Le v R

1. [1]

   WARD JA: I agree with Bellew J.

2. [2]

   BELLEW J: On 24 May 2016 Huu Hong Le (“the applicant”) pleaded guilty in the Local Court to the following charges:

3. [3]

   Each count was contrary to s 25A of the Drug Misuse and Trafficking Act 1985 (NSW) (“the DMT Act”), the maximum penalty for which is 20 years imprisonment.

4. [4]

   The applicant adhered to his pleas when he appeared before the District Court for sentence. In addition, he asked the sentencing judge to take into account two matters on a Form 1, namely:

5. [5]

   On 7 August 2017 the applicant was sentenced by his Honour Judge Sutherland SC in the District Court as follows:

6. [6]

   The applicant now seeks leave to appeal against the sentences imposed on the grounds more fully set out below.

THE FACTS OF THE OFFENDING

1. [7]

   The applicant was sentenced with a co-offender, Binh Thanh Kha. The sentencing judge found the facts of the offending to be as follows (commencing at ROS 6):

FINDINGS AS TO THE APPLICANT’S ROLE

1. [8]

   The sentencing judge found (commencing at ROS 32) that the applicant was involved in trafficking to a substantial degree, having acted as the point of contact with the operative and “Johnny” at all relevant times. His Honour noted (at ROS 34) that the applicant had made various assertions about his manner of recruitment, and concluded the applicant was to be sentenced for what he in fact did, namely undertake 18 separate supplies of a prohibited drug in the circumstances previously set out.

THE APPLICANT’S SUBJECTIVE CASE

1. [9]

   A report of Dr Catherine Crouch was tendered in the applicant’s case on sentence. Based on the history provided by the applicant, Dr Crouch concluded that he presented as a “naïve man” who was “socially isolated and experienced significant loss through the termination of contact with his children”. She also concluded that it was likely that the applicant suffered from Persistent Depressive Disorder, characterised by consistent low mood, sleep disturbance and low self-esteem, and that this disorder had been complicated by a Substance Abuse Disorder involving the use of ice, which had resulted in a further negative impact upon the applicant’s mood, sleep and judgment.

2. [10]

   By reference to the contents of the report of Dr Crouch, the sentencing judge (commencing at ROS 36) noted that the applicant was a 56 year old single man who had been born in Vietnam, had been married twice, and had four children. He had previously worked as a truck driver, but told Dr Crouch that his employment had been terminated when his employer learned of his criminal history.

3. [11]

   In assessing the conclusions reached by Dr Crouch, and in circumstances where the applicant did not give sworn evidence, the sentencing judge made specific reference (at ROS 39) to the decision of this Court in R v Qutami [2001] NSWCCA 353; 127 A Crim R 369. Although not expressly stated, I infer from his Honour’s reference to that decision that he placed little weight on the report of Dr Crouch.

4. [12]

   Also tendered before the sentencing judge was a statement from the applicant which was in the following terms:

5. [13]

   The sentencing judge stated (at ROS 40) that he took the expressions of remorse contained in that statement into account, but acknowledged the obvious difficulty in assessing the veracity of such expressions in the absence of sworn evidence from the applicant himself. I again infer that his Honour afforded little weight to the contents of the statement.

6. [14]

   Finally, the sentencing judge detailed the applicant’s criminal history (commencing at ROS 40). He noted that the applicant had a number of prior convictions (none of which related to drug use or drug supply) and that the current offending occurred whilst the applicant was on parole for offences relating to the use of a firearm.

The relevant statutory provisions

1. [15]

   Part 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) deals with sentencing procedures for imprisonment. Division 1, which is headed “Setting terms of imprisonment”, includes s 44 which is in the following terms:

2. [16]

   Division 1 also includes s 53 which is in the following terms:

3. [17]

   Section 53A also bears upon this ground and is in the following terms:

The reasons and orders of the sentencing judge

1. [18]

   In imposing sentence, the sentencing judge said (at ROS 46):

2. [19]

   The orders subsequently signed by the sentencing judge were in the following terms:

3. [20]

   In a response to correspondence forwarded to him from the Registrar of the Court on 21 August 2018, the sentencing judge said the following:

Submissions of the applicant

1. [21]

   Counsel for the applicant submitted that in imposing the sentence for count 1, the sentencing judge had erred in failing to specify a non-parole period in compliance with ss 44 and 53 of the Sentencing Act. Counsel submitted that the combined effect of those provisions was to require the sentencing judge to impose separate sentences of imprisonment, and separate non-parole periods, in respect of each of the two counts. It was submitted that in circumstances where his Honour had not done so, error was established.

Submissions of the Crown

1. [22]

   The Crown accepted that prima facie, a failure to specify a non-parole period in relation to the first count, and the imposition of a “global” non-parole period, contravened s 44(1) of the Sentencing Act. However, the Crown raised for consideration whether the sentencing judge had in fact imposed an aggregate sentence pursuant to s 53A. In support of that conclusion, the Crown pointed to the fact that his Honour had specifically indicated that he was imposing an aggregate sentence on the co-offender. The Crown submitted that it was unlikely that his Honour would have intended to take that course in respect of one offender but not the other. The Crown further submitted that it was quite clear from what the sentencing judge had said in his correspondence with the Registrar that it was his intention to impose an overall term of 7 years imprisonment with an overall non-parole period of 5 years and 3 months, the latter being precisely 75% of the former.

2. [23]

   However, all of that said, the Crown appeared to concede that the orders signed by the sentencing judge were inconsistent with an intention to impose an aggregate sentence. The Crown ultimately accepted, as I understood it, that the conclusion that his Honour did not intend to impose an aggregate sentence was fortified by the fact that the orders in respect of the co-offender specifically referred to s 53A of the Sentencing Act and indicative sentences, whereas the orders made in relation to the applicant did not. The Crown appeared to accept that the terms of the orders suggested that a “global” non-parole period had been imposed, and conceded that in those circumstances it would be open to find that error had been established.

Consideration

1. [24]

   The terms of orders made by the sentencing judge are completely at odds with an intention to impose an aggregate sentence. In those circumstances, the provisions of ss 44 and 53 of the Sentencing Act required his Honour to impose a non-parole period in respect of each of counts 1 and 2. It is unclear from both the remarks on sentence and his Honour’s orders whether the non-parole period that was specified related to count 1 or count 2, although it was more likely the former. What is clear is that his Honour was required to impose two non-parole periods, and only one was imposed. Accordingly, error is established. In these circumstances it is not necessary to give any consideration to how this Court should treat the correspondence sent by the sentencing judge to the Registrar. Error having been established, this Court must exercise the sentencing discretion afresh.

RE-SENTENCE

1. [25]

   In re-sentencing, it should be noted that ground 2 relied upon by the applicant was that the sentence imposed was manifestly excessive. Error having been found in respect of ground 1, it is not necessary specifically to consider ground 2. However, I have taken into account the submissions made by the parties in respect of ground 2 in considering the question of re-sentence.

2. [26]

   I have previously set out the principal findings of the sentencing judge, both in respect of the applicant’s objective criminality and his subjective case. None of those findings was challenged before this Court and in my view, each of them was clearly open. Accordingly, I have adopted those findings for the purposes of determining an appropriate sentence.

Submissions of the applicant

1. [27]

   Whilst no issue was taken with the findings of the sentencing judge, it was submitted on behalf of the applicant that the evidence failed to establish that he held any organisational or managerial position which elevated the objective gravity of his offending. It was submitted that in these circumstances the offending in count 1 fell below the mid-range of objective seriousness.

2. [28]

   Counsel conceded that the offending in count 2 was more significant given the larger number of transactions in which the applicant had engaged, and the larger quantities of drug which were involved. It was submitted that this offending fell at or about the mid-range of objective seriousness.

3. [29]

   Counsel also accepted that there was little substance in the applicant’s subjective case, aside from the fact that he had pleaded guilty.

4. [30]

   Counsel for the applicant specifically adverted to previous observations of this Court regarding the use of sentencing statistics, and the associated use of sentences imposed in other cases which are said to be comparable to the case under consideration: see for example MLP v R [2014] NSWCCA 183 at [40]-[44] per Bellew J (Macfarlan JA and Adamson J agreeing); RLS v R [2012] NSWCCA 236 at [132] per Bellew J (McClellan CJ at CL and Johnson J agreeing). However having done so, counsel then referred the Court to decisions in four previous cases in support of a conclusion that some lesser sentence should be imposed on the applicant. At the same time, counsel’s written submissions specifically recognised that offending of this type covered a broad range of conduct, as well as a broad range of subjective circumstances.

Submissions of the Crown

1. [31]

   The Crown emphasised that consistency in sentencing is not demonstrated by, and does not require, numerical equivalence, and that what is sought is consistency in the application of relevant legal principles: BB v R [2017] NSWCCA 189 per Bellew J at [42] (Bathurst CJ and McCallum J agreeing). In these circumstances, the Crown submitted that the decisions to which counsel for the applicant had referred the Court demonstrated nothing more than the fact that the sentence imposed upon the applicant was appropriate, bearing in mind that there is no single correct sentence: Vaiusu v R [2017] NSWCCA 71. In support of that submission, the Crown pointed to the following factors:

Consideration

1. [32]

   The prescribed maximum penalty of 20 years imprisonment for each of the two offences reflects the seriousness with which the Parliament views such conduct. As the Crown pointed out, the maximum penalty operates as a guidepost for the purposes of sentencing.

2. [33]

   The applicant’s offending spanned what was essentially a continuous period between 1 May 2015 and 25 June 2015. The table annexed to the Crown submissions and reproduced below sets out the details of the offending (noting that the dates specified in respect of count 2 are incorrect and should read 25 May 2015 to 25 June 2015):

3. [34]

   The applicant must be sentenced for what he actually did, and not by reference to some convenient label: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54. What he did was play a pivotal role in an organised and well-established network of drug supply. He was the regular, and only, point of contact for the operative and “Johnny”. Statements he made to the operative, including statements to the effect that the operative “would have to wait longer if he wanted better heroin”, were indicative of the level of his role, which extended to an attempt to recruit the operative as a distributor of illicit drugs. Clearly, the applicant’s role was not a peripheral one and I accept the Crown’s submission that the fact that there were two offences contrary to s 25A involving what was, in effect, continuous offending over significant period is a factor that renders the present case one of particular seriousness: R v Younan [2018] NSWCCA 180 at [84] per R A Hulme J (Gleeson JA and Button J agreeing).

4. [35]

   The sentencing judge imposed a longer sentence in respect of count 1 than count 2. However, counsel for the applicant properly conceded that in view of the comparative number of transactions, the second count involved greater criminality than the first. In my view, the offending in count 2 was, in terms of its subjective seriousness, at or about the mid-range, with the offending in count 1 slightly lower than that. It follows that a longer sentence should be imposed in respect of count 2.

5. [36]

   The applicant’s offending is aggravated by the fact that he has a lengthy record of previous convictions (Sentencing Act s 21A(2)(d)) as well as the fact that it was committed whilst he was on parole: Sentencing Act s 21A(2)(j).

6. [37]

   Further, and as was expressly conceded by counsel for the applicant before the Court, there is little of substance in the applicant’s subjective case apart from the fact that he is entitled to a 25% discount to reflect the utilitarian value of his plea of guilty. In circumstances where the applicant did not give evidence, his letter to the sentencing judge is of little weight, although like the sentencing judge, I am prepared to treat it as some limited evidence of remorse: Sentencing Act s 21A(3)(i).

7. [38]

   For similar reasons, the report of Dr Crouch is also of limited weight. In these circumstances, I am unable to make any assessment of the applicant’s prospects of rehabilitation, particularly given his criminal history. Counsel for the applicant did not submit that a finding of exceptional circumstances was open.

8. [39]

   Finally, the sentences imposed in the Court below were wholly concurrent. Before this Court, counsel for the applicant properly conceded that some level of accumulation was warranted in order to properly reflect the totality of the applicant’s criminality. I note that in determining sentence I have had regard to the matters on the Form 1.

CONCLUSION

1. [40]

   Taking all of these factors into account, I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal allowed.

   3. (3)

      Sentences imposed in the District Court quashed.

   4. (4)

      In lieu thereof, the applicant is sentenced as follows:

2. [41]

   BEECH-JONES J: I agree with Bellew J.