Nguyen v R

1. [1]

   GLEESON JA: I agree with Bellew J.

2. [2]

   ROTHMAN J: I agree with Bellew J.

3. [3]

   BELLEW J: On 29 July 2014 Kim Giau Nguyen (“the applicant”) pleaded not guilty to an indictment alleging an offence contrary to s. 233BAA(4) of the Customs Act 1901 (Cth) in the following terms:

4. [4]

   The maximum penalty for the offence is a fine not exceeding 1,000 penalty units, and/or imprisonment for 5 years.

5. [5]

   Following a trial in the District Court the applicant was found guilty. On 7 November 2014 she was sentenced to imprisonment for a period of 2 years and 6 months. The sentencing judge ordered that she be released from custody on a recognisance release order after serving a period of 1 year and 6 months.

6. [6]

   By notice dated 25 June 2015 the applicant seeks leave to appeal against the sentence imposed on the grounds that:

   1. (1)

      the sentence was manifestly excessive;

   2. (2)

      the sentencing judge erred in sentencing her as a person not of good character;

   3. (3)

      the sentencing judge erred in sentencing her on the basis that her case involved greed rather than need;

   4. (4)

      the sentencing judge erred in not sentencing her on the basis of recklessness.

THE FACTS

1. [7]

   The sentencing judge found the facts of the offending to be as follows.

2. [8]

   On 1 April 2012 the applicant flew from Sydney to Ho Chi Minh City. She returned to Sydney on the morning of 13 May 2012. On arrival she produced an Australian passport in her own name, along with an incoming passenger card printed in the Vietnamese language which she had completed and signed herself. The applicant indicated that prior to leaving Vietnam she had packed the suitcases and handbag which were in her possession on arrival in Sydney, and that she was aware of their contents.

3. [9]

   At the time of her arrival the applicant had two mobile telephones in her possession, both of which had Vietnamese SIM cards. The applicant provided her mobile telephone number to Customs officers, which was a pre-paid service registered to Henry Cheang at an address in West Pennant Hills. Mr Cheang did not register that telephone number, nor did he know any person by the name of Nguyen. Although the Crown had urged the sentencing judge to find that this service had been falsely registered by the applicant, his Honour concluded (at ROS 2) that such a finding was not relevant for purposes of sentence.

4. [10]

   Whilst searching the applicant’s bags, Customs officers located two packages labelled “Palm Sugar” (or “Lan Nhi”). The applicant initially stated that the packages had been given to her by her husband (who she also described as her boyfriend) with the intention that they be given to his aunt in Australia. Later, the applicant said that the goods came from the husband of the same aunt. She was unable to provide any contact details for the aunt in Australia, although she did provide a telephone number. That number was registered to a Mr Minkins of Bundaberg in Queensland. The number was not in the contact list of either of the telephones which were found in the applicant’s possession.

5. [11]

   Presumptive tests conducted on the two packages returned a positive result for the presence of ephedrine or pseudoephedrine. Subsequent analysis established that the packages contained a total of 3,605 g of pseudoephedrine, the purity of which ranged between 62.2% and 67.7%. The total weight of pure pseudoephedrine was therefore 2.341 kg. The applicant did not have approval to import pseudoephedrine into Australia.

THE GROUNDS OF APPEAL

1. [12]

   The grounds of appeal have been set out above. It is appropriate to deal with the issues raised in Grounds 2, 3 and 4, before dealing with the asserted manifest excess of the sentence which is the subject of Ground 1.

The evidence at trial

1. [13]

   At trial, both the Crown and the applicant conducted their respective cases on the basis that there was essentially one issue for this jury’s consideration, namely whether the applicant was reckless as to the fact that the goods imported were Tier 1 goods, the importation of which was prohibited. In support of its position on that issue, the Crown led evidence of the applicant’s history of overseas travel in the form of a schedule which demonstrated the following travel undertaken by the applicant from July 2009 up to the time of her arrest in May 2012:

2. [14]

   The applicant did not give evidence at her trial. In his closing address to the jury, the Crown Prosecutor (who did not appear for the Crown before this Court) submitted (commencing at T28 L43) that the applicant’s pattern of travel was not that of “somebody on Centrelink” but rather that of “somebody who’s engaged in business overseas”. Counsel for the applicant at trial (who similarly was not counsel before this Court) urged the jury (commencing at T45 L27) to be “very careful” of such evidence. He submitted that the Crown’s position in respect of the applicant’s pattern of travel was wholly speculative. He stressed that the applicant had family members living overseas and submitted that her travel, and in particular the length of her stays overseas, was inconsistent with what might be expected of a person travelling on business, who would be likely to stay only for short periods before returning home.

3. [15]

   In the course of his summing up, the sentencing judge reminded the jury of the competing positions of the Crown (commencing at SU 13) and the applicant (at SU 18) as to this issue. He also gave the applicant the benefit of a direction as to prior good character (at SU 12).

The evidence of the applicant on sentence

1. [16]

   Having been found guilty by the jury, the applicant gave evidence on sentence. In the course of doing so, she said the following about her travel movements (commencing at T11 L45):

2. [17]

   When cross-examined by the Crown the applicant agreed (at T22 L21) that between 2009 and 2012 she had travelled out of Australia on 12 occasions and had spent approximately one third of that time overseas. She was asked (commencing at T24 L32):

3. [18]

   The applicant said (commencing at T27 L19) that she had been given money from her father to travel to the USA in 2010 and that this money had been spent on fares for her children. She was then asked (commencing at T27 L26):

4. [19]

   The applicant denied (at T11 L3) that she was being untruthful in her evidence as to her income. She repeated (at T11 L31) that she earned money by minding children and cooking for other people. She said that she was able to afford to travel with the frequency that she did because she “waited until the tickets were on sale” (at T11 L43-44).

The findings of the sentencing judge

1. [20]

   At the commencement of his remarks on sentence the sentencing judge observed that the objective facts of the applicant’s offending could be stated simply, but that there were other facts which were disputed and which therefore had to be resolved in accordance with the verdict of the jury. In turning to the areas of factual dispute, his Honour said (commencing at ROS 3):

Submissions of the applicant

1. [21]

   Senior counsel for the applicant before this Court submitted that the applicant was entitled to rely on her prior good character as a mitigating factor pursuant to s 21A(3)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW). It should be noted immediately that in circumstances where the applicant was a federal offender, that provision had no application. The relevance of the applicant’s character as a mitigating factor on sentence was governed by s. 16A(2)(m) of the Crimes Act 1914 (Cth) (“the Act”) which is in the following terms:

2. [22]

   Senior counsel submitted that suspicion that the applicant may have earned income from other “nefarious” acts was not open to be used by the sentencing judge as an aggravating factor. He further submitted that the reasons of the sentencing judge did not support the conclusions at which he had arrived concerning the applicant’s evidence and that, in particular, that there was no evidence that the applicant had previously imported any drug or other prohibited item into Australia. It was further submitted that the sentencing judge had ignored aspects of the applicant’s evidence.

Submissions of the Crown

1. [23]

   The Crown submitted that properly understood, the sentencing judge had done nothing more than conclude that the absence of any previous convictions did not (as might ordinarily be the case) demonstrate an absence of previous criminal behaviour on the part of the applicant. It was submitted that the sentencing judge had concluded, on the basis of the evidence before him, that what was known of the character and antecedents of the applicant did not demonstrate that the offence for which she was found guilty was the first criminal conduct in which she had ever engaged.

2. [24]

   The Crown specifically submitted that his Honour had been careful not to treat his finding(s) as aggravating the offending, and had concluded that the issue of character was essentially neutral, and a factor which worked neither in favour, nor against, the applicant.

Consideration

1. [25]

   The passage from the sentencing remarks set out at [20] above includes the following findings relevant to this ground:

2. [26]

   Those findings were necessarily based, at least in part, upon an evaluation of the applicant’s evidence. That evaluation, in turn, included an assessment of the applicant herself. In my view, the conclusions reached by the sentencing judge were open on the evidence. The regularity of the applicant’s travel, and its associated cost, were wholly inconsistent with a person who was, for the entirety of the relevant period, in recept of Centrelink benefits. His Honour was entitled to reject the applicant’s various explanations for her ability to fund that travel, particularly in circumstances where that evidence was uncorroborated.

3. [27]

   His Honour accepted that the applicant had no prior convictions. However, in light of the findings that he reached, he found that the applicant was not, and was therefore not entitled to a finding that she was, a person of good character. Contrary to the submission advanced by senior counsel for the applicant, his Honour did not use any finding to aggravate the applicant’s offending. There is nothing whatsoever in his Honour’s remarks on sentence which supports such a submission.

4. [28]

   In Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629 the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) observed (at [25]) that there are difficulties in treating good character as a single and undifferentiated whole. The plurality also observed that the character of the appellant in that case (like that of the applicant in the present case) had at least two relevant aspects: firstly, the absence of criminal convictions, and secondly, whether there was evidence of having engaged in other criminal conduct. Importantly, the plurality observed (at [27]):

5. [29]

   In the present case, the sentencing judge acknowledged that the applicant had no prior convictions. He contrasted that position with the applicant’s evidence, which (generally speaking) he did not accept, and which caused him to reach the findings I have set out. He concluded that in those circumstances, the applicant was not entitled to the benefit of a finding that she was a person of good character. There was no error in his Honour’s approach, nor has it been demonstrated that the findings he reached were not open on the evidence.

6. [30]

   This ground is not made out.

The findings of the sentencing judge

1. [31]

   In the passage set out at [20] above, the sentencing judge concluded that the applicant’s willingness to participate in the commission of the offence for what appeared to be greed rather than need added to its objective seriousness. In reaching that finding, and relevant to this ground, his Honour also concluded that:

Submissions of the applicant

1. [32]

   Senior counsel for the applicant submitted that the findings made in respect of the applicant’s character (discussed in relation to ground 2) “relied on (the applicant) being an impecunious pensioner”. It was submitted that in these circumstances, the finding that the applicant’s involvement in the offending arose out of greed rather than need contradicted the findings made in respect of ground 2.

Submissions of the Crown

1. [33]

   Counsel for the Crown submitted that there was no error in the finding of the sentencing judge that the applicant’s willingness to participate in the commission of the offence arose from greed. It was submitted that such finding was completely consistent with those of his Honour’s findings which were referable to ground 2.

Consideration

1. [34]

   His Honour noted that the applicant had been in receipt of a pension in the years leading up to the commission of the offence. He found (inter alia) that the frequency of her overseas travel was inconsistent with a pension being her only source of income. For the reasons previously expressed, that finding was open. In these circumstances, his Honour found that the offence had been committed for what appeared to be greed rather than need.

2. [35]

   Inherent in that finding was a rejection of the proposition that the applicant was (to use the description adopted by senior counsel for the applicant) an “impecunious pensioner”. To suggest, in these circumstances, that his Honour relied upon such a proposition reflects a misunderstanding of the finding which was reached. That finding is not inconsistent with, nor is it contradictory to, any of the conclusions reached by the sentencing judge which are relevant to ground 2.

3. [36]

   This ground is not made out.

The relevant legislation

1. [37]

   The indictment presented against the applicant alleged an offence contrary to s. 233BAA(4) of the Customs Act 1901 (Cth). That section is in following terms:

2. [38]

   The Criminal Code 1995 (Cth) (“the Code”) contains a number of provisions relevant to the present case. In particular:

3. [39]

   Bearing in mind these provisions, and for the purposes of the present case:

4. [40]

   Section 5.4 of the Code defines recklessness in the following terms:

The Crown case

1. [41]

   At trial, the parties agreed that the issue for determination by the jury was whether the Crown had proved beyond reasonable doubt that the applicant was reckless as to the fact that the goods were Tier 1 goods. In the course of his final address to the jury, the Crown said (commencing at T27 L10):

2. [42]

   The Crown then continued (commencing at T27 L23):

3. [43]

   The Crown then said (commencing at T 27 L43):

4. [44]

   Towards the conclusion of his closing address, the Crown (at T38 L33-35; T39 L13-15) submitted that the jury would be satisfied beyond reasonable doubt that the applicant either knew that she was carrying Tier 1 goods, or was aware of a substantial risk that this was the case, and that having regard to the circumstances known to her, it was unjustifiable to take that risk.

The directions to the jury

1. [45]

   In the course of his summing up to the jury, his Honour set out the elements of the offence before saying (commencing at SU 7):

2. [46]

   His Honour then said (at SU 8):

3. [47]

   His Honour then said (at SU 8):

4. [48]

   His Honour then proceeded to set out the circumstances upon which the Crown relied to sustain the requisite inference.

5. [49]

   It will be evident that his Honour explained to the jury (in the passage set out in [45] above) that recklessness in the context of this case meant awareness of a substantial risk in circumstances where the taking of that risk was unjustified. He again made reference to such risk in the passage set out in [47] above. Between those two passages (as set out in [46] above) his Honour made a passing reference to the Crown’s submission that the applicant was aware that she was importing Tier 1 goods. However, his Honour did not (and was not asked to) direct the jury, in accordance with s. 5.4(4) of the Code, that knowledge could amount to recklessness for the purposes of that element of the offence.

The findings of the sentencing judge

1. [50]

   As set out at [20] above, his Honour concluded that in light of the evidence of the applicant’s travel, and in light of what he regarded as her unexplained wealth, the applicant was in fact aware of the nature of the goods that she was importing. He concluded that this was “not a case of recklessness”. That, in my view, can only be interpreted as a finding by his Honour that this was not a case where the applicant had been reckless in the manner contemplated by s. 5.4(1)(a) and (b) of the Code.

Submissions of the applicant

1. [51]

   Senior counsel for the applicant submitted that it was necessary that any factual finding made on sentence be consistent with the jury’s verdict. It was submitted that the finding of the sentencing judge that this was not a case of recklessness was inconsistent with:

Submissions of the Crown

1. [52]

   In written submissions, the Crown placed some significance on the provisions of s. 5.4 of the Code, and emphasised that recklessness could be constituted by proof of knowledge. It was submitted that the Crown’s position at trial was that the applicant knew that the goods in question were Tier 1 goods and that in these circumstances the finding of the sentencing judge was both open, and consistent with the jury’s verdict. It was further submitted that on sentence, his Honour had available to him evidence which was not before the jury, and which provided support for the finding he reached.

2. [53]

   However in oral argument, the Crown properly conceded that having regard to his Honour’s summing up, the issue had not been left to the jury on the basis of recklessness constituted by knowledge, but rather on the basis of recklessness constituted by the appellant’s awareness of a substantial risk. The Crown appeared to accept that the terms of his Honour’s directions to the jury were not consistent with his ultimate finding. However, the Crown submitted that there was nothing to indicate that such reached by his Honour had operated to increase the length of the sentence which was imposed.

Consideration

1. [54]

   It was not the Crown’s position at trial that the applicant knew that she was importing Tier 1 goods. As will be evident from the references to the Crown’s closing address to the jury at [41]-[44] above, the Crown’s position oscillated between asserting on the one hand that the applicant knew that she was importing prohibited goods, and asserting on the other hand that she was aware of a substantial risk that this was the case, in circumstances where it was unjustifiable to take that risk. His Honour directed the jury only as to the latter. In doing so he explained to the jury, by reference to the terms of s 5.4(1)(a) and (b) of the Code, what amounted to recklessness “in this context”, or in other words, in the context of the applicant’s trial. Moreover, immediately prior to enumerating the factors upon which the Crown relied in respect of this element, his Honour directed the jury that these factors were relied upon by the Crown to “make clear that (the applicant) was aware of this risk”.

2. [55]

   The sole reference in his Honour’s summing up to the applicant being aware that she was importing Tier 1 goods was that set out at [46] above. That was a passing reference only. It fell between the specific directions as to the applicant’s awareness of a substantial risk, and an enumeration of the factors relied upon by the Crown to infer such awareness. In my view, there can be no doubt that the issue was left to the jury on the basis of recklessness as defined in s. 5.4(1)(a) and (b) of the Code.

3. [56]

   In determining sentence, his Honour was required to find facts consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 380 per the Court. There was only one issue for the jury’s determination. As the Crown properly conceded before this Court, there is an inconsistency between the basis upon which that issue was left to the jury, and his Honour’s finding, on sentence, that the applicant knew that she was importing prohibited goods. That inconsistency is reflective of error.

4. [57]

   I have noted the Crown’s submission that there is nothing to indicate that his Honour’s finding that this was not a case of recklessness caused the length of the sentence to be increased. In my view, that is not to the point. The error clearly had the capacity to infect the exercise of the sentencing discretion, and was therefore material: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 per Latham J at [83].

5. [58]

   For all of these reasons this ground is made out.

The approach of this Court

1. [59]

   Ground 1 asserts that the sentence which was imposed was manifestly excessive. However, error having been found in respect of Ground 4, the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW) apply. In those circumstances, it is the duty of this Court to exercise the sentencing discretion afresh: Kentwell v R [2014] HCA 37; (2014) 252 CLR 201 at [42]-[43] per French CJ, Hayne, Bell and Keane JJ. It is not incumbent upon the applicant to demonstrate that the sentence imposed was manifestly excessive. In exercising the sentencing discretion afresh, I have had regard to those provisions of s. 16A(2) of the Act as have application in this case, as set out below.

The nature and circumstances of the offending – s. 16A(2)(a)

1. [60]

   For the reasons stated in considering ground 4, the verdict of the jury reflects an acceptance of the Crown case that the applicant was reckless as to the fact that the goods she was importing were prohibited. The applicant’s role was that of an importer.

2. [61]

   The amount of pseudoephedrine which was imported by the applicant was, on any view, significant. I accept that weight is not determinative, be it of the sentence itself or the range into which it should fall: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [68]-[69] per Gaudron, Gummow and Hayne JJ; DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [68] per Allsop P (as his Honour then was). However, it is clearly a factor which is relevant on sentence: R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72] per Johnson J (Macfarlan JA and R A Hulme J agreeing). Further, although Wong and Nguyen were cases concerning the importation of narcotics there is, in my view, no distinction to be drawn (in terms of the relevance, on sentence, of weight) between a case involving the importation of narcotics and a case involving the importation of Tier 1 goods. This is particularly so in circumstances where the Tier 1 goods are several kilograms of pseudoephedrine, a substance which, as a matter of common knowledge, can be used as a precursor to the manufacture of illicit substances.

3. [62]

   Weight has added significance for the purposes of sentence where an offender is aware of it: Nguyen (supra) at [72]; Garcia v R [2013] NSWCCA 241 at [74] per Bellew J (Emmett JA and R A Hulme J agreeing). Senior counsel for the applicant, whilst accepting that weight was a relevant consideration, submitted that there was no evidence that the applicant was aware of the weight of the pseudoephedrine she had imported. However as I have noted in [8] above, the sentencing judge found the applicant had indicated to Customs officers that she had packed her bags herself. There is no challenge to that finding. Even if the applicant was not aware of the precise amount of pseudoephedrine she was importing, I am satisfied that she must have been aware that it was substantial. Her role as the importer was performed with that knowledge.

The degree to which the applicant has shown contrition – s 16A(2)(f)

1. [63]

   A report of Phil Gorrell, Psychologist, was tendered before the sentencing judge and forms part of the material before this Court. Mr Gorrell concluded that it did not appear that the applicant was suffering from any psychiatric disorder. He also noted that the applicant “regrets her offence”. He concluded that she had “learnt” from it, and that she was “remorseful for her naivety in trusting her ex-partner”. As against those observations, a pre-sentence report dated 17 March 2014 noted that the applicant “maintained her innocence”.

2. [64]

   The degree to which a person has shown contrition for an offence is a matter which the Court must take into account on sentence under s 16A(2)(f) of the Act. An expression of regret for the commission of an offence in terms such as those noted by Mr Gorrell, is to be distinguished from an expression of genuine contrition. Moreover, the observations in the pre-sentence report are at odds with expressed contrition. In all of the circumstances I am not satisfied that the applicant has demonstrated any contrition for her offending.

The applicant’s character, antecedents and background – s. 16A(2)(m)

1. [65]

   I have already noted that the applicant has no prior convictions. However, I regard the applicant’s evidence as to her capacity to meet the cost of her repeated overseas travel as fanciful and untruthful. The cost of that travel, bearing in mind its frequency, would be unaffordable to a person whose income consisted solely of Centrelink benefits.

2. [66]

   I do not accept the applicant’s evidence that her employment provided her with an additional source of income. That evidence was both vague and imprecise and I am satisfied that it was untruthful. Her evidence that she purchased air tickets when they were on sale was, in my view, an answer of convenience.

3. [67]

   There is necessarily a great deal of suspicion attaching to the underlying reason(s) for the frequency of the applicant’s travel to and from Vietnam. Notwithstanding that suspicion, I cannot be satisfied that the applicant has been a party to the importation of prohibited goods in the past. However, and even though the applicant has no prior convictions, her untruthful evidence before the sentencing judge necessarily reflects the identification of an unfavourable aspect of her character: Weininger (supra) at [25]. That is not to be regarded as an aggravating factor but it leads to the conclusion that the applicant is not entitled to a finding that she is a person of good character. I am left in a position where the applicant’s character works neither in her favour, nor against her.

The applicant’s prospects of rehabilitation – s. 16A(2)(n)

1. [68]

   There is no evidence before the Court to enable me to make any determination of the applicant’s prospects of rehabilitation

The probable effect of the sentence on the applicant’s family – s. 16A(2)(p)

1. [69]

   The applicant is a single mother of three children, the youngest of whom is now 9 years old. Whilst the applicant’s incarceration has an obviously adverse effect upon her family, it has not been suggested that such effect is any greater than might otherwise be expected. In particular, it has not been submitted that the effect upon her family is exceptional. Accordingly, whilst it remains a relevant factor on sentence, the provisions of s 16A(2)(p) of the Act are not engaged: R v Zerafa [2013] NSWCCA 222 at [22] per Hoeben CJ at CL (Latham J agreeing).

General deterrence

1. [70]

   Although not specifically referred to in s. 16A of the Act, general deterrence nevertheless remains an important consideration in determining sentence for a matter of this nature: DPP (Cth) v El Kaharni (1990) 21 NSWLR 370 at 377 per the Court; R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524 at [55] – [58] per Beazley JA (as her Honour then was), Blanch and Howie JJ agreeing.

Sentences imposed in other cases

1. [71]

   The Crown provided a schedule of sentences imposed in other cases involving the importation of quantities of pseudoephedrine. Senior Counsel for the applicant relied upon that schedule in support of a submission that the sentence imposed upon the applicant was outside of the established range. This Court has repeatedly commented upon the danger of seeking to establish the appropriateness or otherwise of a particular sentence by comparing it with sentences imposed in other cases of like offending: see for example the observations of Gleeson JA in Briouzguine v R [2014] NSWCCA 264 at [74] and following. The High Court has recently reaffirmed that consistency in sentencing is not synonymous with numerical equivalence: The Queen v Pham [2015] HCA 39 at [28] per French CJ, Keane and Nettle JJ.

2. [72]

   I have considered the information contained in the schedule prepared by the Crown. It is sufficient for me to note that the vast majority of cases referred to in that schedule were determined in circumstances where the particular offender received the benefit of a substantial discount to reflect a plea of guilty. That is obviously not a relevant circumstance in the present case. Such a fundamental distinction simply highlights the fact that the circumstances of cases necessarily differ and that there is limited utility in engaging in comparative exercises.

Conclusion

1. [73]

   For the reasons I have set out, the applicant’s offending was serious. It calls for a significant measure of general deterrence. Her subjective case is unremarkable. Taking all of the identified factors into account, and exercising the sentencing discretion afresh, I have come to the view that no other sentence is warranted.

2. [74]

   I therefore propose the following orders: