Thach v R

1. [1]

   BATHURST CJ: I agree with Davies J.

2. [2]

   R A HULME J: I agree with Davies J.

3. [3]

   DAVIES J: The applicant pleaded guilty in Campbelltown Local Court on 3 August 2016 to the following offences:

4. [4]

   There was attached to sequence 16 a Form 1 containing four counts of possessing a prohibited weapon. The weapons were:

5. [5]

   There was a Form 1 attached to sequence 33 containing two counts of possessing a precursor, being 22,344 grams of safrole and 147 grams of hypophosphorous acid.

6. [6]

   The applicant was also charged on a s 166 certificate with three counts of possessing a prohibited drug.

7. [7]

   He was sentenced by Judge English in the District Court on 16 December 2016 to an aggregate sentence of 18 years’ imprisonment commencing 8 January 2015 and expiring 7 January 2033 with a non-parole period of 13 years and six months expiring 7 July 2028. The indicative sentences were as follows:

8. [8]

   The charges on the s 166 certificate were withdrawn and dismissed.

9. [9]

   The applicant now seeks leave to appeal on one ground only:

The factual background

1. [10]

   On 15 January 2014, officers from Strike Force Herd (DSC Daniel Walker and DSC Gary Adams) observed a Volkswagen Caddy with registration BGN09Y ("the Volkswagen") parked outside 11 Greenfinch Street, Green Valley. This Volkswagen was frequently used by the applicant and Mr Bunthoeun Thin. Mr Thin was observed driving the vehicle in Greenfield Park when the applicant was the passenger. The vehicle and the attached trailer were registered to associates of the applicant.

2. [11]

   In May 2014, police installed a number of surveillance devices into an Isuzu truck with registration BL96ZI ("the Isuzu") parked at the rear of an industrial yard at Narellan in accordance with a surveillance warrant. Police also obtained telephone intercepts for the applicant's mobile phone which showed, in addition to observations of the Volkswagen, the applicant attending the site of the Isuzu on 6 and 7 August 2014.

3. [12]

   On 1 September 2014, Police installed surveillance devices in the Volkswagen and, in conjunction with the applicant's phone records, it was determined that the applicant's mobile phone location and the Volkswagen's location corresponded between 5 and 24 September 2014.

4. [13]

   Telephone intercepts revealed that the applicant discussed the movement of the Isuzu truck with Mr Thin and a tow truck driver known as "Chris". These conversations included:

5. [14]

   On 18 September 2014, the applicant, Mr Thin and another person were observed attending the truck's location in Narellan. Listening devices, in conjunction with the previous conversations, revealed them moving items within the truck. On 19 November 2014, the truck was moved to 395 Devonshire Road, Kemps Creek with the applicant and Mr Thin leading the convoy that took it there. It was moved to 285 Devonshire Road, Kemps Creek on 22 November where it was seized by police on 8 January 2015.

6. [15]

   Mark Green was the fiancée of Ms Theavy Thin (the sister of Mr Thin). Mr Green confirmed that Mr Thin received his permission to store a truck at his industrial site in Narellan in February or March 2014. He further confirmed that the truck was brought over by Mr Thin and another Asian man of a similar age with possible arm tattoos. Sometime later he asked Mr Thin to move the truck as he needed the space.

7. [16]

   Police obtained CCTV footage from the Top Ryde City Living Complex for the dates between 21 November 2014 to 6 January 2015 inclusive. The footage revealed:

8. [17]

   On 8 January 2015, police searched the applicant's residence at 24 Ashur Crescent, Greenfield Park. Police seized the following items:

9. [18]

   Police seized the vehicle on 8 January 2015 and searched it on 9 January 2015 where the following items were located:

10. [19]

    In the attached trailer, police found the following items:

11. [20]

    Other items which were found included 9 latex gloves containing the applicant's DNA, an airline ticket in the name of Mr Thin, a set of scales, garbage bags containing used rags, gloves and wipes.

12. [21]

    One of the latex gloves revealed DNA from at least 2 individuals, and the applicant could not be excluded as a major contributor. Similarly, swabs taken from a bag containing two of the firearms revealed DNA from at least 3 individuals, and the major component of the mixture matched the applicant's DNA profile.

13. [22]

    Police seized the following items from the Isuzu on 8 January 2015:

14. [23]

    Dr Daniel Coughlan provided an expert certificate which contained the following:

15. [24]

    The applicant was arrested on 8 January 2015 and has remained in continuous custody since that date.

Subjective matters

1. [25]

   The applicant was 29 years of age at the time of sentence. He had no prior criminal antecedents.

2. [26]

   His family were refugees from Vietnam. They fled Vietnam in 1986 and travelled to Malaysia where they were placed into a refugee camp. The applicant was born while his parents were in the refugee camp. They arrived in Australia when the applicant was two years of age. The applicant is the eldest for four children.

3. [27]

   The plaintiff did well at school and commenced a business degree at the University of Western Sydney. Despite doing well at University, he left in second semester to pursue a career as a tattoo artist. In that environment he became exposed to illicit drugs and he commenced to use them socially with colleagues. In due course he developed a serious addiction.

4. [28]

   Through his contacts in the tattoo industry he met a man referred to as ‘the Lieutenant’. That man introduced him into the drug syndicate that he commenced to work for. Working for the syndicate enabled him to pursue his tattooing business from home, to earn extra income to support his drug habit, and to obtain a free supply of drugs. In due course he developed a gambling habit as well.

5. [29]

   He was examined by Dr Bruce Westmore on 11 October 2016. The history he gave to Dr Westmore he affirmed as true in his evidence before the sentencing judge.

6. [30]

   Dr Westmore considered that the applicant suffered from a Substance Use Disorder which was in remission while he was in prison. Dr Westmore said that the history of depression relayed to him by the applicant was probably an Adjustment Disorder. Dr Westmore did not think the applicant was clinically depressed at the time he examined him. He said that the applicant did not have an Antisocial Personality Disorder and there was no evidence that he suffered any significant form of personality pathology.

7. [31]

   Dr Westmore said that the applicant volunteered that he knew what he did was wrong, that he knew it affected the community and that he regretted putting himself in the position he was in. He accepted that he was to blame for the choices he had made.

8. [32]

   Dr Westmore thought that the applicant’s rehabilitation prognosis was extremely good. Dr Westmore thought the applicant would benefit from attending a drug rehabilitation program, which ideally should commence while he was in custody and should certainly continue on his release back into the community. Dr Westmore thought an extended period of community supervision and associated ongoing community-based drug rehabilitation would assist the applicant.

Remarks on sentence (ROS)

1. [33]

   In relation to each of the offences of supplying a large commercial quantity, the sentencing judge noted that the amount of the drugs in sequences 17 and 18 substantially exceeded the large commercial threshold. Her Honour said the value of these drugs would have been substantial. The commercial quantity of heroin was well in excess of the threshold.

2. [34]

   The sentencing judge found that the applicant had a significant role to play, being the warehousing of very significant quantities of illicit substances and firearms for the syndicate, and being ready, willing and able to fetch and carry for ‘the Lieutenant’. Her Honour said that while he was not a principal he was more than a mere courier, although he did not appear to exercise any independent role in excess of that which he was instructed to perform.

3. [35]

   Her Honour noted his early plea of guilty and said he was entitled to a 25% discount. Her Honour said that the applicant was remorseful and contrite, although she thought he attempted to minimise his moral culpability in his oral evidence. Her Honour found that he had good prospects of rehabilitation and had good support from his mother and brother.

4. [36]

   In relation to special circumstances her Honour said this:

Submissions

1. [37]

   First, the applicant submitted that the sentencing judge erred in focusing the entire consideration of special circumstances on the question of whether the applicant required an extended period of supervision. The applicant submitted that proper consideration should have been on the minimum period of incarceration that was required. Reference was made to what was said in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534.

2. [38]

   Secondly, the applicant submitted that it was erroneous for the sentencing judge to decline to find special circumstances on the basis that the applicant would have sufficient time in custody to do a drug treatment program. That was because the availability of such treatment in custody is a matter in the executive's discretion, and an offender may not qualify for a program in custody or it may not be available. Reference was made to what the High Court in Muldrock v The Queen (2011) 244 CLR 120 at [56]-[58]. The applicant submitted that there was no evidence as to available courses in custody.

3. [39]

   The applicant submitted that counsel appearing for him at the sentence hearing relied upon a number of factors for a finding of special circumstances including:

4. [40]

   The applicant submitted that, in addition, the following factors were an available basis for a finding of special circumstances:

5. [41]

   The Crown submitted that the sentencing judge’s remarks on special circumstances should be considered in the light of the submissions made by counsel for the applicant. It said that those submissions were limited to a generic identification of the matters set out at [39] above, the first three of which were said to overlap. The Crown said that it was appropriate for the sentencing judge to focus on the question of rehabilitation because the matters put on behalf of the applicant were themselves focused mainly on the question of rehabilitation. The Crown also submitted that counsel for the applicant did not identify any rehabilitation programs in which the applicant intended to participate, nor was evidence of that intention given by the applicant.

Consideration

1. [42]

   It is not appropriate to fix a non-parole period primarily from the perspective of the length of the period of supervision on parole, or primarily by reason of considerations of rehabilitation: Simpson at [55]-[59]. The correct perspective is reflected in the terms of s 44(1) of the Crimes (Sentencing Procedure) Act 1999, and the line of authority was summarised by this Court in R v MA (2004) 145 A Crim R 434; [2004] NSWCCA 92 at [33]:

2. [43]

   Accordingly, the discretion to find special circumstances is subject to “the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence”: Simpson at [63] per Spigelman CJ. This principle was restated in R v Lulham [2016] NSWCCA 287 at [55], where Bellew J held (Bathurst CJ, Beazley P, Hall and N Adams JJ agreeing) that a sentencing judge is not permitted to reduce a non-parole period to a level below that which is necessary to punish the offender and provide specific and general deterrence, even if he or she is satisfied that there are special circumstances.

3. [44]

   Senior counsel for the applicant sought in his oral submissions to draw support from this Court’s decision in Lulham. It is apt to clarify what was said there about the discretion of a sentencing judge to find that prospects of rehabilitation constitute special circumstances.

4. [45]

   The majority in Lulham did not agree with Bellew J’s observation (at [54]) that “a sentencing judge must be satisfied that there exist positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful as opposed to a mere possibility”. Bathurst CJ (Beazley P, Hall and N Adams JJ agreeing) held (at [7]) that a sentencing judge would be entitled to find special circumstances if he or she is satisfied merely that the offender has prospects of rehabilitation and that those prospects would be assisted by longer parole period. Beazley P drew attention (at [10]) to the need for a sentencing judge to be entitled to find special circumstances even in the case of a long prison sentence where prospects of rehabilitation may be difficult to assess or even non-existent at the time of sentencing.

5. [46]

   Nothing said in Lulham derogates from the wide discretion that a sentencing judge has to find or decline to find special circumstances warranting a shorter non-parole period.

6. [47]

   In Simpson, this Court rejected the applicant’s submission that the sentencing judge failed to give reasons for refusing to find special circumstances. Spigelman CJ noted that there was no universal obligation to give reasons for not varying the statutory proportion, and went on to say:

7. [48]

   These remarks are relevant notwithstanding that the applicant’s submission in this case was not that the sentencing judge failed to give reasons, but that her Honour’s finding should not have been expressed with particular emphasis on certain matters, and should have given consideration to the minimum incarceration period that was required.

8. [49]

   Within the paragraph of the ROS identified by the applicant (and set out at [36] above), it appears that her Honour’s focus was on whether the applicant required an extended period of supervision on parole for the purpose of rehabilitation. That expressed focus was, perhaps, unfortunate in the light of what was said in Simpson at [57] and [59], but it occurred because of the focus of the submissions made on the applicant’s behalf. It can be seen from a reading of the whole of the paragraph in the ROS dealing with special circumstances that her Honour was responding to the matters put forward as constituting special circumstances. Any complaint that no mention is made by her Honour of the minimum period to be served when considering special circumstances, shows that the reasons are being “analysed [too] finely”: Simpson at [90].

9. [50]

   I do not, furthermore, read her Honour’s reference to attending drug treatment programs in custody as contravening what was said in Muldrock at [56]-[57]. It is clear from the preceding sentences in the paragraph that it was the significant time on parole for treatment which led her Honour to the “sentences to be imposed”. A mere reference to the custodial sentence being of such a length that the applicant might elect to undertake rehabilitation programs does not support the submission that “the structure of the sentence” was determined on a view that the applicant would benefit from treatment while in custody.

10. [51]

    When one has regard to the facts and matters to which the sentencing judge referred before declining to find special circumstances, it is apparent that the her Honour extensively considered the objective seriousness of the offence, the applicant’s subjective circumstances, the imperatives of general and specific deterrence, evidence of the applicant’s efforts to rehabilitate himself from drug addiction, and the extent to which a finding that the applicant was remorseful was tempered by attempts to minimise his moral culpability. Her Honour subsequently considered the applicant’s need for continued assistance towards his efforts to rehabilitate.

11. [52]

    In my opinion, a reading of the whole of the ROS demonstrates that her Honour considered “the full range of issues which are relevant to the determination of the minimum period of actual incarceration”, including those which were said by the applicant to constitute special circumstances: Simpson at [57]. I do not accept the applicant’s submission that her Honour focused her entire consideration of special circumstances on the question of whether the applicant required an extended period of supervision to rehabilitate. Moreover, simply because some of the matters before the sentencing judge might have been capable of constituting special circumstances did not mean that her Honour was obliged to vary the statutory proportion: R v Fidow [2004] NSWCCA 172 at [22].

12. [53]

    The other matters now put forward by the applicant as providing an available basis for a finding of special circumstances were not raised as such a basis by the applicant before the sentencing judge. It is a well-established principle that an appeal is not the occasion to reformulate the case made in the court below: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460. The matters put forward by the applicant as constituting special circumstances were dealt with by her Honour.

13. [54]

    Finally, in Simpson Spigelman CJ said at [73]:

14. [55]

    In Caristo v R [2011] NSWCCA 7, R A Hulme (Giles JA and Adams J agreeing) said:

15. [56]

    I am not persuaded that the non-parole period was manifestly excessive. There was no ground of appeal asserting such manifest excess, although the applicant’s submissions drew attention to the fact that the undiscounted non-parole period in the indicative sentence for Sequence 18 was two years greater than the SNPP, where there was no finding concerning the objective seriousness of that offence. There was no ground of appeal complaining that the sentencing judge was in error in not making a finding of objective seriousness.

16. [57]

    A reading of the ROS shows that her Honour considered that the weight of the heroin in sequence 18 was “substantially in excess of the one kilogram threshold”, and that the applicant “had a significant role to play, warehousing very significant quantities of illicit substances and firearms for ‘the syndicate’”. Her Honour also said:

17. [58]

    Where her Honour immediately thereafter passed sentence on the applicant and specified the indicative sentences, her Honour’s awareness of the SNPP must mean that she considered the objective seriousness of that offence to have been at least high in the mid-range. In any event, an aggregate sentence was imposed. There is no appeal from an indicative sentence. Such a sentence can only help to inform a conclusion that there has been some error in the aggregate sentence imposed. When regard is had to the total of the indicative sentences, including the specified non-parole periods, and the aggregate sentence, there is a very significant level of concurrence of the sentences.

18. [59]

    In my opinion, having regard to all of her Honour’s findings, it cannot be said that either the sentence or the non-parole period is manifestly excessive. This was a significant drug operation involving large quantities of two different drugs, precursors and firearms in which the applicant had a significant role. Put another way, even if I had considered that the sentencing judge’s remarks on special circumstances demonstrated error, in the independent exercise of the Court’s discretion to re-sentence, I would have held that no lesser sentence was warranted.

Conclusion

1. [60]

   Accordingly, I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.