Nguyen v R

1. [1]

   LEEMING JA: Ms Linda Lien Nguyen seeks leave to appeal from a sentence of 14 months imprisonment, with release after 9 months on a recognisance to be of good behaviour for the balance of the term, following her plea of guilty to one offence of dealing with money in excess of $100,000 reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code (Cth). The sentence was imposed on 3 July 2018. The nine month period of imprisonment will expire on 2 April 2019. Ms Nguyen’s notice of application for leave to appeal was only filed on 4 December 2018 (after more than half of the 9 month period had been served). Her appeal was called over on 13 December 2018 and allocated a date for hearing on 1 March 2019. This Court had the benefit of written submissions provided in advance of the hearing, and full oral submissions on the day, following which, this Court granted leave to appeal but dismissed the appeal. These are my reasons for joining in that order.

2. [2]

   The sentencing hearing proceeded by way of statement of agreed facts, including the following:

3. [3]

   Ms Nguyen was arrested on 30 January 2015, but was granted bail on the same day. She did not plead guilty until 23 January 2017, some two years later, and one week prior to the commencement of her trial. There was a sentencing hearing on 29 June 2018, and the sentencing judge adjourned until 3 July 2018, when he delivered reasons for sentence.

Which written submission was before the sentencing judge?

1. [4]

   The Crown had served two sets of written submissions. Neither was signed and neither was dated. One was included in the appeal books, the other was tendered when the appeal was heard.

2. [5]

   It was accepted that the submission contained in the appeal books was the later version. It made reference to a letter of assistance provided by the Australian Federal Police in relation to Ms Nguyen’s cooperation, which was absent from the earlier version.

3. [6]

   Mr Ramage QC nonetheless submitted that it had not been established that the later version had been before the sentencing judge. The submission was not accompanied by any evidence (for example, from those who had appeared before the sentencing judge). Neither counsel who appeared in this Court had appeared before the sentencing judge.

4. [7]

   I reject that submission. As Ms Avery-Williams submitted, parts of his Honour’s reasons are consistent only with his Honour relying upon the later version. One example is a sentence in his reasons: “whilst the offender told the police when she was arrested that she was to be paid $2000, as the Crown pointed out this was not substantiated by any other evidence …”. In the earlier document, there is no reference to the $2000, nor the absence of any substantiation of that claim. In the later document, paragraph 22 contains, verbatim, the submission summarised by the sentencing judge in his reasons. Further, any other inference is, with respect, highly improbable. Plainly, an updated document reflecting the letter of assistance – which was an important, and new, matter in the sentencing – had been prepared by the Crown. It is improbable in the extreme that efforts would have been taken to prepare the document, only not to rely upon it at the hearing, and instead rely upon the document which had been superseded.

Reasons of the sentencing judge

1. [8]

   The sentencing judge summarised the agreed facts and then separately addressed the seriousness of the offence, and Ms Nguyen’s subjective circumstances. In light of the submissions made in support of proposed ground 2, it is as well to reproduce the entirety of his Honour’s reasons of the seriousness of the offence:

2. [9]

   His Honour thereafter summarised Ms Nguyen’s subjective circumstances. The summary included the following. Ms Nguyen was not a person of prior good character, having been convicted of some relatively minor offences but including some involving fraud (dishonestly gaining benefit or advantage and possession of tainted property, and a conviction for delivering a document containing false information in 2016). She had been born in and lived her early life in North Vietnam, raised by her mother and stepfather, and witnessed armed conflict in the 1970s as a child. After completing secondary education and part of a Bachelor of Economics degree at a university in Hanoi, she came to Australia in 1994 with her sister. She met her first husband in 1995, and has a 21 year old daughter and a 19 year old son, both of whom are studying and working part time. She was divorced in 2000 and there was evidence of her being subjected to domestic violence in the marriage. Ms Nguyen remarried in 2003, but separated from her second husband in 2012. There was psychological evidence that she was suffering from a major depressive disorder as well as a generalised anxiety disorder, in part contributed to by the offending but in part dating from events of her earlier life.

3. [10]

   The sentencing judge addressed the issue of contrition by concluding:

4. [11]

   His Honour then dealt with the question of assistance as follows:

5. [12]

   His Honour found that prospects of rehabilitation were good and that she was of a low risk of reoffending, based on her limited criminal history, her good employment history, and the fact that she had sought counselling for her emotional issues.

6. [13]

   After making reference to s 16A of the Crimes Act 1914 (Cth), the sentencing judge addressed the timing of her guilty plea as follows:

7. [14]

   The sentencing judge referred to Ms Nguyen’s mother not being in good health but considered that that fact and her own depression did not constitute sufficient hardship to operate as a mitigating factor.

8. [15]

   In the final section of his reasons, under the heading “Appropriate sentence”, the sentencing judge addressed a submission that the matter could be dealt with other than by full time custody. The submission was based upon the absence of a fault element, the offence created by s 400.9(1) falling almost at the lowest end of the money laundering offences, the fact that there was only one act of dealing, her immediate admissions to the police and her cooperation with authorities in her subjective case. The sentencing judge then concluded:

The appeal against sentence

1. [16]

   Ms Nguyen has a right to appeal, with leave, against the sentence imposed on her, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). She sought leave in relation to the following three proposed grounds of appeal:

2. [17]

   Mr Ramage advanced two principal submissions in support of proposed ground 1. The first was that the sentencing judge had not had regard to the utilitarian benefit of Ms Nguyen’s plea of guilty. It was in support of that submission that he sought to rely upon the absence of any reference to Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 in the (earlier) form of written submissions supplied by the Crown, just as any reference to that decision was absent from the sentencing judge’s reasons. Secondly, he submitted that there was error in allowing a combined discount of 15 per cent. It was said that considerations of transparency required the sentencing judge separately to identify the discount allowed for the guilty plea and the assistance provided to authorities. It was put thus:

3. [18]

   Mr Ramage relied in particular upon Jinde Huang aka Wei Liu v R [2018] NSWCCA 70, an appeal heard concurrently with, but decided after, Xiao, where the sentencing judge had allowed a range of “between 5 per cent and 10 per cent” for one offence and a discount of “between 10 per cent and 15 per cent” for another offence.

4. [19]

   Mr Ramage also relied on what had been said by Hodgson JA in R v Bugeja [2001] NSWCCA 196 concerning the desirability of taking into account the utilitarian value of a plea in a Commonwealth case, and in particular his Honour’s statement at [25] that “it is generally appropriate to make it clear that such a utilitarian discount is being given, and to express the amount of that discount”.

5. [20]

   Although his written submissions had mentioned s 16AC of the Crimes Act, his oral submission did not rely on any breach of statute, and when asked by Davies J whether he relied on that provision, which dealt with future co-operation, he accepted as much (“that’s why I should resile from that submission”) (transcript, 1 March 2019, p 7).

6. [21]

   I do not accept Mr Ramage’s submissions.

7. [22]

   True it is that in many cases it is desirable, as aiding to the transparency invoked by Ms Nguyen, separately to identify the factors contributing to the total discount. But it does not follow that there is appellable error in taking the approach adopted by the sentencing judge of giving a combined discount. The passage in R v Bugeja on which reliance was placed was framed in terms of a desirable but not inflexible practice, rather than a rule which gave rise to error if breached. In any event, as I sought to point out during the hearing, this Court in Xiao explained the changing approach to s 16A, commencing with R v Bugeja, at [246]ff, including noting that Hodgson JA gave no consideration to the construction of s 16A(2)(g).

8. [23]

   Next, as was pointed out by Harrison J during the hearing, Ms Nguyen’s submission is inconsistent with what was held in Xiao and Jinde Huang. At [4] of the latter decision, Bathurst CJ stated, by reference to what had been held in Xiao at [280] that: “it was desirable, in the interests of transparency, to disclose the actual percentage discount given, although failure to do so would not of itself amount to an error”.

9. [24]

   There was in the present case no range, which was the vice in Jinde Huang. It was clear that precisely 15 % was allowed for the combined discount attributable to the plea of guilty and assistance falling outside the scope of s 16AC. It is difficult, with respect, to see how acceptance of Ms Nguyen’s submission could be reconciled with what was held in Xiao and confirmed in Jinde Huang.

10. [25]

    I would also reject the submission that the sentencing judge failed to take into account the utilitarian benefit of the guilty plea. It is true that there is some lack in clarity as to whether the utilitarian value of the plea, as opposed to its demonstration of Ms Nguyen’s subjective willingness to facilitate the course of justice, was taken into account. The words “plea of guilty” in the immediate context of the reasons for sentencing are capable of referring to either or both factors. But I think that on balance the sentencing judge was referring to both factors.

11. [26]

    The combined discount was 15%. The sentencing judge found that the assistance provided to the authorities was of a low level (it did not contribute to any arrests, seizure or disruption of criminal activities). The sentencing judge also made a qualified finding as to Ms Nguyen’s subjective case, in that he did “not consider that there was deep and immediate contrition” but rather that there was “emerging contrition”. The utilitarian value of a guilty plea one week before trial, and some two years after she was charged, was low.

12. [27]

    When there is ambiguity in the reasons for sentence, regard may be had to the submissions to which they responded. Here the Crown’s written submissions expressly referred to Xiao and the lateness of the plea, submitting that “consequently there is only a low utilitarian value to the plea” which, in light of the strong Crown case, represented a “recognition of the inevitable”. There was some implicit acknowledgement of the force of those submissions by the defence. Counsel who appeared for Ms Nguyen before the sentencing judge said that she was “entitled to the utility of a plea of guilty” and that she was “entitled to a discount for utility of a plea. It is not 25% but ... she is entitled to a discount of 15 to 20% and I respectfully submit it would be towards the upper end towards 20% for her plea”.

13. [28]

    It will be seen that the issue of discount was a very narrow one. It was common ground before the sentencing judge that Ms Nguyen was entitled to a discount. It was common ground that the discount included a discount for the utilitarian value of her plea. It was common ground that her plea was late, and that the discount to which she was entitled was to be reduced on that account. It was common ground that Ms Nguyen was also entitled to a discount for assistance, but that its value was low. In circumstances where there was such a high level of common ground, little is required by way of reasons.

14. [29]

    Taking all those considerations into account, I do not consider that it has been established that the sentencing judge departed from the common position of the parties and failed to incorporate any discount for the utilitarian value of Ms Nguyen’s plea. I am strengthened in that view by the fact that his Honour gave a discount of 15%, which was within the range proffered by the defence. It was in my view amply open to the sentencing judge to conclude that 15% fairly reflected a combined discount for the utilitarian value for the plea, her subjective willingness to facilitate the course of justice, and her assistance. All three were of relatively low value, as was implicitly and realistically recognised by her counsel at the time. I see no reason why it should be inferred that the combined discount actually awarded, at the bottom of the range proffered by the defence, did not include a component for the limited utilitarian value of the plea.

15. [30]

    The sentencing judge considered that the offence “falls well into the middle of the range of seriousness of offences of this type”, towards the end of the passage reproduced at [8] above.

16. [31]

    Mr Ramage submitted that the description was unclear. He submitted that it was not clear from the words “offences of this type” whether the sentencing judge was referring merely to the offence created by s 400.9(1) of the Code, or the suite of money laundering offences, of which the offence with which Ms Nguyen was charged was among the least serious. It was put thus:

17. [32]

    I see no such ambiguity. There is no reason to think that when referring to the range of seriousness of “offences of this type”, the sentencing judge was referring to anything other than the offence to which Ms Nguyen had pleaded guilty and in respect of which he was in the process of imposing sentence.

18. [33]

    Mr Ramage also submitted that no reasons were given for the assessment of objective criminality. Again I disagree. The 13 matters preceding his Honour’s assessment of objective criminality, which deal with the amount of physical currency involved, which substantially exceeded the minimum amount constituting the offence, the role played by Ms Nguyen in the transaction, the travelling she took and the telephones which she operated and the planning of the offence and the fact that it was undertaken for reward, amply discharge the obligation to provide reasons.

19. [34]

    It was submitted by Mr Ramage that the failure on the part of the sentencing judge to refer to any of the comparable cases supplied suggested that insufficient reasons had been given. That submission is rejected.

20. [35]

    This ground is not made out. Indeed, the submissions advanced in support of it were, at best, on the borderline of what is properly arguable.

21. [36]

    What must be established under this proposed ground of appeal is that, notwithstanding the absence of specific error, the sentence is so excessive as to demonstrate in itself that the sentencing judge’s discretion miscarried: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]-[28].

22. [37]

    Nevertheless, Mr Ramage sought to argue one matter amounting to specific error under this heading. It was contended that there was error by the sentencing judge in not considering the imposition of an intensive correction order: see EF v R [2015] NSWCCA 36. No such submission was made in the written submissions provided by counsel then appearing for Ms Nguyen. In his oral submissions, counsel concluded after summarising the objective seriousness and subjective considerations as follows:

23. [38]

    It may be accepted that it had been put that an intensive correction order be imposed. However, on a fair reading of the sentencing judge’s reasons as reproduced at [15] above, his Honour was rejecting the rolled-up submission that either a recognisance release order or an intensive correction order was appropriate. It follows that there was no failure to consider other modes by which the sentence could be served.

24. [39]

    Turning to the proposed ground that the sentence was manifestly excessive, I cannot accept the submission that it was. When regard is had to the amount of money involved – more than seven times that which is required to make out the offence – coupled with the level of involvement of Ms Nguyen and the mixed subjective features in her case, it cannot be concluded that a term of 14 months with release after 9 months is manifestly excessive. The maximum penalty was increased from 2 to 3 years with effect from 19 March 2010, signifying a legislative appreciation of the seriousness of money laundering offences. The total sentence imposed was less than half of the maximum, while the period to be served in prison was only one quarter of the maximum.

Orders

1. [40]

   It followed that none of the grounds of appeal is made out. Those are my reasons for participating in this Court’s order on 1 March 2019.

2. [41]

   HARRISON J: My reasons for joining in the orders of the Court pronounced on 1 March 2019 are those stated by Leeming JA.

3. [42]

   DAVIES J: The reasons stated by Leeming JA are my reasons also for joining in the orders made by the Court on 1 March 2019.