the detail, some central facts can be recounted. Le was acquainted with the victim Tuan Pham. He made a number of phone calls and other contacts eventually persuading Pham to enter a vehicle in which the applicant was a passenger. The vehicle was then driven away.

9 Le referred to his having been “robbed” of a mobile phone some three years previously as well as a later event and he asserted that Pham had something to do with them. It was threatened that Pham was going to be shot. The vehicle was stopped in what would appear to have been an isolated spot. Pham was dragged from the car by the applicant who punched him in the face. Other assaults followed and money was demanded. Pham telephoned a friend and in the early hours of the morning he was taken to the friend’s home where he obtained $150 which was later taken from him by the offenders.

10 On the next day the applicant called Pham and made a further demand and Pham complied with a direction to meet where, upon his arrival, the applicant and Le took a further $300 from him. The counts of robbery related to these two payments and a taking of Pham’s mobile phone which had occurred during the initial journey.

11 More phone calls were made to Pham and another meeting was arranged but by this time the matter had been reported to police. The applicant was arrested near the appointed meeting place and Le was arrested as he was returning to his home.

12 There were aspects of the alleged conduct of the individual offenders which were the subject of dispute. These can be noted but they do not require detailed elaboration at present. There was a significant contest between them concerning their respective involvement and his Honour heard evidence in those regards. In particular Le asserted that he participated in the crimes as a result of duress applied upon him by the applicant. Bennett DCJ found that he was not satisfied that threats by the applicant caused duress to Le “explaining his part in these offences”.

13 Evidence and argument concerning the roles of the offenders extended over a number of intermittent occasions. It became of significance that on one occasion the applicant gave evidence and was cross examined by the Crown Prosecutor in the absence of Le or his legal representative.

14 Ultimately Bennett DCJ expressed this finding:

“I find that together they embarked upon this venture without one or other being the dominant partner. Their motivation was the acquisition of funds to service their continuing addictions. As to the clear contrast between the extent of the conduct upon which they each engaged in the commission of these offences, and that it was Nguyen who did most throughout the actual detention of Pham, I find that this was conduct upon which he engaged for the joint purpose and that Le should bear equal responsibility for the violence in which he acquiesced and continued to exploit as further money was taken from the victim.”

15 His Honour reiterated this finding when dealing with subjective matters concerning Le. He said:

“I have already indicated my finding in relation to the commission of these offences by these men that this was a joint enterprise for which this offender should bear equal responsibility, subject, of course, to the circumstances that are unique to him and which will impact upon the sentence that is appropriate for him.”

16 I turn to the course of proceedings against Le. As abovementioned, his appeal against sentence was heard and determined in this Court on 23 November 2007 ([2007] NSWCCA 330).

17 It was held that the reception of evidence from the applicant in the absence of Le or his legal representative constituted a denial of procedural fairness and for that reason the sentences imposed were quashed and the matter remitted to the District Court with this direction:

“As the sentencing judge accepted Nguyen’s evidence the sentencing proceedings are to be commenced again so far as the applicant is concerned before another judge of the District Court”. (Emphasis added).

18 Hence the hearing before Blackmore DCJ was a new proceeding. As Bennett DCJ’s remarks on sentence dealt with both offenders I infer that they must have been edited somewhat for those proceedings as Blackmore DCJ stated:

“One other factor no doubt taken into account by Judge Bennett was that of duress. I have not been given his Honour’s remarks on sentence with respect to this offender (Le), only those relevant to the co-offender (Nguyen), but it was conceded by the Crown in the sentencing proceedings that at least to some degree the offender (Le), could be seen to be operating under the duress of the co-offender (Nguyen). It was accepted that the offender (Le) had a real basis for fearing the co-offender (Nguyen).”

19 As already recounted, Bennett DCJ rejected the allegation of duress claimed by Le, however, in accordance with the direction of this Court, it was for Blackmore DCJ to make findings in new proceedings. Obviously the concession now recorded as having been made by the Crown concerning duress had not been made in the earlier proceedings against both offenders.

20 In addition Blackmore DCJ commented and concluded:

“Certainly Judge Bennett who sentenced both of the offenders regarded the co-offender Nguyen as the principal offender. I agree with that assessment.”

21 The extracts from Bennett DCJ’s remarks where he found that the offenders should bear equal responsibility show that he did not find that the applicant was the “principal offender” but the statement by Blackmore DCJ should be understood as expressing his own assessment to that effect even though he was apparently mistaken about Bennett DCJ having the same opinion.

22 In Postiglione Dawson and Gaudron JJ (at p 301) observed:

“Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated.”

23 Sometimes offenders are dealt with on different occasions and upon different evidence concerning their respective participations in crime. Postiglione and his co-offender Savvas were instances of this. Their Honours pointed out that it was the finding in the case of the appellant before them (Postiglione) upon which they had to act as distinct from findings in the separate proceedings concerning his co-offender Savvas. Thus, in the present case, they are the findings by Bennett DCJ upon which this Court must act.

24 Attention was directed to the observations of Hunt CJ at CL (in dissent on the result of the particular appeal) in Hodges v R [1997] 95 A Crim R 85. Inter alia, his Honour said at p 86:

“The factual bases of those different findings are often very different. Thus, if judge X sentences A upon the basis that, on the findings of fact made by that judge, A was merely a courier and B was the organiser of the drug importation, and judge Y sentences B upon the basis that, on the findings of fact made by that judge, the roles were in fact reversed, any sense of grievance on the part of A in relation to the different findings by judge Y would be disregarded should A seek to appeal against his own sentence. It would not be a justified sense of grievance. All things would not have been equal, although that is not to deny the proposition that the sentence imposed on A should bear a reasonable relationship with or relativity to that imposed upon B albeit sentenced upon a different factual basis.”

25 An addendum to that judgment referred to the publication of the decision in Postiglione an analysis of which did not cause any variation to the remarks just quoted.

26 The sentence received by the applicant reflected the objective seriousness of the offences in which, on the findings of Bennett DCJ, he and Le were of equal culpability. Subjective considerations were markedly different. The applicant pleaded guilty on the first day of his scheduled trial. He had a not inconsiderable prior record significantly including a sentence in July 2000 in Sydney District Court for robbery whilst armed with a dangerous weapon, for which he was sentenced to 4 years imprisonment with a non-parole period of 2 years to be served in a juvenile detention centre. Later for an offence of robbery he appeared in Sydney District Court on 19 August 2004 where he was sentenced to imprisonment for 2 years 6 months with a non-parole period of 1 year 13 days, which was structured to enable his release to parole from current custody forthwith. He was on that parole at the time of commission of the current offences. Bennett DCJ said that he had no information about the revocation of parole and he therefore commenced the sentences on 10 November 2004, the date of the applicant’s arrest, which virtually coincided with the commission of the offences. His Honour recognized that this may have operated to the practical advantage of the applicant in that it would be likely, if parole were revoked, that the commencement date of sentence might be postponed.

27 Bennett DCJ noted the applicant’s extensive history of drug use but commented “It in no way justifies the lifestyle that he has chosen committing crimes so that he may have funds to feed his habit.” He referred to the contents of a report by a psychologist Mr Borenstein, which recorded that the applicant had been the victim of stabbing whilst in gaol. Mr Borenstein thought that the applicant manifested some symptoms of post traumatic stress disorder.

28 His Honour formed a favourable opinion of the applicant’s credibility including his expressions of remorse and plans to attempt rehabilitation. As to the latter, given the history of earlier failed attempts recorded by Mr Borenstein, he thought that the prognosis needed to be guarded. He did not find that the applicant could be assessed as unlikely to re-offend and he considered that the prospects of rehabilitation were “not strong”.

29 In the whole of the circumstances, objective and subjective, I would not assess the sentences imposed as manifestly excessive and I am of that opinion that the impositions lay well within the range of the sound exercise of his Honour’s discretion. There is a tacit recognition of this in the placing of focus upon the alleged absence of parity between the applicant and Le in the submissions to this Court.

30 As already described, Le was sentenced on 17 April 2008 and it is the sentence then received which is claimed to provide an unacceptable contrast with the sentence received by the applicant. It was not contended that such a contrast existed in respect of the sentences, less than those received by the applicant, originally imposed by Bennett DCJ but subsequently quashed.

31 I have already made reference to the findings by Blackmore DCJ that the applicant “was the principal offender” and that Le had acted under duress from him. His Honour found that Le pleaded guilty at the first reasonable opportunity. Le had no relevant criminal history and was regarded as a person of prior good character and the offences were “an aberration” in his case. In reference to the finding of duress, Blackmore DCJ referred to evidence that Le took out a loan of $15,000 to help the applicant pay gambling debts. There was no realistic prospect of repayment but his evidence was that he was too terrified not to do as the applicant asked.

32 His Honour further found that there had been considerable delay in Le being dealt with (the offences having occurred in November 2004 and his final appearance for sentence being in April 2008) and that it was not caused by any action on the part of Le himself.

33 Significantly his Honour found that Le was now “substantially rehabilitated”. Le had addressed a gambling addiction which was an underlying cause of his offending. Whilst in custody he had taken the opportunities offered to complete many courses and since released on bail he had applied for some 20 to 30 jobs eventually succeeding in securing a job as a customer service officer and he had remained in this employment.

34 He had a stable girlfriend and had revealed to her on the very day his single lapse into gambling again. Le’s girlfriend expressed the opinion that he had matured during and after the period in custody. His Honour observed that return to custody would be likely to lead to the loss of employment.

35 Blackmore DCJ was expressly aware of the possibility that the longer sentence received by the applicant may lead to complaint but he observed that it was not for him to say whether the applicant might harbour a justifiable sense of grievance.

36 Looked at in isolation, whilst recognizing the powerful subjective case which had been made, it could nevertheless be postulated that the sentence received by Le in April this year was manifestly inadequate. Whether that were so or not, the intervention of this Court would not be attracted so as to impose the sentence upon the applicant which was disproportionate to his objective and subjective criminality.

37 A useful applicable summary was provided by Johnson J in R v Wei Pan [2005] NSWCCA 114:

“The elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community – the issue is whether the particular sense of grievance or injustice is a legitimate one: Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 611 per Mason J. The test for determining the existence of a sense of grievance is objective not subjective. What has to be demonstrated by the person complaining on the grounds of parity is not that he feels aggrieved, but that a reasonable mind looking overall at what has happened would see that the offender’s grievance is justified: R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported) per Sully J: R v Ilbay [2000] NSWCCA 251 at paragraph 6.

Where there is a degree of disparity so as to invite a reduction in the sentence imposed, it is not necessary for the Court of Criminal Appeal to intervene if the result of doing so is to produce a sentence disproportionate to the objective and subjective criminality involved: R v Boney [2001] NSWCCA 432 at paragraph 15. A stage can be reached at which the inadequacy of the sentence imposed upon the co-offender is so great that the sense of grievance engendered can no longer be regarded as a legitimate one: R v Diamond (Court of Criminal Appeal, 18 February 1993, unreported, BC9302054); R v Boney, above, at paragraph 16.”

38 The favourable findings made by Bennett DCJ in relation to the applicant’s sincerity and credibility were reflected in a substantial element of leniency which is perceptible in the sentences which he imposed. In the circumstances discussed in the foregoing I would reject the contention of the applicant that the intervention of this Court should be attracted by reason of his harbouring a sense of grievance which is justifiable.

39 I propose that leave to appeal against sentence be granted but the appeal be dismissed.

40 HOWIE J: I agree with Grove J.

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LAST UPDATED:
18 December 2008