R v Nguyen[1999] QCA 258

COURT OF APPEAL

McMURDO P

McPHERSON JA

THOMAS JA

BRISBANE

DATE 09/07/99

JUDGMENT

THE PRESIDENT:  The applicant was convicted in the Supreme Court of Brisbane on 10 March 1999 of one count of trafficking in heroin.  He was sentenced to thirteen years' imprisonment.  He claims that the sentence was manifestly excessive and that the Judge should have considered the effect of Part 9A of the Penalties and Sentences Act 1992 in determining an appropriate penalty.

The applicant was a wholesale supplier for personal gain of substantial quantities of high grade heroin.  The heroin was supplied to the applicant from Sydney by a person named Phuong.  The applicant's activities were revealed as a result of an NCA operation using a covert police operative posing as a buyer.

The first buy occurred on 10 September 1997 and was $6,000 for 26.16 grams of powder containing 9.7 grams of pure heroin with a purity of 37.3 per cent.  On this occasion the applicant did not deal directly with the undercover police officer but with others lower down the chain. 

These dealings continued through early and mid October and on 12 November 1997 the undercover police officer dealt directly with the applicant purchasing 27.5 grams of white powder containing 18.8 grams of pure heroin with a 68.7 per cent purity for $8,500. 

They discussed the supply of 3 pounds of heroin for $285,000 and the applicant finally offered to supply one pound of heroin before Christmas guaranteeing the other two pounds after Christmas.  On 18 December the undercover police officer told the applicant she had borrowed $300,000 to buy all three pounds at once.  It was agreed that on 23 December 1997 the undercover police officer would give the applicant $95,000 to show to his boss in exchange for one pound of heroin and that the remaining $190,000 would then be handed over for the further 2 pounds of heroin.

On that date the applicant, Phuong, Luat and another co-offender Nguyen were all arrested at a Surfers Paradise hotel shortly before the planned sale.  A total of 767.82 grams of white powder containing 591.68 grams of pure heroin with a percentage purity at 67.5 per cent was located in the brief cases carried by Phuong and the other co-offender Nguyen.

The total amount of white powder involved in the trafficking was 957.08 grams of white powder containing 700.264 grams of pure heroin which included 25.3 grams of white powder found at the applicant's home, together with $13,700 in cash. 

The applicant was a user of marijuana and heroin but claimed not to be an addict.  He commenced trading in heroin in return for a cut of heroin together with some cash for each supply.  He used his cut of heroin either for his own use or to sell to others for profit.

The system adopted was commonly that a drug courier would fly up from Phuong in Sydney and the courier would be met at the airport.  Phuong would give instructions on how much the applicant was to be paid and the balance of the moneys would be returned with the courier to Phuong in Sydney.  The applicant often sold through Morgan who introduced him to the undercover police officer.

It was submitted on behalf of the applicant that he had made a very serious mistake in his involvement in this offence because of his naivety and his desire for material wealth.  The learned sentencing Judge found, after hearing evidence from Sharon Price, an intelligence analyst at the Brisbane office of the National Crime Authority that it was likely that Morgan was acting only as a sales person or agent for the applicant as the applicant was in direct contact with Phuong in Sydney.  No objection was taken to that finding.

Ms Price's unchallenged evidence was that the applicant stood to gain $33,000 per pound or $99,000 all told if the final three pound sale had proceeded.  A telephone interception recorded the applicant as saying that he would not be involved in heroin supply had he not calculated the risks and that he had worked out that he stood to make an enormous amount of money and was smart enough not to get caught. 

His Honour rejected the submission made below that the applicant was taking over Morgan's business dealing with Phuong and found that Morgan played a substantially subservient role to the applicant.  The applicant later cut out Morgan who was what is known as a "gopher", thereby allowing the price of his supplied heroin to drop by the $1,000 per ounce which was Morgan's fee. 

His Honour further found the following facts.  Morgan may or may not have previously been selling heroin on the Gold Coast prior to the applicant's involvement.  However if he was previously engaged in selling heroin it is highly likely that his source in this time was not from Phuong.  After the applicant became involved, Morgan acted akin to a sales broker for the applicant receiving something in the vicinity of $1,000 per ounce sold.  The applicant was Morgan's source of heroin evidenced by the applicant's ability to cut Morgan out and reduce the price of an ounce by $1,000.  The applicant was Phuong's closest contact on the Gold Coast and thus was connected to a very large source of very high grade heroin.  The applicant's telephone contact with Phuong prior to the commencement of this operation is suspicious but based on the absence of any other evidence His Honour drew no inference from it.   

His Honour found that on the applicant's counsel's submissions the applicant sold other small amounts to other clients referred to by Phuong.  His Honour found that the applicant obviously gave his counsel a false version of how he became involved.  The applicant was prepared to deal with any person in addition to Morrow in the supply of heroin.  The applicant co-opted and engaged at least two persons, Morgan and Maslen to help him in his business, Morgan to arrange for suppliers and arrange for customers and Maslen to deliver it with clear instructions to get the money, make sure it was sold and account back to the applicant.

The offence of trafficking in heroin carries a maximum term of imprisonment of 25 years.  The applicant was at the time of sentence and is now 24 years of age and was 22 at the time of the commission of the offences.  He has prior criminal convictions for possession of marijuana and possession of a nunchaku and a cross-bow.  The applicant has been in custody from 23 December 1997 and has made some efforts at rehabilitation in that time having undertaken a substance abuse program and a business course.

The applicant pleaded guilty at an early stage and although the Crown case against him was strong he deserves the benefit of a timely plea of guilty.  The applicant spent 384 days in custody which was not solely in relation to this matter but also in relation to other matters which were subsequently discontinued.  No declaration can be made under s.161 Penalties and Sentences Act 1992 in respect of that period.  The applicant then spent a further 32 days in custody in respect solely of this matter and the appropriate declaration was made in respect of this lesser period.

Neither his Honour nor counsel below recognised that the provisions of Part 9A of the Penalties and Sentences Act 1992 apply to the offences of trafficking in heroin and that once a penalty of 10 years imprisonment or more is imposed, the offender is automatically convicted of a serious violence offence.  As a result the applicant must serve 80 per cent of his sentence.  No recommendation can be made for parole nor can he get the benefit of remissions:  see s.166(1)(c) of the Corrective Services Act.

His Honour treated the 384 days in custody as, in effect, a 12 and two-third month period of custody in favour of the applicant.  As the provisions of Part 9A applied, this was an error which favoured the applicant.  That period of 384 days in custody was rather the equivalent of 16 months in custody under the new regime under Part 9A of the Penalties and Sentences Act.

His Honour, after considering a number of comparable sentences, concluded that a sentence of 16 years imprisonment was the proper starting point in this case.  The comparable sentences of R v. Puscas and Onea CA 81 of 1993 and 74 of 1994, Gretton CA 353 of 1997, Tran 111 of 1996 and Jacobs 444 of 1996, demonstrate that a starting point of 16 years imprisonment was within the proper range and that has not been challenged, at least by the applicant, on this appeal.

His Honour then, because of the lengthy period spent in custody which was not covered by section 161 of the Penalties and Sentences Act, deducted from that 16 years starting point two years and two months, noting:

"Ordinarily, you would be eligible for parole halfway through.  I take into account your plea of guilty, your relative youth and your prospects, and I will make a further allowance to end up with a net sentence of 13 years' imprisonment. 

Ordinarily I would have made a recommendation for parole at somewhere slightly less than the halfway mark, however in this case I have chosen to reduce the head sentence to 13 years' imprisonment and make no recommendation as to parole.

Too often the public do not understand that even without a recommendation for parole a person is entitled to be considered for parole at the halfway mark and sometimes even less than that with remissions.  When a Judge makes a recommendation below this, too often it is thought that you would automatically get out of gaol at an earlier time.  This is completely wrong. 

Accordingly, I have taken the view in this case, including allowances in your favour, to impose 13 years' imprisonment, which is the sentence I impose and I make no further recommendation."

His Honour has clearly acted on a wrong principle in not recognising that Part 9A of the Penalties and Sentences Act applied and that the applicant would be eligible for release on parole after having served half his sentence, regardless of the weight he could give to that factor.  As a result this Court is entitled to sentence afresh, even if the sentence of 13 years' imprisonment is not manifestly excessive.  What then is the appropriate sentence?

His Honour's approach to the sentence was largely correct.  There can be no fair complaint with his starting point of 16 years as the proper initial notional sentence.  Instead of a deduction of a period of two years and two months for the period in pre-sentence custody to which s.161 of the Penalties and Sentences Act 1992 was inapplicable, taking into account the effect of Part 9A of the Penalties and Sentences Act, the correct deduction for pre-sentence custody was 16 months. 

A further deduction should then have been made to take into account the mitigating factors, in particular the applicant's youth and his plea of guilty.  In the circumstances of this case, a further deduction of two years is fair and proper.

The proper sentence then in my view is one of 12 years and eight months imprisonment.  Although this means that the applicant, because of the provisions of Part 9A of the Penalties and Sentences Act will not be eligible for release on parole until he has served 10.4 years of that sentence and will have served an actual period of imprisonment of eleven and a half years, it was clearly the intention of the legislature in enacting Part 9A that such consequences should follow.

As this Court said in R v. Booth, 33 of 1998, an applicant "cannot insist on the same level of sentence or the same expectation of early release as that which prevailed before the statutory sentencing regime was changed in 1997.  In his case the harsher or more severe sentence to which he is now required to submit was not the consequence of any error in sentencing discretion on the part of the Judge below, but of a change in the law which is not part of the proper functioning of the sentencing Court to be astute in avoiding by imposing a reduced sentence designed to prevent or frustrate it."

This offence was a major trafficking in heroin involving large quantities of high grade heroin for substantial profit.  It is unnecessary for me to outline the horrible consequences wrought in this community by traffickers like the applicant who commit offences of this type for their own selfish and callous greed.  A very substantial penalty is warranted as a personal and general deterrent.

I would allow the application for leave to appeal against sentence and in lieu of the period of imprisonment of 13 years, I would substitute a term of imprisonment of 12 years and eight months and would otherwise confirm the sentence imposed below.

McPHERSON JA:  I agree.

THOMAS JA:  I also agree.  The adjustment we are making to this sentence is only a slight one, but I think it necessary that we give the applicant the benefit of it.

Two errors occurred in the learned sentencing Judge's formulation of his 13 year sentence.  One error was in the applicant's favour - too much allowance for pre-sentence custody, and the other against him - not enough allowance for his plea of guilty.  When the errors are set off against one another the result is not exactly the 13 years to which he was sentenced.  It therefore seems appropriate in the interests of justice to make an adjustment although it is only slight and although it is not the sort of adjustment that this Court would ordinarily be prepared to make.

A starting point of 16 years was, in my opinion, appropriate for heroin trafficking of these dimensions even for a relatively young offender with only a slight to moderate to criminal history.

A proper sentence would result if there is allowed a 16 month reduction for pre-sentence custody (as that could not be the subject of a specific declaration under section 161), and a further two-year reduction for his plea of guilty. 

Once that position is reached the provisions of Part 9A of the Penalties and Sentences Act apply and this Court cannot fashion a sentence to avoid the operation of those provisions.  I agree with the orders proposed by the President.

THE PRESIDENT:  The orders are as I have proposed.

MR DAVIS:  Your Honour, there is one additional matter.  The order of the Court would speak as of today because it's a new sentence and consequently there should be a declaration that the time in custody since 27 February 1999 on my calculation‑‑‑‑‑

THE PRESIDENT:  I don't think it does.

THOMAS JA:  It doesn't speak from today.

THE PRESIDENT:  No, it goes back to the date of sentence.