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Court of Criminal Appeal 10 July 2008

NGUYEN, Van Cong v R

[2008] NSWCCA 163

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE SUPPLY OF A PROHIBITED DRUG PROSPECT OF REHABILITATION SPECIAL CIRCUMSTANCES

Citation: NGUYEN, Van Cong v R [2008] NSWCCA 163
Court: NSW Court of Criminal Appeal
Date: 10 July 2008
Judge(s): McClellan CJ at CL, James J, Fullerton J

Background

The appellant was convicted after trial in the District Court of supplying a prohibited drug, namely possession of 64 ecstasy tablets (17.8 grams) for supply at a Sydney nightclub in September 2006. He did not contest possession at trial but argued the drugs had been handed to him by another person for safekeeping, not for any commercial purpose. The jury rejected that account.

At sentence, the District Court imposed a total term of two years' imprisonment, with a non-parole period of 18 months and a balance of term of six months, commencing from the date of conviction. The sentencing judge gave significant weight to deterrence, expressed limited confidence in the appellant's rehabilitation prospects because he maintained his innocence, and declined to find special circumstances that would justify altering the standard ratio between non-parole period and balance of term.

The appellant sought leave to appeal to the Court of Criminal Appeal, filing his notice of intention to appeal out of time. Although no explanation was offered for the delay, the Crown did not oppose the extension of time, and leave was granted.

  • Whether the sentencing judge erred by finding it difficult to be confident of the appellant's rehabilitation prospects solely because he continued to maintain his innocence
  • Whether the sentencing judge erred in declining to find special circumstances under the Crimes (Sentencing Procedure) Act 1999, which would justify reducing the non-parole period relative to the overall sentence
  • Whether the resulting sentence was manifestly excessive, particularly in respect of the non-parole period

Decision

The Court of Criminal Appeal, in a judgment delivered by Fullerton J (with McClellan CJ at CL and James J agreeing), found that the sentencing judge's reservations about rehabilitation did not constitute a clear error in isolation. The Crown correctly conceded that an offender's continued denial of guilt does not automatically equate to an absence of rehabilitation prospects, and the sentencing judge had not entirely rejected that prospect. Rather, he had found it difficult to assess confidently, in part because the pre-sentence report was limited. On a strict reading, this did not rise to the level of error requiring intervention on that ground alone.

On special circumstances, the Court acknowledged that the sentencing judge had considered the issue and exercised his discretion against finding them. The Court recognised it is not every case in which special circumstances could have been found that warrants appellate intervention. However, Fullerton J was satisfied that the combination of the appellant's clean criminal record, established work history, and absence of any offending between arrest and conviction provided a proper basis for genuine confidence in his capacity to reintegrate into community life with appropriate supervision.

The Court found that the statutory ratio between non-parole period and balance of term should be varied in this case. Accordingly, it quashed the original sentence and resentenced the appellant to a total of two years, comprising a non-parole period of 12 months and a balance of term of 12 months. McClellan CJ at CL also took the opportunity to commend counsel for confining the argument on appeal to the non-parole period rather than the overall sentence, noting the Court's heavy workload and the value of focused submissions.

Orders Made

  • Leave to file the notice of appeal out of time granted
  • Leave to appeal granted
  • Original sentence quashed
  • Appellant resentenced to imprisonment with a non-parole period of 12 months (from 7 July 2007, expiring 10 July 2008) and a balance of term of 12 months (expiring 10 July 2009)
  • Direction that the appellant be released to parole forthwith, pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • A continued denial of guilt following conviction does not, by itself, establish that an offender has no prospects of rehabilitation. The Court of Criminal Appeal confirmed this as an appropriate concession, consistent with the sentencing framework under the Crimes (Sentencing Procedure) Act 1999.
  • Where a sentencing judge has considered special circumstances and exercised a discretion not to find them, appellate courts will be reluctant to intervene unless the discretion miscarried. The threshold for interference is not merely that special circumstances could have been found.
  • Factors such as a clean criminal record, stable employment history, and no further offending between arrest and conviction may, in combination, support a finding of special circumstances justifying a longer parole period to facilitate reintegration.
  • In resentencing, the Court varied the non-parole to balance-of-term ratio to equal proportions (12 months each), preserving the total term of two years while extending the supervised post-release period.
  • McClellan CJ at CL noted the practical value to the Court of Criminal Appeal of counsel exercising judgment to identify and confine the most viable grounds of appeal, rather than maintaining a broad attack across multiple grounds.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(1), 50(1)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29(1)

Cases:
- Ma and Pham v R [2007] NSWCCA 240
- R v Phillips [2003] NSWCCA 373
- R v Simpson (2001) 53 NSWLR 704