Nguyen v R

1. [1]

   HOEBEN CJ at CL: I agree with Lonergan J and the orders which she proposes.

2. [2]

   PRICE J: I agree with Lonergan J.

3. [3]

   LONERGAN J: The applicant seeks leave to appeal against a sentence imposed in the District Court by Girdham SC DCJ on 18 September 2018.

4. [4]

   The applicant was sentenced after her trial which took place in August 2018. She was convicted of a single charge of importing a border-controlled precursor contrary to s 307.11(1) of the Criminal Code (Cth).

5. [5]

   The maximum penalty for this offence is 25 years imprisonment and/or 5000 penalty units ($900,000).

6. [6]

   The sentencing hearing took place on 7 September 2018 and the sentencing judge reserved her decision to 18 September 2018. The sentence was backdated to commence on 31 August 2018 to reflect a short period of time that the applicant spent on remand after her arrest.

7. [7]

   The applicant was sentenced to a period of imprisonment of 7 years expiring on 30 August 2025, with a non-parole period of 3 years and 6 months expiring on 28 February 2022.

8. [8]

   Given that the Crown conceded error in respect of the first ground of the appeal, it was accepted that this Court should grant leave to appeal and undertake the resentencing exercise: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

9. [9]

   Other than the identified error, and possibly an error of minor relevance in respect of Ground 2, both the Crown and the applicant stated that they were content with her Honour’s findings on sentence. The applicant submitted that those findings meant that the applicant should be subjected to a significantly lesser sentence. The Crown submitted that the sentence should not be disturbed.

Grounds of appeal

1. [10]

   The applicant relied upon three grounds of appeal:

   1. (1)

      The judge mistook the facts by finding that the applicant imported 7.8 kg of the border-controlled precursor pseudoephedrine when it was an agreed fact that she imported 3.996595 kg;

   2. (2)

      The judge mistook the facts by finding that the value of pure pseudoephedrine at the relevant time was approximately $100,000 per kilogram when the only evidence was that the value was $80,000 to $90,000 per kilogram; and

   3. (3)

      The sentence is manifestly excessive.

2. [11]

   Because of the Crown concession in respect of Ground 1, which was properly made, there is no requirement to deal with Grounds 2 or 3 of the appeal. For the reasons that follow, I have formed the view that a lesser sentence is warranted of 6 years with a 3 year non-parole period.

The offence

1. [12]

   As provided in s 307.11 of the Criminal Code:

2. [13]

   The applicant was sentenced after trial where, as observed by the sentencing judge, “the issue at trial was the offender’s knowledge or belief when she undoubtedly imported the substance”. [1]

3. [14]

   The facts of the offending as found by her Honour are as follows:

The sentencing judgment

1. [15]

   In the sentencing judgment her Honour noted a quantity of more than 1.2 kg of pseudoephedrine is a “commercial quantity” and that here the offender had “nearly three times that quantity”. [3] This is potentially close to a correct account of the amount imported but her Honour later twice in her Remarks on Sentence mistakenly referred to the total imported as 7.8 kg.

2. [16]

   Her Honour noted the applicant’s prior conviction in September 2007 after pleading guilty to an offence of “import marketable quantity of a border-controlled drug (cocaine)”. The drug imported was in fact heroin, although nothing turns on this in the context of this appeal. The applicant was sentenced to 6 years imprisonment with a non-parole period of 3 years for that offence which involved arriving in Australia from Vietnam with heroin concealed in her shoes.

3. [17]

   Reference is made to the sentencing remarks of Morgan DCJ and the medical reports tendered in those earlier sentencing proceedings. Those medical reports identified the applicant as suffering intellectual impairment.

4. [18]

   In the 2018 proceedings, an affidavit of Ms Tran, the offender’s disability caseworker, was tendered as well as reports from a clinical neuropsychologist, Lisa Zaporro, (mistakenly referred to in the Remarks on Sentence as “Lisa Cepero”) and Dr Ellis, Forensic Psychiatrist, as well as written submissions which referred to comparative cases.

5. [19]

   Her Honour referred to the requirements of Part 1B of the Crimes Act 1914 (Cth) that the Court impose a sentence “that is of a severity appropriate to all the circumstances of the offence”. She also referred to the need to take into account the matters listed in s 16A of the Crimes Act and the need to determine a sentence consistent with the jury verdict.

6. [20]

   Reports from 2008 by Mr Taylor and Professor Susan Hayes, both psychologists, indicated that the offender had an intellectual handicap described by Mr Taylor as “a level of functioning probably in the lower end of the mild intellectually handicapped range” with “her ability level less than that for about 99% of people her own age”, and by Professor Hayes as “moderately intellectually disabled in that she functioned at between 2% and the lowest point of 1% in the population”. [4]

7. [21]

   Her Honour referred to the 2018 assessment of Dr Ellis who concluded that the applicant met the criteria for an intellectual disability in the mild range. Dr Ellis did not consider her to be exaggerating her deficits. There was no evidence to suggest her intellectual functioning had changed since he evaluated it in 2008. He concluded that there was “poor intellectual performance that could be attributed to the structural damage in the brain noted in the MRI scans from 2009”, but that “there is no clear evidence of significant structural brain pathology present. Equally she may have had an underlying general anxiety disorder partially treated”. Dr Ellis concluded that “effectively she is someone with intellectual disabilities who are often more suggestible than the general community and may be more easily tricked or persuaded into criminal activity by those who seek to take advantage of them”. [5]

8. [22]

   As observed by her Honour, Dr Ellis agreed with the proposition that in June 2016 the applicant “had reduced capacity to critically evaluate situations and problem solving but she did not lack the capacity to understand good decisions. She could identify that the drugs were illegal and harmful and she had, of course, prior experience with the conviction for drug importation. The offending did not indicate an impulsive or rapid choice or action. If it were established that Ms Nguyen was persuaded, cajoled, or duped into carrying materials in her luggage by others then it is likely that her ability to resist the suggestion was impaired by her intellectual and resultant social deficits”. [6]

9. [23]

   Reference was then made by her Honour to the report of Lisa Zipporo that included reference to the applicant suffering from dizzy spells, incidents of falling and hitting her head damaging her teeth, as well as depression, asthma and poor memory. Neuropsychological testing revealed a performance in the extremely low range, suggesting intellectual abilities were most likely in the mild range of intellectual disability, with difficulties in planning, problem-solving and analysing the situation on a concrete level.

10. [24]

    Her Honour concluded that the applicant’s intellectual disability, together with her significant cognitive deficits over and above her limited intellectual function would affect her ability to critically evaluate situations, problem solve and make good decisions. That being so, Ms Nguyen would have had a reduced capacity to weigh up the risks of the situation and adjust her behaviour accordingly. [7]

11. [25]

    Her Honour noted:

12. [26]

    Her Honour concluded:

13. [27]

    There was no discrete formal finding made as to objective seriousness. Submissions were made by the Crown at the sentencing hearing that the offending was “at the lower end of seriousness”. Counsel for the applicant at the sentencing hearing submitted that there was evidence that would lead to the conclusion that the applicant was a “low level, albeit, essential person in a sophisticated hierarchy”, and that the psychological testing was more consistent with her being a person with limitations in terms of capacity and far more consistent with a person susceptible to influence who would exercise naive judgment.

14. [28]

    In this Court, the Crown submitted that whilst the offending was “at the lower end” and the Crown did not wish to go behind or retract that submission made by the Crown at the sentencing hearing, this Court should not find that the applicant “was at the lowest end of seriousness” of offending of this type.

15. [29]

    Her Honour has given careful consideration to subjective matters. No complaint is made about these findings. The findings indicate that appropriate consideration was given to the competing demands of general deterrence and retribution, when viewed against the requirements of Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178] in light of the applicant’s undeniable intellectual disability.

16. [30]

    There was careful analysis of the relevance of that intellectual disability to considerations of personal deterrence, against the background of this being her second importation offence:

17. [31]

    In my view her Honour dealt with these issues without fault until her Honour made erroneous reference to the amount of the drug imported:

18. [32]

    Her Honour then went on to observe that the offender’s subjective case is compelling, but for the complicating matter of the previous conviction. She made observations regarding the applicant’s age and her prospects of reoffending, “which cannot be said to be good”, and that the help she did receive after release from her last offence was “not sufficient to prevent her falling prey to serious criminals” when she went to Vietnam. [12]

19. [33]

    In fixing the sentence that she did, her Honour made reference to what she considered to be the minimum period of imprisonment that justice requires the offender to serve having regard to all the circumstances, including the fact that she will experience a custodial term more harshly because of her very limited knowledge of English or even Vietnamese, her isolation and the isolation from her daughter, as well as the need for intensive and lengthy supervision in the community. [13]

Ground 1 of the appeal is correctly conceded; the Court must resentence

1. [34]

   It is necessary to deal briefly with the appropriateness of the Crown’s concession on Ground 1, lest it be thought that her Honour proceeded to sentence on the basis of the agreed quantity of 3.996.595 grams, given the reference to a calculation reaching something similar to that quantity in the third paragraph of the Remarks on Sentence. There her Honour referred to the quantity of pseudoephedrine found in the packages and the false walls of the cardboard box as “nearly 3 times” the quantity that corresponds to the commercial quantity of 1.2 kg.

2. [35]

   However, later in her Remarks, when referring to the activities of the ABF Officers, her Honour stated “The total chemical precursor drug imported into Australia is approximately 7.8 kg”. [14] This conclusion is made after stating that the estimated weight of the concealed chemical precursor drug in the false bottoms and sides of the box was believed to be 6 kg and that additionally, there were 4 packets containing approximately 450 g each of concealed precursor drugs.

3. [36]

   As submitted on behalf of the applicant, the erroneous figure may well have been taken from an ABF Statement of Facts tendered on a voir dire. This document was not before the Court on sentence, and erroneously referred to a total amount of 7.8 kg, contrary to the amount in the Agreed Facts. The written submissions of the Crown and the applicant on sentence made reference to the correct amount.

4. [37]

   As submitted by the applicant, there are other indicators that the amount of 7.8 kg was a deliberate expression of the sentencing judge’s finding. When her Honour discussed a comparable case of R v Le [2018] NSWDC 86, (incorrectly transcribed as Li), [15] her Honour referred to the applicant having imported 7.8 kg which was “two and a half kilograms more than that involved in the Li matter”. (The amount involved in Le was 5.379 kg).

5. [38]

   Her Honour also observed that the amount involved was “double that involved in any of the other comparable cases” to which she had been referred. As explained in the written submissions of counsel for the applicant, four of the five other cases provided to her Honour involved the importation of amounts that were less than half of 7.8 kg.

6. [39]

   This makes it clear that the sentencing judge found as a fact in sentencing the applicant, that she had imported 7.8 kg of pseudoephedrine. This is a finding which was plainly wrong and not open to her on the evidence.

7. [40]

   This erroneous finding, being nearly twice the amount imported, must have had an impact, not only on her Honour’s assessment of the objective seriousness of the offence but also upon the manner in which she drew guidance from comparable cases.

8. [41]

   Ground 1 is made out. The Crown’s concession was properly made. It follows that this Court must resentence the applicant. In those circumstances Grounds 2 and 3 of the appeal do not need to be dealt with.

Re-sentencing

1. [42]

   Given that I have found that error has been established, the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW) are enlivened and the applicant is to be resentenced.

2. [43]

   I have set out in detail the sentencing judge’s findings relevant to the applicant’s criminality and the nature and circumstances of the offence because those findings are not challenged.

3. [44]

   The applicant is 51 years old and was born in Vietnam. She came to Australia in 1990. Her affidavit affirmed on 21 August 2019 demonstrated that the matters the sentencing judge adverted to, that is the interference with the applicant’s relationship with her daughter and her likely isolation and sadness in custody, have in fact come to pass. The applicant continues to be worried about her daughter’s health and is upset about not being able to see her. The applicant confirms that she HAS had one visit only between the time she was sentenced in September 2018 and the time the affidavit was sworn, a period of almost 1 year.

4. [45]

   The applicant contends that a sentence of 7 years imprisonment with a non-parole period of 3½ years is a very substantial sentence. As recognised by various appellate courts, the severity of a sentence is not a linear proposition; the severity increases exponentially as it increases in length: Clinch v The Queen (1994) 72 A Crim R 301 at 306.

5. [46]

   In the applicant’s case, reduced moral culpability must be taken into account in assessing objective seriousness and it must have significant bearing upon the question of appropriate sentence. Counsel for the applicant submitted that her role was an example of offending of relatively low criminality for this kind of offence.

6. [47]

   Once there is a conclusion that the applicant is not an appropriate vehicle for the full force of general deterrence, a conclusion that is in my view unarguably correct, the need for a salutary custodial sentence reduces.

7. [48]

   The Crown contended on the other hand that the considerations raised in R v Nguyen; R v Pham [16] should inform the decision of this Court. There, Johnson J at [72] extracted from the authorities a number of general propositions relating to drug importation offences.

8. [49]

   These propositions are unassailable, but their direct applicability to the circumstances of the applicant is tempered by the significance of the applicant’s significant intellectual disability. The important principles collated in Nguyen, addressing the primacy of general deterrence and denunciation in drug importation offending have a more marginal significance to determining an appropriate term of imprisonment for an offender like the applicant.

9. [50]

   Whilst the weight of the drug is not the most important factor in sentencing, it will have an increased significance where the offender is aware of the amount of drug imported: R v Lee [2007] NSWCCA 234 at [23]. There is no evidence here that the applicant knew the amount of the drug imported and the finding that she participated for modest financial gain was not challenged.

10. [51]

    The Crown submitted that evidence of contrition was limited to a recount via her disability caseworker and that this meant genuine contrition or remorse was not demonstrated. It seems to me the position on contrition and remorse is complicated by the demonstrated lack of intellectual ability and apparent communication difficulties the applicant has, both in English and even in her own native Vietnamese. Her statements to Ms Tran that she regrets trusting the people who got her involved and that she had been extremely distressed when discussing the offence and the court case, should not be put to one side as matters that do not demonstrate contrition or remorse. In my view they do, although in an unsophisticated way.

11. [52]

    What is adequate punishment in all the circumstances is a difficult question as there are a number of competing considerations. There is the previous offending of a very similar nature in 2007 for which the applicant was sentenced to 6 years imprisonment with a non-parole period of 3 years. Given her release in 2010, there was an almost 6 year hiatus before she engaged in the subject offending. I note her Honour’s finding, which was unchallenged, that contrary to the submission made by the Crown on sentence, the applicant did not plan her travel to Vietnam with a view to partaking in this criminal activity, but rather was cajoled or encouraged to do so once there.

12. [53]

    The Crown argued that the applicant is an offender with a past relevant conviction and so should receive a heavier sentence than an offender who has led an otherwise blameless life: Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 at [32]. The rationale for this approach is obvious however there is an important rider stated in that passage of Weininger that is relevant here:

13. [54]

    The applicant’s antecedents and character of necessity relevantly include her intellectual deficits.

14. [55]

    There clearly has been and will continue to be hardship suffered by the applicant and her daughter and these are matters to be considered in the overall subjective case.

15. [56]

    The sentencing judge’s observation that given the applicant’s prior conviction her prospects of rehabilitation cannot be assessed as good, is a reasonable conclusion. It is clear from the psychologist’s reports and the affidavit of Ms Tran that the applicant needs substantial support and direction in the community. This has been proven again by the subject offending and so a lengthy period of supervision in the community upon release is essential.

16. [57]

    Bearing in mind that there is clearly no one correct sentence, particularly in the unusual circumstances of this applicant, in my view the criminality of the offending can be adequately addressed and punished by a minimum sentence of 3 years and a total sentence of 6 years. The applicant should be resentenced to a non-parole period of 3 years with a further term of 3 years. The sentence commenced on 31 August 2018 and so the applicant will become eligible for parole on 30 August 2021. The sentence will expire on 30 August 2024.

Proposed orders

1. [58]

   I propose the following orders:

   1. (1)

      Allow the appeal and set aside the sentence imposed on 18 September 2018.

   2. (2)

      Resentence the applicant to a non-parole period of 3 years to commence from 31 August 2018 with a further term of 3 years, a total sentence of 6 years imprisonment.

   3. (3)

      The applicant will become eligible for parole on 30 August 2021. The sentence will expire on 30 August 2024.